author: Hancock, Jr., J. Bellacosa, J.

text:
    The People of the State of New York, Respondent, v George Taylor, Appellant.
    Argued April 30, 1992;
    decided July 1, 1992

      POINTS OF COUNSEL

      E. Joshua Rosenkranz and Deborah A. Noonan for appellant.
    I. Defendant’s conviction must be reversed because the trial court denied him the right to call the identifying witnesses at the Wade hearing, where the People’s sole witness had no personal knowledge of whether the identifying witnesses discussed the lineup with one another when they were mingling together. (People v Chipp, 75 NY2d 327; People v Peterkin, 75 NY2d 985; People v Ocasio, 134 AD2d 293; People v Jones, 157 AD2d 487; People v Gaddy, 115 AD2d 658; People v Burts, 78 NY2d 20.) II. Defendant’s conviction must be reversed because the trial court erroneously permitted the prosecutor to introduce a copy of an automobile registration that had not been certified as required by the CPLR, thereby providing the sole tangible corroboration of the complainant’s identification testimony. III. The trial court committed reversible error when it admitted a detective’s telephone message reporting another witness’s observation of a license plate number, where the detective never saw the license plate and the witness never verified the message’s accuracy. (Russell v Hudson Riv. R. R. Co., 17 NY 134; People v Fields, 151 AD2d 598; People v Caprio, 25 AD2d 145, 18 NY2d 617; Brown v Provident Loan Socy., 282 NY 453; McCarthy v Meaney, 183 NY 190; Halsey v Sinsebaugh, 15 NY 485; Peck v Valentine, 94 NY 569; People v Dillenbeck, 115 AD2d 331; People v Stevenson, 157 AD2d 563; People v Ramirez, 112 AD2d 326.) IV. The trial court should have charged the defense of renunciation because there was a reasonable view of the evidence that the assailant voluntarily and completely renounced any intention to rape the victim when she tried to talk him out of completing the attempt. (People v Butts, 72 NY2d 746; Culombe v Connecticut, 367 US 568; People v Anderson, 42 NY2d 35; People v Robinson, 31 AD2d 724; People v Gilmore, 134 AD2d 653, 72 NY2d 859.)

      Robert T. Johnson, District Attorney (Nancy D. Killian and Allen H. Saperstein of counsel), for respondent.
    I. Appellant’s guilt was established beyond a reasonable doubt by overwhelming evidence. (People v Johnson, 57 NY2d 969.) II. The trial court acted within its discretion in refusing appellant’s application to have the sexual assault victims testify at the Wade hearing when appellant neither offered any indication of suggestiveness nor requested the testimony of a police employee who was present with the victims while they waited to view the lineup. (People v Chipp, 75 NY2d 327; People v Wilson, 64 NY2d 634; People v Dickerson, 50 NY2d 937; People v Rodriguez, 64 NY2d 738; Stovall v Denno, 388 US 293; United States v Ditommaso, 817 F2d 201; People v James [Joseph], 159 AD2d 723; People v Peterkin, 75 NY2d 985; People v Taylor, 75 NY2d 277; People v Ocasio, 134 AD2d 293.) III. The trial court properly admitted the contents of a telephone message indicating a license plate number of an automobile observed at the home of one of the victims. (People v Fleming, 70 NY2d 947; People v Mountain, 66 NY2d 197; People v Liccione, 50 NY2d 850; People v Buckley, 75 NY2d 843; People v Little, 55 NY2d 770; Swart v United States, 394 F2d 5; United States v Booz, 451 F2d 719, 414 US 820; People v Settles, 46 NY2d 154; Johnson v Lutz, 253 NY 124; People v Crimmins, 36 NY2d 230.) IV. The trial court properly admitted a record obtained from the Department of Motor Vehicles. (People v Olivo, 52 NY2d 309; People v Decina, 2 NY2d 133; People v Dickinson, 149 AD2d 430; People v Matias, 67 NY2d 1032; People v Krom, 61 NY2d 187; People v Crimmins, 36 NY2d 230; People v Pierre, 157 AD2d 750; People v Kirkpatrick, 32 NY2d 17, 414 US 948.) V. The trial court properly refused to submit the affirmative defense of renunciation. (People v Rizzo, 40 NY2d 425; People v Leonti, 18 NY2d 384, 389 US 1007; People v Pesky, 254 NY 373; People v Reynolds, 156 AD2d 597.) VI. Appellant’s pleas of guilty to four counts of rape and one count of attempted rape should not be vacated in any event since he did not plead guilty on the basis of a promise of concurrent time. (People v Lowrance, 41 NY2d 303; People v Rogers, 48 NY2d 167; People v Clark, 45 NY2d 432.)
   OPINION OF THE COURT

Hancock, Jr., J.

Defendant was tried before a jury on one indictment and convicted of separate crimes involving two different victims: i.e., rape and sodomy of Clara B. and attempted rape and sexual abuse of Elizabeth G. In defendant’s appeal of the Appellate Division’s affirmance of his convictions, we address two issues: (1) on the rape and sodomy counts, whether the trial court erred in admitting — under the hearsay exception for a past recollection recorded — a police officer’s phone message with a license plate number allegedly belonging to defendant’s car; and, (2) on the attempted rape count, whether the court erred in denying defendant’s request for a jury charge on the affirmative defense of renunciation. For the reasons stated hereinafter, we hold: (1) that admission of the phone message as a past recollection recorded was improper and that that error, coupled with the erroneous admission of an uncertified copy of defendant’s car registration, warrants a reversal and a new trial; and, (2) that the court’s denial of defendant’s request for a renunciation charge was correct.

I

On February 24, 1987, a man forced his way into Clara B.’s apartment in the Bronx and raped and sodomized her at gunpoint. On March 2, 1987, a man sexually abused and attempted to rape Elizabeth G. at knifepoint in her apartment, also in the Bronx. Detective Thomas Connelly arrested defendant on March 13, and each victim identified him as her attacker at the police station in separate lineups. A Grand Jury subsequently indicted defendant for these and other crimes.

At trial each complainant again identified defendant and the prosecution adduced other evidence linking him to the scene of each crime. Defendant testified and denied any involvement in either crime. After defendant was found guilty but before sentencing he pleaded guilty to other rapes and attempted rape charges with the understanding that the sentences for these charges would be concurrent with and no longer than the sentences to be imposed for the trial convictions.

The Appellate Division affirmed defendant’s convictions, holding that: (1) the phone message with the license plate number was admissible as a past recollection recorded because the observer and transcriber each testified "regarding the accuracy of their respective roles”; and, (2) the trial court "properly refused to instruct the jury on the affirmative defense of renunciation since there was no reasonable view of the evidence that defendant manifested voluntary and complete renunciation of his purpose to rape Elizabeth G.” The court also concluded that the uncertified record of defendant’s automobile registration was improperly admitted, but that the error was harmless. It rejected defendant’s argument that he had been improperly denied his right to have the complainants testify at a pretrial suppression hearing (174 AD2d 430). A Judge of this Court granted defendant leave to appeal.

II

Evidence pertaining to past recollection recorded

Faye Lopez — the daughter of one of Ms. B.’s neighbors— testified that on March 10, 1987, approximately two weeks after Ms. B. was attacked, she was at her mother’s apartment. She and her mother saw and heard a man knocking at Ms. B.’s door. The man was asking for "Cindy”, the fake name which Clara B. testified she had given the rapist. When no one answered, the man left and got into a car. Ms. Lopez testified that she saw the license plate number, wrote it down "with [her] mother”, and then called the police and gave them the number. Her mother, however, testified that it was she who got the plate number while her daughter was calling the police. Ms. Lopez tried unsuccessfully to reach Detective Connelly at the Bronx precinct. She talked instead to Detective Valentin who took the message, including the number of the license plate. The next day, Detective Connelly received the phone message containing the license number "567-TBP”. A computer check revealed that a vehicle with a similar plate number "5967-TBP” was registered to defendant. Two days later — linked to the crime scene as the owner of the car— defendant was arrested.

A year later when the case came to trial, Ms. Lopez had lost the piece of paper on which she had written the license plate information. She could not remember it. She testified, however, that to the best of her recollection, the license plate number she gave to Detective Valentin was the one she saw on the car. Detective Valentin testified that he recognized the message to be in his handwriting, but that he could not recall taking the message or writing it down. He stated, however, that it was his habit to take messages as accurately as he possibly could. Based on the combined testimony of Detective Valentin and Ms. Lopez, the trial court, over objection, admitted the memorandum containing the license information under the hearsay exception for a past recollection recorded. Also over objection, the court admitted an uncertified Department of Motor Vehicles record of defendant’s automobile registration containing his license plate number.

Evidence pertaining to the requested renunciation charge

The only relevant evidence appears in the testimony of the victim Elizabeth G. As she recites the events, a man forced his way into her apartment on March 2, 1987. Threatening her with a knife, he made aggressive sexual advances. Because of her fear of the knife, she sought to dissuade him — rather than fighting him or screaming — by "trying to make him believe that he could be [her] boyfriend and he did not have to do it this way”. Despite these efforts, he carried her into the bedroom where he continued to touch and rub himself against her and tried to pull down her pants. After Ms. G. "told him he could come to [her] house anytime”, he relented and they "went back to the living room and started talking”. He took off the surgical gloves he had been wearing during the attack, saying that he was "not going to be needing these anymore”.

The man apparently accepted Ms. G.’s suggestion that they "go buy a bottle” to celebrate "getting to know each other”. When they stepped into the hallway outside the apartment on their way "to buy the bottle”, the man had ahold of her upper arm. She slipped back through the door, which was slightly ajar, stating that she had forgotten her pocketbook. The door closed and locked automatically behind her and she stayed inside. As she put it on cross-examination, "I ducked from under his arm and the door closed”. The man knocked on the apartment door and tried to get her to open it by telling her to "get him a tissue”. She refused to let him back in, called the police, and the man left. At the close of the evidence, the court denied defense counsel’s request for a jury charge on renunciation regarding the attempted rape charge.

Ill

We address first the question of the admissibility of the phone message containing the license plate number of defendant’s car under the doctrine of past recollection recorded. Under this doctrine — which has a long history of acceptance in New York (see, e.g., Russell v Hudson Riv. R. R. Co., 17 NY 134; 3 Wigmore, Evidence § 738 [Chadbourn rev 1970]) — a memorandum made of a fact known or an event observed in the past of which the witness lacks sufficient present recollection may be received in evidence as a supplement to the witness’s oral testimony (see generally, Richardson, Evidence §§ 469, 473 [Prince 10th ed]; 3 Wigmore, Evidence § 734 [Chadbourn rev 1970]). The requirements for admission of a memorandum of a past recollection are generally stated to be that the witness observed the matter recorded, the recollection was fairly fresh when recorded or adopted, the witness can presently testify that the record correctly represented his knowledge and recollection when made, and the witness lacks sufficient present recollection of the recorded information (see, Russell v Hudson Riv. R. R. Co., 17 NY 134, 139-140, supra; People v Caprio, 25 AD2d 145, 150, affd 18 NY2d 617; People v Fields, 151 AD2d 598, 599; see also, People v Dillenbeck, 115 AD2d 331; People v Raja, 77 AD2d 322, 325-326; see generally, 3 Wigmore, Evidence §§ 745, 746 [Chadbourn rev 1970]; Richardson, Evidence § 469 [Prince 10th ed]; McCormick, Evidence § 299 [3d ed]).

The rationale for the doctrine is that the recorded information is essential to further the truth-seeking function of the trial proceeding and that when the conditions for admission have been met, there is sufficient assurance of the accuracy of the recordation and its trustworthiness (see, Russell v Hudson Riv. R. R. Co., supra, at 140; Iannielli v Consolidated Edison Co., 75 AD2d 223, 228, 230; People v Raja, supra, at 325-327; 3 Wigmore, Evidence § 755 [Chadbourn rev 1970]). As we stated in Halsey v Sinsebaugh (15 NY 485): "To exclude such a record, when shown to have been honestly made, would be to reject the best and frequently the only means of arriving at truth” (id., at 488). When such a memorandum is admitted, it is not independent evidence of the facts contained therein, but is supplementary to the testimony of the witness. The witness’ testimony and the writing’s contents are to be taken together and treated in combination as if the witness had testified to the contents of the writing based on present knowledge (see, Russell v Hudson Riv. R. R. Co., supra, at 140; Richardson, Evidence § 473 [Prince 10th ed]). Admission of the memorandum is a matter for the exercise of the court’s discretion in determining whether the proponent has made a sufficient showing of the accuracy of the recording and its reliability (see, People v Caprio, 25 AD2d 145, 151-152, supra; People v Raja, supra, at 327; 3 Wigmore, Evidence § 755 [Chadbourn rev 1970]).

The above requirements are most easily met where the witness testifies about a memorandum in which the witness personally recorded information based on his or her observations. Memoranda have also been admitted based on the observations of one person which were transcribed by another where from their combined testimony the court could be satisfied that what was written was an accurate transcription of what was observed or then known (see, e.g., Clark v National Shoe & Leather Bank, 164 NY 498, 503; see generally, 3 Wigmore, Evidence § 748 [Chadbourn rev 1970]; Richardson, Evidence § 469 [Prince 10th ed]). There are limits, however, to the admission of such jointly established records of past recollection. In Peck v Valentine (94 NY 569), the Court held that admission of a "memorandum not in its nature original evidence of the facts recorded, and not verified by the party who made the original and knew the facts, would open the door to mistake, uncertainty and fraud” (id., at 573 [emphasis added]).

In this case, the requirement that the memorandum must have been made or adopted while the recollection was fairly fresh, poses no obstacle to admission. The testimony of Ms. Lopez and Detective Valentin established that her transmission of the message containing the plate number and his receipt and recording of it all occurred immediately after Ms. Lopez’s observation. Nor does the requirement of the witness’ inability to recall the memorandum’s contents present a problem. Ms. Lopez testified that she could not remember the number. Thus, the critical question remaining is whether the proof adequately assured that the phone message transcribed by Detective Valentin correctly represented the information observed and transmitted by Ms. Lopez.

Reduced to its essentials, the testimony of Ms. Lopez and Detective Valentin comes to this. Ms. Lopez stated she transmitted to Detective Valentin what she believed to be her accurate observation of the license plate number. Detective Valentin had no recollection of that transmission or of having made the memorandum. Thus, he could not state that what he wrote down was what he had been told (see, Brown v Provident Loan Socy., 282 NY 453, 456; Hodas v Davis, 203 App Div 297; Richardson, Evidence § 471, at 462 [Prince 10th ed]; cf., United States v Booz, 451 F2d 719 [3d Cir], cert denied 414 US 820 [memorandum admissible if recorder can verify accuracy of transcription]; Swart v United States, 394 F2d 5 [9th Cir] [same]). He could state only that because the memorandum was in his handwriting he must have taken the message and that it was his habit to take messages as accurately as possible. There is no proof that Detective Valentin read back the plate number to Ms. Lopez for her verification or that she had any knowledge that he had received and recorded her message accurately (see, Peck v Valentine, 94 NY 569, 573, supra; see also, People v Fields, 151 AD2d 598, 599, supra; People v Ramirez, 112 AD2d 326).

Thus, there can be no more than supposition on the critical question of whether what was observed and sent corresponded with what was heard by the recorder and written down. Without some verification by the observer-sender that what was recorded accurately reflected her observations when made, the record of those observations should not have been received against defendant as substantive incriminating evidence. Contrary to the dissent, this is not an "unnecessarily rigid formula for admissibility” (dissenting opn, at 16). It is rather the application of the basic and sensible rule of evidence that before a record of observations made in the past by someone other than the observer can be received in evidence, there should be some showing that the recording was accurately made. We conclude that these facts taken together show that the memorandum lacked sufficient assurances of accuracy and trustworthiness. It was error, therefore, to admit the license plate number as a memorandum of Ms. Lopez’s past recollection.

We reject the People’s alternative argument that any error in admitting the phone message with the license plate number was harmless. That error must be viewed in conjunction with the trial court’s error in admitting an uncertified Department of Motor Vehicles record of defendant’s automobile registration (see, CPLR 4518 [c]). These two items provided a critical link between defendant and the crime by establishing that the car driven by the man — believed by the witnesses to be the person who had raped Clara B. — was owned by defendant. In cross-examining defendant, the prosecutor stressed the correspondence between what was written on the memorandum and the license number of defendant’s car. During summation, he emphasized that the license plate number was "very strong evidence” that defendant was the rapist. And he urged the jury to ask to see the phone message during their deliberations which they did. Finally, the trial court, before admitting the phone message, characterized it as "an important piece of evidence.” Viewing the record as a whole, we conclude that the erroneous admissions of the license plate number and defendant’s car registration were not harmless (see, People v Crimmins, 36 NY2d 230, 241).

IV

We turn to the question of the renunciation charge. According to defendant, the evidence shows that he voluntarily and completely abandoned any intention of carrying out the design of raping Elizabeth G. Thus, he argues, the trial court erred in denying his request to charge renunciation as an affirmative defense to the attempted rape count (Penal Law § 40.10 [3], [5]). As defendant properly reminds us, a court must charge the jury on any claimed defense that is supported by a reasonable view of the evidence which the court must assess in the light most favorable to the defendant (see, People v Butts, 72 NY2d 746, 750; People v Padgett, 60 NY2d 142, 144-145). Nevertheless, on the record before us we conclude that the court correctly denied defendant’s request.

New York’s first recognition of renunciation as a statutory defense came in 1965 when the Legislature enacted the present Penal Law (L 1965, ch 1030, eff Sept. 1, 1967) as part of its over-all revision of the criminal statutes following the American Law Institute’s adoption of the Model Penal Code in 1962. Penal Law § 40.10 (3) and (5), like other State enactments patterned on the Model Penal Code, specifies that renunciation should be a defense to an attempted crime (see, People v Reynolds, 156 AD2d 597; People v Johnston, 87 AD2d 703, 704; Rodriguez v Smith, 428 F Supp 892, 895 [SD NY]). In this particular, the Model Code and the statutes derived from it differ from the traditional common-law view which holds that it is logically impossible for someone to renounce a crime which is already completed (see, Model Penal Code § 5.01 [4]; 2 LaFave and Scott, Substantive Criminal Law § 6.3 [b] [2], at 54-57; Moriarty, Extending the Defense of Renunciation, 62 Temple L Rev 1, 7-11).

The Model Code approach is that — so long as the criminal design is completely and voluntarily abandoned before it is carried out — it is not illogical to permit the defense even though the events have progressed to the point where a criminal attempt has been committed. Various policy reasons are given for including renunciation as a defense for an attempted crime (see, e.g., Model Penal Code and Commentaries, Part I, § 5.01, comment 8, at 360; Hoeber, The Abandonment Defense to Criminal Attempt and Other Problems of Temporal Individuation, 74 Cal L Rev 377, 393-402). The general rationale, however, stresses that for the defense to apply the "object crime must in fact have been prevented” (Donnino, Practice Commentary, McKinney’s Cons Laws of NY, Book 39, Penal Law § 40.10, at 137 [emphasis added]) and that excusing the defendant from attempt liability in return for the crime’s prevention is seen as a net benefit to the community (id.). Moreover, encouraging actors to desist is said to diminish the risk that the crime will take place (see, 7 Zett, New York Criminal Practice ]f 63.9 [1]).

For the defense of renunciation to be effective, it must be shown that the object crime was abandoned "under circumstances manifesting a voluntary and complete renunciation of [the] criminal purpose” (Penal Law § 40.10 [3]). To be "voluntary”, as that term is used in the statute, the abandonment must reflect a change in the actor’s purpose or a change of heart that is not influenced by outside circumstances (see, Model Penal Code and Commentaries, op. cit., at 356); i.e., the abandonment cannot be motivated in whole or in part by a belief that circumstances exist that increase the probability of detection or apprehension or make more difficult the completion of the crime (Penal Law § 40.10 [5]). To be "complete”, the abandonment must be permanent, not temporary or contingent, not simply a decision to postpone the criminal conduct until another time or to transfer the criminal effort to another victim (id.; see, Model Penal Code and Commentaries, op. cit., at 358; 7 Zett, op. cit, § 63.9 [2] [a]). It is essential that the defendant demonstrate that the claimed renunciation resulted in avoidance of the crime (Penal Law § 40.10 [3]); in other words, that by abandoning the criminal enterprise he prevented it from being completed (see, 7 Zett, op. cit., § 63.9 [2] [a]; Donnino, op. cit., at 137; People v Johnston, 87 AD2d 703, 704, supra). Thus, for example (see, Model Penal Code and Commentaries, op. cit., at 360), if the actor fires at the intended victim and misses he has no defense to the charge of criminal attempt. What resulted in the crime’s avoidance was the actor’s poor aim, not his abandonment of the criminal purpose.

As a practical matter, defendant’s argument that he should have had the benefit of a renunciation charge is in some respects impaired in this case because his primary contention is that he was not involved in the crime at all. Thus, there could be no direct evidence on the critical question of whether defendant intended to make a complete abandonment of the criminal enterprise. To be sure, defendant’s entitlement to the renunciation charge is not defeated by reason of his denial of involvement in the crime (see, People v Butts, supra, at 748-749). On this record, however, we must decide whether the charge was warranted on no more than the victim’s unrebutted testimony.

Arguably, there is enough for the jury to have concluded that defendant voluntarily stopped the sexual assault, apparently in response to the victim’s intimations concerning future gratification. There is no reasonable view of the proof, however, that the abandonment of the criminal enterprise was complete (Penal Law § 40.10 [5]) or that the culmination of the intended rape was avoided by defendant’s abandoning the criminal effort (Penal Law § 40.10 [3]; see, 7 Zett, op. cit., § 63.9 [2] [a]). On these critical issues we have only the testimony of Ms. G. that when she and defendant left the apartment defendant was holding her by the arm, that she managed to duck from under his arm and get back through the apartment door which closed and locked automatically behind her, and that defendant thereafter attempted to regain entry into the apartment by knocking on the door and asking for a tissue. This evidence hardly evinces a complete abandonment by defendant of his criminal purpose. On the contrary, it strongly suggests that the criminal enterprise was continuing and that what prevented its completion was not defendant’s intention to abandon it but the victim’s escape.

Inasmuch as renunciation is an affirmative defense (see, People v Butts, supra, at 749, n 1), we agree with the lower courts that under no reasonable view of the evidence could the jury have found that defendant established by a preponderance of the evidence that the crime was avoided by his abandonment of the criminal effort "under circumstances manifesting a voluntary and complete renunciation of his criminal purpose” (Penal Law § 40.10 [3]).

V

Because this case is being remitted for a new trial on the crimes involving Clara B. and Elizabeth G., we comment briefly on defendant’s claim that the hearing court improperly denied his request to call the complainants as witnesses at the suppression hearing to testify whether any of the four victims who had viewed the lineup improperly discussed it with the others. The Appellate Division’s factual finding that "the complainants waited in a room that was attended by a police employee who was instructed to prevent conversation” (174 AD2d 430, 431, supra) is supported by evidence in the record. Accordingly, the hearing court did not abuse its discretion in denying defendant’s request because his claim of suggestiveness was purely speculative (see, People v Chipp, 75 NY2d 327, cert denied 498 US 833; cf., People v Ocasio, 134 AD2d 293 [witnesses viewing a photo array, in which defendant’s picture remained in the same position, were left unattended in the waiting room]).

We also conclude that the guilty pleas cannot be sustained because they were based on the promise that the sentences relating to the guilty pleas would be concurrent with the sentences imposed at trial (see, People v Boston, 75 NY2d 585, 589; People v Fuggazzatto, 62 NY2d 862, 863). Thus, in addition to the new trial on the crimes involving Clara B. and Elizabeth G., the judgment of conviction and sentence entered on defendant’s guilty pleas as well as the pleas themselves must be vacated, and that portion of the case remitted for further proceedings on the indictments. Accordingly, the Appellate Division order should be reversed and the case remitted to Supreme Court for further proceedings in accordance with this opinion.

Bellacosa, J.

(dissenting). I respectfully dissent and would affirm the order of the Appellate Division upholding defendant’s convictions.

The past-recollection record exception evolved as a mechanism to admit appropriately reliable written material into evidence (McCormick, Evidence § 299, at 864-865 [3d ed 1984]; 3 Wigmore, Evidence § 735, at 78-84 [Chadbourn rev 1970]). The general prerequisites for admissibility are necessity, timeliness in making the writing, and verifiable accuracy of the writing (see, Russell v Hudson Riv. R. R. Co., 17 NY 134, 140). In this case, the Court extrapolates and isolates only the latter factor in overruling the evidentiary ruling of both courts below. The Court perceives a deficit in the People’s proof of the verifiability of the accuracy of the detective’s memorandum of the witness’s telephoned report of a possible viewing of the perpetrator. The Court’s reversal erects an unnecessarily rigid formula for admissibility of past-recollectian written evidence in its application of that hearsay exception. The new formulation, in effect and in practicality, contradicts the purpose of the evidentiary principle and leads to a disproportionate result in these multiple prosecutions and convictions of this recidivistic perpetrator. Moreover, I conclude that the trial record affords no basis for concluding as a matter of law that either court below abused the discretion appropriately reposed in them to make the pertinent evidentiary ruling.

At trial, Ms. Lopez testified that she heard someone banging on the door of her neighbor (the rape victim), looked outside and saw a man entering a car. She stated she wrote down the full license plate number of the car and called the police "right away”. "To the best of [her] recollection”, she relayed the license plate number to Detective Valentin, who took her call at the precinct. Detective Valentin also testified at trial that he recognized that the memorandum of Ms. Lopez’s phone call was in his handwriting. He stated that his practice or habit as a police officer, when taking messages from witnesses, was to write them down accurately.

The combined testimony from the only two participants in the telephone exchange supplies adequate assurance that the detective’s memorandum accurately represented what the caller — an obviously astute and civic-minded citizen witness— saw and immediately reported (see, United States v Booz, 451 F2d 719, 725 [3d Cir], cert denied 414 US 820; Swart v United States, 394 F2d 5 [9th Cir]; People v Velarde, 196 Colo 254, 586 P2d 6, 8; see also, McCormick, Evidence § 303, at 868 [3d ed 1984]; 3 Wigmore, Evidence § 751, at 108 [Chadbourn rev 1970]). Significantly, too, the particular evidentiary datum at issue in this case — six of the seven digits of a license plate on a car connecting defendant to the scene of the crime — is highly objective, which is a key concern underpinning the past-recollection record exception (see, Peck v Valentine, 94 NY 569, 573).

Also, the trial court exhibited extraordinary attention to the issue of the admissibility of the detective’s written telephone message and carefully weighed its discretion. Nine pages of the record reflect the extended colloquy between the trial court and both counsel, culminating eventually in the court’s studiously researched and calibrated nine-page decision, recited orally from the Bench, admitting into evidence only a redacted portion of the memorandum. That decision and the Appellate Division’s affirmance of it are entitled to some deference (see, People v Raja, 77 AD2d 322, 327; 3 Wigmore, Evidence § 755, at 125 [Chadbourn rev 1970]).

The Court, in reversing, concludes nonetheless that Detective Valentin’s failure to recall receiving Ms. Lopez’s phone call or writing down her telephone message are threshold disqualifications to the admissibility of the memorandum (majority opn, at 10). The detective’s forthright admission of his memory gaps, however, is hardly a surprising development, given the one-year time span between the phone call (presumably one of many others he received that day) and the trial, and the customary busyness and distractions at a police precinct. To require officers to recall each phone message from a witness in these circumstances erects an unscaleable hurdle blocking the admission of police memoranda of this kind, written in the regular course of official precinct business.

The Court also speculates that Detective Valentin failed to "read back the plate number to Ms. Lopez for her verification” and places significant weight on that assumed failure of protocol (majority opn, at 10). Even assuming this protocol is required, it should not affect admissibility but rather should bear only on the weight to be given to the evidence in question.

To ratchet the past-recollection record hearsay exception to the level of admissibility, by promulgating these rubrics, undermines the fair and realistic development and application of the exception in a modern criminal-incident reporting, record-keeping context. In short, Detective Valentin’s memorandum of Ms. Lopez’s phone call was sufficiently trustworthy, under the circumstances here, to qualify for trial court consideration as admissible evidence. Pursuant to the trial court’s balanced exercise of the pertinent discretionary factors, the memorandum was then properly admitted into evidence in its relevant part.

A closing comment is also merited with respect to the Court’s extended discussion of the renunciation affirmative defense issue in connection with defendant’s additional conviction for attempted rape and sexual abuse of a different victim. It should suffice to say in this case that no possible or reasonable view of the evidence would entitle this defendant to an instruction on that affirmative defense. The victim saved herself from rape due solely to her outwitting defendant. Defendant did nothing to even remotely warrant any exculpatory escape hatch from the criminal objective he had undertaken against this woman. The extended discussion of this issue by the Court in this case is unnecessary to the disposition here and, of even greater concern, appears to encourage speculation and inferences in future cases that this statutory affirmative defense of renunciation may be more broadly available than was ever intended under the statute and by the Legislature.

Chief Judge Wachtler and Judges Simons, Kaye and Ti-tone concur with Judge Hancock, Jr.; Judge Bellacosa dissents and votes to affirm in a separate opinion.

Order reversed, etc.

      . For purposes of our analysis we accept the Appellate Division’s factual finding that Ms. Lopez "saw defendant getting into a car, transcribed his license plate number, and immediately called the precinct to report the license plate number.” (174 AD2d 430, 431, supra.) This finding is supported by Ms. Lopez’s testimony. We note, however, that Ms. Lopez’s mother testified to a different version of the events. According to this version, the mother observed the plate number and gave it to Ms. Lopez who called the police.

      . Nor can we subscribe to the dissent’s notion that the recording’s similarity to defendant’s license plate number provides some "highly objective * * * underpinning” (dissenting opn, at 16) for holding that the recording accurately reflects Ms. Lopez’s observations and was therefore admissible. The dissent would assume the truth of the incriminating similarity to be proved and use that as the basis for admitting the very evidence that proves the similarity. Such a circular argument provides no basis for the admission of evidence and hardly comports with the fundamental concepts of fairness in our criminal jurisprudence (see, People v Millan, 69 NY2d 514, 520).

      . We note in passing that the accuracy of the phone message’s content was cast in some doubt by the fact that the plate number recorded in the message, "567-TBP”, differed from the plate number of defendant’s car, "5967-TBP”. We note also that Ms. Lopez was not under any duty to report the plate number to the police and that there was no attempt to show that Detective Valentin’s regular course of business was the taking of phone messages. Thus, the case of Mayor of City of N. Y. v Second Ave. R. R. Co. (102 NY 572), relied on by the People, is not applicable (see, Johnson v Lutz, 253 NY 124, 127-128). Finally, we reject the claim that the past recollection recorded issue is unpreserved.

      . In pertinent part, Penal Law § 40.10 provides:
      "3. In any prosecution pursuant to section 110.00 for an attempt to commit a crime, it is an affirmative defense that, under circumstances manifesting a voluntary and complete renunciation of his criminal purpose, the defendant avoided the commission of the crime attempted by abandoning his criminal effort and, if mere abandonment was insufficient to accomplish such avoidance, by taking further and affirmative steps which prevented the commission thereof. * * *
      "5. A renunciation is not 'voluntary and complete’ within the meaning of this section if it is motivated in whole or in part by (a) a belief that circumstances exist which increase the probability of detection or apprehension of the defendant or another participant in the criminal enterprise, or which render more difficult the accomplishment of the criminal purpose, or (b) a decision to postpone the criminal conduct until another time or to transfer the criminal effort to another victim or another but similar objective.”


source: Caselaw Access Project

author: Hancock, Jr., J.

license: Public Domain

text:
    In the Matter of Columbus Park Corporation, Respondent, v Department of Housing Preservation and Development of the City of New York et al., Appellants. In the Matter of Bronx Park East Housing Company, Inc., Respondent, v Richard L. Higgins, as Commissioner of the New York State Division of Housing and Community Renewal, et al., Appellants.
    Argued June 3, 1992;
    decided July 2, 1992

      POINTS OF COUNSEL

      O. Peter Sherwood, Corporation Counsel (William J. Thom, Stephen J. McGrath and Andrea Roschelle of counsel), for appellants in the first above-entitled proceeding.
    Petitioner is bound by its agreement to maintain its housing accommodations at moderate carrying charges for at least 40 years. (Laba v Carey, 29 NY2d 302; Corhill Corp. v S. D. Plants, Inc., 9 NY2d 595; Williams Press v State of New York, 37 NY2d 434; Empire Props. Corp. v Manufacturers Trust Co., 288 NY 242; Trinity Episcopal School Corp. v Romney, 387 F Supp 1044, 523 F2d 88; Margulis v Lindsay, 31 NY2d 167.

      Marvin Wexler for respondent in the first above-entitled proceeding. I. The restrictive covenants upon which appellants rely have nothing at all to do with Mitchell-Lama regulation.

      (Matter of Park W. Vil. Assocs. v Abrams, 127 Misc 2d 372, 104 AD2d 741, 65 NY2d 716; Neponsit Prop. Owners’ Assn, v Emigrant Indus. Sav. Bank, 278 NY 248; Wolf Petroleum Corp. v Chock Full of Power Gasoline Corp., 70 Misc 2d 314, 41 AD2d 950, 33 NY2d 764; Clarke v Caldwell, 132 AD2d 171; Eagle Enters, v Gross, 39 NY2d 505; Servomation Corp. v State Tax Commn., 51 NY2d 608; Freitas v Geddes Sav. & Loan Assn., 63 NY2d 254; Boreali v Axelrod, 71 NY2d 1; Matter of Tierney v Cohen, 268 NY 464; Matter of Signarcon Controls v Mulroy, 32 NY2d 410.) II. Even if the restrictive covenants could reasonably be read as appellants would have them read, Columbus still should prevail because, at the very least, the covenants do not unequivocally waive that right and do not unequivocally impose the restriction contended for by appellants. (Gilbert Frank Corp. v Federal Ins. Co., 70 NY2d 966; Matter of Civil Serv. Employees Assn, v Newman, 88 AD2d 685, 61 NY2d 1001; Parsons v Lipe, 158 Misc 32, affd sub nom. Parsons v First Trust Deposit Co., 243 App Div 681; Home v Radiological Health Servs., 83 Mise 2d 446; Matter of East 56th Plaza v Abrams, 91 AD2d 1129; Greed Peak v Grodner, 155 AD2d 827, 75 NY2d 981; Huggins v Castle Estates, 36 NY2d 427; Premium Point Park Assn, v Polar Bar, 306 NY 507; Buffalo Academy of Sacred Heart v Boehm Bros., 267 NY 242; Crane Neck Assn, v New York City/Long Is. County Servs. Group, 92 AD2d 119, 61 NY2d 154, 469 US 804.) III. Because Columbus has a right to dissolve under section 35 (2), Columbus’ petition should be granted. (Matter of New York State Inspection, Sec. & Law Enforcement Employees v Cuomo, 103 AD2d 312, 64 NY2d 233; Matter of Association of Bds. of Visitors v Prevost, 98 AD2d 260; Matter of Park W. Vil. Assocs. v Abrams, 127 Misc 2d 372, 104 AD2d 741, 65 NY2d 716.)

      Robert Abrams, Attorney-General (Dennis J. Saffran and Jerry Boone of counsel), for appellants in the second above-entitled proceeding. Petitioner’s superseding obligation under the covenant requires it to provide affordable Mitchell-Lama housing for a longer term than the 20-year statutory minimum.

      (Seizer v Baker, 295 NY 145; Horning v Gore, 87 AD2d 34, 57 NY2d 604; Clark v Devoe, 124 NY 120; Hartford Acc. & Indem. Co. v Wesolowski, 33 NY2d 169; Laba v Carey, 29 NY2d 302; Sega v State of New York, 60 NY2d 183; Garza v Marine Transp. Lines, 861 F2d 23; Two Guys from Harrison-N. Y. v S.F.R. Realty Assocs., 63 NY2d 396; Liebowitz v Mandel, 114 AD2d 491; Matter of Lindenbaum & Young [City of New York], 79 Misc 2d 638.)

      Albert A. Walsh, Anthony R. Mansfield, Peter C. Mester and Michael B. Siller for respondent in the second above-entitled proceeding.
    The restrictive covenant does not prevent Bronx Park East’s Mitchell-Lama dissolution. (Matter of East 56th Plaza v Abrams, 91 AD2d 1129; Crane Neck Assn, v New York City/Long Is. County Servs. Group, 92 AD2d 119, 61 NY2d 154, 469 US 804; Sunrise Plaza Assocs. v International Summit Equities Corp., 152 AD2d 561; Matter of 440 E. 102nd St. Corp. v Murdock, 285 NY 298; Boreali v Axelrod, 71 NY2d 1; Matter of Picone v Commissioner of Licenses of City of N. Y, 241 NY 157; Matter of Tze Chun Liao v New York State Banking

      Dept., 74 NY2d 505; 2550 Olinville Ave. v Crotty, 149 Misc 2d 806.)
   OPINION OF THE COURT

Hancock, Jr., J.

Both petitioners (owners) are limited-profit housing companies formed under article II of the Private Housing Finance Law to provide housing for low and moderate income persons and families, commonly known as Mitchell-Lama housing. They seek dissolution so that they may convert to a more profitable form of housing company. The common issue is whether restrictive covenants contained in the parties’ respective agreements and deeds prohibit the owners from dissolving after 20 years as Mitchell-Lama housing pursuant to Private Housing Finance Law § 35 (2). For the reasons that follow, we conclude that by the terms of the covenants in each case the owners, in exchange for substantial financial aid, agreed to further the purpose of the Mitchell-Lama program by providing affordable housing for the additional time period specified in their contracts. Accordingly, we reverse the respective orders of the Appellate Division.

I

Mitchell-Lama Housing

The Mitchell-Lama Law (Private Housing Finance Law art II) is a government program for encouraging the private development of low and middle income housing. As the Legislature found, such affordable housing "cannot readily be provided by the ordinary unaided operation of private enterprise” (Private Housing Finance Law § 11). The program encourages such housing by offering State and municipal assistance to developers in the form of long-term, low-interest government mortgage loans and real estate tax exemptions. In return for these financial benefits, developers agree to regulations concerning rent, profit, disposition of property and tenant selection (see, Private Housing Finance Law §§ 20-23, 28, 31, 33; see generally, 9 NYCRR 1700.1 et seq).

Absent some specific restrictive covenant, a limited-profit housing company, aided by a loan made after May 1, 1959, may "voluntarily dissolve”, i.e., become deregulated. Under Private Housing Finance Law § 35 (2), the only conditions imposed on a housing company for dissolution without the consent of the supervising agency, are that it pay the remaining mortgage loan and all expenses incurred in the dissolution and that at least 20 years have elapsed since the occupancy date. If allowed to dissolve as Mitchell-Lama housing, Columbus Park will convert to unregulated cooperative housing and Bronx Park East will be regulated under the less stringent Rent Stabilization Law.

Columbus Park

Columbus Park is a New York City-regulated, middle-income cooperative housing development located in Manhattan in a 20-block neighborhood designated as an urban renewal area by the West Side Urban Renewal Plan (WSURP). The goals of WSURP are renewing the neighborhood by planning for new housing, rehabilitating deteriorated buildings, conserving sound development and providing necessary community facilities. WSURP’s ultimate aim is to produce a neighborhood with persons of various incomes and ethnic backgrounds.

Under WSURP, certain parcels within the 20-block area are designated for redevelopment and numbered 1 to 46, including parcel 16 on which Columbus Park is located. In 1964, petitioner Columbus Park acquired parcel 16 from the City at a small fraction of its market value so that it could develop the site for limited-profit middle-income housing. Columbus Park was provided a 50-year, low-interest, City-aided mortgage loan and a 50% exemption from the local and municipal real property taxes for up to 30 years.

The terms and conditions of the acquisition are set forth both in a land disposition agreement (LDA) and in the deed. These documents contain a covenant that parcel 16 shall be devoted "to the uses specified in the Urban Renewal and Project Plans” and that such obligation is to run for 40 years from the date of completion of the housing project. The LDA also requires that for 40 years parcel 16 "shall not be used for any use other than the uses specified therefor in the Urban Renewal and Project Plans * * * or contrary to any limitations or requirements of said Plans” and that "no change shall be made in the housing project as set forth in the * * * Plans * * * without the consent of the City Planning Commission [CPC] and the Board of Estimate [BOE]”.

WSURP contains two sections, Cl and C2, with two accompanying maps, numbers 2 and 3. Cl and map 2 address the general land uses for the entire WSURP area. C2 and map 3 show the portions of the area designated for redevelopment as numbered parcels (e.g., the parcel in question here, number 16) and the specific use required for each parcel so numbered. Section Cl states that the land uses shall be as shown on map 2, designated "Land Use Map”. Map 2 shows the general land uses for the entire 20-block area, including both the areas to be redeveloped and those not to be redeveloped under WSURP. On map 2, the area corresponding to parcel 16 is located within a section generally designated, in part, as residential use. Section Cl generally defines residential uses as including schools, libraries, museums, churches, health centers, community centers, and other similar uses. Significantly, section Cl provides that residential uses shall be construed to include that section’s general definition of residential uses '[ejxcept in areas proposed for redevelopment under C2” (emphasis added). Section C2 specifies that "[t]he principal use of each redevelopment parcel shall be as shown on Map 3, 'Redevelopment Areas Land Use Map’, and as set forth hereinafter.” Section C2 and map 3 both specify that parcel 16 shall be used for "tax-abated housing at moderate rentals or carrying charges”. Section C2 provides that such housing can be developed pursuant to the Limited-Profit Housing Companies Law (Public Housing Law former art XII).

The Project Plan Summary, which is also incorporated into LDA, states: "This Project is a Middle-Income Cooperative Housing Development planned for Stage I of [WSURP]” and that the project was organized by a group of upper west side citizens "concerned with the critical need for additional moderately priced housed housing accommodations.”

Occupancy of Columbus Park began in April 1967. In March 1989, relying on Private Housing Finance Law § 35 (2)’s 20-year provision and despite the above 40-year covenants, Columbus Park sought to dissolve and to convert to unregulated cooperative housing. However, respondent City Department of Housing Preservation and Development (HPD) concluded that the proposed conversion would violate the parties’ covenants. Columbus Park then instituted this proceeding seeking to compel the City and HPD to allow it to dissolve. Supreme Court dismissed Columbus Park’s petition, holding that the covenants created a contractual duty to maintain its public status as Mitchell-Lama housing for an additional 20-year period beyond the 20-year minimum of Private Housing Finance Law § 35 (2) (149 Misc 2d 66); The Appellate Division, with two Justices dissenting, reversed and granted the petition. It concluded that the covenants were "something less than clear”, that the restrictive covenants should be strictly construed in favor of Columbus Park, and that it "did not waive its statutory right to withdraw from the Mitchell-Lama program after 20 years” (170 AD2d 145, 149, 150). Respondents appealed as of right pursuant to CPLR 5601 (a).

Bronx Park East

Bronx Park East is a Mitchell-Lama housing project located on land it purchased from New York City in 1960. The development is subsidized under the Mitchell-Lama Law by a 40-year, 4% mortgage from the State and by a 40% municipal property tax abatement from the City. In October 1960, Bronx Park East applied to the State Division of Housing (respondent State Division of Housing and Community Renewal’s [DHCR] predecessor) and the BOE for approval of the housing project and the associated land acquisition, mortgage financing and tax exemption. The application contained a detailed plan for the construction, financing and maintenance of the project as Mitchell-Lama housing and requested "the indorsement of the Commissioner of Housing * * * of a limited-profit housing company which is intended to serve a public purpose”. In this application, Bronx Park East agreed "to remain subject to the supervision and control of the Commissioner, to acquire all real and personal property, to erect all structures for the proper effectuation of the purposes of [the Mitchell-Lama Law].”

The CPC approved the proposed project in December 1960. It found the project suitable for development under the Master Plan "in conformity with an overall plan for providing housing facilities for persons of low income.” The BOE also approved the project, the proposed tax abatement and the sale of the City property. The BOE approval resolutions and the subsequent May 1961 deed provide that Bronx Park East agrees to "devote the land to the uses specified in the plan for the area, approved by the Board of Estimate for Bronx Park East * * * for a period of fifty (50) years from the completion of the clearance, replanning and reconstruction and neighborhood rehabilitation of the area.” In addition, the resolutions and deed declare that for the 50-year period, "no change shall be made in the use of the land as specified in the plan of the area without the consent of the State Commissioner of Housing.”

In July 1988, pursuant to Private Housing Finance Law § 35 (2) and notwithstanding the above covenants, Bronx Park East submitted to DHCR a Notice of Intent to dissolve. Following lengthy correspondence and discussions between the parties, DHCR rejected the application as barred by the restrictive covenants. Bronx Park East then commenced this proceeding to compel DHCR to allow it to prepay its loan and to dissolve. Supreme Court granted the petition to the extent of directing DHCR to allow Bronx Park East to proceed with the requirements for dissolving (first and second causes of action) and dismissed Bronx Park East’s taking claim (third cause of action). The court concluded that "the totality of the facts and circumstances presented showed that Bronx Park East did not waive its statutory right to dissolve as a Mitchell-Lama company” after 20 years, and that the covenant only required that the land "be used for residential housing for a period of 50 years.” The Appellate Division affirmed, on the authority of Columbus Park, with one Justice concurring on constraint of that decision. Respondents now appeal pursuant to leave granted by the Appellate Division.

II

The central issue in each case is whether petitioner owners are bound by the restrictive covenants to provide Mitchell-Lama housing for more than the statutory 20-year minimum. The owners’ contractual duties under the restrictive covenants must be read in conjunction with their right to dissolve after 20 years pursuant to Private Housing Finance Law § 35 (2). When construing contracts, "due consideration must be given to the purpose of the parties in making the contact” and "[a] fair and reasonable interpretation, consistent with that purpose, must guide the courts in enforcing the agreement” (Matter of Cromwell Towers Redevelopment Co. v City of Yonkers, 41 NY2d 1, 6).

For the covenants to supersede the owners’ statutory right, they need not expressly provide for a waiver of their right under Private Housing Finance Law § 35 (2) but must have clearly intended that effect (see, City of New York v State of New York, 40 NY2d 659, 669; Selzer v Baker, 295 NY 145, 149; Matter of Civil Serv. Employees Assn, v Newman, 88 AD2d 685, 686, affd 61 NY2d 1001). Similarly, because the covenants restrict the use of property, the agencies must show by clear and convincing evidence that the parties intended that the developments be restricted to Mitchell-Lama housing for 40 and 50 years, respectively (see, Huggins v Castle Estates, 36 NY2d 427, 430).

The issue thus reduces to whether the covenants clearly state that the owners are obligated to provide Mitchell-Lama housing for more than the minimum statutory period of 20 years. The parties’ essential disagreement is over the purpose and effect of the restrictive covenants, i.e., whether they restrict the owners to a general residential use of the land or to a particular use of the land as Mitchell-Lama housing.

Columbus Park

The covenant language contained in the Columbus Park LDA and deed is unequivocal. Contrary to Columbus Park’s claim, the City’s interpretation of WSURP is not strained or focused on phrases taken out of context, but is a straightforward reading of WSURP’s "Land Use Plan” subsection and the accompanying land use maps previously summarized (cf., Matter of Park W. Vil. Assocs. v Abrams, 127 Misc 2d 372, 381 [Sup Ct, NY County] [land was limited to multifamily residential use, but was not further restricted to any particular type of occupancy], affd 104 AD2d 741, affd 65 NY2d 716). Columbus Park agreed that for 40 years the subject parcel 16 "shall not be used for any use other than the uses specified therefor in the Urban Renewal and Project Plans * * * or contrary to any limitations or requirements of said Plans” (emphasis added). WSURP requires that parcel 16 shall be used for "tax-abated housing at moderate rentals or carrying charges”, i.e., Mitchell-Lama housing. Likewise, the Project Plan provides that the parcel is used for "Middle-Income Cooperative Housing” as part of WSURP.

We recognize that WSURP in Cl and map 2 generally designates the section of the 20-block area where parcel 16 is located for residential use. But this does not conflict with WSURP’s specific requirement in C2 and map 3 that redevelopment parcel 16 be used for Mitchell-Lama housing. Requiring the parcel to be Mitchell-Lama housing is simply a more specific restriction on the use of the land; Columbus Park specifically agreed that parcel 16 would "not be used * * * contrary to any limitations or requirements of’ WSURP and the Project Plan. Limiting the parcel to Mitchell-Lama housing is one such restriction to which Columbus Park is bound.

Also, Columbus Park misreads the significance of WSURP’s general designation for residential use covering the part of the 20-block area containing parcel 16. Such general designation is shown on map 2 of WSURP which specifies the general land uses for the entire plan area, including both the parcels to be redeveloped and the rest of the area not to be redeveloped. WSURP expressly excepts the redevelopment parcels from the areas governed by its general definition of residential use. Parcel 16 is one such redevelopment parcel subject to the restrictions specifically designated for parcel 16 in C2 and map 3. Thus, WSURP unequivocally limits parcel 16’s use not only to housing, but more particularly to Mitchell-Lama housing.

Columbus Park points out that at the time the parties contracted, its tax exemption was for no more than 30 years and that HPD’s construction would obligate it to provide middle-income housing for 40 years. It argues that it would not have agreed to remain a Mitchell-Lama housing company for 40 years because for the last 10 years it would have no financial incentive to do so. We find no merit in this contention. The duration of the tax exemption was but one part of the bargain which Columbus Park struck with the City for providing Mitchell-Lama housing. The City sold Columbus Park the parcel at below market value and provided a low-interest loan and a 50% tax exemption. The argument that this financial package from the City, including a 30-year tax exemption, was not a sufficient quid pro quo for Columbus Park’s agreement to provide Mitchell-Lama housing for 40 years is a matter of pure speculation and does not draw into question the clear language of the covenants and related WSURP and Project Plan as discussed above.

Bronx Park East

The BOE resolutions approving the project and the deed provide that Bronx Park East agrees to "devote the land to the uses specified in the plan for the area, approved by the Board of Estimate for Bronx Park East * * * for a period of fifty (50) years” (emphasis added). The plain meaning of this language shows that Bronx Park East agreed to use the land as provided in the Project Plan, i.e., for Mitchell-Lama housing.

Bronx Park East argues that the underlined phrase refers to the City Master Plan for future development or the City Zoning Resolution and that, therefore, the covenant merely restricts the use of the land to the broad zoning category of residential housing. But neither the Citywide Master Plan nor Zoning Resolution are plans that were "approved by the Board of Estimate for Bronx Park East”. Only the plan for the project itself is such a plan. Moreover, the plain meaning of the covenant conforms to Private Housing Finance Law § 12 (1) which defines "area” as "[a] section of a municipality in which there is to be located a project.” Again, only the Project Plan, not the Master Plan or Zoning Resolution, is such a plan for the subject "area”, as defined in Private Housing Finance Law § 12 (1). Thus, it is clear that Bronx Park East agreed to devote the land to the particular uses specified in the project plan — i.e., to construct and maintain Bronx Park East as Mitchell-Lama housing — not merely the general uses described in the Citywide Master Plan or Zoning Resolution.

Moreover, Bronx Park East’s interpretation of the covenant as merely restricting the land to residential use, if adopted, would obligate the owner to the very use already required by the Zoning Resolution and, thus, render the covenant superfluous. Such a construction which makes a contract provision meaningless is contrary to basic principles of contract interpretation (see, Two Guys from Harrison-N. Y. v S.F.R. Realty Assocs., 63 NY2d 396, 403). We conclude, therefore, that the covenant obligated Bronx Park East to provide affordable Mitchell-Lama housing, subject to the Housing Commissioner’s authority, for 50 years.

Ill

We have considered and rejected the owners’ other arguments. Accordingly, in the Columbus Park case the order of the Appellate Division should be reversed, with costs, and the petition dismissed; and in the Bronx Park East case, the Appellate Division order should be reversed, with costs, and respondents’ motion to dismiss petitioner’s first and second causes of action granted.

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

In Matter of Columbus Park Corp. v Department of Hous. Preservation & Dev: Order reversed, etc.

In Matter of Bronx Park E. Hous. Co. v Higgins: Order reversed, etc.

      . Section C2 and map 3 also specify the redevelopment parcels to be used for public housing or full tax-paying housing as well as the redevelopment parcels to be used for nonresidential uses such as commercial, public or semipublic.

      . We recognize that Private Housing Finance Law § 35 (2) was enacted to create greater incentives than previously existed for developers to participate in the Mitchell-Lama program by reducing the minimum time period of participation in the program and eliminating the requirement that the Housing Commissioner consent to dissolution (see, 2550 Olinville Ave. v Crotty, 149 Misc 2d 806, 811-812 [Sup Ct, NY County]; cf., Private Housing Finance Law § 35 [1] [allowing withdrawal from the program for earlier loans only after 35 years and with the Commissioner’s consent]). This amendment of Private Housing Finance Law §35, however, in no way prohibited developers from contractually agreeing to provide Mitchell-Lama housing for longer than the minimum statutory 20-year period.

      . In 1978 Columbus Park’s tax exemption was extended to a maximum of 50 years.

      . Bronx Park East makes the same basic argument regarding the duration of its tax exemption which we reject for the same reasons.

      . Even if the covenant was referring to the Master Plan, Bronx Park East’s interpretation is not persuasive. The CPC, when it approved the proposed project based on the Master Plan, concluded that the project was "in conformity with an overall plan for providing housing facilities for persons of low income” (emphasis added). Thus, even the CPC’s interpretation of the Citywide Master Plan for future development supports the conclusion that the project was to be used only for low-income housing.


author: Titone, J.

text:
    Dorothy Fried, Individually and as Administratrix of the Estate of Andrew Fried, Respondent, v Alexander Seippel, Respondent, and Avis Rent-A-Car System, Inc., Appellant, et al., Defendant. Allayne K. Berkrot et al., Respondents, v National Car Rental et al., Appellants.
    Argued May 6,1992;
    decided June 4, 1992

      POINTS OF COUNSEL

      Bernard S. Meyer, Rose L. Hoffer, Philip Hoffer and Henry J. Cernitz for appellant in the first above-entitled action.
    I. Avis cannot be held liable under either common law or statutory principles of vicarious liability. (Hill v St. Clare's Hosp., 67 NY2d 72; W.W.W. Assocs. v Giancontieri, 77 NY2d 157; Zuckerman v City of New York, 49 NY2d 557; Hannon v Siegel

      Cooper Co., 167 NY 244; Fogel v Hertz Intl., 141 AD2d 375; Bank v Rebold, 69 AD2d 481; Berkey v Third Ave. Ry. Co., 244 NY 84, 602; Schultz v Boy Scouts, 65 NY2d 189; Kilberg v Northeast Airlines, 9 NY2d 34; Travelers Indent. Co. v Ryder Truck Rental, 47 NY2d 139.) II. Summary judgment should be granted because operation of the vehicle by Seippel was not with permission of either West Indies Car Rentals or Avis. (Leotta v Plessinger, 8 NY2d 449, 9 NY2d 686; Rooney v Myers, 132 AD2d 839, 70 NY2d 612; Bruno v Privilegi, 148 AD2d 652; Levitt v County of Suffolk, 145 AD2d 414.) III. Plaintiff is precluded by the judgment of May 20, 1991 from further litigating the issue of Avis’s liability. (Schultz v Boy Scouts, 65 NY2d 189; McCue v Abel, 171 AD2d 845; Jason v Chusid, 172 AD2d 172, 78 NY2d 1008; Hinchey v Sellers, 7 NY2d 287; Matter of Ranni [Ross], 58 NY2d 715; People v Acevedo, 69 NY2d 478; Malloy v Trombley, 50 NY2d 46; Parklane Hosiery Co. v Shore, 439 US 322; Koch v Consolidated Edison Co., 62 NY2d 548, 469 US 1210; Dittmer v State of New York, 140 AD2d 663.)

      Alan B. Leibowitz and Nancy S. Stuzin for Dorothy Fried, respondent in the first above-entitled action.
    I. A triable issue of fact exists as to whether Avis exercised that degree of dominion and control over West Indies Car Rentals to render Avis the de facto owner of the vehicle. (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395; Robinson v Strong Mem. Hosp., 98 AD2d 976; Gibson v American Export Isbrandtsen Lines, 125 AD2d 65; Moskowitz v Garlock, 23 AD2d 943; Barrett v Jacobs, 255 NY 520; Bank v Rebold, 69 AD2d 481.) II. As the de facto owner of the vehicle in question, defendant-appellant Avis is vicariously liable pursuant to section 388 of the New York State Vehicle and Traffic Law. (O’Connor v LeeHy Paving Corp., 579 F2d 194; Boxer v Gottlieb, 652 F Supp 1056; Scharfman v National Jewish Hosp. & Research Center, 122 AD2d 939; Fogel v Hertz Inti., 141 AD2d 375; Matter of Sentry Ins. Co. [Amsel], 36 NY2d 291; Babcock v Jackson, 12 NY2d 473.) III. The vicarious liability provisions of Vehicle and Traffic Law § 388 (1) apply herein against Avis inasmuch as Seippel operated the motor vehicle with "constructive permission” of Avis. (Motor Vehicle Acc. Indemnification Corp. v Continental Natl. Am. Group Co., 35 NY2d 260; Hardeman v Mendon Leasing Corp., 87 AD2d 232; Rooney v Myers, 132 AD2d 839, 70 NY2d 612.) IV. The Supreme Court’s order dismissal of plaintiffs complaint against WICR for lack of in personam jurisdiction did not address or decide the issue of liability as to defendant Avis; thus plaintiff should not be collaterally estopped from litigating the issue of Avis’s liability. V. It was improper and contradictory for the Supreme Court to render a decision on a question upon which the Appellate Division had previously ruled should be reserved as an issue of fact for the trier of fact. (Matter of Quinn v Warner, 96 AD2d 1079; Matter of Dana Marie E., 123 Misc 2d 112.)

      William E. Fay, III, for National Car Rental, appellant in the second above-entitled action.
    I. There is no basis in the facts or the law to charge appellant National Car with liability under Vehicle and Traffic Law § 388. (Travelers Indem. Co. v Ryder Truck Rental, 47 NY2d 139; American Home Assur. Co. v Employers Mut. of Wausau, 77 AD2d 421, 54 NY2d 874; Fogel v Hertz Inti., 141 AD2d 375; Bank v Rebold, 69 AD2d 481; Klippel v U-Haul Co., 759 F2d 1176.) II. Appellant National Car Rental is not liable under any theories that Green-light Car Rentals was its alter ego or that an apparent agency existed. (Hamilton v Hertz Corp., 130 Mise 2d 1034; W.W.W. Assocs. v Giancontieri, 77 NY2d 157; 805 Third Ave. Co. v M.W. Realty Assocs., 58 NY2d 447; West, Weir & Bartel v Carter Paint Co., 25 NY2d 535; Miglietta v Kennecott Copper Corp., 25 AD2d 57; Port Chester Elec. Constr. Corp. v Atlas, 40 NY2d 652; Computersearch Corp. v ECL Indus., 142 AD2d 961; Bernick v Cigna Corp., 112 AD2d 45; Balsan v Elma Eng’g Corp., 139 AD2d 292, 73 NY2d 783; Price v Cities Serv. Oil Co., 71 AD2d 700.) III. National Car Rental is entitled to an unconditional dismissal based on forum non conveniens. (Islamic Republic of Iran v Pahlavi, 62 NY2d 474.)

      Harvey J. Kaufman and Richard E. Meyer for Herbert Kalmanoff, appellant in the second above-entitled action.
    I. Summary judgment should be granted to Herbert Kalmanoff as plaintiffs have alleged no actionable theory of negligence on his part in their complaint or bills of particulars. (Cohen v City Co. of N. Y, 283 NY 112; Central State Bank v American Appraisal Co., 33 AD2d 1009.) II. Plaintiffs’ complaint should have been dismissed on the grounds of forum non conveniens. (Sullivan v McNicholas Transfer Co., 93 AD2d 527; Heller & Co. v Godbe Co., 601 F Supp 319; Vaughan v American Basketball Assn., 419 F Supp 1274.)

      Brynne L. Haines for respondents in the second above-entitied action.
    I. The IAS court’s transfer of the action to Ja-
    maica on forum non conveniens was an abuse of discretion and was properly modified by the court below. (Silver v Great Am. Ins. Co., 29 NY2d 356; Sullivan v McNicholas Transfer Co., 93 AD2d 527; Temple v Temple, 97 AD2d 757; Rosado v Eveready Ins. Co., 34 NY2d 43; Moschera v Muraca, 148 AD2d 591; Kronengold v Hilton Hotels Corp., 166 AD2d 325; Broida v Bancroft, 103 AD2d 88; Bader & Bader v Ford, 66 AD2d 642; Banco Ambrosiano v Artoc Bank & Trust, 62 NY2d 65.) II. Where National Car Rental’s control of the Greenlight Car Rental agency was an issue of fact, the court properly denied summary judgment to NCR. (Andre v Pomeroy, 35 NY2d 361; Phillips v Kantor & Co., 31 NY2d 307; Millerton Agway Coop, v Briarcliff Farms, 17 NY2d 57; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395; Rotuba Extruders v Ceppos, 46 NY2d 223; Bank v Rebold, 69 AD2d 481; Lowendahl v Baltimore & Ohio R. R. Co., 247 App Div 144, 272 NY 360; Matter of Sbarro Holding Co. fShiaw Tien Yuan], 91 AD2d 613; Travelers Indem. Co. v Ryder Truck Rented, 47 NY2d 139; American Home Assur. Co. v Employers Mut. of Wausau, 77 AD2d 421, 54 NY2d 874; Klippel v U-Haul Co., 759 F2d 1176.) III. Where defendant KalmanofFs medical treatment of his wife, and his special relationship and duty to plaintiffs are at issue, the court below properly denied summary judgment to defendant Kalmanoff. (Eiseman v State of New York, 70 NY2d 175; Purdy v Public Adm’r of County of Westchester, 72 NY2d 1.)
   OPINION OF THE COURT

Titone, J.

Plaintiffs in both of these cases seek damages for personal injuries sustained as a result of two unrelated automobile accidents. The common elements are that both accidents occurred on the West Indies island of Jamaica and both involved vehicles that had been leased from Jamaican companies that were licensed, directly or indirectly, by car rental companies operating or based in New York. Each plaintiff contends that the New York rental concerns may be held liable under Vehicle and Traffic Law § 388, which makes a vehicle owner liable for the negligence of a person using or operating the vehicle with permission. For the reasons that follow, we reject these contentions and hold that Vehicle and Traffic Law § 388 is inapplicable in these circumstances.

Fried v Seippel

Plaintiffs decedent, Andrew Fried, and defendant Alexander Seippel, both New York residents, had gone on a vacation to Jamaica together. Having secured an "Avis” travel voucher in New York, Fried had leased an automobile from West Indies Car Rental, Ltd. (WICR), a Jamaican concern licensed by Avis Rent-A-Car System, Inc. (Avis), which does business in New York. Fried was killed when the rented vehicle in which he and Seippel were driving crossed onto the other side of the road and hit another vehicle head-on. It is unclear which of the two men was driving at the time of the accident.

Fried’s administratrix brought the present action against Seippel, WICR and Avis, alleging that Seippel had been the negligent driver and that Avis was vicariously liable under Vehicle and Traffic Law § 388 by virtue of its de facto ownership of the vehicle in which the accident had occurred. When Avis moved for summary judgment dismissing the complaint against it on the ground that the vehicle was owned by WICR rather than itself, plaintiff countered by arguing that WICR was merely Avis’s alter ego and that Avis rather than WICR should be deemed the vehicle’s true owner. In support of this contention, plaintiff submitted evidence tending to show a close relationship between Avis and WICR.

On the basis of plaintiff’s submissions, the trial court denied Avis’s motion for summary judgment. The Appellate Division affirmed this aspect of the trial court’s order, holding that "issues of fact exist as to whether Avis, although not the owner of the vehicle, is precluded, by virtue of its relationship with * * * WICR, from disclaiming liability” (170 AD2d 303, 304). Both courts below assumed that if Avis were deemed the vehicle’s owner, Vehicle and Traffic Law § 388 would be applicable. The Appellate Division granted Avis leave to take a further appeal, certifying the following question of law: "Was the order of this Court, which modified the order of the Supreme Court, properly made?”

Berkrot v National Car Rental

As in Fried, the injured plaintiff in this case, a New York domiciliary, was involved in an automobile accident while vacationing in Jamaica. At the time of the accident, the car was driven by the injured plaintiffs friend, Catherine Kalmanoff, who was killed as a result of the car’s head-on collision with a minivan. The automobile in question had been leased by Herbert Kalmanoff, the deceased’s husband, from a Jamaican car rental company, Greenlight Car Rentals and Transport Ltd. (Greenlight). Greenlight was the licensee of National Car Rental System International (NCR-International), which, in turn, was licensed by National Car Rental (NCR), a firm doing business in New York.

Plaintiffs commenced an action against NCR, arguing that the New York-based rental company was liable under Vehicle and Traffic Law § 388 because its relationship with the Jamaican vehicle owner of record, Greenlight, was such that Green-light should be deemed NCR’s alter ego and Greenlight’s record ownership of the accident vehicle should be attributed to NCR. Plaintiffs also sued the deceased’s husband, Herbert Kalmanoff, both individually and in his capacity as the administrator of her estate.

NCR moved for summary judgment dismissing the complaint against it on the ground that it was an improper party and on the additional ground that Jamaica, rather than New York, was the proper forum for this action. Plaintiffs responded to NCR’s improper party argument by relying principally on the provisions of the licensing agreement between Greenlight and NCR-International, which, in plaintiffs’ view, demonstrated that NCR, either directly or through its licensee NCR-International, was the true controlling force behind Greenlight. Kalmanoff also moved for summary judgment, both on the ground of forum non conveniens and on the separate ground that the complaint did not state a cause of action against him.

The trial court denied the motions for summary judgment dismissing the complaint on the merits, holding that "an issue of fact is presented as to whether Greenlight is [NCR-International’s] agent and whether the international company is defendant’s agent.” However, the court dismissed the action on forum non conveniens grounds.

On cross appeals by all parties, the Appellate Division agreed that "factual issues exist with respect to [NCR’s] relationship with Green Light” and that summary judgment was therefore improper (175 AD2d 80, 82). The court also found that "factual issues exist as to the possible special relationship and duty owed by defendant Kalmanoff to plaintiffs,” precluding a grant of summary judgment in his favor (id., at 82-83). Finally, the court reversed the dismissal of the action for forum non conveniens, concluding that "[the] litigation has a substantial nexus to New York.” (Id., at 82.) The Appellate Division then granted NCR and Kalmanoff leave to appeal to this Court, certifying the following question: "Was the order of this Court, which modified the order of the Supreme Court, properly made?”

DISCUSSION

In both of these cases, the parties and the courts below focused principally on whether the New York licensors of the Jamaican auto rental agencies should be deemed the "owners” of the accident vehicles for purposes of establishing liability under Vehicle and Traffic Law § 388. To the extent that the parties have discussed the special problem arising from the fact that these accidents occurred in a foreign jurisdiction, they have concentrated their arguments primarily on conflicts-of-laws principles and, more specifically, on whether New York’s "interests analysis” supports application of New York law in the situations presented here. However, even if New York’s substantive law were held applicable to these lawsuits and even if defendants Avis and NCR were deemed the "owners” of the accident vehicles within the meaning of section 388 of New York’s Vehicle and Traffic Law, a question would remain as to whether these accidents involving vehicles registered and operated in Jamaica fall within the statute’s coverage. It is to this question that we now turn.

Section 388 (1) of the Vehicle and Traffic Law provides that "[e]very owner of a vehicle used or operated in this state shall be liable and responsible for death or injuries * * * resulting from negligence in the use or operation of such vehicle * * * by any person using or operating the same with the permission, express or implied, of such owner.” The statute imposes vicarious liability on vehicle owners for the negligence of anyone using or operating their vehicles with permission. As is evident from the underscored language, however, the literal statutory terms do not impose such liability on owners of vehicles that are "used or operated” exclusively outside of this State’s borders.

It has been suggested that the import of the above-cited limiting language has been modified by this Court’s opinion in Farber v Smolack (20 NY2d 198), in which we explicitly held for the first time that Vehicle and Traffic Law § 388 may be applicable even though the accident in question occurred in another State (cf., Macey v Rozbicki, 18 NY2d 289 [section 388 applied to Ontario accident without mention of extraterritoriality problem]). The Farber Court, however, did not go so far as to hold that liability under section 388 may be premised on ownership of a vehicle that was neither registered nor ever operated or used in New York. To the contrary, the Court was careful to note that, although the accident had occurred in North Carolina, the accident vehicle had been registered in New York, had been used in New York before the accident and had been on its way back to New York after a brief sojourn to Florida at the time the accident occurred (20 NY2d, at 202, 203). Indeed, the holding in Farber has little bearing on the statutory construction problem presented here, since, by virtue of its prior "use * * * or operation] in this state,” the accident vehicle in Farber was indisputably within section 388’s substantive coverage and the only question was whether, as a matter of judicially established cdhflicts principles, New York had a sufficient interest in the controversy to apply its own law. Here, in contrast, it is the substantive applicability of section 388 to these particular accident vehicles that is itself in issue.

Inasmuch as neither Farber nor any of the subsequent cases that the parties have cited suggests that section 388’s in-State use-or-operation requirement should be construed other than in accordance with its common or ordinary meaning, we conclude that the vicarious liability imposed by section 388 (1) does not extend to owners of vehicles that have never been registered, used, operated or intended for use within this State. Indeed, a contrary interpretation would make little sense in light of the over-all legislative scheme governing the protection of automobile accident victims.

Vehicle and Traffic Law § 388 is part of the legislatively prescribed system for protecting innocent victims of automobile accidents by assuring that there will be a financially responsible party who is available to answer in damages (see, Continental Auto Lease Corp. v Campbell, 19 NY2d 350). In addition to making the owner of a vehicle vicariously liable for the negligence of anyone driving it with permission, the statute requires that all vehicle owners procure insurance to cover the liability it creates (see, Vehicle and Traffic Law § 388 [1], [4]). This linkage of an owner’s vicarious liability to an owner’s obligation to maintain adequate insurance coverage suggests that the Legislature’s goal was to ensure that owners of vehicles that are subject to regulation in New York "act responsibly” with regard to those vehicles (Boxer v Gottlieb, 652 F Supp 1056, 1065; accord, Johnson v Hertz Corp., 315 F Supp 302, 304-305). Such a goal would not be advanced by imposing vicarious liability for vehicles having no connection with New York other than the fortuitous circumstance that their owners may be New York residents (cf., Klippel v U-Haul Co., 759 F2d 1176, 1182 [New York "has little or no legitimate interest in providing additional security for * * * New York residents who are injured in other (jurisdictions) while riding in vehicles having no connection with New York”]; see also, Herzog, Conflict of Laws, 27 Syracuse L Rev 17, 29-31 [criticizing Cunningham v McNair (48 AD2d 546) and suggesting that due process would forbid applying New York law in these circumstances]).

Thus, Vehicle and Traffic Law § 388 does not provide a basis for holding Avis or NCR liable in these cases, since, regardless of any theoretical possibility that Avis and NCR were the de facto owners of the accident vehicles, the vehicles were registered, operated and used exclusively on the island of Jamaica, far from New York’s borders. Consequently, they were beyond the statute’s intended reach. Accordingly, the complaints against Avis and NCR should have been dismissed.

We reach a different conclusion with respect to the claim asserted by the Berkrot plaintiffs against defendant Kalmanoff, the lessee of the accident vehicle. In response to his motion for summary judgment, plaintiffs asserted that, as the deceased driver’s husband and physician, Kalmanoff, a medical doctor, should have been aware of certain conditions, notably his wife’s abnormal behavior, inattentiveness and bizarre sleeping patterns, which rendered her unfit to operate a motor vehicle. In light of this knowledge, according to plaintiffs, Kalmanoffs decision to permit the deceased to drive the automobile he had rented was negligent and constituted a breach of a specific duty that he owed to them because they were guests in his Jamaica home and he was aware that the injured plaintiff would be a passenger in the vehicle. Kalmanoff does not dispute that if these allegations were proven to the satisfaction of a fact finder, they would establish his liability for plaintiffs’ injuries. Instead, he argues only that plaintiffs should not be permitted to prosecute their theory because it was not pleaded in their complaint or detailed in their bill of particulars. However, we conclude that the theory’s omission from prior pleadings should not prevent plaintiffs from proving it at trial, since the pleadings at least gave notice of the transactions or occurrences intended to be proved and Kalmanoff has not demonstrated that he has been in any way prejudiced (see, CPLR 3013; see generally, Siegel, NY Prac §208 [2d ed]; cf., CPLR 3016, 3026). Hence, KalmanofFs motion for summary judgment was properly denied.

Accordingly, in Fried v Seippel, the order of the Appellate Division should be reversed, with costs, defendant Avis Rent-A-Car System, Inc.’s motion for summary judgment granted and the certified question answered in the negative. In Berkrot v National Car Rental, the order of the Appellate Division should be modified, with costs to defendant National Car Rental against plaintiffs, by granting National Car Rental’s motion for summary judgment, and, as so modified, affirmed, with costs to plaintiffs against defendant Kalmanoff; the certified question should be answered in the negative.

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

In Fried v Seippel: Order reversed, etc.

In Berkrot v National Car Rental: Order modified, etc.

      . The Appellate Division had modified by granting defendants’ motion to dismiss plaintiff’s individual claim. That aspect of its order is not contested here. The court also granted defendant WICR leave to appeal, but that party’s appeal was dismissed for failure to prosecute.

      . The court did not explicitly address the merits of defendant Kalmanoff s motion for summary judgment.

      . See, e.g., Schultz v Boy Scouts, 65 NY2d 189; Babcock v Jackson, 12 NY2d 473; Kilberg v Northeast Airlines, 9 NY2d 34.

      . It is true that the Farber Court stated that "in adding the words 'in this state’ to [the statute], the Legislature was not concerned with extraterritorial effect” (20 NY2d, at 204). However, that comment, when considered in context, cannot fairly be construed as entirely eliminating the in-State use-or-operation requirement. Rather, the Court was merely indicating that the language in question was not intended to foreclose an owner’s liability under section 388 for an out-of-State accident where the statute, by its terms, is otherwise applicable.

      . As an alternative to their Vehicle and Traffic Law § 388 claim, plaintiffs in Berkrot v National Car Rental sought to hold NCR liable under principles of agency law on the theory that, as Greenlight’s principal, NCR was responsible for Greenlight’s negligence in maintaining the accident vehicle. However, plaintiffs offered no proof in response to NCR’s summary judgment motion either that the accident vehicle had been negligently maintained or that a mechanical failure was the proximate cause of the accident. Although plaintiffs contend that further discovery could be helpful in obtaining proof to document this alternative ground for recovery, their contention does not furnish an adequate ground for denying NCR summary judgment, since, apart from sheer speculation, plaintiff has offered no reason to believe that further discovery would be fruitful on this issue. The Berkrot plaintiffs’ additional contention that, if proven to be the vehicle’s true owner, NCR could be held vicariously liable under Jamaican law is similarly unavailing because the substance of Jamaican law was not pleaded in their complaint and no subsequent motion to amend the pleadings was made (see, CPLR 3016 [e]).