author: Jasen, J.

text:
    Truck Rent-A-Center, Inc., Respondent, v Puritan Farms 2nd, Inc., et al., Appellants.
    Argued January 5, 1977;
    decided February 24, 1977

      Jay H. Topkis and Steven Finell, New York City, for appellants.

      Mark D. Lebow, Emilio A. Dominianni and Robert N.0 Hornick, New York City, for respondent.
   Jasen, J.

The principal issue on this appeal is whether a provision in a truck lease agreement which requires the payment of a specified amount of money to the lessor in the event of the lessee’s breach is an enforceable liquidated damages clause, or, instead, provides for an unenforceable penalty.

Defendant Puritan Farms 2nd, Inc. (Puritan), was in the business of furnishing milk and milk products to customers through home delivery. In January, 1969, Puritan leased a fleet of 25 new milk delivery trucks from plaintiff Truck Rent-A-Center for a term of seven years commencing January 15, 1970. Under the provisions of a truck lease and service agreement entered into by the parties, the plaintiff was to supply the trucks and make all necessary repairs. Puritan was to pay an agreed upon weekly rental fee. It was understood that the lessor would finance the purchase of the trucks through a bank, paying the prime rate of interest on the date of the loan plus 2%. The rental charges on the trucks were to be adjusted in the event of a fluctuation in the interest rate above or below specified levels. The lessee was granted the right to purchase the trucks, at any time after 12 months following commencement of the lease, by paying to the lessor the amount then due and owing on the bank loan, plus an additional $100 per truck purchased.

Article 16 of the lease agreement provided that if the agreement should terminate prior to expiration of the term of the lease as a result of the lessee’s breach, the lessor would be entitled to damages, "liquidated for all purposes”, in the amount of all rents that would have come due from the date of termination to the date of normal expiration of the term less the "re-rental value” of the vehicles, which was set at 50% of the rentals that would have become due. In effect, the lessee would be obligated to pay the lessor, as a consequence of breach, one half of all rentals that would have become due had the agreement run its full course. The agreement recited that, in arriving at the settled amount of damage, "the parties hereto have considered, among other factors, Lessor’s substantial initial investment in purchasing or reconditioning for Lessee’s service the demised motor vehicles, the uncertainty of Lessor’s ability to re-enter the said vehicles, the costs to Lessor during any period the vehicles may remain idle until re-rented, or if sold, the uncertainty of the sales price and its possible attendant loss. The parties have also considered, among other factors, in so liquidating the said damages, Lessor’s saving in expenditures for gasoline, oil and other service items.”

The bulk of the written agreement was derived from a printed form lease which the parties modified by both filling in blank spaces and typing in alterations. The agreement also contained several typewritten indorsements which also made changes in the provisions of the printed lease. The provision for lessee’s purchase of the vehicles for the bank loan balance and $100 per vehicle was contained in one such indorsement. The liquidated damages clause was contained in the body of the printed form.

Puritan tendered plaintiff a security deposit, consisting of four weeks’ rent and the lease went into effect. After nearly three years, the lessee sought to terminate the lease agreement. On December 7, 1973, Puritan wrote to the lessor complaining that the lessor had not repaired and maintained the trucks as provided in the lease agreement. Puritan stated that it had "repeatedly notified” plaintiff of these defaults, but plaintiff had not cured them. Puritan, therefore, exercised its right to terminate the agreement "without any penalty and without purchasing the trucks”. (Emphasis added.) On the date set for termination, December 14, 1973, plaintiff’s attorneys replied to Puritan by letter to advise it that plaintiff believed it had fully performed its obligations under the lease and, in the event Puritan adhered to the announced breach, would commence proceedings to obtain the liquidated damages provided for in article 16 of the agreement. Nevertheless, Puritan had its drivers return the trucks to plaintiff’s premises, where the bulk of them have remained ever since. At the time of termination, plaintiff owed $45,134.17 on the outstanding bank loan.

Plaintiff followed through on its promise to commence an action for the payment of the liquidated damages. Defendant counterclaimed for the return of its security deposit. At the nonjury trial, plaintiff contended that it had fully performed its obligations to maintain and repair the trucks. Moreover, it was submitted, Puritan sought to cancel the lease because corporations allied with Puritan had acquired the assets, including delivery trucks, of other dairies and Puritan believed it cheaper to utilize this "shadow fleet”. The home milk delivery business was on the decline and plaintiff’s president testified that efforts to either re-rent or sell the truck fleet to other dairies had not been successful. Even with modifications in the trucks, such as the removal of the milk racks and a change in the floor of the trucks, it was not possible to lease the trucks to other industries, although a few trucks were subsequently sold. The proceeds of the sales were applied to the reduction of the bank balance. The other trucks remained at plaintiff’s premises, partially protected by a fence plaintiff erected to discourage vandals. The defendant countered with proof that plaintiff had not repaired the trucks promptly and satisfactorily.

At the close of the trial, the court found, based on the evidence it found to be credible, that plaintiff had substantially performed its obligations under the lease and that defendant was not justified in terminating the agreement. Further, the court held that the provision for liquidated damages was reasonable and represented a fair estimate of actual damages which would be difficult to ascertain precisely. "The parties, at the time the agreement was entered into, considered many factors affecting damages, namely: the uncertainty of the plaintiff’s ability to re-rent the said vehicles; the plaintiff’s investment in purchasing and reconditioning the vehicles to suit the defendant’s particular purpose; the number of man hours not utilized in the non-service of the vehicles in the event of a breach; the uncertainty of reselling the vehicles in question; the uncertainty of the plaintiff’s savings or expenditures for gasoline, oil or other service items, and the amount of fluctuating interest on the bank loan.” The court calculated that plaintiff would have been entitled to $177,355.20 in rent for the period remaining in the lease and, in accordance with the liquidated damages provision, awarded plaintiff half that amount, $88,677.60. The resulting judgment was affirmed by the Appellate Division, with two Justices dissenting. (51 AD2d 786.)

The primary issue before us is whether the "liquidated damages” provision is enforceable. Liquidated damages constitute the compensation which, the parties have agreed, should be paid in order to satisfy any loss or injury flowing from a breach of their contract. (Wirth & Hamid Fair Booking v Wirth, 265 NY 214, 223.) In effect, a liquidated damage provision is an estimate, made by the parties at the time they enter into their agreement, of the extent of the injury that would be sustained as a result of breach of the agreement. (5 Williston, Contracts [3d ed], § 776, p 668.) Parties to a contract have the right to agree to such clauses, provided that the clause is neither unconscionable nor contrary to public policy. (Mosler Safe Co. v Maiden Lane Safe Deposit Co., 199 NY 479, 485.) Provisions for liquidated damage have value in those situations where it would be difficult, if not actually impossible, to calculate the amount of actual damage. In such cases, the contracting parties may agree between themselves as to the amount of damages to be paid upon breach rather than leaving that amount to the calculation of a court or jury. (14 NY Jur, Damages, § 155, pp 4-5.)

On the other hand, liquidated damage provisions will not be enforced if it is against public policy to do so and public policy is firmly set against the imposition of penalties or forfeitures for which there is no statutory authority. (City of Rye v Public Serv. Mut. Ins. Co., 34 NY2d 470, 472-473.) It is plain that a provision which requires, in the event of contractual breach, the payment of a sum of money grossly disproportionate to the amount of actual damages provides for penalty and is unenforceable. (E.g., Equitable Lbr. Corp. v IPA Land Dev. Corp., 38 NY2d 516, 521-522; Wirth & Hamid Fair Booking v Wirth, 265 NY 214, 223, supra; Mosler Safe Co. v Maiden Lane Safe Deposit Co., 199 NY 479, 485, supra.) A liquidated damage provision has its basis in the principle of just compensation for loss. (Cf. Restatement, Contracts, § 339, and Comment thereon.) A clause which provides for an amount plainly disproportionate to real damage is not intended to provide fair compensation but to secure performance by the compulsion of the very disproportion. A promisor would be compelled, out of fear of economic devastation, to continue performance and his promisee, in the event of default, would reap a windfall well above actual harm sustained. (Ward v Hudson Riv. Bldg. Co., 125 NY 230, 234-235; 5 Williston, Contracts [3d ed], § 776, p 668.) As was stated eloquently long ago, to permit parties, in their unbridled discretion, to utilize penalties as damages, "would lead to the most terrible oppression in pecuniary dealings”. (Hoag v McGinnis, 22 Wend 163, 166; see, also, Matter of Associated Gen. Contrs., N. Y. State Ch. [Savin Bros.], 36 NY2d 957, 961-962 [dissenting opn].)

The rule is now well established. A contractual provision fixing damages in the event of breach will be sustained if the amount liquidated bears a reasonable proportion to the probable loss and the amount of actual loss is incapable or difficult of precise estimation. (City of Rye v Public Serv. Mut. Ins. Co., 34 NY2d 470, 473, supra; Wirth & Hamid Fair Booking v Wirth, 265 NY 214, 223, supra; Curtis v Van Bergh, 161 NY 47; Ward v Hudson Riv. Bldg. Co., 125 NY 230, supra; Restatement, Contracts, § 339.) If, however, the amount fixed is plainly or grossly disproportionate to the probable loss, the provision calls for a penalty and will not be enforced. (Equitable Lbr. Co. v IPA Land Dev. Corp., 38 NY2d 516, 521-522, supra; Seidlitz v Auerbach, 230 NY 167, 172-173; 14 NY Jur, Damages, § 155.) In interpreting a provision fixing damages, it is not material whether the parties themselves have chosen to call the provision one for "liquidated damages”, as in this case, or have styled it as a penalty. (E.g., Wirth & Hamid Fair Booking v Wirth, 265 NY 214, 225, supra; Ward v Hudson Riv. Bldg. Co., 125 NY 230, 234, supra.) Such an approach would put too much faith in form and too little in substance. Similarly, the agreement should be interpreted as of the date of its making and not as of the date of its breach. (E.g., Seidlitz v Auerbach, 230 NY 167, 172, supra.)

In applying these principles to the case before us, we conclude that the amount stipulated by the parties as damages bears a reasonable relation to the amount of probable actual harm and is not a penalty. Hence, the provision is enforceable and the order of the Appellate Division should be affirmed.

Looking forward from the date of the lease, the parties could reasonably conclude, as they did, that there might not be an actual market for the sale or re-rental of these specialized vehicles in the event of the lessee’s breach. To be sure, plaintiffs lost profit could readily be measured by the amount of the weekly rental fee. However, it was permissible for the parties, in advance, to agree that the re-rental or sale value of the vehicles would be 50% of the weekly rental. Since there was uncertainty as to whether the trucks could be re-rented or sold, the parties could reasonably set, as they did, the value of such mitigation at 50% of the amount the lessee was obligated to pay for rental of the trucks. This would take into consideration the fact that, after being used by the lessee, the vehicles would no longer be "shiny, new trucks”, but would be used, possibly battered, trucks, whose value would have declined appreciably. The parties also considered the fact that, although plaintiff, in the event of Puritan’s breach, might be spared repair and maintenance costs necessitated by Puritan’s use of the trucks, plaintiff would have to assume the cost of storing and maintaining trucks idled by Puritan’s refusal to use them. Further, it was by no means certain, at the time of the contract, that lessee would peacefully return the trucks to the lessor after lessee had breached the contract.

With particular reference to the dissent at the Appellate Division, it is true that the lessee might have exercised an option to purchase the trucks. However, lessee would not be purchasing 25 "shiny, new trucks” for a mere $2,500. Rather, lessee, after the passage of one year from the commencement of the term, could have purchased trucks that had been used for at least one year for the amount outstanding on the bank loan, in addition to the $2,500. Of course, the purchase price would be greater if the option were exercised early in the term rather than towards the end of the term since plaintiff would be making payments to the bank all the while. More fundamental, the existence of the option clause has absolutely no bearing on the validity of the discrete, liquidated damages provision. The lessee could have elected to purchase the trucks but elected not to do so. In fact, the lessee’s letter of termination made a point of the fact that the lessee did not want to purchase the trucks. The reality is that the lessee sought, by its wrongful termination of the lease, to evade all obligations to the plaintiff, whether for rent or for the agreed upon purchase price. Its effort to do so failed. That lessee could have made a better bargin for itself by purchasing the trucks for $48,134.17 pursuant to the option, instead of paying $92,341.79 in damages for wrongful breach of the lease is not availing to it now. Although the lessee might now wish, with the benefit of hindsight, that it had purchased the trucks rather than default on its lease obligations, the simple fact is that it did not do so.

We attach no significance to the fact that the liquidated damages clause appears on the preprinted form portion of the agreement. The agreement was fully negotiated and the provisions of the form, in many other respects, were amended. There is no indication of any disparity of bargaining power or of unconscionability. The provision for liquidated damages related reasonably to potential harm that was difficult to estimate and did not constitute a disguised penalty. We also find no merit in the claim of trial error advanced by Puritan.

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

Chief Judge Breitel and Judges Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur.

Order affirmed.

      . The text of article 16 of the lease, in pertinent part, reads as follows:
      "16. Upon termination of this agreement, * * * Lessor * * * shall be entitled to damages, herein liquidated for all purposes * * * as follows:
      "(a) The sum of all rents designated as 'Fixed Rental Charges’ which would have become due under the normal operation of this agreement from the date of the said termination * * * including any effective renewal period; less

        "(b) The re-rental value of said motor vehicles which is hereby agreed upon as fifty per cent (50%) of the sum of such 'Fixed Rental Charges’ as are set forth in subdivision '(a)’ of this article.
      "In arriving at said liquidated damages, the parties hereto have considered, among other factors, Lessor’s substantial * * * investment in purchasing or reconditioning for Lessee’s service the demised motor vehicles, the uncertainty of Lessor’s ability to re-enter the said vehicles, the costs to Lessor during any period the vehicles may remain idle until re-rented, or if sold, the uncertainty of the sales price and its possible attendant loss. The parties have also considered, among other factors, in so liquidating the said damages, Lessor’s saving in expenditures for gasoline, oil and other service items.”

      . According to the lease agreement, the amount of plaintiffs bank loan payments were not to vary and interest and amortization were to be constant.

      . This sum represents the $45,634.17 still owed by plaintiff on the bank loan, plus $2,500 ($100 for each of the 25 trucks).


source: Caselaw Access Project

author: Wachtler, J.

license: Public Domain

text:
    The People of the State of New York, Respondent, v David Gerald Hommel, Appellant.
    Argued January 14, 1977;
    decided February 24, 1977

      James T. Reynolds and Richard T. Haefeli, Smithtown, for appellant.

      Henry F. O’Brien, District Attorney (Charles M. Newell of counsel), Riverhead, for respondent.
   Wachtler, J.

The defendant was convicted, after a jury trial, of two counts of criminally negligent homicide (Penal Law, § 125.10), one count of operating a motor vehicle while impaired (Vehicle and Traffic Law, § 1192) and one count of passing a stop sign (Vehicle and Traffic Law, § 1172). The court sentenced him to an indeterminate term of imprisonment for a maximum of three years. He argues that the trial court erred in its charge to the jury and that the error was of such a prejudicial nature as to require a reversal.

In the early morning hours of July 20, 1972, the automobile being driven by the defendant was involved in a head-on collision with another vehicle on Route 25A in Suffolk County. The occupants of the other vehicle, 19-year-old Andrew Nemeth, Jr., and 15-year-old Candace Harkins, were killed. The defendant was indicted in connection with the accident.

At the trial, the People called an eyewitness to the accident who testified that he had seen defendant’s car traveling on North Country Road toward the intersection of Route 25A. This witness also testified that the defendant failed to stop at the intersection stop sign and proceeded eastbound in the westbound lane of Route 25A at approximately 45 to 50 miles per hour. The witness also testified that Hommel’s car was weaving back and forth across the roadway and that it was in the westbound lane at the moment of impact. He, as well as another witness, stated that the weather conditions were clear and dry and that the section of road was clearly visible.

The People also called as witnesses four police officers who spoke with the defendant shortly after the accident. All four testified that the defendant’s eyes were bloodshot and that they smelled alcohol on his breath.

The defendant took the stand in his own behalf. He denied being intoxicated at the time of the accident, testifying that he had finished work at approximately 7:00 p.m. on the evening of July 19, 1972 and that he had consumed one beer in a local tavern between 7:00 and 9:00 p.m. He then left the bar and proceeded homeward, but he felt tired and so he pulled off the road and went to sleep. When he awoke he proceeded along North Country Road toward the intersection of Route 25A. He admittedly failed to come to a complete stop at the stop sign and drove eastward on Route 25A. He thought he was in the eastbound lane when he saw the headlights of an oncoming car. He attempted to avoid the collision but was unable to do so.

On this appeal the defendant’s sole complaint concerns the trial court’s charge to the jury. He claims that reversible error was committed when the trial court, in its charge relating to criminal negligence, informed the jury that "[t]here have been decisions by our courts construing this section of the Penal Law [§ 15.05, subd (4), defining criminal negligence]. Let me read a few headnotes to you, as they appear in the book. In the case of People versus Haney, our Appellate Division held as follows in substance”. The trial court then proceeded to read two headnotes from that case and a headnote from a second case. These related primarily to pure statements of pertinent legal principles. The trial court then continued: "Let me read to you one further headnote. In the case of People against Buffington, again in 1967 our Appellate Division said: 'Evidence’—pertaining to that case, of course—'evidence of the defendant’s excessive speed and disregard of highway warning signs, and of the defendant’s crossing solid double pavement marking in no-passing zone, and driving on the left side of a highway in violation of law, was sufficient to support a finding in a prosecution for criminally negligent homicide, arising from a head-on collision, that the defendant acted with criminal negligence.’ ”

In this case the defendant was entitled to have the jury’s verdict based solely on the evidence adduced at this trial untainted by the inescapable influence which the trial court’s reference to the facts and holding of another case may have had (see Sheppard v Maxwell, 384 US 333, 351, 362).

The problem surrounding the reference to prior judicial opinions in a trial court’s charge to the jury is one that has plagued appellate courts for some time. While it may be proper in a charge to the jury for the trial court to quote from prior opinions where the quoted language artfully expresses general and well-recognized legal principles (see People v Breen, 181 NY 493; People v Minnaugh, 131 NY 563), such a practice is not to be countenanced where the effect might be to mislead the jury or unduly invade its province as the sole arbiter of questions of fact (see People v Rutigliano, 261 NY 103; People v Odell, 230 NY 481; People v Becker, 215 NY 126, mot for rearg den 215 NY 721).

The guilt or innocence of a defendant should be determined solely on the particular facts of the case being prosecuted. Hence, the trial court should not use the facts of reported cases as illustrations in his charge for a slight variance in the factual content of the cases might mislead the jury. While it is the right and duty of the trial court to charge the jury with respect to the applicable principles of law in a given case, this should in no way be construed as license to invade the province of the jury to pass upon the facts of the case. The jury must be left free to perform its function without the unnecessary interference of the trial court (see People v Mears, 251 Mich 359; State v Hester, 137 SC 145, 190).

In the instant case the potential impairment of the jury’s freedom to evaluate the testimony before it free from outside influences cannot be denied. In its charge the trial court made reference to a set of facts strikingly similar to those before the jury in this case and clearly stated that the Appellate Division had held that they were " 'sufficient to support a finding * * * that the defendant acted with criminal negligence.’ ” It cannot be gainsaid that because of this charge the jury might very well have felt compelled to reach a result in harmony with the conclusion apparently reached by the higher court in a previous case and that they may very well have been deprived of their freedom of action (see People v Ohanian, 245 NY 227, 230). In addition, we would but note that the excerpted language read to the jury was on its face misleading since it failed to adequately marshal all the facts present in the BuíRngton case and failed to indicate that the issue in that case was not whether the evidence was sufficient to sustain a conviction, but merely whether there was sufficient evidence to support an indictment.

Accordingly, the order of the Appellate Division should be reversed and a new trial granted.

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

Order reversed, etc.


author: Gabrielli, J.

text:
    In the Matter of Grimpel Associates, Respondent, v Peter F. Cohalan et al., Constituting the Town Board of the Town of Islip, Appellants.
    Argued January 11, 1977;
    decided February 22, 1977

      Francis G. Caldeira, Town Attorney (Edward S. Raskin of counsel), Islip, for appellants.

      Edward Flower and Lark J. Shlimbaum, Bay Shore, for respondent.
   Gabrielli, J.

On this appeal, we are asked to determine whether the rezoning of plaintiffs property from a business to residential category results in an unconstitutional exercise of the police power in contravention of the due process clauses of the Federal and State Constitutions (US Const, 14th Amdt, § 1; NY Const, art I, § 6).

In 1963, Pellwood Corporation, plaintiffs predecessor in title, whose principals are plaintiffs copartners, obtained the rezoning of a 25 acre parcel which it owned in the Town of Islip, from a "Residence AAA” district to a "Business II” district. Pellwood constructed a public street, known as Spartan Lane, which divided the property into an 8.2 acre parcel and the subject 16.2 acre parcel. In addition, Pellwood Corporation expended substantial funds in clearing, grading and bringing water to the property; and a large gasoline station was erected on the corner of Veterans Memorial Highway contiguous to the subject 16.2 acre parcel. There existed a residential area to the north of the parcel. In 1966 Pellwood commenced the construction of a shopping center on the 8.2 acre parcel. By 1973, the area had been developed with approximately 19 stores at a cost of $1,150,000. In late 1973 plaintiff entered into a lease with the Long Island Trust Company which provided for the construction by plaintiff of a bank building on the 16.2 acre parcel, but an application for a building permit was denied by the town.

Following a hearing in December, 1973, the town board unanimously adopted a resolution upon its own motion and changed the existing "Business II” classification of the 16.2 acre parcel to a "Residence AA” classification. Consequently, Pellwood (for which plaintiff was later substituted), commenced this declaratory judgment action. Special Term, following a nonjury trial, found that the residential classification imposed by the town was unreasonable and confiscatory, and the Appellate Division, by a divided court, affirmed the findings and determination of Special Term.

In order to establish that a zoning restriction amounts to an unconstitutional exercise of the police power as applied to particular real estate, the owner must demonstrate that the zoning restrictions deprived the owner of all reasonable use of the property (Matter of National Merritt v Weist, 41 NY2d 438, 445 French Investing Co. v City of New York, 39 NY2d 587, 596; Williams v Town of Oyster Bay, 32 NY2d 78, 81; Arverne Bay Constr. Co. v Thatcher, 278 NY 222, 226-227). In the context of such a constitutional challenge, the standards relating to area variances articulated in Matter of Fulling v Palumbo, (21 NY2d 30) are inapplicable (see Matter of National Merritt v Weist, supra, p 446).

In this case we are presented with affirmed findings of fact that the subject property was not suitable for residential use because the residential zoning classification would create an "inappropriate and unjustifiable island” surrounded by business operations and major vehicular thoroughfares. Plaintiff’s planning expert testified, and it was found below, that the subject property was located in an "interchange impact area” created by the proximity of three heavily trafficked highways, Veterans Memorial Highway, Motor Parkway and the Long Island Expressway; and that this condition contributed to the impracticality of residential use of the property. We have in the past recognized that traffic conditions may contribute to the unsuitability of property for residential developemnt (see Stevens v Town of Huntington, 20 NY2d 352, 356; Summers v City of Glen Cove, 17 NY2d 307, 308-309). Additionally, there was proof that the rezoning resulted in a 92% diminution in the value of the property. While not itself dispositive of the constitutional issue, proof of a drastic reduction in value tends to establish that the property is not reasonably suited for the uses prescribed by the zoning ordinance (see Stevens v Town of Huntington, supra, p 357; Levitt v Incorporated Vil. of Sands Point, 6 NY2d 269, 273; Matter of Wulfsohn v Burden, 241 NY 288, 302; 1 Anderson, NY Zoning Law and Practice, § 2.14). It should also be noted that plaintiff’s expert testified that the business use of the subject parcel would not have a deleterious effect upon the residential properties to the north because of a buffer zone created by foliage and a vertical separation of up to 30 feet between the residential area and the subject property.

It was not incumbent upon plaintiff to prove that its property was not suitable for various public or quasi-public uses permitted by the residential zoning classification such as church, school, college, public library, municipal building or municipal park. To confine private property to public uses alone amounts to an appropriation of property rights for the benefit of the public without compensation therefor. We recently indicated that "[t]he ultimate evil of a deprivation of property, or better, a frustration of property rights, under the guise of the exercise of the police power is that it forces the owner to assume the cost of providing a benefit to the public without recoupment” (French Investing Co. v City of New York, 39 NY2d 587, 596, supra; see, also, Lutheran Church in Amer. v City of New York, 35 NY2d 121, 130; Sax, Takings and the Police Power, 74 Yale LJ 36; 1 Rathkopf, Law of Zoning and Planning [4th ed], § 6.09, pp 6-30—6-33). We reject, therefore, the language in Matter of Forrest v Evershed (7 NY2d 256, 263) which suggests that proof that property is not suitable for public uses is required in a declaratory judgment action challenging the constitutionality of a zoning restriction (see, also, Wackerman v Town of Penfield, 47 AD2d 988).

Finally, we note that in this case there was no requirement that plaintiff exhaust any claimed administrative remedies since such procedure is not required where a property owner seeks to utilize the property in a manner absolutely prohibited by the zoning classification, and attacks the validity of the zoning ordinance itself as confiscatory (see Scarsdale Supply Co. v Village of Scarsdale, 8 NY2d 325, 330; Dowsey v Village of Kensington, 257 NY 221, 227-228; see, also, Old Farm Rd. v Town of New Castle, 26 NY2d 462, 465-466).

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

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

Order affirmed.


text:
    Edward McGowan, Appellant, v Peter Cohalan et al., Constituting the Town Board of the Township of Islip, Respondents.
    Argued January 11, 1977;
    decided February 22, 1977

      Edward Flower and Lark J. Shlimbaum, Bay Shore, for appellant.

      Francis G. Caldeira, Town Attorney (Edward S. Raskin of counsel), Islip, for respondents.
   Jasen, J.

Appellant challenges the constitutionality of the current zoning classification for 4.7 acres of unimproved land in the Town of Islip which he has owned, either directly or through wholly owned corporations, for over 20 years. When originally purchased, the property was zoned "Residential A”, a classification primarily structured for single-family residential development. In May, 1971, the property was rezoned, at appellant’s request, "Industrial I” to permit commercial development. A declaration of covenants and restrictions, which was filed by appellant in support of the zoning change, required appellant to maintain a six-foot high fence between his parcel and those of adjoining property owners, and to deed a strip of land to the county to accommodate potential widening of the adjacent street. Despite the change in the zoning, appellant never improved his property for industrial usage. In January, 1974, the town board, acting in response to community requests, reinstated the prior "Residential A” zoning classification. Appellant commenced an action for a judgment declaring the 1974 rezoning unconstitutional and for an injunction against its enforcement. After a trial, Special Term granted the relief requested. On appeal, the Appellate Division reversed and directed the entry of a judgment declaring the rezoning constitutional. (51 AD2d 972.) We would affirm the order of the Appellate Division.

The property involved is on the north side of Suffolk Avenue, situated between areas of industrial and residential development. Directly to the north of the parcel, the land is zoned and developed for single-family residences. The property to both the immediate east and west of appellant’s parcel is also zoned residential, but it has not, as yet, been developed. A railroad right of way is located to the south of Suffolk Avenue and runs parallel to the street. The land in the gap between the railroad and the street is, for the most part, developed for industrial and commercial uses. For example, an automobile junk yard is immediately opposite appellant’s property. However, this use is sanctioned by permit and the local zoning authorities have evidenced an intention to terminate the use by refusing to renew the necessary permit. Some industrial and commercial development has also been permitted to the north of Suffolk Avenue, yet neighboring northern property is residential in character.

Zoning classifications, like other legislative programs, are clothed with a presumption of constitutional legitimacy. (Dauernheim, Inc., v Town Bd. of Town of Hempstead, 33 NY2d 468, 473.) Consequently, the party challenging a particular classification bears a heavy burden of proof. As we observed in Dauernheim, Inc. v Town Bd. of Town of Hempstead (supra, at pp 473-474), "[w]hen a [zoning] regulation is attacked as confiscatory and unconstitutional, it must be shown that by no permissible interpretation can the regulation as written, or in this instance applied, be justified as a reasonable exercise of the police power.” The property owner must show more than that the current zoning classification has caused a significant diminution in value, or that a substantially higher value could be obtained if an alternative use is permitted. Rather, the proper test is whether the owner can presently receive a reasonable return on his property. To succeed with a constitutional challenge, the owner must "establish that no reasonable return may be had from any permitted use.” (Williams v Town of Oyster Bay, 32 NY2d 78, 82; accord Matter of Forrest v Evershed, 7 NY2d 256, 262.) It should be noted, however, that the owner need not demonstrate that his property would be unsuitable for public or quasi-public uses. (See Matter of Grimpel Assoc. v Cohalan, 41 NY2d 431, 433.) The same standard applies whether it is a use or an area restriction that is constitutionally challenged. Unless the challenger demonstrates "beyond a reasonable doubt that the property will not yield a reasonable return under any of the uses permitted by the zoning ordinance”, he fails to satisfy his burden of proof. (Matter of National Merritt v Weist, 41 NY2d 438, 445.)

We agree with the Appellate Division that this appellant failed to prove that the application of the ordinance to his premises is arbitrary and unreasonable. The testimony indicated that, despite its location, the land has economic value as a site for residential development. Gerard Snover, the appellant’s appraiser, stated that the market would provide a buyer even if the property could only be developed for residential use. While contending that the rezoning would lead to a 79% decline from its industrial zoning value, he conceded that the parcel was presently marketable at a per acre price of $7,500. An even higher value was predicated by the town’s expert witness.

From the surrounding circumstances, the zoning authority could reasonably decide to restrict the property to residential use. In fact, the rezoning reflected the reasonable goal of establishing an adequate separation between the areas of residential and industrial use. Since the land on three sides of appellant’s property was zoned residential, industrial zoning for his land could well be viewed as disruptive of the pattern of development. The record indicates that the master plan for the community was designed to limit the area north of Suffolk Avenue to residential development. The proposed widening of Suffolk Avenue would provide an even broader buffer between industrial and residential uses, with appellant’s land lying on the residential side. Moreover, the goal of the town is to limit, if not eventually remove, many of the industrial uses from both sides of Suffolk Avenue and thereby make the area even more amenable to residential development. Thus, the rezoning of appellant’s property to a "Residential A” classification was a reasonable step in the town’s over-all zoning program. The fact that the town had previously accepted industrial zoning for the property does not estop it from reverting to its earlier designation. Absent constitutional or legislative infirmity, a municipality may experiment with new zoning classifications and, if the experiment proves unsatisfactory, may make appropriate alterations. Indeed, the reinstitution of the prior zoning did not inflict any unjust economic loss upon appellant. Rather, the diminution in property value reflects the economic windfall that appellant received when the property was first approved for industrial development.

In any case, the record indicates that residential zoning would permit appellant to make reasonable use of his property and to receive a reasonable return. As in Williams v Town of Oyster Bay (32 NY2d 78, supra), "it is not enough for the plaintiff to show that 'he would realize a greater return’ under a less restricted use.” (32 NY2d, at p 82, quoting Matter of Crossroads Recreation v Broz, 4 NY2d 39, 46.) Appellant failed to prove beyond a reasonable doubt that the current zoning classification offers absolutely no reasonable use for his property and, hence, his constitutional challenge must fail. No doubt appellant has sustained some financial loss, but he had not been deprived of any use of the property to which it is reasonably adapted, the sort of hardship necessary to establish constitutional infirmity. (E.g., Salamar Bldrs. Corp. v Tuttle, 29 NY2d 221, 228.)

Finally, both courts below properly rejected appellant’s contention that he possessed a vested right to the continuation of an industrial zoning classification. The simple application of a zoning classification to property does not create a right to forever be similarly so classified. "Changed or changing conditions call for changed plans, and persons who own property in a particular zone or use district enjoy no eternally vested right to that classification if the public interest demands otherwise.” (Rodgers v Village of Tarrytown, 302 NY 115, 121.) Absent a showing of arbitrariness, the determination of public interest is properly a matter for local zoning officials. Nor does a vested right flow from the filing of a declaration of covenants and restrictions. Appellant has not performed any of the duties imposed by the declaration and, in fact, the town has authorized its attorney to take the necessary steps to obtain rescission of the covenants and restrictions. Significantly, appellant has not made any improvements in purported reliance on the prior industrial zoning. In short, appellant has failed to demonstrate entitlement to a declaration of unconstitutionality.

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

Chief Judge Breitel and Judges Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur.

Order affirmed, with costs.

       At one time there was a residence on the property but appellant had it demolished when the lessee moved out and a new tenant could not be found.


text:
    In the Matter of National Merritt, Inc., Appellant, v Robert Weist et al., Constituting the Zoning Board of Appeals of the Village of Briarcliff Manor, Respondents.
    Submitted January 4, 1977;
    decided February 22, 1977

      Donald S. Snider and Gerald M. Levine, New York City, for appellant.

      Gordon R. Brown, Village Attorney (Arthur J. Selkin of counsel), Pleasantville, for respondents.

      Laurance Rockefeller and Nicholas A. Robinson, New York City, for Federated Conservationists of Westchester County, Inc., amicus curiae.

   Gabrielli, J.

On this appeal, petitioner challenges respondent’s denial of its request for an area variance with respect to approximately 19% acres of land in the Village of Briarcliif Manor which petitioner desires to develop as a large shopping center. In the alternative, petitioner argues that the floor area and building length restrictions of the zoning ordinance are unconstitutional as applied to the property in question.

The subject property is located on the easterly side of South Highland Avenue (State Route 9) in the Village of Briarcliff Manor; and is a portion of an original larger parcel of 34 acres, 2 Vi acres of which have been sold by petitioner and are now the site of a building occupied by the New York Telephone Company and the Brooklyn Savings Bank. Twelve of the original 34 acres are still owned by petitioner and are residentially zoned, while the subject 19% acre parcel is zoned "General Business B-2”. Under this zoning category, the most liberal in the village ordinance, residential commercial and light industrial uses are permitted. The variety of permissible commercial uses includes, inter alia, professional or business office, bank, restaurant, motion picture theatre, gasoline station, motor vehicle salesroom, laundry and retail establishment. However, in accordance with the village’s policy that retailing services be limited "primarily for the convenience of the inhabitants of the Village and the immediate locality”, restrictions are placed upon the magnitude of the retail development of the property. Under these restrictions, the floor area of an individual retail establishment used for merchandising or personal services is limited to 15,000 square feet and the length of an individual structure may not exceed 180 feet. Petitioner sought a variance permitting it to erect a one-story commercial structure containing a floor area of 180,500 square feet, the major portion of which would be divided into three large retail stores with floor areas of 30,000, 38,900 and 70,000 square feet respectively. The over-all length of the proposed structure would be 965 feet. As is evident, the dimensions of the proposed structure greatly exceed those fixed by the ordinance.

Petitioner urges, and it is not disputed, that the topography of the land creates a severe hardship in the development of the subject property for shopping center purposes. The parcel contains numerous rock outcroppings and sharp inclines up to 70 feet above the grade of Route 9 and the course of Sparta Brook, a natural stream intersecting the property. Petitioner thus maintains that a small scale "neighborhood” shopping center constructed in conformity with the zoning restrictions would not yield a reasonable return on the owner’s investment due to the exorbitant cost of site development, requiring a vast leveling operation at a projected cost of nearly three million dollars. The zoning board denied the variance on the grounds that the establishment of a large scale regional shopping center would (1) be harmful to the character of the surrounding area which consisted of residential and residentially zoned properties, (2) result in a hazardous traffic condition on Route 9, (3) create flooding and drainage problems for the village and the surrounding area and (4) violate the village wetlands ordinance which prohibits the alteration of natural watercourses such as Sparta Brook. Additionally, respondents also reason that the neighboring, more commercially developed Villages of Tarrytown and Ossining both possess regional shopping centers and thus both Briarcliff Manor and the surrounding environs have no need for the development proposed by petitioner. Special Term overturned the board’s decision but the Appellate Division reversed and reinstated the denial of the variance.

Prefatorily, we point out that since the variance sought in this case does not involve a use prohibited by the village zoning ordinance and does not seek a change in the "essential use of the land”, it should be characterized as an area variance (see Matter of Overhill Bldg. Co. v Delany, 28 NY2d 449, 453; Matter of Wilcox v Zoning Bd. of Appeals of City of Yonkers, 17 NY2d 249, 254; Matter of Village of Bronxville v Francis, 1 AD2d 236, affd 1 NY2d 839). As we have previously noted, the distinction is an important one since, in the usual case, a use variance will have a greater impact on the community than an area variance which does not involve a use prohibited by the ordinance (see Matter of Wilcox v Zoning Bd. of Appeals of City of Yonkers, supra, p 254; Matter of Hoffman v Harris, 17 NY2d 138, 144). However, the magnitude of the desired area variance, while within the confines of a permitted use, is significant since the greater the variance in area restrictions the more severe the likely impact upon the community. In the instant case, for example, petitioner seeks to utilize the property for a regional shopping center on a far larger scale than that permitted by the ordinance which envisions the use of the property for neighborhood retail stores serving only the immediate locality.

Having concluded that this case concerns an application for an area variance, we look to the standards articulated in Matter of Fulling v Palumbo (21 NY2d 30) and cases decided after Fulling to determine whether the variance was properly denied by the zoning board of appeals. In Matter of Fulling v Palumbo (supra, p 33) this court formulated the rule that "where the property owner will suffer significant economic injury by the application of an area standard ordinance, that standard can be justified only by a showing that the public health, safety and welfare will be served by upholding the application of the standard and denying the variance.” The owner must, therefore, demonstrate that the specific use permitted by the ordinance, for which he desires to utilize the property, will not yield a reasonable return if the area standard restrictions are imposed. However, if there is a legitimate purpose for the ordinance and it is reasonably related to the public health, safety and welfare of the community, financial loss is insufficient to compel the granting of the variance (see Matter of Overhill Bldg. Co. v Delany, 28 NY2d 449, 454, supra).

Cases following Fulling have modified its broad holding and have held that the manner in which the financial hardship arises is a relevant factor which may be considered by the board. If the hardship may be deemed to be a self-created or self-imposed one then a showing of financial hardship itself does not entitle the owner to a variance. On the other hand, the fact that the hardship is self-created does not foreclose board approval of an area variance (see Conley v Town of Brookhaven Zoning Bd. of Appeals, 40 NY2d 309, 315; see, also, Matter of Overhill Bldg. Co. v Delany, supra, pp 454-457; Matter of 113 Hillside Ave. Corp. v Zaino, 27 NY2d 258, 261-263; Contino v Incorporated Vil. of Hempstead, 27 NY2d 701, revg on dissenting opn at App Div 33 AD2d 1043; Comment, Impact of Fulling on NY Zoning Law, 29 Rutgers L Rev 172, 182-184; 2 Anderson, NY Zoning Law and Practice [2d ed], § 18.43, pp 62-63; 2 Rathkopf, Law of Zoning and Planning [3d ed], pp 48-17-48-20). Thus, we have recently stated that "[financial hardship then is one factor that may be considered, but, by itself, is not determinative” (Conley v Town of Brook-haven Zoning Bd. of Appeals, supra, p 315). To this extent then, Fulling is distinguishable from the aforecited cases and the instant case since the petitioner in Fulling purchased the property before the zoning change rendered his parcel nonconforming and many of the surrounding lots were already substandard (Matter of Fulling v Palumbo, supra, pp 34, 35-36; see, also, Rowe St. Assoc. v Town of Oyster Bay, 34 AD2d 987, 988, affd 27 NY2d 973).

Once proof of significant economic injury is adduced the burden of going forward with proof that the restriction is reasonably related to a legitimate exercise of the zoning power is upon the municipality (Matter of Fulling v Palumbo, supra, pp 33-35; 2 Anderson, op. cit., § 18.40, p 55). If, however, the legitimate purpose of the restrictions is established, the burden of demonstrating that the area standard restrictions are unrelated to the public health, safety and welfare and will not adversely affect the surrounding community remains upon the applicant (2 Anderson, op. cit., § 18.43, p 59). Obviously, the quantum of proof necessary to satisfy the above burdens varies with the magnitude of the variance sought. Where the change is slight, the more difficult it may be for the municipality to sustain its initial burden of establishing that the restriction is reasonably related to valid governmental interests. Conversely, where the change sought is great, the more difficult it will be for the applicant to demonstrate that the variance will not have a detrimental impact upon the community. Through this approach, the competing interests of the municipality and the property owner may be resolved. On judicial review, following an adversary hearing, at which both sides present evidence, the issue before the court is whether the action of the zoning board is founded upon substantial evidence (see Conley v Town of Brookhaven Zoning Bd. of Appeals, 40 NY2d 309, 314, supra; 2 Rathkopf, op. cit, pp 43-6-43-9; cf. Matter of Colton v Berman, 21 NY2d 322, 329; CPLR 7803, subd 4).

Turning to the facts of the instant case, we conclude that petitioner’s request for a variance was properly denied. Petitioner, it is true, adduced proof that the development of the property as a shopping center would entail enormous financial expenditure which, if the resulting development were to yield a reasonable return, could only be justified if it were relieved of the zoning restrictions. This would enable the shopping center to contain several large retail stores leased to so-called "anchor tenants” which would attract both a large volume of business and also smaller commercial tenants. However, when petitioner, a sophisticated developer of commercial properties, purchased the entire 34 acre parcel, it was aware of the difficulties attendant upon development of the subject 19% acre parcel as a shopping center, and is certainly chargeable with knowledge of the interdictions of the zoning ordinance which limited such development. Thus, the financial injury incurred in developing the property as a shopping center does not in itself mandate relief from the floor area and building length restrictions.

The village produced proof that the variance would have an adverse impact upon (1) the residential character of the area, (2) the traffic congestion along the portion of Route 9 traversing Briarcliff Manor, (3) the area flood and drainage conditions and (4) the development of regional shopping areas. Petitioner’s attempts to rebut this evidence were insufficient. It is true that a portion of the subject parcel abutted State Route 9, along which commercial development existed in neighboring towns, but the remainder of the parcel was adjacent to residential property, including 12 acres owned by petitioner which was zoned for residential use. While conditions beyond the boundaries of Briarcliff Manor may have changed, the village itself remained primarily a residential, semirural community, and the portion of Route 9 traversing the village was found to be relatively uncongested. It was further shown that the addition of a large regional shopping center would result in the creation of a traffic hazard on South Highland Avenue. The steep slope of Route 9 near the subject parcel, the proximity of a large shopping center in the adjacent Village of Ossining and the insufficiency in the number of parking spaces in the proposed center were found by the board to be the contributing factors to the resulting traffic hazard and these findings are not challenged by petitioner. Matter of Stevens v Town of Huntington (20 NY2d 352, 356), relied upon by Special Term, is distinguishable because that case involved a situation where the application of the zoning ordinance was alleged to deprive the owner of all reasonable use of his property and it was held that traffic congestion could not be interposed as a rationale supporting virtual confiscation of the property. In the case of an area variance application, traffic problems engendered by the requested variance are a proper consideration (see Matter of Overhill Bldg. Co. v Delany, 28 NY2d 449, 457, supra).

Considerable evidence, also unrebutted, was introduced to demonstrate that the leveling of the property and its conversion into an area almost completely covered by structures and asphalt pavement would result in severe flooding and drainage problems for Briarcliff Manor and for the adjacent Village of Ossining. Both the United States Department of Agriculture and the Westchester County Soil and Conservation Service advised the parties that petitioner’s plans did not adequately provide for the control of storm water and erosion. It should be noted that the board also relied upon the negative regional impact of the proposed shopping center. The record reveals that the neighboring municipalities of Tarrytown and Ossining already possessed regional shopping centers, and county and regional planners have advocated the clustering of retail shopping areas and the strengthening of existing areas rather than their random proliferation. These are proper considerations and serve to insure that property in a community will be used efficiently in light of both local and regional needs (see Berenson v Town of New Castle, 38 NY2d 102, 109). The above-described proof was sufficient to sustain a denial of the variance despite the economic injury entailed in the development of the property as a shopping center.

Having failed to demonstrate that it is entitled to an area variance, petitioner, in order to succeed, must establish that the zoning ordinance as applied amounts to an unconstitutional exercise of the police power because petitioner is deprived of all reasonable use of his property (see Matter of Grimpel Assoc. v Cohalan, 41 NY2d 431; French Investing Co. v City of New York, 39 NY2d 587, 596, app dsmd 429 US 990; 1 Rathkopf, Law of Zoning and Planning [4th ed], § 6.04, pp 6-9-6-13). At the outset, it should be emphasized that when we deal with a challenge to the constitutionality of an ordinance as applied to a particular piece of property, the burden is entirely upon the challenger to demonstrate beyond a reasonable doubt that the property will not yield a reasonable return under any of the uses permitted by the zoning ordinance (1 Anderson, NY Zoning Law and Practice [2d ed], § 2.09, pp 48-52). Thus, a constitutional challenge differs from a review of the denial of an area variance since in the latter case we treat only with the economic impact upon the owner of an area restriction involving a single use actually permitted by the ordinance while in the former case the owner must show that each and every use permitted by the ordinance will fail to yield a reasonable return on the property (see Williams v Town of Oyster Bay, 32 NY2d 78, 81; Matter of Overhill Bldg. Co. v Delany, supra, p 457; Matter of Crossroads Recreation v Broz, 4 NY2d 39, 46; Arverne Bay Constr. Co. v Thatcher, 278 NY 222, 226-227). In the context of constitutional challenges, the Fulling standards relating to area variances have no relevance (see 1 Anderson, op. cit., § 2.09, pp 51-52; Comment, 29 Rutgers L Rev, pp 180-181).

An examination of the record in this case reveals that petitioner’s experts all stated that they did not consider the economic feasibility of developing the subject property in any manner other than petitioner’s own plan for a shopping center or the three plans formulated by the town planner. In short, there was no "dollars and cents” proof that the property was not suitable for residential, industrial or other commercial uses permitted in the General Business B-2 zoning category (see Matter of Crossroads Recreation v Broz, supra). Thus, petitioner has not sustained its burden of proof that the application of the zoning restrictions in this case precludes it from obtaining a reasonable return on its property and amounts to confiscation thereof.

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

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

Order affirmed.

      . This figure is based on the required number of off-street parking units.

      . It is not necessary, in sustaining the board’s action, either to rely or pass upon the validity of the village wetlands ordinance and, in any event, this is not a proper proceeding in which to consider the validity of such an ordinance (see Matter of Overhill Bldg. Co. v Delany, supra, p 458).


text:
    Walter Harris, Respondent, v Village of East Hills, Appellant, and County of Nassau, Respondent, et al., Defendants.
    Argued January 10, 1977;
    decided February 17, 1977

      Martin S. Rothman, New York City, for appellant.

      Thomas R. Newman and Charles Kramer, New York City, for Walter Harris, respondent.

      James M. Catterson, Jr., County Attorney (William S. Norden of counsel), Mineola, for County of Nassau, respondent.
   Gabrielli, J.

In the late afternoon of March 4, 1971, Walter Harris was driving his automobile along Locust Lane in the Village of East Hills. He had left his job in order to pick up some dinner for himself and his coworkers. It was a windy, rainy day, and as he proceeded along the road a large limb from a silver maple tree came crashing down on the top of his car, caving in the roof which struck him on the head and neck. As a consequence, he was rendered a quadriplegic and will require medical care for the rest of his life.

Although Locust Lane was a county road, the maple tree was not on the county right of way but rather stood on village owned property between the road and the private property of Benjamin and Lillian Kassen. Its limbs extended across the width of the road and inspection subsequent to the accident revealed advanced disease and decay which had rotted out much of the center of the tree and the fallen limb.

The plaintiff commenced this action against the County of Nassau, the Town of North Hempstead, the Village of East Hills, and the Kassens, alleging negligence in failing to maintain, inspect and repair the tree, and in allowing a diseased and unhealthy tree to remain on a strip of land adjacent to a public roadway. After a trial on the issue of liability only, the jury returned a verdict against the village and otherwise in favor of all other defendants. The village appealed, claiming the evidence was insufficient to support the verdict, or in the alternative, that the county should also have been found liable, and also asserting that the trial court committed prejudicial error which warranted a new trial. The Appellate Division affirmed, with two Justices dissenting, and granted leave to appeal to this court on the following certified question: "Was the order of this court, dated December 31, 1975, properly made?” We affirm the order of the Appellate Division.

On this appeal, the appellant village asserts that it had no notice of any defective or decayed condition in the tree; that the county breached its duty to maintain its road in a reasonably safe condition; that the trial court committed reversible error when it failed to charge the subsequent repair doctrine at the end of the trial and that a new trial is warranted because the jury viewed a piece of rotten tree not properly before the court.

The village had a clear and nondelegable duty to maintain and inspect trees on village property which bordered county roads. The tree in question was under the jurisdiction of the village, being situated on village property, and the village had a statutory duty to maintain and care for trees, whether on county or village property, which adjoined county roads (Nassau County Administrative Code, § 12-4.2; Village Law, § 84). Although the village had this duty, no liability attaches unless there is actual or constructive notice of the defective condition. There was no evidence that the village had actual notice and it contends that the evidence is insufficient to prove any constructive notice. However, a review of the record establishes that reasonable inspection would have revealed the dangerous condition of the tree. The evidence further revealed that the tree contained a cavity which was observable on ordinary inspection. The plaintiff’s experts testified, and this testimony was uncontradicted, that such a cavity would alert a normal inspector to make further tests, for example, such as tapping the tree to determine the extent of decay. If such tests had been made in this case, they would have revealed the almost total interior disintegration of the tree limb which fell on the plaintiff. Inspection would have further revealed that almost the entire heartwood, from which the tree obtains its strength, had rotted away and that the tree represented a serious risk to passersby. In addition the observable conditions of rot had existed, according to the experts, for at least four or five years prior to the accident. The village, however, admittedly failed to make any inspection whatsoever of this párticular tree. Indeed, the village clerk-treasurer testified that the village had no program of tree inspection and that it would examine trees only upon written request from a homeowner. The long-continuing condition of this tree and the absolute failure of. the village to make any inspection whatsoever supply sufficient facts for the jury to have found the village liable, and we may not disturb that finding.

As the village has a statutory duty to maintain and inspect the trees on village property which border county roads, the county has a collateral duty to maintain its roads in a reasonably safe condition, and this duty extends to trees which overhang the road (Edgett v State of New York, 7 AD2d 570; Doulin v State of New York, 251 App Div 767, affd 277 NY 558). While the county has this duty, no liability attaches, of course, unless there is actual or constructive notice to it of the dangerous condition (Rinaldi v State of New York, 49 AD2d 361; Berkshire Mut. Fire Ins. Co. v State of New York, 9 AD2d 555). In this respect, the basis for liability of the county parallels that of the village although the duties differ. Unlike the village, the county maintains regular supervision of their roads through scheduled police patrols. Richard Reinhardt, the Nassau County Police Officer assigned to Locust Lane, testified that he regularly patrolled the area and on such patrols, he observed no objective signs of decay on the tree. The evidence produced at trial indicated that the tree was not in such a patently defective condition as would or should have put a patrolman inspecting the roadway on notice of the potentially dangerous interior condition of the tree. The exterior sign of decay, a cavity in the trunk of the tree, was on the backside of the tree which faced away from the road. The county had no actual notice of the dangerous condition and on the evidence adduced in this case, the jury could have concluded, as they did, that there was no constructive notice to the county and thus no liability.

The appellant cites Diamond v State of New York (53 AD2d 958) for the proposition that the county breached its duty of inspection. In Diamond an employee of the State Highway Department responsible for inspecting trees on the State’s right of way personally inspected a faulty tree on foot. "Under the circumstances, when the employee made such a particular inspection of the tree rather than a mere observation from the highway, his failure to observe the objective signs of disease cannot be excused because he neglected to walk around the tree. The peculiar facts in this case establish an objective sign of disease readily discoverable from the reasonable inspection procedure used for this tree” (Diamond v State of New York, supra, p 959; emphasis added). Diamond is distinguishable because of the extra procedures employed by the inspector. If Patrolman Reinhardt had testified that he had gotten out of his car and inspected the tree then Diamond would be applicable. Under the facts in this case we cannot say that the procedure of inspecting the roadway from the patrol car was unreasonable as a matter of law. The jury found that the county had not breached its duty and that determination must stand.

During the course of the trial, plaintiff introduced evidence that two months following the accident the village had the remaining parts of the tree cut down and removed. At the time this evidence was introduced the court instructed the jury that "any testimony relative to the post-accident actions by the defendant Village of East Hills relative to what the Village did following the accident was received on the issue of control of the tree in question and not as to whether or not said defendant Village was negligent at the' time of the occurrence.” At the close of the trial the village requested the court to reinstruct the jury on the subsequent repair doctrine and the court declined. We conclude that this is a matter within the discretion of the Trial Judge, the exercise of which we will not here disturb.

During the examination of County Patrolman Reinhardt, a piece of tree limb was exposed to the view of the jury while it was being marked for identification. The item was subsequently ruled inadmissible because there was no identifying mark which showed it was part of the same tree involved in the accident. The village moved for a mistrial on the ground that exposure of the limb to the jury was highly prejudicial. The motion was denied and the jury was instructed to disregard the limb. A motion for a mistrial is directed to the sound discretion of the trial court (Hoe & Co. v Crown Cork & Seal Co., 22 AD2d 861, affd 16 NY2d 574) and given the corrective instruction, we cannot conclude that there was abuse of such discretion.

The other contentions of the appellant raised in some 14 points and 33 subpoints have been duly considered by the court and found to be without merit.

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

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

Order affirmed, etc.

       Section 12-4.2 of the Nassau County Administrative Code provides in pertinent part: "a. Except in cities and in villages of the first and second class all trees, hedges and shrubbery between the property lines on county roads as defined in the title * * * shall be under the jurisdiction of the [county] department of public works.” East Hills is a first class village. Section 84 of the Village Law, in effect at the time of this occurrence, provided that "The street commissioner in villages of the first and second class, under the direction and supervision of the board of trustees has supervision and charge of the shade trees in the streets and highways of such villages, including state highways and county roads therein”.


author: Jones, J.

text:
    The People of the State of New York, Respondent, v Keith South, Appellant.
    Argued February 14, 1977;
    decided March 29, 1977

      Appellant pro se.

      Pierce H. Russell, District Attorney (Kevin A. Moss of counsel), Troy, for respondent.

       Name used herein is fictitious for purposes of publication.

   Jones, J.

We hold that because the verdict in this case, tried in Town Court before a Justice sitting without a jury, was not rendered until 58 days after the close of the trial, the adjudication as a youthful offender must be reversed.

Defendant was charged with assault in the third degree and after trial was found guilty, sentenced as a youthful offender and given a conditional discharge. He now contends that because the Town Justice before whom he was tried, at the close of the case, reserved decision and adjourned the case, sine die, the jurisdiction of the court was thereon terminated. If this were so the subsequent verdict of guilty, the adjudication as a youthful offender and the associated sentence would be nullities. On appeal County Court rejected defendant’s contentions and the case is now before us on leave granted by one of the Judges of our court.

Although it is not entirely free from doubt, we are satisfied on the basis of the record before us that, as County Court assumed, due and timely protest was registered to the failure of the trial court at the close of the trial to render a verdict then or to adjourn the case to a day certain. Proceeding on this assumption we address the contentions advanced by defendant.

We reject the three challenges raised to the continuing jurisdiction of the court. In the first place, the mandate of section 1304 of the Uniform Justice Court Act (UJCA)—that in nonjury trials judgment must be rendered within 30 days from the time the case is submitted unless further time is given by consent of the parties—applies to civil, not criminal, cases. Second, defendant would attach controlling significance to the failure of the Legislature to carry forward into the Criminal Procedure Law the express provision of subdivision 3 of section 702-a of the Code of Criminal Procedure. That section, providing in part, "If, pending final disposition of the case, the magistrate shall happen to adjourn without day, the court shall nonetheless continue”, had been added to the code in 1953 to offset judicial decisions which had held that if a Court of Special Sessions failed to declare a specific adjournment it lost jurisdiction and its authority to render a verdict. (Cf. People v Jacobs, 2 Misc 2d 369.) Nothing suggests that with the adoption of the Criminal Procedure Law the Legislature intended to re-establish the pre-subdivision 3 of section 702-a jurisdiction limitation. Indeed the revised format of the Criminal Procedure Law with its co-ordinated provisions with respect to all lower criminal courts (of which the Town Court is one [CPL 10.10, subd 3, par (d)]) "establishes for each town a genuine and continuing 'town court’ ”. (Denzer, Practice Commentary, McKinney’s Cons Laws of NY, Book 11 A, CPL 10.10, p 37; cf. UJCA, § 212; Fifth Interim Report of State of New York Temporary Commission on Revision of the Penal Code, Feb. 1, 1966, p 17.)

Defendant’s third jurisdictional assault is based on CPL 350.10 (subd 3, par [d]). Following on the heels of prescriptions as to the procedure to be followed in the conduct of a nonjury trial (as to which the Code of Criminal Procedure and other general statutes had been silent), paragraph (d) now provides: "The court must then consider the case and render a verdict.” We do not find in this nonexplicit provision a predicate for terminating the jurisdiction of the Town Court on the failure of the Town Justice to render a verdict immediately at the close of trial or within any specified time subsequent thereto.

Although we conclude, then, that there was no lack of jurisdiction or authority to render a later verdict, our inquiry does not end there. While CPL 350.10 (subd 3, par [d]) may not in our view be held to work an exhaustion of jurisdiction, it does lay down a statutory mandate as to the rendering of verdicts in nonjury trials. Not unlike a jury which is expected to return its verdict within a reasonable time under CPL article 310 (the provisions of which article are made applicable to local criminal courts, CPL 360.55), so it is under CPL 350.10 (subd 3, par [d]) with the Justice in a nonjury trial. His verdict, too, must be rendered within a reasonable time. What will be "reasonable” must, of course, turn largely on the circumstances of the individual case. There will come a point, however, beyond which delay becomes unreasonable as a matter of law.

In the present submission to us we find no sufficient explanation or warrant for the long delay from the close of the four-hour trial during the evening of October 2, 1973 to the following November 29 when the verdict of guilty was rendered. Defendant consented to no delay. No theory of justification is advanced by the People. The underlying event involved no more than a brief though apparently vigorous fight between two high school students in the corridor of the school building in which neither participant was. seriously injured. No complicated issues of fact were presented; no evidentiary questions remained to be resolved; there were no contested propositions of law; no posttrial submissions were sought or offered. Indeed the Town Justice dispensed with summations. It is true that the Trial Justice did direct that the transcript be forwarded to him within 30 days, but there is no showing why it was necessary or desirable to have recourse to any transcript, why the 150-page transcript, if desired, could not have been prepared well short of the full 30 days, or why yet another 30 days were thereafter required to reach a verdict. The Town Justice is not required or expected to write a decision or to make findings of fact or conclusions of law. He is required merely to render a verdict of "guilty” or "not guilty”.

As former Mr. Justice Fred J. Munder wrote in People v Kraemer (14 Misc 2d 42, 45) with respect to former section 702-a, "it seems highly improbable to me that the Legislature intended to give carte blanche to magistrates to withhold decision in any case for as long as they desire. It seems to me that such a rule has greater evil potential and can do more harm to the administration of justice than the old rule that such courts may not reserve decision but must render it forthwith.” Although we base our decision in this case on statutory rather than constitutional grounds, we note that the salutary considerations which undergird a defendant’s right to speedy trial extend in part to his right to a prompt verdict while recollection of the evidence is fresh, and argue strongly against dangling delay.

It is our conclusion then, as a matter of law, that the delay of 58 days was unreasonable in this case. (Cf. People v O’Brien, 86 Misc 2d 139 [conviction of disorderly conduct in Village Court set aside where verdict by Village Justice was returned 35 days after the conclusion of the trial].)

Accordingly, the order of the County Court should be reversed, the youthful offender adjudication vacated and the information dismissed.

Chief Judge Breitel and Judges Jasen, Gabrielli, Wachtler, Fuchsberg and Cooke concur.

Order reversed, etc.