author: Jones, J. Gabrielli, J.

text:
    Frederick A. O’Hara, on Behalf of Himself and All Others Similarly Situated, Respondent, v Alfred B. Del Bello, as County Executive of the County of Westchester, et al., Appellants.
    Argued March 28, 1979;
    decided June 12, 1979

      POINTS OF COUNSEL

      Samuel S. Yasgur, County Attorney (Kenneth E. Powell, Jonathan Lovett and Peter J. Holmes of counsel), for appellants.
    I. The courts below committed reversible error in disregarding the mandatory procedures of CPLR article 9. (Peterson v Berger, 84 Misc 2d 517; Matter of Rockwell v Morris, 12 AD2d 272, 9 NY2d 791, 10 NY2d 721, 368 US 913; Hansberry v Lee, 311 US 32; Eisen v Carlisle & Jaquelin, 417 US 156; People ex rel. Cardona v Singerman, 63 Misc 2d 509; People ex rel. Cox v Appelton, 62 Misc 2d 403; Matter of Knapp v Michaux, 55 AD2d 1025; Matter of Rubin v Levine, 41 NY2d 1024; Matter of Martin v Lavine, 39 NY2d 72; Matter of Rivera v Trimarco, 36 NY2d 747.) II. The courts below committed reversible error by denying appellants’ statutory right to interpose an answer and by granting summary judgment without advance notice. (Guggenheimer v Ginzburg, 43 NY2d 268; Rovello v Orofino Realty Co., 40 NY2d 633; Kingsbay Housing Co. Section I v Hoffman, 61 AD2d 822; Fletcher v Fletcher, 56 AD2d 589; Town of Huntington v Town of Oyster Bay, 55 AD2d 641, Black v Long Is. R. R. Co., 54 AD2d 570; Matter of Board of Educ. v Nyquist, 37 AD2d 642, 31 NY2d 468; Matter of Posner v Rockefeller, 33 AD2d 683, 25 NY2d 720; Orshan v Anker, 59 AD2d 937; Matter of La Rocque v Farnan, 51 AD2d 1057.)

      Marjorie E. Karowe for respondent.
    I. The court below did not err in holding that the instant petition constituted a proper class action. (Matter of Rubin v Levine, 41 NY2d 1024; Matter of Martin v Lavine, 39 NY2d 72; Matter of Jones v Berman, 37 NY2d 42; Matter of Rivera v Trimarco, 36 NY2d 747; Matter of Knapp v Michaux, 55 AD2d 1025; Ammon v Suffolk County, 90 Misc 2d 871; Guadagno v Diamond Tours & Travel, 89 Misc 2d 697; Strauss v Long Is. Sports, 89 Misc 2d 827, 60 AD2d 501; Swanson v American Consumer Inds., 415 F2d 1326.) II. The court’s initial error of treating respondent’s motion under CPLR 3211 as a motion for summary judgment without first giving notice to the parties was subsequently cured by affording respondents a full and fair opportunity to present the merits of the proceeding to the court. III. Respondents chose to proceed by way of a motion to dismiss pursuant to CPLR 3211; having lost on the merits, they may not now claim the benefit of CPLR 7804 (subd [f]) in an effort to avoid the consequences. (Cullen v Naples, 31 NY2d 818; Rogers v Niforatos, 57 AD2d 984; Maybrown v Malverne Distrs., 57 AD2d 548; Matter of McGirr v Division of Veterans’ Affairs, Executive Dept., State of N. Y., 56 AD2d 653; Guibor v Manhattan Eye, Ear & Throat Hosp., 56 AD2d 359; Kremens v Minc, 55 AD2d 928; Berman v Shatnes Lab., 43 AD2d 736; Sargent v Halsey, 42 AD2d 375.)
   OPINION OF THE COURT

Jones, J.

An affirmance of an award of summary judgment to petitioner, granted on respondents’ motion to dismiss the petition under CPLR 3211 (subd [a], pars 2, 7) prior to service of an answer, presents no reversible error of law in this court when it appears that the determination on the merits involved only a question of law which was argued by the parties on the motion and respondents have at no time identified or demonstrated the existence of any material factual issues. When there has been a failure to comply with the procedures and requirements of CPLR article 9 for determination of class action status for the litigation, however, class action relief is not available.

In this proceeding, in which officials of Westchester County have been directed by the courts below to honor and pay travel vouchers properly certified and presented to the county for payment for the period November, 1975 to April 1, 1977, the order of the Appellate Division must be modified to limit to the named petitioner, a court stenographer of the Supreme Court for the Ninth Judicial District, the relief that has been granted.

The proceeding was commenced on or about February 18, 1977 by the individual petitioner "on behalf of himself and all others similarly situated” — the others described as Supreme Court reporters in Westchester County who had been denied payment of their authorized and approved travel vouchers by the county — pursuant to CPLR article 78 for a judgment directing payment of properly certified travel vouchers, past and future. On the return day of the petition, March 24, 1977, respondents, county officials, without having served an answer, moved to dismiss the petition on the ground that petitioner had failed to exhaust administrative remedies available to him and that "No cause of action has been established” against respondents. Following oral argument and submission of supporting and opposing affidavits, on May 18, 1977 the Justice at Special Term granted judgment denying the motion to dismiss and directing payment by them of all properly certified travel vouchers presented for the period from November, 1975 to April 1, 1977. No determination was included in the judgment whether the proceeding could be maintained as a class action and no order so determining was otherwise issued.

On July 21, 1977 the county officials moved for reargument of the judgment on the grounds that they had not been given notice that the court might treat the motion to dismiss as one for summary judgment and had not been aiforded an opportunity to serve an answer and that no determination had ever been made regarding the propriety of maintaining a class action. Petitioner did not oppose the making of the motion for reargument but by responsive affidavit sought to justify and uphold Special Term’s award of affirmative relief in his favor prior to service of an answer on the ground that only an issue of law on undisputed facts was presented, and to sustain the treatment of the proceeding as a class action as a discretionary, sua sponte determination by the court. The reply affidavit submitted on behalf of the county officials, although stating that there were issues of fact not yet before the court, failed to identify any such issue. The affidavit originally served with the notice of motion for reargument had been devoid even of an allegation of the existence of factual issues. It had however specified respects in which there had been failure of compliance with CPLR article 9 (the class action article) — namely, that no hearing had been held to determine the applicability of class relief, no order had ever been issued permitting the class action and no definitive description of the class had ever been made, either during the pendency of the proceeding or in the judgment, all as required by CPLR 901, 902, 903 and 905.

The motion for reargument was granted, but the court adhered to its previous decision, stating that only a question of law had been posed by the litigation and that the matter had been so argued by the county officials themselves. It added the observation that the class to which the ruling applied is small and their identities a matter of record— namely, the official court reporters of the Ninth Judicial District. The Appellate Division affirmed Special Term’s order on the motion for reargument.

With respect to respondents’ claim that, absent notice as prescribed by CPLR 3211 (subd [c]), summary judgment should not have been granted to petitioner on their motion to dismiss the petition under paragraphs 2 and 7 of subdivision (a) of that section, we note that there were no disputed questions of fact, that none were identified when their motion for reargument was entertained, and that the sole issue was one of statutory construction on which rested the right to reimbursement from the county of travel expenses incurred by a court stenographer, the precise question fully addressed by the parties on the motion to dismiss. Additionally, the county officials have failed to show how they have been prejudiced by their failure to receive notice under subdivision (c). In these circumstances we cannot say that it was error as a matter of law for the Appellate Division to have affirmed the summary judgment granted below.

Inasmuch as there was a failure to comply with the procedural and substantive provisions of CPLR article 9 with respect to class action, however, there is no basis for granting relief other than to the individual party who brought the proceeding. Accordingly, the order of the Appellate Division should be modified to limit the relief to the named petitioner.

We cannot accept the proposal advanced by the dissenter that the case should now be remitted to Special Term for a determination under CPLR article 9 whether a class action may be maintained — a procedure which is not suggested by petitioner himself. The explicit design of article 9, as of rule 23 of the Federal Rules of Civil Procedure, the general scheme of which it incorporates, is that a determination as to the appropriateness of class action relief shall be promptly made at the outset of the litigation. The commentary accompanying the class action legislation sponsored by the Judicial Conference which was substantially enacted as article 9 by chapter 207 of the Laws of 1975 included the statement: "Proposed section 902 would adopt the federal policy of determining, at least tentatively, the propriety of maintaining a class action in the initial stages of the proceedings” (Twenty-first Ann Report of NY Judicial Conference, 1976, p 252). Of particular significance, too, is the sentence in the Judicial Conference Report which follows that just quoted: "A wide range of discretion would enable the court to vary the order at any time before reaching a decision on the merits. ” (Id.; emphasis added.) Also notable is the fact that, when section 902 was enacted by the Legislature it specified in even more explicit language than did its Federal counterpart (Fed Rules Civ Prac, rule 23, subd [c], par [1]) — the latter being the form proposed by the Judicial Conference — the time for class action status determination. Whereas the Federal rule and the Judicial Conference proposal provided that the determination shall be made "As soon as practicable after the commencement of the action”, section 902 as enacted requires that the plaintiff shall move for an order to determine class action status within 60 days after time for service of defendant’s responsive pleading has expired — clearly a time early in the litigation and one contemplating address to the issue whether the litigation shall proceed as a class action well before any determination on the merits of the action.

To countenance making the determination as to the identity of the beneficiaries on whose behalf the litigation had been prosecuted or defended after its outcome is known would be to open the possibility both of conferring a gratuitious benefit on persons who have not been parties and were not at any time exposed to the risk of an adverse adjudication and further of substantially enlarging the liabiility of the loser beyond anything contemplated during the contest and resolution of the issues on their merits. Additionally, that the resolution on the merits would be known might operate inescapably and understandably to affect the determination as to class action status.

Petitioner’s remedy in this instance would have been for him, on learning of the disposition at nisi prius to grant class action relief but without conformity with the requirements of article 9, then promptly to have sought — or to have joined with respondents in seeking — reargument and reconsideration at Special Term to assure compliance with the procedures mandated by the statute, rather than urging the propriety of the court’s handling of the matter. Having chosen to accept the premature granting of class action relief and to rely on arguments that the court’s disposition was authorized and proper, he cannot now be permitted to return for a second opportunity to establish entitlement to class action status.

In modifying the order of the Appellate Division such that the named petitioner retains the judgment favorable to him, we record that in our court the parties did not address the merits of the claim for reimbursement by the county in brief or on oral argument.

The order of the Appellate Division should be modified, without costs, to limit to the named petitioner the relief granted by Supreme Court, and, as so modified, affirmed.

Gabrielli, J.

(dissenting in part). I respectfully dissent in part. While I agree with the majority’s decision to sustain the Appellate Division affirmance of the award of summary judgment to the named petitioner, I cannot concur in this court’s action in limiting all relief to the named petitioner only, solely because of Special Term’s failure to follow proper procedures for certification of a class action. Rather, I would remit the matter to Special Term for a determination, as mandated by CPLR article 9, whether class action status is appropriate in this instance and, if so, for certification of the proper class.

This article 78 proceeding was commenced by petitioner O’Hara as a class action brought on behalf of himself and all "those persons employed as Supreme Court Reporters in the County of Westchester, New York who have been denied payment of their authorized and approved travel vouchers by the County of Westchester”. The petition alleged that since November, 1975 Westchester County had refused to reimburse court reporters for travel expenses incurred while assigned to Supreme Court, Westchester County. The relief requested was twofold: payment of all vouchers already submitted, and an order instructing the county to continue to honor such vouchers in the future.

Some 26 days after the proceeding was commenced, and without filing an answer, respondents moved to dismiss the petition on the ground that it failed to state any cause of action since the State, and not Westchester County, was liable for the court reporters’ travel expenses, and, further, that the petitioner had failed to seek reimbursement from the State. Petitioner O’Hara opposed the motion to dismiss, contending that pursuant to section 313 of the Judiciary Law the county was responsible for these expenses. Additionally, O’Hara requested the court to direct respondents to file and serve an answer. Instead, some 16 days after the motion to dismiss was made, Special Term sua sponte and without notice to the parties converted the motion to dismiss into a motion for summary judgment, and granted summary judgment ordering respondents to "pay all submitted travel vouchers which have been properly certified” as well as those to be submitted in the future.

Respondents moved to reargue, contending that it was error to award summary judgment without notice and without affording respondents an opportunity to answer, and that the court had also erred in granting relief to the class without following the procedures provided by CPLR article 9. Special Term granted the motion to reargue, but then adhered to its original decision, concluding that summary judgment was proper because the only issue presented in the proceeding was the question of law raised on the motion to dismiss, and that there was no need for a class certification procedure since "the class to which the ruling applies is small and their identities are a matter of record”. Respondents appealed to the Appellate Division, which affirmed, and we then granted respondents leave to appeal to this court.

I am in full agreement with the conclusion reached by the majority of this court that we should not set aside the grant of summary judgment to O’Hara, the named petitioner. I cannot concur, however, in the majority’s arbitrary dismissal of the claims of the other members of the class at this late date simply because Special Term acted hastily in granting relief to the class. I know of no rule of law or equity which supports this result, and I find it to be both unjust and repugnant. Where the court of first instance prematurely grants relief to a litigant, the proper corrective action is remittal for continuation of the proceeding, not dismissal of the claim. The rule followed by the majority would, in effect, seem to mandate that in any case in which we decided that the courts below erred by granting summary judgment to a plaintiff despite the existence of a question of fact, we should then dismiss the complaint rather than remitting for further proceedings. So stated, the oddity of this proposition is manifest, and yet that is, in effect, what the majority of this court has determined to do in this instance.

This result is especially abhorrent because the flaw in the certification of the class is not due to any action or inaction upon the part of the petitioner, but rather is solely the result of Special Terms’ precipitous decision. To penalize the as yet unknown members of the class and to deprive them of the right to recover which would otherwise result from the grant of summary judgment to the named petitioner, solely because of judicial error, is both unjust and unreasonable. CPLR 902 requires the person who commences a class action to move for permission to maintain the action as a class action within 60 days after the time for service of a responsive pleading has expired. In this instance, the time for service of an answer never expired because summary judgment was granted sua sponte first, and hence the time within which petitioner was required to move for class certification never began to run. In short, petitioner had no opportunity to correct what this court now deems to be not merely error, but fatal error.

I note that it is quite possible that class certification would not be proper in this instance. For one thing, the class does indeed appear to be quite small, and class certification is available only if "the class is so numerous that joinder of all members, whether otherwise required or permitted, is impracticable” (CPLR 901, subd a, par 1). Moreover, class certification might be improper insofar as this proceeding is aimed at the correction of errors in governmental operations, since "on the granting of any relief to the [named petitioner] comparable relief would adequately flow to others similarly situated under principles of stare decisis” (Matter of Bey v Hentel, 36 NY2d 747, 749; accord Matter of Martin v Lavine, 39 NY2d 72, 75; Matter of Jones v Berman, 37 NY2d 42, 57). That rationale, however, would appear inapplicable where an accrued claim for damages or monetary relief is involved, for relief to subsequent petitioners would in no way aid those other members of the class whose valid claims might otherwise become time-barred in the interim. Moreover, our concern for the possible impaired efficiency of governmental operations is less justifiable where the claims are not likely to repeatedly arise and the class of claimants may be readily defined (see Beekman v City of New York, 65 AD2d 317, 318-319). At any rate, these determinations must be made in the first instance by the court of original jurisdiction, not by this court.

Accordingly, I vote to modify the order appealed from by remitting the matter to Supreme Court, Westchester County, for further proceedings on the issue of class certification, and would otherwise affirm.

Judges Jasen, Wachtler and Fuchsberg concur with Judge Jones; Judge Gabrielli dissents in part and votes to modify in a separate opinion; Chief Judge Cooke taking no part.

Order modified, without costs, in accordance with the opinion herein and, as so modified, affirmed.

       Although there are instances of cases under the Federal rule in which the certification as a class action has been withheld until after the merits had been determined, those cases have had unique characteristics and provide no precedent for a similar result in this case (e.g., Jimenez v Weinberger, 523 F2d 689, cert den sub nom. Mathews v Jimenez, 427 US 912 [holding limited to suits under rule 23, subd (b), par (2)]; Alexander v Aero Lodge No. 735, 565 F2d 1364 [action proceeded to trial as class action]). Certification as a class action after determination of the merits was held improper in Peritz v Liberty Loan Corp. (523 F2d 349).


source: Caselaw Access Project

author:
Wachtler, J.
      Fuchsberg, J.

license: Public Domain

text:
    In the Matter of Sanjivini K. (Anonymous), a Child Alleged to be Neglected. Rockland County Department of Social Services, Respondent; Usha K. (Anonymous), Appellant.
    Argued May 3, 1979;
    decided June 12, 1979

      POINTS OF COUNSEL

      Frank L. Amoroso for appellant.
    I. In face of record devoid of proof required by Family Court Act, the court below erroneously fabricated a standard of de facto neglect: (a) as a matter of law, there has been no showing that the agency has made diligent efforts to strengthen the parent-child relationship, or that such efforts would be excused as detrimental to the child; (b) as a matter of law, there has been no showing that the natural mother has failed to maintain contact or to plan for the child. (Matter of Maxwell, 4 NY2d 429; Matter of Bistany, 239 NY 19; Matter of Santosky, 89 Misc 2d 730; Matter of Sydney, 84 Misc 2d 932; Matter of Joyce Ann R, 82 Misc 2d 730; Matter of Orlando F., 40 NY2d 103; Matter of Clear, 58 Misc 2d 699, revd sub nom. Matter of Klug, 32 AD2d 915, on remand Matter of Clear, 65 Misc 2d 323; Matter of Corey L v Martin L, 45 NY2d 383; Matter of Ray A. M., 37 NY2d 619.) II. The instant termination of parental rights was unconstitutional, in that the State has failed to present grave reasons warranting such drastic action. (Meyer v Nebraska, 262 US 390; Pierce v Society of Sisters, 268 US 510; Stanley v Illinois, 405 US 645; Wisconsin v Yoder, 406 US 205; Moore v East Cleveland, 431 US 494; Matter of Gault, 387 US 1; Dunn v Blumstein, 405 US 330; Shapiro v Thompson, 394 US 618; Shelton v Tucker, 364 US 479; Cleveland Bd. of Educ. v La Fleur, 414 US 632.)

      Marc L. Parris, County Attorney (John B. Franklin of counsel), for respondent.
    I. Petitioner-respondent Rockland County Department of Social Services has sustained its burden of proof as required in accordance with section 614 of the Family Court Act. II. The Trial Judge properly terminated the custody of appellant Usha K. III. Notwithstanding the fact that this is a permanent neglect proceeding in accordance with section 614 of the Family Court Act, the extraordinary circumstances which exist require that the best interests of the infant be considered immediately. (Matter of Bennett v Jeffreys, 40 NY2d 543; People ex rel. Gallinger v Gallinger, 55 AD2d 1036; Matter of Kim Marie J., 59 AD2d 716.) IV. The case at bar should not be remanded to the court of original jurisdiction for a rehearing to determine whether extraordinary circumstances exist to warrant a determination of best interests of the infant.

      Louis J. Artale, Law Guardian for infant.
    I. The extraordinary circumstance of the prolonged separation between the natural parent and the child, the creation of a strong psychological parent-child relationship with the foster parents, and the concomitant factors involved require the permanent termination of the natural parent’s custody and the placing of the child for adoption. (Matter of Bennett v Jeffreys, 40 NY2d 543; People ex rel. Anonymous v Anonymous, 10 NY2d 332; Doe v Doe, 92 Misc 2d 184; Matter of Kim Marie J., 59 AD2d 716; Matter of Sanjivini K., 63 AD2d 1021; People ex rel. Gallinger v Gallinger, 55 AD2d 1036; Matter of Orzo, 84 Misc 2d 482; Matter of Sanjivini K., 53 AD2d 863.) II. The Department of Social Services has made diligent efforts to encourage and strengthen the parental relationship consistent with the moral and temporal welfare of Sanjivini K. (Matter of Clear, 65 Misc 2d 323; Matter of Jones, 59 Misc 2d 69.) III. Appellant herein has failed for a period of more than one year to, following the placement of the child herein, substantially and continuously maintain contact with and plan for the future of the child, although physically and financially able to do so. (Matter of Stephen B., 60 Misc 2d 662.)

      Charles Schinitsky, Morris Kaplan, Kalman Finkel, John E. Kirklin and Carol Kellermann for The Legal Aid Society of New York City, amicus ciriae.

    I. The doctrine of ”de facto” permanent neglect abrogates the statutory scheme for termination of parental rights is contrary to judicial precedent and violates the constitutional rights of parents and children. (Matter of Anonymous [St. Christopher’s Home], 40 NY2d 96; Matter of Malpica-Orsini, 36 NY2d 568; Betz v Horr, 276 NY 83; Matter of Thorne, 155 NY 140; Matter of Bennett v Jeffreys, 40 NY2d 543; Matter of Kim Marie J., 59 AD2d 716; Matter of Corey L v Martin L, 45 NY2d 383; Matter of Suzanne Y., 92 Misc 2d 652; Matter of Sanjivini K., 40 NY2d 1025.) II. Termination of parental rights based on the "extraordinary circumstance” of disrupted custody subverts the essential purposes of foster care. (Smith v Organization of Foster Families, 431 US 816; Matter of Nehra v Uhlar, 43 NY2d 242.)
   OPINION OF THE COURT

Wachtler, J.

In this case a mother who temporarily placed her infant daughter with the Rockland County Department of Social Services for foster care seeks to regain custody of the child. The department has repeatedly denied her requests and for several years has sought to offer the child for adoption by attempting to prove, in successive proceedings and on a variety of grounds, that the mother is unfit. Despite financial and legal obstacles the mother has maintained ties with her daughter and in the various proceedings it has been held, by the Family Court or on appeal, that she has not abandoned or neglected the child and is not otherwise unfit. Now the department claims, and the Appellate Division has held, that it would be in the child’s "best interests” that she be freed for adoption by the foster parents with whom she has resided throughout the prolonged litigation.

On this appeal the mother argues that statutory and constitutional limitations prohibit the State from purporting to act in the child’s "best interests” by offering her for adoption by foster parents when the child has not been permanently surrendered, abandoned or neglected by her mother who has sought, for many years, to resume custody and support.

The appellant, Usha K, was born in India. She is an only child whose father died when she was 12. She and her mother then moved to Bombay. When she was 14 years old she began working full time and attended secretarial school at night so that she might eventually earn enough money to come to this country for a college education. She arrived in the United States in 1962 and began to study agriculture and nutrition. Two years later she obtained an associate degree from the State University system. That same year her mother died in India.

While in New York the appellant met an Indian student who apparently agreed to marry her; but when she later became pregnant, in 1965, he deserted her. She dropped out of school and in May of 1966 her daughter, Sanjivini, was born in Rockland County. Unwed and temporarily unable to support the child she agreed to place her in the custody of the Department of Social Services. She refused, however, to surrender the child for adoption and would only consent to temporary foster care.

After the birth of the child the appellant did not return to school. Instead she obtained a job in order to reimburse the department for medical expenses and also to contribute to the support of her daughter. In May of 1967 the immigration authorities commenced deportation proceedings claiming that her student visa had expired. These proceedings were suspended when the Department of Social Services, concerned that the child might be removed to India, filed a neglect petition in the Family Court and obtained a temporary order of placement. Later, after a hearing, the Family Court issued a dispositional order which, although continuing the placement for 12 months, expressly states that "the Court has no finding concerning any acts of the mother that might have constituted a neglect.”

In the latter part of 1967 the appellant returned to school after reimbursing the department $800 for her medical expenses. With the aid of a scholarship and part-time employment she attended a university in Maryland and then in North Carolina, which apparently were the only schools within her means which offered the necessary courses. She still continued to visit her child when able, generally once every two or three months. When her education was completed she returned to New York. In the interim her daughter had resided in two foster homes. In 1968 she had been transferred to the foster parents with whom she still resides.

In November, 1970 the appellant asked the Department of Social Services to return the child and also requested that they assist her in obtaining employment in Rockland County. At that time the child was four years old and had resided with the foster parents for only two years. But the agency refused to return her and did little or nothing to help the mother make possible the child’s return. Apparently the agency worker assigned to the case merely furnished appellant with the names and addresses of two potential employers, selected from the telephone book, and did nothing more even though the appellant informed her that she had already been denied employment at those locations.

Thereafter the appellant was unable to find a job in Rock-land County largely, the Appellate Division has noted, because of her immigrant status (53 AD2d 863). Finally she obtained clerical employment in New York City. She contributes monthly to the child’s support and once every other week she travels from New York City to Rockland County to visit the girl. Over the years the department has repeatedly refused to return the child and instead has sought in various proceedings to free the child for adoption by the foster parents by attempting to show that the mother is unfit.

In 1973 the department filed a permanent neglect petition. But, after a hearing, the Family Court concluded in 1974, that the mother had not neglected the child. The mother then filed a petition to terminate custody. While that application was pending she asked the department to permit her to take her daughter to her apartment in New York City, during visitations, in order to ease the transition from foster care. The department however, repeatedly refused to allow visitation on these terms and the mother’s visits lapsed. However she resumed visitation in Rockland County when the Family Court denied her application to terminate custody.

The department then claimed, during a proceeding to periodically review the foster care placement (Social Services Law, § 392), that the mother had abandoned the child in 1974 by refusing to visit her on the terms fixed by the department. At the conclusion of that hearing the Family Court found that it was in the best interests of the child that her permanent status be ascertained as soon as possible. The court directed the department or the foster parents to file a petition to free the child for adoption and further ordered that if such a proceeding is not commenced within 30 days foster care would terminate and the child would be returned to her mother.

The Appellate Division reversed and directed that the child be immediately returned to her mother’s custody. The court noted that the mother is employed and financially able to support the child, that the department had found her apartment "nicely furnished with moderate accommodations but adequate” and that she had made arrangements for schooling and after-school day care for the child. The court also noted that the record indicates that there is a significant possibility that her immigration status "will ultimately be stabilized and validated”. With respect to the charge of abandonment the Appellate Division stated "In our opinion the evidence clearly establishes that the six-month gap in visitation in 1974 was caused by misunderstandings generated by Usha’s strong desire to re-establish a full and normal relationship with the child. The record certainly does not establish that Usha abandoned her child or is an unfit mother” (53 AD2d 863).

On appeal to our court it was noted that the department had already filed the petition directed by the Family Court and in that related proceeding the court had held that the child had been permanently neglected. Noting also that that determination was then on appeal to the Appellate Division we concluded (40 NY2d 1025, 1026) that the record then before us was incomplete and that "the present foster care review proceeding is not the appropriate judicial vehicle in which to determine the permanent status of the child”. Accordingly we reversed, and without expressing any view as to "whether the child should remain with her foster parents or be returned to her mother”, reinstated the Family Court order which directed the filing of the petition.

Now we have the record of that related proceeding before us. It shows that the Family Court conducted a hearing on the department’s petition and found that the mother had "permanently neglected” the child by failing to plan for her future although financially able to do so and despite diligent efforts by the department to encourage her relationship with the child (see Family Ct Act, § 614; Social Services Law, § 384-b, subd 7). The court conceded that the appellant’s educational plan had been successfully completed but found that this plan had been for the mother’s benefit and not for the benefit of the child. In support of this conclusion the court found that while the mother was completing her education "visitations * * * were most infrequent” and thus the child, instead of benefiting from the mother’s plan, was actually a "victim of the mother’s own ambitions, however laudable.” The court failed to note, however, that in the permanent neglect proceeding concluded in 1974 it was found that the mother had not neglected the child during this period. After a further dispositional hearing the court ordered that the child be freed for adoption by the foster parents.

The Appellate Division affirmed on a different ground. It rejected, implicitly, the Family Court’s factual finding that the mother had failed to plan for the child’s future and the holding that she was guilty of permanent neglect as statutorily defined. Instead, relying on Matter of Bennett v Jeffreys (40 NY2d 543), the court held that there were " 'extraordinary circumstances’ requiring affirmance”. Noting the appellant’s inability to obtain employment in Rockland County, her unsettled immigration status and the extended foster care, the court concluded that it would be in the child’s "best interest” that she be offered for adoption by the foster parents. "Viewed from the standpoint of the impact on the child”, the court said, "a de facto permanent neglect must be deemed to have been established.”

On this record there is no legal basis for offering the child for adoption against her mother’s wishes. The prolonged separation of mother and daughter is, of course, regrettable. But that was due to litigation initiated or necessitated by the department’s actions and was not the result of any parental neglect. Indeed despite the financial and subsequent legal inability of the mother to provide full custody and care, she has, through uncommon effort, preserved parental ties throughout the child’s life. Thus in this and the earlier proceedings the department has repeatedly failed, either in the Family Court or on appeal, to prove the mother guilty of statutory abandonment or permanent neglect or to show that she is unfit. Absent such a finding the courts may not permanently sever all parental ties (Social Services Law, § 384-b, subd 4).

If we were only concerned with deciding custody the prolonged separation might be entitled to greater weight. In Matter of Bennett v Jeffreys (supra) we held that a mother who permitted her child to remain with a family friend for an extended period might be denied the right to regain custody, without regard to fault, if disruption of the existing custody would not be in the child’s best interest. That case involved an informal arrangement and, we noted (at p 545) "as an unsupervised private placement, no statute is directly applicable, and the analysis must proceed from common-law principles”. But even if that rule were applicable to an agency placement governed by statute, it is doubtful whether it could be found to be in the child’s best interests to deny her mother’s persistent demands for custody simply because it took so long for her to obtain it legally. In any event a court may not terminate all parental rights by offering a child for adoption when there has been no parental consent, abandonment, neglect or proven unfitness, even though some might find adoption to be in the child’s best interests (Matter of Corey L v Martin L, 45 NY2d 383).

These are not merely technical rules involving statutory authority, nor are they based on the assumption that a parent’s rights and interests are superior to the child’s. A child, of course, is not a parent’s property, but neither is the child the property of the State (Pierce v Society of Sisters, 268 US 510, 535; Stanley v Illinois, 405 US 645). In many cases the State may, and under some legal systems undoubtedly does, find "better” parents for a child even though the natural parents may be willing and able to provide proper care. But it is fundamental to our legal and social system, that it is in the best interest of a child to be raised by his parents, unless the parents are unfit (see, e.g., Matter of Spence-Chapin Adoption Serv. v Polk, 29 NY2d 196, 204; Matter of Corey L v Martin L, supra; Stanley v Illinois, supra).

Finally, we note again that it has already been determined on the last appeal that it is in the child’s best interests that her permanent status be resolved, by either permitting her mother to regain custody, or permitting the foster parents to adopt. Thus, in view of our conclusion that the petition to free the child for adoption should be dismissed, the child should be returned to her mother’s custody.

Accordingly, the order of the Appellate Division should be reversed and the petition dismissed, with costs.

Fuchsberg, J.

(concurring). I agree that permanent neglect by the mother has not been established and that the proceeding to free the child for adoption therefore must be dismissed.

But on the matter of custody, as distinguished from parenthood, I concur in result only. On the particular circumstances in this case, I agree that, the permanent neglect proceeding having been dismissed, the child should be returned to the custody of the biological mother.

These circumstances include the fact that the mother and Sanjivini have for some years been visiting regularly so that the existence of a dual relationship — of parent and child and foster parents and child — is not strange to her life. Above all, it preserved the parental ties. Furthermore, now over 13, past puberty and into adolescence and early adulthood, the child is likely to be able to handle the transition in stride. Also I am impressed by the fact that the custody in the foster parents was known to all — mother, child, foster parents — to have been intended to be only temporary; the mother’s ties with her daughter, both by support and personal contact, despite the immense obstacles placed in her path by the social and legal vicissitudes the majority has detailed, have left no possibility of any misunderstanding on that score. In addition, the unfortunate prolongation of the litigation, for which there is no indication that the mother is blameworthy, has made for periodic examination and re-examination of the developing relationships involved. Add to this the favorable report on the mother’s living and schooling accommodations. On balance, then, as indicated, I agree that in this case, despite the long separation, custody of the child should be returned to the mother.

So voting, however, I wish to make it clear that, in my view, absent these circumstances, where there has been an unusually long separation and fostering of new ties, I do not believe, simply because the placement was statutory and the permanent neglect proceeding was decided in favor of the mother, that custody would have to be returned to the mother. Once the foster relationship has, willy-nilly, shifted from a "temporary” to a "permanent” one, best interest factors in another case could contraindicate disruption of that relationship and instead dictate an opposite result (see Matter of Benitez v Llano, 39 NY2d 758, 759; Matter of Gomez v Lozado, 40 NY2d 839; Matter of Goldman, 41 NY2d 894; Matter of Bennett v Jeffreys, 40 NY2d 543, 549). (See, generally, Goldstein, Freud and Solnit, Beyond the Best Interests of the Child [1973]; Erikson, Growth and Crisis of the "Healthy Personality” in Personality, in Nature, Society and Culture [1955], 185-225; Bowley, Child Care and Growth of Love [1953]; Freud, Some Remarks on Infant Observation, 8 Psychoanalytic Study of the Child; Foster, Adoption and Child Custody: Best Interests of the Child? 22 Buffalo L Rev 1, 12-13.)

Chief Judge Cooke and Judges Jasen, Gabrielli and Jones concur with Judge Wachtler; Judge Fuchsberg concurs in result in a separate opinion.

Order reversed, etc.

       The mother’s appeal from this order was dismissed by the Appellate Division when the attorneys assigned to represent her failed to perfect the appeal (53 AD2d 863).


author: Gabrielli, J. Jasen, J.

text:
    Attilio Ricca, Appellant, v Board of Education of the City School District of the City of New York et al., Respondents.
    Argued April 30, 1979;
    decided June 12, 1979

      POINTS OF COUNSEL

      Milton Horowitz for appellant.
    I. Special Term was correct in ruling that the termination of probation action was a nullity since Ricca had become tenured by that time. (Matter of Board of Educ. v Nyquist, 37 AD2d 642, 31 NY2d 468; Matter of Elisofon v Board of Educ., 51 AD2d 724; McCarthy v Board of Educ., 73 Misc 2d 225, 43 AD2d 815; Board of Regents v Roth, 408 US 564.) II. Independently of any question as to whether Ricca did or did not have tenure as of the time of purported termination, the two branches of bad faith at the root of the board action, viz., Brucato’s abuse of board processes for executing private vengeance, and the harassment at Grady High School creating an atmosphere which destroyed the possibility of a fair test, invalidate the board’s termination action. (Matter of Board of Educ. v Nyquist, 37 AD2d 642, 31 NY2d 468; Matter of Bergstein v Board of Educ., 34 NY2d 318; Matter of Anonymous v Codd, 49 AD2d 826, 40 NY2d 860; Haberman v Codd, 48 AD2d 505; Edwards v Codd, 59 AD2d 148.) III. The board must be made aware that plain language mandates of statutes and by-laws are to be followed. It cannot be allowed, on a plea of its administrative exigencies, to establish and maintain practices counter to the law.

      Allen G. Schwartz, Corporation Counsel (Maureen F. Brennan and Ronald E. Sternberg of counsel), for respondents.
    I. The court below correctly determined that petitioner had not achieved tenure prior to the discontinuance of his services as a probationer. (Bacon v Board of Educ., 205 Misc 73, 285 App Div 1046, 309 NY 1030; Matter of Board of Educ. v Nyquist, 31 NY2d 468; Matter of Orange v Community School Bd. No. 3, 57 AD2d 774; McCarthy v Board of Educ., 73 Misc 2d 225, 43 AD2d 815; Matter of Mugavin v Nyquist, 48 AD2d 727, 39 NY2d 1003.) II. The court below correctly concluded that the discontinuance of petitioner’s probationary teaching service was a proper exercise of respondents’ discretion and authority. The court was also correct in determining petitioner’s remedy, for respondents’ failure to fully comply with the 60-day notice provision in section 2573 (subd 1, par [a]) of the Education Law, was limited to five days’ pay. (Matter of Brown v Board of Educ., 42 AD2d 702, 34 NY2d 519; Pavilion Cent. School Dist. v Pavilion Faculty Assn., 51 AD2d 119, 42 NY2d 961; Matter of Zunic v Nyquist, 48 AD2d 378, 40 NY2d 962.)
   OPINION OF THE COURT

Gabrielli, J.

We are called upon to determine whether a board of education may avoid proper application of State laws regulating the grant of tenure to teachers and effectively increase the period of probationary employment provided by law, by the simple expedient of delaying formal appointment of a qualified teacher to an available position which that teacher in fact already fills. We conclude that it may not.

Petitioner was first employed by respondent school district in 1963 as a per diem substitute teacher of woodworking at McKee Vocational High School on Staten Island. In August of 1968, he was licensed as a regular substitute teacher, and continued teaching woodworking at the same school as a regular substitute rather than as a per diem substitute. As such, he appears to have taught a full schedule equivalent to that of a regular teacher. In July, 1971, respondent school district’s board of examiners notified him that he had been licensed as a regular teacher and was being placed on the eligible list for appointment as a regular teacher. In the beginning of the fall 1971 semester, he was originally assigned to teach a full-time woodworking teacher’s schedule as he had in fact been doing for the previous several years. He was not formally appointed a regular probationary teacher at this time, although such appointment was belatedly made several months later in February of 1972. No explanation for this delay has ever been given by respondents.

Petitioner continued teaching a full-time woodworking teacher’s schedule until November of 1971, when he accepted a temporary assignment to the "Absent Teacher Reserve” (ATR), pursuant to which the person so assigned, be he or she a regular teacher or a substitute, fills in for absent teachers each day instead of teaching the same daily schedule. This assignment is one which may be given to either regular or substitute teachers, although regular teachers apparently have the right to reject such an assignment and may bring a grievance if forced to accept it. Substitute teachers have no such choice. In the instant case, petitioner did at first file a grievance because of this assignment but subsequently withdrew his objections. Petitioner’s assignment to ATR was necessary because the teacher originally assigned to that post, a licensed sheet metal teacher, had broken his leg and was unable to move readily from one classroom to another. Accordingly, he was given petitioner’s woodworking classes until his situation should improve. The record does not indicate just how long petitioner remained in ATR, but he seems to have been returned to his regular woodworking schedule by the date of his formal appointment as a probationary regular teacher of woodworking in February, 1972. That appointment did not change petitioner’s actual duties.

In January, 1975, petitioner was notified that he was not being recommended for tenure and that his services were no longer needed. He then commenced this special proceeding challenging the determination of respondent to terminate his services. Petitioner contended, inter alia, that his three-year probationary period should be deemed to have begun not in February, 1972, when he was formally appointed by respondent, but rather in the summer or fall of 1971, when he first became eligible for such appointment and then actually began serving in the position to which he was eventually appointed. So viewed, petitioner’s probationary period ended in 1974, and thus the decision to deny petitioner tenure in 1975 was untimely, as he had already obtained tenure by virtue of the board’s acquiescence in his continued employment after the end of his probationary period. Special Term ruled in favor of petitioner, and ordered that he be reinstated with back pay. Respondents appealed to the Appellate Division, which reversed the order of Special Term, concluding that a probationary period cannot begin to run until the school board formally appoints the teacher. Hence, according to the Appellate Division, petitioner’s probationary period had not yet expired at the time he was discharged, and thus he could not have obtained tenure by virtue of continuing service after the expiration of his probationary period. Petitioner now appeals to this court. We conclude that the order appealed from must be reversed, for a school district may not so easily avoid and escape the mandates of the tenure system established and imposed by the Legislature.

The dispositive issue on this appeal is whether it is possible for a probationary period to commence prior to the date of formal appointment of a teacher by the school board, and that is a question which we have already answered in the affirmative by our decision in Matter of Board of Educ. of City School Dist. of City of Oneida v Nyquist (45 NY2d 975, revg on dissenting opn below 59 AD2d 76). That decision involved a teacher who first began teaching in the Oneida School District pursuant to a Federal program designed to provide employment during periods of high unemployment. The teaching position in which she served was a new one, and she was not appointed to that position by the board until a year after she first actually began teaching in the school. During that first year, she was paid through the county rather than by the school district. Within three years of the date of appointment by the school board, but more than three years after she first began teaching in the school as part of the Federal project, the school district sought to deny her tenure. She successfully appealed that determination to the State Commissioner of Education, and we sustained the determination of the commissioner granting her tenure. In Oneida, as here, it was argued that a teacher may not obtain tenure unless that teacher has served a full probationary period, and that the probationary period cannot commence until there is a formal appointment by the school board, despite any prior period of actual service in the same period. We rejected the second prong of that argument in Oneida, and we see no reason to accept it today.

A school district may not avoid strict application of the statutory scheme for granting tenure to qualified and experienced teachers by the stratagem of unduly delaying formal appointment of a teacher to a position which that teacher is in fact already filling. The tenure system is not an arbitrary mechanism designed to allow a school board to readily evade its mandate by the creation of technical obstacles on a qualified teacher’s trail to tenure (see Matter of Baer v Nyquist, 34 NY2d 291). Rather it is a legislative expression of a firm public policy determination that the interests of the public in the education of our youth can best be served by a system designed to foster academic freedom in our schools and to protect competent teachers from the abuses they might be subjected to if they could be dismissed at the whim of their supervisors. In order to effectuate these convergent purposes, it is necessary to construe the tenure system broadly in favor of the teacher, and to strictly police procedures which might result in the corruption of that system by manipulation of the requirements for tenure. This is not to suggest that the school board in this instance acted with bad faith or from any improper motive. Even "good faith” violations of the tenure system must be forbidden, lest the entire edifice crumble from the cumulative effect of numerous well-intentioned exceptions.

Since the Legislature has deemed it necessary to create a detailed system to provide security for teachers, it follows that a school district may not validly increase the requirements for tenure established by the State (see Matter of Mannix v Board of Educ., 21 NY2d 455), although it may, of course, provide teachers with greater security than that mandated by statute, at least in the absence of any violation of public policy (see Matter of Schlosser v Board of Educ., 47 NY2d 811. Similarly, a school district may not artificially increase the length of the probationary period established by State law, either directly or indirectly by unduly delaying the formal appointment of a teacher to a particular position which that teacher in fact fills.

In the case before us, petitioner appears to have provided satisfactory service as a regular, full-time substitute for several years, although he was not qualified for appointment as a regular teacher because he was not licensed for such a position. When he finally did obtain his license as a regular teacher and was placed on the eligible list for appointment, respondents delayed some seven months before making that appointment, although, as is clear from the record, there did exist an available position, namely, that in which he himself was serving as a regular substitute and to which he eventually was appointed. No explanation for this seven-month delay has ever been proffered by respondents, and we refuse to allow this dilatory behavior to adversely affect petitioner’s right to tenure. Hence we conclude that petitioner’s probationary period must be deemed to have commenced, at the very latest, with the beginning of school in the fall 1971 semester. Thus, his probationary period terminated in 1974, and since respondents continued to employ petitioner as a teacher following the expiration of his probationary term, he must be deemed to have acquired tenure. While the decision whether to award tenure to a teacher is one entrusted by law to the school board alone (Matter of Cohoes City School Dist. v Cohoes Teachers Assn., 40 NY2d 774), that body must act expeditiously, and its failure to act in a timely manner, combined with its continued employment of an eligible teacher, leads to an award of tenure by operation of law (see Matter of Baer v Nyquist, 34 NY2d 291, supra). Any other result would serve as an invitation to at least temporarily evade the mandates of the tenure system.

Our decision today turns in large part on the peculiar and undisputed operative facts presented on this appeal. Of particular import are the fact that petitioner was indeed serving as a full-time teacher of woodworking at McKee during the fall 1971 semester and the fact that petitioner was subsequently appointed by the board to that same position. A school board remains free, of course, to determine whether to appoint a particular person to a particular position, and is-under no obligation to appoint a substitute teacher employed in the district to a regular position simply because that teacher subsequently is licensed as a regular teacher, except insofar as such appointment may be mandated by contract or some other provision of law. Moreover, service as a substitute does not constitute probationary service for purposes of obtaining tenure as a regular teacher, except as is provided by law (see Education Law, § 2509, subd 1, par [a]) or contract. Finally, we note that regardless of any actual service, no person not fully and properly qualified may obtain tenure in a particular position (see Matter of Board of Educ. v Nyquist, 31 NY2d 468).

One final point requires our consideration. The Appellate Division reversed the order and judgment of Special Term on the law alone, and thus we would be required to remit this matter to the Appellate Division for review of the facts were there any dispute over the operative facts (CPLR 5613). Our examination of the record, however, persuades us that there exists no actual dispute as to the facts upon which we have premised our decision. Respondents argued at Special Term that petitioner did not serve continuously during the fall 1971 semester in a regular teaching position, and thus that service could not in any event be credited towards his probationary period. This argument was based on two alternative assumptions of law, both of which we reject. First, respondents suggest that simply because the regular, full-time woodworking teacher’s schedule to which petitioner was originally assigned in the fall 1971 semester was first assigned to him before he obtained his regular teaching license, it cannot be considered a regular teaching position. This argument is fallacious, as we are concerned not with the changing labels placed upon the position by respondents, but rather with the realities of the position and its accompanying duties. Respondents do not suggest that petitioner’s schedule for that semester was any different from that of a regular woodworking teacher’s schedule, nor do they indicate any basis for considering what is actually the same position something other than a regular position in the fall of 1971 and yet denominating it a regular position in February, 1972, when petitioner was finally "appointed” to that position.

Alternatively, respondents suggest that petitioner’s service in ATR for a part of the fall 1971 semester precludes that semester from counting as a part of his probationary period even if his probationary period may be deemed to have commenced prior to formal appointment by the board. While this argument might be of some interest were petitioner seeking credit for prior service as a substitute (see Education Law, § 2509, subd 1, par [a]), it is simply irrelevant to a determination of whether petitioner has in fact served for a full probationary period. This is so because the decision of a probationary teacher to accept a temporary assignment out of position in order to accommodate the needs of the school district does not serve to disrupt that teacher’s probationary period, nor may it lead to an increase in the length of that probationary period. Since there exists no actual dispute as to the legally significant facts, and petitioner is entitled as a matter of law to back pay and reinstatement, it would serve no purpose to remit this matter to the Appellate Division (see Cohen and Karger, Powers of the New York Court of Appeals, § 173).

. Accordingly, the order appealed from should be reversed, with costs, and the order and amended judgment of Special Term should be reinstated.

Jasen, J.

(dissenting). The issue in this case is not, as the majority strains to suggest, whether the board of education may avoid the application of State tenure laws by the "simple expedient of delaying formal appointment of a qualified teacher to an available position”, but, rather, whether petitioner is entitled to any credit for the time he spent as a substitute teacher before a regular teaching position became available to satisfy the statutorily mandated three-year probationary period.

It is indisputable that the probationary period, in all but the most unusual circumstances, does not begin to run until that time at which the teacher is formally appointed by the board of education as a regular probationary teacher. (See Education Law, § 2573, subd 1; Matter of Board of Educ. v Nyquist, 31 NY2d 468, 473-474.) While I do not take issue with the majority’s statement that "[a] school district may not avoid strict application of the statutory scheme for granting tenure to qualified and experienced teachers by the strategem of unduly delaying formal appointment of a teacher to a position which that teacher is in fact already filling”, this observation is, by necessity, predicáted upon the assumption that the qualified teacher is filling an available permanent teaching position.

The record in this case clearly does not sustain this assumption. Nowhere in the record is there any evidence of any permanent vacancy in the regular position as woodworking teacher until January 27, 1972, at which time, due to changes in personnel and position allotments, a vacancy occurred effective February 1, 1972. A copy of the official notification form for vacancies submitted for McKee High School shows that a permanent vacancy in the regular position as woodworking teacher was first reported to the Office of Pedagogical Appointments — the office responsible for co-ordinating the appointments of eligible teachers to available positions in the New York City School District — on January 27, 1972. Hence, there was no “available position” to which petitioner could be permanently appointed until such date.

Documentary evidence in the record also discloses that petitioner was serving as a regular substitute teacher until his appointment as a regular probationary teacher on February 1, 1972. It is clear beyond dispute that the official work schedule for McKee High School for the fall 1971 semester shows petitioner to be serving as an “Absent Teacher Reserve” (ATR) — a teacher whose duties require him or her to fill in for absent teachers in various classes. Indeed, petitioner himself claimed salary credit as a regular substitute teacher for the fall months of 1971. In short, it appears that both respondents and petitioner considered the services rendered by petitioner until his formal appointment on February 1, 1972 as those of a regular substitute.

It is most important to stress that petitioner obtained his license as a regular teacher pursuant to the special procedures outlined in section 2569-a of the Education Law. This provision expressly provides that applicants having so obtained their license “shall accept employment under a three-year probationary period which shall not be reduced by reason of any prior substitute service.” As the majority candidly admits, this express language precludes petitioner from claiming any credit for purposes of tenure by virtue of his experience as a substitute teacher.

Petitioner being appointed on February 1, 1972, his statutorily mandated three-year probationary period did not commence until said date and, therefore, did not expire until February 1, 1975. Notice being given to petitioner that he was not being recommended for tenure and that his services were no longer needed within that period, petitioner was properly dismissed and should not now be heard to complain.

The majority’s great reliance on our recent decision in Matter of Board of Educ. of City School Dist. of City of Oneida v Nyquist (45 NY2d 975, revg on dissenting opn below 59 AD2d 76) to reach a contrary result is misplaced. In Oneida, the critical factor supporting this court’s holding was that the teaching position created by Federal funding was continued by the board of education as soon as funding became available and the same teaching position remained filled by the same teacher. It is this fact, namely the continuity of this regular teaching position, albeit one which was initially dependent on Federal funding, which was the basis of our holding.

In marked contrast, here petitioner did not fill a regular teaching position until his appointment on February 1, 1972, but, rather, served only as a substitute teacher filling in for regularly appointed teachers who were absent. As shown, the record reveals that it was only on this date that a permanent vacancy in a regular teacher’s position for woodworking became available. Thus, our holding in Oneida is not controlling.

Since there is absolutely no support in the record for the majority’s holding that the respondent board of education used the "simple expedient of delaying formal appointment of a qualified teacher to an available position”, I would affirm the unanimous order of the Appellate Division.

Chief Judge Cooke and Judges Jones, Wachtler and Fuchsberg concur with Judge Gabrielli; Judge Jasen dissents and votes to affirm in a separate opinion.

Order reversed, etc.

      . Petitioner obtained his license pursuant to special procedures provided in section 2569-a of the Education Law for the licensing of experienced substitute teachers who meet certain qualifications. Since this section specifically states that persons so appointed "shall accept employment under a three-year probationary period which shall not be reduced by reason of any prior substitute service”, petitioner was not entitled to any credit for his many years of experience as a substitute, as he would have been had he obtained his license and his appointment through more normal means (see Education Law, § 2509, subd 1, par [a]).

      . The Appellate Division did award petitioner five days’ back pay with interest because of what it deemed to be an error in the procedures utilized to discharge petitioner. Petitioner contended in both courts below, and before this court as well, that his discharge was fatally tainted because of the use of improper procedures by respondents. Since we have determined that petitioner is entitled to reinstatement and full back pay on the ground that he did obtain tenure, we deem it unnecessary to consider petitioner’s alternative arguments.

      . It may be suggested that, because we were reviewing a determination of the commissioner in Oneida, our scope of review was more restricted. Whether there must be the formality of appointment by the board, however, is an issue of law which would in no way have been excluded from our consideration in Oneida. We concluded there, as we do here, that the law does not require such formality.

      . We note in passing that we find respondents’ apparent use of regular substitutes rather than regularly appointed teachers to fill what would seem to be permanent positions disturbing (see Matter of Board of Educ. v Allen, 14 AD2d 429, affd without opn 12 NY2d 980).

       Insofar as petitioner was deprived of his full 60 days’ notice, I would concur with the result reached by the Appellate Division that he is entitled to one day’s pay for each day such notice was late. This failure to give timely notice, however, would not appear to taint fatally petitioner’s dismissal. (See Matter of Zunic v Nyquist, 48 AD2d 378, affd 40 NY2d 962.)


author: Wachtler, J. Fuchsberg, J.

text:
    The People of the State of New York, Respondent, v Hezekiah Boodle, Appellant.
    Argued April 27, 1979;
    decided June 14, 1979

      POINTS OF COUNSEL

      Susan J. Penry-Williams and Robert E. De Right, Jr., for appellant.
    I. Appellant’s conviction cannot be sustained since it rests solely on evidence revealed as a direct consequence of an unlawful seizure. (People v Cantor, 36 NY2d 106; Brown v Illinois, 422 US 590; People v Martinez, 37 NY2d 662; People v Townes, 41 NY2d 97; People v Loria, 10 NY2d 368; Fletcher v Wainwright, 399 F2d 62; People v Baldwin, 25 NY2d 66; People v Butterly, 25 NY2d 159; Rios v United States, 364 US 253; People v Allende, 39 NY2d 474.) II. Appellant’s conviction, upon a plea of guilty, to possession of narcotics rests solely on evidence revealed by a search following an unlawful arrest and, therefore, must be reversed.

      Robert M. Morgenthau, District Attorney (Donna Krone and Robert M. Pitler of counsel), for respondent.
    Defendant was not illegally seized when he voluntarily entered a police car in order to discuss a homicide he may have witnessed. Even if defendant had been illegally seized, the discovery of the gun and heroin was not a direct result of that seizure, but was a product of defendant’s unforeseen and unreasonable act of discarding his loaded pistol. (People v De Bour, 40 NY2d 210; Miranda v Arizona, 384 US 436; Matter of Kwok T., 43 NY2d 213; People v Rodney P. [Anonymous], 21 NY2d 1; People v Mason, 59 AD2d 580; People v Cantor, 36 NY2d 106; Mapp v Ohio, 367 US 643; People v Martinez, 37 NY2d 662.)
   OPINION OF THE COURT

Wachtler, J.

The defendant was charged with criminal possession of a weapon in the third degree, a felony (Penal Law, § 265.02) and criminal possession of a controlled substance in the seventh degree, a misdemeanor (Penal Law, § 220.03). Claiming a violation of his constitutional rights the defendant sought to suppress evidence, a pistol and numerous packets of heroin. After a hearing Special Term denied the motion. The defendant subsequently pleaded guilty to the drug charge, and a jury convicted him of the weapon offense. The Appellate Division affirmed.

On the evening of August 25, 1975 John Capers and Harold Johnson, New York City detectives, were investigating a homicide which had occurred about one month earlier. The two plainclothes detectives, in an unmarked radio patrol car, met an informant at Eighth Avenue and 127th Street in Manhattan near the location of the crime under investigation. The informant told them that a man called "Heavy” wearing a gray jacket might have information concerning the homicide. Detective Capers then saw a man, whom he believed to be "Heavy”, standing and talking with another man. "Heavy”, the defendant in this case, did nothing to arouse even the slightest suspicion. As the police car approached, the defendant began walking south on Eighth Avenue. Capers stopped the car beside defendant on 125th Street and said to him, "Please step over to the car.” The detective then said that he wanted to speak to the defendant about the homicide and asked him to get into the rear seat of the car. It is not clear whether the officers identified themselves as such at this time. After the defendant complied, Capers began to drive away slowly. At that point Capers asked the defendant if he was "clean”; the defendant answered yes. Capers then warned the defendant: "Just keep your hands where I can see them.” When the car had reached the middle of the block between 124th and 125th Street, Capers, looking into the rear view mirror, saw the defendant reach down with his left hand. Braking the car, Capers turned his head and saw the defendant throw a black object out of the window, which Johnson, the other detective, immediately recognized as a gun. As soon as the vehicle came to a full stop Johnson retrieved the object, a loaded .32 caliber automatic revolver. The defendant was taken to the station house where a search revealed 13 glassine envelopes later found to contain heroin. The principle issue is whether the defendant produced the weapon as a direct result of illegal police action.

Initially, we note our agreement with the Appellate Division that the defendant was seized within the meaning of the State and Federal Constitutions (US Const, 4th Arndt; NY State Const, art I, § 12). While the defendant’s entering the police car may not have been coerced, the command to keep his hands exposed demonstrates that his freedom of movement was significantly restrained. In addition, when Capers without explanation began driving the car, he substantially infringed on the defendant’s liberty. "Whenever an individual is physically or constructively detained by virtue of a significant interruption of his liberty of movement as a result of police action, that individual has been seized within the meaning of the Fourth Amendment” (People v Cantor, 36 NY2d 106, 111; People v Jennings, 45 NY2d 998; Terry v Ohio, 392 US 1, 16). Since prior to the seizure of the defendant the police wholly lacked evidence of probable cause linking him to criminal activity, the seizure was clearly unlawful.

We next consider whether the unlawful seizure tainted the discovery of the weapon. The defendant argues that the gun was "fruit of the poisonous tree”, discovered as a direct result of the unlawful seizure. If this premise is correct then the gun was illegally seized and should have been suppressed. Furthermore, as illegally seized evidence, the gun could not have provided the predicate for the subsequent search at the station house which revealed packets of heroin. Hence, following this line of reasoning, the heroin should have been suppressed as well. .

The People contend that the defendant’s act of throwing the revolver from the car was unanticipated and unprovoked. According to the People, since the act was independent of the unlawful police conduct, the taint of the illegal detention was sufficiently dissipated to render the seizure of the gun constitutionally permissible. If this premise is accepted, then the subsequent arrest and search, revealing the heroin, were likewise valid. We hold that on this record the defendant’s act of throwing the revolver was not in direct and immediate response to the illegal detention, and that the revolver, disclosed as a result of defendant’s independent act, was not tainted by the prior illegality.

In reaching this determination, we first observe that here the weapon was produced and thrown to the street by the defendant himself. This factual context distinguishes the present case from those where a defendant takes no active role in revealing the seized evidence (People v Allende, 39 NY2d 474; People v Pepitone, 48 AD2d 135, affd 39 NY2d 907).

But the inquiry does not end there. As we have often said, if the evidence was revealed as a direct consequence of the unlawful police action, the evidence is tainted and must be suppressed on defendant’s motion (see, e.g., People v Butterly, 25 NY2d 159; Rios v United States, 364 US 253). This principle was followed in People v Baldwin (25 NY2d 66). There the defendant, when illegally arrested on a burglary charge, took a white envelope from his pocket and dropped it to the ground. The arresting officer seized the envelope in which two pills, containing a narcotic, were found. Arguing abandonment of the evidence, and the existence of probable cause to arrest, the People did not contend that the taint of the illegal arrest had been dissipated. We held in Baldwin, characterized by the defendant as a "dropsy” case, that the drugs should have been suppressed.

Similarly in People v Loria (10 NY2d 368) two police detectives and two Federal narcotics agents told the defendant and his sister that they would like to talk to them inside the sister’s apartment. One of them knocked on the front door. A moment later two slats of the Venetian blind covering the glass door parted and someone peered through; hasty footsteps were heard within the apartment. The police then threatened to kick the door down, and in response the defendant’s sister unlocked the door. Rushing in, the police saw the defendant’s brother-in-law pick up a green leather vanity case and drop it out the window. The vánity case was seized and found to contain three pounds of heroin. As in Baldwin the attempt to discard the evidence was a direct result of the precipitous and unlawful police action. Since the production of the evidence was a spontaneous, provoked reaction to the illegality, the evidence was tainted.

Our most recent case applying this principle is People v Cantor (36 NY2d 106, supra). In Cantor, after the defendant had parked his car in front of his house, a policeman in plainclothes, driving a private car, blocked the defendant’s car preventing forward movement. When the defendant exited his car, he saw three men in street clothes approaching him. Although police officers, they had not identified themselves as such. In response the defendant drew a gun to defend himself. As soon as one of the officers displayed his badge, the defendant returned the pistol to his back pocket, offering no further resistance. In Cantor we found that the police had seized the defendant, and that the seizure, unsupported by probable cause, was illegal. Holding that the pistol should have been suppressed, we stated: "The pistol was revealed as a direct consequence of the illegal nature of the stop” (People v Cantor, supra, at p 114). Not only did the defendant draw the gun as a direct result of the illegality, but the police, by confronting him in a threatening manner without identifying themselves, actively provoked his reaction of self-defense.

There are other cases, however, where after being unlawfully seized a defendant has, independent of the illegality, revealed evidence subsequently seized. In such cases any "connection between the lawless conduct of the police and the discovery of the challenged evidence * * * [is] 'so attenuated as to dissipate the taint’ ” (Wong Sun v United States, 371 US 471, 487, quoting Nardone v United States, 308 US 338, 341). So it was in People v Townes (41 NY2d 97) where the defendant, after having been illegally seized, drew, and attempted to fire, a pistol at a plainclothesman who had identified himself as a police officer. We held "that Townes’ free and independent action in pulling and attempting to fire the gun, taken after and in spite of, or perhaps because of, the plainclothesman’s identification of himself as a police officer”, dissipated the taint of the lawless police conduct (People v Townes, supra, at p 102; see People v Martinez, 37 NY2d 662).

Turning to the case before us, we conclude that defendant, in seeking to rid himself of the weapon, did not respond directly to the illegal police action. The encounter with the police began on the street, and continued when the defendant entered the police car which Detective Capers began to drive away. Rather than a spontaneous reaction to a sudden and unexpected confrontation with the police, the defendant’s attempt to discard the revolver was an independent act involving a calculated risk.

The distinction between a spontaneous as opposed to a calculated act is not foreign to our law (People v Edwards, 47 NY2d 493). This very consideration has been critical in deciding the admissibility of hearsay declarations (People v O’Neall, 47 NY2d 952; People v Caviness, 38 NY2d 227; People v Marks, 6 NY2d 67). In People v Gilbert (199 NY 10, 24) we said: "While the time for reflection is not measured in minutes or seconds it is measured by facts. The time must be long enough to make a choice, as the result of thought and reflection, and to act upon the choice thus made.” Depending on the circumstances, only a brief period of time will render a declaration unspontaneous (Handel v New York R. T. Corp., 252 App Div 142, affd 277 NY 548; People v Hall, 260 App Div 421). Applying like reasoning, we conclude that although the time was brief, the defendant had had time enough to reflect and formulate a strategy for ridding himself of the incriminating evidence.

It is most important also that the police illegality lacked the "quality of purposefulness” to uncover incriminating evidence (Brown v Illinois, 422 US 590, 605). In the present case the police had no knowledge that the defendant was carrying a weapon. Indeed, had they suspected that he had a loaded pistol they surely would have searched him immediately. Not designed to uncover the weapon or any other evidence, the illegal police action lacked the element of purposeful exploitation which would taint the discovery of the weapon.

One of the main purposes of the exclusionary rule is to deter lawless police activity (People v McGrath, 46 NY2d 12, 31; Mapp v Ohio, 367 US 643, 648). In a case such as this where the police conduct, although illegal, neither provoked the defendant into revealing the evidence seized nor was designed to lead to the discovery of any evidence, the purpose of the exclusionary rule would not be served by granting the motion to suppress (see Brown v Illinois, 422 US 590, 605, supra).

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

Fuchsberg, J.

(dissenting). No court is pleased with the prospect that the "criminal is to go free because the constable has blundered” (People v De Fore, 242 NY 13, 21 [Cardozo, Ch. J.]). But that sentiment must yield to the fundamental precept of our jurisprudence that even the guiltiest of men is entitled to the fullest protection of the laws (Brewer v Williams, 430 US 387, 406). To that end, it needs no repeating that the general rule is that evidence produced by illegal police action should not be admitted in evidence, the purpose being "to deter — to compel respect for the constitutional guarantee in the only effectively available way — by removing the incentive to disregard it” (Elkins v United States, 364 US 206, 217; People v Allende, 39 NY2d 474, 477). For the reasons which follow, we would hold that the product of the illegal arrest should have been suppressed and the case dismissed.

We start with the premise, found by the Appellate Division and undisputed by this court, that, at a time when he had done "nothing to arouse even the slightest suspicion”, the defendant was unlawfully seized by the police in violation of the Fourth Amendment. And, as the majority opinion itself points out, the actions of the police in moving him by car and in ordering him to keep his hands exposed were an integral part of this unwarranted arrest. It also agrees that, if the defendant’s act of discarding and thereby revealing his possession of a gun was a direct consequence of his unlawful arrest, the evidence is tainted and must be suppressed.

Resolution of this case turns then on the question of whether the discovery of the weapon was "induced” by the illegal arrest (see People v Munger, 37 AD2d 950, app dsmd 33 NY2d 576) or whether the connection between the two events was so attenuated as to dissipate the taint (Wong Sun v United States, 371 US 471, 487, quoting Nardone v United States, 308 US 338, 341). Put another way, was there any break in the chain of events which would purge the illegality? (Cf. People v Chapple, 38 NY2d 112; People v Stephen J. B., 23 NY2d 611, 615; Brown v Illinois, 422 US 590). There is none to be found.

The rapid sequence of events here — the order to get into the car, the removal from the scene, the command to keep his hands where they could be seen, the attempt to dispose of the weapon — leads inexorably to only one conclusion: the defendant, no longer in control of his freedom or privacy, reacted spontaneously to rid himself of the weapon which he obviously believed he no longer had the power to keep to himself. There is no other rational explanation. He did not disgorge the gun to oppose or attack or escape from the police (see People v Townes, 41 NY2d 97); its discard put it beyond use for such purposes. Moreover, police inquiry as to whether the defendant was "clean”, followed in rapid fire order by instructions as to the placement of his hands and by an announcement that he was being taken to the nearest police station, not only contributed to the detention but were also of a nature to induce a reflexive apprehension that, if the defendant did not rid himself of the weapon, more serious consequences of the illegal arrest were imminent.

Spontaneity and immediacy of a reaction contraindicate deliberation or planning. There simply is not time for either. And, such a reaction is sure to be at least as predictable as one that was actually planned. Furthermore, it is bound to meet any test of foreseeability or proximate cause. Aside from its spontaneity, the reaction here was certainly immediate. Indeed, it was as immediate as immediate can be. Eighth Avenue blocks in Manhattan are only 200 feet long. The police car had transported the defendant less than half a block between the point at which he entered the vehicle and the. place where it was brought to a halt after the police saw the weapon being discarded. Even a slow-moving automobile will take only seconds to traverse under 100 feet. Indeed, if the car here had been proceeding at a speed of but 10 miles per hour, the reaction and braking time that elapsed between the observation of the movement of the defendant’s hand and the time the vehicle actually stopped would alone have had to eat up a fifth of that distance. The remaining space of somewhat less than 80 feet would be covered in no more than five seconds, less than the time it takes to write this phrase.

In short, the interval between the warning about the hands and the discard of the weapon could have been no more than a twinkling of time. Together with the directness of its connection to the illegality, it admitted of no possible attenuation. For all practical purposes, on the uncontradicted facts, spontaneity and attenuation had merged.

It is in the face of these facts that, as a reason for denying suppression, the majority offers the argument that, since the police had no prior knowledge that the defendant was carrying a weapon and the unlawful arrest was not designed to accomplish that end, "the purpose of the exclusionary rule would not be served by suppressing the seized evidence”. With all due respect, by no means can I accept that proposition. The arrest was both deliberate and unlawful. It was just the kind of conduct the exclusionary rule was intended to deter. If the sanction does not operate to confiscate the avails, whether they were the particular ones sought by the offending officers or not, the rule would be no more than a paper tiger. For it was not the defendant’s almost inevitable response, but the illegal police conduct, against which the rule was directed.

Nor does the majority’s contention withstand analysis when measured by other doctrine we have enunciated. Only recently, we held that an arrest, as a major intrusion into an individual’s privacy, subsumes the right to search the person as well (People v De Santis, 46 NY2d 82). And, not too long ago, we reiterated that an unlawful search will not lead to suppression if it is inevitable that the police would have discovered the evidence by lawful means (People v Fitzpatrick, 32 NY2d 499; People v Payton, 45 NY2d 300; People v Riddick, 45 NY2d 300). Similarly, once the defendant here was seized, it was to be expected that in due course he would have been "patted down” or searched more fully as a matter of routine, if only to secure the arresting officers from danger. This inevitably would have disclosed the weapon. In that event, because of the illegality of the arrest, it would have to have been suppressed. Yet, there would have been no more or less of a police "design” in the discovery of the weapon in those circumstances than there was in the ones that actually unfolded here. In either instance, had the defendant’s liberty not been curtailed, the police would never have been in a position to discover the weapon (cf. People v Spinelli, 35 NY2d 77).

In sum, the "discovery” of the gun was clearly a direct and immediate product of the illegal arrest and, therefore, should be suppressed (cf. People v Baldwin, 25 NY2d 66, citing Fletcher v Wainwright, 399 F2d 62; People v Loria, 10 NY2d 368).

Chief Judge Cooke and Judges Gabrielli and Jones concur with Judge Wachtler; Judge Fuchsberg dissents and votes to reverse in a separate opinion in which Judge Jasen concurs.

Order affirmed.

       By amendment this offense is now denominated "Criminal possession of a controlled substance in the eighth degree” (L 1978, ch 772, § 4, eff Sept. 1, 1978).

      . Looking at it from a different perspective, but to the same goal, it has been said that "good police work is something far different from catching the criminal at any price. It is equally important that the police, as guardians of the law, fulfill .their responsibility to obey its commands scrupulously. For 'in the end life and liberty can be as much endangered from illegal methods used to convict those thought to be criminals as from the actual criminals themselves’ ” (Brewer v Williams, 430 US 387, 407 [Marshall, J., concurring], supra, quoting Spano v New York, 360 US 315, 320-321).

      . According to figures based on tests performed by the US Bureau of Public Roads, under normal road conditions a motor vehicle proceeding as slowly as 10 miles per hour travels 15 feet per second. The minimum stopping distance of a vehicle traveling at that speed is 19 feet, including 11 feet covered during reaction time and 8 feet after the brakes are fully applied (Sportsmanlike Driving, published for the American Automobile Association by Webster Division of the McGraw-Hill Book Co. [6th ed, 1970], p 61, table 6-1).