author: Jasen, J.

text:
    In the Matter of Charles J. Hynes, as Deputy Attorney-General of the State of New York, Respondent, v Laurence Moskowitz et al., Appellants. In the Matter of Queens Nassau Nursing Home et al., Appellants, v Charles J. Hynes, as Deputy Attorney-General of the State of New York, Respondent. In the Matter of Far Rockaway Nursing Home et al., Appellants, v Charles J. Hynes, as Deputy Attorney-General of the State of New York, Respondent.
    Argued March 29, 1978;
    decided May 4, 1978

      POINTS OF COUNSEL

      Barry Ivan Slotnick and Jay L.T. Breakstone for appellants in the first above-entitled proceeding.
    I. It was unconstitutional for the court below to order surrender of possession of books and records on the basis of an office subpoena duces tecum. (Matter of Windsor Park Nursing Home v Hynes, 42 NY2d 243; Matter of Heisler v Hynes, 42 NY2d 250; Jones v United States, 357 US 493; Katz v United States, 389 US 347; United States v United States Dist. Ct., 407 US 297; See v City of Seattle, 387 US 541; Mancusi v DeForte, 392 US 364; Matter of Beatty v Commission of Investigation of State of N. Y., 16 AD2d 1021, 12 NY2d 685; Berger v New York, 388 US 41; Myerson v Lentini Bros. Moving & Stor. Co., 33 NY2d 250.) II. CPLR 2305 (subd [c]) and section 63 (subd 8) of the Executive Law work an impermissable delegation of power to the executive. (Youngstown Co. v Sawyer, 343 US 579; California Bankers Assn. v Schultz, 416 US 21; Oklahoma Press Pub. Co. v Walling, 327 US 186; United States v Dionisio, 410 US 1;
      United States v Biswell, 406 US 311; Cantwell v Connecticut, 310 US 296.)

      Charles J. Hynes, Deputy Attorney-General (T. James Bryan and Frank J. Marine of counsel), for respondent in the first above-entitled proceeding.
    I. The new amendments to the Executive Law and to the CPLR give the issuer of a subpoena duces tecum the right to possession of the subpoenaed materials without a showing of good cause. (Matter of Windsor Park Nursing Home v Hynes, 42 NY2d 243; Matter of Heisler v Hynes, 42 NY2d 250; Myerson v Lentini Bros. Moving & Stor. Co., 33 NY2d 250; Matter of Lewis v Hynes, 82 Misc 2d 256; United States v Bell, 564 F2d 953.) II. The new amendments to the Executive Law and the CPLR are constitutional. (Matter of Windsor Park Nursing Home v Hynes, 42 NY2d 243; Myerson v Lentini Bros. Moving & Stor. Co., 33 NY2d 250; Branzburg v Hayes, 408 US 665; Matter of Manning v Valente, 272 App Div 358, 297 NY 681; Matter of Heisler v Hynes, 42 NY2d 250; Katz v United States, 389 US 347; United States v Miller, 425 US 435; Boyd v United States, 116 US 616.) III. Appellant’s argument about the lawfulness of the Legislature’s delegation of subpoena power to the executive was not raised below and should not be considered on this appeal. (Oklahoma Press Pub. Co. v Walling, 327 US 186.)

      Marc Freedman and George S. Meissner for appellants in the second and third above-entitled proceedings.
    I. CPL 610.25 is unconstitutionally vague, ambiguous and indefinite. (People v Grogan, 260 NY 138; Giaccio v Pennsylvania, 382 US 399; Matter of Heisler v Hynes, 42 NY2d 250; Matter of Windsor Park Nursing Home v Hynes, 42 NY2d 243.) II. Grand Jury authority cannot be usurped by the District Attorney. III. The standard of good cause shown is insufficient to protect the right of appellant to be free from unreasonable searches and seizures. It may not be used to transform a subpoena duces tecum into a search warrant. (Matter of Gay Cottons v Hogan, 55 Misc 2d 126; Cataldo v County of Monroe, 38 Misc 2d 768, 19 AD2d 852; Matter of Landegger [de Vries — Parsons & Wittemore, Inc.], 269 App Div 736; Matter of Amalgamated Union, Local 224 v Levine, 31 Misc 2d 416; Matter of Bendix Aviation Corp., 58 F Supp 953; Matter of Heisler v Hynes, 42 NY2d 250; United States v Blumberg, 38 F Supp 1018; United States v Birrell, 242 F Supp 191; People v Dantzig, 40 AD2d 576; Carroll v United States, 267 US 132.)

      Charles J. Hynes, Deputy Attorney-General (T. James Bryan and Frank J. Marine of counsel), for respondent in the second and third above-entitled proceedings.
    I. CPL 610.25 is not unconstitutionally vague. (Matter of Heisler v Hynes, 42 NY2d 250.) II. Appellants’ argument that permitting a prosecutor to independently examine subpoenaed evidence will compromise the independence of the Grand Jury, an argument never made below, is meritless. (Branzburg v Hayes, 408 US 665; United States v United States Dist. Ct. of Southern W. Va., 238 F2d 713; United States v Universal Mfg. Co., 525 F2d 808; United States v Kleen Laundry & Cleaners, 381 F Supp 519.) III. CPL 610.25 does not authorize a search and seizure for which probable cause to believe a crime has been committed is required by the Fourth Amendment. (United States v Miller, 425 US 435; United States v Dionisio, 410 US 1; Hale v Henkel, 201 US 43; Matter of Horowitz, 482 F2d 72, 414 US 867; Matter of Koota v Columbo, 17 NY2d 147, 384 US 1001; Matter of Maison & Co. v Hynes, 50 AD2d 13; Branzburg v Hayes, 408 US 665; United States v United Distillers Prods. Corp., 156 F2d 872; Wirtz v Local No. 502, Int. Hod Carriers & Common Laborers Union [AFL-CIO], 217 F Supp 155; Federal Trade Comm, v Standard Amer., 195 Supp 801, 306 F2d 231.)
   OPINION OF THE COURT

Jasen, J.

In these three cases involving Mountain View Home for Adults, Queens Nassau Nursing Home and Far Rockaway Nursing Home, all of which present substantially the same issues, direct appeals are taken on constitutional grounds from three separate orders of the Supreme Court.

The Mountain View Home appeal is taken from an order directing compliance with a subpoena duces tecum issued by respondent, the Special Prosecutor for Nursing Homes (Deputy Attorney-General), on October 7, 1977. The subpoena required the production of various books and records of the home at the office of the Special Prosecutor. The schedule attached to the subpoena, detailing the specific items sought, included 24 general categories of books and records encompassing essentially all appellant’s business records.

When it became apparent that appellant nursing home would not comply with the subpoena, the Special Prosecutor moved for an order to compel compliance pursuant to CPLR 2308 (subd [b]). In addition to seeking production of the documents, the Special Prosecutor also sought "possession * * * [of the subpoenaed materials] for the inspection, examination or audit” as authorized by subdivision 8 of section 63 of the Executive Law and CPLR 2305 (subd [c]). Appellants opposed the motion alleging that subdivision 8 of section 63 of the Executive Law and CPLR 2305 (subd [c]) violate the Fourth Amendment proscription against unreasonable searches and seizures. The statutes were also challenged as being unconstitutionally vague, and it was further argued that compulsion to produce potentially incriminating evidence contravenes the constitutional right against self incrimination.

In support of the motion to compel compliance, the Special Prosecutor argued that several allegedly illicit activities conducted at the home justified both the investigation and the subpoena. The Special Prosecutor informed the court that a sexual abuse complaint had been lodged against a resident of the home, that a number of residents had been improperly transferred to the home, and that a civil action was pending against the home for improperly withholding funds.

After a hearing, Supreme Court directed that the subpoenaed books and records be delivered to the Special Prosecutor no later than 5 p.m. on December 20, 1977. Because of the pending appeal, a motion to stay enforcement of the subpoena has been granted, and the subpoenaed materials have been placed in the custody of the Clerk for the County of Rockland.

In the Queens Nassau Nursing Home case, direct appeal is taken on constitutional grounds from an order of Supreme Court, Queens County, denying appellant’s motion to quash a Grand Jury subpoena duces tecum issued on August 1, 1977. Appellant contends that the statute authorizing the Grand Jury and the Special Prosecutor to retain the subpoenaed materials is unconstitutionally vague, violative of the Fourth Amendment proscription against unreasonable searches and seizures, and contrary to the purpose of the Grand Jury as a body immune to governmental interference and control.

Review of the history of this case is necessary to understand fully its posture. On November 1, 1976, a Queens County Grand Jury subpoena duces tecum was served on appellant Herman Greenbaum, a partner of Queens Nassau Nursing Home, commanding production of the books and records of the nursing home for 1973 to 1976. Greenbaum moved to quash the subpoena on the grounds that it violated his constitutional right against self incrimination, that the subpoena was over-broad and that it had been served improperly. On November 5, 1976, the motion was denied.

Subsequently indicted on one count of conspiracy in the fourth degree and 22 counts of willful violation of the health laws, Greenbaum was arraigned on November 16, 1976. The indictment charged that Greenbaum had engaged in a scheme to obtain kickbacks from a vendor of the nursing home.

On December 2, 1976, Greenbaum appeared before the Grand Jury, and produced only some of the subpoenaed materials. An oral motion seeking return of the records was denied. This motion was renewed in writing. In denying the renewed motion, Supreme Court permitted Greenbaum to be present during examination of the records if he so desired, but on reargument the order was modified to disallow Greenbaum’s presence during inspection.

Faced with Greenbaum’s persistent refusal to comply with the subpoena, the Special Prosecutor moved to have Greenbaum held in contempt. Supreme Court, Queens County, withheld decision pending our determination of Matter of Heisler v Hynes (42 NY2d 250) and Matter of Windsor Park Nursing Home v Hynes (42 NY2d 243). The holding in those cases, forbidding the Special Prosecutor from retaining custody of the documents sought by a Grand Jury or officer subpoena duces tecum, absent statutory authority, prompted the Special Prosecutor to withdraw the contempt motion.

Shortly after the Heisler and Windsor Park decisions, the Legislature enacted CPL 610.25, which authorized limited possession and retention by the Special Prosecutor of materials subpoenaed by the Grand Jury. The Grand Jury subpoena duces tecum now challenged was issued on August 1, 1977, pursuant to the newly enacted CPL 610.25. It required production of 17 categories of books and records of the home from 1973 to 1976. A motion to quash the subpoena on the ground that CPL 610.25 is unconstitutional was denied. Pending resolution of this appeal, the subpoenaed records have been impounded by the Supreme Court, Queens County.

In the Far Rockaway Nursing Home case, Laszlo Szanto, a partner in the nursing home, was served with a Grand Jury subpoena duces tecum on August 1, 1977, commanding production of books and records of the home for 1970 to 1976. A motion to quash the subpoena on grounds of unconstitutionality was denied by Supreme Court, Queens County.

This history of this case is similar to that of the Queens Nassau Nursing Home case. In October of 1976, a Grand Jury subpoena duces tecum was issued to Szanto commanding production of the home’s books and records. Szanto moved to quash the subpoena, asserting his constitutional right against self incrimination. He also alleged that the subpoena was overbroad, and was served improperly. On November 5, 1976, the motion was denied.

On November 12, 1976, Szanto was indicted on one count of conspiracy in the fourth degree and 14 counts of willful violation of the health laws. As was the case with Greenbaum, Szanto was charged with involvement in a kickback scheme.

Because Szanto refused to comply with the subpoena, the Special Prosecutor moved to hold him in contempt. Supreme Court, Queens County, ordered that Szanto would be held in contempt if he failed to comply with the subpoena by June 7, 1977. The Heisler and Windsor Park decisions, however, prompted the withdrawal of the contempt motion.

Passage of CPL 610.25 led to the issuance of the presently challenged Grand Jury subpoena duces tecum. Denying appellants’ motion to quash, Supreme Court, Queens County, held the statute constitutional, and ordered that the subpoenaed documents be placed in the custody of the Supreme Court, Queens County. However, most of the documents have not been delivered to the court due to an alleged burglary at Far Rockaway Nursing Home which allegedly occurred on June 6, 1977.

Before proceeding to the various constitutional arguments raised against the three challenged statutes, a general overview of these provisions will be instructive. CPL 610.25 provides that where a subpoena duces tecum is issued upon reasonable notice to the subpoenaed party, "Such evidence may be retained by the court, grand jury or district attorney on behalf of the grand jury.” The reasonableness, duration and conditions of such possession shall be determined by the court with consideration for, among other things, the "good cause” shown by the issuing party, the rights and legitimate needs of the subpoenaed person, and the feasibility and appropriateness of copying the subpoenaed material.

Subdivision 8 of section 63 of the Executive Law empowers the Attorney-General to issue office subpoenas duces tecum and to possess and retain subpoenaed materials in accordance with the provisions of the CPLR. In language nearly identical to that of CPL 610.25, CPLR 2305 (subd [c]) provides the bounds of reasonable possession and retention of subpoenaed documents.

On the present appeal, in Queens Nassau and Far Rockaway, CPL 610.25 is challenged as being unconstitutionally vague in violation of the constitutional right to due process of law in that the statute fails to define what is meant by the phrase, "good cause shown by the party issuing the subpoena”, and that the statute fails to specify whether "good cause” must be shown prior to the issuance of the subpoena or only upon challenge to the possession of the subpoenaed documents. The same vagueness argument is raised in Mountain View, attacking the constitutionality of CPLR 2305 (subd [c]) and subdivision 8 of section 63 of the Executive Law. Because CPL 610.25 and CPLR 2305 (subd [c]) are cast in nearly identical language, challenges, that they are unconstitutionally vague will be considered together.

We conclude that the statutes are not unconstitutionally vague in either respect. A reading of the statutes quickly dispels the slightest trace of ambiguity. We believe the phrase "good cause shown by the issuer”, as it appears in the statutes, means precisely what it says — good reason to be shown by the issuer why the possession required by the subpoena should be continued for a reasonable time. It does not refer to something which the issuer must show the court before a subpoena is issued, but, rather, it refers to one factor "among other things” to be considered by the court in determining a challenge by the subpoenaed party after the subpoena is issued as to the extent of possession to which the issuer of the subpoena is entitled. Good cause means, then, a sufficient justification to possess the subpoenaed documents for a reasonable period of time in conjunction with the pending investigation. Indeed it would be anomalous to require an in-court showing of good cause for possession prior to issuance since the very validity of the subpoena need not be demonstrated in court before the subpoena issues.

And if more need be said, reference to the legislative history conclusively establishes the intended statutory meaning. The intent behind the new law was explained as follows: "[F]or the first time in New York law the witness whose records are subpoenaed will have some specific statutory safeguards to assert, to limit the prosecutor’s power and to protect the witness’ rights in terms of possession and in terms of the times and conditions of that possession”.

"[T]here could be recourse in the courts either on a motion to compel or a motion to quash or modify * * * No court order is required though in advance”. (Emphasis added.) (Statement made before State Assembly, Richard Gottfried, Chairman of the Assembly Codes Committee.)

We would also observe that the statutes do not affect the law as it existed prior to their enactment with respect to the obligation of a person served with a nonjudicial subpoena duces tecum. A person subject to a nonjudicial subpoena duces tecum may challenge it in court if the subpoena requires the production of irrelevant or immaterial documents (Carlisle v Bennett, 268 NY 212), or is used as an instrument of harassment (Matter of A’Hearn v Committee on Unlawful Practice of Law of N. Y. County Lawyers’ Assn., 23 NY2d 916, cert den 395 US 959). Likewise, where the subpoenaed person fails to comply with the subpoena, the issuer may move to compel compliance. On such a motion, the issuer must show that the items sought to be subpoenaed "have some relevancy and materiality to the matter under investigation”. (Carlisle v Bennett, supra, at p 218; Matter of La Belle Creole Int., S. A. v Attorney-General of State of N. Y., 10 NY2d 192, 196.) While a showing of probable cause or probative evidence to suspect illicit activity need not be shown to support a subpoena, evidence so scant that it does not legitimately raise an issue of impropriety is not enough. (Myerson v Lentini Moving & Stor. Co., 33 NY2d 250, 256.) Bifurcation of the power, on the one hand, of the public official to issue subpoenas duces tecum and, on the other hand, of the courts to enforce them, is an inherent protection against abuse of subpoena power. The statutes challenged as vague in these cases do not alter these well-settled principles in any way, for they speak only to the right and duration of possession of subpoenaed documents, and not to the validity of the subpoenas.

It is further argued by appellants that the challenged statutes are violative of the Fourth Amendment proscription against unreasonable searches and seizures in authorizing the seizure and retention of subpoenaed materials without a showing of probable cause. We find this argument unpersuasive. Unlike searches and seizures, where a preliminary showing of probable cause is required before a warrant may issue, a Grand Jury is not saddled with such a requirement in issuing a subpoena duces tecum. To do so would assuredly impede its broad investigative powers to determine whether a crime has been committed and who has committed it. All that is required under the State and Federal Constitutions is that the subpoenaed materials be relevant to the investigation being conducted and that the subpoena not be overbroad or unreasonably burdensome. (Myerson v Lentini Moving & Stor. Co., 33 NY2d 250, supra; Matter of Horowitz, 482 F2d 72, 75-79, cert den 414 US 867.)

This constitutional guarantee seeks to balance the interests of society in discovering evidence of criminal activity with the right of the individual to be free from unjustifiable governmental intrusions. To be sure, an intrusion imposed on a person subject to a search and seizure is substantial. A search is conducted without advance notice and the scene of the search may be an individual’s home. Where resistance is encountered, the search may be effected by the threat or use of force. These considerations demand that a warrant issue only if supported by probable cause.

But these considerations do not apply with equal force to the Grand Jury subpoena duces tecum. (Hale v Henkel, 201 US 43, 76.) It is served in the same manner as any other legal process, and may be challenged, before compliance, in a motion to quash. (Matter of Manning v Valente, 272 App Div 358, affd 297 NY 681; United States v Doe [Schwartz], 457 F2d 895, 898, cert den 410 US 941.) If the motion to quash is denied and compliance ordered, no search is conducted, nor is there a threat or actual use of force. (Matter of B. T. Prods. v Barr, 44 NY2d 226.) Rather, the materials sought are furnished by the subpoenaed person himself at a time and place prescribed by the court. It should also be noted that a search warrant, unlike the subpoena, is not a preliminary investigatory tool, but is rather a device for obtaining evidence intended to be used against a defendant where probative support of his guilt is already known to the authorities. Clearly, the concerns which require that constitutional protections attach when a warrant issues do not apply equally when an investigatory subpoena duces tecum is served. Hence, "a subpoena to appear before a grand jury is not a 'seizure’ in the [constitutional] sense, even though that summons may be inconvenient or burdensome.” (United States v Dionisio, 410 US 1, 9.)

It is also noteworthy that the challenged subpoenas seek the production of business records and not personal papers. The applicability of the State and Federal Constitutions which protect personal papers from unreasonable searches and seizures has been questioned where a subpoena seeks those types of business records concerning which there is no serious expectation of privacy. (E.g., United States v Miller, 425 US 435, 445.) This is particularly true of records of a business subject to governmental control or license.

Turning to the challenged statute, CPL 610.25, which goes beyond the mere authorization of Grand Jury subpoenas by providing for the limited possession and retention of the subpoenaed records by the issuer, consideration must be given to whether the statute provides adequate safeguards to insure that the retention of subpoenaed items serves a legitimate public purpose and is reasonable in its scope and duration. (Robert Hawthorne, Inc. v Director of Internal Revenue, 406 F Supp 1098, 1106.) That the challenged statute serves a legitimate public purpose in facilitating the Grand Jury to conduct investigations is clear. But to allow the Grand Jury to possess subpoenaed records indefinitely or to possess documents not needed for investigative purposes might well signal a violation of constitutional standards. The challenged statute safeguards against such abuses providing that "[t]he reasonableness of such possession, time, terms, and conditions shall be determined with consideration for, among other things, (a) the good cause shown by the party issuing the subpoena or in whose behalf the subpoena is issued, (b) the rights and legitimate needs of the person subpoenaed and (c) the feasibility and appropriateness of making copies of the evidence.” These guidelines set the bounds of reasonableness regarding the conditions and duration of the retention of subpoenaed materials. The Grand Jury is not given unchecked power to hold subpoenaed records indefinitely. On a motion to limit the possession of subpoenaed materials, the reasonablenss of the terms and duration of possession will be determined by the court. Hence, we believe such statutory safeguards comply with constitutional requirements. They help insure the smooth and uninterrupted functioning of the Grand Jury, while limiting the intrusion borne by those who are the subject of investigation.

Moreover, appellants’ contention that CPL 610.25 allows the District Attorney to pervert the function of the Grand Jury is also without merit. It is true, as appellants urge, that one of the purposes of the Grand Jury is to provide a buffer between the prosecutor and the criminal suspect. Thus, the issuance of indictments by the Grand Jury must be made independently. The Grand Jury, however, is also an investigatory body with broad inquisitorial powers, and the District Attorney is its legal advisor. (CPL 190.25, subd 6.) To discharge its responsibility of criminal investigation most effectively, the Grand Jury must act in close co-operation with the District Attorney. So long as the subpoenaed materials relate to a legitimate Grand Jury investigation, it would defy common sense to deprive the District Attorney access to them.

By like reasoning, subdivision 8 of section 63 of the Executive Law and CPLR 2305 (subd [c]), which provide for the retention of documents acquired by an office subpoena issued by the Attorney-General, must also be held constitutional. As is true of the Grand Jury subpoena duces tecum, the office subpoena duces tecum imposes only a minor infringement on one’s expectation of privacy. Thus, we conclude that the same relatively relaxed constitutional standards as were applied to CPL 610.25 be applied in testing the validity of subdivision 8 of section 63 of the Executive Law and CPLR 2305 (subd [c]). (Oklahoma Press Pub. Co. v Walling, 327 US 186, 195.) Our inquiry is, therefore, limited to whether these statutes promote the public interest and prescribe sufficient safeguards that the terms of retention will not unduly burden the subpoenaed party.

That the Attorney-General serves a vital public purpose is beyond doubt; he is given broad investigatory responsibilities in matters of public safety and welfare. We have already concluded that investigation into the rampant corruption in nursing homes is a proper exercise of this authority. (Matter of Sigety v Hynes, 38 NY2d 260, cert den 425 US 974.) To facilitate his effectiveness in carrying out such investigations, the Legislature has granted the Attorney-General the power to issue subpoenas, and to retain custody of the subpoenaed materials within the bounds of reasonableness.

While the duration and terms of retention must, of course, comport with constitutional standards, we are satisfied that CPLR 2305 (subd [c]) meets these standards for it provides precisely the same detailed guidelines as does CPL 610.25 to assure that the retention of the subpoenaed documents will be supported by good cause and will be limited to a reasonable period of time. In addition, the statute provides that the needs of the subpoenaed party be considered to assure that the possession of the subpoenaed records by the Attorney-General will not prove unduly onerous to the subpoenaed party. The Constitution demands no more.

Accordingly, the orders of Supreme Court, Queens County, and Supreme Court, Rockland County, should be affirmed, with costs.

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

In each case: Order affirmed, with costs.

      . Laurence Moskowitz, Manager of Mountain View Nursing Home, was also served with a subpoena and is a party in this proceeding.

      . CPL 610.25, effective July 19,1977, provides as follows:
      "Securing attendance of witness by subpoena; possession of physical evidence.
      "1. Where a subpoena duces tecum is issued on reasonable notice to the person subpoenaed, the court or grand jury shall have the right to possession of the subpoenaed evidence. Such evidence may be retained by the court, grand jury or district attorney on behalf of the grand jury.
      "2. The possession shall be for a period of time, and on terms and conditions, as may reasonably be required for the action or proceeding. The reasonableness of such possession, time, terms, and conditions shall be determined with consideration for, among other things, (a) the good cause shown by the party issuing the subpoena or in whose behalf the subpoena is issued, (b) the rights and legitimate needs of the person subpoenaed and (c) the feasibility and appropriateness of making copies of the evidence. The cost of reproduction and transportation incident thereto shall be borne by the person or party issuing the subpoena unless the court determines otherwise in the interest of justice.”

      . Amended subdivision 8 of section 63 of the Executive Law, effective July 19, 1977, provides: "8. * * * The attorney-general, his deputy, or other officer, designated by him, is empowered to subpoena witnesses, compel their attendance, examine them under oath before himself or a magistrate and require that any books, records, documents or papers relevant or material to the inquiry be turned over to him for inspection, examination or audit, pursuant to the civil practice law and rules. If a person subpoenaed to attend upon such inquiry fails to obey the command of a subpoena without reasonable cause, or if a person in attendance upon such inquiry shall, without reasonable cause, refuse to be sworn or to be examined or to answer a question or to produce a book or paper, when ordered so to do by the officer conducting such inquiry, he shall be guilty of a misdemeanor.”

      . Effective July 19, 1977, subdivision (c) was added to CPLR 2305. The new subdivision provides in pertinent part: "(c) Inspection, examination and audit of records. Whenever by statute any department or agency of government, or officer thereof, is authorized to issue a subpoena requiring the production of books, records, documents or papers, the issuing party shall have the right to the possession of such material for a period of time, and on terms and conditions, as may reasonably be required for the inspection, examination or audit of the material. The reasonableness of such possession, time, terms, and conditions shall be determined with consideration for, among other things, (i) the good cause shown by the issuing party, (ii) the rights and needs of the person subpoenaed, and (iii) the feasibility and appropriateness of making copies of the material.”

      . The Practice Commentary regarding CPL 610.25 relates the legislative purpose of the challenged provisions.
      "This amendment is part of an integrated package involving CPLR 2305, Penal Law § 215.70, Executive Law § 63, subdivision 8, and CPL § 190.25.
      "It was sought by the Attorney General and the Special Prosecutor for Nursing Homes in order to offset and effectively overrule Matter of Heisler v. Hynes, 42 N.Y.2d 250, and Matter of Windsor Park Nursing Home v. Hynes, 42 N.Y.2d 243, decided by the Court of Appeals on July 7,1977, reargument denied, 42 N.Y.2d [1015], September 9,1977.
      "In what has to be one of the speediest legislative overrulings of a judicial determination in recorded history, these amendments were approved as law and became effective on July 19,1977.
      "The net purpose, assuming constitutionality of the new legislative package is to permit the subpoenaing agency to retain in its possession books, documents and records for examination and audit.
      "The length of time and the terms and conditions for retention are set forth in the statute and a practical balance is sought to be struck between the good cause shown by the subpoenaer and the rights and needs of the subpoenaed including feasibility of reproduction with all costs to be borne by the subpoenaer unless the Court determines otherwise in the interest of justice.” (Bellacosa, Practice Commentary, McKinney’s Cons Laws of NY, Book 11A, CPL 610.25.)


source: Caselaw Access Project

author: Fuchsberg, J.

license: Public Domain

text:
    In the Matter of John Beary, Appellant, v City of Rye, Respondent. Monica Rodriguez, an Infant, by Her Mother and Natural Guardian, Gladys Rodriguez, Appellant, v City of New York et al., Respondents, et al., Defendants. In the Matter of June Pauletti, on Behalf of Her Infant Daughter, Donna M. Pauletti, Appellant, v Freeport Union Free School District No. 9, Respondent. In the Matter of Mary Smalls, Respondent, v New York City Health and Hospitals Corporation et al., Appellants. Edith M. Merced et al., Appellants, v New York City Health and Hospitals Corporation, Respondent.
    Argued February 14, 1978;
    decided May 4, 1978

      POINTS OF COUNSEL

      David I. Grauer for appellant in the first above-entitled case.
    I. This court possesses the jurisdiction to hear and determine the issues raised by this appeal. (Matter of Irving Trust Co., 267 NY 102; Hansen v City of New York, 299 NY 136; Matter of Reynolds v Cropsey, 241 NY 389; Stock v Mann, 255 NY 100.) II. The historical antecedents to the recent amendments to the General Municipal Law and accepted statutory construction dictate that the saving provisions of subdivision 5 of section 50-e be deemed retroactive. (Maxmillian v Mayor, Aldermen & Commonalty of City of N. Y., 62 NY 160; Matter of Evans v Berry, 262 NY 61; Bernardine v City of New York, 294 NY 361; Bender v New York City Health & Hosps. Corp., 38 NY2d 662; Camarella v East Irondequoit Cent. School Bd., 34 NY2d 139; Pugh v Board of Educ., 38 AD2d 619, 30 NY2d 968; Matter of Tricou v Town of Duanesburg, 23 AD2d 949; Matter of Busch v Austin Co., 37 AD2d 648.) III. Matter of Pauletti is distinguishable from the case at hand and this court need not reverse that case in order to reverse the court below in the instant matter. (Weed v County of Nassau, 42 AD2d 848, 34 NY2d 723; Camarella v East Irondequoit Cent. School Bd., 34 NY2d 139; Matter of Pauletti v Freeport Union Free School Dist. No. 9, 59 AD2d 556; Matter of Martin v School Bd. of Union Free Dist. No. 28, Longbeach, 301 NY 233; Rippe v City of Rochester, 57 AD2d 723; Abbatemarco v Town of Brookhaven, 26 AD2d 664; La Fave v Town of Franklin, 20 AD2d 738; Corbett v Fayetteville-Manlius Cent. School Dist., 34 AD2d 379; Winbush v City of Mount Vernon, 306 NY 327.)

      David E. Worby and Lawrence T. D’Aloise, Jr., for respondent in the first above-entitled case.
    I. The 1976 amendments to subdivision 5 of section 50-e of the General Municipal Law are neither remedial nor procedural and were intended to operate prospectively only. (Matter of Mulligan v Murphy, 14 NY2d 223; Benton v Wickwire, 54 NY 226; Shielcrawt v Moffett, 294 NY 180; Jacobus v Colgate, 217 NY 235; Matter of Deutsch v Catherwood, 31 NY2d 487; Gleason v Gleason, 32 AD2d 402, 26 NY2d 28; Hastings v Byllesby & Co., 293 NY 413.) II. Plaintiff-appellant is not entitled to relief under either reading of subdivision 5 of section 50-e of the General Municipal Law. (Rippe v City of Rochester, 57 AD2d 723; Matter of Smalls v New York City Health & Hosps. Corp., 55 AD2d 537; Camarella v East Irondequoit Cent. School Bd., 34 NY2d 139.)

      Stephen K. Blunda for appellant in the second above-entitled case.
    I. The September 1, 1976 amendment to subdivision 5 of section 50-e of the General Municipal Law is applicable to the case at bar. (Camarella v East Irondequoit Cent. School Bd., 34 NY2d 139; Matter of Murray v City of New York, 30 NY2d 113; Shielcrawt v Moffett, 294 NY 180; Matter of Berkovitz v Arbib & Houlberg, 230 NY 261; Matter of Mlodozeniec v Worthington Corp., 9 AD2d 21, 8 NY2d 918, 364 US 628.) II. Under recently amended subdivision 5 of section 50-e of the General Municipal Law, the application for leave to serve late notices of claim on behalf of Monica Rodriguez is timely. (Abbatemarco v Town of Brookhaven, 26 AD2d 664; La Fave v Town of Franklin, 20 AD2d 738; Corbett v Fayetteville-Manlius Cent. School Dist., 34 AD2d 379; Smith v Rensselaer County, 52 AD2d 384; Kratz v Dussault, 33 AD2d 826; Correa v Board of Educ., 27 AD2d 907.) III. Under the circumstances of this case, the application to allow notices of claim to be served on behalf of Monica Rodriguez should be granted. (Matter of Murray v City of New York, 30 NY2d 113.)

      W. Bernard Richland, Corporation Counsel (Irving Cohen and Bernard Burstein of counsel), for respondents in the second above-entitled case.
    The recent amendment to section 50-e of the General Municipal Law is not to be applied retroactively so as to reverse a determination of the court below, which denied an application for leave to file a late notice of claim, where the events upon which the application is based occurred almost six years prior to the filing of the application. (Matter of Moore v City of New York, 302 NY 563; Camarella v East Irondequoit Cent. School Bd., 34 NY2d 139; Weed v County of Nassau, 42 AD2d 848, 34 NY2d 723; Matter of Mulligan v Murphy, 14 NY2d 223; Montez v Metropolitan Transp. Auth., 43 AD2d 224; Berger v City of New York, 260 App Div 402, 285 NY 723; Jacobus v Colgate, 217 NY 235; Matter of Ayman v Teachers’ Retirement Bd. of City of N. Y., 9 NY2d 119; Matter of Deutsch v Catherwood, 31 NY2d 487.)

      Bruce E. Bushlow and Andrew L. Wurman for appellant in the third above-entitled case.
    I. Section 50-e, as amended, does not require retrospective application in order to afford relief to the injured infant, Donna Marie Pauletti. II. The court below erred in its characterization of section 50-e as a Statute of Limitations. The statute is a mere procedural requirement and therefore may be given retrospective application. (Quintero v Long Is. R. R., 55 Misc 2d 813, 31 AD2d 844; Borgia v City of New York, 12 NY2d 151.) III. Section 50-e of the General Municipal Law is a procedural statute and remedial statute and is therefore to be given retrospective and retroactive effect, particularly as concerns cases currently pending. (Nolan v County of Otsego, 55 AD2d 422; Matter of Smalls v New York City Health & Hosps. Corp., 55 AD2d 537; Rippe v City of Rochester, 57 AD2d 723; Shielcrawt v Moffett, 268 App Div 352; Matter of Himmell v Chase Manhattan Bank, 47 Misc 2d 93; Jacobus v Colgate, 217 NY 235; Kaplan v Kaplan, 31 AD2d 247; Wilner Friends Credit Assn. v Scheffres, 175 Misc 2d 909; Matter of Davis, 149 NY 539; Cohen v Reckseit, 184 Misc 107.) IV. The legislative history of section 50-e of the General Municipal Law clearly shows that the Legislature intended section 50-e to be procedural and intended for the statute to have retrospective effect. (Camarella
      v East Irondequoit Cent. School Bd., 34 NY2d 139; Matter of Murray v City of New York, 30 NY2d 113.) V. In allowing the claim of Donna Marie Pauletti, the court will not be reviving large numbers of claims or allowing an opportunity for the presentation of fraudulent claims.

      Joseph D. Ahearn and George S. Pickwick for respondent in the third above-entitled case.
    The amendment to subdivision 5 of section 50-e of the General Municipal Law, effectuated by chapter 745 of the Laws of 1976 (eff Sept. 1, 1976), is not retroactive, and cannot serve as the predicate for the reviving of petitioner’s claim, which, under Weed v County of Nassau (42 AD2d 848, affd on memorandum at App Div 34 NY2d 723) was time-barred in June, 1974, one year after the accident. There is not the slightest indication that the Legislature intended that the amendment be accorded retroactive effect, let alone that it revive time-barred claims. Under every principle of statutory construction, including particularly the fact that the effective date of the amendment was postponed until September 1, 1976, chapter 745 has prospective application only. (Weed v County of Nassau, 42 AD2d 848, 34 NY2d 723; Fruhling v Amalgamated Housing Corp., 9 NY2d 541; Cox v First Nat. Realty & Constr. Corp., 50 AD2d 535; Metcalf v Central School Dist. No. 1, 280 App Div 875; Williams v City of Oswego, 25 Hun 36; Brennan v City of Albany, 143 App Div 752; Matter of Deutsch v Catherwood, 31 NY2d 487; Matter of Ayman v Teachers’ Retirement Bd. of City of N. Y., 9 NY2d 119; Matter of Mulligan v Murphy, 14 NY2d 223; Silverman v State of New York, 48 AD2d 413.)

      W. Bernard Richland, Corporation Counsel (Leonard Koerner and L. Kevin Sheridan of counsel), for appellants in the fourth above-entitled case.
    I. The foreign object exception enunciated in Flanagan v Mount Eden Gen. Hosp. (24 NY2d 427) is not applicable to this case where the allegations of malpractice are based on medical treatment and petitioner was in continuous pain after the alleged malpractice at the city hospital but, according to petitioner, failed to realize that such pain could be the result of malpractice. (Flanagan v Mount Eden Gen. Hosp., 24 NY2d 427; Schiffman v Hospital for Joint Diseases, 36 AD2d 31; Randall v Weber, 45 AD2d 731; Sosnow v Paul, 43 AD2d 978; McQueen v County of Nassau, 83 Misc 2d 865; Fonda v Paulsen, 79 Misc 2d 936, 46 AD2d 540; Dobbins v Clifford, 39 AD2d 1; Borgia v City of

      New York, 12 NY2d 151; Straus & Co. v Canadian Pacific Ry. Co., 254 NY 407; Waddey v Waddey, 290 NY 251.) II. The 1976 amendment to subdivision 5 of section 50-e of the General Municipal Law should not be applied retroactively to permit petitioner, whose cause of action arose in 1973, to file a late notice of claim. In the absence of a clear indication of legislative intent, changes in procedure are applicable to proceedings thereafter instituted for the redress of wrongs already done. (Matter of Deutsch v Catherwood, 31 NY2d 487; Simonson v International Bank, 14 NY2d 281; Matter of Barton v Lavine, 54 AD2d 350.)

      Stanley S. Hausen for respondent in the fourth above-entitled case.
    I. The notice of claim in this case has been timely served within the 90-day statutory period from the accrual of petitioner’s cause of action. (Dobbins v Clifford, 39 AD2d 1; Flanagan v Mount Eden Gen. Hosp., 24 NY2d 427.) II. Even if this case does not fall within the purview of the Dobbins case, the court has discretion here to permit a late filing of the notice of claim. (Borgia v City of New York, 12 NY2d 151; Matter of Murray v City of New York, 30 NY2d 113; Matter of Driskell v City of New York, 31 AD2d 541.) III. "Mentally incapacitated”, as the term is used in the statute (General Municipal Law, § 50-e, subd 5), means the lack of knowledge or awareness of the existence of a cause of action as in the present case. IV. The court below correctly held in this case that the recent amendment of section 50-e of the General Municipal Law, being procedural, may be applied retroactively.

      W. Bernard Richland, Corporation Counsel (Leonard Koerner and L. Kevin Sheridan of counsel), for appellant in the fifth above-entitled case.
    The foreign object exception in Flanagan v Mount Eden Gen. Hosp., (24 NY2d 427 [1969]) is not applicable to this case involving allegations that an operation was improperly performed. (Flanagan v Mount Eden Gen. Hosp., 24 NY2d 427; Schiffman v Hospital for Joint Diseases, 36 AD2d 31; Randall v Weber, 45 AD2d 731; Sosnow v Paul, 43 AD2d 978, 36 NY2d 780; McQueen v County of Nassau, 83 Misc 2d 865; Fonda v Paulsen, 79 Misc 2d 936; Dobbins v Clifford, 39 AD2d 1; Borgia v City of New York, 12 NY2d 151; Straus & Co. v Canadian Pacific Ry. Co., 254 NY 407.)

      Louis W. Kaplan for respondents in the fifth above-entitled case.
    I. This action accrued upon the discovery of the malpractice. (Schwartz v Heyden Newport Chem. Corp., 12 NY2d 212; Flanagan v Mount Eden Gen. Hosp., 24 NY2d 427; Dobbins v Clifford, 39 AD2d 1; Murphy v St. Charles Hosp., 35 AD2d 64; Gilbert Props. v Millstein, 40 AD2d 100.) II. Defendant should be equitably estopped from raising the defense of the Statute of Limitations in this action. (Glus v Brooklyn Eastern Term., 359 US 231; Triple Cities Constr. Co. v Maryland Cas. Co., 4 NY2d 443; Bender v New York City Health & Hosps. Corp., 38 NY2d 662.)
   OPINION OF THE COURT

Fuchsberg, J.

These five separate cases against public corporations involve tort claims which cannot be pressed without the filing of a timely notice of claim. Common to all of them is the fact that they accrued more than 90 days before the effective date of recent amendments of subdivision 5 of section 50-e of the General Municipal Law (L 1976, ch 745, § 2). The heart of the question before us, crucial to survival of each case, is whether the new legislation may be applied retrospectively.

The Legislature fixed September 1, 1976 as the effective date of the amendment. It retained the pre-existing requirement that filing be effected within 90 days of accrual (§ 50-e, subd 1, par [a]). But it made two significant modifications of the statute: the grounds on which a court may allow late filing were expanded and the time within which an application for such relief can be made was lengthened.

Before the amendment, the primary ground for extension cognizable by a court was disability arising out of infancy or mental or physical incapacity; additionally, a court could permit late filing when a person entitled to assert a claim had either died before the expiration of the 90-day period or had placed justifiable reliance upon settlement representations made in writing by an authorized representative or insurance carrier for the party against whom the claim was to be made. The new standards are far more elastic. In substance, they require a court "to consider” not only the factors to which it was formerly limited, but other newly specified ones along with "all other relevant facts and circumstances”. Moreover, in deciding whether to exercise its discretion, the court’s attention is also to be focused on whether the public corporation or those acting for it acquired actual knowledge of the essential facts of the claim within the 90-day period or a reasonable time thereafter.

The outside time limit for a claimant who seeks to file belatedly was formerly "one year after the happening of the event upon which the claim is based”. Under the revision, the period during which late filing may be permitted is identical with the "time limited for the commencement of an action by the claimant against the public corporation”. Save where the claimant is under a disability (see Abbatemarco v Town of Brookhaven, 26 AD2d 664; La Fave v Town of Franklin, 20 AD2d 738), this is one year and 90 days (General Municipal Law, § 50-i).

With this before-and-after picture of the statute in mind, we outline the posture in which each of the five cases comes to us:

In Matter of Beary the claimant seeks damages for false arrest and malicious prosecution against the City of Rye. The criminal proceedings on which his claim is premised terminated in his favor when the Grand Jury dismissed all the charges against him. That was on January 14, 1976. His right to sue therefore accrued on that date (see Robbins v Robbins, 133 NY 597; Giglio v Delesparo, 46 AD2d 928). However, his claim was not filed until April 23, 1976, 10 days after the 90-day period had expired. Eight months later, on December 14, 1976, relying on the amendment which had gone into effect on the intervening September 1 and on evidence that the 10-day delay had been without prejudice to the city because its insurance carrier had received timely knowledge of the facts surrounding his claim, Beary moved to file a late notice or to have his original notice of claim declared timely. Special Term granted the alternative relief. The Appellate Division, Second Department, reversed, holding that no part of the amendment was applicable to claims accruing prior to its effective date and that claimant did not meet the preamendment standards (59 AD2d 905).

In Rodriguez the claim is that an infant prematurely born on December 22, 1969 suffered retrolental fibroplasia, a condition affecting her sight, as a result of malpractice in the administration of excessive oxygen in an incubator at a New York City hospital. Though her parents were informed of her condition before the termination of treatment at the hospital on April 20, 1970, they did not file a claim until January 9, 1976. The mother then successfully moved at Special Term for leave to do so. On October 5, 1976, the Appellate Division, Second Department, finding that the claim was untimely, reversed (54 AD2d 692).

Matter of Pauletti involves an 11-year-old child who was injured when she fell down a flight of stairs at a school operated by the Freeport Union Free School District. The accident took place in June, 1973; no claim was made until January, 1976. The infant’s mother than moved for an order directing the school district to accept a notice of claim nunc pro tunc as of a date within 90 days after the injury had occurred and to extend the infant’s time to institute action for a year following the date of the order. Special Term denied both this motion and one to renew made after the effective date of the 1976 amendment to section 50-e. The Appellate Division, Second Department, by a divided court, affirmed the first order (and held the second one academic), essentially for the reasons articulated in Rodriguez (59 AD2d 556).

In Matter of Smalls the claimant seeks to file a claim for medical malpractice alleged to have occurred in a municipal hospital on May 8, 1973 during the performance of a myelogram, a diagnostic procedure to visualize blockage of the spinal canal. The hospital continued to treat the complainant until October 9, 1973. The record supports her allegation that she did not learn that her continuing back and leg symptoms may have been caused by negligent administration of the myelogram until June 25, 1974, when a physician at another hospital brought that possibility to her attention. Her notice of claim was filed on August 29, 1974; on September 6, 1974 she moved for a declaration that it had been timely served. This motion initially was denied by Special Term, but on February 27, 1975 it was granted after reargument on the rationale of the "foreign object exception” to the general rule that a cause of action for medical malpractice accrues at the time the act occurs and not at the time of its discovery (Flanagan v Mount Eden Gen. Hosp., 24 NY2d 427; cf. CPLR 214-a). On December 14, 1976, the Appellate Division, First Department, acknowledging that the case was not truly one involving a foreign object, but extrapolating from Flanagan and pointing to the fact that section 50-e had been amended while the matter had been sub judice, affirmed "on all the facts and circumstances” (55 AD2d 537, 538).

Merced is another medical malpractice case. This claimant underwent a sterilization operation in a New York City municipal hospital on September 6, 1971. She alleges that on November 20, 1973, when her genital, organs were again exposed during emergency surgery for an ectopic pregnancy, it was found that one of her fallopian tubes, which was to have been occluded in the course of the 1971 surgery, had not been sutured. She served a notice of claim on December 26, 1973 and thereafter commenced suit. Defendant’s answer having pleaded late filing of the notice as an affirmative defense, she moved to strike it pursuant to CPLR 3211 (subd [b]). The motion was denied on March 2, 1976, essentially on the ground that neither the "foreign object” nor the "continuous treatment” theories were available to defer the date of accrual (Borgia v City of New York, 12 NY2d 151) and that the claim therefore had come into existence in 1971. On February 17, 1977, by a divided court, the Appellate Division, First Department, expressly following its decision in Smalls and citing to Flanagan, reversed (56 AD2d 553).

In passing on these cases, our task is to determine whether, in relaxing the strictures of section 50-e in 1976, the Legislature intended that the changes it wrought apply to claims that accrued before September 1 of that year. Of course, had the amendatory language been explicit, we would have had no such burden. For our quest is not for what we might have preferred the Legislature to have done, but for what it in fact did. Since the direct answer is not evident from the statutory language itself, we must seek other guideposts.

The claimants argue that the amendments, designed to correct patent injustices, are "remedial” in nature, and that, since they affect procedures preliminary to suit against public entities, they are "procedural”. Their opponents press countervailing considerations upon us, such as the familiar rule of construction that favors prospectivity of statutes unless the contrary is clearly to be divined (see, e.g., Matter of Mulligan v Murphy, 14 NY2d 223; McKinney’s Cons Laws of NY, Book 1, Statutes, §§ 51, 52) and the fact that the statutory change in this case, though signed into law on July 24, 1976, carried an effective date in futuro (see, e.g., Matter of Deutsch v Catherwood, 31 NY2d 487), albeit the future date here was as close as September 1 and was one frequently used by our Legislature as a convenient target time against which to prepare for administering a new law.

However, though such factors are not to be ignored and, in appropriate cases, may even be compelling, they are not ritualistic incantations meriting slavish application (see, e.g., Becker v Huss Co., 43 NY2d 527; Shielcrawt v Moffett, 294 NY 180; People v Cohen, 245 NY 419). Moreover we find it difficult to accept a basic assumption made by the respective litigants — that, in deciding on their retroactivity, the amended portions of the statute are necessarily to be treated as a whole. We know of no hard and fast rule that prevents us from analyzing them separately.

It is relatively easy to retrace the events which impelled the Legislature to expand the guidelines governing Judges before whom application for extensions are made. The amendments followed upon a recommendation made earlier in 1976 by the Judicial Conference (21st Annual Report of NY Judicial Conference, 1976, p 278). Its report relied heavily on our comments in Camarella v East Irondequoit Cent. School Bd. (34 NY2d 139, 142-143). In there urging the Legislature to fashion the reform we thought necessary, we emphasized the "need for legislative consideration of the harsher aspects of section 50-e” and took occasion to help identify the problem by unanimously adopting an earlier sentiment that the statute "should provide a greater discretion to give relief from its requirements” (Matter of Murray v City of New York, 30 NY2d 113, 121 [concurring opn]).

The latter statement was made in the context of a case involving not the time within which, but rather the grounds upon which, an application for late filing could successfully be made. In this area, the conference report, with the prescience of sponsorship, moved away from insistence that an applicant for late filing fall into specified categories; rather it proposed that in "determining whether to grant such permission the court [be] permitted to consider all relevant circumstances” (21st Annual Report of NY Judicial Conference, 1976, p 301). Given this emphasis on loosening the narrow constraints on judicial discretion, it seems clear to us that claimants whose causes of action accrued within the statutorily specified one-year period preceding the effective amendatory date may take advantage of the expanded guidelines.

That conclusion is in tune with the flexibility inherent in the guidelines. Indeed, the very availability of such discretion is a characteristic that distinguishes notice of claim statutes. In their use of the passage of time to bar the initiation of suit and in their reliance on basic principles of accrual to fix the date when such a bar comes into play, they resemble Statutes of Limitations (Borgia v City of New York, 12 NY2d 151, 155-156; supra; see, also, Quintero v Long Is. R. R, 55 Misc 2d 813, 816-819 [Sobel, J.]). However, in leaving the determination of whether extensions of time are to be granted in exceptional cases to a delineated judicial discretion rather than an automatic tolling statute, they differ strikingly from conventional Statutes of Limitations (compare CPLR 208).

It has been said that "The only legitimate purpose served by the notice” is prompt investigation and preservation of evidence of the facts and circumstances out of which claims arise (21st Annual Report of NY Judicial Conference, 1976, p 302; Adkins v City of New York, 43 NY2d 346, 350; Winbush v City of Mount Vernon, 306 NY 327, 333; cf. Salesian Soc. v Village of Ellenville, 41 NY2d 521, 524). The greater flexibility introduced by the amendments appears designed to encourage greater fairness in achieving that goal. Our original notice of claim statutes attempted to serve this purpose by imposing an unbending time bar on late claims (Matter of Martin v School Bd. of Union Free Dist., 301 NY 233, 236-237). Succeeding legislation gradually eased this strictness (L 1945, ch 694; L 1959, ch 814; L 1976, ch 745), but, as the nature of the exceptions listed in section 50-e until its most recent amendment attests, these were not functionally related to the achievement of its primary goal. Instead, they were directed only toward mitigating the hardship imposed on particular categories of claimants. In contrast, the 1976 amendments no longer confine the range of the discretion entrusted to courts to rigid classifications.

Under either the present or the previous section 50-e, the time limit set by the Legislature may be said to have two stages, the first when the 90 days from accrual of a claim has gone by and the second and terminal one when the time within which a court may exercise discretion has expired. In determining that the increase in judicial discretion is fully applicable to claims which on September 1, 1976 had not yet reached the end of the second stage, we consider it significant that the amendment expressly directs that whether the public corporation did or did not have knowledge be accorded great weight. Obviously, this is intended to meet legislative concern for assuring reasonably prompt investigative opportunity under the amendment. For even when a public body has had no formal alert that a claim in fact will be brought, actual knowledge of the facts within 90 days or shortly thereafter makes it unlikely that prejudice will flow from a delay in filing that does not reach beyond the statutory period of a year. Bearing in mind the primary purpose of notice of claim statutes, we believe that the Legislature, in enacting the new guidelines, intended to apply them to claims which accrued within one year prior to the effective date of the amendment.

So it follows that there should be a reversal in Matter of Beary. The claimant there made his motion on December 14, 1976, well within the year after the January 14, 1976 accrual date of his claim; the amended criteria for the exercise of judicial discretion were already in force at this time. Furthermore, Beary made a showing that the 10-day lateness was without prejudice to the city because its liability insurance carrier had earlier learned of the facts and circumstances surrounding the events on which the claim is founded.

We further hold, however, that the amendment does not revive claims that accrued more than one year prior to its effective date. By September 1, 1976, these had passed beyond the power of judicial recall and there is nothing to suggest that the Legislature intended so remarkable a resurrection. Retroactivity of the portion of the amendment which replaces the one-year period with one measured only by the Statute of Limitations that otherwise would be applicable would make it possible for infants to newly file claims which had their genesis in events occurring up to 18 years earlier (see CPLR 208). True, these longer tolling provisions pre-existed the adoption of the amendment, but at that time the possibility that filing of a notice of claim might be permitted within a year after accrual alerted public corporations to the time frame within which there was need to garner information and to perpetuate proof. Now that the period within which late filing of claims accruing after September 1, 1976 may be granted has been elongated, these corporations may be expected to safeguard their interests by gathering and preserving evidence for a correspondingly longer period. But there was in the past no reason arising out of section 50-e for them to have followed such a practice beyond the one-year period during which permission to file late claims on behalf of an infant or person under disability was then obtainable.

The result of treating the amendment as to time as though it were retrospective would therefore be to open the door to an unknown number of claims the defense to which is unprepared and unpreparable. We cannot believe that such a result —exposing public corporations to the revival of ancient claims as distinguished from the mere continuance of ones that have not finally expired — if intended by the Legislature, would not have been clearly expressed. Even "Uncertainties are resolved against consequences so drastic” (Hopkins v Lincoln Trust Co., 233 NY 213, 215 [Cardozo, J.]).

This view is reinforced by the manner in which our statutes have otherwise dealt with enactments modifying time bars. CPLR 218, while extending the benefits of its lengthening of certain Statutes of Limitations to any cause of action not barred at the time of enactment, specifically states that it cannot be read as reviving causes of action already barred when it became effective. A similar provision in fact accompanied the original enactment of section 50-e (L 1945, ch 694, §14).

Consequently both Rodriguez and Matter of Pauletti must be affirmed. Their claims accrued in 1969 and 1973 respectively. Leave not having been sought in either case until 1976, their time to file had by then long expired.

For similar reasons, Matter of Smalls must be reversed. Even on the claimant’s "continuous treatment” theory, the date of accrual would be no later than October 9, 1973, when she was discharged from the hospital. But notice of claim was not filed until more than 90 days later. And none of the limited grounds on which the discretion of courts to grant an extension could then be invoked supported the motion she made in September, 1974 for a declaration that the notice was timely served. Nor do the facts, which describe only negligent treatment, afford the basis for a later accrual date under the Flanagan "foreign object” exception.

Finally, Merced too must be reversed. The "foreign object” on whose absence it is premised was not one present and therefore able to "retain its identity” so that no "possible causal break between the negligence of the doctor or hospital and the patient’s injury” could occur (Flanagan v Mount Eden Gen. Hosp., 24 NY2d 427, 430, supra). True the claimant nevertheless advances the argument, as she did at the Appellate Division, that considerations similar to those which motivated the court in Flanagan should be applied with like effect to the far different circumstances in her case. But the enactment of CPLR 214-a having clearly interdicted the extension of the "foreign object” exception, we must reject that contention. By expressly prohibiting the inclusion of chemical compounds, fixation devices and prosthetic aids from the embrace of the term "foreign object” and by limiting the time within which an action based on the presence of such an object in the body of a patient may be commenced to one year from the date of its discovery, the Legislature left us no room but to conclude that it intended that Flanagan not be broadened beyond its existing confines (L 1975, ch 109, § 6). Accrual therefore was in 1971, when the malpractice is alleged to have occurred, and not in 1973, the year in which the notice of claim was served.

Accordingly, in Matter of Beary v City of Rye the order of the Appellate Division should be reversed and the matter remitted to that court pursuant to CPLR 5613, for the exercise of its discretion (see National Compacter & Technology Systems v Kohleriter & Spandorf, 38 NY2d 933); in Rodriguez v City of New York and in Matter of Pauletti v Freeport Union Free School Dist. the orders of the Appellate Division should be each affirmed; in Matter of Smalls v New York City Health & Hosps. Corp. the order of the Appellate Division should be reversed and the motion denied; and in Merced v New York City Health & Hosps. Corp. the order of the Appellate Division should be reversed and the order of the Supreme Court, New York County, reinstated.

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

In Matter of Beary v City of Rye: Order reversed and the matter remitted to the Appellate Division, Second Department, for the exercise of its discretion, with costs to abide the event.

In Rodriguez v City of New York: Order affirmed, with costs.

In Matter of Pauletti v Freeport Union Free School Dist. No. 9: Order affirmed, with costs.

In Matter of Smalls v New York City Health & Hosps. Corp.: Order reversed, with costs, and the motion for leave to file late notice of claim denied.

In Merced v New York City Health & Hosps. Corp.: Order reversed, with costs, and the order of Supreme Court, New York County, reinstated. Question certified answered in the negative.

APPENDIX

Before September 1, 1976 subdivision 5 of section 50-e of the General Municipal Law read in pertinent part (L 1959, ch 814):

"5. The court, in its discretion, may grant leave to serve a notice of claim within a reasonable time after the expiration of the time specified in subdivision one of this section [i.e., 90 days] in the following cases: (1) Where the claimant is an infant, or is mentally or physically incapacitated, and by reason of such disability fails to serve a notice of claim within the time specified; (2) where a person entitled to make a claim dies before the expiration of the time limited for service of the notice; or (3) where the claimant fails to serve a notice of claim within the time limited for service of the notice by reason of his justifiable reliance upon settlement representations made in writing by an authorized representative of the party against which the claim is made or of its insurance carrier.

Application for such leave must be made within the period of one year after the happening of the event upon which the claim is based, and shall be made prior to the commencement of an action to enforce the claim, upon affidavit showing the particular facts which caused the delay, accompanied by a copy of the proposed notice of claim. * * *”

After being amended (per L 1976, ch 745, § 2) subdivision 5 of section 50-e of the General Municipal Law provides:

"5. Application for leave to serve a late notice.

Upon application, the court, in its discretion, may extend the time to serve a notice of claim specified in paragraph (a) of subdivision one [i.e., 90 days]. The extension shall not exceed the time limited for the commencement of an action by the claimant against the public corporation. In determining whether to grant the extension, the court shall consider, in particular, whether the public corporation or its attorney or its insurance carrier acquired actual knowledge of the essential facts constituting the claim within the time specified in subdivision one or within a reasonable time thereafter. The court shall also consider all other relevant facts and circumstances, including: whether the claimant was an infant, or mentally or physically incapacitated, or died before the time limited for service of the notice of claim; whether the claimant failed to serve a timely notice of claim by reason of his justifiable reliance upon settlement representations made by an authorized representative of the public corporation or its insurance carrier; whether the claimant in serving a notice of claim made an excusable error concerning the identity of the public corporation against which the claim should be asserted; and whether the delay in serving the notice of claim substantially prejudiced the public corporation in maintaining its defense on the merits.

An application for leave to serve a late notice shall not be denied on the ground that it was made after commencement of an action against the public corporation.”

       The texts of the new and preceding statutes are appended to this opinion.


author: Wachtler, J.

text:
    De Witt Properties, Inc., et al., Respondents, v City of New York, Appellant, and Consolidated Edison Co. of New York, Inc., Respondent.
    Argued March 27,1978;
    decided May 11,1978

      POINTS OF COUNSEL

      W. Bernard Richland, Corporation Counsel (Bernard Bur-stein, L. Kevin Sheridan and Richard Gross of counsel), for appellant.
    I. There was established by plaintiffs, and confirmed by Con Ed’s admissions, a more-than-remote possibility that the accident was caused by an act of Con Ed employees, for whose negligence the city would not be responsible. Thus, there is an insufficient basis in probability for invoking res ipsa loquitur against the city. There also was no evidence of specific negligence by the city. The complaint against the city should therefore have been dismissed. (Corcoran v Banner Super Market, 19 NY2d 425; Manley v New York Tel. Co., 303 NY 18; Cooke v Bernstein, 45 AD2d 497; Gallagher’s Successors v Consolidated Edison Co. of N. Y, 52 AD2d 547; Feblot v New York Times Co., 32 NY2d 486; Abbott v Page Airways, 23 NY2d 502; George Foltis, Inc. v City of New York, 287 NY 108; Francey v Rutland R. R. Co., 222 NY 482; Koch v Melton Realty Corp., 52 AD2d 773.) II. If the city is liable to plaintiffs, it is entitled to full indemnity from Con Ed. (Rogers v Dorchester Assoc., 32 NY2d 553; Dole v Dow Chem. Co., 30 NY2d 143; Kelly v Long Is. Light. Co., 31 NY2d 25; Kelly v Diesel Constr. Div. of Carl A. Morse, Inc., 35 NY2d 1; Runkel v Homelsky, 286 App Div 1011, 3 NY2d 857; Fletcher v County of Broome, 286 App Div 286; Lobello v City of New York, 268 App Div 880, 294 NY 816; Trustees of Geneva v Brush Elec.

      Co., 50 Hun 581; Sobel v City of New York, 9 NY2d 187; Baruch v City of New York, 20 AD2d 788, 15 NY2d 782.)

      Sandra Craig and Joseph J. Klem for Consolidated Edison Company of New York, Inc., respondent.
    I. The jury’s determination that both parties were liable had a rational basis, as the circumstances revealed a sufficient degree of probability to support the inference that the city was negligent. Further, inasmuch as the jury’s determination had a rational basis, each codefendant should be entitled to recoup from the other an equitable share of the responsibility. (Galbraith v Busch, 267 NY 230; Corcoran v Banner Super Market, 19 NY2d 425; George Foltis, Inc. v City of New York, 287 NY 108; Schroeder v City & County Sav. Bank of Albany, 293 NY 370; Murphy v City of New York, 19 AD2d 545, 14 NY2d 532; Cameron v Bohack Co., 27 AD2d 362; Mercatante v City of New York, 286 App Div 265; Godfrey v County of Nassau, 24 AD2d 569; Clark v City of Rochester, 25 AD2d 713.) II. There was sufficient evidence for the jury to infer that the city was negligent. The city did not offer any evidence as to the manner of its installation or the condition of the main at the time it was installed; nor did the city offer any proof that it took any steps to maintain these water mains in a reasonable state of repair. (George Foltis, Inc. v City of New York, 278 NY 108; Ehret v Village of Scarsdale, 269 NY 198; Hipius v City of Yonkers, 22 AD2d 945.) III. The city is not entitled to full indemnity from Con Ed. Implied indemnification arises where a person without fault has been held legally liable for damages caused by the fault of another. Here the jury determined that Con Ed and the city were negligent and then apportioned liability according to their relative responsibility. (Rogers v Dorchester Assoc., 32 NY2d 553; Dole v Dow Chem. Co., 30 NY2d 143; Kelly v Long Is. Light. Co., 31 NY2d 25.)
   OPINION OF THE COURT

Wachtler, J.

In an action to recover for damage to the plaintiffs’ premises as the result of a burst water main in a Manhattan street, a jury returned a verdict against the City of New York which owns the water main, and against Consolidated Edison (Con Ed) for negligently installing a gas pipe on top of the city’s water main. On this appeal by the city it is urged that there is no basis for holding the city liable because there is no evidence of specific negligence by the city and, in this case, negligence cannot be inferred from the city’s ownership and control of the main under the doctrine of res ipsa loquitur, in view of the fact that Con Ed had access to the area and had been negligent in placing its gas pipe on top of, and pressing upon, the city’s water main. Thus the city claims that the judgment should be set aside and the complaint against it should be dismissed. In the alternative the city argues that it is entitled to full indemnity from Con Ed.

The plaintiffs own a building on 79th Street, between Second and Third Avenues in Manhattan. The rear of the building extends to 80th Street where a city water main is installed beneath the surface of the road. During the early morning hours of May 10, 1972 the water main ruptured, flooding the street and the plaintiffs’ premises, including the parking lot, basement and part of the first floor.

In January, 1973 the plaintiffs commenced this action against the city claiming, in effect, that the city was responsible for the damage because it neglected to repair and maintain the water main in a safe condition. The city entered a general denial and commenced a third-party action against Con Ed seeking indemnification on the ground that Con Ed negligently constructed and maintained utility equipment above the water main "thereby asserting undue stress” on the water main causing it to break. The plaintiffs then amended their complaint to join Con Ed as a defendant on the same grounds alleged by the city in the third-party complaint.

At the trial it was established that in 1874 the city had installed a cast iron water main, 48 inches wide, four feet beneath the surface of 80th Street. Ten years later Con Ed’s six-inch gas pipe was installed above the city’s water main. In 1961 Con Ed added a repair or service clamp to the gas pipe immediately above the area where the city’s main ruptured in 1972. At the time of the accident Con Ed’s apparatus was resting upon wooden blocking and wedges, two inches thick, which in turn rested on top of the city’s water main.

A witness called by the city testified that in his opinion the wooden blocking and wedges had been installed by Con Ed to support its gas pipe, but he also indicated this type of device was often employed by the city to hold its water mains in place. It was conceded however that a city rule, included in all installation permits, required utility companies to allow a "minimum clear distance” of six inches between "any * * * other subsurface structure and any part of a water main.” This rule, originally requiring a minimum clear distance of one foot, was first promulgated in the latter part of the 19th century, probably in 1883.

The city’s experts explained that placing the gas pipe and clamp directly on top of the wooden wedges which rested on the city’s water main was an unsafe engineering practice because it placed undue stress on the city’s main, particularly during early morning hours when less water is drawn off and the pipe tends to vibrate from the internal pressure. In their opinion the stress exerted by Con Ed’s structure was sufficient to burst the main, and the fact that the water main had ruptured or "blown out” along the top, in the vicinity of the gas pipe clamp, indicated that Con Ed was responsible.

Con Ed’s expert agreed that the pressure from the gas pipe and clamp could increase the stress on the city’s main, but stated that it would "not necessarily lead to a bursting of the pipe.” In his opinion the greatest point of stress would be on the opposite side of the main and the fact that it had burst on the top indicated to him, that the break was not caused by pressure from Con Ed’s gas pipe but rather by a lack of "earth support” beneath the water main. This he felt was probably due to a "wash out” of the supporting earth; otherwise he was "at a loss” to explain it.

The city admitted that there was no record that it had ever inspected the water main after installation in 1874. It was not the city’s practice to routinely tear up city streets to inspect the water pipes. Unless there was some trouble with the water main — and there was no record of that in this case — the safest and most economical course was to leave the main undisturbed. Nor were city representatives dispatched to inspect repairs made by utilities. Although utilities were required to file plans and obtain permits for original installations, thereafter they acquired a "blanket permit” to make repairs and service connections to existing structures. Thus the city had not inspected, and in fact had not been notified, of the 1961 repair or modification to Con Ed’s gas line. There was also uncontradicted evidence that cast iron water mains had a useful life of at least 125 years, could last 500 years, and that such mains had been in use in Marseilles, France, for over 300 years.

At the conclusion of the trial, which was limited to the liability issue, the court, in its charge, noted the contentions of the parties and instructed the jury on negligence. In addition, with respect to the city, and over its objection, the court charged the jury that "If the instrumentality — here the water main — causing the injury was in the exclusive control of the defendant [City of New York], and if the circumstances surrounding the happening of the accident were of such a nature that in the ordinary course of events it would not have occurred if the party having control of the instrumentality had used care under the circumstances, the law permits but does not require the jury to infer negligence from the mere happening of the accident.” The jury was also instructed that if they found both defendants negligent they should apportion the liability between them on a percentage basis.

As noted, the jury found both defendants liable. The award was apportioned 30% against the city and 70% against Con Ed.

The city alone appealed the verdict. By a divided court the Appellate Division affirmed (47 AD2d 300). The majority noted (at pp 302-303) that the doctrine of res ipsa loquitur is only a species of the more general principle of circumstantial evidence and held that "There was evidence from which negligence of the City could be inferred, because, among other things, the water pipe was 98 years old and there was no indication that the City had inspected it during that time, although concededly responsible for its maintenance. Further, that the City had no inspector present when Con Ed made its installations. * * * Inasmuch as the jury determination had a rational basis, it would do violence to the Dole v Dow [30 NY2d 143] rule to reverse and dismiss the case against the City.” The majority also held that the city was not entitled to indemnification from Consolidated Edison because the city had "shared” in causing the damage.

Following the affirmance by the Appellate Division the parties stipulated that plaintiffs’ damages were $700,000. The city now appeals from the intermediate order affirming its liability.

A water company, of course, has the duty of maintaining and repairing its water mains so as to avoid injury to abutting property owners and the public generally (Jenny v City of Brooklyn, 120 NY 164; Layer v City of Buffalo, 274 NY 135; George Foltis, Inc. v City of New York, 287 NY 108; Liability of Water Distributor for Damage Caused by Water Escaping from Main, Ann., 20 ALR3d 1294, 1301-1302). Municipal corporations are held to the same duty of care as the private supplier of water (Layer v City of Buffalo, supra). The municipality however is not an insurer of its system (Jenny v City of Brooklyn, supra) and cannot be held liable for injury unless it is shown that the injury was caused by negligence in the installation or maintenance of the system (Jenny v City of Brooklyn, supra, at p 167; George Foltis, Inc. v City of New York, supra). Thus if the municipality has notice of a dangerous condition or has reason to believe that the pipes have shifted or deteriorated and are likely to cause injury, it must make reasonable efforts to inspect and repair the defect (Layer v City of Buffalo, supra; George Foltis, Inc. v City of New York, supra, at pp 115, 116).

But all that is required is reasonable care. To expect or require a water corporation to regularly unearth its entire system is obviously impractical and would undoubtedly create new hazards. Thus it is settled in this State and elsewhere that unless there is some warning of a possible defect the public or private supplier of water is not obligated to tear up the streets to inspect its pipes (George Foltis, Inc. v City of New York, supra, at p 116; Liability of Water Distributor for Damage Caused by Water Escaping from Main, Ann., 20 ALR3d, pp 1302, 1323-1325).

It is urged however that the city had the duty to inspect Con Ed’s installations because they were made with the city’s permission. In its brief Con Ed argues that "the granting of permission imposed upon the City a duty to inspect Con Ed’s work to see that the public is protected. Ehret v. Village of Scarsdale, 269 NY 198”.

Con Ed’s reliance on Ehret is misplaced. In the Ehret case gas escaped from a broken gas pipe connected to a drain leading to a building where a man was found dead. The gas pipe and the drain were installed in a street belonging to the village, but the pipes themselves belonged to third parties. The village however had granted a permit for the installation and it was claimed, by the decedent’s estate, that in failing to properly inspect the pipes the village had neglected its duty to maintain the streets in a safe condition. We noted that by granting the permit the village was charged with notice of the type of work to be done and that an open excavation, unless properly guarded, "creates a danger to wayfarers.” "To that extent”, the court by dictum stated, "a duty to inspect the work and to see that the public is properly protected, may reasonably be imposed upon the village” (Ehret v Village of Scarsdale, supra, at pp 204-205). But we also held that the village only had a duty to inspect and discover negligence where "the condition is apparent and the danger obvious” and thus had no duty to inspect for possible leaks in the pipes (Ehret v Village of Scarsdale, supra, at pp 205-206).

Here of course the city owned the street and the water main and had a duty to maintain both. Con Ed emphasizes this and seems to urge that granting permission to excavate the streets under these circumstances enlarges the city’s duty and requires it to also inspect to see whether the utility’s installations may damage the city’s water main and flood the adjoining properties. But the duty to inspect the activities of third parties has only been imposed on municipalities when the permit authorizes dangerous or imminently dangerous activities in the city’s thoroughfares — such as conducting fireworks displays (Speir v City of Brooklyn, 139 NY 6), creating a temporary sidewalk bridge (Parks v City of New York, 187 NY 555, affg 111 App Div 836), erecting an overhead shed for construction debris (Metzroth v City of New York, 241 NY 470), leaving a cart in the road (Cohen v Mayor, etc. of New York, 113 NY 532) or creating an obstruction in the highway (Ehret v Village of Scarsdale, supra).

When a municipality permits a utility to excavate a public street or sidewalk there is an obvious risk of injury to those using the thoroughfare. But it can hardly be said that the actual installation of the pipes themselves, by trained utility employees, ordinarily poses an obvious risk to existing water mains. Thus there is generally no reason to expect the city to inspect the utility’s installation, and no duty to do so (Von Lengerke v City of New York, 211 NY 558, affg 150 App Div 98). There may be cases where the application for the permit indicates that conditions at the work site or the methods to be employed might pose a special risk to the city’s water system. But there is no evidence of that in this case. Indeed Con Ed’s installation of the clamp in 1961 was done under a "blanket permit” and the city did not receive notice of the nature of the work or that additional work was contemplated in the vicinity of its main. In sum, the city was not actually aware of the danger created by Con Ed and in the exercise of reasonable care was not required to routinely unearth its own main or to inspect every installation made by the utility in a public street where a city main was located.

There is, then, no evidence that the city actually neglected its duty of maintenance. Of course it is not always necessary to prove that the owner was actually negligent in some particular respect. When the exact cause of the injury is unknown the doctrine of res ipsa loquitur permits the jury to infer negligence if the injury is the type which does not ordinarily occur without the neglect of some duty owed to the plaintiff and the defendant is in exclusive possession and control of the instrumentality (Abbott v Page Airways, 23 NY2d 502, 510; Galbraith v Busch, 267 NY 230, 234; George Foltis, Inc. v City of New York, 287 NY 108, supra). The doctrine has been applied to water main breaks (George Foltis, Inc. v City of New York, supra; Res Ipsa Loquitur — Water Damage, Ann., 11 ALR2d 1179) and this type of event has frequently been cited as a typical example of a case where the doctrine is commonly applicable (see, e.g., 2 Harper and James, Torts, p 1082; Prosser, Torts [2d ed], § 42, p 202; Restatement, Torts 2d, § 328D, illustration 6).

The theory is that water mains do not ordinarily break if they are properly installed and maintained, and that any break in the main was probably caused by the owner’s neglect of its duty, since the owner is generally in exclusive possession and control (George Foltis, Inc. v City of New York, supra). In such a case it is unnecessary to prove the exact cause of the injury in order to hold the owner liable since the circumstances show that the owner "is responsible for all reasonably probable causes to which the event can be attributed” (Restatement, Torts 2d, § 328D Comment g). On the other hand, proof that third parties have had access to the instrumentality generally destroys the premise, and the owner’s negligence cannot be inferred (see, e.g., Murphy v City of New York, 14 NY2d 532; see, also, Cameron v Bohack Co., 27 AD2d 362; Mercatante v City of New York, 286 App Div 265) unless there is sufficient evidence that the third parties probably did nothing to cause the injury (Restatement, Torts 2d, § 328D, illustration 11). In this case Con Ed had access to the area and the proof did not eliminate its activities as a possible cause of the injury. On the contrary there was evidence, sufficient to convince the jury, that it was negligent in installing its apparatus on top of the city water main and that this negligence was causally related to the injury.

Con Ed notes that we have held that "it is not necessary for the applicability of the res ipsa loquitur doctrine that there be but a single person in control of that which caused the damage” (Schroeder v City & County Sav. Bank of Albany, 293 NY 370, 374; see, also, Corcoran v Banner Super Market, 19 NY2d 425). In those cases however the inference was equally applicable to several persons because they shared a common duty and there was no indication that any one of them in particular had actually caused the injury. Here however the case was not tried on the theory that the inference could be drawn against both defendants and, in addition, the evidence indicates that it was more than likely that Con Ed was the party solely responsible for the break in the water main (see 2 Harper and James, Torts, pp 1098-1099).

Thus despite the city’s ownership of the water main and duty to maintain it, in this case, neglect of the duty could not be inferred from the mere happening of the break in view of Con Ed’s activities in the area. And in the absence of proof of actual negligence by the city, there is no basis for holding it liable for any part of the plaintiffs’- loss. This we should add does not represent a departure from the concept of contribution announced in Dole v Dow Chem. Co. (30 NY2d 143, supra). Dole was never intended to alter the rules of liability for fault. When, as here, there is no evidence that a defendant was at fault, there is no reason why it should be required to pay a share of the damages.

Accordingly, the judgment insofar as appealed from should be reversed and the causes of action relating to the City of New York should be dismissed.

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

Judgment, insofar as appealed from, reversed, with costs, and the causes of action relating to the City of New York dismissed.