author: Bellacosa, J.

text:
    [651 NE2d 1278, 628 NYS2d 259]
    Central Trust Company, Now Known as Manufacturers and Traders Trust Company, Respondent, v Ronald L. Dann, Appellant.
    Argued May 3, 1995;
    decided June 13, 1995

      POINTS OF COUNSEL

      Christopher J. Thomas, Corning, for appellant.

      Woods, Oviatt, Gilman, Sturman & Clarke, Rochester (Kelly A. Nagle of counsel), for respondent.
   OPINION OF THE COURT

Bellacosa, J.

Plaintiff, a junior mortgagee, pursued surplus moneys resulting from a senior mortgagee’s foreclosure proceedings and sale. The primary issue is whether that constitutes a foreclosure action, triggering the strictures of RPAPL 1301 (3) and, consequently, precluding the junior mortgagee from subsequently suing a mortgagor for the balance on a loan note, unless leave of the court is obtained. A parallel issue is whether the senior mortgagee’s foreclosure action itself interposes the strictures of RPAPL 1301 (3) against subordinate lienholders, requiring them, in any event, to obtain a court’s permission before commencing any legal action.

We hold that plaintiff’s application for the surplus moneys does not constitute an independent foreclosure "action” within the meaning and operation of RPAPL 1301 (3) and that, therefore, plaintiff did not need court permission to subsequently sue defendant Dann. We also conclude that RPAPL 1301 (3) is debt specific and mortgagee specific. Consequently, the senior mortgagee’s foreclosure action did not require the junior mortgagee plaintiff to seek the court’s permission before suing defendant mortgagor on its separate debt. Thus, we affirm the order of the Appellate Division.

In February 1989, defendant Dann borrowed money from plaintiff Central Trust Co., now known as Manufacturers and Traders Trust Co. (hereinafter MTT). Dann secured the loan with a mortgage on his real property located in Steuben County, New York. The MTT mortgage was subordinate to a first mortgage held by Monroe Savings Bank.

Dann defaulted on both obligations. In October 1989, Monroe started a foreclosure proceeding naming both Dann and Central Trust as defendants. Central Trust was named due to its subordinate lienholder status. The property was sold at public auction. After Monroe was fully paid, a surplus of $39,874.57 remained on deposit with the Steuben County Clerk.

The New York State Tax Commission moved in Monroe’s foreclosure action for an order to confirm the Referee’s Report of Sale and to distribute the surplus. MTT made its second mortgagee claim to the surplus on or about April 3, 1991. Supreme Court ordered that the State Tax Commission be paid in full from the surplus and that the balance ($39,481.32) be paid to MTT as the next lien in priority. That was done.

MTT then sued Dann in the instant action for the balance of the second mortgage loan. Dann did not dispute the debt’s existence or the amount owed, but he answered with an RPAPL 1301 affirmative defense and even sought a refund of the surplus money paid to MTT to offset the debt. MTT moved for summary judgment.

Supreme Court granted MTT’s motion, holding that (1) plaintiff MTT "did not commence any action to foreclose”, and (2) RPAPL 1301 did not apply to plaintiff. The Appellate Division unanimously affirmed. This Court granted defendant Dann leave to appeal, and we now affirm.

This case and appeal begin with RPAPL 1301 (3), which provides:

"While the action is pending or after final judgment for the plaintiff therein, no other action shall be commenced or maintained to recover any part of the mortgage debt, without leave of the court in which the former action was brought.”

Appellant Dann argues that the junior mortgagee’s application for the surplus moneys is the legal and functional equivalent of a mortgage foreclosure "action” within the meaning of the statute. Thus, defendant contends that MTT elected its equitable remedy and was barred from commencing a separate action at law, without leave of court, for the balance due on its debt from Dann. Secondly, defendant argues that, even absent plaintiff’s application for the surplus, the strictures of RPAPL 1301 (3) are applicable. In this regard, defendant contends that entry of final judgment in Monroe’s (the senior mortgagee’s) foreclosure action barred all other mortgagees from commencing any legal actions without court approval. Defendant argues that the statute’s purpose — to prevent duplicative, vexatious litigation (Stein v Nellen Dev. Corp., 123 Misc 2d 268, 270) — could be served only by such an interpretation. Finally, defendant contends that plaintiff could have proceeded in equity to obtain a deficiency judgment in the senior mortgagee’s foreclosure action. On this basis, defendant argues that Wyckoff v Devlin (12 Daly 144 [Ct Common Pleas 1883]) is wrongly decided and ought not be adopted or followed by this Court, though it deals with almost identical facts and a still viable and pertinent rationale, contrary to defendant’s position.

MTT asserts that obtaining surplus moneys derived from a senior mortgagee’s foreclosure proceeding does not constitute a foreclosure proceeding within RPAPL 1301 (3). Plaintiff additionally urges that the constraints of RPAPL 1301 (3) are not applicable to other mortgagees who did not initiate or obtain judgments in actual statutory foreclosure or legal proceedings. MTT claims that the statute’s plain wording, its legislative history, and precedential support should lead to affirmance of both lower courts.

Additionally, plaintiff refutes defendant’s argument that a senior mortgagee’s foreclosure judgment may serve as the predicate for a junior mortgagee’s deficiency judgment, thus, also blocking the instant action. Plaintiff asserts that (1) a deficiency judgment can be obtained only by a foreclosure plaintiff who has obtained its own judgment (see, RPAPL 1371 [3]; Feiber Realty Corp. v Abel, 265 NY 94); (2) a final judgment is indispensable to determining the amount due in deficiency; (3) plaintiff could not have obtained complete relief in equity under the circumstances of this case without actually instituting its own foreclosure proceeding; and (4) the rationale of Wyckoff v Devlin (12 Daly 144, supra) ought to be applied here.

Appellant’s argument that the constraints of RPAPL 1301 (3) broadly apply to other than the foreclosure mortgagee plaintiff cannot prevail against the plain language of the statute, its underlying purpose and valid precedents. RPAPL 1301 (3), by its terms, is mortgagee specific and debt specific, directing that "[wjhile the action is pending or after final judgment for the plaintiff therein, no other action shall be commenced * * * to recover any part of the mortgage debt” (emphasis added). Significantly, the language specifies "the” action on "the”, not just any, mortgage debt.

Consonant with the statute’s plain wording, we have interpreted the statute to be debt and mortgagee specific. Notably, in explaining the purpose of section 1628 of the Code of Civil Procedure — the precursor to RPAPL 1301 (3) — we stated: "The object of the statute is to shield the mortgagor from the expense and annoyance of two independent actions at the same time with reference to the same debt” (Reichert v Stilwell, 172 NY 83, 88 [emphasis added]). Our interpretation also serves the legislative purpose of the statute to avoid inappropriate duplicative and vexatious litigation by the same party (see, Meehan, Practice Commentaries, McKinney’s Cons Laws of NY, Book 49-V2, RPAPL 1301, 1995 Pocket Part, at 5). In sum, the senior mortgagee’s pursuit of its equitable remedy against Dann did not redound to Dann’s benefit to subordinate or countermand the plaintiff junior mortgagee’s capacity to sue on its separate and distinct mortgage debt.

We, likewise, are unpersuaded by appellant’s argument that plaintiff’s application for the surplus moneys, derived from the senior mortgagee’s foreclosure sale, constitutes a foreclosure "action” within the meaning of RPAPL 1301 (3). In Wyckoff v Devlin (12 Daly 144, supra), the court held that the predecessor statute of RPAPL 1301 (3) did not prohibit a junior mortgagee, who had filed a claim to surplus moneys arising from a senior mortgagee’s foreclosure and who had been a party to the proceeding for the distribution of the surplus, from commencing its own action, without leave of court, to recover the debt secured by the junior mortgage. The court stated the statute "was never intended to apply to any case except where a judgment for deficiency could be obtained in the proceedings [brought by plaintiff] to enforce the lien of the mortgage” (Wyckoff v Devlin, id., at 148).

Significantly, the court reasoned that in a surplus proceeding, unless the surplus equalled or exceeded the junior mortgagee’s claim, the junior mortgagee could not obtain all the relief to which it was entitled and could not obtain a deficiency judgment in that proceeding (see, id., at 148-149). Thus, the court concluded that the statute’s strictures were not triggered by the junior mortgagee’s mere involvement in a "surplus money-priority” proceeding.

Defendant would reject the reasoning and neutralize the venerable precedent (Wyckoff v Devlin, 12 Daly 144, supra) by arguing that plaintiff could have obtained a deficiency judgment in the senior mortgagee’s proceeding. Defendant’s argument is not persuasive, however, because the court in that case did not rely, as defendant contends, on the notion that plaintiff could never obtain a deficiency judgment in a senior mortgagee’s foreclosure proceeding. The Wyckoff court did not address that question, and resolution of that issue was not necessary to that court’s holding. Rather, the court focused on the fact that in the "action” in which the junior mortgagee was fully involved — the surplus money proceeding — no deficiency judgment could be obtained. We agree only that if in that proceeding — the one in which plaintiff took the initiative and participated — the lienholder could not seek a deficiency judgment and be made whole, then the strictures of RPAPL 1301 (3) do not apply. Here, as in Wyckoff, plaintiff could not have obtained a deficiency judgment in the surplus money proceeding — the only proceeding in which plaintiff participated — and, accordingly, plaintiff is not barred from suing on the note. Consequently, we need not reach and do not resolve the issue of whether plaintiff could have sought a deficiency judgment in the senior mortgagee’s foreclosure proceeding.

In sum, given the debt specific and mortgagee specific nature of RPAPL 1301 (3) and the limitations on plaintiff’s ability to recover in the surplus money proceeding, plaintiff was not required to first obtain the court’s permission to bring the instant action to recover the balance of the debt defendant owes to it. We have considered appellant’s other contentions and conclude that they are without merit.

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

Chief Judge Kaye and Judges Simons, Titone, Smith, Levine and Ciparick concur.

Order affirmed, with costs.


source: Caselaw Access Project

author: Titone, J.

license: Public Domain

text:
    [652 NE2d 168, 628 NYS2d 615]
    In the Matter of Tyriek W. and Others, Infants. In the Matter of Shaina B. and Another, Infants. Lawyers for Children, Appellant; Commissioner of Social Services of the City of New York, Respondent.
    Argued May 2, 1995;
    decided June 8, 1995

      POINTS OF COUNSEL

      Karen Freedman, New York City, Gayle Lerner and Hal Silverman for appellant.

      Paul A. Crotty, Corporation Counsel of New York City (Timothy J. O'Shaughnessy and Kristin M. Helmers of counsel), for respondent.

      Dennis C. Vacco, Attorney-General, New York City (Victoria Graffeo and Robin Price of counsel), for Mary Glass, amicus curiae.

   OPINION OF THE COURT

Titone, J.

Social Services Law § 392 provides for judicial review of the status of children in foster care at 18-month intervals. The issue presented in this appeal is whether this 18-month review procedure applies to the offspring of children living in agency-sponsored foster care. In view of the purposes and policies underlying section 392 review, we conclude that the procedure is inapplicable to those offspring who live with their minor parents and who, as a result of recently promulgated State Social Services regulations, remain in their parents’ legal custody.

The origin of this controversy lies in a fundamental change in the regulations governing the treatment of the children of children in foster care. Before 1993, Federal statutes and State regulations required that any child in foster care be formally placed in the custody of the State or the supervising agency as a condition to receiving reimbursement under the foster care program (42 USC §672 [a] [1], [2], [3]; [b]; 18 NYCRR 427.2 [a], [former (c)] [2], [3]). This requirement created a dilemma in situations where a child residing in foster care had a child. In such situations, foster care subsidy was available for the child only if the minor parent voluntarily agreed to surrender legal custody of the child to the agency providing the care. The agency could then place the child and the minor parent in the same foster home or residential facility and furnish reimbursed financial support for both of them.

In 1993, the State Social Services Commissioner promulgated new regulations to reflect changes in the Federal reimbursement scheme. Under these new regulations, when a child is born to a minor in foster care, the Commissioner of Social Services is authorized and, in fact, encouraged, to place the minor parent and child in the same foster care facility (see, 18 NYCRR 430.10 [b] [4], [5]). A transfer of custody is no longer necessary and the Commissioner may make foster care payments on behalf of both the minor parent and the child, even though the child has remained in the legal custody of its parent (18 NYCRR 426.2 [c]; 426.3 [i]).

Shaina B. and Stephanie C., the two children who are the subjects of the present appeal, were born to minor children in foster care at a time when the pre-1993 regulations were in effect. Pursuant to the requirements of those regulations, petitioners, the minor parents of these two children had voluntarily surrendered custody to the New York City Commissioner of Social Services so that the children could be “placed” in foster care and the family units could be maintained intact in the same foster care setting. When the regulations governing the children’s placements changed in 1993, the Commissioner and minor parents agreed that the existing custodial arrangements would be terminated and that legal custody would revert to the parents. The children’s current living arrangements remained the same, and they continued to receive financial support through the foster care program.

As a result of the change in the children’s custodial situation the Commissioner moved in Family Court for an order authorizing the withdrawal of the petitions he had previously filed pursuant to Social Services Law § 392 for review of Shaina B.’s and Stephanie C.’s foster care status. The motion was promptly opposed by the Law Guardian representing the children on the ground that they were still in foster care and, accordingly, the procedures mandated by section 392 were still applicable to them. Family Court rejected this argument and granted the Commissioner’s motion to withdraw, noting that "[t]he Commissioner has always had a right to discharge a child to a parent without court approval” and that there was nothing inherently or legally objectionable about providing financial support for the children’s familial arrangement without judicial review. The Appellate Division affirmed, and this Court granted the Law Guardian leave to take a further appeal. We now affirm.

Social Services Law § 392 (2) provides that "[w]here an authorized agency determines that a child will remain in foster care for a continuous period of eighteen months, * * * a petition to review the foster care status of such child” must be filed. "Child” as used in the statute means "a child under the age of eighteen years for whom an authorized agency is providing foster care,” and "foster care” is defined as "care provided a child in a foster family free or boarding home [or other enumerated facility]” (Social Services Law § 392 [1] [a], [b]). The term "authorized agency” means those organizations listed in Social Services Law § 371 (10) which are permitted to "place out” or "board out” children.

The Law Guardian argues that these definitional provisions are broad enough to encompass the two children who are the subjects of this appeal, since they are both under 18 and being cared for in a foster care facility. Based on the language of these provisions, the Law Guardian contends that a child’s entitlement to judicial review stems from his or her maintenance and support in a foster care setting rather than on the existing arrangements for legal custody. Thus, the Law Guardian asserts, the transfer of custody from the Commissioner back to the children’s biological parents does not relieve the Commissioner of his obligation to petition for section 392 review.

Whatever appeal this argument might have, it is belied by the purpose of Social Services Law § 392, as well as by the statute’s over-all design, which indicates a legislative intent to address only those situations in which the child is not living in the care and custody of a biological or adoptive parent. For example, the statute provides for notice to "the child’s parent or guardian who transferred the care and custody of such child * * * to an authorized agency” (Social Services Law § 392 [4] [d] [emphasis supplied]), but makes no specific provision for notice to a parent who has retained legal custody. Further, the statute enjoins the reviewing court to consider such factors as "the appropriateness of the plan” for permanency, the "services * * * offered to strengthen and re-unite the family,” the efforts made "to make it possible for the child to return to his or her home,” the alternatives that are available "where return home of the child is not likely” and the services provided to expedite permanency where the child is free for adoption (Social Services Law § 392 [5-a] [a]-[e], [g] [emphasis supplied]; see, Social Services Law § 409-e).

Even more critically, none of the authorized dispositions in which a section 392 proceeding may culminate pertain to situations where legal custody already rests with the biological parent. Four of the seven authorized dispositions concern situations in which parental rights have been terminated and the child has been freed for adoption (Social Services Law § 392 [6] [d]-[g]). Two others address situations in which the care and custody of the child have been transferred to an authorized agency. In those situations, the court may either direct the child’s return to the parent or order the appropriate authorized agency to petition for termination of parental rights (Social Services Law § 392 [6] [b], [c]). Since these six dispositional alternatives are irrelevant where the child is already in the care and custody of his or her minor parent, the only possible outcome of a section 392 review proceeding in such cases would be the sole remaining disposition authorized by subdivision (6), i.e., to preserve the status quo by continuing the foster care placement. Manifestly, the Legislature could not have intended to mandate the conduct of a judicial review proceeding that could lead to only one result, since the entire proceeding would then be nothing more than a futile exercise.

Even if the statutory design left any lingering doubt about the applicability of section 392 review here, that doubt would be dispelled by an examination of the statute’s underlying purpose. Enacted in 1970 (L 1970, ch 742) and clarified in 1971 (L 1971, ch 97), Social Services Law § 392 was intended to reform the existing State foster care system by guaranteeing that all children within that system would have their cases subjected to regular judicial oversight. Before the introduction of judicial review, thousands of children were left to languish indefinitely in temporary foster care placements, with little effort made to move them into permanent home situations, whether through adoption or return to their biological families (Pisani, Sponsor’s Mem for Assembly Bill A 5257, reprinted in 1970 NY Legis Ann, at 32-33; see, Carrieri, Practice Commentaries, McKinney’s Cons Laws of NY, Book 52A, Social Services Law § 392, at 693). It was thought that mandating judicial review at regular intervals would ensure that no child would "fall between the cracks” and that the need for permanency planning for every child would no longer be neglected (see, Pisani, op. cit.; Carrieri, op. cit., at 693). The ultimate goal was to increase and accelerate the flow of children from the foster care system into permanent homes (see generally, Matter of Dale P., 84 NY2d 72, 77). Obviously, where, as here, a child is already living in the care and custody of a biological parent, the goal of permanency is satisfied. Thus, judicial review under section 392 is unnecessary.

Finally, we are not persuaded by the Law Guardian’s policy arguments, which are based on a concern about the lack of judicial supervision for this "new class” of at-risk children, i.e., the children of children in foster care. The short answer is that section 392 is not aimed broadly at ensuring judicial supervision of all aspects of foster care placements. Rather, it was adopted with the substantially narrower goal of making authorized agencies accountable to the courts for their activities in connection with their obligation to move foster children into permanent homes.

We note that, contrary to the arguments made here, our decision does not leave children such as Shaina B. and Stephanie C. without any protection from what the Law Guardian characterizes as "a dangerous and chaotic life in foster care.” Under the applicable regulations, the individual children and their minor parents are treated as a family unit for purposes of financial support, case planning and preventive services (see, 18 NYCRR 423.4 [g] [2]; 428.2 [e] [3]). Accordingly, these children receive the full range of supervision, assessment, documentation and other social work services that are available to their parents (18 NYCRR 428.1 [c]; 428.3 [a], [b] [3]; 428.6 [b]; 428.7 [b]; 428.8 [b]). To the extent that there is concern that a particular child is being neglected or abused in the foster care placement, the supervising agency can take whatever remedial steps are necessary, including making an appropriate petition under article 10 of the Family Court Act. To the extent that the agency itself is not fulfilling its responsibility to secure a permanent living situation for the family unit, that problem will inevitably be addressed through the section 392 review of the minor parent’s foster care status. Hence, there exist adequate alternative methods of addressing the concern raised by the Law Guardian that children will now be "lost” in foster care.

For all of the foregoing reasons, we conclude that the City Social Services Commissioner had no obligation to pursue judicial review under Social Services Law § 392 once the care and custody of Shaina B. and Stephanie C. was transferred back to their minor parents. Thus, there was no error in the decision of the courts below to permit the Commissioner to withdraw the review petitions.

Accordingly, the order of the Appellate Division, insofar as appealed from, should be affirmed, without costs.

Judges Simons, Bellacosa, Smith, Levine and Ciparick concur; Chief Judge Kaye taking no part.

Order, insofar as appealed from, affirmed, without costs.


author: Chief Judge Kaye. Smith, J.

text:
    [652 NE2d 171, 628 NYS2d 618]
    Pierre Bourquin et al., Respondents, v Mario M. Cuomo, as Governor of the State of New York, et al., Appellants.
    Argued April 27, 1995;
    decided June 13, 1995

      POINTS OF COUNSEL

      Diane T. Dean, Albany, and William J. Cowan for Department of Public Service of the State of New York, appellant.

      Dennis C. Vacco, Attorney-General, Albany (Daniel Smirlock, Jerry Boone and Peter H. Schiff of counsel), for Mario M. Cuomo, appellant.

      Martin S. Kaufman, New York City, and Douglas Foster for respondents.

      Pollet & Pollet, New York City (Michael N. Pollet and Sybil H. Pollet of counsel), for New York Citizens Utility Board, Inc., and others, amici curiae.

   OPINION OF THE COURT

Chief Judge Kaye.

This case requires us to decide whether an Executive Order issued by the Governor violates the principle of separation of powers under the New York State Constitution. We conclude that the Governor acted within his authority, and therefore reverse the order of the Appellate Division declaring the Executive Order unconstitutional.

On January 3, 1991, then-Governor Mario Cuomo issued Executive Order No. 141 (9 NYCRR 4.141) authorizing the creation of a private, not-for-profit corporation known as the Citizens’ Utility Board (CUB) intended, among other things, to represent the interests of residential utility customers in ratemaking and other proceedings before the Public Service Commission. In issuing the order creating the CUB, the Governor cited "the policy of this State to foster and encourage citizen participation in utility matters and to facilitate effective representation and advocacy of the interests of residential utility customers in the regulatory process.” He noted as well that "individual participation by residential utility customers * * * is impracticable because of the expertise required and the disproportionate expense of taking such action.”

In addition to establishing the CUB, Executive Order No. 141 provided that the Board would have access to as many as four State agency mailings per year for the purpose of disseminating information to New York citizens about the CUB’s purpose and activities and soliciting memberships and contributions. The Board was required to reimburse the agencies for any increase in postage attributable to its enclosures.

Five months after the issuance of the Executive Order, plaintiff-respondent Pierre Bourquin, a New York "citizen, resident and taxpayer,” as well as various other nonprofit corporations "primarily engaged in educating the public about government expenditures * * * [and] representing * * * individuals, organizations and corporations in constitutional and public policy-oriented litigation,” challenged Executive Order No. 141 as violative of the separation of powers doctrine. Plaintiffs also sought a preliminary injunction enjoining implementation of the Executive Order.

Supreme Court rejected plaintiffs’ separation of powers claim and dismissed their complaint, concluding that "the Legislature has clearly demonstrated its goal of protecting the interests of New York’s utility consumers and its further policy aimed at maximizing public participation in the processes aimed at achieving that end.” The Executive Order, according to the trial court, "promote[d] these general legislative policies in a manner that [did] not usurp legislative prerogative,” such that "defendants acted within their respective constitutional and statutory authority.”

The Appellate Division reversed and declared Executive Order No. 141 unconstitutional, concluding "that the Governor impermissibly exceeded stated legislative policy in issuing the Executive Order” because, in the court’s view, "[t]he statutory provisions cited by defendants * * * demonstrate that the establishment of a single CUB with access to State mailings is at odds with the existing legislative policy which charges the [Public Service Commission], the Consumer Protection Board and the Attorney-General to protect consumers in utility proceedings” (201 AD2d 104, 107). Defendants now appeal as of right pursuant to CPLR 5601 (b) (1).

The constitutional principle of separation of powers, "implied by the separate grants of power to each of the coordinate branches of government” (Clark v Cuomo, 66 NY2d 185, 189; NY Const, art III, § 1; art IV, § 1), requires that the Legislature make the critical policy decisions, while the executive branch’s responsibility is to implement those policies (Matter of New York State Health Facilities Assn. v Axelrod, 77 NY2d 340, 349).

Despite this functional separation, this Court has always understood that the duties and powers of the legislative and executive branches cannot be neatly divided into isolated pockets (Clark v Cuomo, 66 NY2d, at 185; see also, Plaut v Spendthrift Farm, 514 US —, —, 115 S Ct 1447, 1465-1466, 131 L Ed 2d 328, 359, 1995 US LEXIS 2843, *62 [Apr. 18, 1995] [Breyer, J., concurring] ["(The separation of powers) doctrine does not 'divide the branches into watertight compartments,’ nor 'establish and divide fields of black and white.’ * * * (I)mportant separation of powers decisions * * * sometimes turn( ), not upon absolute distinctions, but upon degree.”] [citations omitted]). We have thus acknowledged that there need not be a specific and detailed legislative expression authorizing a particular executive act as long as "the basic policy decisions underlying the regulations have been made and articulated by the Legislature” (Matter of New York State Health Facilities Assn., at 348). In other words, "[i]t is only when the Executive acts inconsistently with the Legislature, or usurps its prerogatives, that the doctrine of separation is violated.” (Clark, at 189.)

Recognizing the necessity of "some overlap between the three separate branches” of government as well as the "great flexibility” to be accorded the Governor in determining the methods of enforcing legislative policy, this Court in Clark v Cuomo (66 NY2d 185, 189, supra) upheld against a separation of powers challenge then-Governor Cuomo’s issuance of an Executive Order establishing a Voter Registration Task Force with access to State agencies in distributing its materials. The decision in Clark, like others that followed (e.g., Matter of New York State Health Facilities Assn. v Axelrod, 77 NY2d 340, supra), resulted from this Court’s long-standing and steadfast refusal to construe the separation of powers doctrine in a vacuum, instead viewing the doctrine from a commonsense perspective. As Chief Judge Cardozo explained more than a half-century ago: "[t]he exigencies of government have made it necessary to relax a merely doctrinaire adherence to a principle so flexible and practical, so largely a matter of sensible approximation, as that of the separation of powers” (Matter of Richardson, 247 NY 401, 410 [1928]).

As legislative authorization for the creation of the Task Force at issue in Clark, the Governor relied on Election Law § 3-102 (13) which provided that "the state board of elections shall have the power and duty * * * to encourage the broadest possible voter participation in elections.” In support of Executive Order No. 141, the Governor relied on article 20 of the Executive Law — containing nearly identical language— empowering the Consumer Protection Board to "promote and encourage the protection of the legitimate interests of consumers within the state” (Executive Law § 553 [2] [b]). A simple comparison of the above-quoted Election Law provision at issue in Clark with the Executive Law provision at issue here compels the conclusion that the statutes are analogous. Each vests a particular entity (Boards of Elections or the Consumer Protection Board) with the power to promote a broad, even "general” legislative purpose (promoting voter registration or protecting the interests of utility consumers).

The analogy between the two cases is strengthened by the fact that in each case, the Governor — by Executive Order— created an entity other than that contemplated by the Legislature (the Voter Registration Task Force and the CUB) to implement those statutory goals. In Clark, we explicitly rejected the argument that the Legislature’s decision to repose certain powers in local Boards of Elections prevented the Governor from establishing another governmental body intended to promote those same policies (Clark, 66 NY2d, at 190).

Indeed, that the creation of the CUB was fully consistent with existing legislative policy is evidenced by the fact that three other entities already had overlapping authority to protect utility customers — the Consumer Protection Board, the Attorney-General and the Public Service Commission. In creating the CUB, the Governor recognized that in part because of the enormous demands on them from other duties, none of these agencies were adequately representing the interests of residential utility customers who lack the incentive to hire lawyers and lobbying groups to advance their interests.

Executive Order No. 141, like the order at issue in Clark, does not formulate a specific policy with respect to utility companies or their residential customers. It does not, for example, instruct the CUB to press for lower utility rates or to seek greater disclosure of the financial status of utility companies. Unlike the detailed and comprehensive Executive Orders and administrative regulations that this Court has struck down in the past (see, Matter of Broidrick v Lindsay, 39 NY2d 641 [affirmative action program for New York City contracts]; Rapp v Carey, 44 NY2d 157 [financial disclosure requirements for State employees]; Under 21, Catholic Home Bur. for Dependent Children v City of New York, 65 NY2d 344 [order prohibiting employment discrimination by city contractors on basis of sexual orientation]; Boreali v Axelrod, 71 NY2d 1 [antismoking regulations in public establishments]), Executive Order No, 141 has no substantive content beyond that of creating the CUB itself and giving it access to State mailings for a three-year period. What the CUB, a private not-for-profit corporation, ultimately chooses to do with the funds it solicits is a decision entrusted solely to its membership. Executive Order No. 141 is thus well within the boundaries of this Court’s recognition in Clark that the executive branch’s mere creation of a new procedural, administrative mechanism, such as a task force or consumer board, to better implement a legislative policy does not offend the Constitution.

Indeed, there is yet another important parallel between the instant case and Clark. In each case, the Legislature considered but failed to enact a bill substantially similar to the provisions of the Executive Orders ultimately issued by the Governor. In each case, the plaintiffs argued that such failure should be taken as proof of hostile legislative intent. As we said in Clark, however, "that proposed legislation similar to [the] Executive Order * * * was not passed does not indicate legislative disapproval of the programs contemplated by the order. Legislative inaction, because of its inherent ambiguity, 'affords the most dubious foundation for drawing positive inferences’ ” (Clark, 66 NY2d, at 190-191 [citations omitted]; cf., Boreali, 71 NY2d, at 13).

While it may have been more desirable for the Legislature to have passed a statute establishing the CUB, the question whether the Governor had the authority to do so by Executive Order is not one of preference but of constitutionality. It is not the role of this Court to dictate how public policy should be implemented, but only to state when and how the Constitution has been offended. The Constitution was not violated by Executive Order No. 141.

Plaintiffs’ remaining constitutional challenges to Executive Order No. 141 lack merit. Accordingly, the order of the Appellate Division should be reversed, with costs, defendants’ motion for summary judgment granted, plaintiffs’ cross motion for summary judgment denied, and judgment granted declaring that Executive Order No. 141 is constitutional.

Smith, J.

(dissenting). The primary issue here is whether Executive Order No. 141, which directs the Department of Public Service (Department) to certify the establishment of a Citizens’ Utility Board (CUB), violates the principle of separation of powers under the New York State Constitution. Because I conclude that it does, I dissent and vote to affirm the order of the Appellate Division.

On January 3, 1991, Governor Mario Cuomo issued Executive Order No. 141 (9 NYCRR 4.141), providing for the creation of a single State-wide Citizens’ Utility Board, certified by the Department of Public Service, as a private not-for-profit corporation representing the interests of New York State residential utility customers in the regulatory process. The Executive Order declared, inter alla, "[I]t is the policy of this State to foster and encourage citizen participation in utility matters and to facilitate effective representation and advocacy of the interests of residential utility customers in the regulatory process”. An interim board of directors was to be created pursuant to procedures established by the Department of Public Service. Executive Order No. 141 provided that the CUB was to include its literature in mailings made by four State agencies annually for three years after the election of its permanent board of directors "unless the Department of Public Service determines that additional access is necessary” (subd [3] [b]). Access to State agency mailings was exclusively for dissemination of information about the CUB’s purpose and activities and to solicit memberships and contributions. The CUB was required to reimburse the agencies for any increase in postage attributable to CUB’s enclosures.

Subdivision (4) of the Executive Order provided for approval of the material submitted by CUB for mailing by the agency enclosing that material in its mailing. This approval was limited to a determination of whether the material was "false or misleading” and whether it met specific requirements concerning the purpose and nature of the CUB. Any dispute involving the content of the material was to be resolved by the Department of Public Service.

In May 1991, plaintiffs Pierre Bourquin, Citizens for a Sound Economy, Inc. and Atlantic Legal Foundation, Inc. commenced a CPLR article 78 proceeding against defendant Governor Cuomo seeking a preliminary injunction, alleging, inter alla, that Executive Order No. 141 was unconstitutional as violative of the doctrine of separation of powers. On June 10, 1991 Governor Cuomo moved to dismiss the petition, citing, inter alla, plaintiffs’ lack of standing. On June 26, 1991 plaintiffs served an amended petition adding new plaintiffs, John Faso and Glenn H. Harris, and, as an additional defendant, the Department of Public Service. On the same date plaintiffs moved for a preliminary injunction enjoining the implementation of Executive Order No. 141. On July 10, 1991, defendants Cuomo and the Department moved to dismiss the petition, partially on the standing issue. On December 16, 1991 Supreme Court converted the proceeding to one for a declaratory judgment, dismissed all causes of action brought by Atlantic Legal Foundation on the grounds of standing, denied the preliminary injunction and vacated its stay of the implementation of Executive Order No. 141.

On January 27, 1992 plaintiffs filed an amended verified complaint. Subsequently, on May 15, 1992, defendant Department moved for summary judgment. Governor Cuomo apparently joined in the motion. On July 3, 1992 plaintiffs cross-moved for summary judgment.

The same Supreme Court Justice, rejecting plaintiffs’ separation of powers claim, granted defendants’ motion, denied plaintiffs’ cross motion and dismissed the complaint. The Appellate Division reversed the Supreme Court, granted plaintiffs’ cross motion for summary judgment and declared that the enactment of Executive Order No. 141 violated the doctrine of separation of powers by exceeding stated legislative policy. The Appellate Division did not address the plaintiffs’ contention that Executive Order No. 141 constituted an unconstitutional gift of State property. Defendants appeal as of right pursuant to CPLR 5601 (b) (1).

Defendants contend that Executive Order No. 141 is consistent with the Legislature’s pronounced policy of concern for and protection of residential utility consumers contained in the Public Service Law, particularly the Home Energy Fair Practices Act contained in Public Service Law § 30 et seq. Defendants maintain that the creation of an organization operated by and directly responsible to consumers is embraced by the Legislature’s stated policy that utility charges be "just and reasonable” (Public Service Law §§ 65, 79 [1]; §§ 89-b, 91) and that no change in rates should be made without public notice (Public Service Law § 66 [12] [b]; § 80 [10] [b]; § 89-c [10] [b]; § 92 [2] [a]). Defendants further maintain that the creation of the Consumer Protection Board by article 20 of the Executive Law demonstrates the Legislature’s policy of fairness to consumers.

Plaintiffs contend that Executive Order No. 141 violates the constitutional principle of separation of powers and that it constitutes an unconstitutional gift of State property in violation of article VIII, § 1 of the NY Constitution.

The State policy of separation of powers is embodied in the New York State Constitution. There it states, "The legislative power of this State shall be vested in the Senate and Assembly” (NY Const, art III, § 1) and "The executive power shall be vested in the governor” (NY Const, art IV, § 1). The Constitution charges the Legislature to establish State policy and the executive to implement such policy (see, Clark v Cuomo, 66 NY2d 85; Matter of Broidrick v Lindsay, 39 NY2d 641; Matter of Fullilove v Beame, 48 NY2d 376; Under 21, Catholic Home Bur. for Dependent Children v City of New York, 65 NY2d 344; see also, Matter of New York State Health Facilities Assn. v Axelrod, 77 NY2d 340). Nevertheless, there are times when the duties and powers of the Legislature overlap (see, Clark v Cuomo, 66 NY2d, at 189). The executive’s power to implement legislation, vested in the Governor, is broad and the Governor is "accorded flexibility in determining the proper method of enforcement” (Matter of Broidrick v Lindsay, 39 NY2d 641, 646). "It is only when the Executive acts inconsistently with the Legislature, or usurps its prerogatives, that the doctrine of separation is violated” (Clark v Cuomo, 66 NY2d, at 189).

We have previously held that the doctrine of separation of powers was not violated where the executive action was a clear implementation of State legislative policy (see, Matter of New York State Health Facilities Assn. v Axelrod, 77 NY2d 340, supra; Clark v Cuomo, 66 NY2d 185, supra). On the other hand, we have concluded that the doctrine was violated by executive action which went beyond the legislative policy or enforcement directives (Boreali v Axelrod, 71 NY2d 1 [Public Health Council improperly promulgated a comprehensive smoking code for areas open to the public]; Under 21, Catholic Home Bur. for Dependent Children v City of New York, 65 NY2d 344, supra [Mayor of the City of New York could not promulgate an Executive Order prohibiting employment discrimination on the basis of sexual orientation in City contracts where the Legislature had not adopted such a policy]; Rapp v Carey, 44 NY2d 157 [Governor could not promulgate an Executive Order requiring executive branch employees to file financial disclosure forms and to refrain from certain political and business activities where the Legislature had not adopted such a policy]; Matter of Broidrick v Lindsay, 39 NY2d 641, supra [New York City Deputy Mayor-City Administrator could not mandate certain minority percentages in City construction contracts absent legislative authorization]).

The Legislature’s policy favoring the protection of residential consumers does not translate into legislation authorizing the creation of a private not-for-profit corporation with authority to speak on behalf of all residential utility customers. By this Executive Order, the Governor has effectively fashioned public policy in an area where the Legislature has not yet acted, clearly exceeding his authority and violating the principle of separation of powers.

As defendant concedes, the Legislature has expressed its desire that the interests of residential consumers be protected in the area of utilities. To this end, the Legislature has established the Consumer Protection Board which functions primarily to protect consumer interests. Further, the office of the Attorney-General and the Public Service Commission, the rate setting body within the Department of Public Service, are similarly charged to protect consumer interests in Public Service Commission proceedings. Nevertheless, such express legislative policy is insufficient authority for the certification of a single, State-wide CUB with access to State mailings.

Defendant’s reliance on Clark v Cuomo (66 NY2d 185, supra) and Matter of New York State Health Facilities Assn. v Axelrod (77 NY2d 340, supra) to support his contention that Executive Order No. 141 furthers the Legislature’s policy of protecting residential utility consumers’ interest is unpersuasive. What differentiated Executive Order No. 141 from the Executive Order we sustained in Clark v Cuomo (66 NY2d 185, supra) and the regulations we approved in Matter of New York State Health Facilities Assn. v Axelrod (77 NY2d 340, supra) is precisely the lack of the much narrower and more precise statement of legislative policy that supported our determination in those two cases. In creating the Voter Registration Task Force at issue in Clark v Cuomo, the Governor not only relied on Election Law § 3-102 (13), which stated that the Board of Elections had the power and duty "to encourage the broadest possible voter participation in elections,” but also on the more particularized provision of Election Law § 5-210 (2) that the county Boards of Elections were required to see that voter registration forms were "as widely and freely distributed as possible” (66 NY2d, at 190). Similarly, in Matter of New York State Health Facilities Assn., the Public Health Council’s promulgation of regulations requiring for-profit nursing homes to admit a "reasonable percentage” of Medicaid patients was supported not only by the general principles expressed in sections 363 and 364 (2) (a) of the Social Services Law, that providing medical assistance to the needy is "a matter of public concern” and that the Department of Health is "responsible for * * * establishing and maintaining standards [for nursing homes]”, but by the specific requirement of Public Health Law § 2801-a (9) (d) that profit-making nursing homes "not discriminate because of * * * sponsor in admission or retention of patients” (77 NY2d, at 347-348).

The specific ways in which the Executive Order establishes State policy are (1) by authorizing a new remedy for consumer involvement in utility rate setting through the establishment of a private corporation, whose interim board is created pursuant to procedures of the Department of Public Service, with access to State agency mailings to solicit members and financial contributions and (2) by involving State agencies in the approval of the content of communications (through a determination of whether it is false or misleading) sent to State residents by a private entity. Since such actions have not been adopted by the State Legislature, they violate the doctrine of separation of powers (see, Boreali v Axelrod, supra; Under 21, Catholic Home Bur. for Dependent Children v City of New York, supra; Rapp v Carey, supra; Matter of Broidrick v Lindsay, supra).

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

Judges Titone, Levine and Ciparick concur with Chief Judge Kaye; Judge Smith dissents and votes to affirm in a separate opinion in which Judges Simons and Bellacosa concur.

Order reversed, etc.

      . Specifically, the Executive Order at issue in Clark (9 NYCRR 4.43) required all State agencies having contact with the public to make voter registration forms available in their offices and to assist in filling out such forms. A Voter Registration Task Force consisting of the heads of various State agencies was charged with overseeing the implementation of this program (see, Clark, 66 NY2d, at 187).

      . The other statutory provisions relied on in promulgating Executive Order No. 141 are the Home Energy Fair Practices Act (Public Service Law § 30) where the Legislature "declared [it] to be the policy of this state that the continued provision of gas, electric and steam service to residential customers without unreasonable qualifications or lengthy delays is necessary for the preservation of the health and general welfare and is in the public interest” as well as various sections of the Public Service Law requiring that charges to residential utility consumers be "just and reasonable” (see, Public Service Law §§ 65, 79 [1]; §§ 89-b, 91) and that no changes in rates be made without adequate notice to the public (see, Public Service Law § 66 [12] [b]; § 80 [10] [b]; § 89-c [10] [b]; § 92 [2] [a]).

      . The provisions of the Social Services Law involved in Matter of New York State Health Facilities Assn, v Axelrod (77 NY2d 340, supra), the other case which the dissent attempts to distinguish (dissenting opn, at 792), also contain similar language. Sections 363 and 364 (2) (a) of the Social Services Law, for example, declare that "[m]edical assistance for needy persons is * * * a matter of public concern” and that the Department of Health "shall be responsible for * * * establishing and maintaining standards [for nursing homes]” (id., at 347).

      . The dissent concludes that Executive Order No. 141 is unconstitutional because it authorizes "a new remedy for [utility] consumer involvement” (dissenting opn, at 792). The substitution of the word "consumer” with "voter” in this sentence, however, results in precisely the situation involved in Clark where the executive branch created a "new remedy” for unregistered voters.

       In Public Service Law § 30, the Legislature "declared to be the policy of this state that the continued provision of gas, electric and steam service to residential customers without unreasonable qualifications or lengthy delays is necessary for the preservation of the health and general welfare and is in the public interest.”


author: Simons, J.

text:
    [652 NE2d 638, 628 NYS2d 939]
    The People of the State of New York, Respondent, v Malik Harrison, Appellant.
    Argued April 27, 1995;
    decided June 13, 1995

      POINTS OF COUNSEL

      Frances A. Gallagher, New York City, and Philip L. Weinstein for appellant.

      Robert M. Morgenthau, District Attorney of New York County, New York City (Ellen Sue Handman and Mark Dwyer of counsel), for respondent.
   OPINION OF THE COURT

Simons, J.

Defendant has been convicted of criminal sale of a controlled substance in the third degree and sentenced to a term of imprisonment. He seeks reversal because the trial court refused to order the stenographer to record portions of the jury voir dire despite defense counsel’s repeated requests that a record be made of her objections to several statements of the prosecutor and the court. Defendant contends that the court’s actions denied him effective appellate review. We agree and conclude that the appropriate remedy is reversal and a new trial.

A defendant has a fundamental right to appeal a criminal conviction (see, People v Montgomery, 24 NY2d 130, 132; see also, CPL 450.10). To facilitate that right, section 295 of the Judiciary Law requires that full stenographic notes be taken of all trial proceedings and, on request of counsel during a jury trial, "each and every remark or comment of [the] judge * * * and every exception taken to any such ruling [or] decision” must be recorded. The People acknowledge that Judiciary Law § 295 applies to criminal proceedings and that the voir dire of prospective jurors is a part of the trial within the meaning of the statute. They maintain, however, that defendant was not prejudiced here because the substance of defendant’s objections, though not recorded, is discernable from the record and that it is clear that the challenged remarks do not provide grounds for reversal. Alternatively, the People claim that the most defendant is entitled to is a remand for a hearing to reconstruct a record for appellate review.

Though the directions contained in Judiciary Law § 295 would appear absolute, the absence of a stenographic record does not, per se, require reversal of defendant’s conviction (see, Williams v Norman, 34 NY2d 626). Verbatim recordation of the proceedings is the "better practice”, unless waived, but we have recognized that reversal is not required if defendant is not prejudiced by the absence of a stenographic record (see, People v Fearon, 13 NY2d 59, 61). The record has been deemed sufficient if those portions of the proceedings objected to have been transcribed or agreed upon by counsel (id.). Moreover, if the record can be accurately reconstructed no prejudice results from its loss (see, People v Glass, 43 NY2d 283, 286; cf., People v Rivera, 39 NY2d 519, 523). There is a presumption of regularity which attaches to a judicial proceeding (see, People v Glass, supra, at 287; cf., People v Taylor, 73 NY2d 683) and the unavailability of a stenographic record, either because it has been lost or inadvertently destroyed, standing by itself, will not rebut that presumption (see, e.g., People v Glass, supra). However, when a record cannot be reconstructed because of the lapse of time, the unavailability of the participants in the proceeding or some similar circumstance, there must be a reversal (see, People v Rivera, supra; see also, People v Scott, 70 NY2d 420, 426; People v Taylor, supra).

The absence of a record in this case is attributable to the court’s failure to comply with the requirements of section 295 of the Judiciary Law. Here, the first round of jury selection proceeded without a record of the objections made by defense counsel. After luncheon recess, and prior to the examination of the second panel, defense counsel noted for the record that she had requested earlier that the voir dire be recorded and that the court had refused her request. She noted further that during the first round of jury selection she had objected to the prosecutor’s comments to the jury "a number of times,” "[m]aybe * * * six or seven at a time,” and had asked that her objections be recorded and that the court had denied her request. She stated her belief that the prosecutor’s statements contained erroneous commentary on the law and moved for a mistrial. The court denied the motion. Counsel then sought to review the specific objections she made in the morning session, but the court refused to allow her to do so, stating "the record stands.” Counsel asked to state her specific objections once more but the court denied her request and ordered the prospective jurors in. Counsel then requested that the balance of the voir dire be recorded and the court denied her request yet again. She then asked that any future objections be recorded and the court denied that motion as well.

Voir dire of another panel of prospective jurors was conducted, but not recorded. When the challenges to that panel were exercised, and recorded, defense counsel objected to statements made during voir dire about defendant taking the stand. She contended that comments by both the prosecutor and the court improperly reflected on defendant’s invocation of his Fifth Amendment rights. The court ordered counsel to repeat the statements but when she attempted to do so, she was interrupted by the prosecutor who disputed the accuracy of her recollection. Counsel again moved for a mistrial and the court denied her motion, telling the prosecutor "[d]on’t pay any attention to [defense counsel’s argument]. That is junk.” Defense counsel moved once more for a mistrial. The motion was denied "in toto.”

It is obvious from these facts that the trial court erred by foreclosing defendant from exercising his right to obtain a stenographic record of voir dire as Judiciary Law § 295 requires. The question then is whether that error can be cured by a reconstruction proceeding. Nothing in the record that is available supports the People’s argument that the proceedings were free of substantive error and the prejudice to defendant —impairment of effective appellate review — is manifest. It cannot be cured by a reconstruction hearing because the dispute regarding the substance of the comments by the court and counsel establishes that an accurate account could not be reconstructed even if we were to order remittal for that purpose. Defendant is therefore entitled to a reversal of the conviction (see, People v Rivera, supra, at 523).

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

Chief Judge Kaye and Judges Titone, Bellacosa, Smith, Levine and Ciparick concur.

Order reversed, etc.


text:
    [647 NE2d 1342, 623 NYS2d 834]
    U.S. Underwriters Insurance Company, Appellant, v Val-Blue Corp., Doing Business as Rascals, et al., Respondents.
    Argued January 4, 1995;
    decided February 9, 1995

      APPEARANCES OF COUNSEL

      Thurm & Heller, New York City (Michael A. Miranda of counsel), for appellant.

      James E. Neuman, New York City, and Warren S. Goodman for Val-Blue Corp., respondent.

      Lysaght, Lysaght & Kramer, P. C., Lake Success (Raymond E. Kerno of counsel), for John J. Hanley, respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and a judgment entered declaring that appellant is not obligated to indemnify or defend respondent Val-Blue Corporation in the lawsuit brought against it by John Hanley.

Val-Blue employed Eugene DiSilvo, a retired New York City police officer, as a security guard in its nightclub. In the early morning hours of February 3, 1990, Hanley, an off-duty police officer, apprehended a suspect outside the nightclub and, with gun drawn, brought the suspect into the club in order to use the telephone. DiSilvo, in his capacity as the club’s security guard, told Hanley to drop the gun and when Hanley did not do so, DiSilvo shot him twice. Hanley claims that he identified himself as a police officer prior to the shooting, but DiSilvo claims Hanley did so only after he was shot. In his suit for damages against Val-Blue and DiSilvo, Hanley alleged that DiSilvo "negligently, carelessly and recklessly” shot him. Hanley’s complaint further charged respondeat superior, negligence in the hiring, supervision and training of employee DiSilvo, statutory violations and other claims.

Val-Blue forwarded the complaint to appellant, its liability insurance carrier, seeking defense and indemnification under its coverage for accidental bodily injury. Attached to the policy is an "Assault and Battery Exclusion Endorsement” which states:

"It is agreed that no coverage shall apply under this policy for any claim, demand or suit based on Assault and Battery and Assault and Battery shall not be deemed an accident, whether or not committed by or at the direction of the insured.”

Appellant sought a declaratory judgment that it was not obligated to defend or indemnify Val-Blue because the suit was based on assault and battery. In denying appellant’s motion for summary judgment and dismissing the action, the trial court held that the clear language of the exclusion did not apply to the claim of negligent hiring and supervision as that claim was grounded in negligence and not based on assault and battery, and the Appellate Division affirmed. We now reverse.

We agree with the Appellate Division that the language of the exclusion for suits "based on Assault and Battery” is unambiguous. Although respondents acknowledge the intentional nature of assault and battery under New York law, they claim the act of shooting Hanley — twice—was merely negligent, careless or reckless because there was no intention to shoot a police officer. The lack of DiSilvo’s intent to cause the actual harm that resulted, however, is irrelevant in determining the intentional nature of his act (Technicon Elecs. Corp. v American Home Assur. Co., 74 NY2d 66, 74-75 [lack of intent to harm environment did not avoid policy exclusion for intentional discharge of pollutants]). The injury being sued upon here is an assault and battery. The plethora of claims surrounding that injury, including those for "negligent shooting” and "negligent hiring and supervision” are all "based on” that assault and battery without which Hanley would have no cause of action.

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur.

Order reversed, with costs, and judgment granted in accordance with the memorandum herein.


text:
    [647 NE2d 1344, 623 NYS2d 836]
    The People of the State of New York, Respondent, v James Jones, Appellant.
    Argued January 10, 1995;
    decided February 9, 1995

      APPEARANCES OF COUNSEL

      Robert P. Rickert, Syracuse, for appellant.

      William J. Fitzpatrick, District Attorney of Onondaga County, Syracuse (Victoria M. Anthony and James P. Maxwell of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was convicted of first degree robbery, second degree assault and criminal possession of a weapon, for the robbery of Mary Comer and her son Clarence Comer in their home. Accomplice Odell Hudson testified at trial that he committed the robbery with defendant and two other men, James Butts and Raymond Jones, defendant’s brother. Hudson testified that defendant and his brother entered the Comer home and that defendant held Ms. Comer on her couch at knifepoint. Hudson had previously pleaded guilty to second degree robbery and admitted that he had been promised a prison sentence of one and one-half to four years in exchange for his truthful testimony at defendant’s trial.

Ms. Comer initially identified defendant in a photo array 10 days after the crime, stating that she was "almost positive” that defendant was one of the robbers. The trial court held, at a Wade hearing, that the photo array was properly conducted. At trial, Ms. Comer testified that two men were involved in the robbery and, although she could not make a positive identification, she pointed to defendant as a person who looked like one of the men. She testified that Hudson held her on the couch at knifepoint, cutting her hands when she resisted, and that defendant restrained her son Clarence.

Defendant urges that Ms. Comer’s equivocal identification was insufficient corroboration for Hudson’s accomplice testimony. Corroborating evidence, however, need not be a positive identification (People v Breland, 83 NY2d 286, 293; People v Weiss, 7 NY2d 139, 141). On the facts of this case, Ms. Comer’s identification of defendant was sufficient to satisfy the minimal requirements of the accomplice corroboration statute (CPL 60.22).

Defendant’s remaining contentions lack merit.

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur.

Order affirmed in a memorandum.


text:
    [647 NE2d 1345, 623 NYS2d 837]
    Arthur D’Aloia et al., Respondents, v Travelers Insurance Co., Appellant, et al., Defendant.
    Decided February 9, 1995

      APPEARANCES OF COUNSEL

      Conway, Farrell, Curtin & Kelly, P. C., New York City (Johathan T. Uejio of counsel), for appellant.

      Stacey E. Charkey, Brooklyn, and Frank A. Composto for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs. When the facts of an occurrence are such that an insured acting in good faith would not reasonably believe that liability will result, notice of the occurrence is given "as soon as possible” if given promptly after the insured receives notice that a claim will in fact be made (see, Merchants Mut. Ins. Co. v Hoffman, 56 NY2d 799). The record before us, which indicates that the injured party’s parents declined the insureds’ offer to pay medical expenses and indicated no intention to sue, supports the affirmed finding below that notice given by the insureds promptly after suit was instituted against them was given "as soon as possible,” notwithstanding that the action was not begun until nearly three years after the occurrence.

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur.

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


text:
    [648 NE2d 782, 624 NYS2d 363]
    The People of the State of New York, Respondent, v Lyria Best, Appellant.
    Argued January 10, 1995;
    decided February 9, 1995

      APPEARANCES OF COUNSEL

      Stacy Wolf, Albany, and Harry Edelstein, Haverstraw, for appellant.

      Michael A. Arcuri, District Attorney of Oneida County, Utica (Raymond A. Tarkowski of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed for reasons stated in the memorandum at the Appellate Division (202 AD2d 1015).

Concur: Chief Judge Kaye and Judges Titone, Bellacosa, Smith, Levine and Ciparick. Taking no part: Judge Simons.


text:
    [647 NE2d 1346, 623 NYS2d 838]
    William Urquhart, Appellant, v New York City Transit Authority, Respondent.
    Argued January 11, 1995;
    decided February 9, 1995

      APPEARANCES OF COUNSEL

      Sandra D. Janin, Great Neck, and Frederick Feder, Brooklyn, for appellant.

      Lawrence Heisler, Brooklyn, Albert C. Cosenza, Lawrence A. Silver and Karen Audrey Fisher for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the matter remitted to that Court for further proceedings in accordance with this memorandum.

Plaintiff fell and was injured while riding on defendant’s bus which he boarded on Court Street in downtown Brooklyn. During the liability phase of a bifurcated trial for personal injuries sustained as a result of the fall, plaintiff testified that after he gave the driver his fare and obtained a transfer, he headed for a seat at the rear of the bus. According to plaintiff’s testimony, the bus began moving at a high rate of speed which he estimated to be between 25 and 30 miles per hour, and plaintiff could hear the driver cursing at and arguing with another passenger. As he was about to take a seat at the rear of the bus, the bus stopped suddenly. The force of the stop, plaintiff testified, was so great that he fell to the floor and slid the length of the bus to the front, landing at the driver’s feet. Plaintiff testified that he hit his shoulder and knee, and that he "busted” his elbow.

After hearing testimony from the driver of the bus which contradicted essentially all aspects of plaintiff’s story, the jury found that defendant was 90% at fault and plaintiff 10% at fault for plaintiff’s injuries. The trial court denied defendant’s motion to dismiss the complaint and allowed the trial to continue to determine the issue of damages. The Appellate Division reversed (198 AD2d 496), holding that plaintiff had failed to establish a prima facie case of defendant’s negligence. This was error.

To establish a prima facie case of negligence against a common carrier for injuries sustained by a passenger when the vehicle comes to a halt, the plaintiff must establish that the stop caused a jerk or lurch that was "unusual and violent” (see, Trudell v New York R. T. Corp., 281 NY 82, 85). Proof that the stop was unusual or violent must consist of more than a mere characterization of the stop in those terms by the plaintiff. Plaintiff’s proof here was sufficient to satisfy that requirement. He testified that the swiftly moving bus stopped so suddenly and violently as to propel his body down its entire length, causing injuries to his shoulder, elbow, and knee. Such testimony provided more than a mere characterization of the stop. It also provided objective evidence of the force of the stop sufficient to establish an inference that the stop was extraordinary and violent, of a different class than the jerks and jolts commonly experienced in city bus travel and, therefore, attributable to the negligence of defendant.

Accordingly, the Appellate Division order dismissing the complaint should be reversed. However, because that Court dismissed the complaint on the basis of the legal insufficiency of plaintiff’s proof, it did not reach defendant’s arguments that the verdict was contrary to the weight of the evidence (CPLR 4404 [a]) and that the damages awarded were excessive. We therefore remit to the Appellate Division for determination of those issues raised by the parties but not considered on the appeal to that Court.

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur in memorandum.

Order reversed, etc.


text:
    Christian, Podleska and Van Musschenbroek, Ltd., et al., Appellants, v Goldman, Sachs & Co. et al., Respondents.
    Submitted November 28, 1994;
    decided February 9, 1995
   Motion for leave to appeal dismissed upon the ground that appellants have failed to comply with section 500.11 (d) of the Rules of the Court of Appeals (22 NYCRR 500.11 [d]).


text:
    In the Matter of the Guardianship of Darius Ignatius M. Mental Hygiene Legal Service, Respondent; Wilbur M., Appellant.
    Submitted October 24, 1994;
    decided February 9, 1995
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that denied petitioner’s motion to enlarge the record, dismissed upon the ground that that portion of the order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied. Motion for poor person relief dismissed as academic.


text:
    Kenneth Loughry, Appellant, v Citibank (New York State) et al., Respondents.
    Submitted November 14 1994;
    decided February 9, 1995
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed that part of Supreme Court’s order denying plaintiffs motion to amend his complaint, dismissed, upon the ground that that portion of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    In the Matter of Pace University et al., Appellants, v New York City Commission on Human Rights et al., Respondents.
    Submitted January 23, 1995;
    decided February 9, 1995
   Motion, insofar as it is made by Marsha A. Lampert purportedly on behalf of Rabbi Kushner, David Stayer and Harold N. Levinson, M.D. for leave to reargue this Court’s orders dated December 21, 1994, dismissed upon the ground that Lampert is not their authorized legal representative; motion by Marsha A. Lampert on behalf of herself, insofar as it seeks leave to reargue this Court’s order dated November 29, 1994 dismissed as untimely (22 NYCRR 500.11 [g] [3]).


text:
    Park Lexington Co., Inc., Respondent, v Andre Hyman, Respondent, and Amos Lior, Appellant.
    Submitted October 24, 1994;
    decided February 9, 1995
   Motion for reargument denied. [See, 84 NY2d 858.] Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    [647 NE2d 1348, 623 NYS2d 840]
    Myers, Smith & Granady, Inc., Appellant, v New York Property Insurance Underwriting Association, Respondent.
    Argued January 5, 1995;
    decided February 14, 1995
    APPEARANCES OF COUNSEL

      Weg & Myers, P. C., New York City (Debra Ruth Wolin and Dennis T. D'Antonio of counsel), for appellant.

      Thomas E. Scott, New York City, and Ira J. Greenhill for respondent.
   OPINION OP THE COURT

Memorandum.

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

On January 27, 1988, plaintiff, owner of property at 200 West 135th Street in New York City, purchased a one-year policy from defendant insuring its property for physical (including fire) damage. In the event of loss, the policy provided that defendant could question plaintiff under oath, and it required plaintiff to sign the answers and cooperate in the investigation and settlement of the claim. The policy further provided that plaintiff could not bring legal action against defendant unless it had complied with sill of the terms of the policy and commenced the action within two years of the claimed loss.

On August 5, 1988, plaintiffs property was damaged by fire with an estimated loss of $327,377.84. Plaintiff timely notified defendant of the loss. Defendant’s subsequent inspection of the property concluded that the fire was caused by arson. Defendant conducted four examinations of plaintiff under oath, all of which had to be adjourned on consent because plaintiff failed to bring requested documents. Defendant sent plaintiff copies of each of the transcripts, but plaintiff executed and returned to defendant only the first transcript; the other three were never executed. Defendant contends that plaintiff never produced documents it requested, whereas plaintiff now claims that missing documents were destroyed in the fire. Defendant neither denied nor made payment on plaintiffs claim and asserts that the investigation of the claim was never concluded.

Plaintiff brought this action on April 24, 1991, more than three years after the fire, alleging breach of contract and “deceptive acts and practices” in violation of General Business Law § 349. Supreme Court granted summary judgment to defendant, dismissing the contract cause of action as time barred and the section 349 cause of action for failure to state a claim, and the Appellate Division affirmed, as do we.

Plaintiff makes two claims as the basis for section 349 liability. First, it contends that defendant internally rejected its claim but withheld the decision from plaintiff to avoid triggering the insurance regulation requiring it to notify plaintiff of the time limit to sue (11 NYCRR 216.6). Second, plaintiff argues that defendant acted deceptively in its method of processing the claim so as to avoid triggering the notification requirements. Alternatively, plaintiff argues that defendant either waived or is estopped from asserting the time bar on its breach of contract claim.

Even if defendant’s acts qualify as "consumer-oriented” under section 349 (see, Oswego Laborers’ Local 214 Pension Fund v Marine Midland Bank, 85 NY2d 20 [decided today]), plaintiff’s claim nonetheless must fail based on this record. Plaintiff offers no evidence to support its first contention that defendant had internally decided to reject its claim. Indeed, the record supports defendant’s position that the claim continued under investigation pending plaintiff’s production of requested documents. Similarly, plaintiff offers no evidence in support of its second argument that defendant acted improperly to ensure that the notification requirements were never triggered. Rather, plaintiff’s actions in failing to produce its documents as promised and execute the transcripts precluded the triggering of the notification requirements. Thus, as a matter of law, plaintiff’s claims under section 349 fail.

Plaintiff’s remaining arguments are without merit.

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Levine and Ciparick concur; Judge Smith taking no part.

Order affirmed, with costs, in a memorandum.


text:
    [647 NE2d 1349, 623 NYS2d 841]
    In the Matter of the Claim of Lois M. Blair, Appellant, v Bendix Corporation et al., Respondents.
    Argued January 11, 1995;
    decided February 14, 1995

      APPEARANCES OF COUNSEL

      Buckley, Mendleson & Criscione, P. C., Albany (Brendan G. Quinn of counsel), for appellant.

      Sullivan, Rehfuss, Cunningham & Brennan, Albany (Christopher R. Lemire of counsel), for Underwriters Adjusting Co., respondent.
   OPINION OF THE COURT

Memorandum.

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

Until July 1, 1974, an employee disabled by a dust disease, such as asbestosis, was entitled to workers’ compensation only in the event of total disability. Workers’ Compensation Law § 39 was amended, effective July 1, 1974, to afford a remedy to any employee disabled, whether partially or completely, as a result of exposure to noxious dust in the course of employment, provided such exposure occurred on or after July 1, 1974 (see, L 1974, ch 577, §§ 3, 6).

Claimant appellant was exposed to asbestos from August 1956 through September 1970 in the course of her employment as a stenciler and packer of brake linings for respondent. Claimant became totally disabled and stopped working in 1978 as a result of asthma and emphysema, diseases that were unrelated to her employment. She was awarded Social Security disability benefits accordingly. On March 15, 1988, claimant was diagnosed with asbestosis and, subsequently, instituted this workers’ compensation proceeding against respondent alleging injurious exposure to asbestos as a result of her employment.

The Workers’ Compensation Board found that claimant’s asbestosis was causally related to her employment at respondent’s plant. However, it also found that claimant was previously partially disabled, as a result of a "pre-existing lung disability from unrelated pulmonary emphysema and asthma” (emphasis added) and that the combination of the two unrelated conditions — asbestosis and pulmonary disease — caused her total disablement.

This Court agrees with that part of the Appellate Division’s reasoning that concluded claimant’s preexisting lung disability and her asbestosis were not inseparable causative agents of her total disability. The Workers’ Compensation Board, therefore, erroneously found that claimant sustained a compensable injury and was entitled to benefits. Since claimant’s period of exposure to asbestos predated the 1974 amendment to section 39, the recovery of workers’ compensation was contingent on her complete disablement as a result of asbestosis, a fact not evidenced by this record. The fact that claimant’s asbestosis contributed to her preexisting lung disability could not create an entitlement to compensation, prior to the 1974 amendment to section 39, absent proof that the disabling causative agents were inseparable or that the asbestosis completely disabled her.

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur.

Order affirmed, with costs, in a memorandum.


text:
    Carolyn Ackerman et al., Respondents, v Price Waterhouse, Appellant. (And One Other Action and a Third-Party Action.)
    Submitted January 17, 1995;
    decided February 14, 1995
   Motion to amend remittitur denied. The remittitur, read together with the December 6, 1994 opinion, pertains only to the April 10, 1990 complaint. [See, 84 NY2d 535.]


text:
    Peter A. DeAngelo, Doing Business as Pete DeAngelo Builders, Appellant, v Todd M. Brazauskas et al., Defendants, and Andrew J. Kraft, Respondent.
    Submitted January 30, 1995;
    decided February 14, 1995
   Motion for leave to appeal granted. Motion for a stay granted.


text:
    Maro Leather Co., Respondent, v Aerolineas Argentinas, Appellant, et al., Third-Party Defendant.
    Submitted February 6, 1995;
    decided February 14, 1995
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the Court of Appeals does not have jurisdiction to entertain the appeal (NY Const, art VI, § 3; CPLR 5601).


text:
    The People of the State of New York, Appellant, v Feliberto Corona, Respondent.
    Decided February 14, 1995
   On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), appeal dismissed upon the ground that the reversal by the Appellate Division was not "on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal” (CPL 450.90 [2] [a]).


text:
    In the Matter of Bill Saunders, Appellant, v Matthew T. Crosson, as Chief Administrator of the Courts, et al., Respondents.
    Submitted September 6, 1994;
    decided February 14, 1995
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied. Motion for a stay dismissed as academic.


text:
    Bruce Taylor, Appellant, v State of New York, Respondent.
    Submitted January 3, 1995;
    decided February 14, 1995
   Motion to dismiss appeal herein granted and appeal dismissed, with $400 costs and $100 costs of motion, without prejudice to renewal of the motion for leave to appeal upon proper substitution of a party appellant within 60 days of the date of this order. Inasmuch as appellant died prior to making the motion for leave to appeal, there was no authority for that motion.


text:
    In the Matter of Marilyn Gomprecht, Respondent, v Gustav Gomprecht, Respondent. Barbara Sabol, as Commissioner of the New York City Department of Social Services, Appellant.
    Submitted February 6, 1995;
    decided February 14, 1995
   Motion for leave to appeal granted. Motion for other relief denied.


text:
    [647 NE2d 1350, 623 NYS2d 842]
    In the Matter of Donald E. Axinn Companies, Appellant, v Board of Assessors of the County of Nassau et al., Respondents.
    Argued January 11, 1995;
    decided February 16, 1995

      APPEARANCES OF COUNSEL

      Meyer, Suozzi, English & Klein, P. C., Mineola (Michael A. Ciaffa, Bernard S. Meyer, Richard G. Fromewick and Jack Rubinstein of counsel), for appellant.

      Owen B. Walsh, County Attorney of Nassau County, East Meadow (Leon Friedman of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the judgment of Supreme Court reinstated.

Petitioner owns one acre of class 4 property in Oyster Bay, Nassau County. From 1977 until 1986, when all class 4 property was revalued and reassessed, petitioner’s property was assessed at $64,750 (8% of the stated value of its land and building). In 1986, the property was valued at $1,377,300— $1,000,000 for the land and $377,300 for the building, and the assessment set at $110,200. Petitioner filed a tax certiorari proceeding, alleging inequality and overassessment. The parties entered into a settlement stipulated to be for the tax years 1986 and 1987, reducing the assessment to $92,200 and $99,200, respectively.

As respondents concede, when the handwritten property record cards were transferred to the computer in 1986, petitioner’s property was erroneously described as four acres. Based on this error, on August 23, 1990, petitioner sought a refund and recalculation for 1989 and 1990, which remained $99,200 with each acre valued at $250,000, for a total land value of $1,000,000. Respondent Board denied petitioner’s demand on the ground that calculation of the tax owed for 1989 was based on the settlement stipulation, not the erroneous acreage. The Department of Assessment, however, corrected the acreage error and also changed petitioner’s land value from $1,000,000 for four acres to $609,840 for the single acre, and applying the percentage to the stated value of petitioner’s land and building calculated petitioner’s 1990 assessment as $99,200.

In its ensuing CPLR article 78 proceeding, petitioner supported its claim of "error of essential fact” under RPTL 550 (3) (c) by pointing to the property cards for 11 neighboring class 4 properties, all assessed in 1989 and 1990 at $250,000 per acre. Respondent introduced no evidence or argument to support the new stated valuation of $609,840 for petitioner’s single acre. As the trial court concluded, the "various exhibits submitted by petitioner consisting of property cards of properties located in the general vicinity as the subject property (including four adjacent properties) clearly demonstrate!)!] that petitioner is entitled to the relief that it seeks.” The Appellate Division reversed, determining that because the tax was calculated on the stipulated settlement the acreage error was not considered in valuing the property. We now reverse.

The undisputed evidence, including the value of nearby properties, supported the trial court’s conclusion that in this case the acreage error affected calculation of the assessment and the tax owed. We agree, further, with the trial court that reliance on the parties’ stipulation was unavailing here, as petitioner’s challenge was to years not previously settled.

Simons, J.

(dissenting). I would affirm.

The evidence in the record does not support a finding that an error in recording the acreage for petitioner’s land for the years in question "resulted in an incorrect assessed valuation” and therefore constituted an "error in essential fact” warranting relief under Real Property Tax Law § 550 (3) (c).

Petitioner is the owner of one acre of improved property in Oyster Bay. From 1977 until 1986 the property was correctly described in the handwritten records of the assessor and assessed at $64,750 (8% of full value). In 1986 the parcel and all similar property was revalued and reassessed. The new assessed value of petitioner’s property was set at $110,200. Petitioner filed a tax certiorari proceeding which resulted in a negotiated settlement for 1986-1987 and 1987-1988 reducing the assessments for those years to $92,200 and $99,200 respectively. The reductions were attributed in the settlement and on the tax records to the assessed value of the improvements; the assessed value of the land remained constant. The property has been assessed at $99,200 ever since.

In 1986, the County’s handwritten assessment records were transferred to computers and in the process petitioner’s property, previously described as approximately one acre, was erroneously described as four acres. Petitioner first discovered the error in 1990 and demanded refunds for 1989-1990, 1990-1991, 1991-1992. The assessor corrected the error but denied any refund.

The majority agree with petitioner’s contention that this error in acreage infected the valuation and resulted in the property being overassessed. Accordingly, they hold petitioner is entitled to a reduction in the assessment and a refund of taxes paid on the erroneous assessment.

It is petitioner’s burden, if it is to prevail on this proceeding, to establish that the acreage indicated by the computer records was not only erroneous but that the error was considered by the assessor and "resulted in an incorrect assessed valuation” (RPTL 550 [3] [c]). Undeniably there was an error in the size of the land recorded in the computer but in my judgment petitioner has failed to prove that the error infected the assessor’s judgment and caused an incorrect assessed valuation. Indeed, the inferences to be drawn from the evidence are the other way.

First, there is no evidence in the record that the existing assessment is unfair or unequal in relation to others or that it should be reduced because petitioner has been compelled to pay a disproportionate share of taxes. Yet the relief granted by the majority here will establish an assessment for the three years in question at $50,200, an amount far below any assessed value the property has enjoyed since at least 1977.

Second, the prior litigation addressed the assessment for the 1987 and 1988 tax years and thus the error appeared on the tax record at the time of the litigation and the June 1988 judgment settling the litigation. Because of this, one of two logical conclusions appears inescapable: (1) either the reassessment (and the ensuing settlement) was based on the correct land size on the handwritten card; or (2) if the 1986 reassessment was based on the incorrect computer record, the parties were aware of the error and — if they believed the assessors had relied on it — adjusted the assessment accordingly during the tax certiorari proceeding. Yet, there was no adjustment to the land values in the settlement and, more importantly, no evidence that the error played any part in the stipulated value contained in the settlement and carried forward for the years now in question. Nevertheless, petitioner now demands refunds for these three years, claiming the assessed value agreed upon is based on an essential error in fact. It seems obvious that if the error infected the assessment, this sophisticated petitioner, or the attorneys that represented it at that time, would have recognized that the one-acre parcel was being assessed as if it were a four-acre parcel and demanded a lower assessed land value at that time. Although the settlement and the correction of the records which followed produced inconsistencies in some of the values assigned to land or improvements in the area (a not uncommon result of tax litigation), it is manifest that the assessment agreed upon and carried forward by the assessors in following years reflects the judgment of the assessors of the value of the property as it actually exists and not a value based upon an error in the computer description of the size of the property.

I therefore dissent.

Chief Judge Kaye and Judges Bellacosa, Smith, Levine and Ciparick concur in memorandum; Judge Simons dissents and votes to affirm in an opinion in which Judge Titone concurs.

Order reversed, etc.


text:
    [647 NE2d 1353, 623 NYS2d 845]
    The People of the State of New York, Appellant-Respondent, v Evan DeMarasse, Respondent-Appellant.
    Argued January 12, 1995;
    decided February 16, 1995

      APPEARANCES OF COUNSEL

      Denis Dillon, District Attorney of Nassau County, Mineola (Margaret E. Mainusch and Peter A. Weinstein of counsel), for appellant-respondent.

      Dalit A. Yarden, Hempstead, Matthew Muraskin and Kent V. Moston for respondent-appellant.
   OPINION OF THE COURT

Memorandum.

The order of Appellate Term should be modified by reinstating the judgment of the District Court and, as so modified, affirmed.

Defendant was arrested at 2:00 a.m. after a high-speed chase on the Long Island Expressway in which he drove his vehicle from lane to lane, cut across three lanes to an exit ramp, drove over the cement and grass strip separating the exit ramp from the expressway, thereby forcing another car off the road, ran a red light at high speed and eventually was stopped by a roadblock of police vehicles three and one-half miles after the chase began. When removed from his car, defendant smelled of alcohol, acted dazed and confused and failed the sobriety tests administered to him by the police. He was removed to Central Testing at Mineóla Police Headquarters where a certified breath analysis operator administered a breath test with an Intoxilyzer 5000, a testing device approved by the Department of Health (see, Vehicle and Traffic Law § 1194 [4] [c]). On the first test the instrument displayed no reading. A second sample was taken and the Intoxilyzer displayed and then printed out a reading of .217 and the words "deficient sample — value printed was highest obtained.”

Defendant sought to suppress the results of the Intoxilyzer test but the trial court determined that any irregularity in the sample went to the weight to be accorded the reading, not its admissibility. The jury found defendant guilty of driving while intoxicated in violation of Vehicle and Traffic Law § 1192 (2) (driving with more than .10% alcohol in the blood), § 1192 (3) (common-law intoxication) and various other traffic offenses. The Appellate Term, viewing the reading as improperly received because the test was incomplete, modified by vacating the conviction under section 1192 (2) and dismissing that count and otherwise affirmed. The People and defendant were granted leave to appeal and cross appeal by a Judge of this Court.

At trial the officer administering the test and the Technical Supervisor of Central Testing testified. They explained that the Intoxilyzer is an instrument that measures blood alcohol as reflected by the alcohol content of the air exhaled from a subject’s lungs by passing a beam of infrared light through the air sample captured in the device’s chamber. The Intoxilyzer takes a reading every six tenths of a second as the subject breathes into it, thus measuring how the alcohol content in the sample changes with the passage of time as the air in the chambers comes from progressively deeper parts of the subject’s lungs. Because the instrument measures the rate of change in the alcohol content, and not just the absolute amount, the Intoxilyzer can detect "mouth alcohol” — a sudden sharp rise in the alcohol content, followed by a sharp decline —and can also detect when the alcohol concentration reaches a level state, indicating that "deep lung air” is being analyzed. Deep lung air gives the most accurate reading because the air at the bottom of the lungs is the air nearest to the blood supply, and is in equilibrium with it. If mouth alcohol is detected, the test stops, the machine gives no reading, and registers "invalid sample”. Similarly, if the air flow is insufficient or not continuous, no reading is obtained. On the other hand, a reading is obtained on a "deficient sample”. The witnesses explained that in Intoxilyzer terminology a "deficient” sample is not an invalid sample, but merely one in which the subject did not breathe for a long enough period of time to reach sufficient deep lung air to give the most accurate reading obtainable.

The technicians testified that a full sample — which includes a sufficient amount of deep lung air — will invariably give a reading that is equal to, or higher than, the reading obtained from a "deficient” sample or, conversely, the reading for a "deficient” sample will always be lower than or equal to that obtained from a full sample. In other words, any inaccuracy of result will work to the subject’s benefit. Moreover, the Intoxilyzer is calibrated to give a result that is always 10% lower than the true reading. Thus, the officers testified that defendant’s blood alcohol content was at least .217 on the night he was tested. With this uncontradicted testimony, and the officers’ further testimony that the Intoxilyzer was in proper working condition and that the test itself was properly administered, the People established a sufficient foundation for reception of the evidence. Once it was received, the jury was entitled to credit it to determine that defendant was driving with more than .10% alcohol in his blood in violation of section 1192 (2).

Insofar as the cross appeal is concerned, the other evidence, apart from the Intoxilyzer results, was legally sufficient to establish that defendant was driving while intoxicated under the common-law standard.

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur.

Order modified in accordance with the memorandum herein and, as so modified, affirmed.


text:
    [647 NE2d 1355, 623 NYS2d 847]
    The People of the State of New York, Respondent, v Jose Ardila, Also Known as Jose Ardilla, Appellant.
    Argued January 11, 1995;
    decided February 16, 1995
    APPEARANCES OF COUNSEL

      David B. Weisfuse, White Plains, and Stephen J. Pittari for appellant.

      Jeanine Pirro, District Attorney of Westchester County, White Plains (Richard Longworth Hecht and Richard E. Weill of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The trial court did not err in instructing the jury, over defense counsel’s objection, that voluntary "intoxication” as that term is used in Vehicle and Traffic Law § 1192 (3) means the voluntary consumption of alcohol to the point where the individual’s "ability to drive safely [i]s impaired to a substantial extent” (emphasis supplied) (see, 3 CJI, Vehicle and Traffic Law § 1192, at 2303). Contrary to defendant’s contention, there is no meaningful semantic difference between being so inebriated that one’s "ability to drive safely is impaired to a substantial extent” — the formula used by the trial court here —and being so inebriated that one is "incapable of employing the physical and mental abilities which [one] is expected to possess in order to operate a vehicle as a reasonable and prudent driver” — the formula used by this Court in People v Cruz (48 NY2d 419, 428). While the term "incapable” may connote absolute inability in the abstract, it loses that unconditional quality when it is used in conjunction with a relative concept like operating a vehicle in a "reasonable and prudent” manner (see, id.; see also, Matter of Johnston, 75 NY2d 403).

Thus, in this context, the trial court’s description of "intoxication” as having one’s ability to drive safely impaired "to a substantial extent” did not in any way diminish the People’s burden of proof. It was, in fact, useful in clarifying the distinction between driving while intoxicated (Vehicle and Traffic Law § 1192 [3]) and driving while impaired (Vehicle and Traffic Law § 1192 [1]), which requires a lesser showing that the accused’s driving faculties were impaired "to any extent” (People v Cruz, supra, at 427). Accordingly, the court’s instruction furnishes no ground for reversal.

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur.

Order affirmed in a memorandum.


text:
    In the Matter of Ellen Benson, Respondent, v Board of Education of the Washingtonville Central School District, Appellant.
    Submitted February 6, 1995;
    decided February 16, 1995
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no appeal lies from the Appellate Division order pursuant to stipulation for judgment absolute under CPLR 5601 (c) where the Appellate Division did not order a new trial or hearing within the meaning of CPLR 5601 (c).


text:
    In the Matter of James Davis, Appellant, v Victor Herbert, as Superintendent of the Collins Correctional Facility, et al., Respondents. (And a Similar Proceeding.)
    (Appeal No. 1.)
    Submitted December 19, 1994;
    decided February 16, 1995
   Motion, insofar as it seeks leave to appeal from the Appellate Division order that affirmed Supreme Court’s order denying in part petitioner’s motion for access to certain records, dismissed upon the ground that that order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    In the Matter of Paul Iacono, Appellant, v Police Department of the City of New York, Respondent.
    Submitted November 21, 1994;
    decided February 16, 1995
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that denied petitioner’s motion to strike respondent’s reply brief, dismissed upon the ground that that portion of 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, with $100 costs and necessary reproduction disbursements.