author: Alexander, J.

text:
    In the Matter of Sam A. Schmidt, on Behalf of Thomas McNell, Appellant, v George F. Roberts, as Justice of the Supreme Court, New York County, et al., Respondents.
    Argued October 11, 1989;
    decided November 28, 1989

      POINTS OF COUNSEL

      Sam A. Schmidt for appellant.
    Further prosecution of appellant is barred by CPL 210.20 (1) (e) and 40.20 (2), since the State indictment encompasses the same criminal transaction for which appellant was convicted under a Federal indictment. (People v Abbamonte, 43 NY2d 74; Matter of Abraham v Justices of N. Y. Supreme Ct., 37 NY2d 560; Matter of Wiley v Altman, 52 NY2d 410; Matter of Kaplan v Ritter, 71 NY2d 222; People v Vera, 47 NY2d 825; People v Williams, 123 Misc 2d 165; United States v Sheridan, 329 US 379; Lyda v United States, 279 F2d 461; People v Lennon, 80 AD2d 672; People v Fletcher, 113 Misc 2d 5.)

      Robert M. Morgenthau, District Attorney (George M. Donahue and Mark Dwyer of counsel), for respondents.
    Petitioner’s State larceny prosecution is not barred by his Federal convictions. (People v Robinson, 60 NY2d 982; People v Day, 73 NY2d 208; People v Crean, 115 Misc 2d 996; People v Abbamonte, 43 NY2d 74; Matter of Abraham v Justices of N. Y. Supreme Ct., 37 NY2d 560; Matter of Wiley v Altman, 52 NY2d 410; People v Lo Cicero, 14 NY2d 374.)
   OPINION OF THE COURT

Alexander, J.

We are confronted in this case with the issue whether under the double jeopardy bar of CPL 40.20, a conspiracy prosecution in another jurisdiction bars a later New York prosecution for consummated result offenses arising out of the same criminal transaction. Although the Legislature addressed this problem in 1984 by the enactment of CPL 40.20 (2) (g), which excepts from the double jeopardy bar cases in which the prior conspiracy prosecution occurred in "another state”, petitioner argues that because Thomas McNeil’s prior conspiracy prosecution was pursued by the Federal Government and the Federal Government may not be considered "another state”, the exception of CPL 40.20 (2) (g) does not apply. Additionally, petitioner contends that none of the other exceptions to the statutory bar to multiple prosecutions are applicable; thus the writ of prohibition should have been granted. For the reasons that follow, we conclude that petitioner’s contentions have merit and therefore grant the writ of prohibition barring Thomas McNeil’s prosecution.

I.

The essential facts out of which this prosecution arises are not in dispute. In 1982, an indictment was filed in Supreme Court, New York County, charging Thomas McNeil and his brother Samuel McNeil, presidents of Triad Energy Corp. (Triad) and Everest Petroleum Inc. (Everest) respectively, with stealing money from those two businesses. The indictment contained two counts charging the crime of grand larceny in the second degree (Penal Law former § 155.35 [now Penal Law § 155.40]); the first count accused the McNeils of stealing property valued at more than $1,500 from Triad, and the second count charged that they stole property valued at more than $1,500 from Everest. Both the McNeils became fugitives and were not apprehended until 1987.

In July 1986, an indictment was filed in the United States District Court for the Southern District of New York charging the McNeils with one count of interstate transportation of stolen property (18 USC § 2314) and one count of conspiracy to commit that crime (18 USC § 371). The Federal indictment charged that "as part of said conspiracy,” the McNeils stole "the funds” of Triad and Everest and transported some of the stolen funds, "in excess of $284,000,” from New York to Zurich, Switzerland. The overt acts of the conspiracy count charged, inter alia, that Thomas McNeil drew checks totaling $174,000 payable to his brother Samuel McNeil on the account of Everest and that the brother deposited checks totaling $284,000 into an account he had opened at the New York branch office of a Swiss bank. The substantive count charged the McNeils with having transported stolen securities and money valued at more than $5,000 between New York and Zurich, Switzerland.

In June 1987, following his apprehension by the Federal authorities, Thomas McNeil rejected the Federal prosecutor’s offer to dismiss the conspiracy count and pleaded guilty to the entire indictment. The court accepted his plea.

On his subsequent arraignment on the State charges, McNeil moved, under CPL 210.20 (1) (e), to dismiss the State larceny charges as violative of his statutory double jeopardy rights (CPL 40.20). Supreme Court denied the motion, concluding that although the State and Federal prosecutions were based on the same criminal transaction, the State larceny prosecution fell within the exception to the double jeopardy bar provided in CPL 40.20 (2) (g) which permits a defendant to be prosecuted again when the prior conviction for the same transaction was for conspiracy and was obtained in “another state.” The court concluded that CPL 40.20 (2) (g) was intended to apply to prior Federal as well as State convictions for conspiracy and that the language apparently limiting the exception to prior State prosecutions was a result of “inaccurate drafting.” The court held further that the exception in CPL 40.20 (2) (a) authorized the State larceny prosecution because the offenses of larceny and interstate transportation of stolen property contain different elements and the offenses charged involved "clearly distinguishable” acts.

After denial of the motion, the instant article 78 proceeding, seeking an order prohibiting Supreme Court and the District Attorney from prosecuting McNeil on the State larceny charges, was instituted in the Appellate Division. That court unanimously denied the application for a writ of prohibition, without opinion, and dismissed the petition (145 AD2d 997). The case is before us by permission of this court.

II.

The Legislature has decreed that a person may not be twice prosecuted for the same offense (CPL 40.20 [1]) and, with certain exceptions, may not be separately prosecuted for two offenses based on the same act or criminal transaction (CPL 40.20 [2]). CPL 40.10 (2) defines a criminal transaction as "conduct which establishes at least one offense, and which is comprised of two or more or a group of acts either (a) so closely related and connected in point of time and circumstance of commission as to constitute a single criminal incident or (b) so closely related in criminal purpose or objective as to constitute elements or integral parts of a single criminal venture” (CPL 40.10 [2]).

Petitioner argues that because the Federal and State prosecutions encompass a single criminal transaction within the contemplation of CPL 40.20 (2), prosecution of the State indictment should be barred because the exceptions set forth in paragraphs (a), (b) and (g) of that statute, the only exceptions arguably relevant, do not apply. The People respond that the State and Federal prosecutions are not based on the same criminal transaction and that, in any event, CPL 40.20 (2) does not bar the State prosecution because that prosecution falls within one of the exceptions set forth in paragraphs (a), (b) and (g).

A

We reject at the outset the People’s threshold argument that the State and Federal prosecutions of McNeil are not based on the same criminal transaction. The People contend that the State crime of larceny was completed when money was removed from the accounts of the victim businesses and that these thefts did not constitute an element of the Federal interstate transportation of stolen property charge because the Federal indictment only concerned the subsequent transportation of the stolen funds to Switzerland. This contention, however, overlooks the fact that the conspiracy count of the Federal indictment charges conduct which is at the very heart of the State larceny charges — that as part of the conspiracy, McNeil "did steal, convert and fraudulently take for [his] personal use, the funds of Triad and Everest”. Thus, since that conspiracy count charges the very conduct that constitutes the crime of larceny, we conclude that the Federal and State prosecutions are based on the "same criminal transaction.”

The People contend, however, that the reference in the conspiracy count to McNeil’s involvement in the actual theft should be disregarded as mere surplusage and that the conspiracy count should be read narrowly as embracing only those elements necessary to establish the substantive offense of transporting stolen property interstate. These contentions must also be rejected. A conspiracy embraces all of the overt acts and substantive crimes in the particular criminal enterprise (People v Abbamonte, 43 NY2d 74, 85). Here, the conspiracy charged in the Federal indictment encompassed the entire scheme by the McNeil brothers to steal funds from Triad and Everest and convert them to their own use — precisely the crimes charged in the State indictment — and thus clearly relates to the same criminal transaction as does the State indictment. Thomas McNeil’s criminal enterprise consisted of stealing the funds of Triad and Everest. Each of these thefts was charged as part of the conspiracy, each was an "integral partQ of a single criminal venture” and thus together constitute a single "criminal transaction” under CPL 40.20 (2).

As we made clear in People v Abbamonte (43 NY2d 74, supra), the significant inquiry is not what overt acts were actually charged as part of the conspiracy but whether "the particular activity for which the State seeks to hold defendants responsible could have been alleged to support the [Federal] conspiracy charge” (People v Abbamonte, 43 NY2d 74, 84, supra; see also People v Vera, 47 NY2d 825, 826 [prior Federal conviction for conspiracy to distribute cocaine barred State prosecution for cocaine sale even though the Federal authorities were not aware of that sale]).

Thus, we conclude that the Federal and State prosecutions are based on the same criminal transaction and that prosecution of the State indictment is barred unless one or more of the exceptions specified in paragraphs (a) through (h) of CPL 40.20 (2) is applicable.

B

The People assert that the exception of subdivision (2) (g) permits the State larceny prosecution. We conclude, however, that that subdivision by its language is limited to prior prosecutions in another "state.” Thus, it cannot be used here to permit McNeil’s State prosecution to proceed when his prior prosecution occurred in Federal court.

Subdivision (2) (g) permits a second prosecution for the same criminal transaction when "[t]he present prosecution is for a consummated result offense[] * * * which occurred in this state and the offense was the result of a conspiracy, facilitation or solicitation prosecuted in another state.” The People urge that the word "state” should be interpreted to mean "jurisdiction” and thereby embrace Federal prosecutions. They argue that this was the intent of the Legislature as evidenced by the fact that the title of the amendment as originally introduced indicated that the amendment was designed to "permit New York State to prosecute substantive offenses where another sovereign has brought a related prosecution for inchoate crimes” (see, Assembly Mem, Bill Jacket, L 1984, ch 624, at 31) and by the further fact that, in their view, this amendment was designed to overrule People v Abbamonte (43 NY2d 74, supra) and Matter of Abraham v Justices of N. Y. Supreme Ct. (37 NY2d 560), both of which involved prior Federal prosecutions for conspiracy.

These arguments are unavailing. A fundamental rule of statutory construction is that the Legislature is presumed to mean what it says and when the language of a statute is unambiguous, it is to be construed "according to its natural and most obvious sense, without resorting to an artificial or forced construction” (McKinney’s Cons Laws of NY, Book 1, Statutes § 94). Indeed, when a statute is free of ambiguity, a court should construe it so as to give effect to its plain meaning unless that construction would lead to an "absurd or futile” result (Doctors Council v New York City Employees’ Retirement Sys., 71 NY2d 669, 674-675; New York State Bankers Assn. v Albright, 38 NY2d 430, 436-437). Differentiating between "state” and "jurisdiction” is not absurd or futile but is a distinction the Legislature has drawn in drafting other exceptions to the double jeopardy bar and is consistent with the legislative purpose of providing enhanced protection against repeat prosecutions. The initial draft of the bill adding subdivision (2) (g) referred to "[] previous prosecution occurring] in another jurisdiction * * * for the offense of conspiracy * * * an offense defined in the federal Organized Crime Control Act of 1970, (18 U.S.C.§§ 1961 et seq.) or * * * a criminal enterprise offense similar to that defined in such act” (A 6308/S 5157, 1983-1984 Regular Sessions). This language was not included in the bill as passed, however; rather, references to the Federal "Organized Crime Control Act” and "criminal enterprise” were deleted and the phrase "other state” was substituted for the phrase "another jurisdiction.”

It is abundantly clear that when the Legislature intends to broaden the scope of an exception to the double jeopardy bar of CPL 40.20 (2) it has no difficulty doing so. For example, in subdivision (2) (f), cases involving offenses constituting a violation of a statutory provision of "another jurisdiction” have been excepted, and in subdivision (2) (h), racketeering offenses in violation of Federal law and enterprise corruption or racketeering offenses in violation of the law of another State likewise have been expressly excepted.

The People assert, however, that subdivision (2) (g) was enacted to overrule our decisions in People v Abbamonte (43 NY2d 74, supra) and Matter of Abraham v Justices of N. Y. Supreme Ct. (37 NY2d 560, supra) to permit a successive prosecution in this State for a result offense, after a Federal prosecution for a conspiracy to commit that offense. These cases, both involving Federal narcotics prosecutions, were decided in 1977 and 1975 respectively without any legislative response. It was not until after we decided Matter of Wiley v Altman (52 NY2d 410) in 1981 that the Legislature addressed the issue. Matter of Wiley held that a prosecution in the State of Maryland for conspiracy to commit a murder was a bar to a subsequent New York prosecution for the actual murder. Although the legislative history of the amendment does not reveal reasons for doing so, the Legislature apparently chose to limit the (2) (g) exception to the specific problem illustrated by Matter of Wiley, a prosecution for conspiracy occurring in another State. We have only recently observed that "[e]ach of the statutory exceptions to the general rule proscribing successive prosecution for offenses arising from the same transaction was drafted to address a particular situation in which the statutory prohibition was deemed overly broad” (Matter of Kaplan v Ritter, 71 NY2d 222, 229). Since the Legislature itself has expressly restricted the exception of (2) (g) to conspiracy convictions obtained in "another state”, we have no occasion to give that language a more expansive interpretation.

C

The People’s argument that the exceptions of CPL 40.20 (2) (a) and (b) permit the State prosecution is unpersuasive and also must be rejected. Separate prosecutions are permissible under subdivision (2) (a) when "[t]he offenses as defined have substantially different elements and the acts establishing one offense are in the main clearly distinguishable”. Although it may be true, as the People assert, that the Federal Government had only to prove that McNeil knew the money involved in the interstate transportation was stolen and not that he stole it, the fact remains that the Federal indictment charges, as one of the overt acts of the conspiracy, that McNeil "did steal, convert and fraudulently take for [his] personal use, the funds of Triad and Everest”. Thus the "acts” establishing the offenses are not "clearly distinguishable.” Indeed it is the same theft " 'charged and proved and for which a conviction was had’ ” (Matter of Abraham v Justices of N. Y. Supreme Ct., 37 NY2d 560, 567, supra) that constitutes the State larceny charges.

Also inapplicable is the exception of CPL 40.20 (2) (b) which permits successive prosecutions when "[e]ach of the offenses * * * contains an element which is not an element of the other, and the statutory provisions defining such offenses are designed to prevent very different kinds of harm or evil”. The Federal crime of interstate transportation of stolen property and the State crime of larceny are both designed to punish thieves and to protect property owners from thefts. In making the interstate transportation of stolen property unlawful, Congress intended to aid States in detecting and punishing criminals who used the channels of interstate commerce "to make a successful getaway and thus make the state’s detecting and punitive processes impotent.” (United States v Sheridan, 329 US 379, 384.) By making it more difficult for thieves and their fences to escape with or trade in stolen property, the Federal statute grants greater governmental protection to property owners than they would otherwise enjoy (United States v McClain, 545 F2d 988, 994). Similarly, the larceny statute is intended to punish thieves and to protect the interests of property owners (see, People v Lennon, 80 AD2d 672, 673). Because the Federal and State offenses at issue here are designed to prevent the same evils, the instant case falls outside the exception of CPL 40.20 (2) (b).

Accordingly, the judgment of the Appellate Division should be reversed, without costs, and the petition granted.

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

Judgment reversed, etc.

      . Although both Thomas and Samuel McNeil were charged in both the Federal and State indictments, only the charges against Thomas McNeil are involved in this appeal, Samuel McNeil having pleaded guilty to the State indictment.

      . CPL 40.20 (2) provides as follows:
      "A person may not be separately prosecuted for two offenses based upon the same act or criminal transaction unless:
      "(a) The offenses as defined have substantially different elements and the acts establishing one offense are in the main clearly distinguishable from those establishing the other; or
      "(b) Each of the offenses as defined contains an element which is not an element of the other, and the statutory provisions defining such offenses are designed to prevent very different kinds of harm or evil; or
      * ** *
      "(g) The present prosecution is for a consummated result offense, as defined in subdivision three of section 20.10, which occurred in this state and the offense was the result of a conspiracy, facilitation or solicitation prosecuted in another state.”

      . CPL 20.10 (3) defines a result offense as follows: "[w]hen a specific consequence * * * is an element of an offense, the occurrence of such consequence constitutes the 'result’ of such offense. An offense of which a result is an element is a 'result offense.’ ”


source: Caselaw Access Project

author: Hancock, Jr., J.

license: Public Domain

text:
    In the Matter of Har Enterprises, Appellant, v Town of Brookhaven, Respondent.
    Argued October 19, 1989;
    decided November 30, 1989

      POINTS OF COUNSEL

      Robert M. Calica and Myra P. Lapidus for appellant.
    I. Petitioner possesses standing to raise an environmentally based challenge to the rezoning of its property. (Matter of Douglaston Civic Assn. v Galvin, 36 NY2d 1; Matter of Sun-Brite Car Wash v Board of Zoning & Appeals, 69 NY2d 406; Matter of Save the Pine Bush v City of Albany, 70 NY2d 193; Matter of Coca-Cola Bottling Co. v Board of Estimate, 72 NY2d 674; Chinese Staff & Workers Assn. v City of New York, 68 NY2d 359; Matter of Brew v Hess, 124 AD2d 962.) II. The town’s documented noncomplianqe with SEQRA renders the rezoning of petitioner’s property void. (Matter of Fernandez v Planning Bd., 122 AD2d 139; Matter of Brew v Hess, 124 AD2d 962; Matter of Di Veronica v Arsenault, 124 AD2d 442; Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451.) III. The town’s after-the-fact attempt at compliance with SEQRA renders the rezoning of petitioner’s property void. (Matter of TriCounty Taxpayers Assn. v Town Bd., 55 NY2d 41; Chinese

      Staff & Workers Assn. v City of New York, 68 NY2d 359; Matter of Brew v Hess, 124 AD2d 962; Matter of Di Veronica v Arsenault, 124 AD2d 442.) IV. Petitioner’s second cause of action for the issuance of a building permit states a cognizable claim. (Matter of Pokoik v Silsdorf, 40 NY2d 769; Matter of Faymor Dev. Co. v Board of Stds. & Appeals, 45 NY2d 560; Matter of West Lane Props. v Lombardi, 139 AD2d 748.)

      David P. Fishbein, Town Attorney (Michael T. Groben of counsel), for respondent.
    I. Petitioner lacks standing to sue under SEQRA. (Matter of Dairylea Coop. v Walkley, 38 NY2d 6; Matter of Coca-Cola Bottling Co. v Board of Estimate, 72 NY2d 674; Glenhead — Glenwood Landing Civic Council v Town of Oyster Bay, 88 AD2d 484; County of Franklin v Connelie, 68 AD2d 1000; Bliek v Town of Webster, 104 Misc 2d 852; Matter of Niagara Recycling v Town Bd., 83 AD2d 335, 56 NY2d 859; Webster Assocs. v Town of Webster, 112 Misc 2d 396, 85 AD2d 882, 59 NY2d 220; Matter of Save the Pine Bush v City of Albany, 70 NY2d 193; Chinese Staff & Workers Assn. v City of New York, 68 NY2d 359.) II. Respondent town’s environmental review was conducted in full compliance with SEQRA. (Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400; Webster Assocs. v Town of Webster, 59 NY2d 220; Town of Victory v Flacke, 101 AD2d 1016; Golden v Metropolitan Transp. Auth., 126 AD2d 128.) III. The town’s SEQRA review took place prior to the rezoning and was timely. (Matter of Di Veronica v Arsenault, 124 AD2d 442; Matter of Tri-County Taxpayers Assn. v Town Bd., 55 NY2d 41.) IV. Petitioner’s second cause of action sought relief which could not be granted and was properly dismissed. (Matter of Pokoik v Silsdorf, 40 NY2d 769.)
   OPINION OF THE COURT

Hancock, Jr., J.

We granted petitioner leave to appeal in order to address a question pertaining to standing: whether an owner of property which is the subject of a zone change must plead specific environmental harm to challenge the sufficiency of an agency’s efforts to comply with SEQRA. We hold that where, as here, the very subject of the proposed action (ECL 8-0105 [4]) is petitioner’s property, petitioner is presumptively adversely affected by the violation of SEQRA requirements and that no such specific allegation is necessary (see, Matter of Sun-Brite Car Wash v Board of Zoning & Appeals, 69 NY2d 406, 413-414, 415-416). Although we differ with the Appellate Division on this standing issue, we agree with its determination on the merits that the agency "complied with the mandates of SEQRA” (145 AD2d 562, 563). Accordingly, there should be an affirmance.

I

Petitioner is the owner of three parcels of land totaling approximately 60 acres in the Town of Brookhaven. From 1971 until January 1987 all three parcels had a zoning classification which permitted commercial use. In September 1986 petitioner entered into a contract to construct a 45,000 square foot supermarket on the largest parcel. On December 2, 1986 respondent town held a public hearing to determine whether all three parcels should be rezoned for residential use. After the hearing but before taking any action on the proposed zone change, the town, acting as lead agency, completed and filed a "negative declaration” (see, 6 NYCRR 617.2 [y]) — an environmental assessment form concluding that the proposed action would not result in any significant adverse environmental impact. On January 20, 1987 the town board voted to approve the rezoning plan.

Petitioner commenced an action seeking a judgment declaring the rezoning of its property to be void and directing the town to issue a permit for the construction of the supermarket. After converting the declaratory judgment action to an article 78 proceeding, Supreme Court granted respondent’s motion to dismiss. The court held that petitioner lacked standing to raise a SEQRA-based challenge grounded solely on its allegations of unspecified "eventual environmental consequences” and that, in any event, respondent had complied with the requirements of SEQRA. The Appellate Division agreed with Supreme Court’s holdings both on standing and on the merits of the SEQRA challenge.

II

It is established law that to be entitled to seek judicial review of an administrative determination, the petitioning party "must have a legally cognizable interest that is or will be affected by the * * * determination” (Matter of Sun-Brite Car Wash v Board of Zoning & Appeals, 69 NY2d 406, 413, supra). A showing of special damage or actual injury is not always necessary to establish a party’s standing (id., at 413). In some instances, the party’s particular relationship to the subject of the action may give rise to a presumption of standing (id., at 413). Thus, in Sun-Brite Car Wash, we held that adjacent property owners, as "members of a group presumptively affected by the [action]” (id., at 415-416), had standing to challenge the village board’s grant of a zoning permit for a radio tower without showing the likelihood of any actual resultant harm.

In applying these general rules to the claim of a SEQRA violation, the distinctive characteristics of the SEQRA statutory scheme and the particular function of the courts in reviewing the adequacy of SEQRA compliance must be kept in mind. SEQRA is designed to promote "efforts which will prevent or eliminate damage to the environment and enhance human and community resources” (ECL 8-0101) by injecting "environmental considerations directly into governmental decision making; thus the statute mandates that '[s]ocial, economic, and environmental factors shall be considered together in reaching decisions on proposed activities’ (ECL 8-0103 [7]; see, Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400, 415; Governor’s Mem, 1975 NY Legis Ann, at 438).” (Matter of Coca-Cola Bottling Co. v Board of Estimate, 72 NY2d 674, 679 [emphasis added]; see, Matter of Save the Pine Bush v City of Albany, 70 NY2d 193, 206.)

To assure that those charged with decision-making responsibility are aware of their obligations "to protect the environment for the use and enjoyment of this and all future generations” (ECL 8-0103 [8]), SEQRA establishes detailed procedures requiring them to consider the potentially harmful effects of a proposed action (see, Matter of Coca-Cola Bottling Co. v Board of Estimate, supra, at 679). Thus, the lead agency "must initially determine whether a proposed action may have a significant effect on the environment (ECL 8-0109 [2], [4]; 6 NYCRR 617.2 [v]). If no significant effect is found, the lead agency may issue a 'negative declaration,’ identifying areas of environmental concern, and providing a reasoned elaboration explaining why the proposed action will not significantly affect the environment (6 NYCRR 617.6 [g]).” (Id., at 680.)

In reviewing a lead agency’s compliance with SEQRA, a court does not "weigh the desirability of [the] action” (Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400, 416) or determine what, if any, adverse environmental effects may result from it. Indeed — as contrasted, for example, with a court’s review of the grant or denial of a variance or special permit — the merits of the action and its ultimate impact on the petitioning party or others are not in question. The limited issue for review is whether the decision makers identified the relevant areas of environmental concern, took a "hard look” at them, and made a "reasoned elaboration” of the basis for their determination (id., at 417).

In deciding whether an owner has standing to ask a court to review SEQRA compliance, the question is whether it has a significant interest in having the mandates of SEQRA enforced. An owner’s interest in the project may be so substantial and its connection to it so direct or intimate as to give it standing without the necessity of demonstrating the likelihood of resultant environmental harm. For even though such an owner cannot presently demonstrate an adverse environmental effect, it nevertheless has a legally cognizable interest in being assured that the decision makers, before proceeding, have considered all of the potential environmental consequences, taken the required "hard look”, and made the necessary "reasoned elaboration” of the basis for their determination.

Under these rules, we hold that this property owner has a legally cognizable interest in being assured that the town satisfied SEQRA before taking action to rezone its land. In reaching this conclusion, we need not delimit the parameters of the zone of interest in SEQRA compliance or define the precise nexus with the proposed action that a party must demonstrate in order to object for failure of compliance. It seems evident that if any party should be held to have a sufficient interest to object — without having to allege some specific harm — it is an owner of property which is the subject of a contemplated rezoning. Here, apparently only the owner of the affected property has a sufficient incentive to bring a review proceeding. To adopt the rule urged by respondent and deny standing — absent an allegation that the owner will suffer some adverse environmental consequence — would insulate decisions such as this from judicial review, a result clearly contrary to the public interest.

Respondent argues, however, that petitioner can have no standing because the action here is "up-zoning” from a commercial use to a less intense residential use. The argument misses the point that in reviewing a SEQRA determination, the court is solely concerned with the procedural and substantive mandates of SEQRA, not with the ultimate environmental consequences of the proposed action (see, Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400, 416-417, supra). Also beside the point are respondent’s protestations that the true motive for petitioner’s objection is its desire to proceed with its planned supermarket, not its concern with the town’s adherence to SEQRA. That petitioner concededly has an economic interest in the outcome does not negate the standing that it otherwise has by virtue of its status as owner of the property (see, Matter of Sun-Brite Car Wash v Board of Zoning & Appeals, 69 NY2d, at 415, supra; Cord Meyer Dev. Co. v Bell Bay Drugs, 20 NY2d 211, 215-216).

Ill

Having concluded that petitioner has standing, we briefly address its contention that the town’s negative declaration is inadequate. In reviewing the issuance of a negative declaration our task is to determine whether the agency "made a thorough investigation of the problems involved and reasonably exercised [its] discretion (Matter of Cohalan v Carey, 88 AD2d 77, 79, appeal dismissed 57 NY2d 672; H.O.M.E.S. v New York State Urban Dev. Corp. [69 AD2d 222], 231).” (Chinese Staff & Workers Assn. v City of New York, 68 NY2d 359, 364; see, Matter of Niagara Recycling v Town Bd., 83 AD2d 335, 338-341.) In making such review, the agency’s obligations under SEQRA "must be viewed in light of a rule of reason.” (Jackson v New York State Urban Dev. Corp., 67 NY2d 400, 417, supra.) The degree of detail will obviously vary with the nature of the proposal and the agency’s determination will be annulled "only if arbitrary, capricious or unsupported by substantial evidence” (id., at 417). In assessing the adequacy of the negative declaration here, we agree with the Appellate Division that "the Town Board identified the relevant areas of environmental concern, took a hard look at them and made a 'reasoned elaboration’ (6 NYCRR 617.6 [g] [2] [iv]) for the basis of its determination” (145 AD2d, at 563).

Finally, we reject petitioner’s contention that the negative declaration should be considered a nullity because it was not completed and filed before the public hearing. SEQRA prescribes that the required environmental review be made before the agency acts (see, Matter of Tri-County Taxpayers Assn. v Town Bd., 55 NY2d 41, 46-47; Matter of Di Veronica v Arsenault, 124 AD2d 442, 444). Here, the agency’s action was the town board’s approval of the rezoning. The negative declaration was issued prior to that action and was, thus, timely.

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

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

Order affirmed, with costs.

       Under SEQRA and its implementing regulations, a lead agency is defined as the government entity "principally responsible for carrying out, funding or approving” the proposed action (ECL 8-0111 [6]; 6 NYCRR 617.2 M).


author: Kaye, J.

text:
    In the Matter of Christina F. and Another, Children Alleged to be Abused. Gary F., Appellant.
    Argued October 17, 1989;
    decided November 30, 1989

      POINTS OF COUNSEL

      John A. DeFrancisco for appellant.
    I. The unsworn testimony of a five-year-old child is insufficient to supply the corroboration of that same child’s previous out-of-court statement. (Matter of Tara H., 129 Misc 2d 508; Matter of Dana F., 113 AD2d 939; Matter of Nicole V., 71 NY2d 112; Crawford v Nilan, 289 NY 444; Matter of Anne B., 131 Misc 2d 478.) II. A finding of abuse may not be made solely upon the uncorroborated, unsworn testimony of a five-year-old child. (Napiearlski v Pickering, 278 App Div 456; Clarke v Steeplechase Amusement Co., 9 Misc 2d 342; Anesgart v City of New York, 10 Misc 2d 995; Fineman v Krebs, 17 Misc 2d 922; People v Klein, 266 NY 188; People v St. John, 74 AD2d 85; People v James, 100 AD2d 738; People v Curtis, 76 Misc 2d 128; Olshansky v Prensky, 185 App Div 469; Fritsch v Central Trust Co., 262 App Div 551.) III. Petitioner has not met its burden of proof as a matter of law.

      Jon A. Gerber, County Attorney (Martin J. Murphy of counsel), for respondent.
    I. The unsworn testimony of the child corroborated her out-of-court statements. (Matter of Nicole V., 71 NY2d 112; Matter of Tina H., 123 AD2d 864; Matter of Elizabeth D., 139 AD2d 66.) II. Petitioner met its burden of proof as a matter of law. (Matter of Tammie Z., 66 NY2d 1; Matter of Nicole V., 71 NY2d 112; Matter of Cynthia V., 94 AD2d 773.)
   OPINION OF THE COURT

Kaye, J.

In a child protective proceeding under article 10 of the Family Court Act (the Child Protective Proceedings Act), a child’s out-of-court statements describing sexual abuse by her father may be corroborated by the child’s later cross-examined but unsworn in-court testimony, so as to support a fact finding of abuse.

This proceeding was instituted by the Onondaga County Department of Social Services Child Protective Division, seeking a finding that respondent had abused his daughter, Christina, then five years old, and that his son, Robert, age two, was in danger of being abused. At a fact-finding hearing, Detective Antonello of the County Sheriffs Department testified that, in an interview, Christina told him that respondent had done "bad things” to her — that he had awakened her, carried her from her bedroom downstairs to the living room, had her remove her clothing and touched her vagina, and also that she had seen him masturbating in the bathroom. Detective Antonello further testified that, when given anatomically correct dolls, Christina positioned them to indicate the contact she had described. Petitioner agency additionally offered the testimony of the mother and a police officer who had interviewed respondent. The officer testified that respondent told him of two occasions when Christina had grasped her father’s hand and placed it on her vagina. Two writings were received in evidence — a handwritten note of "apology” by respondent to Christina, and respondent’s affidavit describing the two hand-to-vagina contacts he said were initiated by the child.

As part of petitioner’s case, five-year-old Christina testified in Chambers. By agreement of the parties, the examination was conducted outside both parents’ presence, though their counsel attended. Without preliminary inquiry or objection, no oath was administered to the child. In extensive direct and cross-examination Christina testified that her father "did some bad things” to her, and she recounted — in greater detail, and with some inconsistency from her earlier reported statements —substantially the same incidents she had related to Detective Antonello. Testifying in his own behalf, respondent denied any abuse, specifically denied the incidents of which Christina spoke, and described the two hand-to-vagina contacts set forth in his affidavit.

Family Court concluded that Christina’s in-court testimony corroborated her earlier statements to Detective Antonello, and that this evidence constituted a prima facie case of child abuse under Family Court Act § 1046 (a) (vi). In accepting the testimony as sufficient corroboration, the court noted that it "had an opportunity in this case to make observations of the child as she told her story, and found that the child appeared credible * * * and thus now accepts such statements as corroboration sufficient under the statute.” (135 Misc 2d 495, 500.) The court further concluded from a review of the entire record that petitioner had established by a preponderance of the evidence that Christina was an abused child. The court termed the child’s testimony credible and respondent’s testimony unpersuasive; it set out the evidentiary basis for its holding the child’s account derived from fact and not from her mother’s coaching; and it observed that "the variance between [respondent’s] version and the child’s [was] too great to be explained away by an inference from this record that the child had been coached to the extent that would have been necessary to enable her to sustain such an elaborate fabrication.” (Id., at 501.)

By stipulation, a dispositional order was entered releasing the children to the mother’s custody, under petitioner’s supervision, and providing for supervised visits by respondent for a period of 18 months, together with other relief. The Appellate Division unanimously affirmed, without opinion, citing in its entry Matter of Elizabeth D. (139 AD2d 66).

Since enactment of the Family Court Act, courts have struggled with the issue of corroboration (Matter of Christina F., 135 Misc 2d, at 498). In cases of sexual abuse of children in family settings — tragically today a major public concern — the issue of corroboration has been especially troubling. Such abuse typically occurs in secret with the child-victim as the only witness; the child may be reluctant or unable to testify; and erroneous dismissal of the petition can have disastrous consequences (Matter of Nicole V., 71 NY2d 112, 117; Matter of Tammie Z., 66 NY2d 1, 5; Matter of Elizabeth D., 139 AD2d 66, 69, supra). Consequently, whether the victim’s statements require corroboration, and what may serve as corroborative evidence (if required), often become questions of central significance.

This case calls upon us to determine one aspect of the issue, in a child protective proceeding. As the parties have posited the question, we are asked whether a child’s in camera unsworn but cross-examined testimony can be used to corroborate her previous out-of-court statements, to make a prima facie case of abuse, where there is no other corroborative evidence in the record. We conclude, like Family Court and the Appellate Division, that such use of the child’s testimony was permissible (see also, Matter of Elizabeth D., 139 AD2d 66, supra; Matter of Tina H., 123 AD2d 864).

As we recently noted in Matter of Nicole V. (71 NY2d, at 117, supra), a general objective of the Child Protective Proceedings Act was to alleviate certain difficulties inherent in proving the sexual abuse of children in family settings. In particular, in 1985 the Legislature amended Family Court Act § 1046 (a) (vi) to make clear that the corroboration requirements of the criminal law are not applicable in article 10 proceedings, which are civil in nature (id., at 118; see also, Family Ct Act § 1012 [e] [iii]). Section 1046 (a) (vi) provides that, in any hearing under article 10, previous statements of the child relating to allegations of abuse shall be admissible, but are insufficient for a fact finding of abuse unless corroborated. The 1985 amendment of the section added its own broad definition of corroboration. Corroboration, for purposes of article 10 proceedings, is defined to mean "[a]ny other evidence tending to support the reliability of the previous statements, including, but not limited to the types of evidence defined in this subdivision”. (Family Ct Act § 1046 [a] [vi].)

In determining whether the statute has been satisfied in this case, it is useful to return to the purpose of the corroboration requirement. Corroboration of a child’s out-of-court hearsay statements in child protective proceedings is needed not because the "statements of children are generally unreliable but because the out-of-court statements are hearsay and the statute requires some further evidence to establish their reliability.” (Matter of Nicole V., 71 NY2d, at 118, supra; see also, Matter of Lydia K., 67 NY2d 681.) Whether or not proffered corroborative testimony actually "tend[s] to support the reliability of the previous statements” in a particular case is a fine judgment entrusted in the first instance to the Trial Judges who hear and see the witnesses. In individual cases, "Family Court Judges presented with the issue have considerable discretion to decide whether the child’s out-of-court statements describing incidents of abuse or neglect have, in fact, been reliably corroborated and whether the record as a whole supports a finding of abuse.” (Matter of Nicole V., supra, at 119.)

While the facts presented would appear to fit comfortably within the language of the statute — Christina’s out-of-court hearsay statements are admissible evidence, and they are supported or "corroborated” by her in-court testimony — respondent insists that corroboration of necessity is something other than the child’s repetition of her own previous statements. In aid of this contention he points to Nicole V., where we said that "repetition of an accusation by a child does not corroborate the child’s prior account of it.” (71 NY2d, at 123, supra.)

Nothing in the broad, inclusive definition of corroboration contained in section 1046 (a) (vi) forecloses use of the child’s own testimony to corroborate her prior statements. With the purpose of the corroboration requirement being the need to buttress hearsay evidence — and not any inherent untrustworthiness of children’s statements — it should be clear that a child’s own aticount cannot be categorically ruled out as corroboration if it is given in circumstances that tend to add to the reliability of the hearsay evidence.

Nor does the cited passage from Nicole V. support respondent’s contention. The issue being addressed there was whether out-of-court hearsay statements of a child to a Deputy Sheriff, to his foster father, and again in an affidavit could cross-corroborate each other, and applying the natural meaning of Family Court Act § 1046 (a) (vi) we concluded they could not. Merely replicating the out-of:court hearsay statements in other out-of-court hearsay settings obviously does nothing to enhance their trustworthiness or eliminate their inherent unreliability.

But that is not at all the situation here. The proffered corroborative evidence is of a distinctly different quality from the child’s previous statements. The corroborative evidence offered here was testimony in court, before a Judge and court reporter, with direct examination, cross-examination by respondent’s attorney, and additional questioning by both the court and the Law Guardian. As contrasted with the mere hearsay repetition of out-of-court hearsay statements having no greater indicia of trustworthiness, here respondent was able to test Christina’s veracity, the accuracy of her perceptions, and her ability to recollect past events. The circumstances, moreover, permitted the trial court to observe the child recount her experiences in an adversarial setting, and to conclude from its observations that the child’s testimony tended to support the reliability of her previous statements. While unsworn testimony might not in every case serve as corroboration, Family Court in this case acted well within its discretion in concluding that Christina’s out-of-court statements describing her father’s behavior were reliably corroborated by her in-court testimony.

Finally, based on the affirmed findings of Family Court, which are supported by the record, we conclude that petitioner not only made out a prima facie case but also satisfied its burden of sustaining the allegations by a preponderance of the evidence.

Accordingly, the order of the Appellate Division should be affirmed, without costs.

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

Order affirmed, without costs.


text:
    In the Matter of Medicon Diagnostic Laboratories, Inc., Appellant, v Cesar A. Perales, as Commissioner of the Department of Social Services of the State of New York, Respondent. In the Matter of FYM Clinical Laboratory, Inc., Appellant, v Cesar A. Perales, as Commissioner of the Department of Social Services of the State of New York, Respondent.
    Argued October 18, 1989;
    decided November 28, 1989

      POINTS OF COUNSEL

      Mark E. Watkins for appellants.
    I. Respondent’s determination deprived appellants of their property without due process of law. (Cleveland Bd. of Educ. v Loudermill, 470 US 532; Board of Regents v Roth, 408 US 564; Matter of White Plains. Nursing Home v Whalen, 42 NY2d 838; Clove Lakes Nursing Home v Whalen, 45 NY2d 873; Mathews v Eldridge, 424 US 319; RR Vil. Assn. v Denver Sewer Corp., 826 F2d 1197; Oberlander v Perales, 740 F2d 116; Patchogue Nursing Center v Bowen, 797 F2d 1137; Anti-Fascist Comm. v McGrath, 341 US 123; Richardson v Perales, 402 US 389.) II. The withholding was arbitrary and capricious. (Matter of Council of Supervisory Assns. of Pub. Schools v Board of Educ., 23 NY2d 458; Matter of Pell v Board of Educ., 34 NY2d 222; Matter of Willcox v Stern, 18 NY2d 195; Board v Hearst Publs., 322 US 111; Matter of Sullivan County Harness Racing Assn. v Glasser, 30 NY2d 269; Securities Commn. v Chenery Corp., 318 US 80; Burlington Truck Lines v United States, 371 US 156; Citizens to Preserve Overton Park v Volpe, 401 US 402; Kashimiri v Perales, 597 F Supp 495; Marine Midland Bank v Russo Produce Co., 50 NY2d 31.)

      Robert Abrams, Attorney-General (Richard J. Dorsey, O. Peter Sherwood and Peter H. Schiff of counsel), for respondent.
    I. The court below properly rejected this provider’s claim that the temporary withholding provision was unconstitutional. (Matter of Rubin v Campbell, 48 NY2d 805; Matter of Brown v New York State Dept. of Social Servs., 106 AD2d 740, 65 NY2d 604; Matter of Siddiqui v New York State Dept. of Social Servs., 116 AD2d 909; Board of Regents v Roth, 408 US 564; Krebsbach v Heckler, 617 F Supp 548; S & D Maintenance Co. v Goldin, 844 F2d 962; Mathews v Eldridge, 424 US 319; Morrissey v Brewer, 408 US 471; Schaubman v Blum, 49 NY2d 375; Matter of Camperlengo v Blum, 56 NY2d 251.) II. There was a rational basis for the Department’s determination to withhold against petitioner. (Reynolds v Snow, 10 AD2d 101, 8 NY2d 899; Mathews v Eldridge, 424 US 319.)
   OPINION OF THE COURT

Alexander, J.

Petitioners, two clinical medical laboratories enrolled as providers in the New York State Medical Assistance Program (Medicaid), challenge the constitutionality of 18 NYCRR 518.7, which authorizes withholding payment of reimbursement claims under certain specified circumstances as a deprivation of property without due process of law and further argue that the withholding was arbitrary and capricious. We hold that to the extent that providers enrolled in the Medicaid program may enjoy a constitutionally protected property right in the payment of their claims for reimbursement for services rendered the regulations at issue here provide adequate procedural due process and thus pass constitutional muster.

As enrolled providers of clinical laboratory services in the New York State Medical Assistance Program (Medicaid), Medicon Diagnostic Laboratories, Inc. (Medicon) and FYM Clinical Laboratory, Inc. (FYM) perform clinical laboratory tests on Medicaid patients at the request of physicians. They are reimbursed for these tests by respondent State Department of Social Services (DSS), the agency charged with administering the Medicaid program in this State (Social Services Law §§ 20, 34, 363-a). As a result of a marked increase in Medicaid billings by medical laboratories in 1988, DSS was prompted to investigate the billing practices of some 40 laboratories, including these petitioners.

In May 1988, DSS auditors visited Medicon and photocopied approximately 100 records of tests purportedly ordered by approximately 10 physicians. Two of these physicians denied ordering tests for which Medicon claimed reimbursement and gave the auditors written statements to that effect.

Medicon was advised that pending "review and verification” of its reimbursement claims, payment of these claims was being withheld pursuant to respondent’s regulatory and statutory authority to safeguard the expenditure of public funds (see, Social Services Law §§20, 34, 363-a, 367-a, 367-b) and maintain procedures to verify claims to avoid inappropriate payments (see, 18 NYCRR 518.7, 540.8 [a] [1]; 540.11). Medicon was advised that the withholding would not continue beyond 90 days unless a written draft audit report or notice of proposed agency action had in the meantime been sent to it.

A draft audit report was issued well within 90 days of the notice. The report estimated that there had been overpayment to Medicon of approximately $1,022,182. The final audit report determined that the actual value of the overpayments was $930,919. Medicon was advised of its entitlement under the regulations to object to the findings in the draft audit report (see, 18 NYCRR 515.6 [a]) and to an administrative hearing following the issuance of the final audit report (see, 18 NYCRR 518.8 [b]). Medicon neither filed objections to the draft report nor demanded a hearing; rather it instituted an article 78 proceeding in which it sought to annul respondent’s determination to withhold payment of its claims, to invalidate the regulations authorizing the withholding, to obtain injunctive relief and money damages, and challenged, on due process grounds, the constitutionality of 18 NYCRR 518.7. Supreme Court, after converting the article 78 proceeding to a declaratory judgment action, relying on ADL, Inc. v Perales (US Dist Ct, SD NY, Aug. 2, 1988, Keenan, J.), declared 18 NYCRR 518.7 unconstitutional, annulled respondent’s determination withholding reimbursement, and otherwise denied the petition.

On cross appeals, the Appellate Division modified Supreme Court’s order and judgment, declared 18 NYCRR 518.7 constitutional and validly promulgated, confirmed respondent’s determination, and otherwise affirmed the judgment as modified (145 AD2d 167). Petitioner’s appeal is before us as of right pursuant to CPLR 5601 (b) (1).

DSS auditors made two visits to FYM in May 1988. On the first visit, they reviewed certain records involving Medicaid claims, and photocopied a number of files. They returned about a week later, reviewed additional records and photocopied records of 10 physicians who purportedly had requested laboratory work from FYM.

FYM was notified that DSS was initiating "a partial withhold” of payments of its Medicaid claims pending "review and verification.” DSS’s investigation determined that various of the physicians whose records had been examined denied signing or authorizing various Medicaid billings claimed by FYM. Six physicians informed respondent that they had never ordered the tests FYM claimed to have performed at their request. Deeming FYM’s explanation of these discrepancies unsatisfactory and in consideration of findings made by the State Department of Health that FYM’s practices were seriously in violation of Department standards, DSS instituted full withholding pursuant to 18 NYCRR 518.7. FYM was notified that the withholding would continue pending a draft audit report. A draft audit report was issued in September, again well within the allowed 90 days from the date of the notice. The amount of overpayment was estimated to be approximately $1,105,295.

As Medicon had done, FYM instituted an article 78 proceeding, prior to receipt of the draft audit, challenging the constitutionality of 18 NYCRR 518.7, and seeking annulment of respondent’s determination, invalidation of the regulation, injunctive relief, and damages. Supreme Court dismissed the petition as failing to state a cause of action.

The Appellate Division determined that FYM had abandoned its damages claim, and sua sponte converted the article 78 proceeding to a declaratory judgment action (CPLR 103 [c]), modified the Supreme Court judgment by reversing the "dismissal” of FYM’s causes of actions challenging the constitutionality and validity of the promulgation of 18 NYCRR 518.7, declared that 18 NYCRR 518.7 had not been shown to be unconstitutional or invalidly promulgated, and otherwise affirmed the judgment (147 AD2d 840). FYM’s appeal is also before us as of right, pursuant to CPLR 5601 (b) (1).

In both cases, the Appellate Division concluded that petitioners enjoy no property interest in the prompt payment of Medicaid claims that would entitle them to due process safeguards. The court further determined that to the extent any such property right existed in claims for work performed, the regulations afforded all the process that petitioners were due. As to Medicon and FYM’s contention that the withholding was arbitrary and capricious, the Appellate Division concluded that these claims had become moot because the withheld funds had been released. In Medicon, the Appellate Division alternatively found that because the record demonstrated that reliable information of fraud, willful misrepresentation, program abuse, or unacceptable practice existed, the withholding was proper and not arbitrary and capricious.

On their appeals to us, both Medicon and FYM contend that the withholding of payment of the Medicaid claims without giving them prior notice and a meaningful opportunity to respond constitutes a seizure of their property in violation of their constitutional right to due process. They assert that they received no notice until after the withholding had begun, that the notice furnished failed to inform them of the reasons for the withholding, failed to summarize the evidence supporting the decision to withhold, and failed to describe the process by which they could obtain relief. We reject these arguments and now affirm.

The requirements of procedural due process apply to preclude the deprivation of interests encompassed by the Fourteenth Amendment’s protection of liberty and property (Board of Regents v Roth, 408 US 564). The Supreme Court has established, however, that "the range of interests protected by procedural due process is not infinite.” (Id., at 570.) Property interests are not created by the Constitution, but rather "by existing rules or understandings that stem from an independent source such as state law” (Cleveland Bd. of Educ. v Loudermill, 470 US 532, 538, quoting Board of Regents v Roth, 408 US 564, 577, supra). In considering whether a right is granted by State law, the focus is on the relevant statute, regulation, or contract establishing eligibility for the benefit at issue (Plaza Health Labs. v Perales, 878 F2d 577, 581; see, e.g., Board of Regents v Roth, 408 US 564, 577-578, supra; Goldberg v Kelly, 397 US 254, 261-262).

The Medicaid program uses public funds to provide medical services to needy people (Matter of Camperlengo v Blum, 56 NY2d 251, 255). Under that program, the State, assisted by the Federal Government (42 USC § 1396 et seq.), reimburses providers enrolled in the program for the cost of rendering medical care to qualified patients.

We have recognized that "the public must be assured that the funds which have been set aside (for providing medical services to the needy) will not be fraudulently diverted into the hands of an untrustworthy provider of services” (Schaubman v Blum, 49 NY2d 375, 379). To that end, the agency charged with the responsibility of administering the medicaid program has inherent authority to protect the quality and value of services rendered by providers in that program (Matter of Siddiqui v New York State Dept. of Social Servs., 116 AD2d 909; see also, Matter of Rubin v Campbell, 48 NY2d 805; Matter of Brown v New York State Dept. of Social Servs., 106 AD2d 740, lv denied 65 NY2d 604).

Procedures for investigating the validity of claims for reimbursement are set forth in the regulations promulgated by respondent (see generally, 18 NYCRR parts 517, 518, 519). By enrolling in a medical assistance program, a provider agrees to abide by these regulations, to permit audits of its books and records relating to services furnished and payments received under the program (18 NYCRR 504.3 [g]), and to submit to audit and claim review pursuant to which the Department may "pend claims for further audit or review” (18 NYCRR 504.8 [c]). Where there is reliable information that a provider is involved in fraud, willful misrepresentation, program abuse or unacceptable practices, 18 NYCRR 518.7 authorizes DSS to withhold reimbursement without prior notice or opportunity to be heard.

Petitioners acknowledge the State’s interest in the integrity of the Medicaid program and its right to conduct audits of reimbursement claims but contend that withholding reimbursement funds without prior notice and an opportunity to be heard constitutes a "seizure” of property in violation of due process. Contrary to these assertions, we conclude that the regulations properly balance and adequately protect any property interest petitioners have in reimbursement of their claims.

We have said that "due process is a flexible constitutional concept calling for such procedural protections as a particular situation may demand” (LaRossa, Axenfeld & Mitchell v Abrams, 62 NY2d 583, 588, citing Morrissey v Brewer, 408 US 471, 481). In determining whether due process standards have been met, "we look to the three distinct factors that form the balancing test enunciated by the Supreme Court in Mathews v Eldridge (424 US 319, 335): 'First, the private interest that will be affected by the official action; second, the risk of erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail’ ” (Morgenthau v Citisource, Inc., 68 NY2d 211, 221; see also, People ex rel. Vega v Smith, 66 NY2d 130, 141; Matter of Tammie Z., 66 NY2d 1, 4; LaRossa, Axenfeld & Mitchell v Abrams, 62 NY2d 583, supra).

The procedures for withholding payment of Medicaid reimbursement claims set forth in section 518.7 of the regulations satisfy the Mathews test. They adequately safeguard the private interests of petitioners, and minimize the risk of erroneous deprivation while serving the substantial government interest in safeguarding the integrity of the Medicaid program. Moreover, the regulations permit withholding payment only where there is "reliable information that a provider is involved in fraud or willful misrepresentation involving claims submitted to the program or has abused the program or committed an unacceptable practice” (18 NYCRR 518.7 [a]). Notice of the withholding must be given to the provider promptly, within five days (18 NYCRR 518.7 [b]), and the notice must describe the reasons for the withholding and afford the provider an opportunity to make written submissions and arguments in opposition (18 NYCRR 518.7 [c] [4]). The withholding may not continue beyond 90 days unless a written report or notice of proposed agency action is given to the provider (18 NYCRR 518.7 [d]) in which event the provider would be entitled to request a hearing (18 NYCRR 518.7 [d] [2]; 518.8 [b]).

Significantly, petitioners do not challenge the facial adequacy of these regulations. Rather, they contend that they were entitled to notice prior to the withholding of their reimbursement claims and that the notice they were provided failed adequately to inform them of the reasons for the withholding, failed to summarize the evidence supporting the withholding, and failed to describe the process by which they could obtain relief. These contentions are without merit. The record in each case demonstrates that Medicon and FYM were timely informed that certain named physicians denied having requested tests for which petitioners had submitted reimbursement claims, that petitioners were accorded an opportunity to respond to those claims and were fully informed as to the processes by which they could obtain relief.

Finally, petitioners’ contention that the decision to withhold payment was arbitrary and capricious is without merit. Respondent’s decision to withhold payment pending the audit was based on "reliable information” — written statements of several physicians indicating that some of petitioners’ claims were improper. This provided an adequate basis for the withholding of payment pending audit and review.

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

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

In each case: Order affirmed, with costs.

      . DSS asserts that Medicon’s billings, which were approximately $1.5 million in 1987, rose to an annual rate of $13.8 million during an eight-week period in March and April 1988, and FYM’s billings for the first quarter of 1988 increased 58% over its billings for a like period in 1987. Total Medicaid billings for 1987 were $100 million; billings for the first three months of 1988 were running at a rate equivalent to $240 million per year.

      . 18 NYCRR 518.7 became effective on June 6, 1988. It permits respondent to withhold payment on the Medicaid claims of providers when there is "reliable information that a provider is involved in fraud or willful misrepresentation involving claims submitted to the program, or has abused the program or committed an unacceptable practice” (18 NYCRR 518.7 [a]).


text:
    Immuno AG., Appellant, v J. Moor-Jankowski, Respondent.
    Argued November 14, 1989;
    decided December 14, 1989

      POINTS OF COUNSEL

      Raymond S. Fersko, Anders R. Sterner, Mitchell Lapidus and Anne Marie Perske for appellant.
    I. The court below erroneously determined that no triable issues of fact were presented and that the statements at issue were not actionable defamations. (Karaduman v Newsday, Inc., 51 NY2d 531; Time, Inc. v Ragano, 427 F2d 219; Chalpin v Amordian Press, 128 AD2d 81; Rinaldi v Holt, Rinehart & Winston, 42 NY2d 369, 434 US 969; Cohn v National Broadcasting Co., 67 AD2d 140, 50 NY2d 885, 449 US 1022; Policano, Inc. v North Am. Precis Syndicate, 129 AD2d 488; Gaeta v New York News, 62 NY2d 340; Scacchetti v Gannett Co., 123 AD2d 497.) II. It was error to hold that the statements at bar are protected opinion. (Steinhilher v Alphonse, 68 NY2d 283; Silsdorf v Levine, 59 NY2d 8, 464 US 831; Chalpin v Amordian Press, 128 AD2d 81.) III. It was error for the court below to make findings of fact on a motion for summary judgment. (Ocean State Seafood v Capital Newspaper, 112 AD2d 662; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395; Anderson v Liberty Lobby, 477 US 242; Hutchinson v Proxmire, 443 US 111; Calder v Jones, 465 US 783.) IV. A libel plaintiff is not required by law to rebut false charges. (Gertz v Robert Welch, Inc., 418 US 323.) V. It was error to construe the words at issue so mildly as to hold them nonactionable. (Mencher v Chesley, 297 NY 94; Carney v Memorial Hosp. & Nursing Home, 64 NY2d 770.)

      Robert G. Sugarman and Philip A. Byler for respondent.
    I. The court below correctly held that the statements were nonactionable because they were constitutionally protected opinion or were fact as to which Immuno AG. did not or could not carry its constitutionally imposed burden of proving falsity. (Ollman v Evans, 750 F2d 970, 471 US 1127; Steinhilber v

      Alphonse, 68 NY2d 283; Parks v Steinbrenner, 131 AD2d 60; Mr. Chow of N. Y. v Ste. Jour Azur, 759 F2d 219; Kahn v Shaw, 15 AD2d 821; Rinaldi v Holt, Rinehart & Winston, 42 NY2d 369, 434 US 969; Cohn v National Broadcasting Co., 67 AD2d 140, 50 NY2d 885, 449 US 1022; Policano, Inc. v North Am. Precis Syndicate, 129 AD2d 488; Janklow v Newsweek, Inc., 788 F2d 1300, 479 US 883; Buckley v Littell, 539 F2d 882, 429 US 1062.) II. Immuno AG.’s complaints that the court below erred in granting summary judgment by usurping the jury’s function, barring the suit because Immuno did not avail itself of the opportunity given to reply, reading the publications "too mildly” and committing factual errors are all wholly without merit. (Philadelphia Newspapers v Hepps, 475 US 767; Anderson v Liberty Lobby, 477 US 242; Karaduman v Newsday, Inc., 51 NY2d 531; Washington Post Co. v Keogh, 365 F2d 965, 385 US 1011; James v Gannett Co., 40 NY2d 415; Aronson v Wiersma, 65 NY2d 592; Tracy v Newsday, Inc., 5 NY2d 134; Cohn v National Broadcasting Co., 50 NY2d 885; Amelkin v Commercial Trading Co., 23 AD2d 830, 17 NY2d 500; Tavoulareas v Piro, 817 F2d 762.) III. The court below correctly ruled that the issue of culpability need not be addressed and correctly did not consider the issue of damages; had culpability and damages been addressed, Immuno AG. would have been found to be a "public figure” subject to the "actual malice” standard, Dr. Moor-Jankowski would have been found to have acted responsibly under any standard and Immuno AG. would have been found not to have come forward with proof of damages. (New York Times Co. v Sullivan, 376 US 254; Rinaldi v Holt, Rinehart & Winston, 42 NY2d 369; Mahoney v Adirondack Publ. Co., 71 NY2d 31; Gertz v Robert Welch, Inc., 418 US 323; Chapadeau v Utica Observer-Dispatch, 38 NY2d 196; Safarets, Inc. v Gannett Co., 80 Misc 2d 109, 49 AD2d 666; Campo Lindo for Dogs v New York Post Corp., 65 AD2d 650; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065; Foodscience Corp. v McGraw-Hill, Inc., 592 F Supp 362; Edwards v National Audubon Socy., 556 F2d 113, cert denied sub nom. Edwards v New York Times Co., 434 US 1002.)

      Henry R. Kaufman and Gordon T. Platt for World Wildlife Fund and others, amici curiae.

    I. A libel claim must be viewed in the broader context of the publication and the potential impact of the libel claim on liberty and freedom of expression. (New York Times Co. v Sullivan, 376 US 254; Steinhilber v

      Alphonse, 68 NY2d 283.) II. At a minimum, sensitive consideration of a libel defendant’s motion is required under the "ordinary rules” governing summary judgment in order to protect liberty and freedom of expression. (Washington Post Co. v Keogh, 365 F2d 965, 385 US 1011; Rinaldi v Holt, Rinehart & Winston, 42 NY2d 369; Karaduman v Newsday, Inc., 51 NY2d 531; Hutchinson v Proxmire, 443 US 111; Gaeta v New York News, 62 NY2d 340; Anderson v Liberty Lobby, 477 US 242; Ollman v Evans, 750 F2d 970.) III. To protect fully liberty and freedom of expression, this court should expressly adopt a rule "favoring” summary judgment in libel actions implicating constitutional rights. IV. Under any rule, summary judgment is clearly mandated in this action. (Gertz v Robert Welch, Inc., 418 US 323; Rinaldi v Holt, Rinehart & Winston, 42 NY2d 369; Steinhilber v Alphonse, 68 NY2d 283; Ollman v Evans, 750 F2d 970; Mr. Chow of N. Y. v Ste. Jour Azur, 759 F2d 219; Pollnow v Poughkeepsie Newspapers, 107 AD2d 10, 67 NY2d 778; James v Gannett Co., 40 NY2d 415.)

      Edward A. Miller and Slade R. Metcalf for Association of American Publishers, Inc., and another, amici curiae.

    I. The challenged statements in the letter to the editor were nonactionable as (a) constitutionally protected opinion or (b) fact not proven by Immuno to be false. (Gertz v Robert Welch, Inc., 418 US 323; New York Times Co. v Sullivan, 376 US 254; Garrison v Louisiana, 379 US 64; Greenbelt Publ. Assn. v Bresler, 398 US 6; Abrams v United States, 250 US 616; Connick v Myers, 461 US 138; Consolidated Edison Co. v Public Serv. Commn., 447 US 530; Roth v United States, 354 US 476; Rinaldi v Holt, Rinehart & Winston, 42 NY2d 369; Chalpin v Amordian Press, 128 AD2d 81.) II. Summary judgment is the appropriate judicial tool to dismiss nonmeritorious libel claims such as here presented. (Rinaldi v Holt, Rinehart & Winston, 42 NY2d 369; James v Gannett Co., 40 NY2d 415; Chapadeau v Utica Observer-Dispatch, 38 NY2d 196; Trails W. v Wolff, 32 NY2d 207; Gilbert v Goffi, 21 AD2d 517, 15 NY2d 1023; Philadelphia Newspapers v Hepps, 475 US 767; Cox Broadcasting Corp. v Cohn, 420 US 469; Pollnow v Poughkeepsie Newspapers, 107 AD2d 10, 67 NY2d 778; Brady v Ottaway Newspapers, 84 AD2d 226, 63 NY2d 1031; Fairley v Peekskill Star Corp., 83 AD2d 294.)

      Floyd Abrams, Taryn V. Shelton, Robert J. Pape, Kathryn J. Rodgers, Thomas DeJulio, Michael G. McDonald, S. Andrew Schaffer, Ada Meloy, James E. McCarthy, III, Shelly Sanders

      Kehl, Herbert D. Schwartzman, John A. Beach, Thomas S. Evans and Martin H. Bockstein for Adelphi University and others, amici curiae.

    I. The entire letter to the editor of Dr. McGreal was one of opinion and its publication was thus absolutely privileged. (Steinhilber v Alphonse, 68 NY2d 283; Rinaldi v Holt, Rinehart & Winston, 42 NY2d 369, 434 US 969; Ollman v Evans, 750 F2d 970, 471 US 1127; Safarets, Inc. v Gannett Co., 80 Misc 2d 109, 49 AD2d 666; Mr. Chow of N. Y. v Ste. Jour Azur, 759 F2d 219; Tracy v Newsday, Inc., 5 NY2d 134; James v Gannett Co., 40 NY2d 415; Chapadeau v Utica Observer-Dispatch, 38 NY2d 196; Janklow v Newsweek, Inc., 788 F2d 1300, 479 US 883; Price v Viking Penquin, 881 F2d 1426.) II. Significant First Amendment values make summary judgment, where appropriate, the preferred remedy in libel actions. (Karaduman v Newsday, Inc., 51 NY2d 531; Washington Post Co. v Keogh, 365 F2d 965, 385 US 1011; Gaeta v New York News, 62 NY2d 340; Pollnow v Poughkeepsie Newspapers, 67 NY2d 778; Rinaldi v Holt, Rinehart & Winston, 42 NY2d 369; Anderson v Liberty Lobby, 477 US 242; Hutchinson v Proxmire, 443 US 111; Scacchetti v Gannett Co., 123 AD2d 497.)

      Michael S. Zachary, Steven Sinatra, Arthur N. Eisenberg and Kenneth P. Norwick for The New York Civil Liberties Union, amicus curiae.

    I. The statements at issue here constitute nonactionable expressions of opinion. (Gertz v Robert Welch, Inc., 418 US 323; Steinhilber v Alphonse, 68 NY2d 283; Parks v Steinbrenner, 131 AD2d 60; New York Times Co. v Sullivan, 376 US 254; Philadelphia Newspapers v Hepps, 475 US 767; Ollman v Evans, 750 F2d 970; Information Control Corp. v Genesis One Computer Corp., 611 F2d 781; Steinhilber v Alphonse, 68 NY2d 283.) II. The court below properly granted summary judgment dismissing the complaint. (Karaduman v Newsday, Inc., 51 NY2d 531.)

      Laura M. Mattera for Sierra Club and others, amici curiae.

    I. Reversal of the decision below will serve to encourage the filing of intimidation lawsuits against public policy advocates. (Hotchner v Castillo-Puche, 551 F2d 910, cert denied sub nom. Hotchner v Doubleday & Co., 434 US 834; Karaduman v Newsday, Inc., 51 NY2d 531.) II. Reversal of the decision below will serve to chill debate on matters of public concern. (Trump v Chicago Tribune Co., 616 F Supp 1434; Cambridge Assocs. v Inland Vale Farm Co., 116 AD2d 684.)

      Stephan E. Lawton, George R. Clark and Alexander P. Starr
      for National Association for Biomedical Research, amicus curiae.

    There is no First Amendment basis for protecting the knowing publication of falsehoods as presented in this case. (Keyishian v Board of Regents, 385 US 589; Sweezy v New Hampshire, 354 US 234; Gertz v Robert Welch, Inc., 418 US 323; Rinaldi v Holt, Rinehart & Winston, 42 NY2d 369, 434 US 969; Chalpin v Amordian Press, 128 AD2d 81; Time, Inc. v Ragano, 427 F2d 219.)
   OPINION OF THE COURT

Kaye, J.

This appeal concerns application of the "settled rule that expressions of an opinion 'false or not, libelous or not, are constitutionally protected and may not be the subject of private damage actions’ ”. (Steinhilber v Alphonse, 68 NY2d 283, 286.) Settled though the rule may be, the line separating protected expressions of opinion from actionable assertions of fact has proved elusive. In this case, the primary — and vehemently contested — dispute between the parties concerns the proper category for a letter to the editor of a scientific journal.

I.

This libel action arises out of a letter to the editor published in the Journal of Medical Primatology in December 1983. The letter was written by Dr. Shirley McGreal, chairwoman of the International Primate Protection League (IPPL), an organization known for its vigorous advocacy on behalf of primates, particularly those used for biomedical research. Defendant Dr. J. Moor-Jankowski, a professor of medical research at New York University School of Medicine and director of the Laboratory for Experimental Medicine and Surgery in Primates of the New York University Medical Center, is cofounder and editor of the Journal.

The subject of McGreal’s letter (reprinted at 145 AD2d, at 118-120) was a plan by plaintiff, Immuno AG. — a multinational corporation based in Austria that manufactures biologic products derived from blood plasma — to establish a facility in Sierra Leone for hepatitis research using chimpanzees. McGreal’s letter was critical of Immuno’s proposal on a number of grounds: (1) that the motivation for the plan was to avoid international policies or legal restrictions on the importation of chimpanzees, an endangered species; (2) that it could decimate the wild chimpanzee population, as capture of chimpanzees generally involved killing their mothers, and efforts at returning experimental animals to the wild (as plaintiff proposed) were of questionable success; and (3) that returning the animals to the wild risked spreading hepatitis to the rest of the chimpanzee population. McGreal stated that the current population of captive chimpanzees should be adequate to supply any legitimate requirements.

The letter was prefaced by an editorial note written by defendant that set out its background. Identifying McGreal as chairwoman of IPPL, the note stated that the Journal had received the initial version of the letter in January 1983 and had submitted it to plaintiff for comment or reply. Plaintiff had acknowledged receipt of the letter in February, offering no comment but that it was referring the matter to its New York lawyers. Thereafter, plaintiff’s lawyers wrote that Mc-Greal’s statements were inaccurate, unfair and reckless, and requested the documents upon which the accusations were based, threatening legal action if the letter were printed before plaintiff had a meaningful opportunity to reply. The editorial note went on to state that the editors had advised plaintiff’s attorneys that they should obtain the documentation directly from McGreal, and extended the period for plaintiff’s reply by two months. The letter was published nearly a year after its receipt, after articles had appeared in the Austrian press apparently confirming much of what Mc-Greal had written, and after receiving no further word from plaintiff or its lawyers.

In addition to the McGreal letter that is the focus of contention, plaintiff complains that it was defamed by comments made by defendant quoted in an article entitled "Loophole May Allow Trade in African Chimps” that appeared in the New Scientist magazine shortly before McGreal’s letter was published. Defendant is quoted as saying that the supply of captive chimpanzees was sufficient for research, describing defendant’s attempts to circumvent controls on endangered species as "scientific imperialism,” and warning that they will "backfire on people like me involved in the bona fide use of chimpanzees and other primate animals” for research.

In December 1984, plaintiff commenced this lawsuit against Moor-Jankowski and seven other defendants, including Mc-Greal and the publishers and distributors of the New Scientist and the Journal of Medical Primatology. All the defendants save Moor-Jankowski settled with plaintiff for what the motion court described as "substantial sums,” and the complaint was dismissed as to them. After extensive discovery, defendant moved for summary judgment. Supreme Court granted the motion to the extent of dismissing a claim for prima facie tort. It denied the motion as to the defamation claims, ruling that the statements at issue were statements of fact and, regardless of whether plaintiff was a public figure, there were triable issues of fact concerning whether defendant acted with actual malice in making or publishing the statements.

On defendant’s appeal, the Appellate Division unanimously reversed, granted defendant’s motion and dismissed the complaint. The court held that all of the comments attributed to defendant in the New Scientist article were expressions of opinion that could not, as a matter of law, support an action for defamation. As to the McGreal letter, the Appellate Division held that for the most part it too was a constitutionally protected expression of opinion. To the extent that it contained statements of a factual nature, the Appellate Division examined each statement meticulously, and concluded from the voluminous record not only that plaintiff had failed to adduce evidence of falsity but also that all such factual assertions were demonstrably true.

With respect to the comments attributed to defendant in the New Scientist article, we now affirm the Appellate Division order for the reasons stated by that court (145 AD2d 114, 143). With respect to the McGreal letter, we also affirm the Appellate Division order, but on a somewhat different analysis.

II.

However difficult the philosophical or practical problem of disentangling assertions of fact from statements that do not imply or assert factual matters ("opinion” in the parlance of defamation law analysis), it is settled that pure opinion— however misguided or vituperative — is entitled to the absolute protection of the State and Federal constitutional free speech guarantees (see, Steinhilber v Alphonse, 68 NY2d, at 289, supra; Ollman v Evans, 750 F2d 970, 974-975, n 6 [DC Cir] [en banc], cert denied 471 US 1127).

This distinction between fact and opinion, which grew out of the common-law doctrine of fair comment, was elevated to constitutional status, in the interpretation of State and Federal courts, by the Supreme Court’s widely cited dictum in Gertz v Robert Welch, Inc. (418 US 323, 339-340), that "[u]nder the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas. Neither the intentional lie nor the careless error materially advances society’s interest in 'uninhibited, robust, and wide-open debate on the public issues.’ ” (Quoting New York Times Co. v Sullivan, 376 US 254, 270.)

It has been suggested that one reason for the distinction between fact and opinion is that statements of fact have greater potential for influence and hence are likelier to damage reputation than mere expressions of opinion, which are more readily discounted by the reader or listener. (Note, Fair Comment, 62 Harv L Rev 1207, 1213 [1949].) The Gertz passage suggests two additional rationales. The first concerns institutional competence: unlike an assertion of fact, which may be proven true or false by objective standards, an idea or opinion is not susceptible to such measurement by courts and juries.

Perhaps closest to the roots of the distinction in the doctrine of fair comment is the second thread of the Gertz dictum— that unlike assertions of fact, ideas or opinions merit protection for their role in a competition or marketplace of ideas, as stimulants of "uninhibited, robust and wide-open debate on the public issues.” The more limited common-law defense of fair comment which, among its other elements, required that the criticism concern a matter of legitimate public interest, was similarly concerned with public debate. It protected the right to comment on public affairs and ensured the public’s access to important information (see, Note, The Fact-Opinion Determination in Defamation, 88 Colum L Rev 809, 811 [1988]; Titus, Statement of Fact Versus Statement of Opinion — A Spurious Dispute in Fair Comment, 15 Vand L Rev 1203 [1962]). This central concern informs not only its foundation but also the law that has grown out of Gertz.

In reviewing the underpinnings for the distinction between fact and opinion, moreover, it is above all important to bear in mind that the exercise is not merely one in semantics. Several courts and commentators have criticized as inadequate any analysis that does not give central significance to the role played by the challenged statements in public debate, or to the "core value” of the free speech guarantee (see, e.g., Ollman v Evans, 750 F2d, at 996 [Bork, J., concurring], supra; Janklow v Newsweek, Inc., 788 F2d 1300, 1302-1303 [8th Cir]; Note, The Fact-Opinion Determination in Defamation, op. cit., at 831-840).

While eschewing adherence to any rigid criteria for resolving the legal question of whether a statement is one of fact or opinion, this court has recognized as helpful the four factors identified by the plurality in Ollman (750 F2d, at 979, supra): "(1) an assessment of whether the specific language in issue has a precise meaning which is readily understood or whether it is indefinite and ambiguous; (2) a determination of whether the statement is capable of being objectively characterized as true or false; (3) an examination of the full context of the communication in which the statement appears; and (4) a consideration of the broader social context or setting surrounding the communication including the existence of any applicable customs or conventions which might 'signal to readers or listeners that what is being read or heard is likely to be opinion, not fact.’ ” (Steinhilber v Alphonse, 68 NY2d, at 292, supra.) Attention to these factors enables a court to perform its essential task in determining whether a given statement expresses opinion, which is to ascertain "what the average person hearing or reading the communication would take it to mean.” (Id,., at 290.)

We next apply these legal principles to the facts at hand.

III.

In performing the essential task of ascertaining what the average person reading McGreal’s letter would take it to mean, we begin our analysis (as did Ollman) with an examination of the context of the challenged remarks. Unlike Steinhilber and its predecessors, what is at issue in this case is a special type of expression — a letter to the editor.

Broadly speaking, there are three major types of journalistic activity (see, Franklin, Libel and Letters to the Editor: Toward an Open Forum, 57 U Colo L Rev 651 [1986]). The first is originating or investigative activity, such as news reporting. Second is commentary or criticism, which generally is protected as opinion. The third function many publications serve is to transmit the views of readers, by providing a public forum known as letters to the editor.

There is a manifest difference between ordinary reporting and letters to the editor. As a rule, such letters are not published on the authority of the newspaper or journal. In this case, for instance, defendant’s prefatory editorial note signaled that the letter was to be given only the weight its readers chose to accord McGreal’s views; such reservations may be generally understood even when letters are not accompanied by any editorial note. Thus, any damage to reputation done by a letter to the editor generally depends on its inherent persuasiveness and the credibility of the writer, not on the belief that it is true because it appears in a particular publication.

Most importantly, for many members of the public, a letter to the editor may be the only available opportunity to air concerns about issues affecting them. "When a citizen is troubled by things going wrong, he should feel free to 'write to the newspaper’: and the newspaper should be free to publish his letter. It is often the only way to get things put right” (Slim v Daily Tel., [1968] 2 QB 157, [1968] 1 All ER 497, 503, quoted in Pollnow v Poughkeepsie Newspapers, 107 AD2d 10, 16 [Titone, J.], affd on other grounds 67 NY2d 778). The availability of such a forum is important not only because it allows persons or groups with views on a subject of public interest to reach and persuade the broader community but also because it allows the readership to learn about grievances, both from the original writers and from those who respond, that perhaps had previously circulated only as rumor; such a forum can advance an issue beyond invective. Finally, at the least, the public may learn something, for better or worse, about the sort of person or group that would write such a letter (see, Franklin, op. cit., at 663-664).

Thus, in determining how the average person would view McGreal’s letter, we take into account that it is a letter to the editor and that "the common expectation of a letter to the editor is not that it will serve as a vehicle for the rigorous and comprehensive presentation of factual matter but as one principally for the expression of individual opinion.” (145 AD2d, at 129.)

Passing from the broader social setting to the immediate context of the letter, we note that the common expectation regarding letters to the editor has particular pertinence here.

As the Appellate Division observed, the Journal of Medical Primatology is directed at a highly specialized group of readers — medical doctors, researchers and the medical and science libraries of academic institutions; the average reader is thus likely not a novice in the field of medical primatology, but brings a "well-developed understanding of the issues facing biomedical researches using primates as research subjects.” (145 AD2d, at 129.) The prefatory note additionally called particular attention to the circumstances surrounding the letter, pointing up that this was Dr. McGreal’s view, and that plaintiff’s attorneys considered her statements to be "wholly inaccurate and reckless” and "not a fair comment” on plaintiff’s proposed project.

The letter itself related to a public controversy regarding use of live animals belonging to endangered species, including chimpanzees, in animal experimentation and research. Mc-Greal (a known animal rights activist) and IPPL (whose very name broadcasts its point of view) were fully identified to readers of the letter. The letter made clear that its purpose was to voice the concerns of this partisan group in order "to draw this situation to the attention of interested parties.”

Thus, like the broader social setting of McGreal’s letter, its immediate context would induce the average reader of this Journal to look upon the communication as an expression of opinion rather than a statement of fact.

Nor can it be said from the specific language, viewed in its totality, that the body of the letter conveyed statements intended to be understood and accepted by the average reader of this publication as gospel. As a practical matter, it is hard to conceive that any published statement could be wholly devoid of factual reference. Like most — if not all — letters to the editor, McGreal’s was provoked by a particular state of affairs, and her letter set out its point of reference. That factual reference point of course must not be false (see, Silsdorf v Levine, 59 NY2d 8), but in the present case the Appellate Division’s extensive analysis amply establishes that plaintiff raised no triable issue of fact as to the falsity of the threshold assertions of McGreal’s letter.

Beyond that threshold reference point, from start to finish the body of the letter communicated the accusations of a group committed to the protection of primates and openly critical of plaintiff’s project. Within that framework, the writer presumed and predicted as to what "appeared to be” or "might well be” or "could well happen” or "should be” the motivations for and future consequences of plaintiff’s proposed chimpanzee research program, plainly relating matters of opinion rather than flat-out, measurable statements of fact. Speculations as to the motivations and potential future consequences of proposed conduct generally are not readily verifiable, and are therefore intrinsically unsuited as a foundation for libel (see, Rinaldi v Holt, Rinehart & Winston, 42 NY2d 369, cert denied 434 US 969).

We reject plaintiff’s invitation to engage any further in what would in essence be "a Talmudic parsing” of the length and breadth of this letter, as if "with a philosophical enterprise or linguistic analysis. Ours is a practical task, with elemental constitutional values of freedom looming large as we go about our work. And in that undertaking, we are reminded by Gertz itself of our duty 'to assure to the freedoms of speech and press that "breathing space” essential to their fruitful exercise.’ ” (Ollman v Evans, 750 F2d 970, 991, supra.)

Finally, while structuring our analysis to fit within the hardened categories of "fact” and "opinion,” we additionally look beyond them to the core values protected by the State and Federal Constitutions. The public forum function of letters to the editor is closely related in spirit to the "marketplace of ideas” and oversight and informational values that compelled recognition of the privileges of fair comment, fair report and the immunity accorded expression of opinion. These values are best effectuated by according defendant latitude to publish a letter to the editor on a matter of legitimate public concern — the letter’s author, affiliation, bias and premises fully disclosed, rebuttal openly invited — free of defamation litigation. A publication that provides a forum for such statements on controversial matters is not acting in a fashion "at odds with the premises of democratic government and with the orderly manner in which economic, social, or political change is to be effected” (Garrison v Louisiana, 379 US 64, 75), but to the contrary is fostering those very values.

While concluding that the McGreal letter is within the protection of the constitutional free speech guarantee, two additional matters bear mention.

First, we agree with plaintiff that had defendant deliberately incited McGreal to have a defamatory letter to the editor published, no privilege would shield him from liability. Although defendant discussed the contents of McGreal’s letter with her and made suggestions about its contents, plaintiff’s allegations of a deliberate effort, or conspiracy, to smear its reputation are entirely conclusory, and therefore do not preclude summary judgment in defendant’s favor.

Second, this case — having already engendered thousands of pages of a litigation record and "substantial” settlements from all other defendants — exemplifies that the " 'threat of being put to the defense of a lawsuit * * * may be as chilling to the exercise of First Amendment freedoms as fear of the outcome of the lawsuit itself ”. (Karaduman v Newsday, Inc., 51 NY2d 531, 545.) We have therefore stressed the particular role and importance of summary judgment, where appropriate, in libel cases (see also, 145 AD2d, at 127-128). That chilling effect can be especially severe for scholarly journals, such as defendant’s, whose editors will likely have more than a passing familiarity with the subject matter of the specialized materials they publish; if required as to every line of a reader’s expressed viewpoint to meet the standard of Chapadeau v Utica-Observer Dispatch (38 NY2d 196), they may as a practical matter have little alternative to lengthy litigation or substantial settlement. In such instances, hypertechnical parsing of a possible "fact” from its plain context of "opinion” loses sight of the objective of the entire exercise, which is to assure that — with due regard for the protection of individual reputation — the cherished constitutional guarantee of free speech is preserved.

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

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

Order affirmed, with costs.