text:
    The People of the State of New York, Respondent, v Daniel P. Boutin, Appellant.
    Argued February 7, 1990;
    decided April 5, 1990

      POINTS OF COUNSEL

      David H. Pentkowski for appellant.

      David A. Wait, District Attorney, for respondent.
   OPINION OF THE COURT

Hancock, Jr., J.

The unexplained failure of a driver to see the vehicle with which he subsequently collided does not, without more, support a conviction for the felony of criminally negligent homicide. Here, because the evidence of defendant’s conduct proved only that he did not see the vehicle ahead, the conviction should be reversed and the indictment dismissed.

On the night of November 26, 1985, defendant was driving a truck southbound in the right-hand lane of Interstate 87, commonly known as the Adirondack Northway. The night was overcast and dark, the weather was rainy with fog, and the pavement was slushy and wet. One hundred and fifty miles from the Canadian border, a marked police car, with emergency lights flashing, was stopped with all four tires in the right-hand lane behind a disabled tractor trailer, which also extended onto the roadway approximately six feet. Defendant’s truck hit the police car. Both the State Trooper and the driver of the disabled vehicle who was seated with him inside the police vehicle were killed. At the scene, defendant told police he had not seen the flashing lights. The passenger in defendant’s truck said the same thing at trial.

The People presented several witnesses who had driven by and seen the police vehicle or its lights that night; five of them who had passed the police car, however, mistakenly perceived it to be on the shoulder of the roadway rather than in the right lane. The People also presented an expert who opined that defendant had not applied the brakes prior to the collision and that defendant’s truck was traveling between 60 and 65 miles per hour. The expert’s téstimony at the Grand Jury, however, was that defendant’s speed was between 50 and 60, and defendant’s passenger testified at trial that the speedometer, just before the accident, was reading between 40 and 50 — defendant’s average speed from the Canadian border. The passenger also testified that defendant was looking ahead and carrying on a conversation, and that defendant stepped on the brakes approximately 200 feet before impact with the police car which neither of them had previously seen.

During two days of deliberations, the jury, on three separate occasions, informed the. court that it was unable to reach a verdict; each time the court instructed the jurors to continue. The jury also requested reinstruction, three different times, on the elements constituting criminally negligent homicide; each time the court reread its charge. Ultimately, the jury found defendant guilty of the two charged counts of criminally negligent homicide; County Court denied defendant’s motion to set aside the verdict.

On appeal, the Appellate Division affirmed the conviction, stating that, "[t]his case, when all circumstances are weighed, leaves unanswered the question of how this defendant * * * failed to perceive the blaze of emergency lights ahead.” (146 AD2d 872, 873-874.) The court considered the "most telling evidence against defendant” to be "that neither he nor [his passenger] ever observed the lights ahead.” (Id., at 874.) It concluded that "[t]here simply is no excuse for such failure on defendant’s part.” (Id.) We now reverse.

Under section 125.10 of the Penal Law, "[a] person is guilty of criminally negligent homicide when, with criminal negligence, he causes the death of another person.” As defined in section 15.05 (4) of the Penal Law, "criminal negligence” with respect to a certain result is the "fail[ure] to perceive a substantial and unjustifiable risk that such result will occur”. Moreover, the "risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.”

Our decisions construing these provisions have emphasized that criminal liability cannot be predicated on every act of carelessness resulting in death, that the carelessness required for criminal negligence is appreciably more serious than that for ordinary civil negligence, and that the carelessness must be such that its seriousness would be apparent to anyone who shares the community’s general sense of right and wrong (see, People v Haney, 30 NY2d 328, 333, 335; see also, People v Ricardo B., 73 NY2d 228, 235-236; People v Montanez, 41 NY2d 53, 56). What, we believe, is abundantly clear from our decisions and from the governing statutory language is that criminally negligent homicide requires not only a failure to perceive a risk of death, but also some serious blameworthiness in the conduct that caused it. The risk involved must have been "substantial and unjustifiable”, and the failure to perceive that risk must have been a "gross deviation” from reasonable care.

As we explained in People v Haney (supra), the crime of criminally negligent homicide "serves to provide an offense applicable to conduct which is obviously socially undesirable. '[It proscribes] conduct which is inadvertent as to risk only because the actor is insensitive to the interests and claims of other persons in society.’ * * * The Legislature, in recognizing such conduct as criminal, endeavored to stimulate people towards awareness of the potential consequences of their conduct and influence them to avoid creating undesirable risks.” (30 NY2d, at 334 [emphasis added] [citations and n omitted].)

As we have noted in our decisions comparing criminally negligent homicide with reckless manslaughter (Penal Law § 125.15 [1]), the necessary "underlying conduct, exclusive of the mental element, [is] the same.” (People v Stanfield, 36 NY2d 467, 470 [emphasis added].) Both felonies require a "risk of death inherent in [the defendant’s] act” (People v Montanez, supra, at 56 [emphasis added]). In criminally negligent homicide, no less than in reckless manslaughter, some culpable "risk creation” is essential (People v Stanfield, supra, at 472 [emphasis added]; see also, People v Ricardo B., supra, at 236 ["inadvertent risk created by the conduct”]; People v Haney, supra, at 335 ["inadvertent risk creation”]). Hence, unless a defendant has engaged in some blameworthy conduct creating or contributing to a substantial and unjustifiable risk of death, he has not committed the crime of criminally negligent homicide; his "nonperception” of a risk, even if death results, is not enough. This is well illustrated in cases where this court has held the People’s evidence sufficient to support a conviction.

In People v Haney (supra), for example, the defendant’s automobile struck and killed a pedestrian who had just stepped off a city bus and was crossing the street, at an intersection, with a green light in her favor. In reinstating an indictment which the courts below had dismissed, we pointed to the Grand Jury evidence of the defendant’s blameworthy, risk-creating conduct: defendant had failed to obey a red traffic signal and he was traveling at an unlawfully high rate of speed. Defendant’s conduct could not, we concluded, "be characterized as mere carelessness, sufficient only to establish liability for ordinary civil negligence.” (30 NY2d, at 336.) In People v Soto (44 NY2d 683), this court upheld the conviction of a defendant whose car collided with a vehicle stopped at a traffic signal, thus destroying the vehicle and killing its driver. We based our decision on the trial testimony establishing that the defendant had been driving at an excessive rate of speed, on a moderately traveled city street, while engaged in a "drag race”.

Similarly, in People v Ricardo B. (supra), we rejected defendant’s contention that the evidence was legally insufficient. There was testimony in that case that defendant was traveling between 70 to 90 miles per hour, on a busy metropolitan road, through an intersection which the victim’s automobile had just crossed with a green light in its favor, and was racing side-by-side with another when both their vehicles struck the victim. The facts in People v Paul V. S. (75 NY2d 944 [decided today]) also point up the distinction. There, the proof established that defendant drove at excessive speed (at least 90 miles per hour in a 55 miles per hour speed zone), accelerated after being warned by his passenger to slow down, continued past a line of cars which the police had stopped and ultimately struck a State Trooper. In Paul V S. and Ricardo B., as in Soto and Haney, the evidence established not only "nonperception” of a risk, but also that the risk was wrongfully "created by [defendant’s] conduct” (73 NY2d, at 236).

In the present case, there is no question that defendant’s failure to see the vehicle stopped in the lane ahead of him resulted in the fatal accident. That failure may well constitute civil negligence. But the proof does not establish criminal negligence. As contrasted with Paul V S, Ricardo B., Soto and Haney, the evidence does not show that defendant was engaged in any criminally culpable risk-creating conduct— e.g., dangerous speeding, racing, failure to obey traffic signals, or any other misconduct that created or contributed to a "substantial and unjustifiable” risk of death. Rather, it establishes only that defendant inexplicably failed to see the vehicle until he was so close that he could not prevent the collision. Though it resulted in two tragic deaths, that unexplained failure, without more, does not constitute criminally negligent homicide.

Accordingly, the order of the Appellate Division should be reversed, and the indictment dismissed.

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

Order reversed, etc.


source: Caselaw Access Project

license: Public Domain

text:
    James M. Finnerty, Appellant, v New York State Thruway Authority, Respondent.
    (Claim No. 69631.)
    Argued October 11, 1989;
    decided November 30, 1989
    APPEARANCES OF COUNSEL

      David M. Hehr for appellant.

      Robert Abrams, Attorney-General (Kathleen Liston Morrison,

      O. Peter Sherwood and Peter H. Schiff of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

Claimant obtained an order from the Court of Claims granting permission to file a late claim against the Thruway Authority for personal injuries sustained on January 19, 1983 in an automobile accident. Claimant served defendant Thruway Authority personally on July 5, 1984 and on July 16, 1984 he filed a copy of the order and the claim with the Clerk of the Court of Claims. The Attorney-General was not served with either the claim or the order although the order specified that the claim be filed "in compliance with applicable statutes and court rules (see, e.g., Court of Claims Act [§ ] 11; CPLR 307; 22 NYCRR 1200.4, 1200.5) within thirty (30) days after notice of entry hereof.” Claimant took no action in the matter for approximately 32 months when he served a notice of discovery and inspection on the Attorney-General. The State then moved to dismiss for failure to make service upon the Attorney-General as required by Court of Claims Act § 11.

The Court of Claims denied the State’s dismissal motion, holding that service upon the Attorney-General was not required to commence an action against the Thruway Authority. The Appellate Division rejected this position and held that the claim should be dismissed for failure to serve the Attorney-General, stating that "service on the Attorney-General is a predicate to obtaining personal jurisdiction over any defendant in the Court of Claims” (140 AD2d 941, 942).

Preliminarily, we note that the Appellate Division properly held that service on the Attorney-General is required for the commencement of an action against the Thruway Authority in the Court of Claims. Under Public Authorities Law § 361-b, compliance with Court of Claims Act § 11 is necessary in order to sue the Thruway Authority (see, Brinkley v City Univ., 92 AD2d 805, 806). We turn to the question of whether, as claimant contends, the requirements of section 11 affect personal jurisdiction and, thus, may be waived.

It is established law that the "requirements of * * * section 11 of the Court of Claims Act are jurisdictional in nature and, therefore, must be strictly construed (Buckles v State of New York, 221 NY 418, 423-424; De Marco v State of New York, 43 AD2d 786, affd 37 NY2d 735).” (Lurie v State of New York, 73 AD2d 1006, 1007, affd for reasons stated at App Div 52 NY2d 849.) Court of Claims Act § 11, as it was when claimant purported to commence the action here, provided that the claim "shall be filed with the clerk of the court and a copy shall be served upon the attorney general within the times herein before provided for filing with the clerk of the court” (emphasis added). It is settled that the State as sovereign may not be sued except with its consent, that it may attach such terms and conditions to its consent as the Legislature deems proper, and that such terms and conditions are jurisdictional requirements (see, Buckles v State of New York, 221 NY 418, 423-424, supra; see generally, Siegel, NY Prac § 32, 1987 Pocket Part, at 10). Here, the requirement in section 11 that the Attorney-General be served with a copy of the claim was not satisfied, resulting not in a failure of personal jurisdiction, as the Appellate Division writing suggests, but in a failure of subject matter jurisdiction which may not be waived.

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

Order affirmed, with costs, in a memorandum.

       Court of Claims Act § 11 was subsequently amended to specify the manner of service on the Attorney-General — service personally or by certified mail return receipt (L 1984, ch 427). Here, there is no issue concerning the manner of service (cf., Baggett v State of New York, 124 AD2d 969). The Attorney-General was never served.


author: Titone, J.

text:
    The People of the State of New York, Respondent, v Thomas Adger, Appellant. The People of the State of New York, Respondent, v Victor Austin, Appellant.
    Argued September 8, 1989;
    decided December 14, 1989

      APPEARANCES OF COUNSEL

      Nancy E. Little and Philip L. Weinstein for Thomas Adger, appellant.

      David P. Greenberg and Philip L. Weinstein for Victor Austin, appellant.

      Elizabeth Holtzman, District Attorney (Robin A. Forshaw, Barbara D. Underwood and Peter A. Weinstein of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The orders of the Appellate Division should be modified by remitting to Supreme Court, Kings County, for further proceedings in accordance with this memorandum, and as so modified, affirmed.

The issue in both of these cases is whether the trial court erred in failing to require the People to turn over specific documents requested by defense counsel pursuant to this court’s holding in People v Rosario (9 NY2d 286). In People v Adger, the defendant was charged with robbery in the first and second degrees (Penal Law § 160.15 [4]; § 160.10 [1]). The prosecution turned over as Rosario material the arresting officer’s memo book, the complaint report, the District Attorney’s data analysis form, Grand Jury minutes containing certain testimony, and notes taken by an Assistant District Attorney. Defendant requested that the prosecution additionally turn over the Grand Jury synopsis sheet and the Early Case Assessment Bureau data sheet. The prosecution objected to providing these documents, stating that they were the work product of the District Attorney’s office. The Trial Judge summarily concluded that the defense was not entitled to these two documents, and there is no indication on the record that the Trial Judge even looked at the documents before concluding that they were either not Rosario material at all or exempted from turnover under accepted principles of duplicativeness or work product.

In People v Austin, the defendant was charged with three counts of robbery in the first degree (Penal Law § 160.15 [2], [3], [4]). Pursuant to the defendant’s Rosario request, the prosecution turned over the arrest report, the police complaint report and the police arrest investigations report. When the defendant requested that the prosecution turn over the Grand Jury synopsis sheet and the data analysis form, a document similar to the Early Case Assessment data sheet in Adger, the prosecution objected, stating that the defendant was not entitled to these documents. The prosecution argued that the synopsis sheet was work product and was not the result of witnesses’ statements reduced to writing. The prosecution maintained that the defendant was not entitled to the data analysis sheet either because it was not the result of witnesses’ statements being reduced to writing. According to the prosecution, the witnesses were not present at the Early Case Assessment Bureau when the document was being prepared and the information contained in it was the product of interviews with the arresting officer. When defense counsel pointed out that the arresting officer was a testifying witness, the court concluded that the information contained in the form was hearsay. After examining the two documents, the Trial Judge concluded that the documents were not Rosario material and that the defendant was therefore not entitled to them.

We reach the same result in both of these cases, but for different reasons. We have in earlier cases determined the sort of examination that the Trial Judge must make before deciding whether documents requested by the defense constitute Rosario material (see, People v Poole, 48 NY2d 144, 149-150; People v Consolazio, 40 NY2d 446, 453). For that reason, we see no need to repeat the reasons and nature of the examination to be conducted.

In Adger, the trial court refused to examine at all whether the material requested by the defense was indeed Rosario material. In Austin, by contrast, the Trial Judge’s examination of the two documents was a proper start. However, he erred in glossing over the fact that the data analysis form contained statements of a prosecution witness, the arresting officer.

Both cases must therefore be remitted to the trial court for a determination as to whether these defendants were entitled to the documents requested under Rosario. In Austin, because the data analysis sheet appears to contain the statements of a prosecution witness, this determination will necessarily focus on whether the sheet is exempt from production on some other grounds, e.g., because the sheet is the work product of the District Attorney’s office or duplicative. If upon review of these documents, it is determined that the defendants in these two cases are entitled to them under Rosario, a new trial should be ordered in each case (see, People v Ranghelle, 69 NY2d 56). On the other hand, if it is determined that these two defendants are not entitled to these documents, the judgments in their respective cases should be amended to reflect that determination.

Titone, J.

(concurring). While I agree with the result reached by the majority, I am compelled to write separately because, unlike the majority, I conclude that the trial courts need further guidance as to the scope and nature of the inquiry outlined in People v Poole (48 NY2d 144, 149; see, People v Rosario, 9 NY2d 286, rearg denied 9 NY2d 908, cert denied 368 US 866 [codified in CPL 240.45 (1) (a)]). Although the majority asserts that there is "no need to repeat the reasons and nature of the examination” (majority mem, at 726), the superficial trial court review and inadequacy of the record in these cases are alone sufficient to make the need for additional guidance apparent. Since furnishing such instruction is an important part of our obligation as this State’s highest court, I cannot subscribe to the narrow case-specific approach that the majority has adopted in this case. The following represents my own, somewhat broader approach to the problem presented by these cases. It is my hope that both practitioners and trial courts will find some of these thoughts helpful.

I.

The facts critical to these appeals are not in dispute. In People v Adger, defendant was charged with robbery in the first and second degrees (Penal Law § 160.15 [4]; § 160.10 [1]) and grand larceny in the third degree (Penal Law former § 155.30 [5] [now § 155.35]). At the beginning of the trial, the prosecutor turned over to defendant, as Rosário material, the arresting officer’s memo book, the complaint report, the District Attorney’s data analysis form, the Grand Jury minutes of the complainant’s and the arresting officer’s testimony, and some notes taken by an Assistant District Attorney. When defense counsel made the court aware that he had also requested the Grand Jury synopsis sheet (synopsis sheet) and the Early Case Assessment Bureau data sheet (ECAB sheet), the prosecutor noted his opposition to the request stating simply that the synopsis sheet was the District Attorney’s work product and that the ECAB sheet was also work product because it "basically, evaluates the witnesses in the case.” The following exchange then occurred:

"court [to defense counsel]: Do you want to be heard?
"defense counsel: Judge, I believe—
"court: Denied. You are not entitled to it. Let’s go.”

At trial, the complaining witness testified that defendant and two other men robbed him, at gunpoint, of his billfold and gold chain. The jury convicted defendant only on the larceny count, and he was sentenced to the minimum term permissible.

The Appellate Division affirmed, concluding that the trial court did not err in denying the defendant’s request for the documents since "[n]either contained an abbreviated summary of an interview with any of the People’s witnesses and, as such, did not constitute discoverable Rosario material” (144 AD2d 475).

In People v Austin, defendant was charged with three counts of robbery in the first degree (Penal Law § 160.15 [2], [3], [4]). Prior to trial, the prosecutor turned over various documents including the arrest report, the police complaint report and the police arrest investigations report. When defense counsel requested disclosure of the Grand Jury synopsis sheet, and the data analysis form (a document similar to the ECAB sheet in Adger), the prosecutor opposed both requests. As to the synopsis sheet, the prosecutor claimed that it was "work product” and not the result of witnesses’ statements reduced to writing. Concerning the data analysis form, the prosecutor maintained that the document was not discoverable since, to the best of her knowledge, the witnesses were not present at the Early Case Assessment Bureau, where the form was presumably filled out, and the data analysis form was therefore a product of interviews with the arresting officer and not the witnesses. When defense counsel noted that the police officer was going to be a witness at trial, the prosecutor responded that the document was "hearsay.” After a brief visual examination of both documents, the trial court denied defendant’s request for production concluding "[tjhere is absolutely nothing here which would be at all relevant to any of the constitutional requirements.” The jury convicted defendant of first degree robbery and the court sentenced him as a persistent violent offender. On defendant’s appeal, the Appellate Division concluded that the trial court had not erred in denying defendant’s request since the disputed documents did not contain Rosario material and were, in any event, duplicative of other material previously disclosed to the defendant.

II.

Since this court’s decision in People v Rosario (supra), we have repeatedly stated that "a right sense of justice entitles the defense to examine a witness’ prior statement, whether or not it varies from his testimony on the stand. As long as the statement relates to the subject matter of the witness’ testimony and contains nothing that must be kept confidential, defense counsel should be allowed to determine for themselves the use to be made of it on cross-examination.” (People v Rosario, supra, at 289; see, People v Jones, 70 NY2d 547, 550; People v Novoa, 70 NY2d 490, 498; People v Ranghelle, 69 NY2d 56, 62; People v Perez, 65 NY2d 154, 158.) Recently, in People v Jones (supra), we stated that the rule is simple and unequivocal: "[I]f the People are in possession of a statement of their own prospective witness relating to the subject matter of that witness’ testimony, defense counsel must, in fairness, be given a copy because ordinarily counsel would have no knowledge of it and no other means of obtaining it.” (Id., at 550.) Of course, a defendant is not entitled to open discovery of the People’s files. When a dispute arises concerning the discoverability of a document pursuant to the Rosario rules, "the responsibility to determine whether or not any relevant statements of the witness exist” should be placed upon the trial court which "ought to inspect, in camera, the questioned document, or indeed the entire file if need be, to resolve any dispute on this issue.” (People v Poole, supra, at 149.)

While no particular formalities are required, the trial courts’ inquiry must be thorough enough both to make a reasoned and informed determination and to ensure a fair record for appellate review. Accordingly, a trial court should independently examine the document, and permit counsel to articulate their positions on the record. In the rare cases where a question exists about an apparently significant item, the court may need to voir dire the document’s author or someone familiar with it to settle any unanswered questions (see, e.g., People v Liles, 145 AD2d 509, 510; People v Davis, 87 AD2d 597). However, there is no requirement that the court observe the formal procedures that normally attend hearings at which sworn testimony is taken. Finally, the requirement that an appropriately directed inquiry be conducted where necessary is not obviated merely because a document may contain information in addition to a witness’ statement, such as witness evaluations, proposed plea offers, bail recommendations, or information otherwise classifiable as "work product.” While some of the information in a particular document may not be discoverable, the court must still examine it carefully to determine whether it contains some discoverable Rosario material which can be disclosed in redacted form (see, CPL 240.10 [2]; People v Jones, 91 AD2d 1175).

Under these principles, in both People v Adger and People v Austin, I believe the trial court erred. In Adger, the trial court’s decision to summarily deny disclosure of the synopsis and ECAB sheets without an inquiry was error. The prosecutor’s conclusory assertion that both the synopsis and ECAB sheets were "work product” was not alone a sufficient basis to resolve the dispute. The prosecutor did not state that no witness’ statements were reflected within the documents, but merely claimed, at least with regard to the ECAB sheet, that it was "basically” an evaluation of the witnesses. Although this court has stated that "the representation of a prosecutor, as an officer of the court, ought generally to suffice to determine the threshold issue of whether or not any prior statements of a witness exist” (People v Poole, supra, at 149), and normally require a defendant to "articulate a factual basis for the assertion that a prosecutor is improperly denying the existence of prior statements” (id.), defendant’s failure here to articulate a factual basis for his Rosario claim must be excused, since the court’s summary denial of defense counsel’s request effectively prevented him from doing so.

In Austin, the trial court’s actions were also procedurally deficient. Although the court did examine the disputed documents, its inquiry was apparently inadequate, since it failed to ascertain any legal basis for the prosecutor’s refusal to disclose material that, at least facially, appears to be derived from a witness’ factual narrative of the crime. In this regard the prosecutor’s conclusory representation that the documents were "work product” is insufficient.

Finally, I believe remittal is required because, contrary to the Appellate Division’s conclusion, even a facial examination of the documents in both Adger and Austin suggests that they might well contain Rosario material as well as the Assistant District Attorney’s "work product.” In both cases, the disputed documents seem to contain, at least in part, a factual narrative of the offenses charged and the defendants’ arrest. Thus, the People’s contention in Adger that the ECAB sheet is basically an evaluation of the witnesses, rather than a summary of their statements, is doubtful. Moreover, in Austin, the prosecutor admitted that the data analysis form was the result of a conversation with a trial witness, namely, the police officer. Thus, the unexplained conclusion that it contains no Rosario material is difficult to justify.

As to the synopsis sheets, the People’s reliance on People v Miles (23 NY2d 527) and People v Davis (supra) is misplaced. In Miles, the prosecution had failed to turn over to the defendant a summary of a witnesses’ testimony before the Grand Jury which was made by a member of the prosecution’s staff (supra, at 541). This court concluded that there was no error because "having been provided with the complete transcript of [the witness’] testimony, [the defendant] was hardly entitled to the summary based on the same testimony made by the prosecutor’s office for its own internal records.” (Id.) In Davis, the Trial Judge reviewed the synopsis sheet, conducted a voir dire of its author, and concluded that the synopsis sheet was "a product of the author’s impressions, written in his own words several days after the witness’ testimony.” (Supra, at 597.) Thus, both Miles and Davis were premised on an analysis of the specific content of the disputed documents. Neither case stands for the broad proposition that synopsis sheets are never discoverable. Here, by contrast, there exists no specific findings that the synopsis sheets are merely an author’s impressions (cf, People v Davis, supra), and the documents are not merely a synopsis of the Grand Jury testimony since both documents contain facts which were not testified to before the Grand Jury (cf., People v Miles, supra). Thus, further inquiry is required.

Finally, I reject the People’s contention that these documents are not Rosario material because they contain "information” which is not attributed to any specific witness. Indeed, in Consolazio this court specifically noted that "[t]he character of a statement is not to be determined by the manner in which it is recorded, nor is it changed by the presence or absence of a signature.” (40 NY2d 446, 453 [emphasis supplied].) The absence of attribution may impair defense counsel’s ability to effectively use this material at trial, but counsel is nonetheless entitled to see the material so that he can determine its worth to the defense (see, People v Jones, supra, at 550-552).

For the foregoing reasons, I concur with the majority’s decision to modify in both People v Adger and People v Austin.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander and Bellacosa concur; Judge Titone concurs in a concurring opinion in which Judge Hancock, Jr., concurs.

In each case: Order modified and case remitted to Supreme Court, Kings County, for further proceedings in accordance with the memorandum herein and, as so modified, affirmed.

         That the ECAB sheet and data analysis form contain abbreviations and symbols as a shorthand means of recording the information does not automatically transform potential witness’ statements into a "synthesis of the information received from the witnesses” as argued by the People (see, People v Consolazio, 40 NY2d 446, 453; People v Kelvin D., 40 NY2d 895). Indeed, as we made clear in Consolazio, a document is not automatically "work product” merely because statements are recorded by an Assistant District Attorney (see, People v Consolazio, supra; People v Kelvin D., supra; People v Hawa, 15 AD2d 740, affd 13 NY2d 718). In fact, we concluded in Consolazio that the abbreviated prosecutor’s "worksheets” capsulizing a witness’ answers to questions were Rosario material and were not immune from disclosure because they constituted an A.D.A.’s "conception” of what a prospective witness told him rather than the "statements” of such witness (supra, at 452).


text:
    Mario Tolisano, as Administrator of the Estate of Samuel Tolisano, Deceased, Respondent, v Meyer Texon, Appellant.
    Argued November 17, 1989;
    decided December 14, 1989

      APPEARANCES OF COUNSEL

      Russell T. McHugh and Frederick N. Gaffney for appellant.

      Charles Haydon for respondent.
   OPINION OF THE COURT

Order reversed, with costs, defendant’s motion to dismiss the complaint granted and certified question answered in the negative for the reasons stated in the dissenting memorandum by Justice George Bundy Smith at the Appellate Division (144 AD2d 267, 269-273).

Concur: Chief Judge Wachtler and Judges Simons, Kaye, Titone, Hancock, Jr., and Bellacos a. Taking no part: Judge Alexander.


text:
    In the Matter of New York City Transit Authority, Appellant, v Franklin E. White, as Commissioner of Transportation of the State of New York, et al., Respondents. (And Another Related Proceeding.)
    Argued November 20, 1989;
    decided December 14, 1989

      APPEARANCES OF COUNSEL

      Kenneth Howard Schiffrin and Albert C. Cosenza for New York City Transit Authority, appellant.

      Peter L. Zimroth, Corporation Counsel (Francis F. Caputo of counsel), for City of New York, appellant.

      Leona D. Jochnowitz and Darrell W. Harp for New York State Department of Transportation, respondent.

      George Pezold for Queens Van Plan, Inc., respondent.
   OPINION OF THE COURT

Judgment affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (144 AD2d 782).

Concur: Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacos a.


text:
    The People of the State of New York, Respondent, v John H. Gagnon, Appellant.
    Argued November 17, 1989;
    decided December 14, 1989

      APPEARANCES OF COUNSEL

      Thomas J. Snider for appellant.

      Charles A. Gardner, District Attorney (Jane M. Getman of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed. The proposed evidence of prior sexual contact between the complaining witness and her uncle was offered by the defense solely on the theory that it might be admissible to explain testimony of an examining physician that the 11-year-old complainant showed physical signs of sexual abuse. The prosecutor agreed that should the People present such medical testimony, the door might be opened for the proposed evidence in rebuttal. However, defendant could not himself elicit the medical testimony and then argue that he was entitled to present evidence of the victim’s prior sexual conduct to refute the very evidence he had just put before the jury.

Defendant’s remaining contentions are without merit.

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

Order affirmed in a memorandum.


text:
    The People of the State of New York, Appellant, v Darryl Simmons, Respondent.
    Decided December 14, 1989
    APPEARANCES OF COUNSEL

      Robert M. Morgenthau, District Attorney (Howard L. Perzan and Deborah L. Morse, of counsel), for appellant.

      Philip L. Weinstein and Susan J. Feathers, for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was indicted for allegedly taking two leather jackets from the complainant at gunpoint. After a suppression hearing, the court granted defendant’s motion to suppress the two leather jackets on the ground that they were the product of an unlawful search and seizure. The trial court, over defense counsel’s objection, permitted the People to introduce on their direct case photographs of the very jackets that had been suppressed. A divided Appellate Division concluded this was error and reversed defendant’s conviction. On their appeal by leave of the dissenting Justice, the People do not dispute that the admission of the photographs was constitutional error, but contend that the error was harmless.

In a criminal case, constitutional error may be harmless only if it is "harmless beyond a reasonable doubt, that is, there is no reasonable possibility that the erroneously admitted evidence contributed to the conviction” (People v Hamlin, 71 NY2d 750, 756, [citing Schneble v Florida, 405 US 427, 431; Chapman v California, 386 US 18, 24; People v Almestica, 42 NY2d 222, 226; People v Crimmins, 36 NY2d 230, 237]). In making that determination, a court must assess the quantum and nature of the evidence against the defendant, if the error were excised, and the causal effect the error may nevertheless have had on the jury (People v Hamlin, 71 NY2d 750, 756, supra).

In this case, the prosecution’s case was less than overwhelming. It rested on the testimony of the complainant whose credibility was impugned by his extensive criminal history. There is also a reasonable possibility that the photographs influenced the jury’s verdict. The photographs were the only evidence introduced at trial that corroborated the complainant’s story that he actually possessed two leather jackets, and they were the first items of evidence that the jury asked for during deliberations. Under these facts, it cannot be said that the admission of photographs of suppressed evidence was harmless beyond a reasonable doubt.

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

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed in a memorandum.


text:
    The People of the State of New York, Respondent, v John Washington, Appellant.
    Decided December 14, 1989

      APPEARANCES OF COUNSEL

      Ira Mickenberg and Barry R. Strutt for appellant.

      Robert T. Johnson, District Attorney (Jonathan R. Walsh of counsel), for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed and a new trial ordered for the reasons stated in the dissenting memorandum of Justice John Carro at the Appellate Division (151 AD2d 384, 385).

Concur: Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa.


text:
    In the Matter of William Blake, Appellant, v Louis Mann, as Warden of Shawangunk Correctional Facility, et al., Respondents.
    Argued November 15, 1989;
    decided December 14, 1989
    APPEARANCES OF COUNSEL

      Dan Getman, Deborah Schneer and David C. Leven for appellant.

      Robert Abrams, Attorney-General (Martin Hotvet, O. Peter Sherwood and Peter H. Schiff of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

The judgment of the Appellate Division should be affirmed, without costs.

In 1987, the inmate was convicted of murder in the first degree of a Deputy Sheriff and attempted murder in the first degree arising out of an unsuccessful escape attempt earlier that year and was sentenced to a term of 57 Vi years to life. The determination of the Commissioner of State Department of Correctional Services that he should be committed to involuntary protective custody immediately upon his arrival at the facility is supported by substantial evidence. The heinous nature of the crimes of which he was convicted and the inmate’s own admission that he threatened at trial four months earlier to escape again and kill those associated with prosecuting and sentencing him were a part of the record before the Hearing Officer and supplied the legal predicate in this case for the State Commissioner’s determination. Respondent’s interpretation of Department of Correctional Services regulations as authorizing the inmate’s placement in involuntary protective custody in these circumstances was not irrational. The Appellate Division’s judgment confirming the determination of the State Commissioner and dismissing the petition should therefore be affirmed.

The appellant inmate’s claim challenging the 30-day periodic agency review of the continuation of the involuntary protective custody determination, though reached by the Appellate Division in the interest of justice, is not preserved for our review.

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

Judgment affirmed, without costs, in a memorandum.


text:
    Vernice Akpan et al., Appellants, v Edward I. Koch, as Mayor of the City of New York, et al., Respondents.
    Submitted December 11, 1989;
    decided December 14, 1989
   Motion to vacate the statutory stay denied as unnecessary as no such stay exists. Cross motion for a stay denied. Appeal set down for argument on February 14, 1990.

Judge Titone taking no part.


text:
    Mass Properties Co., Appellant, v 1820 New York Avenue Corp. et al., Respondents.
    Submitted September 18, 1989;
    decided December 14, 1989
   Motion for leave to appeal dismissed for failure to show that the order sought to be appealed from is final as required by section 500.11 (d) (1) (iv) of the Rules of the Court of Appeals (22 NYCRR 500.11 [d] [1] [iv]).


text:
    The People of the State of New York, Respondent, v Nyeirere Jean, Appellant.
    Argued November 17, 1989;
    decided December 19, 1989
    APPEARANCES OF COUNSEL

      Lawrence K. Marks and Philip L. Weinstein for appellant.

      Elizabeth Holtzman, District Attorney (Richard T. Faughnan and Barbara D. Underwood of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

During the court’s voir dire in this case, each member of three panels of prospective jurors orally answered a detailed biographical questionnaire, and when necessary and in response to questioning by the court, clarified those answers. The trial court, over defendant’s objection, then exercised its discretion by imposing a time limit of 15 minutes on each attorney’s voir dire in the first two rounds and 10 minutes for the third round. As a result of these time limits, defense counsel did not individually question some of the prospective jurors, although he was able to direct questions at each of the panels as a group. Although the court provided defense counsel with the opportunity, at a later time, to make a record of questions he claims he was unable to pose to the individual jurors, defense counsel never made such a record.

A trial court has broad discretion to restrict the scope of voir dire by counsel (People v Pepper, 59 NY2d 353, 358; People v Boulware, 29 NY2d 135, 140) and indeed must preclude repetitive or irrelevant questioning (CPL 270.15 [1] [c]). Any restrictions imposed on voir dire, however, must nevertheless afford defense counsel a fair opportunity to question prospective jurors about relevant matters (People v Boulware, 29 NY2d, at 140). The record before us does not support the conclusion that the trial court abused its discretion in this case or that the defendant was prejudiced by the court’s exercise of its discretion (id.; People v Pepper, 59 NY2d, at 358-359).

Under the circumstances of this case, defendant’s additional contention that the time limits imposed deprived him of his constitutional right to a fair and impartial jury is without merit (see, Rosales-Lopez v United States, 451 US 182, 189-190).

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

Order affirmed in a memorandum.


text:
    The People of the State of New York, Appellant, v James A. Matteson, Jr., Respondent.
    Decided December 19, 1989

      APPEARANCES OF COUNSEL

      Robert E. Wildridge, District Attorney (Edward J. McQuat of counsel), for appellant.

      Gerald T. Barth for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant committed suicide while his appeal as of right from the judgment of conviction was pending in the Appellate Division. The Appellate Division dismissed his appeal and remitted to County Court with directions to vacate the conviction and dismiss the indictment. The People appeal from the Appellate Division order by permission of a Judge of this court.

A defendant’s death during the pendency of a direct appeal to the Appellate Division abates the appeal and all proceedings in the prosecution from its inception (People v Mintz, 20 NY2d 753, 770, 771). The death places a defendant beyond the court’s power to enforce or reverse the judgment of conviction, thereby preventing effective appellate review of the validity of the conviction (id., at 771). As we stated in Mintz, "If affirmed, the judgment of conviction could not be enforced and, if reversed, there is no person to try. Therefore, the appeal should not be heard but, since it cannot be heard, it can never be determined whether the judgment of conviction would stand, and this requires that the judgment of conviction be vacated and the indictment dismissed.” (Id., at 771.)

Accordingly, the Appellate Division correctly remitted the instant case to County Court with directions to vacate the conviction and dismiss the indictment. We are unpersuaded by and accordingly reject the People’s contention that defendant’s suicide should be deemed a waiver or forfeiture of the right to appeal (see, e.g., People v Sanchez, 65 NY2d 436, 443-444; People v Parker, 57 NY2d 136, 140-141).

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

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed in a memorandum.


author: Kaye, J.

text:
    Donald E. Cone, Appellant, v Nationwide Mutual Fire Insurance Company, Respondent.
    Argued November 16, 1989;
    decided December 19, 1989

      APPEARANCES OF COUNSEL

      Kenneth W. Knapp for appellant.

      Chris G. Trapp for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs to plaintiff, and judgment should be granted in plaintiff’s favor declaring that defendant is obligated to defend and indemnify plaintiff.

Plaintiff’s 14-year-old son was operating plaintiff’s three-wheel all-terrain vehicle when he collided with a pickup truck and sustained serious leg injuries. Plaintiff brought suit against the owner and operator of the truck, who interposed a counterclaim alleging plaintiff was negligent in that he "permitted and allowed an improperly equipped motor vehicle to be operated upon the public highway” and "entrusted a dangerous instrumentality to [the minor] knowing [he] was unfit and unqualified to properly handle * * * [the vehicle]”. Plaintiff sought defense and indemnification from his own homeowner’s insurer on the counterclaim. The insurer disclaimed and the insured sought declaratory judgment relief.

The homeowner’s insurance policy provides coverage for all personal liability but excludes occurrences "arising out of the ownership, maintenance, or use of * * * a motor vehicle”. The view that this case "arises out of the ownership and use of a motor vehicle” (dissenting opn, at 749) is flawed. The focus of this dispute is the insured father’s alleged negligent entrustment to his son of the motor vehicle, a claimed dangerous instrumentality. It is not directly related to the plaintiffs son’s negligent operation of the vehicle.

The exclusion from coverage — always as a matter of interpretation construed strictly against the insurer — is governed by Lalomia v Bankers & Shippers Ins. Co. (35 AD2d 114, affd 31 NY2d 830), where we held that a cause of action sounding in common-law negligence, predicated on the entrustment of a "motor vehicle”, was separate and distinct from claims excluded by a clause virtually identical to the one now at issue. Any minor variation in language between "arising out of’ (the one here) and "based directly on” (see, Lalomia v Bankers & Shippers Ins. Co., supra, 35 AD2d, at 117) is too insignificant to permit varying, legal consequences. Since the rule of Lalomia was made 18 years ago, insurers have had an opportunity to clearly exclude claims based on negligent entrustment from coverage in homeowner’s liability policies. They cannot be said to have accomplished that significant change by the ambiguous, as used here, "arising out of’ language.

Kaye, J.

(dissenting). Plaintiffs comprehensive homeowner’s policy excludes from coverage all claims for damages "arising out of the ownership, maintenance or use of * * * a motor vehicle owned or operated by, or rented or loaned to an insured.” Yet contrary to the plain language of the policy, the overwhelming weight of authority throughout the Nation construing such a standard clause, and the conclusion of both lower courts, the majority now holds that plaintiff is covered for a counterclaim charging that he negligently allowed his 14-year-old son to operate an all-terrain vehicle on the public highway. In that this conclusion lacks any sound basis, I respectfully dissent. I would modify the Appellate Division order by granting judgment in defendant’s favor declaring that defendant has no obligation to defend or indemnify plaintiff.

Analysis necessarily centers on the language of the policy. The terms of this policy exclusion could not more plainly preclude coverage. Undisputedly, the subject injury arises out of the ownership and use of a motor vehicle owned by plaintiff, and this is precisely what has been excluded in plaintiffs policy. It is well established that the obligation of a liability insurer is determined by its contract (Sperling v Great Am. Indem. Co., 7 NY2d 442, 450), not by the theory of liability asserted against the insured.

Overwhelmingly, courts throughout the country that have construed such a standard policy exclusion have found it applicable to claimed negligent entrustment. Those cases, collected and analyzed in Standard Mut. Ins. Co. v Bailey (868 F2d 893 [7th Cir]), correctly conclude that to hold otherwise requires a misreading of the policy and impermissible enlargement of the contract.

The majority’s sole premise for its remarkable conclusion is Lalomia v Bankers & Shippers Ins. Co., a case we affirmed on the Appellate Division opinion (35 AD2d 114, affd 31 NY2d 830). Lalomia held that an insurer’s obligation to defend and indemnify against claimed negligent entrustment of a "dangerous instrumentality” was not precluded by the automobile exclusion clause in the homeowner’s liability policy. Significantly, however, the language of the exclusion clause in Lalomia was different and narrower than the clause at issue. The clause in Lalomia provided that it "[d]oes not apply * * * to the ownership, maintenance, operation, use, loading or unloading of [a motor vehicle].”

The majority dismisses as insignificant the distinction between damages "arising out of’ and damages "directly related to the 'ownership, maintenance, operation’ ” and use of a vehicle (Lalomia v Bankers & Shippers Ins. Co., 35 AD2d, at 117). As explained in Fillmore v Iowa Natl. Mut. Ins. Co. (344 NW2d 875, 879 [Minn App]), after decisions like Lalomia, the "arising out of’ language was introduced by insurers to broaden the exclusion. The words "arising out of’ are hardly ambiguous. When used in an exclusion, they are deemed to be broad, general, comprehensive terms " 'ordinarily understood to mean originating from, incident to, or having connection with the use of the vehicle.’ ” (Aetna Cas. & Sur. Co. v Liberty Mut. Ins. Co., 91 AD2d 317, 320-321 [quoting 6B Appleman, Insurance Law & Practice § 4317, at 360-363 (rev ed)]; see also, 12 Couch, Cyclopedia of Insurance Law § 45:61, at 294-296 [2d ed].) Indeed, this very difference in policy language has often been recognized as a basis for distinguishing Lalomia (e.g., Standard Mut. Ins. Co. v Bailey, 868 F2d 893, 899-900, n 9; Farmers Ins. Group v Nelsen, 78 Ore App 213, 715 P2d 492, 494; see also, State Farm Fire & Cas. Co. v Wolford, 116 AD2d 1011; Ruggerio v Aetna Life & Cas. Co., 107 AD2d 744 [Titone, J. P., participating]; Matter of Duncan Petroleum Transp. v Aetna Ins. Co., 61 NY2d 665, affg on opn at 96 AD2d 942; Fillmore v Iowa Natl. Mut. Ins. Co., supra, at 878-879; Huggins v Tri-County Bonding Co., 337 SE2d 12, 17 [W Va]).

While I believe that Lalomia has been and is correctly distinguished on its facts, I would urge finally that, if deemed indistinguishable, the proper course is to overrule it — not to extend it, as the majority now does.

Chief Judge Wachtler and Judges Simons, Titone and Bellacosa concur in memorandum; Judge Kaye dissents and votes to modify in an opinion in which Judges Alexander and Hancock, Jr., concur.

Order reversed, etc.


author: Alexander, J.

text:
    In the Matter of Mental Hygiene Legal Services, on Relation of Angel Cruz, Appellant, v Renate Wack, as Executive Director of Kirby Forensic Psychiatric Center, et al., Respondents.
    Argued November 21, 1989;
    decided December 19, 1989

      APPEARANCES OF COUNSEL

      Stephen J. Harkavy, Ronald N Gottlieb and Marvin Bernstein for appellant.

      Robert Abrams, Attorney-General (Robert L. Schonfeld and Thomas P. Dorsey of counsel), for Renate Wack, respondent.

      Robert M. Morgenthau, District Attorney (Karen L. Mallory, Mark Dwyer and Susan Gliner of counsel), for People of the State of New York, respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed and the certified question answered in the affirmative.

In this habeas corpus proceeding brought pursuant to Mental Hygiene Law § 33.15, Supreme Court determined that petitioner was no longer mentally ill and ordered his release from custody. The Appellate Division agreed with Supreme Court only insofar as it found petitioner to be no longer dangerously mentally ill, but otherwise rejected Supreme Court’s findings and instead found that petitioner was in need of further retention, albeit in a nonsecure facility. We now conclude that the evidence in the record supports the finding of the Appellate Division.

The evidence, adduced through the testimony of petitioner’s treating psychiatrists and that of the chief psychiatrist at the facility where petitioner was institutionalized, as well as through the daily record of petitioner’s behavior, demonstrated that petitioner continued to suffer from a severe mental disorder. Even petitioner’s own expert diagnosed petitioner as suffering from "very severe” antisocial and paranoid personality disorders and, like the other experts, recommended that petitioner be retained in some level of custody within the State mental hygiene system.

Mental Hygiene Law § 1.03 (20) defines mental illness as "an affliction with a mental disease or mental condition which is manifested by a disorder or disturbance in behavior, feeling, thinking, or judgment to such an extent that the person afflicted requires care, treatment and rehabilitation.” Contrary to petitioner’s argument, that definition does not exclude disorders such as that suffered by petitioner, solely because "an effective mode of treatment [has] remained elusive” (Matter of Torsney, 47 NY2d 667, 683, n 6). It is enough that petitioner, as every psychiatric expert that testified at the hearing agreed, requires further in-patient care and attention.

Even petitioner’s expert, while objecting to the label "mental illness” to describe petitioner’s condition, agreed with the disposition directed by the Appellate Division. Although that court failed to refer to the governing statutes, its conclusion that petitioner should not be released from in-patient status but should, instead, be transferred to a nonsecure facility as necessary for readjustment to life outside mental hospitals, constitutes the requisite factual findings to justify retaining petitioner under Mental Hygiene Law § 33.15 (b) and § 9.01.

Finally, contrary to petitioner’s argument, the Appellate Division’s reference to "[w]hether petitioner is actually mentally ill” (148 AD2d, at 343) cannot fairly be deemed, within the context of that court’s opinion, to indicate that the court avoided deciding whether petitioner remained "in need of involuntary care and treatment” within the meaning of Mental Hygiene Law § 9.01. Rather, the court was merely acknowledging that petitioner’s current condition would be reviewed on the Commissioner’s pending retention application pursuant to CPL 330.20, as the court itself noted.

Alexander, J.

(dissenting). I cannot accept the majority’s conclusion that the Appellate Division made the requisite findings under the Mental Hygiene Law to permit the retention of petitioner in a nonsecure facility. Rather, that court determined that petitioner should be retained because even his own expert, who testified that petitioner was not mentally ill, nevertheless favored a gradual release, with some time spent in a nonsecure facility. The court expressly reserved the question of whether petitioner was mentally ill: "While we hold that the trial court’s finding that petitioner is not suffering from a dangerous mental disorder is not against the weight of the evidence, and therefore conclude that petitioner should not be in a secure facility, we disagree with the trial court that he should be released from in-patient status, as opposed to merely transferred to a nonsecure facility. In reaching this result, we think it sufficient that even petitioner’s own expert, a staunch proponent of the view that petitioner is not mentally ill, nevertheless favors only a gradual release, with a period of time spent in a nonsecure facility designed to readjust petitioner to life outside mental hospitals. Whether petitioner is actually mentally ill or not is a question that can be decided on the Commissioner’s pending application for a subsequent retention order, which should now, in view of petitioner’s transfer, be deemed an application for a recommitment order pursuant to CPL 330.20 (14).” (148 AD2d 341, 343 [emphasis added].)

It is clear from this language that the court impermissibly deferred to the Commissioner the determination of whether petitioner presently suffers from a mental illness. To do so in this habeas corpus proceeding pursuant to Mental Hygiene Law § 33.15 (b) was error. That section mandates the release of an involuntarily retained patient upon the court’s finding that the patient "is not mentally disabled or that he is not in need of further retention for in-patient care and treatment” (Mental Hygiene Law § 33.15 [b]). A determination that a patient has a "need for retention” requires a showing that the patient is "in need of involuntary care and treatment in a hospital” which in turn requires a demonstration that the patient "has a mental illness” (Mental Hygiene Law § 9.01). As Supreme Court properly concluded, absent a finding that petitioner presently suffers from a mental illness, he is entitled to release.

By concluding that the Appellate Division implicitly found that petitioner suffered from a mental illness, despite that court’s statement to the contrary, the majority deprives petitioner of that court’s factual review of the record — a record upon which Supreme Court, the only other court with fact-finding jurisdiction, found that petitioner was not presently suffering from a mental illness.

Accordingly, I dissent and vote to remit the matter to the Appellate Division for a finding as to whether petitioner presently suffers from a mental illness.

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

Order affirmed, without costs, and certified question answered in the affirmative in a memorandum.

      . Petitioner was committed to a secure psychiatric facility in the custody of the Commissioner of Mental Health in 1979, pursuant to CPL 330.20, having been found not guilty by reason of mental disease or defect for the murder of his pregnant common-law wife and three-year-old stepson. At the time of his commitment, petitioner was diagnosed as suffering from a dangerous mental disorder, paranoid schizophrenia, that caused him to think that his common-law wife and her son were possessed by the devil, and to beat, bludgeon and strangle them to death.

      . Mental Hygiene Law § 33.15 (b), provides: "Upon the return of such a writ of habeas corpus, the court shall examine the facts concerning the person’s alleged mental disability and detention. The evidence shall include the clinical record of the patient and medical or other testimony as required by the court. The court may review the admission and retention of the person pursuant to the provisions of this chapter. The court shall discharge the person so retained if it finds that he is not mentally disabled or that he is not in need of further retention for in-patient care and treatment” (emphasis added).
      In turn, Mental Hygiene Law § 9.01 provides:
      "As used in this article:
      " 'in need of care and treatment’ means that a person has a mental illness for which in-patient care and treatment in a hospital is appropriate 'in need of involuntary care and treatment’ means that a person has a mental illness for which care and treatment as a patient in a hospital is essential to such person’s welfare and whose judgment is so impaired that he is unable to understand the need for such care and treatment
      * * *
      " 'need for retention’ means that a person who has been admitted to a hospital pursuant to this article is in need of involuntary care and treatment in a hospital for a further period” (emphasis added).


text:
    Paul, Weiss, Rifkind, Wharton & Garrison, Appellant, v Louis Westergaard, Respondent, et al., Defendant.
    Argued November 21, 1989;
    decided December 19, 1989

      APPEARANCES OF COUNSEL

      Allan Blumstein and Maria H. Bainor for appellant.

      Robert M. Stolz and Brian E. Maas for respondent.
   OPINION OF THE COURT

Memorandum.

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

This is an action to recover for legal services. The plaintiff law firm billed its client, a limited partnership, for a fee, a portion of which the limited partnership paid. The effort in this action to recover the balance of the fee from the individual shareholder of a corporate participant in the limited partnership must be rejected. It is not supported by any evidence of an enforceable independent promise by the individual to pay the limited partnership’s obligation and is clearly barred by the Statute of Frauds (General Obligations Law § 5-701 [a] [2]; Martin Roofing v Goldstein, 60 NY2d 262, 267-268).

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

Order affirmed, with costs, in a memorandum.


text:
    Air Market Express, Ltd., Appellant, v Manufacturers Hanover Trust Company, Respondent.
    Submitted October 30, 1989;
    decided December 19, 1989
   Motion for leave to appeal pursuant to CPLR 5602 (a) (1) (ii) from the judgment of Supreme Court seeking to bring up for review a prior order of the Appellate Division dismissed upon the ground that the prior order does not "necessarily affect” the final judgment within the meaning of CPLR 5602 (a) (1) (ii).


text:
    In the Matter of the Estate of Nancy Hogan, Deceased. Ann Poole et al., Respondents; Samuel B. Wallace, Appellant.
    Submitted September 25, 1989;
    decided December 19, 1989
   On the court’s own motion appeal, insofar as it is taken from the June 1, 1989 Surrogate’s Court’s order, transferred, without costs, to the Appellate Division, Fourth Department, upon the ground that a direct appeal does not lie where questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, § 3 [b] [2]; § 5 [b]; CPLR 5601 [b] [2]); appeal otherwise dismissed, without costs, upon the ground that the Appellate Division orders appealed from do not finally determine the proceeding within the meaning of the Constitution. Motions for a stay and poor person relief dismissed as academic.


text:
    In the Matter of National Advertising Company, Appellant, v Richard S. Blankfein, as Commissioner of the Department of Planning and Development of the Town of Oyster Bay, et al., Respondents. Northeast Hotel Associates, Intervenor-Respondent. (And Five Additional Titles.)
    Submitted December 11, 1989;
    decided December 19, 1989
   Motion to vacate stay granted. Motion to dismiss appeal granted and the appeal dismissed, with $400 costs and $100 costs of motion, upon the grounds (1) that, the order of the Appellate Division in Northeast Hotel Assocs. v National Adv. Co., does not finally determine the action within the meaning of the Constitution; and (2) that, as to the remaining orders appealed from, no substantial constitutional question is directly involved. Motion to limit the time within which to move for leave to appeal denied.


text:
    The People of the State of New York, Appellant, v Luis Cordero, Respondent.
    Decided December 21, 1989

      APPEARANCES OF COUNSEL

      Robert M. Morgenthau, District Attorney (Mark Dwyer of counsel), for appellant.

      Philip L. Weinstein and Adrienne Gantt for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed for the reasons stated in the memorandum of the Appellate Division (150 AD2d 258).

Concur: Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa.


text:
    Columbia Asset Management Corp., Appellant, v Emerson Equities et al., Respondents.
    Argued November 20, 1989;
    decided December 21, 1989

      APPEARANCES OF COUNSEL

      Allen Green for appellant.

      Filip L. Tiffenberg for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the complaint reinstated.

Under the parties’ agreement, plaintiff, a licensed broker-dealer, agreed to solicit potential investors for certain of defendants’ real estate syndication projects and defendants agreed to pay plaintiff a commission and due diligence fees on any investment units it placed. Pursuant to this agreement, defendants sent plaintiff a preliminary broker-dealer sheet and a professional review kit outlining the terms of a syndication plan involving real estate located in Florida. According to its complaint and discovery responses, plaintiff thereafter contacted a number of independent sales representatives and through them obtained indications of interest from at least 16 qualified individuals. During the same period, plaintiff alleged, plaintiff’s and defendants’ representatives had a number of conversations in which the terms of the investment plan were modified, plaintiff’s efforts to generate investor interest were discussed and the necessity for defendants’ compliance with local blue sky laws was reviewed. Defendants ultimately discarded the syndication plan and sold the subject property directly to four private investors.

Plaintiff thereafter commenced the present action. Its complaint asserted two causes of action, one for quantum meruit and one for breach of the broker-dealer agreement, based on the claim that defendants had improperly "prevented] plaintiff from acting as a soliciting broker-dealer so as to receive commissions * * * and by refusing in bad faith to recognize the participants secured by plaintiff”. Following interposition of an answer, defendants moved for summary judgment dismissing the complaint, contending that the syndication plan had been "nothing more than an idea” and that the plan had not ripened to the point where there was "[anything for plaintiff to offer to sell.”

This argument was properly rejected by both courts below. Plaintiff was suing to recover not because defendants had declined to pay earned commissions on units actually placed, but rather because, according to its allegations, defendants had prematurely, and in bad faith, terminated the syndication plan thereby depriving plaintiff of the opportunity to earn commissions. Defendants’ assertion that the syndication plan had never been finalized or placed in a form that could lawfully be offered for sale to the public is not inconsistent with, and therefore does not undermine, this claim. Plaintiff’s allegations that defendants acted in bad faith raised a triable question of fact, precluding summary judgment and the provisions of the Martin Act regulating the sale of securities within this State do not require on this state of the record dismissal of the complaint on summary judgment.

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

Order reversed, etc.


text:
    Larry Ziecker, Appellant, v Town of Orchard Park, Respondent, et al., Defendants.
    Argued November 21, 1989;
    decided December 21, 1989

      APPEARANCES OF COUNSEL

      Paul William Beltz for appellant.

      John F. Canale for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the case remitted to the Appellate Division for consideration of issues not reached by that court.

Plaintiff commenced this negligence action against defendant for injuries sustained when he dove into the water at Green Lake in the Town of Orchard Park. Plaintiff argues that defendant was negligent in failing to warn against diving into the lake because the water was too shallow. In addition, plaintiff maintains that defendant was negligent in failing to maintain the bottom of this man-made lake in a manner which preserved what appeared to be its natural slope, and in failing to keep the bottom free of debris including silt, rocks and tree limbs. After a jury trial, plaintiff was found to be 70% liable for his injuries and was awarded $4,500,000 of the total $15,000,000. The Appellate Division reversed and dismissed plaintiff’s complaint concluding that plaintiff’s diving into the water "was an unforeseeable superseding cause barring defendant’s liability” (147 AD2d 974, 975). We now reverse.

Since this was a jury case and the Appellate Division dismissed the complaint as a matter of law, the question before us is whether, considering the evidence in the light most favorable to the plaintiff, it has made out a prima facie case (Lane — Real Estate Dept. Store v Lawlet Corp., 28 NY2d 36, 42). Under such circumstances, "[i]t is necessary to first conclude that there is simply no valid line of reasoning and permissible inferences which could possibly lead rational men to the conclusion reached by the jury on the basis of the evidence presented at trial.” (Cohen v Hallmark Cards, 45 NY2d 493, 499.) If the evidence is such "that it would not be utterly irrational for a jury to reach the result it has determined upon * * * the court may not conclude that the verdict is as a matter of law not supported by the evidence” (id.). Indeed, in the context of a proximate cause determination, this court has stated that "[g]iven the unique nature of the inquiry in each case, it is for the finder of fact to determine legal cause, once the court has been satisfied that a prima facie case has been established” (Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315; see, Lynch v Bay Ridge Obstetrical & Gynecological Assocs., 72 NY2d 632, 636).

Applying these standards of review, there is sufficient evidence in the record from which the jury could have rationally concluded that plaintiff was not aware of the depth of the water at the point he would reach on his dive, and, accordingly, that plaintiff’s conduct was not reckless (see, Denkensohn v Davenport, 75 NY2d 25). For this same reason it cannot be said that plaintiff’s conduct was a superseding act absolving defendant from liability (see, Denkensohn v Davenport, supra, at 36-37; Restatement [Second] of Torts § 443; Derdiarian v Felix Contr. Corp., supra, at 316).

The case should be remitted to the Appellate Division so that it may consider issues which were not reached on the appeal to that court (CPLR 5613).

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacos a concur.

Order reversed, with costs, and case remitted to the Appellate Division, Fourth Department, for further proceedings in accordance with the memorandum herein.


text:
    Frank Cole, Appellant, v Deendial Das, Respondent.
    Decided December 21, 1989
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that this court does not have jurisdiction to entertain an appeal from an order of the Appellate Term of Supreme Court (NY Const, art VI, § 3 [b]; CPLR 5601).


text:
    Joseph P. DiIorio, Appellant, v Gibson & Cushman of New York, Inc., Defendant, and Gibson & Cushman Dredging Corporation, Appellant.
    Submitted October 10, November 6, 1989;
    decided December 21, 1989
   Motion for leave to appeal [by plaintiff] dismissed upon the ground that movant is not aggrieved by the determination at the Appellate Division. Motion for a stay dismissed as academic.

Motion for leave to appeal [by defendant-appellant] denied.


text:
    In the Matter of Barbara Johnson, Appellant, v Thomas C. Jorling, as Commissioner of the New York State Department of Environmental Conservation, Respondent.
    Submitted October 16, 1989;
    decided December 21, 1989
   Motion, insofar as it seeks leave to appeal from the Appellate Division order of August 29, 1989, dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    McCurdy & Co., Inc., Respondent, v Emil Muller, Appellant.
    Submitted October 10, 1989;
    decided December 21, 1989
   Motion to dismiss the appeal granted and the appeal dismissed, with $400 costs and $100 costs of motion, upon the ground that no appeal lies as of right from the unanimous order of the Appellate Division absent the direct involvement of a substantial constitutional question (CPLR 5601).


text:
    Patricia Scott, Appellant, v Carter-Wallace, Inc., Respondent.
    Submitted October 16, 1989;
    decided December 21, 1989
   Motion for leave to appeal dismissed upon the ground that the movant has waived any right to seek leave to appeal, having accepted benefits of the Appellate Division determination sought to be appealed from.


text:
    The People of the State of New York, Respondent, v Philip Walker Zinke, Appellant.
    Submitted December 11, 1989;
    decided December 21, 1989
   Motion to extend stay granted and stay continued until determination of the appeal.


text:
    The People of the State of New York, Respondent, v Rufus Tuck, Appellant.
    Argued November 17, 1989;
    decided December 19, 1989

      APPEARANCES OF COUNSEL

      Edward J. Nowak, Public Defender (James Eckert of counsel), for appellant.

      Howard R. Relin, District Attorney (Mary Gehl of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Appellant’s contention is that his right to confrontation was violated by the trial court’s allowing an unsworn seven-year-old prosecution witness to sit at a table facing the jury, and turned away from appellant (see, Coy v Iowa, 487 US 1012). This was done because the witness’ testimony was not audible and the courtroom was not equipped with a sound amplification system.

Under the circumstances presented this was error. However, the conviction must still be affirmed. Examining the remaining evidence, the sworn testimony of the 13-year-old complainant, which alone was sufficient to support a conviction (CPL 60.20; Penal Law § 130.16), was corroborated by physical evidence as well as the complainant’s report of the incident to her family. Moreover, there was some evidence in the record to contradict appellant’s alibi. Thus, there is no reasonable possibility that the error might have contributed to appellant’s conviction (People v Crimmins, 36 NY2d 230, 237).

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

Order affirmed in a memorandum.


text:
    Donald Whitaker et al., Appellants, v Thomas C. Norman, Jr., as Executor of Thomas C. Norman, Sr., Deceased, et al., Respondents and Third-Party Plaintiffs-Respondents. Torrington Construction Company, Inc., Third-Party Defendant-Respondent. (Action No. 1.) Jean Gravelle, as Executrix of Gilbert J. Gravelle, Sr., Deceased, Appellant, v Thomas C. Norman, Jr., as Executor of Thomas C. Norman, Sr., Deceased, et al., Respondents and Third-Party Plaintiffs-Respondents. Torrington Construction Company, Inc., Third-Party Defendant-Respondent. (Action No. 2.)
    Argued November 15, 1989;
    decided December 21, 1989

      APPEARANCES OF COUNSEL

      William E. Russell for Donald Whitaker and another, appellants.

      Richard B. Meyer for Jean Gravelle, appellant.

      James P. Bessette for Thomas C. Norman, Jr., and another, respondents and third-party plaintiffs-respondents.

      Barry J. Jones and Peter D. FitzGerald for third-party defendant-respondent.
   OPINION OF THE COURT

Memorandum.

The orders of the Appellate Division should be affirmed, with costs.

We agree with the Appellate Division majority that defendant property owners cannot be held strictly liable for injuries to employees of an independent contractor hired to do the work that resulted in the harm, notwithstanding that the work was blasting, which is "inherently dangerous” (Spano v Perini Corp., 25 NY2d 11). The employer of an independent contractor is not, as a general rule, responsible for the contractor’s torts, but may be liable if the work performed is inherently dangerous (Wright v Tudor City Twelfth Unit, 276 NY 303). Such vicarious liability is designed to protect members of the public, and does not extend to an employee of the contractor hired to do the dangerous work, who (unlike members of the public) is ordinarily covered by workers’ compensation (see, Nagy v State of New York, 89 AD2d 199, 200-201). To the extent that an owner maintains control over the work or has notice of a dangerous condition on the premises, the owner of course may be directly liable to an injured employee (Allen v Cloutier Constr. Corp., 44 NY2d 290, 299). Here, however, "the record is devoid of evidence of control, actual or constructive, by defendants over the work site or the manner in which the work was performed”. (146 AD2d 938, 939.)

Furthermore, we reject appellants’ contention that sections 435 and 402 of the Labor Law imposed on defendant property owners a nondelegable duty to ensure that only certified blasters were used. Labor Law § 435 sets forth the general requirement that quarry owners observe the provisions of article 15; Labor Law § 402 provides that "[w]hen explosives are used in a * * * quarry, the manner of storing, keeping, moving, charging and firing, or in any manner using such explosives, shall be in accordance with the rules prescribed by the [Industrial Board of Standards and Appeals].” The Board, in turn, promulgated the following regulation for quarries: "At every location where * * * quarrying operations are conducted where explosives are used, at least one person shall be designated by the owner, operator, employer or his agent to perform the duties of a blaster * * *. No person shall be designated as a blaster unless such person holds a valid certificate of competence issued by the [Industrial Commissioner of the State of New York]”. (12 NYCRR former 17.11 [a] [2], presently codified at 12 NYCRR 17.12 [a] [2].)

Section 435 does not impose upon owners a nondelegable duty to comply with section 402 (see, Korycka v Healy Co., 8 NY2d 968, affg 9 AD2d 938; Carpenter v Watkins Salt Co., 64 AD2d 330). Article 15 consists of essentially two types of statutory sections. The first, typified by section 416, is a legislative prescription for certain conduct, although none of these sections specify exactly who shall be responsible for compliance with the mandated standard. The second, typified by section 402, does not itself prescribe any particular conduct but instead directs the Board to formulate regulations that will accomplish the over-all legislative objective.

By section 435 the Legislature, without unnecessary repetition throughout article 15, ensured that responsibility for the specified conduct it prescribed would fall upon the owner, agent, lessee, manager, operator and superintendent. Section 435 does not, however, apply to the second category of sections within article 15 — encompassing a variety of regulations the Board might choose to formulate, including designation by the Board of responsible parties to implement particular regulations. The very regulation before us, for example, designates the responsible parties, imposing that burden on "the owner, operator, employer or his agent” (12 NYCRR 17.12 [a] [2]).

Nor does the regulation preclude a property owner from delegating the task of selecting a blaster to another, more experienced party. The regulation states that an owner may authorize an "operator, employer or his agent” to make the required designation. Therefore in situations, as here, where the owner delegates the task of selecting a blaster to an operator, the owner cannot be said to have violated the regulation if the operator designates a noncertified blaster. There having been no violation of the regulation by defendant property owners, the fact that a violation could be considered some evidence of negligence (see, Korycka v Healy Co., supra) is simply inapposite.

Finally, given the careful statutory and regulatory framework, there is no need for the courts to speculate (as does the dissent) about what would otherwise be sound policy. The scheme that has been put in place assures that the owner and contractor each will be directly responsible for its own fault— the contractor through workers’ compensation and the owner through the tort system.

Titone, J.

(dissenting). Since my own analysis of Labor Law §§ 402 and 435 leads me to conclude that the Legislature has imposed a nondelegable duty upon mine, tunnel and quarry owners to ensure that only certified blasters are used in blasting operations, I would hold that the court below erred in dismissing the complaints in these negligence actions. Accordingly, I respectfully dissent.

If a statute or administrative regulation imposes a definite obligation upon one to provide safeguards or precautions for the safety of persons on or near his property, it is the general rule that this duty cannot be delegated to an independent contractor so as to release the person from liability in case the contractor fails to properly perform the obligation (see, Allen v Cloutier Constr. Corp., 44 NY2d 290; Conte v Large Scale Dev. Corp., 10 NY2d 20; Bruno v Almar Residences Corp., 13 AD2d 232, affd 11 NY2d 988; Semanchuck v Fifth Ave. & 37th St. Corp., 290 NY 412; Restatement [Second] of Torts § 424). Accordingly, a determination as to whether such a nondelegable duty exists in this case must turn upon an examination of the applicable statutory and administrative language.

Article 15 of the Labor Law provides for State-imposed regulations of the safety aspect of "Mines and Tunnels; Quarries; Compressed Air.” Labor Law § 435 provides that [ejxcept as otherwise provided the owner, agent, lessee, manager, operator and superintendent shall be responsible for the observance of the provisions of this article” (emphasis added). Labor Law § 402 mandates that "[w]hen explosives are used in a mine, tunnel or quarry, the manner of storing, keeping, moving, charging and firing, or in any manner using such explosives, shall be in accordance with the rules prescribed by the board” (emphasis added). Finally, the applicable Board regulation for quarries requires the "owner, operator, employer or his agent” to designate as blaster an individual possessing a valid certificate of competence as provided by the regulations (12 NYCRR former 17.11 [a] [2], presently codified at 12 NYCRR 17.12 [a] [2] [emphasis added]).

It is apparent from the statutory scheme that the Legislature has sought to impose a nondelegable duty on the persons enumerated in section 435 to observe all of the provisions of article 15 of the Labor Law "[e]xcept as otherwise provided” (see, Carpenter v Watkins Salt Co., 64 AD2d 330, 333; Restatement [Second] of Torts § 424). Section 402, which affirmatively requires that the use of explosives be in accordance with Board rules, neither limits its requirements to a narrower class than is named in section 435 nor specifically exempts owners from compliance. Thus, section 402 may be contrasted with other provisions of article 15 which specifically limit the particular entity which is responsible for ensuring compliance (see, e.g., Labor Law §§400 [operator], 401 [operator], 426 [employer], 427 [employer], 431 [employer or person in charge]). That section 402 does not specifically place this duty on an owner is not critical, since section 435 provides the foundation upon which this nondelegable duty is created. Moreover, the terms of the applicable regulation impose an affirmative duty on an owner to ensure that only a certified blaster is used. Since section 435 creates the general affirmative duty on an owner to comply with the provisions of article 15 of the Labor Law, and section 402 requires that Board regulations be followed when explosives are used, and 12 NYCRR 17.12 (a) (2) requires an owner to designate a certified blaster, it is apparent that a nondelegable duty exists (see, Koenig v Patrick Constr. Corp., 298 NY 313, 318).

I disagree with the majority’s conclusion that section 435 "does not impose upon owners a nondelegable duty to comply” with section 402 (majority mem, at 783) because it "does not itself prescribe any particular conduct” (id.). Contrary to the majority’s view, the conduct which section 402 mandates is the duty of ensuring that Board regulations are followed when explosives are used. The majority’s attempt to contrast the obligation imposed under section 402 with that of Labor Law § 416 is not persuasive (id.). Section 416 states that, "[t]he roofs and sides of each passageway and working place in every mine and tunnel shall be properly timbered and shall be kept secure” (emphasis added). This duty is fundamentally no different from section 402’s requirement that the use of explosives "shall be in accordance with the rules prescribed by the board” (Labor Law § 402 [emphasis added]). Both sections 416 and 402 impose a specific safety-oriented obligation upon the individuals listed in section 435. That the former statute specifically lists the safety requirements, and the latter mandates compliance with Board rules is not dispositive (compare, Allen v Cloutier Constr. Corp., supra, with Conte v Large Scale Dev. Corp., supra).

In addition, the majority’s reliance on Korycka v Healy Co. (9 AD2d 938, affd no opn 8 NY2d 968) is misplaced (majority mem, at 783). There, the applicable rule promulgated under section 402 applied by its terms only to the "constructor” of the tunnel. "Constructor” was defined as " 'the person, firm or corporation in general control and supervision’ ” (id., at 939 [emphasis added]). Consequently, the dispute in that case was whether the general contractor, who had not conducted the blasting operation, was " 'in general control and supervision’ ” of the tunnel, within the meaning of the applicable rule (id.). Here, by contrast, the applicable rule specifically applies to owners, and does not require an owner to be in general control and supervision. Thus, Korycka is not dispositive. In addition, applying the majority’s construction of the statutes, it would have been unnecessary for the Korycka court to determine whether the rule was applicable to the general contractor since the blasting had been delegated to the subcontractor. If the duty to comply with Board rules was, indeed, delegable, it would have been unnecessary to determine the applicability of the rule to the general contractor.

Finally, that the regulation allows an "owner, operator, employer or his agent” to designate the blaster does not change the nature of the duty (majority mem, at 783). While the physical act of designating a certified blaster may be done by someone other than the owner, the duty to ensure that this act is accomplished is still upon the owner at all times. The purpose underlying the imposition of a nondelegable duty is not to limit who can perform a given task (see, Allen v Cloutier Constr. Corp., supra [task performed by various subcontractors but duty imposed upon owner]; Conte v Large Scale Dev. Corp., supra [task performed by subcontractor but duty imposed upon general contractor and owner]), but rather to ensure that the act is done properly, and that the person upon whom the obligation is imposed cannot escape liability by simply delegating the task to another (see, supra, at 783).

I agree with the majority that "[t]he very regulation before us * * * designates the responsible parties, imposing that burden on 'the owner, operator, employer or his agent’ ” (majority mem, at 783). By specifically listing who has the duty to designate a blaster, the Board has specifically removed the nondelegable duty of compliance, imposed by sections 435 and 402, from the other parties listed under section 435. Thus, the "lessee, manager, operator and superintendent” are specifically relieved of their nondelegable duty to comply with the regulation and fall within the "[e]xcept as otherwise provided” language of section 435. The owner, however, does not. Apparently, the majority has misconstrued my interpretation of the statutory scheme (see, majority mem, at 783, n).

Similar to this case is Conte v Large Scale Dev. Corp. (supra). There, this court examined an earlier version of section 241 of the Labor Law, which required owners and contractors "to comply with rules made by the board 'for the protection of workmen in connection with the excavation work for the construction of buildings, the work of constructing or demolishing buildings and structures, and the guarding of dangerous machinery used in connection therewith’ ” (id., at 26). The applicable Board rule pertained to the construction requirements for ramps and runways (id.). This court concluded that the statute and rule cast a nondelegable duty upon both the owner and general contractor to ensure that a properly constructed ramp was present at the construction site, and allowed an employee of the subcontractor to sue both the owner and general contractor for failing to provide adequate ramping. As did the statutory scheme examined in Conte, the combination of Labor Law §§ 435 and 402 place an affirmative duty upon an owner to comply with the applicable rule requiring the presence of a certified blaster.

Imposing such a nondelegable duty on the owner is supported by sound policy reasons since it promotes the salutary purpose of ensuring that the "inherently dangerous” activity of blasting is, at least, conducted by someone who is aware of all of the rules and regulations pertaining to the use of dangerous explosives. Indeed, the statutory framework is denotative of the express recognition that the failure to use a certified blaster poses a grave risk of harm to employees as well as third parties. Thus, the burden of minimizing risk has properly been placed upon all persons associated with a blasting operation including an owner who may not otherwise exercise control or supervision over the project (see. Restatement [Second] of Torts §§ 424, 427A). Here, for instance, there is some evidence that the uncertified blaster used by third-party defendant Torrington may not have been aware of all of the applicable blasting regulations.

In this regard, imposing liability on the owner is designed to create a safe working environment , as well as provide protection to third parties. In addition, owner liability serves as a deterrent as well as a source of tort recovery for an injured worker. Moreover, in other situations, the Legislature has provided workers protections in addition to workers’ compensation (see, e.g., Allen v Cloutier Constr. Corp., supra [discussing amendment to Labor Law §241]). Thus, the majority is incorrect in its assumption that the statutory scheme should be read so as to "assure[ ] that the owner and contractor each will be directly responsible for its own fault — the contractor through workers’ compensation and the owner through the tort system.” (Majority mem, at 783-784). By failing to hold owners liable under these statutes and regulations, the majority has enabled owners to insulate themselves from liability by simply removing themselves from the operation thereby ensuring that they have no control or supervision over the blasting operation (see, e.g., Kappel v Fisher Bros., 6th Ave. Corp., 39 NY2d 1039, 1041). This will only encourage owners to hire a contractor based upon price alone instead of the contractor’s regard for safety (see, Allen v Cloutier Constr. Corp., supra, at 299-300). Such a result could not have been desired by the Legislature.

Finally, imposing such a nondelegable duty on an owner is not overly burdensome. In selecting a contractor, the owner is free to insist upon one who is financially responsible, safety conscious and willing to provide contractual indemnification for injuries to the contractor’s employees (see, id.., at 298; Kelly v Diesel Constr. Div., 35 NY2d 1, 5-7; Restatement [Second] of Torts § 413, comment a).

Although I conclude that respondents were under a nondelegable duty, I recognize that a distinction exists "between the effect of a violation of an administrative regulation promulgated pursuant to statute, and a violation of a substantive provision of the statute itself’ (Allen v Cloutier Constr. Corp., supra, at 298; see, Bergen v East 84th St. Constr. Co., 16 NY2d 644; Prosser, Torts § 36, at 197-198 [4th ed]). A breach of the former is considered " 'some evidence of negligence which the jury [can] take into consideration with all the other evidence bearing on that subject’ ” (Conte v Large Scale Dev. Corp., supra, at 29), whereas a breach of the latter can result in absolute liability (Allen v Cloutier Constr. Corp., supra, at 298). Here, the duty breached, i.e., to retain only certified blasters, is imposed only by virtue of administrative regulation. Thus, respondents’ breach is merely some evidence of negligence.

Nonetheless, it is sufficient to create a triable question of fact as to whether respondents may be held liable. If, using this and other evidence, appellants are able to persuade the trier of fact that respondents were, indeed, negligent in failing to ensure that a certified blaster was present, and that this failure was the proximate cause of the injuries complained of, they would be entitled to recover damages. Accordingly, summary judgment should not have been granted. I would reverse the orders of the Appellate Division which dismissed appellants’ complaints and respondent’s third-party complaint, and permit the case to proceed to trial.

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

In each case: Order affirmed, with costs, in a memorandum.

       We decline to read the regulation, as does the dissent (dissenting opn, at 786-787) to mean only that " 'the owner, operator, employer or his agent’ ” can make the designation, but that "the owner, agent, lessee, manager, operator and superintendent” in any event at all times stand responsible. This seems an unnecessarily contorted reading of a straightforward statutory scheme.


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    Martin L. Bloch et al., Appellants, v Pilgrim Psychiatric Center, Respondent.
    Submitted October 16, 1989;
    decided January 4, 1990
   Treating plaintiffs’ papers as an appeal as of right, on the court’s own motion, appeal dismissed, without costs, upon the grounds that a direct appeal from a court of original instance does not lie where questions other than the constitutionality of a statutory provision are involved (NY Const, art VI, § 3 [b] [2]; CPLR 5601 [b] [2]), and that the Appellate Division order appealed from does not finally determine the action within the meaning of the Constitution.

Treating plaintiffs’ papers as a motion for leave to appeal, motion dismissed upon the grounds that this court does not have jurisdiction to entertain a motion for leave to appeal from an order of a court of original instance absent basis for leave to appeal pursuant to CPLR 5602 (a) (1) (ii), and that the Appellate Division order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Lawrence R. Brandi, Appellant, v Seewah Chan, Respondent.
    Submitted October 30, 1989;
    decided January 4, 1990
   Motion to dismiss appeal granted and appeal dismissed, with $400 costs and $100 costs of motion, upon the ground that no appeal lies as of right from the unanimous order of the Appellate Division absent the direct involvement of a substantial constitutional question (CPLR 5601).


text:
    Earl Dillman, Appellant, v Internote USA Inc., Respondent.
    Submitted October 23, 1989;
    decided January 4, 1990
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain a motion for leave to appeal from an order of the Appellate Division entered in an action commenced in the Civil Court of the City of New York (NY Const, art VI, § 3 [b] [7]; CPLR 5602 [a]).


text:
    Georgia Mihalakis, Appellant, v Cabrini Medical Center (CMC) et al., Respondents.
    Submitted October 23, 1989;
    decided January 4, 1990
   Motion for leave to appeal as against defendants Taranta and Cabrini Medical Center dismissed upon the ground that, as to those defendants, the order sought to be appealed from does not finally determine the action within the meaning of the Constitution. Motion for leave to appeal as against the remaining defendants denied. Motion for poor person relief dismissed as academic.