author: Simons, J. Wachtler, J. Fuchsberg, J.

text:
    In the Matter of CUNY-Hostos Community College et al., Appellants, v State Human Rights Appeal Board et al., Respondents.
    Argued March 23, 1983;
    decided May 10, 1983

      POINTS OF COUNSEL

      David B. Rigney, Paula J. Levitt and Pamela S. Dwyer for appellants.
    I. The commissioner’s finding that an illegal quota had been established is grounded on conjecture and surmise and does not meet the substantial evidence test required by this court. (300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176; Klein v Board of Higher Educ., 434 F Supp 1113; University of Cal. Regents v Bakke, 438 US 265.) II. The commissioner’s award of monetary damages against the university is invalid. (Simon v Boyer, 51 AD2d 879; Matter of Alberti v County of Erie, 46 AD2d 725; Hill v Nettleton, 455 F Supp 514; Hinchey v Sellers, 7 NY2d 287; City of Schenectady v State Div. of Human Rights, 37 NY2d 421; Sharapata v Town of Islip, 56 NY2d 332; Sears v New York State Div. of Human

      Rights, 73 AD2d 913; Batavia Lodge No. 196, Loyal Order of Moose v New York State Div. of Human Rights, 35 NY2d 143; State Comm. for Human Rights v Speer, 29 NY2d 555; Cullen v Nassau County Civ. Serv. Comm., 53 NY2d 492.)

      Robert N. Marx, Ann Thacher Anderson and Christopher R. Knauth for State Division of Human Rights, respondent.
    I. A complaint filed with the New York State Division of Human Rights may be amended at the hearing after all the testimony has been taken in order to conform the complaint to the proof. II. The commissioner’s determination that respondents discriminated against Mr. Harary because of his race, color and national origin is supported by substantial evidence on the whole record and should not be disturbed. (Matter of Broidrick v Lindsay, 39 NY2d 641; Matter of Fullilove v Beame, 48 NY2d 376; Board of Educ. v Harris, 444 US 130; 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176; Matter of Pell v Board of Educ., 34 NY2d 222; State Div. of Human Rights v Columbia Univ. in City of N. Y., 39 NY2d 612; State Div. of Human Rights v Wagner, 39 NY2d 865; Rochester Tel. Corp. v United States, 307 US 125.) III. Where reinstatement is an inappropriate remedy, an award of damages equal to lost earnings for a reasonable period of anticipated unemployment is neither arbitrary nor capricious and should not be disturbed. (City of Schenectady v State Div. of Human Rights, 37 NY2d 421; 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176; Albermarle Paper Co. v Moody, 422 US 405; Cullen v Nassau County Civ. Serv. Comm., 53 NY2d 492; Patterson v American Tobacco Co., 535 F2d 257; Equal Employment Opportunity Comm. [U. S. A.] v Pacific Press Pub. Assn., 482 F Supp 1291; Matter of Maloff v City Comm. on Human Rights [Schriber], 46 NY2d 902; New York Inst. of Technology v State Div. of Human Rights, 40 NY2d 316; Sears v New York State Div. of Human Rights, 73 AD2d 913, 49 NY2d 705; State Div. of Human Rights v Human Rights Comm. of Syracuse & Onondaga County, 79 AD2d 181.)

      H. Gary Zaslav for Moses Harary, respondent.
    I. The commissioner’s determination is not arbitrary and capricious and is supported by substantial evidence on the whole record and should be affirmed. (Rochester Tel. Corp.

      v United States, 307 US 125; Klein v Board of Higher Educ., 434 F Supp 1113.) II. The administrative judge in the hearing conducted by the New York State Division of Human Rights has discretion with respect to granting motions to amend the pleadings to the proof, especially where the issue amended was not surprise to appellant. III. The commissioner’s award of monetary damages was compensatory in nature and well within his authority. (Matter of Maloff v City Comm. on Human Rights [Schriber], 46 NY2d 902; Patterson v American Tobacco Co., 535 F2d 257; Sears v New York State Div. of Human Rights, 73 AD2d 913; Matter of Board of Higher Educ. v State Div. of Human Rights of State of N. Y., 36 AD2d 934.)
   OPINION OF THE COURT

Simons, J.

Petitioner appeals from an order finding it guilty of unlawful discrimination in discharging complainant, Moses Harary. Complainant originally charged that petitioner discriminated against him because of his creed and national origin. He subsequently amended the complaint to add the charge of retaliation. After a hearing, the administrative law judge found that complainant had failed to establish a prima facie case on the grounds stated. He permitted complainant to amend his complaint, however, to allege that he was discharged as the result of. his “race, color and ethnicity” because petitioner had applied an unlawful quota in determining which employees were to be discharged under its 1976 retrenchment policy. Pursuant to that amendment to the complaint, the administrative law judge found petitioner guilty of unlawful discrimination and awarded complainant substantial damages. The decision has been affirmed by the State Division of Human Rights, the Human Rights Appeal Board and the Appellate Division. We find no substantial evidence to support the division’s decision and order, however, and therefore grant the petition and dismiss the complaint.

Complainant is Jewish and American born. In 1972 he was hired as associate dean of administration and management planning by petitioner CUNY-Hostos Community College, a unit of the New York City Board of Higher Education. He received successive annual appointments to his position until 1975. It is important to this proceeding that he had no teaching duties and that he was not tenured.

In 1975 New York City suffered a severe financial crisis which caused the board of higher education to direct all 19 units under its jurisdiction to drastically reduce expenses (see, generally, Klein v Board of Higher Educ., 434 F Supp 1113). Indeed, conditions were so serious that it appeared for a time that CUNY-Hostos might be closed. A few months later, in July, the board issued a statement of policy to guide the units in retrenchment. Noting that the primary function of the board was education, it directed that economies, insofar as possible, were to be made by staff reductions in administrative positions rather than teaching positions. In August, 1975 petitioner’s president, Cándido de León, called complainant into his office with the dean of administration, told him that he was not satisfied with complainant’s understanding of how a university works (a reference apparently to antagonism between complainant and some faculty members) and told him to start looking for a new position. When complainant asked for a further explanation, de León told him the “reasons are anthropological but I do not want to go into them because you will just use them as a rationalization.” Complainant was told that he could have time to find a new job and in fact he was continued on the payroll until the end of the 1975-1976 school year. On July 28, 1976 he received notice that he would not be reappointed for the coming year.

On July 21, 1976 President de León, as directed by the board of higher education, promulgated a retrenchment plan. The plan was subsequently revised in August, 1976, but for purposes of this appeal, both plans were the same. Under it, 15 employees, including petitioner, were discharged that fall. Eventually a total of 82 employees were eliminated from the college, 33 by attrition and 49 by discharge.

On July 8, 1976 complainant filed charges with the division alleging that petitioner had unlawfully discriminated against him. After hearings extending over two years, the division found that there was “no credible evidence in the record to show that complainant was terminated because of malice based on his being Jewish and American-born”; that in fact President de León had hired complainant in 1972 knowing his religion and national origin. The division also found that under the retrenchment plan some American-born Jews were discharged and others retained and that the evidence in the record did not support complainant’s contention that he was discharged so that he could be replaced by a person representing a different racial or ethnic group. It found petitioner was not guilty of retaliation because complainant had been orally notified of his discharge before he filed his complaint. The division granted complainant relief because it found that he was discharged pursuant to the retrenchment plan and that the plan was “a deliberate effort to perpetuate unlawful quotas based on ethnicity of employees.”

Section 296 (subd 1, par [a]) of the Executive Law provides that it shall be an unlawful discriminatory act to discharge an employee because of age, race, creed, color, national origin, sex, disability, or marital status. Its purpose is to avoid discriminatory preference for any group, minority or majority, in hiring and firing. Neither the statute, the division’s regulations nor any case law cited to us refers to unlawful employment quotas or a prohibition against them, but most people have a sense of the wrong. The words refer to percentages applied to redress or maintain an existing proportion of the work force. The evil of quotas is that they subordinate merit as a basis for hiring and business judgment (which includes consideration of the ability of the employee) as the basis for discharge. Instead, arbitrary percentages are used to maintain a certain ethnic or religious balance. In quota discharges, the wrong consists of singling out employees for discharge, not because of a valid business judgment, but because the employees’ identities as members of a group are necessary to maintain a statistical relationship among the employee groups remaining. The discharge acts as a preference for those retained and is a form of unlawful discrimination.

• Complainant’s claim on this appeal is that he was discharged to maintain the racial balance of the groups employed by petitioner. In examining the evidence to support his claim, our review is limited to a consideration of whether the division’s determination in complainant’s favor is supported by substantial evidence on the record. We may not weigh the evidence or reject its choice where the evidence is conflicting and room for a choice exists. When a rational basis for the conclusion approved by the division is found, the judicial function is exhausted (see 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 181; State Div. of Human Rights v Columbia Univ. in City of N. Y., 39 NY2d 612, 616; Matter of Pace Coll. v Commission on Human Rights of City of N. Y., 38 NY2d 28, 35).

The division, in finding that petitioner implemented an illegal quota has relied on a statistical racial analysis included in President de Leon’s retrenchment plan, his remark to complainant in 1975 that his discharge was for “anthropological reasons”, and his hearing testimony that he was concerned that his plan should not penalize any ethnic group.

The retrenchment plan of 1976 was an ad hoc document devised to meet an extraordinary financial crisis. It called for an extensive reorganization of the college’s facilities and staff intended to achieve annual savings exceeding $1,000,000 in petitioner’s budget. The personnel and budget committee of the college, which included the chairpersons of all departments and voting representatives of the student government, had reviewed it and it was discussed with various deans and program directors and with the business manager of the college. As a part of the plan, six departments were eliminated. Some of the employees of these departments were discharged and some were transferred to other departments or other community colleges. Reductions were made in administrative and service areas as much as possible with preference given to retaining the teaching staff. Of the seven individuals holding positions as deans (some of whom had tenure), two were retained, four were reassigned to teaching duties and complainant was discharged. All those retained were required to teach classes. President de Leon’s explanation of the decision to discharge complainant rather than others was that complainant had no tenure and he was the dean the college could lose with least damage to its programs because his educational background did not qualify him to teach any courses offered by the college. Moreover, because he had been given notice of his discharge orally a year earlier, it was only natural that he should be included in the retrenchment plans in 1976. The division apparently accepted this explanation because it found no discrimination directed at complainant personally.

The written explanation of the plan recapitulated the jobs and functions changed and showed the estimated savings expected from each. At the end of it, the president noted he had discussed the changes with the college’s affirmative action office and he set forth the effects of the retrenchment on the racial mix of employees both before and after retrenchment and also the racial mix of those discharged.

“The consequences of this ‘Retrenchment Plan’ were discussed with the Affirmative Action Office.

“No significant difference will take place in the ethnic distribution of the faculty as a result of this plan and all of the other changes due to resignations, non-reappointments, etc. The total numbers affected by retrenchment and all other changes are as follows:

‘Ethnic Group Number %

White 27 33

Black 24 29

Hispanic 26 32

Asian/Pacific Islander 5 6

Total 82 100%

“The ethnic distribution resulting from all of these changes compared to this spring’s ethnic distribution is as follows:

March, 1976 For September, 1976

‘Ethnic Group Number % Number %

White 101 29.4 74 28.5

Black 95 28.0 71 27.3

Hispanic 135 39.4 109 41.9

Asian/Pacific Islander 11 3.2 6 2.3

Total 342 100.0 260 100.0

“The percentage of women on the entire faculty and staff will go down by 4.4%. This should not be surprising given the retrenchment of the Nursing Department, most of whose instructors are always women.

* * *

“The proportion of women in each ethnic group, however, has remained stable.”

The division has relied heavily on this statistical analysis to establish its finding that petitioner discharged complainant to satisfy an unlawful quota. It seems apparent, however, that the analysis is more a report of the results after formulating the plan of retrenchment than a design for retrenchment, and this is confirmed by the only reference to employment by sex. The chart showed women, also a target for affirmative action, would be affected disproportionately, indicating that the analysis was a review of the effect of the proposal, not a guide for the decisions previously made. Moreover the analysis contained no reference to religious preferences.

But more fundamentally, when the statistics are examined they do not establish a prima facie case of discriminatory discharge based upon a quota. In so stating, we recognize that statistics have a place in discrimination cases (see Matter of New York City Bd. of Educ. v Batista, 54 NY2d 379, 383; Matter of Pace Coll. v Commission on Human Rights of City of N. Y., 38 NY2d 28, 36, supra; State Div. of Human Rights v Kilian Mfg. Corp., 35 NY2d 201, 210; and see New York Tr. Auth. v Beazer, 440 US 568, 587; McDonnell Douglas Corp. v Green, 411 US 792, 805). When used with other objectively established evidence, they may permit an inference of unintentional discrimination. Thus, when the results of acknowledged past hiring practices are compared to statistics of the available labor pool and show a consistent underrepresentation of a particular minority group in the labor pool, an inference of discrimination is permissible (see, e.g., State Div. of Human Rights v Kilian Mfg. Corp., supra). A statistical predicate alone, however, will not support a challenge (Matter of Pace Coll. v Commission on Human Rights of City of N. Y., supra, at p 36). There must be proof also of employment practices which warrant the conclusion that discrimination exists (see State Div. of Human Rights v Kilian Mfg. Corp., supra). Moreover, statistics, even when supported by other established objective evidence, will not support an inference of unlawful employment practices unless they rest on a sufficient data base and are adjusted to reflect various factors which may influence the reliability of the numbers, e.g., the history of employment practices, the available labor pool, the rate of turnover, the effect of tenure, and the nature of the employment. In this case, there is the additional factor that the courts traditionally are reluctant to oversee academic judgments. Indeed, we have acknowledged that subjective factors may be considered in making faculty employment decisions (see Matter of Pace Coll. v Commission on Human Rights of City of N. Y., supra, at p 38).

Applying these considerations, we hold that the division erred in accepting these statistics at face value and inferring discrimination based upon them. Importantly, the statistics were based upon a single program undertaken to meet an unusual emergency. The record fails to disclose that it was symptomatic of past practices or that it required the discharge of whites other than complainant; the division found that others of similar ethnic background and religion had been retained at the college. Moreover, the figures and positions affected were not final. They were subject to change after review and appeal by affected employees and what changes, if any, were made after these appeals does not appear. Finally, the division failed to take into consideration petitioner’s historical affirmative action hiring practices and its obvious success in maintaining a faculty of diverse backgrounds and cultures. Given this prior history and the scope of retrenchment, some statistical correlation between those retained and those discharged was inevitable under accepted rules of probabilities and militates against an inference based upon the report that complainant’s discharge was motivated by the desire to maintain a quota. In short, while in some cases statistical evidence when corroborated by other objective evidence may support a reasonable inference of discrimination, the statistical evidence here does not.

The division also relied upon the president’s statement in 1975 that complainant’s discharge was for “anthropological reasons”. That statement was ambiguous at best and the division did not find it to be evidence of discrimination when it dismissed complainant’s original charges.

Finally, the division relied upon statements made by President de León during his testimony at the hearing in which he expressed his knowledge of the ethnic makeup of the college and his concern that retrenchment not unduly penalize any group. Neither of these proves discrimination. The board of higher education had an established policy of affirmative action employment and its 1975 statement of policy directed that in making reductions in staff due regard should be given it. Manifestly, petitioner and its officers were aware of this policy and of the antidiscrimination laws. The college maintained an affirmative action office which, among other duties, compiled ethnic and gender data about employees and reported it annually to the United States Department of Labor to qualify petitioner for Federal assistance (see 41 CFR part 60-2 et seq.). Thus, the president’s testimony that petitioner wished to avoid penalizing any minority by this retrenchment, his statement in the plan that he had discussed the discharges with the college’s affirmative action office and his inclusion of a statistical analysis which demonstrated that as a result of the plan there would be little change in the racial balance of the university’s employees, far from being proof per se of unlawful discrimination, was entirely consistent with his sensitivity to discrimination as the law and university policy required him to be. It should not have been parlayed into a new and different claim of discrimination by the administrative law judge after the evidentiary hearing was closed. It is noteworthy that this was not the only discrimination claim filed against petitioner by disappointed employees of various racial backgrounds after the 1976 retrenchment and it is not difficult to imagine the contentions that would have been raised if a disproportionate number in one or another racial group had been discharged. Petitioner was entitled to consider that aspect of the problem also.

Complainant, and Judge Fuchsberg in dissent, have relied upon evidence produced in support of the original charges that there was prejudice or bias against complainant personally to support this charge. The division rejected that evidence. On the sustained charge of discrimination based upon quota discharges, the evidence in the record established little more than the results of the 1976 retrenchment plan and the fact that petitioner was satisfied with those results. That evidence does not warrant a conclusion of unlawful discrimination.

Accordingly, the order of the Appellate Division should be reversed and the petition should be granted.

Wachtler, J.

(dissenting). I believe the essence of the division’s holding in this case is that the city university carried affirmative action too far when it employed the practice in firing employees to maintain ethnic balance. There is substantial evidence to support the finding that the city university was actively committed to an affirmative action program which thus far had been properly limited to hiring. The statistics show that after the retrenchment the ethnic balance remained the same. This, of course, could be the natural result of a more or less random across the board reduction in which case the practice would be legitimate. But concededly conflicting inferences could be drawn and it is the division’s province to determine which is the proper one. Indeed the president’s own statement, that in formulating the retrenchment plan one of his goals or “concerns” was that “no group be penalized any more than the other and that the affirmative efforts of the university not be reversed by the retrenchment” could be considered a type of concession.

We have repeatedly noted that the scope of judicial review in these cases is extremely narrow (see, e.g., Matter of Imperial Diner v State Human Rights Appeal Bd., 52 NY2d 72). The question is not whether we find the proof of discrimination convincing, but whether the division could do so. Because the evidence before the division in this case would at least support such an inference the court should not disturb the division’s determination.

Fuchsberg, J.

(dissenting). In a proceeding brought pursuant to section 298 of the Executive Law (the Human Rights Law) and CPLR article 78, the underlying issue is whether there was substantial evidence to support a State Human Rights Appeal Board order affirming an order of the State Division of Human Rights, which had adjudged that the complainant, Moses Harary, had been discriminatorily discharged from his employment by reason of his employer CUNY-Hostos Community College’s resort to a formula, or quota, under which “race, color and ethnicity” impermissibly were the criteria for identifying the employees who, in the implementation of a budgetary retrenchment plan, were to be singled out for termination. By unanimously confirming “in all respects”, the Appellate Division upheld the board’s determination.

On this further appeal, Hostos and its president, Cándido de León, in effect repeat their earlier arguments that the division’s determination is grounded on no more than “conjecture and surmise” and therefore “does not meet the substantial evidence test”. Because the ensuing review of the record taken as a whole discloses the contrary, this position should be rejected.

But first I note the two guidelines by which it must be measured:

The first of these is the overriding fact that the Human Rights Law, which governs the conduct implicated in this case, was enacted, among other things, to assure that, consistent with fundamental tenets of our society, every individual receive an equal opportunity “to enjoy a * * * productive life” and “to participate fully in the economic * * * life of the state”. As relevant here, to implement these ideals, the statute flatly declares it an unlawful practice “[f]or an employer * * * because of * * * race, creed, color [or] national origin * * * of any individual * * * to discharge * * * or to discriminate against such individual”. (Executive Law, § 290, subd 3; § 296, subd 1, par [a].) And section 300 of this remedial legislation, recognizing that discrimination often travels under false colors, compels us to see that it is “construed liberally”.

The second guideline, also noted by the majority, is the limited range of judicial review of an administrative determination, especially one arrived at, as here, by an agency which of necessity has been called upon to develop and apply a highly sophisticated, sensitive and specialized expertise in treating with the societal problem committed to its care (Matter of New York Roadrunners Club v State Div. of Human Rights, 55 NY2d 122, 126; cf. Matter of Burger King v State Tax Comm., 51 NY2d 614, 621; Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451, 459). This means that the “inference-making function, as it is exercised at the evidentiary or fact-finding level, is exclusively that of the administrative agency” (State Div. of Human Rights v Wagner, 39 NY2d 865, 866). Or, as stated on another occasion, “neither the weight which might be accorded nor the choice which might be made by a court are germane upon an analysis for the presence of substantial evidence” (300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 180). In like vein, realistically dubbing this principle the “doctrine of administrative finality”, the United States Supreme Court put it that, “[s]o long as there, is warrant in the record for the judgment of the expert body it must stand”, the judicial function being “ ‘exhausted when there is found to be a rational basis for the conclusions approved by the administrative body’ ” (Rochester Tel. Corp. v United States, 307 US 125, 139-140, 145-146; see, also, Davis, Administrative Law, 1982 Supp, § 29.00-1, p 520).

Mindful of these precepts, we are informed by the record here that Harary, who is white, Jewish and a native of the United States, was first appointed, with the rank of assistant professor, to his nontenured post as Hostos’ associate dean of administration and management planning as of September, 1972. Prior to his ultimate termination, effective June 17,1976, though Harary was assigned to what is acknowledged to have been the arduous and toe-stepping responsibility of reorganizing what had been the college’s morass-like management system, his immediate superior, Dean of Administration Theodore Foxworthy, was to testify that he never received a complaint of any substance concerning Harary’s performance. Indeed, it is undisputed that Foxworthy, who at the public hearing described Harary as highly competent and thoroughly knowledgeable in his field, on at least two occasions had backed this appraisal by recommending him for promotion. And, corroboratively, de León, curiously in view of the inconsistent position he took at the hearing, not only had unreservedly recommended Harary’s reappointment for each of the three successive years in which he had the opportunity to do so but, only months before initiating the challenged discharge, had put Harary’s name in for a full professorship.

It was against this background that, in August, 1975, when his consecutive appointments in this new college had made him the second most senior member of his department, Harary was summoned to the office of de León. There, in the presence of Foxworthy, de León announced for the first time that he was not satisfied with Harary’s performance and suggested that he thereafter “devote full time looking for a job”. As Harary and Foxworthy described it, when the former then asked why de León was taking this action, the latter responded by saying the reasons were “anthropological” and, when pressed for further explanation, would not give any details.

True, de León later was to deny that he had used the term “anthropological”, claiming instead that he had told Harary only that he was “not satisfied with his failure to communicate after repeated discussions with his lack of understanding of how our university works”. That there were, therefore, two versions on this point, of course but emphasizes that it was for the agency, and for it alone, to decide, as a simple question of fact, whether to accept the findings of the law judge who, after observing and hearing the witnesses, concluded that the account rendered by de León was the less credible, especially because, as the Human Rights Division’s decision observed, “if complainant were incompetent, he could have been discharged earlier”.

Other parts of the record also gave legitimate reinforcement to the division’s express finding that Harary was not terminated for incompetence. A significant factor, for instance, was the strange coincidence that, as the division in effect determined, de Leon’s resort to a pretextual complaint followed almost immediately on the heels of a so-called statement of policy then newly adopted by the board of higher education, then the ultimate governing body of Hostos and the other municipal colleges of the City of New York. The statement, to meet a dire financial emergency, required each of the colleges to institute a drastic retrenchment plan effecting savings in personnel and programs. From this sequence of events, it was inferable that de León had been thinking of the criteria by which he would have preferred, if left to his own devices, to eliminate personnel.

The board thereafter was to issue guidelines which, as the division’s opinion points out, “provided that personnel in the main, be discontinued in inverse order of length of full-time continuous service; also, non-tenured personnel were to be discontinued first, then certificated personnel, and then tenured personnel. In the case of non-tenured personnel, seniority could be disregarded for ‘special educational reasons’. Since complainant did not hold a teaching position, this latter exception could not be applied to him. Thus, under the guidelines laid down by the Board of Higher Education, seniority was to govern”.

It is noteworthy too, or so the division could see it, that, when the guidelines came down, though Harary then had not yet been formally severed and at worst was in limbo, de León did not restore him to the status to which he was entitled as second senior employee in his category. Moreover, although the board’s announced policy, as the majority today acknowledges, was to release administrators rather than teachers, it was also its policy, when possible, to reassign qualified administrators to teaching positions. Despite the fact that Harary could have been viewed as qualified to teach at Hostos, his file indicating that he not only had extensive knowledge of accounting and engineering but had taught economics, public speaking and operational planning, he was the only retrenched dean not offered a teaching position. In short, even when seniority or ability to teach each became a governing consideration, de León excluded Harary from its benefits. And all this though the record contains direct evidence that most of Harary’s administrative functions were not eliminated but turned over to a newly engaged employee who, like de León, was of Hispanic background.

All of this and more the division could weigh in light of the nature of the retrenchment plans de León himself then promulgated. Impossible to ignore, for instance, is the reality that the 82 persons, including Harary by name, whose release they projected, consisted of individuals whose ethnic distribution for all practical purposes were well-nigh perfect matches of the pre-existent college staff population, divided by the de León plans into what essentially were three groups classified as “White”, “Black” and “Hispanic”. To be precise, 101 “White” persons comprised 29.4% of staff before the retrenchment while the 74 who remained after the plans had been put in place came to an almost identical 28.5%. Likewise, 95 “Black” persons comprised 28% of staff before the retrenchment, while the 71 who remained when the plans had taken their toll amounted to 27.3%. In presenting the same picture, the preretrenchment number of “Hispanic” employees was 135, or 39.4%, and the postretrenchment number was 109, or 41.9%.

The revealing nature of these statistics need not have escaped the division’s notice (State Div. of Human Rights v Kilian Mfg. Corp., 35 NY2d 201, 210 [statistics in such cases “are valuable and often demonstrate more than the testimony of witnesses, ‘and they should be given proper effect’”]). Granted that “some statistical correlation between those retained and those discharged was inevitable” (majority opn, at p 79), the mathematical probability against the nearly perfect correlation of a combination of three different groups is so great that it all but conclusively rebuts the possibility that it was the product of chance.

But the plans’ explicitness left nothing to the imagination. They expressly advised that their purpose was to make sure that “no significant difference will take place in the ethnic distribution of the faculty”. Thus, although, as the majority points out, the fiscal emergency which prompted the plans presented the possibility that, willynilly, aberrant conditions might result, the de León plan was meticulous in guaranteeing that, whatever and however the pre-existing ethnic distribution had come about, it was to be treated as an immutable quota. The more is this so since, as I am glad to see we all agree, discrimination in employment, whether it be achieved by a hiring quota under which its targets, if ever reached, are the “last in”, or whether it be achieved by a firing quota under which targets are the “first out”, especially under a statute intended to be liberally construed to guarantee equal opportunity to enjoy a “productive life”, is equally invidious.

Needless to say, the figures cannot be ignored. So the majority, adopting Hostos’ and de Leon’s rationale, accepts them as “more a report of the results after formulating the plan of retrenchment than a design for retrenchment” (emphasis in original), language which, reasonably read, fairly concedes that it would be rational for the division to have interpreted the matter either way. And, as to the support the majority sees in de Leon’s testimony that plans were discussed with Hostos’ affirmative action office and others, suffice it that the plans, once found to be discriminatory, would be no less so because they were the handiwork of many rather than that of one or few, or because they bore the imprimatur of an official college agency.

This is not to assume that the preretrenchment ethnic distribution of the Hostos faculty was in fact the product of discrimination. An academic institution, to foster intellectual creativity and achievement, is to be accorded wide latitude in determining, among other things, who will teach its students (Matter of Pace Coll. v Commission on Human Rights of City of N. Y., 38 NY2d 28, 38). So, when an institution believes the promotion of ethnic pluralism will be beneficial educationally, ethnic considerations, if not the sole determinants for selection, may, along with other facts reasonably related to the employment, such as training, experience, education, pedagogical talent or the like, be taken into account (University of Cal. Regents v Bakke, 438 US 265, 317 [opn of Powell, J.]; Matter of Fullilove v Beame, 48 NY2d 376, 379-380 [dissenting opn]; to the same effect, see Education Law, § 6201, subd 3 [“equal access and opportunity”]).

Here, the preretrenchment mix was not challenged and so no evidence was produced by either side to prove whether it was or was not the product of discrimination. For all we know, then, the pre-existing racial balance conceivably may have come about either through chance or through a salutary and constructive affirmative action effort which, adhering to the dictates of Bakke, stopped short of disregarding the basic principle of merit selection, or through a combination of both. But, however unchallengeable the pre-existing ethnic distribution, to automatically and arbitrarily engage or discharge persons merely to maintain the same ratio runs afoul of the spirit and letter of the law.

The division’s determination that the prescribed de León formula for the severance of Hostos’ employees was discriminatory having, therefore, well met the requirements of the substantial evidence rule, I now turn to the proof of causal connection between the quota and Harary’s termination.

For this purpose, it is immediately noteworthy that the division, having decided to give the benefit of the doubt to de León on the charge that he had acted on considerations of creed and ethnicity as such in removing Harary, carefully distinguished such a violation from one “constitut[ing] * * * a deliberate effort to perpetuate unlawful quotas based on the ethnicity of employees”.

Available to be weighed in the balance on the latter theory were a number of what the administrative agency could treat as telling factors. One of these is that, although Harary was second in seniority among the deans, he was not one of the two spared retrenchment. In this connection, while de Leon’s hypersensitive attitude towards Harary’s creed was not enough to convince the division that this was the per se reason for his discharge, its circumstantial significance need not have been ignored in the context of the preferment of at least one of the retained deans in disregard of Harary’s seniority. In addition, and of prime significance, could be the fact that Harary, as mentioned earlier, was the only retrenched dean not to be offered a teaching position notwithstanding the board of higher education’s policy recommendations to the contrary.

In sum, review of the record discloses more than sufficient evidence to compel us to sustain the division’s conclusion that Harary was discharged in furtherance of Hostos’ and de Leon’s enforcement of the impermissible criteria at the heart of the retrenchment plan.

Accordingly, I vote to affirm the order of the Appellate Division.

Chief Judge Cooke and Judges Jasen, Jones and Meyer concur with Judge Simons; Judges Wachtler and Fuchs-berg dissent and vote to affirm in separate dissenting opinions.

Order reversed, with costs, and petition granted.

      . City University of New York was known as the Board of Higher Education of the City of New York at the time of these proceedings (see Education Law, § 6203).

      . In a separate article 78 proceeding, complainant has recovered his salary for the 1976-1977 academic year because petitioner failed to give him timely notice of his nonreappointment as required by university by-laws.

      . Contrary to the statement of Judge Fuchsberg (dissent, at p 85), the record contains no evidence of “guidelines” requiring discharge “ ‘in inverse order of length of full-time continuous service’ ”. The division found that, “in the main”, that policy was to be followed. In so stating, it relied upon a statement found in a decision by District Judge Pollack in Klein v Board of Higher Educ. (434 F Supp 1113). Judge Pollack stated that the guidelines provided that among instructional personnel seniority was to be followed, that within a given department nontenured personnel were to be discharged first, and that seniority could be disregarded among nontenured personnel for special educational reasons (Klein, supra, at p 1115). Those guidelines appear to have been followed by petitioner. Complainant was not instructional personnel and he was not tenured. The 1976 retrenchment plan, including the plan formulated by CUNY-Hostos, was upheld by the court in Klein.

      . Education Law (§ 6201, subds 2, 3), enacted subsequent to the incidents here, expressly direct the college to pursue affirmative actions to achieve an ethnically and racially diverse faculty and student body.

      . Hostos and de León also contend, preliminarily, that the administrative law judge abused his discretion in permitting amendment of the complaint to allege the existence of a quota after both sides had rested. But section 297 (subd 4, par a) of the Executive Law, in pertinent part, provides, without time limitation, that “[tjhe division or the complainant shall have the power reasonably and fairly to amend any complaint, and the respondent and any other party shall have like power to amend his answer”. In their briefs to our court, they allege no particular prejudice as a result of the amendment, nor do they claim they were denied a corresponding opportunity to amend their answer. Nor was any asserted when, at the time the motion was granted, the law judge specifically noted that there had been “sufficient testimony” concerning the facts at issue on such a theory during the lengthy period over which the hearing had stretched. Moreover, though the law judge alerted the parties to the possibility of requesting reopening during the four weeks he allowed for submission of posthearing briefs, no such application was ever made. Under these circumstances, it cannot be said that the grant of the amendment was an abuse of discretion as a matter of law (cf. CPLR 3025, subd [b]; 3 Weinstein-Korn-Miller, NY Civ Prac, pars 3025.13, 3025.16).

      . Anthropology, a somewhat comprehensive science, includes among its major interests consideration of the racial classification, group relationships and cultural history of man (Webster’s Third New International Dictionary [1971], p 93). Here there was support in the record for the inference that de León was concerned with the racial connotations of the term. This included proof of a request to Professor Gladys Aponte, Hostos’ labor relations designee, that she help him replace white personnel by “bringing] more Puerto Ricans aboard” and a comment that the board of higher education “is full of Jews and they help each other”.

      . While the division observed that these guidelines had been “discussed” in Klein v Board of Higher Educ. (434 F Supp 1113), the discrimination issue was not involved in that case. At stake there were two issues only. One was simply whether the guidelines and plans deprived those plaintiffs, certificated or tenured employees, of procedural due process by denying them a hearing. The second was the highly questionable claim that no bona fide financial emergency justified the retrenchment.

      . Contrary to the majority’s assertion that Harary was “discharged orally” in August, 1975, and that it was, therefore, “only natural that he should be included in the retrenchment plans in 1976”, it was within the competence of the division to conclude from the record that, though an intention to terminate was expressed at the earlier date, a discharge in fact was not effected until the implementation of the plans. Furthermore, the record contains evidence not only that Harary’s salary was continued until he suffered the ultimate severance, but that he continued to perform actively, though on a reduced schedule, through the balance of his stay. Most conclusively, it was judicially established in a separate article 78 proceeding, which focused on the inadequacy of even the ultimate notice to discharge, that Harary was not given effective notice of his termination at the August, 1975 meeting.

      . I have emphasized the common word “will” because Webster’s New International Dictionary (2d ed) describes it as an auxiliary verb used, as here, to form a “future tense phrase”.

      . “ ‘Affirmative action’, therefore, contemplates measures such as the reinstatement or upgrading of those who have been discriminated against, the recruitment of members of disadvantaged groups and the opening up of opportunities for attaining vocational skills that will enable them to compete in the labor market. While, at times, impatience with the pace of acceptable methods has led some to resort to quotas and programs of reverse discrimination, concepts quite different from equal opportunity (cf. Alevy v Downstate Med. Center, 39 NY2d 326, 336-337), it is not to be assumed that a program of affirmative action necessarily encompasses preferential treatment”.

      . Since the majority’s disposition renders the damage issue academic at this point, I do not find it necessary to set out my reasoning in that regard.


source: Caselaw Access Project

author: Jasen, J.

license: Public Domain

text:
    The People of the State of New York, Respondent, v Michael Fuschino, Appellant.
    Submitted February 11, 1983;
    decided May 3, 1983

      POINTS OF COUNSEL

      E. Stewart Jones, Jr., and Leonard W. Krouner for appellant.
    I. Defendant’s alleged waiver of counsel in the absence of counsel was void because the arresting and interrogating officers had actual and/or constructive knowledge that defendant had legal representation when they obtained the alleged waiver. (People v Garofolo, 46 NY2d 592; People v Pinzon, 44 NY2d 458; People v Knaak, 112 Misc 2d 83; People v Kazmarick, 52 NY2d 322; People v Servidio, 54 NY2d 951; People v Ferrara, 54 NY2d 498.) II. Failure to give defendant the opportunity to call his mother as requested of Ballston Spa Village Police and New York State Police constituted independent denial of right to counsel. (People v Casassa, 49 NY2d 668; People v Townsend, 33 NY2d 37; People v Evans, 70 AD2d 886; People v Hodge, 53 NY2d 313; People v Pepper, 53 NY2d 213; People v Settles, 46 NY2d 154.) III. Admission of defendant’s confession to uncharged crimes similar to those charged in the indictment is reversible error. (People v Sanders, 56 NY2d 51; Coleman v People, 55 NY 81; People v Ventimiglia, 52 NY2d 350; People v Davis, 46 NY2d 750, 60 AD2d 679; People v Sandoval, 34 NY2d 371; People v Anderson, 80 AD2d 33; People v Chaffee, 42 AD2d 172; People v Masselli,
      10 AD2d 45; People v Medina, 44 NY2d 199.) IV. By not objecting to the introduction of the unredacted confession, defendant’s counsel’s ineffective assistance impermissibly contributed to the conviction. (People v Baldi, 54 NY2d 137; People v Little, 55 NY2d 770; People v Jones, 55 NY2d 771; People v Bell, 48 NY2d 933; People v Bennett, 29 NY2d 462; People v Moyer, 27 NY2d 252; Matter of Short v Looney, 29 NY2d 578.) V. Admission of the confession obtained under coercive conditions is reversible error. (People v Spano, 4 NY2d 256; Gallegos v Nebraska, 342 US 55; Schneckloth v Bustamonte, 412 US 218; United States v Mayes, 552 F2d 729.) VI. No legally permissible evidence existed to establish probable cause for the arrest or to convict defendant of aggravated harassment. (People v Cantor, 36 NY2d 106; People v Kuhn, 33 NY2d 203; People v Hodge, 44 NY2d 553; People v Bouton, 50 NY2d 130; Schneckloth v Bustamonte, 412 US 218; Katz v United States, 389 US 347.)

      David A. Wait, District Attorney (Robert O. Wilhelm of counsel), for respondent.
    I. Defendant’s points concerning ineffective waiver of the right to counsel and failure to redact the confession were not preserved at the trial and are not available for review by the Court of Appeals. (People v Cona, 49 NY2d 26; People v Robinson, 36 NY2d 224; People v Schwartzman, 24 NY2d 241; People v Jones, 81 AD2d 22; People v Pettiford, 78 AD2d 823; People v Rivers, 64 AD2d 834; People v Narayan, 54 NY2d 106; People v Gonzalez, 55 NY2d 720; People v Rivera, 53 NY2d 1005; People v Martin, 50 NY2d 1029.) II. There is a lack of proof that the arresting officers had actual or constructive knowledge that at the time defendant was arrested he was represented by counsel retained in a prior case, hence there was no indelible attachment of the right to counsel when defendant was arrested. (People v Servidio, 54 NY2d 951; People v Smith, 54 NY2d 954; People v Bartolomeo, 53 NY2d 225; People v Knapp, 57 NY2d 161; People v Kazmarick, 52 NY2d 322; People v Mealer, 57 NY2d 214; People v Ferrara, 54 NY2d 498.) III. Defendant, who was an adult, 19 years old, at the time of his arrest, was not denied the right to counsel, nor any other constitutional right, when he requested an opportunity to telephone his mother, was told that he could call her when he arrived at the State Police barracks, and then declined use of the phone that was on the desk he was seated at while being questioned. (People v Bevilacqua, 45 NY2d 508; People v Townsend, 33 NY2d 37; People v Pinzon, 44 NY2d 458; People v Evans, 70 AD2d 886; People v De Flumer, 21 AD2d 959, 16 NY2d 20; People v Stephen J. B., 23 NY2d 611; People v Dunbar, 71 AD2d 805; People v Yeardon, 51 AD2d 875; People v Carbonaro, 21 NY2d 271; People v Hocking, 18 NY2d 832.) IV. Introduction into evidence of the unredacted confession was proper, or was, at the most, harmless error, since there was ample independent proof. (People v Molineux, 168 NY 264; People v Fiore, 34 NY2d 81; People v Goldstein, 295 NY 61; People v Vails, 56 AD2d 939, 43 NY2d 364; People v McKinney, 24 NY2d 180; People v Schwartzman, 24 NY2d 241; People v Jackson, 39 NY2d 64; People v Condon, 26 NY2d 139; People v Dales, 309 NY 97.) V. Defendant was not deprived of his right to have effective assistance of counsel. (People v Baldi, 54 NY2d 137; People v Jackson, 52 NY2d 1027; People v Aiken, 45 NY2d 394; People v Bell, 48 NY2d 933; People v Droz, 39 NY2d 457; People v Bennett, 29 NY2d 462; People v De Mauro, 48 NY2d 892; People v Pries, 58 AD2d 713; People v Sellars, 74 AD2d 551.) VI. The record does not support defendant’s claim that his confession was coerced. (People v Hicks, 287 NY 165; People v Schroeder, 76 AD2d 943; People v Weis, 32 AD2d 856; People v Williams, 20 AD2d 963.) VII. There was probable cause to arrest defendant. Arrest without a warrant was justified upon the circumstances of this case. (People v Oden, 36 NY2d 382; People v Valdez, 78 AD2d 449; People v Mitchell, 75 AD2d 626; Gerstein v Pugh, 420 US 103; Wong Sun v United States, 371 US 471; Henry v United States, 361 US 98; Draper v United States, 358 US 307; People v Laskaris, 82 AD2d 34; People v Bouton, 50 NY2d 130; People v Di Stefano, 38 NY2d 640; People v Berrios, 28 NY2d 361.)
   OPINION OF THE COURT

Jasen, J.

We are asked to decide whether the actual knowledge of one police department that the defendant was represented on a prior unrelated criminal charge that was still pending constructively imputes such knowledge to another separate police department for the purpose of invoking the defendant’s right to counsel. A subsidiary issue is whether the police acted in a manner which isolated the defendant to the extent that he was deprived of his right to counsel.

Between August of 1979 and January of 1980, a former classmate of the defendant received 10 threatening letters signed with the defendant’s name. Two of the letters contained small kitchen knives. Her family, concerned because she had previously received harassing telephone calls which they believed came from the defendant, intercepted the letters and turned them over to the State Police. A laboratory analysis conducted by the State Police revealed defendant’s fingerprint on one of the letters. On the basis of this evidence, Trooper Hills, of the New York State Police, requested the Ballston Spa Village Police to bring the defendant to their headquarters. When they did so, Trooper Hills arrested the defendant for aggravated harassment. The defendant was fully advised of his constitutional rights, but did not request an attorney. He did, however, ask both the village and State Police if he could call his mother. The village police told him that the State Police would take care of his request. Trooper Hills testified that he told the defendant he would be allowed to make the call when they reached the State Police barracks. He also testified at the trial that he thought defendant had made his telephone call because he was seated in the interrogation room at a desk with a telephone on it and because defendant’s parents arrived a short time later.

After stating that he did not want an attorney, defendant was questioned for approximately 45 minutes. He admitted sending the letters and a typed confession was prepared. Defendant signed the confession after reading it and adding, in his own handwriting, the explanation that “[i]f she didn’t talk to me the physical threats would then occur”. The State Police then proceeded to process the defendant and took him almost immediately for arraignment. His attorney was present at the arraignment.

Subsequently, the defendant sought to suppress his confession on the ground that it was obtained in violation of his right to counsel because the arresting and interrogating officers had either actual or constructive knowledge that defendant was represented by an attorney in a pending unrelated criminal charge. Additionally, defendant argued that the failure to give him the opportunity to call his mother as requested of both police departments constituted an independent denial of his right to counsel.

At the hearing, Trooper Hills was questioned concerning his knowledge of any prior arrests of the defendant. He testified that in October, 1978 he had arrested the defendant on charges of harassment stemming from incidents between defendant and a classmate of the defendant at the high school, but that it was his understanding that those charges had been dismissed. When asked if the Ballston Spa police had informed him that they had arrested the defendant in December, 1979, he testified that he was uncertain whether he knew at the time of the arrest about the December charge, but that he had no knowledge that defendant was represented by counsel. The only affirmative piece of information he could recall being given by the local police was merely a general indication that problems continued to exist between the defendant and the victim’s family.

Following the hearing, the motion to suppress was denied in all respects. The Judge found that the defendant had been advised of his rights and had voluntarily waived those rights, after which he made his statement. He also found that the defendant advised the Ballston Spa Police Chief and State Police Trooper Hills that he wanted an opportunity to call his parents and that the failure of the police agencies to abide by that request could constitute an infringement on defendant’s right to counsel; but that on the totality of the circumstances in this case, it was clear that the defendant knew of his right to legal representation and did not at any time advise the police that he wanted to be represented by an attorney. Because the defendant had an attorney in another matter and familiarity with the legal system, the Judge ruled that his request to call his parents could not be interpreted as the equivalent of a request to call his attorney.

At the trial, testimony was given by members of both families concerning various incidents allegedly constituíing harassment, both of and by the defendant. Trooper Hills testified that he had no knowledge of either the defendant’s arrest the previous December or that he was represented by an attorney. He also adhered to his previous testimony that he believed the charges brought after his October, 1978 arrest of the defendant had been dismissed. Defendant was convicted of 10 counts of aggravated harassment and sentenced to three years’ probation.

On appeal, defendant contended that the conduct of the State Police violated his right to counsel and a reversal was thus required. Defendant’s assertions were based on several theories: First, that Trooper Hills and the officer who conducted the interrogation both knew of the 1978 charge and were thus under a duty to inquire if the charge was still pending and whether the defendant was represented by counsel; secondly, defendant contended that since the State Police requested the aid of the local police in arresting the defendant, that the State Police either had actual knowledge of the December, 1979 charge or such knowledge should be imputed to them because they made an effort to insulate themselves from the information which would have put them under an affirmative duty to inquire as to whether or not the defendant was represented by counsel. The defendant also argued that the refusal of the police to allow him to call his mother constituted an infringement on his constitutional right to an attorney.

The Appellate Division found that there was no basis to conclude that either officer had personal knowledge of the prior, pending charge. On the defendant’s theory that this knowledge should be imputed to the State Police because of the actual knowledge the local police had, the court stated: “Defendant’s reliance on People v Bartolomeo (53 NY2d 225) is misplaced. Here, unlike in Bartolomeo, the interrogating officers did not possess actual knowledge of defendant’s prior arrest on the unrelated charge and they cannot be said to have deliberately insulated themselves from such knowledge (see People v Servidio, 54 NY2d 951)” (People v Fuschino, 87 AD2d 716, 717.) As to defendant’s contention that he was denied his right to counsel when the police did not permit him to call his mother, the Appellate Division held that as a matter of law the police are not required to interpret such a request as the equivalent of a request for counsel and that since the “record [did] not show that the police intentionally deprived defendant of access to his family in an effort to obtain a confession”, no violation of the defendant’s right to counsel can be inferred. (People v Fuschino, supra, at p 717.) Thus, the Appellate Division concluded, since defendant had not requested an attorney and the police had no knowledge that the defendant had counsel and no obligation to interpret his request to call his mother as a request for legal assistance, there was no violation of defendant’s right to counsel. We agree.

When a defendant’s right to counsel has attached in a prior, unrelated charge, and the police know that it has attached, they may not question the defendant without his attorney being present. (People v Rogers, 48 NY2d 167.) They are further obligated if they have actual knowledge that defendant has prior, unrelated charges still pending against him to inquire whether defendant has counsel in that case. (People v Bartolomeo, 53 NY2d 225.) If they fail to inquire, the police are “chargeable with what such an inquiry would have disclosed.” (People v Bartolomeo, supra, at p 232; People v Kazmarick, 52 NY2d 322.) Thus, to decide this appeal, we must determine whether the State Police had actual knowledge that defendant was represented by counsel in a pending unrelated matter or that they had actual knowledge of the pending charges against defendant so that they were under an affirmative duty to inquire as to whether or not defendant was represented by counsel. (People v Smith, 54 NY2d 954; People v Servidio, 54 NY2d 951.)

The Appellate Division correctly determined that the testimony of both the arresting officer and the interrogating officer indicated that they had no knowledge of the charge brought against the defendant by the Ballston Spa police the previous month. Absent some actual knowledge on their part that the charge had been brought, they were under no obligation to inquire as to whether the defendant was represented by counsel. Likewise, their reasonable and well-founded belief that the 1978 charges against the defendant had been dismissed put them under no obligation to inquire. Moreover, even if they had been under an obligation to inquire, the police are only chargeable with the knowledge they would have obtained had they made the inquiry. In this case, the inquiry would have confirmed their belief that the 1978 charges were disposed of and that an attorney was no longer involved.

Nor can we say that because the local police had knowledge that there was a prior, pending charge on which the defendant was represented by counsel, the State Police had such knowledge. Actual knowledge of one police agency will not be constructively imputed to another unless the two agencies are working so closely that it can be deemed a joint investigation or the evidence shows an intent to evade the limitations to which interrogation by the police agency having actual knowledge would be subject.

This is not to say that we would condone a deliberate and concerted effort on the part of the police to insulate themselves from the knowledge that the defendant was represented by counsel. Indeed, in People v Knapp (57 NY2d 161), we held that all police agencies working together in an on-going investigation were charged with knowing that the defendant’s attorney had instructed the local police that all questioning be done only in his presence. Moreover, we held that the police could not do surreptitiously by the use of an agent what the right to counsel barred them from doing directly. Thus, in this case, only if the evidence demonstrated a joint investigation or subterfuge would the limitations imposed by the local police department’s knowledge of defendant’s prior, pending charge be imputed to the State Police.

It should be made clear that the issue of the officer’s knowledge is basically a question of fact: Whether on the evidence presented the various police agencies were working so closely that all had the same actual knowledge or notice or the officers did, in fact, know defendant’s right to counsel had attached. Neither court below having found that a joint investigation was in progress or that the officers had, at the time of the questioning, any actual knowledge or notice of the prior charge, there is no basis for this court to conclude, as a matter of law, that the statements made by the defendant to the arresting officer were obtained in violation of the defendant’s right to counsel.

Likewise, we find no violation of the defendant’s right to counsel in the failure of the State Police to comply with this 19-year-old defendant’s request to call his mother. Absent evidence that the police intentionally deprived the defendant of access to his family in an effort to bar his exercise of his right to counsel and to obtain a confession, there is no infringement on the defendant’s rights. (People v Casassa, 49 NY2d 668, cert den 449 US 842.) We agree with the Appellate Division that defendant’s request to speak with his mother is not the legal equivalent of a request to exercise the constitutionally protected right to an attorney’s advice and counsel. Although a parent or family member may obtain legal representation for the defendant, the request to speak with a family member does not give the police sufficient notice that the defendant is invoking his right to counsel. Without indication that the defendant has need for an attorney, or that an attorney has entered the proceeding, the police are not under a duty to refrain from questioning the defendant without the attorney being present. A request to call a parent is not sufficient indication that an attorney is desired.

This is not to say that a pattern of isolation and trickery designed to keep the defendant from obtaining counsel will be condoned by this court. In People v Bevilacqua (45 NY2d 508), we ordered the defendant’s conviction reversed because the police conduct evidenced an intent to isolate the defendant from all sources of help, including his family. But of greater significance in that case was the fact that the defendant’s lawyer was attempting to gain access to his client throughout the course of the interrogation and was being deliberately misled by the police in order to deny the defendant the benefits of his right to counsel.

There having been no violation of the defendant’s right to counsel, the order of the Appellate Division should be affirmed.

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

Order affirmed.


text:
    Carlton J. Voss, Jr., et al., Appellants, v Black & Decker Manufacturing Company, Respondent.
    Argued March 22, 1983;
    decided May 10, 1983

      POINTS OF COUNSEL

      Henry S. Fraser for appellants.
    I. A prima facie cause of action in strict products liability (defective design) was established, and its dismissal by the trial court was reversible error. (Robinson v Reed-Prentice Div. of Package Mach. Co., 49 NY2d 471; Caprara v Chrysler Corp., 52 NY2d 114; Rainbow v Elia Bldg. Co., 79 AD2d 287, 56 NY2d 550; Bolm v Triumph Corp., 71 AD2d 429; Micallef v Miehle Co., Div. of Miehle-Goss Dexter, 39 NY2d 376; Schell v AMF, Inc., 567 F2d 1259; Ferry v Luther Mfg. Co., 56 AD2d 703; MacDowall v Koehring Basic Constr. Equip., 68 AD2d 881, 49 NY2d 824; Gardner v Dixie Parking Corp., 80 AD2d 577; Codling v Paglia, 32 NY2d 330.) II. The trial court’s refusal to permit proof of notice to defendant of previous similar accidents, involving the same defective design of the same product, constituted reversible error. (Bolm v Triumph Corp., 71 AD2d 429; Bitolio v Bradley Contr. Co., 166 App Div 836, 222 NY 553.)

      George E. De More for respondent.
    I. The trial court’s failure to charge strict liability was not error. (Codling v Paglia, 32 NY2d 330; Bolm v Triumph Corp., 33 NY2d 151; Micallef v Miehle Co., Div. of Miehle-Goss Dexter, 39 NY2d 376; Robinson v Reed-Prentice Div. of Package Mach. Co., 49 NY2d 471; Caprara v Chrysler Corp., 52 NY2d 114; Rainbow v Elia Bldg. Co., 79 AD2d 287, 56 NY2d 550.) II. The liability of a manufacturer for design must be adjudged as of the time the product leaves the manufacturer. (Robinson v Reed-Prentice Div. of Package Mach. Co., 49 NY2d 471.) III. The trial court’s ruling on the content of the notice given to defendant was proper.
   OPINION OF THE COURT

Jasen, J.

We are asked to decide on this appeal whether the plaintiff established a prima facie case of strict products liability for an allegedly defectively designed product.

Plaintiff was using a circular power saw manufactured by the defendant to cut 2 by 4 boards for the purposes of remodeling the roof on his mobile home. Working at sawhorses which he had set up in his driveway, he would cut each board in half and then, using a template, cut one end of each board at a 45-degree angle.

The housing of the saw covers all but the lower portion of the circular blade. Part of that lower portion of the blade is covered by a guard which is designed to move back as the blade makes contact with the wood. This guard has a spring mechanism so that as soon as the pressure from the contact with the wood stops, the guard automatically closes to its original position. The purpose of the guard is, of course, to protect the operator, but plaintiff’s expert testified that in order for the saw to operate properly part of the blade should be exposed even when the guard is in the closed position to allow the initial contact between the blade and the wood.

Plaintiff testified that he was holding the saw in his right hand and bracing the 2 by 4 against the sawhorse with his left hand. As he made a cut across one of the boards, the saw hit a knot, projecting the saw upward approximately 18 inches into the air. Sufficient time elapsed for the guard to close before the saw came down in such a manner that the exposed and unguarded part of the rotating saw blade struck plaintiff’s hand, severely lacerating it and severing part of his thumb which, upon contact, became wedged between the blade and the guard. Plaintiff testified that he believed the blade stopped rotating when it hit the bone in his thumb. There is no dispute that the guard was operating properly and had closed as far as it could before the blade came in contact with the plaintiff’s hand.

Testimony of an expert witness who had conducted a series of tests on plaintiff’s saw also was presented. He testified that the kinetic energy produced by the rotating saw hitting the knot would be sufficient to force the saw into the air as plaintiff described. The tests conducted by the expert also indicated that sufficient time would have elapsed to allow the movable guard to close to its maximum point and that the guard on plaintiff’s saw was operating as the manufacturer intended. Defendant did not question plaintiff’s testimony that the guard had closed to its maximum point before contacting plaintiff’s hand.

Plaintiff alleged in his cause of action sounding in strict products liability that defendant’s saw was defectively designed because the saw blade guard allowed an excessive amount of the blade to be exposed. In support of this position, plaintiff questioned his expert witness concerning industry standards and good engineering principles as applicable to the design of circular power saws. It was the opinion of that expert that it would have been a simple matter to design the saw so that it would be safer by extending the movable guard and that to do so would have brought the saw into conformity with both minimum safety standards and good design standards.

The minimum safety standard testified to was that developed and published by the Underwriters Laboratory, Inc. The saw bore the familiar UL logo indicating its conformity with those standards. Plaintiff’s expert, however, demonstrated that the saw with the guard closed to its maximum point allowed 53 degrees of the blade to be exposed. The maximum exposure of blade under the underwriters standards was set at 45 degrees. Although he could not state with certainty that the plaintiff would not have been injured had the exposure been reduced to 45 degrees, he did testify that the guard “should extend much farther [than it does] in order to meet good design standard”.

At the close of the plaintiff’s case, the Trial Judge dismissed the causes of action alleging breach of warranty and strict products liability. The case proceeded on the remaining cause of action sounding in negligence. The jury returned a verdict of no cause on the negligence cause of action, and plaintiff has not disputed that verdict.

On appeal, the plaintiff has also abandoned his claim under the warranty cause of action, but urges that it was error to refuse to submit the case to the jury on the strict products liability cause of action. The evidence presented, he argues, was sufficient to establish a prima facie case of liability based on the defectively designed product. The Appellate Division affirmed the dismissal of the cause of action sounding in strict products liability, without opinion. Because our review of the record indicates that plaintiff did establish a prima facie case of strict products liability for a defectively designed product, we now modify the order of the Appellate Division and remit to the trial court for a new trial on the cause of action sounding in strict products liability.

In New York, a plaintiff injured by an allegedly defective product may seek recovery against the manufacturer on the basis of any one or more of four theories of liability. “Depending on the factual context in which the claim arises, the injured plaintiff, and those asserting derivative claims, may state a cause of action in contract, express or implied, on the ground of negligence, or, as here, on the theory of strict products liability.” (Victorson v Bock Laundry Mach. Co., 37 NY2d 395, 400.)

In recognizing a cause of action for strict products liability, we stated that “the manufacturer of a defective product is liable to any person injured or damaged if the defect was a substantial factor in bringing about his injury or damages; provided: (1) that at the time of the occurrence the product is being used * * * for the purpose and in the manner normally intended, (2) that if the person injured or damaged is himself the user of the product he would hot by the exercise of reasonable care have h th discovered the defect and perceived its danger, and (3) that by the exercise of reasonable care the person injured or damaged would not otherwise have averted his injury or damages.” (Codling v Paglia, 32 NY2d 330, 342.) As the law of strict products liability has developed in New York, a plaintiff may assert that the product is defective because of a mistake in the manufacturing process (Victorson v Bock Laundry Mach. Co., supra) or because of an improper design (Micallef v Miehle Co., Div. of Miehle-Goss Dexter, 39 NY2d 376) or because the manufacturer failed to provide adequate warnings regarding the use of the product (Torrogrossa v Towmotor Co., 44 NY2d 709). (Robinson v Reed-Prentice Div. of Package Mach. Co., 49 NY2d 471, 478-479.)

In this case, plaintiff does not allege that there was any defect in the manner in which the product was manufactured or the warnings provided by the manufacturer. Our inquiry will accordingly be limited to whether plaintiff established a prima facie case of a defectively designed product.

We have held that a “defectively designed product is one which, at the time it leaves the seller’s hands, is in a condition not reasonably contemplated by the ultimate consumer and is unreasonably dangerous for its intended use; that is one whose utility does not outweigh the danger inherent in its introduction into the stream of commerce”. (Robinson v Reed-Prentice Div. of Package Mach. Co., supra, at p 479.) Strict products liability for design defect thus differs from a cause of action for a negligently designed product in that the plaintiff is not required to prove that the manufacturer acted unreasonably in designing the product. The focus shifts from the conduct of the manufacturer to whether the product, as designed, was not reasonably safe. (See Note, 42 Ford L Rev 943.) A manufacturer is held liable regardless of his lack of actual knowledge of the condition of the product because he is in the superior position to discover any design defects and alter the design before making the product available to the public. Liability attaches when the product, as designed, presents an unreasonable risk of harm to the user.

In order to establish a prima facie case in strict products liability for design defects, the plaintiff must show that the manufacturer breached its duty to market safe products when it marketed a product designed so that it was not reasonably safe and that the defective design was a substantial factor in causing plaintiff’s injury.

Much has been written as to what must be shown to establish that the product was defective, including discussions as to the proper distinctions between “reasonably safe”, “not reasonably safe” and “unreasonably dangerous”. (Epstein, Modern Products Liability Law, at pp 76-92; Swartz, The Concepts of “Defective Condition” and “Unreasonably Dangerous” in Products Liability Law, 66 Marquette L Rev 280; Keeton, Product Liability and the Meaning of Defect, 5 St Mary’s LJ 30, 35-39; Note 42 Ford L Rev 943.) As a result, courts have interchangeably used these terms in instructing jurors concerning the applicable standard for determining whether a product was defectively designed. We believe that a variety of terms with various subtle distinctions in their definitions may tend only to create confusion in ascertaining the proper standard to determine whether or not a given product is defectively designed. Therefore, we conclude that the proper standard to be applied should be whether the product as designed was “not reasonably safe” — that is, whether it is a product which, if the design defect were known at the time of manufacture, a reasonable person would conclude that the utility of the product did not outweigh the risk inherent in marketing a product designed in that manner. (See 1 NY PJI2d 138-139 [1982 Supp].)

It will be for the jury to decide whether a product was not reasonably safe in light of all the evidence presented by both the plaintiff and defendant. (Rainbow v Elia Bldg. Co., 79 AD2d 287, 291, affd 56 NY2d 550; Robinson v Reed-Prentice Div. of Package Mach. Co., supra, at p 479; Micallef v Miehle Co., Div. of Miehle-Goss Dexter, supra, at p 386.) The plaintiff, of course, is under an obligation to present evidence that the product, as designed, was not reasonably safe because there was a substantial likelihood of harm and it was feasible to design the product in a safer" manner. The defendant manufacturer, on the other hand, may present evidence in opposition seeking to show that the product is a safe product — that is, one whose utility outweighs its risks when the product has been designed so that the risks are reduced to the greatest extent possible while retaining the product’s inherent usefulness at an acceptable cost. (Rainbow v Elia Bldg. Co., 79 AD2d 287, affd 56 NY2d 550, supra; Micallef v Miehle Co., Div. of Miehle-Goss Dexter, 39 NY2d 376, 386, supra.) The question for the jury, then, is whether after weighing the evidence and balancing the product’s risks against its utility and cost, it can be concluded that the product as designed is not reasonably safe. (Epstein, Modern Products Liability Law, at pp 76-92; Vandall, “Design Defect” in Products Liability: Rethinking Negligence and Strict Liability, 43 Ohio St LJ 61, 85-86.)

In balancing the risks inherent in the product, as designed, against its utility and cost, the jury may consider several factors. (Epstein, Modern Products Liability Law, op. cit.; Kimble & Lesher, Products Liability, § 55, p 81.) Those factors may include the following: (1) the utility of the product to the public as a whole and to the individual user; (2) the nature of the product — that is, the likelihood that it will cause injury; (3) the availability of a safer design; (4) the potential for designing and manufacturing the product so that it is safer but remains functional and reasonably priced; (5) the ability of the plaintiff to have avoided injury by careful use of the product; (6) the degree of awareness of the potential danger of the product which reasonably can be attributed to the plaintiff; and (7) the manufacturer’s ability to spread any cost related to improving the safety of the design. (Rainbow v Elia Bldg. Co., 79 AD2d 287, 291, affd 56 NY2d 550, supra; see, also, Wade, On the Nature of Strict Tort Liability for Products, 44 Miss LJ 825, 837-838; 1 NY PJI2d 139-140 [1982 Supp].)

Pertinent factors in the individual case, when evaluated as to whether or not they are applicable, should form the. basis for charging the jury as to how it should evaluate the evidence in order to decide whether a product is not reasonably safe.

Additionally, to establish a prima facie case, the plaintiff is required to show that the defectively designed product caused his injury and that the defect was the proximate cause of the injury. (Micallef v Miehle Co., Div. of Miehle-Goss Dexter, supra, at pp 386-387; 1 Weinberger, New York Products Liability, § 21:06.) By proximate cause in the context of strict products liability for design defects, we mean that after weighing the various factors and concluding that the design was defective the jury has decided that the defect was a substantial factor in causing plaintiff’s injury. (Rainbow v Elia Bldg. Co., supra, at p 289; 1 Weinberger, New York Products Liability, op. cit.)

Proximate cause in a products liability case serves a somewhat different role than in a case sounding in negligence because that cause of action seeks to impute liability to the manufacturer not on the basis of his negligence but because the product is not reasonably safe as it was designed. The tie which proximate cause is to provide in order to impose legal liability must be between the design defect of the product and the injury — that is, the plaintiff must show that the design defect in the product was a substantial factor in causing his injury.

Turning to the case before us, we believe that plaintiff presented sufficient evidence to justify submitting the defective design issue to the jury. While products such as those involved in this case can be said to be inherently dangerous, it would be for the jury, applying the aforesaid principles, to decide whether the saw as designed and marketed was not reasonably safe. In deciding this, they would consider plaintiff’s proof that the exposed portion of the saw was so large that it did not meet minimum safety standards. Additionally, plaintiff’s expert’s opinion that a safer saw could easily be built at a reasonable cost merely by extending the movable guard should be considered.

Were the jury to decide after considering any evidence offered by defendant that the product was defective, it would be proper for the jury to decide whether the defective design was a substantial factor causing plaintiff’s injury. On the basis of the record before this court, the jury could so conclude based on plaintiff’s testimony that his injuries occurred when the unguarded portion of the blade came down on his hand and that the severed portion of his thumb became lodged between the blade and the guard, the very design of which plaintiff alleges was defective. Expert testimony with reference to proximate causation is not always required; in this case the jury could have found proximate causation from its consideration of the characteristics of the circular saw and plaintiff’s description of how the accident happened. Having presented evidence from which the jury could have found that the saw was designed in a manner which made it not reasonably safe and that this design defect was a substantial factor in causing his injuries, the cause of action in strict products liability for design defect should have been submitted to the jury.

Plaintiff also alleged that it was error not to allow the other complaints filed against the manufacturer to be submitted into evidence to establish that the manufacturer was on notice that its product was not reasonably safe. There was no error as plaintiff failed to provide any proof that the documents were genuine or had been served on the defendant. We would further note that as to the cause of action in strict products liability, there was no error as the manufacturer’s knowledge, actual or constructive, is not in issue; rather, the design of the product in light of the state of the art at the time of production is the issue.

Accordingly, the order of the Appellate Division should be modified, with costs to abide the event, and the case remitted to Supreme Court for a new trial on the strict products cause of action, and, as so modified, the order should be affirmed.

Chief Judge Cooke and Judges Jones, Wachtler, Fuchsberg and Meyer concur; Judge Simons taking no part.

Order modified, with costs to abide the event, and case remitted to Supreme Court, Oswego County, for a new trial in accordance with the opinion herein and, as so modified, affirmed.

       At retrial, defendant will have the opportunity to offer proof on various defense matters such as the reasonable safety of the saw or plaintiff’s misuse which might raise questions of comparative fault. On this record, we can only speculate as to potential defenses since the dismissal in the prior trial was at the close of plaintiff’s case.


author: Jones, J. Simons, J.

text:
    Michael Spitalnik, Respondent, v Roberta Springer, Respondent, and Orsid Realty Company, as Agent for Normandy Associates, Appellant.
    Submitted April 29, 1983;
    decided June 7, 1983

      POINTS OF COUNSEL

      Joel M. Miller and Frederick A. Wool for appellant.
    The action of the court below, which would have the effect of depriving appellant of the subject shares for far less than their value, is without basis in law, is improper, and should be reversed. (First Nat. Stores v Yellowstone Shopping Center, 21 NY2d 630; Graf v Hope Bldg. Corp., 254 NY 1; Weirfield Holding Corp. v Pless & Seeman, 257 NY 536.)

      Mark Kalik for Michael Spitalnik, respondent.
    I. The Court of Appeals lacks jurisdiction of this matter in view of the fact that the modification of the court below did not conform to the grounds set forth in CPLR 5601 which provide for the right to appeal as of right. (Matter of Mize v State Div. of Human Rights, 31 NY2d 1032; Wright v Farlin, 33 NY2d 657; Matter of City of Rochester v Julian, 32 NY2d 687; Rose v Baily, 28 NY2d 857; Canadian Imperial Bank of Commerce v Canada Life Assur. Co., 34 NY2d 959; Borda v Borda, 33 NY2d 651; Kean v Harkness, 31 NY2d 955; Silverstein v Continental Cas. Co., 23 AD2d 801; National City Bank of N. Y. v Waggoner, 230 App Div 88, 255 NY 527; Patron v Patron, 40 NY2d 582.) II. The Appellate Division’s decision, which unanimously modified the Supreme Court decision, was completely within its jurisdiction and was in accord with the Supreme Court’s conclusions and concurred with section 61 of the Rent Stabilization Law and section 352-eeee of the General Business Law which give a tenant in possession the right to purchase the shares of stock belonging to his home. (Apfelberg v East 56th Plaza, 106 Misc 2d 295; First Nat. Stores v Yellowstone Shopping Center, 21 NY2d 630; Graf v Hope Bldg. Corp., 254 NY 1; Weirfield Holding Corp. v Pless & Seeman, 257 NY 536; Sanders v Pottlitzer Bros. Fruit Co., 144 NY 209; Richards v Levy, 40 AD2d 1055; Matter of Century Operating Corp. v Prince, 66 AD2d 1032; Beach Haven Apts. No. 6 v Levy, 103 Misc 2d 747; 219 Broadway Corp. v Alexander’s, Inc., 46 NY2d 506; Crabtree v Elizabeth Arden Sales Corp., 305 NY 48; Scheck v Francis, 26 NY2d 466; Brown Bros. Elec. Contrs. v Beam Constr. Corp., 41 NY2d 397.)

      Andrew M. Bernstein for Roberta Springer, respondent.
    The court below acted within its discretion in extending respondent’s time to submit its subscription agreement by 30 days. (Caspert v Anderson Apts., 196 Misc 555; Cohen v New York Mut. Life Ins. Co., 50 NY 610; Hatch v Mayor of City of N. Y., 82 NY 436; Pink v Title Guar. & Trust Co., 274 NY 167; Washer v Seager, 272 App Div 297; Pezenik v Greenberg, 251 App Div 866; Lipe v Beech-Nut Packing Co., 243 App Div 433; Kittinger v Churchill, 161 Misc 3; First

      Nat. Stores v Yellowstone Shopping Center, 21 NY2d 630; Graf v Hope Bldg. Corp., 254 NY 1.)
   OPINION OF THE COURT

Jones, J.

Although neither of two cotenants in occupancy of a rent-stabilized apartment, where each asserts the right to do so, may exercise an individual right to subscribe to the co-operative shares allocated to their apartment on conversion, they may jointly execute an agreement for sufch subscription. In the circumstances disclosed in this record it was not error for the Appellate Division to permit the submission of such a joint agreement after the expiration of the normal discount period.

Plaintiff Spitalnik and defendant Springer jointly occupied apartment 11F at 140 Riverside Drive in the City of New York as rent-stabilized cotenants, pursuant to a lease executed by both of them with appellant landlord. When the apartment building became subject to conversion to cooperative ownership, differences arose between the tenants. Each asserted an exclusive right to purchase the cooperative shares allocated to apartment 11F, in furtherance of which each signed a separate subscription agreement. The present litigation ensued in which each tenant sought a declaration of his or her entitlement to subscribe to these shares and of the landlord’s obligation to accept his or her individual subscription agreement. After a nonjury trial, Supreme Court dismissed the claim of each tenant, holding that they had coequal rights to execute the subscription agreement and that the landlord was not required to deal with either tenant individually but was entitled to receive a joint subscription. The rejection of the separate claims of the individual tenants, however, was expressly made “without prejudice to any further application that may hereafter be made jointly by plaintiff Spitalnik and defendant Springer to exercise any such right that may exist.”

On appeal by plaintiff, the Appellate Division agreed that the individual tenants had no separate rights to subscribe to the co-operative shares, but held that it was error for Supreme Court to have left open for future determination whether plaintiff and defendant could still file a joint agreement to subscribe. The appellate court then proceeded to hold that the two tenants did have a right to file a joint agreement to subscribe and directed that such a joint agreement could be filed within 30 days from the date of entry of its order. The court rejected any argument that the tenants had no substantive right to file a joint subscription and any procedural contention that, even if there were such a substantive right, the time for its exercise had expired.

At the outset we observe that following the nonjury trial in this action the Appellate Division had all the authority to determine the issues which the Supreme Court had had. On the landlord’s appeal to us we address the two issues determined by the Appellate Division, neither of which had been addressed by Supreme Court. We first conclude that there was no error in the determination that, although the two tenants with whom the landlord had executed a joint lease had no individual rights to subscribe, they did have the right to file a joint subscription agreement. Indeed, the landlord advances no substantial argument that in effect no right existed to file a subscription agreement with respect to the shares allocated to apartment 11F — i.e., that the two tenants, the only persons to whom such rights could conceivably accrue, could not exercise the right either separately or jointly.

As to the remaining issue, the Appellate Division held that, in the equities of the situation and absent any showing of prejudice to the landlord attributable to the delay, the time for filing a joint subscription agreement (which originally expired at the end of the initial 90-day discount period in February, 1980, but was thereafter extended by agreement for an additional, second 30-day discount period in July, 1980) should be extended to 30 days from the date of entry of the order of the Appellate Division. Again, we find no error of law in this determination.

The landlord makes no contention that the courts have no legal authority to extend the time to subscribe. It is its contention that it was “improper” to have done so in this instance because of the “absolute dearth of ‘equitable considerations’ that would justify such” relief. In support of this position it argues only that the tenants should not now be allowed to subscribe to the shares allocated to apartment 11F for an amount far less than their market value. This same advantage would admittedly have been available to the tenants during the two designated discount periods; indeed this was a major ingredient of the conversion plan. The price differential alone, therefore, provides no basis for rejecting the joint subscription of the tenants as untimely. The landlord advances no other claim of prejudice and thus no claim of prejudice attributable to the delay in time of filing. Had the court not extended the time for filing the landlord would have received a windfall.

For the reasons stated, the order of the Appellate Division should be modified, with costs, by affirming the substantive determination of that court but extending the time for joint exercise of the right to subscribe to 30 days following the date of entry of the order of our court.

Simons, J.

(dissenting). Defendant, Michael Spitalnik, brought this declaratory judgment action against his co-tenant, defendant Roberta Springer, and the landlord of their apartment, defendant Orsid Realty Company, as agent for Normandy Associates. He seeks a declaration of the respective rights of the cotenants to purchase shares in the co-operative apartment building owned by the landlord. The apartment was first leased to Spitalnik and Springer as cotenants in 1976 for a term of two years. The term was subsequently continued to 1980. At the time of leasing the apartment, the tenants intended to marry and their purpose, as Ms. Springer testified, was not only to live together first but to make a good investment, i.e., to obtain a preferential price for the apartment if it should “go co-op”. The romance soured before the investment opportunity ripened and Ms. Springer left the apartment in January, 1979. Later that year, the landlord did decide to convert the property to co-operative ownership and it offered Mr. Spitalnik and Ms. Springer the right, as cotenants, to buy apartment 1 IF at a preferential price if they exercised the option within 90 days. If the tenants failed to exercise the option within that period, the landlord was free to sell the shares publicly. The option period was later extended and did not formally end until August, 1980. Both Mr. Spitalnik and Ms. Springer submitted offers to the landlord accompanied by the required down payments but each insisted on purchasing the shares in his or her name alone. The landlord tried to adjust the situation with the parties and with their lawyers, suggesting that they buy the shares jointly and adjust their differences later. Inasmuch as both cotenants had the option to purchase the shares, however, the landlord refused to accept any offer unless both joined in it. Understandably, if the tenants could not resolve their problems, it saw no reason why it should choose between them and expose itself to the delay and expense of possible future litigation. With the situation in this posture, both Mr. Spitalnik and Ms. Springer opted to stand on their individual offers and the option period expired without either of them making any effort to stay its expiration or to resolve their legal dispute. On these facts, Trial Term correctly found for the landlord adding somewhat gratuitously that the cotenants could exercise jointly whatever rights they might have. Of course, they then had no legal rights to exercise the option because the option had expired.

Both the Appellate Division and the majority of this court have determined that the equities require that the tenants obtain judicial relief. I have difficulty identifying any equities in favor of the tenants, but even if I could and assuming the cotenants are now prepared to accept the option, I do not believe the court should extend the terms of a private offer to sell some three and a half years after it has expired. I, therefore, dissent and vote to modify by striking that part of the order of the Appellate Division which extended the option period an additional 30 days.

Insofar as the equities are concerned, there is no evidence that the landlord failed to comply with any provisions of the Rent Stabilization Law or Code or that it has been guilty of any deception, overreaching or misconduct. Indeed, all 12 Judges in the three separate courts which have considered this matter have now held that the landlord properly refused to accept the separate offers submitted by the parties and none of the courts has found it wanting in any obligation to the tenants required to effect this preferential sale. The cotenants’ relief is premised solely on the lack of prejudice to the landlord. I do not believe that lack of prejudice is grounds for relief but, like the landlord no doubt, I view the issue of prejudice somewhat differently; without legal or moral fault on its part, it has been delayed in the business of converting this substantial building during the three years of expense and uncertainty connected with this litigation. This loss of time and money while the landlord proved beyond doubt that its actions were legally correct would seem to be prejudice enough.

Under the circumstances of statutory compliance by the landlord, this action should be judged by common-law rules. The pertinent governing rule is that time is of the essence in option contracts whether the action is at law or in equity (see 6 Williston, Contracts [3d ed], § 853). Unless the offer to sell is accepted within the time specified, the option expires by its own terms Waterman v Banks, 144 US 394; Warner-Quinlan Co. v Smith, 134 Misc 649, affd 229 App Div 814, affd 255 NY 582; and see Restatement, Contracts 2d, § 41). That rule prohibits a court from enlarging an option or resurrecting it three years after it has expired, nor do I know why it should do so after these tenants have been stubbornly indifferent to the legal consequences of their actions.

Chief Judge Cooke and Judges Jasen, Wachtler and Meyer concur with Judge Jones; Judge Simons dissents and votes to modify by striking that part of the order of the Appellate Division which extended the option period an additional 30 days, in a separate opinion.

Order modified, with costs to respondents, in accordance with the opinion herein and, as so modified, affirmed.

      . No appeal has been taken by either tenant from the determination that neither had an individual right of subscription or that to subscribe a joint agreement was required.

      . Indeed, relying on First Nat. Stores v Yellowstone Shopping Center (21 NY2d 630), the landlord emphasizes the quotation from that case at page 637 where we declared that “in a proper case, a court has the fullest liberty in molding its decree to the necessities of the occasion. But, it cannot grant equitable relief if there is no acceptable basis for doing so.”