author: Wachtler, J.

text:
    Melody L. Thomas, as Administratrix of the Estate of Kimberly Longe, Deceased, Appellant, v Consolidated Fire District No. 1 of Town of Niskayuna, Respondent, et al., Defendants.
    Argued March 26, 1980;
    decided May 1, 1980

      POINTS OF COUNSEL

      Arnold M. Gordon and A. Joseph Fazzone for appellant.
    Section 205-b of the General Municipal Law should not be construed as an exemption statute so as to unfairly deprive injured parties of their day in court. (Bernardine v City of New York, 294 NY 361; Motyka v City of Amsterdam, 15 NY2d 134; Paige v State of New York, 269 NY 352; Engels v City of New York, 256 App Div 992; Holmes v County of Erie, 291 NY 798; Bloom v Jewish Bd. of Guardians, 286 NY 349; Cox v Village of Greenwich, 33 AD2d 264.)

      Thomas M. Hirschen for respondent.
    I. Liability beyond that which specified by section 205-b can only be imposed by the Legislature. (Sikora v Steinberg, 40 Misc 649, 20 AD2d 852; Mott v Baldwin Fire Dept., 45 Misc 2d 813; Cox v Village of Greenwich, 33 AD2d 264; Northrup v Northrup, 43 NY2d 566.) II. A "gap” in the law is not a basis for establishing liability and, in fact, the "gap” herein is favored by public policy. III. No irony is presented by section 205-b following the decision in Bernardine v City of New York. (Bernardine v City of New York, 294 NY 361.) IV. The action herein against the fire district is brought pursuant to section 205-b. (Seyer v Schoen, 6 AD2d 177.) V. Section 205-b limits the fire district’s liability. (Cox v Village of Greenwich, 33 AD2d 264.)
   OPINION OF THE COURT

Wachtler, J.

The issue presented in this case is whether a fire district may be held liable for the negligent acts of one of its volunteer firemen committed in the course of duty while operating a privately owned vehicle outside the borders of the fire district; specifically whether section 205-b of the General Municipal Law by implication exempts fire districts from liability except as provided by that section.

On October 4, 1976 a seven-year-old girl was struck and killed by a privately owned car operated by a volunteer fireman answering an alarm. The accident occurred outside the borders of the fire district. The girl’s mother and administratrix of her estate sued the driver of the car, the owner, and the fire district, claiming they were negligent. The fire district, relying on section 205-b of the General Municipal Law, moved for summary judgment to have the complaint against it dismissed.

Insofar as relevant section 205-b of the General Municipal Law, which was enacted in 1934, provides as follows: "Members of duly organized volunteer fire companies in this state shall not be liable civilly for any act or acts done by them in the performance of their duty as volunteer firemen, except for wilful negligence or malfeasance * * * [B]ut fire districts created pursuant to law shall be liable for the negligence of volunteer firemen duly appointed to serve therein in the operation of vehicles owned by the fire district upon the public streets and highways of the fire district, provided such firemen, at the time of any accident or injury, were acting in the discharge of their duties”.

Special Term found section 205-b to be an exemption statute which limited the liability of fire districts to incidents involving official vehicles occurring within their borders. Because the accident in question involved a private vehicle, outside the fire district boundary, Special Term granted summary judgment and dismissed the complaint as to the defendant fire district. The Appellate Division unanimously affirmed and our court granted leave to appeal. We now reverse.

Although the State waived its immunity from liability in 1929 with the enactment of section 8 of the Court of Claims Act, this waiver of immunity was not found to be applicable to the local subdivisions of the State until 1945, when this court issued its decision in Bernardine v City of New York (294 NY 361). It thus appears that in 1934, the year section 205-b was enacted, the Legislature had intended to expand, not restrict, the liability of fire districts (cf. Berger v City of New York, 260 App Div 402, 404-405, affd without opn 285 NY 723 [pertaining to enactment of Highway Law, § 282-g (municipal liability for negligent operation of vehicles), and its superseding statutes, General Municipal Law, §§ 50-a, 50-b]). In other words, the Legislature sought to assure that there would be some liability on the part of the fire districts where previously there had been some doubt. To now read section 205-b as restricting liability — as exempting a fire district from liability in all situations other than that prescribed in the section— would be error.

The conclusion that the section should not be read as an exemption statute may be gleaned from this court’s opinion in Bernardine. Bernardine involved a negligence action brought against the City of New York to recover damages for personal injuries caused to plaintiff by a runaway police horse. Plaintiff asserted that liability attached to the city under section 50-b of the General Municipal Law, a statute which closely parallels section 205-b. Supreme Court had found that a horse was not a "facility of transportation” within the meaning of the section and, thus, that the city could not be held liable. The Appellate Division reversed, finding that a horse was a facility of transportation. This court affirmed the Appellate Division order, stating that the Appellate Division’s construction of the term at issue was proper.

Our court concluded that the Court of Claims Act had waived the tort immunity of the subdivisions of the State as well as that of the State itself: "The legal irresponsibility heretofore enjoyed by these governmental units was nothing more than an extension of the exemption from liability which the State possessed [citation omitted]. On the waiver by the State of its own sovereign dispensation, that extension naturally was at an end and thus we were brought all the way round to a point where the civil divisions of the State are answerable equally with individuals and private corporations for wrongs of officers and employees, — even if no separate statute sanctions that enlarged liability in a given instance” (Bernardine v City of New York, 294 NY 361, 365, supra). Although that conclusion was not strictly necessary to the result in Bernardine, it has been frequently cited with approval by this court in cases finding municipalities liable for the acts of their agents and is now generally understood to permit municipal liability even in the absence of particular statutory enactments. The implication of Bernardine for this case is that section 205-b, as with the closely analogous section 50-b, should not be read as an exemption statute.

Bernardine notwithstanding, some of our courts have on occasion read section 205-b restrictively. Such a reading, in combination with section 50-c of the General Municipal Law, which provides for municipal liability for all vehicular torts by paid firemen, yields the anamolous and indefensible situation that, alone among persons negligently injured by firemen, only one struck by a volunteer driving a privately owned vehicle is without statutory remedy. The question, then, is whether this apparent "gap” in the statutory provisions governing liability for the negligent acts of firemen is overjumped by the broad liability emanating from the Court of Claims Act, as interpreted in Bernardine (supra).

We note that there is no reason why section 205-b should be read as an attempt by the Legislature to limit the liability of municipalities; rather, the reverse. The Legislature when it enacted section 205-b was acting in the apparent belief that the waiver of immunity effected by the Court of Claims Act did not affect the pre-existing municipal liability. Viewed in this light section 205-b may be seen to have been an attempt to provide for liability in situations where none had existed previously, i.e., to expand rather than to limit liability.

In addition, unless the intent of section 205-b is to limit liability, there appears to be no reason to distinguish between a situation in which a volunteer fireman is operating a fire district vehicle or a privately owned vehicle in the course of his duties. This is particularly true when considering how much more frequently volunteer firemen reach the scene of an alarm by private, rather than by district-owned vehicles. Therefore, where the Legislature acted to extend liability, we should not reach for such a limiting distinction absent inescapable evidence that there was such a legislative intent.

We conclude, therefore, that section 205-b does not preclude liability by the fire district on the facts of this case. That is not to say, however, that all such enactments providing for municipal liability in specified circumstances have been rendered entirely surplusage. As was noted in Bernardine (supra), "the plaintiff in such a case must satisfy all applicable general statutory or charter requirements in the way of presentation of claims, notice of injury, notice of intent to sue and the like” (294 NY 361, 365-366).

The order of the Appellate Division should be reversed and the motion for summary judgment denied.

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

Order reversed, with costs, and the motion for summary judgment denied.

      . Section 50-b provides:
      "§ 50-b. Municipal liability for negligent operation of vehicles or other facility of transportation
      "Every county, city, town, village and other subdivision of government, notwithstanding any inconsistent provisions of law, general, special or local or any limitation contained in the provision of any city charter, shall be liable and shall assume the liability for the negligence of, and shall save harmless, a person duly appointed by the governing board or body of the municipality, or by any board, body, commission or other officer thereof, in the operation of a municipally owned vehicle or other facility of transportation within the state in the discharge of a statutory duty imposed upon such person or municipality, provided the appointee at the time of the accident or injury was acting in the discharge of his duties and within the scope of his employment. Every such appointee shall, for the purpose of this section, be deemed an employee of the municipality, notwithstanding the vehicle or other facility of transportation was being operated in the discharge of a public duty for the benefit of all citizens of the community and the municipality derived no special benefit in its corporate capacity.”

      . (Schuster v City of New York, 5 NY2d 75; Dunham v Village of Canisteo, 303 NY 498; McCrink v City of New York, 296 NY 99.)

      . (Sikora v Steinberg, 40 Misc 2d 649, affd mem 20 AD2d 852; Mott v Baldwin Fire Dept., 45 Misc 2d 813.)


source: Caselaw Access Project

author: Meyer, J. Jasen, J.

license: Public Domain

text:
    The People of the State of New York, Respondent, v John A. Keeffe, Appellant.
    Argued March 26, 1980;
    decided May 1, 1980

      POINTS OF COUNSEL

      Harold F. McGuire, Jr., and Arthur V. Nealon for appellant.
    I. As a matter of law, the conduct proven with respect to count III does not constitute larceny. (McCoy v American Express Co., 253 NY 477; Cole v Arkansas, 333 US 196; People v Scott, 26 NY2d 286; People v Munoz, 9 NY2d 51.) II. The trial court erroneously charged the jury that D’lsernia’s right to receive $2,500 in 1975 had been "established” as a matter of law. (People v Bell, 38 NY2d 116.) III. Evidence of criminal intent was insufficient to go to the jury; the jury was improperly charged with respect to criminal intent; the charges on "claim of right” and "restitution” unfairly discredited the factual contentions of the defense; and the charge on "claim of right” unconstitutionally shifted to defendant the burden of disproving criminal intent. (Van Vechten v American Eagel Fire Ins. Co., 239 NY 303; People v Montgomery, 39 AD2d 889; People v Bell, 38 NY2d 116; Mullaney v Wilbur, 421 US 684; Patterson v New York, 432 US 197; People v Landers, 66 AD2d 987.) IV. Evidence which tended to show lack of criminal intent was erroneously excluded. (Drayton v Hayes, 589 F2d 117; People v Fiore, 34 NY2d 81.) V. The prosecutor’s summation departed so substantially from the evidence as to deprive defendant of a fair trial. (People v Ashwal, 39 NY2d 105; People v Rodriquez, 61 AD2d 914; People v Davis, 53 AD2d 870.) VI. Keeffe was denied a fair opportunity to testify in the Grand Jury. (People v Rakity, 77 Misc 2d 324; People v Searles, 79 Misc 2d 850.)

      Robert M. Morgenthau, District Attorney (Carol Ethridge Gette and Robert M. Pitler of counsel), for respondent.
    I. Defendant’s guilt was proved beyond a reasonable doubt. (Justices of Ct. of Special Sessions of County of N. Y. v People ex rel. Henderson, 90 NY 12; People v Izzo, 96 Misc 2d 634.) II. Evidence that D’lsernia did not deserve his fee, another law firm claimed the fee, and that Gracie did not tell defendant to pay D’lsernia was irrelevant and therefore properly excluded. Defendant testified as to his understanding of the Surrogate’s order. III. Defendant received ample opportunity to testify in the Grand Jury, but refused to do so. Consequently, there is no reason to dismiss the indictment. For the same reason, Justice McCooe properly excluded defendant’s testimony that he "attempted” to testify in the Grand Jury. IV. Defendant was not prejudiced by the conduct of the Trial Justice, which was in all respects proper. (People v Gonzalez, 38 NY2d 208; People v Moulton, 43 NY2d 944.) V. The court’s charge that D’Isernia’s right to $2,500 was established in the Surrogate’s Court and that D’lsernia was entitled to the fee, as a matter of law, did not remove contested issues from the jury. The trial court did not preclude the defense argument that D’lsernia had no right to possession of the money in the special attorney’s account. VI. Defendant was not entitled to a jury instruction that the evidence "had to exclude to a moral certainty every reasonable hypothesis but guilt” because the People’s case was not exclusively circumstantial. The charge that the jury could infer defendant’s intent from the circumstances of the case was permissive and not mandatory. (People v Licitra, 47 NY2d 554; People v Von Werne, 41 NY2d 584; People v Sabella, 35 NY2d 158; Sandstrom v Montana, 442 US 510; People v Patterson, 39 NY2d 288; People v Robinson, 36 NY2d 224.) VII. The court’s charges on "restitution” and "claim of right” did not unfairly discredit the defense. Defendant’s failure to object to the charge on restitution precludes him from raising the issue on appeal. (People v Robinson, 36 NY2d 224.) VIII. The affirmative defense to larceny of a good faith claim of right does not shift unconstitutionally the burden of proof. (Mullaney v Wilbur, 421 US 684; People v Patterson, 39 NY2d 288, 432 US 197; People v Coates, 64 AD2d 1; People v Banks, 55 AD2d 795; People v Richardson, 55 AD2d 514.) IX. Defendant’s failure to object to the prosecutor’s summation prevents him from raising the alleged errors on appeal. Moreover, the remarks were not error. (People v Cona, 49 NY2d 26; People v Ashwal, 39 NY2d 105; People v Alicea, 37 NY2d 601.)
   OPINION OF THE COURT

Meyer, J.

Is an attorney who holds in his special account the proceeds of settlement of a personal injury action guilty of larceny when his withdrawals from the special account reduce its balance to less than the amount to which his precedessor attorney has been held entitled as his share of the fee? We hold that the predecessor attorney did not by reason of the order fixing the amount of his fee have "property” in or ownership of the money held by the successor attorney, as the terms "property” and "owner” are defined by section 155.00 of the Penal Law. We hold further that the fact that the proceeds were in a special or "attorney’s” account did not make them trust funds held for the benefit of the outgoing attorney. We conclude, therefore, that the withdrawals by the successor attorney from the special account did not constitute a larceny and, accordingly, reverse and dismiss the indictment. Since the indictment is being dismissed, we do not pass upon the other claims of error advanced by defendant.

The indictment of defendant KeefFe is based upon a factual complex which begins with the death of Frieda Gracie, wife of Thomas Gracie, in 1966, leaving Mr. Gracie and a two-month-old son surviving her. Contending that the death of his wife was the result of medical malpractice, Thomas Gracie retained attorney Alfred D’lsernia, who obtained the issuance of limited letters as administrator to Mr. Gracie and commenced a malpractice action against the doctors and hospital claimed to have been responsible for Mrs. Grade’s death. Unsatisfied with the lack of progress of the lawsuit, Gracie in 1973 asked defendant KeefFe to take over the wrongful death action and in October, 1973 an order permitting substitution was made by the Queens County Surrogate. The question of D’lsernia’s right to a fee and to a lien were left undecided and were referred to the Trial Judge. KeefFe thereafter brought suit on behalf of the administrator against DTsernia for legal malpractice.

Late in 1974 the wrongful death action was tentatively settled by Keeffe for $120,000. In the compromise approval proceeding that followed, DTsernia claimed a lien on the settlement proceeds for his fee. Ultimately it was agreed thajt the malpractice action against him would be dropped and that his share of the fee would be $2,500. An intermediate order was made April 7, 1975 providing in part that "the administrator be permitted to withdraw and pay out the amount of $2,500 to Alfred L. DTsernia, Esq. representing the fee to which he is entitled as former attorney for the petitioner, and that said amount shall be charged against the balance of counsel fees due to the attorneys for the estate”. The order made no other direction or provision with respect to DTsernia fee, but did permit partial distributions to defendant Keeffe’s law firm and to Thomas Gracie. Within a few days after the order settlement checks totaling $120,000 payable jointly to Gracie as administrator and defendant’s law firm were received, indorsed and deposited in the firm’s attorney’s account.

A final decree was not entered in the Surrogate’s Court until December, 1978. In the intervening period defendant Keeffe had made part of the distribution to Thomas Gracie provided for in the intermediate order but no payment at all to DTsernia. The firm’s attorney’s account in which the $120,-000 settlement proceeds had been deposited was, however, during that period depleted. Defendant claimed to have received authorization from Thomas Gracie to invest the remainder of the amount distributable to him in debentures of a real estate project in which defendant was a principal. With respect to the $2,500 fee due DTsernia, defendant contended that the claim of another law firm, predecessor of DTsernia, the absence of authorization by Gracie, and the absence of a final decree in the estate proceeding were the reasons why payment had not been made. Payment was in fact made to DTsernia when the final decree was entered, which was, however, after return of the indictment of defendant in this proceeding.

The indictment charged defendant with three counts of grand larceny in the second degree in stealing $46,500 from the estate, in stealing $16,500 from Thomas Gracie and in stealing $2,500 from Alfred DTsernia. The jury convicted defendant of the third count but acquitted him of the first two counts. The Appellate Division affirmed, without opinion. The appeal is before us by leave of a Justice of the Appellate Division.

Larceny is committed when one wrongfully takes or withholds "property from an owner thereof’ with intent to deprive the owner of it or appropriate it to himself (Penal Law, § 155.05, subd 1), or with such intent takes or withholds another’s property by "common law larceny by trespassory taking” (subd 2). "Property” means "money * * * thing in action * * * or any article, substance or thing of value” (Penal Law, § 155.00, subd 1) and an "owner” is defined by subdivision 5 of that section as a "person who has a right to possession thereof superior to that of the taker * * * or withholder.” While the statute itself does not require proof that the defendant intended to deprive the specific true "owner” of his property, but rather requires proof only of the fact that the defendant intended to deprive "another”, the People in this case explicitly limited their claim on the third count to the concept that defendant stole specifically from D’lsernia. By reason of the order of April 7, 1975, it was claimed, $2,500 of the money held in defendant’s attorney’s account became the "property” of D’lsernia and D’lsernia became the "owner” of that $2,500 within the meaning of the foregoing statutes. Nothing in the order or in statute, rule or decision sustains that concept.

An understanding of the effect of the order of April 7, 1975 requires review of the rights and obligations of an attorney with respect to fees and to money held in so-called "special” accounts. With but two exceptions the rendition of services by an attorney gives rise to nothing more than a contract claim, express or implied, by the attorney against his client. The two exceptions are the attorney’s retaining and charging liens. The first entitles the attorney to retain all papers, securities or money belonging to the client which come into his possession in the course of his professional employment until the amount of his fee is fixed by agreement or by litigation and is paid (Matter of Cooper [McCauley], 291 NY 255; Matter of Heinsheimer, 214 NY 361; Matter of Desmond v Socha, 38 AD2d 22, affd 31 NY2d 687; see 3 NY Jur 545, Attorney & Client, §§ 128-130). While it is possessory it has no bearing on this case because DTsernia never had possession of the proceeds of the action and in any event never asserted such a lien. The second entitled the attorney at common law to a lien upon the judgment only, but has been expanded by statute to give a lien upon the client’s cause of action from the commencement of the action (or if a proper notice is served, prior to such commencement), which attaches to the judgment and the proceeds of the judgment and cannot be affected by settlement between the parties (Judiciary Law, §§ 475, 475-a; Matter of City of New York [USA-Coblentz], 5 NY2d 300, 307, cert den 363 US 841; Fischer-Hansen v Brooklyn Hgts. R. R. Co., 173 NY 492; Goodrich v McDonald, 112 NY 157; see 3 NY Jur 556, Attorney & Client, § 135).

When by the retainer agreement the client expressly assigns a portion of the cause of action proceeds to his attorney the attorney acquires at the time the agreement is signed a vested property interest which cannot subsequently be disturbed by the client or anyone claiming through or against the client (Matter of City of New York [USA-Coblentz], supra, at pp 307-308). Absent express language of assignment, however, the attorney has no ownership or immediate right to possession (cf. Matter of Herlihy, 274 App Div 342) and must obtain enforcement of his lien by appropriate order of the court in which the action is pending (Hovey v Elliott, 118 NY 124; Judiciary Law, § 475 ["The court upon the petition of the client or attorney may determine and enforce the lien”]). Such an enforcement order may direct that the lien be satisfied out of money or property to which the lien attaches even though it is not in the possession or control of the attorney (Matter of Cooper [McCauley], supra, at p 260; Goodrich v McDonald, supra, at pp 163-166).

An attorney’s charging lien may be lost if he voluntarily withdraws or is discharged for misconduct, among other ways (Matter of Dunn, 205 NY 398, 401; Fischer-Hansen v Brooklyn Hgts. R. R. Co., supra, at p 502; 3 NY Jur 587, 588, Attorney & Client, §§ 157, 158). Generally, however, if an attorney is discharged without cause he will be allowed a charging lien upon the proceeds of the lawsuit, the amount to be determined on a quantum meruit basis at the conclusion of the case (Matter of Shaad, 59 AD2d 1061; Reubenbaum v B. & H. Express, 6 AD2d 47), and his fees will be made a charge included within the fees to which the incoming attorney will be entitled (Reubenbaum v B. & H. Express, supra, at p 50).

In the instant case, however, there is no evidence that the DTsernia retainer agreement contained language of express assignment which would have given him a property interest in the action. The order of substitution, moreover, did not allow him a charging lien. Rather it expressly referred the questions of DTsernia’s right to both a fee and a lien to the Trial Justice, taking that course presumably because of the claim of malpractice on DTsernia’s part. The order of April 7, 1975, however, while it determined that DTsernia was "entitled as former attorney for petitioner” to a fee of $2,500, directed that that amount be charged against the counsel fees due defendant’s firm, and authorized the administrator to withdraw and pay that amount to DTsernia, contained neither any determination of DTsernia’s right to a lien nor any direction for enforcement by DTsernia of his right to the money, although DTsernia was a party to the proceeding and the order recites that it was made on consent. While there can be a larcenous taking from a lienor who has the object of his lien in his possession (People ex rel. Travis v Sheriff of Cortland County, 275 App Div 444; cf. Hovey v Elliott, 118 NY 124, 134, supra, but compare id., at p 139, 143), here DTsernia never had possession of the settlement proceeds and his right to a charging lien put in issue by the malpractice action and in the substitution proceeding has never been adjudicated to have continued after the substitution. It follows that all that he had, and all that the April 7, 1975 order adjudged him to have, was a contract right to recover a fee, not any "property” or "owner” interest superior to that of defendant in the proceeds of settlement of the malpractice action (cf. Matter of Dunn, 205 NY 398, supra; see 3 NY Jur 399, Attorney & Client, § 14). The People’s argument, which the dissent accepts, that DTsernia was the owner of the money rather than a creditor of Keefie’s is wide of the mark. The owner of the money was not Keeffe and not DTsernia, but was Thomas Gracie as administrator, subject to Gracie’s obligation to pay for the services of each. The order of April 7, 1975 did no more than authorize Gracie to pay DTsernia, without specifying any particular time for payment. Defendant could, perhaps, have been properly charged with having stolen the $2,500 referred to in the third count from Gracie, but the order in question did not give D’Isernia "property” or make him "owner” of the $2,500 within the meaning of the Penal Law.

Nor, contrary to the theory of the Trial Judge, does the fact that the proceeds of the settlement had been deposited in defendant’s attorney’s account make them "trust” funds and as such a subject larcenous taking (cf. People v Yannett, 49 NY2d 296). The Rules of the First, Second and Fourth Departments require that attorneys practicing in those departments not commingle clients’ funds and deposit them in a separate special account (22 NYCRR 603.15, 691.12, 1022.5) and the First and Second Department Rules also require that the proceeds of settlement of a personal injury or wrongful death action be deposited in such an account (22 NYCRR 603.7 [d] [1], 691.20 [d] [1]). Nothing in those rules, however, establishes a trust interest in those funds in anyone other than the client.

The only other pertinent regulation is the Code of Professional Responsibility which in Disciplinary Rule 9-102 mandates that "All funds of clients paid to a lawyer or law firm * * * shall be deposited in one or more identifiable bank accounts” and that the attorney shall "Promptly pay or deliver to the client as requested by a client the funds * * * in the possession of the lawyer which the client is entitled to receive.” Those provisions have been applied many times to discipline an attorney who draws upon his special account to such extent that its balance is reduced to less than his clients’ interest in it (Matter of Iversen, 51 AD2d 422; see, also, Matter of Roberts, 68 AD2d 320; Matter of Daly, 67 AD2d 354; Matter of Prospero, 62 AD2d 490; Matter of La Cava, 53 AD2d 204). It is not, however, violated by the failure to pay money to a third person to whom the client is obligated (Matter of Kelly, 23 NY2d 368, 382). In the Kelly case, the attorney settled a negligence action and furnished a closing statement showing a deduction of $150 for a medical bill, which, however, was never paid. There was no evidence of an assignment by the client to the doctor, nor did the doctor hold any lien for the payment of his bill. We reversed the Appellate Division’s order confirming the referee’s report that failure to pay the medical bill constituted misconduct and dismissed the specification. Here, as in Kelly, there is, as already noted, no evidence of any assignment to D’lsernia and the charging lien to which he was originally entitled, called into question upon substitution because of his claimed malpractice, has never been adjudicated in his favor.

Many reasons can be articulated for not escalating the failure to meet a contractual obligation into a criminal offense. Not the least of these is the question of when payment is due under an order such as that of the Surrogate’s Court in this case which authorized but did not direct payment and included no specific provision with respect to the time of payment. If acts of that type are to constitute criminal offenses, it should be through adoption by the Legislature of a specific statute such as section 79-a of the Lien Law, or section 223.8 of the Model Penal Code, or under existing Penal Law provisions after the clearly stated duty in relation to payments to third persons suggested in the proposed Model Rules of Professional Conduct. On the facts of this case, defendant’s depletion of his attorney’s account without paying DTsernia’s $2,500 therefrom did not constitute larceny from D’lsernia. Since that was the theory on which the People proceeded defendant’s motion for dismissal of the third count should have been granted.

For the foregoing reasons, the order of the Appellate Division should be reversed and the third count of the indictment dismissed.

Jasen, J.

(dissenting in part). I cannot accept the majority’s holding today that an attorney who has been entrusted with funds which he knows do not belong to him cannot be held to have committed a larceny when, in violation of a court order, he appropriates such funds to his personal use. Nor do I accept the legal premise upon which the majority bases its decision — that Alfred D’lsernia was not the "owner” of the misappropriated funds within the meaning of subdivision 5 of section 155.00 of the Penal Law, merely because he failed to establish a specific lien upon them.

On April 7, 1975, an order was entered in Surrogate’s Court, Queens County, amending the limited letters of administration of Thomas Gracie, administrator of the estate of Frieda Gracie, allowing him to compromise an action for medical malpractice. The order also provided that "the administrator be permitted to withdraw [from estate funds] and pay out the amount of $2,500 to Alfred L. DTsernia, Esq. representing the fee to which he is entitled as former attorney for the petitioner”. The funds thus withdrawn from the estate eventually fell into the hands of defendant Keeffe, Gracie’s attorney. These funds were withdrawn from the estate and turned over to defendant for one reason and one reason only — to pay them to Alfred DTsernia. As is indisputably clear from the plain language of the court’s order, the moneys withdrawn were not the property of either Gracie or Keeffe. The court merely allowed Gracie, and through him Keeffe, to obtain temporary custody of the fee to which DTsernia, in the words of the court, "is entitled”. Indeed, one can only wonder what clearer language the court could have used to express its intention that these funds, once withdrawn from the estate, should become the property of Alfred DTsernia.

Moreover, this property was not a mere debt owed to DTsernia; it was a specific fund of money which the court decreed belonged to DTsernia and directed payment to him. Thus, this is not a case such as People v Yannett (49 NY2d 296) where merely an inchoate debt was owed. Instead, it involves the larcenous taking of identifiable property, misappropriated by an attorney who had been directed by the court to pay DTsernia $2,500 from the amount authorized to be withdrawn from estate funds.

Had Keeffe merely retained this money in a "special account”, segregating it from funds available for his personal use, perhaps his argument that he merely "delayed” payment would have some validity. It is undisputed, however, that he did not so segregate these funds. He simply took DTsernia’s fee, which he knew did not belong to him, and used it for his own purposes. This is larceny, and has been long recognized as such by the courts of this State. (Cf. Justices of Ct. of Special Sessions of County of N. Y. v People ex rel. Henderson, 90 NY 12.)

The plain language of the present Penal Law also supports this analysis. Subdivision 1 of section 155.05 of the Penal Law defines larceny as follows: "A person steals property and commits larceny when, with intent to deprive another of property or to appropriate the same to himself or to a third person, he wrongfully takes, obtains or withholds such property from an owner thereof.” The term "owner” is defined in subdivision 5 of section 155.00 of the Penal Law as a "person who has a right to possession * * * superior to that of the taker, obtainer or withholder.” It seems clear that the April 7, 1975 order of the Surrogate’s Court gave DTsernia "a right to possession superior to that of the taker”, Keeffe. This being so, Keeffe’s appropriation of D’lsernia’s fee, for his own personal use, without the permission of either DTsernia or the Surrogate’s Court was a larceny.

Nor does the mere fact that the Legislature failed to adopt a provision of the Model Penal Code which might have more specifically proscribed the instant offense (Model Penal Code, § 223.8) require a holding that defendant’s conduct was not larceny under current law. That provision was intended by the drafters to reach "a class of cases with which the courts have had difficulty because they seem to involve only breach of contract rather than misappropriation of identifiable property belonging to the victim.” (Model Penal Code, § 206.4 [later renumbered § 223.8], Comment, p 80 [Tent Draft No. 2]; emphasis added.) Thus, the Legislature’s failure to enact this provision can have no bearing upon a case such as this where moneys from an identifiable fund of property, belonging to the victim, were misappropriated.

While I disagree with the majority’s holding that defendant, as a matter of law, has committed no larceny, I perceive other errors in the proceedings below which would require reversal. However, these errors would not mandate dismissal of the indictment but would only entitle defendant to a new trial. In light of the majority’s disposition of the case, a discussion of these issues would serve no purpose.

Chief Judge Cooke and Judges Gabrielli, Jones, Wachtler and Fuchsberg concur with Judge Meyer; Judge Jasen dissents in part and votes to reverse and order a new trial in a separate opinion.

Order reversed, etc.

      .  The People’s brief refers to "orders” of April 7, 1975 and May 10, 1975. No order of May 10 appears in the record forwarded by the county clerk to this court. Apparently the reference is to the decision of May 14, 1975 on which no order or decree other than the 1978 final decree was ever entered. It is hornbook law that until its directions are embodied in an order or decree a decision has no legal significance (CPLR 5512; 10 Carmody-Wait 2d, NY Prac, p 281, § 70.12).

      . The dissent is in error in its characterization of the April 7, 1975 order for the reasons outlined in the text. It is in error also in stating that "funds were withdrawn from the estate and turned over to defendant * * * to pay them to Alfred DTsernia” for the settlement funds went directly into the Keeffe law firm’s attorney’s account.

      . The American Bar Association has proposed that the Code of Professional Responsibility be replaced by Model Rules of Professional Conduct. Rule 1.12 of the Model Rules requires that property of clients or third persons in a lawyer’s possession be held in trust. Of interest also are section 223.8 of the Model Penal Code, entitled "Theft by Failure to Make Required Disposition of Funds Received”, not adopted when the New York Penal Code was revised, which makes the failure to pay a known legal obligation subject to payment of which property has been received, theft, and section 79-a of the Lien Law which expressly makes the misapplication of funds received for the payment of contractor’s claims "larceny and punishable as provided in the penal law”.


author: Jasen, J.

text:
    The People of the State of New York, Appellant, v Bernard Kanefsky, Respondent.
    Argued March 26, 1980;
    decided May 1, 1980

      POINTS OF COUNSEL

      Robert M. Morgenthau, District Attorney (James D. Veach and Jerrold L. Neugarten of counsel), for appellant.
    I. Kanefsky’s guilt was established beyond a reasonable doubt. II. Roberto’s pocket appointment book was not a "memorandum” and did not come within the terms of defendant’s subpoena. Nor was the book a "statement” by Roberto which constituted Rosario material. Even if the book were Rosario material, and it clearly was not, the book could not have been used to attack Roberto’s credibility and its use would have been cumulative. (People v Doe, 39 AD2d 869; People v Miles, 23 NY2d 527, 395 US 948; People v Lynch, 23 NY2d 262; People v Consolazio, 40 NY2d 446; People v Kuss, 32 NY2d 436, 415 US 913; People v Agron, 10 NY2d 130, 368 US 922; People v Zanotti, 30 NY2d 926; People v Ballott, 20 NY2d 600; People v Beal, 57 AD2d 306; People v Rodriguez, 63 AD2d 580, 45 NY2d 844.)

      Richard G. Handler for respondent.
    I. The trial court erred in its refusal to set aside the verdict of the jury upon the ground that the People had failed to provide defendant-respondent with Rosario material and Brady material. (Brady v Maryland, 373 US 83; People v Simmons, 36 NY2d 126; People v Rosario, 9 NY2d 286, 908; People v Di Matteo, 80 Misc 2d 1029; People v Cocolicchio, 40 Misc 2d 1013; People v Horton, 19 AD2d 80; People v Consolazio, 40 NY2d 446; People v Bennett, 75 Misc 2d 1040; People v Paige, 48 AD2d 6; People v Zabrocky, 26 NY2d 530.) II. The People failed in their responsibility to prove a "chain of custody” with reference to the tape-recording exhibits. (People v Goldfeld, 60 AD2d 1; People v Connelly, 35 NY2d 171; People v Nicoletti, 34 NY2d 249; People v Bennett, 47 AD2d 322; People v Blanda, 80 Misc 2d 79; People v Lombardo, 56 AD2d 534, 41 NY2d 1014.) III. The court erred in its refusal to grant various requests of defendant-respondent to charge. IV. The proof adduced against defendant-respondent was insufficient to sustain a judgment of conviction. The witness Peter Roberto was an accomplice whose testimony required corroboration.
   OPINION OF THE COURT

Jasen, J.

Defendant Bernard Kanefsky was convicted, after a jury trial, of one count of receiving unlawful gratuities. (Penal Law, § 200.35.) After rendition of the verdict, defendant moved, pursuant to CPL 330.30 (subd 1), to set aside such verdict, arguing, inter alia, that a small pocket appointment book kept by one Roberto, an individual co-operating with law enforcement officials, was improperly withheld from him and should have been produced in response to a subpoena duces tecum. The only significant issue presented to us is whether this claimed impropriety mandates reversal of defendant’s conviction.

The facts relevant to this appeal are as follows: On October 24, 1973, Peter Roberto paid an undercover police officer posing as a New York City building inspector $100 to obtain a certificate of occupancy for a building being renovated by his employer. Confronted with his participation in this illegal activity, Roberto agreed to act as a confidential agent for the New York City Department of Investigation in the latter’s attempt to ferret out corruption within the Department of Buildings. Roberto continued to act as an "expediter” for his contractor-employer and carried out his customary duties while participating in the investigation.

Roberto’s employer did a substantial amount of work in the Department of Buildings District Two, an area of southeastern Manhattan to which defendant was assigned as a building inspector. The four-count indictment alleges that defendant received bribes on November 8, 1973, December 7, 1973 and March 1, 1974, and also received an unlawful gratuity on January 23, 1974. After a trial at which evidence was adduced demonstrating defendant’s participation in the aforesaid acts, defendant was convicted only of receiving an unlawful gratuity.

Defendant’s conviction on this lone count rested primarily upon the testimony of Roberto, who was an undercover agent of the Department of Investigation throughout the period charged in the indictment. He recounted his meeting with defendant on January 23, 1974, in the fifth floor cafeteria at 10 Hanover Square, at which time they discussed building plans and past payments made by him to defendant. Roberto stated that he offered defendant a $20 "Christmas present” at this meeting which was, in fact, accepted.

Roberto’s testimony was buttressed by a tape recording of portions of his conversation with defendant. In addition, Detective William Paulos testified that Roberto was searched and issued $30 in recorded money before he met with defendant, and that a search of Roberto immediately subsequent to this meeting uncovered only $10.

To aid in preparation of his defense, defendant served a subpoena duces tecum upon the Department of Investigation calling for the production of numerous documents. Paragraph 32 thereof requested "[a]ny memoranda made by Peter Roberto and submitted to the Department of Investigations of the City of New York * * * dealing with alleged payoffs made by Peter Roberto to various employees of the City of New York, including Bernard Kanefsky, which payments are said to have been made prior to October 23, 1973.” Commissioner Stanley Lupkin of the Department of Investigation appeared before the court on November 24, 1976, and produced, in accordance with the subpoena, the following materials: a copy of a nine-page memorandum submitted by Roberto on November 22, 1973, setting forth his dealings with members of the building department and other city officials; nine separate reports prepared by Department of Investigation detectives concerning their observations of Roberto’s contacts with defendant from November, 1973 through May, 1974; a list prepared by Roberto from the files of his employer entitled "Christmas Special”; five pages of "recap” notes prepared by one of the attorneys working on the investigation summarizing the evidence in defendant’s case; an accounting breakdown of moneys paid by the Department of Investigation to Roberto; and notes used to prepare transcripts of the tape recordings between Roberto and defendant. In addition, the People produced Roberto’s Grand Jury testimony, three pages of notes taken by the trial assistant during his interviews with Roberto, one page of Roberto’s personal notes, and the transcripts of the tape recordings introduced at trial which contained some notations made by Roberto.

After defendant’s conviction and in the course of another criminal proceeding of similar nature, it became apparent that Roberto kept a listing of some of his contacts in a pocket appointment book, characterized by defendant as a "diary”. Armed with this revelation, defendant moved to set aside the verdict for failure to produce the book.

At a hearing on the motion, the trial court made an independent examination of the book and found that it had not been turned over to defendant. The court denied the motion, observing that "the diary with respect to the count on which the defendant was in fact convicted had no materiality whatsoever because the diary had been turned over to the authorities” before the commission of the crime of which defendant was convicted.

On appeal, a divided Appellate Division reversed, holding that "[fjailure to turn over possible * * * Rosario material cannot be excused on the ground that the material would have been of limited use to the defense.” (64 AD2d, at p 403.) The People were granted leave to appeal to this court by a Justice of the Appellate Division. There should be a reversal.

At the outset, we would note that for purposes of our analysis, it is unnecessary to decide whether the diary is within the scope of the subpoena duces tecum, or whether it falls within the embrace of the rule articulated in People v Rosario (9 NY2d 286, supra), to wit: that a defendant in a criminal proceeding has the right to examine a prosecution witness’ prior statements, which relate to the witness’ testimony, for impeachment purposes. The issue for our resolution is not whether the appointment book should have been turned over to the defendant before or during trial, but, rather, whether this alleged failure requires reversal of defendant’s conviction. In light of the fact that defendant’s conviction is predicated upon a criminal transaction to which the diary has no bearing, we now hold that the failure to produce the diary did not require reversal.

It is conceded that the diary was turned over by Roberto to law enforcement officials on January 10, 1974, whereas the only crime defendant was convicted of committing occurred on January 24, 1974. Thus, it is readily apparent that the sparse notations contained in the diary prior to January 10, 1974, could have no bearing upon defendant’s conviction of illegal conduct on January 24, 1974. Even if this court were to order a new trial with respect to the lone count of receiving an unlawful gratuity, the production of the appointment book would not assist defendant, for its contents would be wholly irrelevant to the subject matter of the new trial. (Cf. People v Johnson, 47 NY2d 785.)

While not directly relevant to this issue, we cannot ignore the wealth of material which was produced by the prosecution and the Department of Investigation in accordance with the subpoena duces tecum. The description of such documents contained in the record reveals that they included information which was expressed in greater detail and encompassed a wider scope than the meager entries embodied in Roberto’s pocket diary, which contained no reference to defendant and only a few of Roberto’s many contacts during the year 1973.

In sum, reversal was simply not required in light of the fact that the diary is irrelevant to the crime of which defendant was convicted.

Accordingly, the order of the Appellate Division should be reversed and the case remitted to that court for determination of the facts. (CPL 470.40, subd 2, par [b]; 470.25, subd 2, par [d].)

Chief Judge Cooke and Judges Gabrielli and Meyer concur with Judge Jasen; Judges Jones, Wachtler and Fuchsberg dissent and vote to affirm for reasons stated in the opinion by Mr. Justice Theodore R. Kupferman at the Appellate Division (64 AD2d 401).

Order reversed and case remitted to the Appellate Division, First Department, for further proceedings in accordance with the opinion herein.

        (People v Rosario, 9 NY2d 286, mot for rearg den 9 NY2d 908, cert den 368 US 866, mot for rearg den 14 NY2d 876, mot for rearg den 15 NY2d 765.)


text:
    The People of the State of New York, Appellant, v Paul Cullen, Respondent.
    Argued March 27, 1980;
    decided May 6, 1980

      POINTS OF COUNSEL

      Denis Dillon, District Attorney (Anthony J. Girese and. William C. Donnino of counsel), for appellant.
    I. Venue was properly laid in Nassau County. (People v Tullo, 34 NY2d 712; People v Hetenyi, 304 NY 80; People v Johnson, 38 NY2d 956; Matter of Steingut v Gold, 42 NY2d 311; People v Lam Lek Chong, 45 NY2d 64; People v Moore, 46 NY2d 1; People v Hopkins, 95 Misc 2d 716; People v Fea, 47 NY2d 70; People v King, 61 AD2d 1035.)

      Michael J. Obus and Matthew Muraskin for respondent.
    I. Nassau County lacked geographical jurisdiction. (People v Tullo, 34 NY2d 712; People v Reisman, 29 NY2d 278; People v Sierra, 45 NY2d 56; Matter of Murtagh v Liebowitz, 303 NY 311; People v King, 61 AD2d 1035; People v Kiser, 63 AD2d 707; People v Quitsch, 64 AD2d 917; People v Moore, 46 NY2d 1; People v Hopkins, 95 Misc 2d 716; People v Piazza, 48 NY2d 151.) II. Should the exercise of jurisdiction by the Nassau County Court be upheld, respondent’s conviction still cannot stand since a confession taken in violation of his right to counsel was improperly admitted into evidence. (People v Samuels, 49 NY2d 218; People v Arthur, 22 NY2d 325; People v Ermo, 47 NY2d 863; People v Dean, 47 NY2d 967; People v Jones, 47 NY2d 528.) III. If respondent’s conviction is upheld, there must be a remand to the Nassau County Court for reconsideration of sentence. (People v Carlos S., 40 NY2d 991.)
   OPINION OF THE COURT

Jasen, J.

The issue presented on this appeal is whether there is evidence in the record to support the jury’s finding that Nassau County had geographical jurisdiction of the offense of which defendant was convicted.

Defendant, Paul Cullen, agreed to assist a confidential informant in obtaining a substantial quantity of peyote, a controlled substance. On February 9, 1976, the confidential informant telephoned defendant and arranged the sale which formed the basis of the instant criminal charges. Thereafter, the informant and an undercover police officer drove to defendant’s home in Nassau County, picked up defendant and then proceeded, in the officer’s car, to New York County where the actual sale was to occur. Upon arrival in New York County, the officer gave defendant $120, the agreed purchase price of the drugs. The officer and the informant then waited in the officer’s car while defendant went to an undisclosed location to make the purchase. Defendant returned with the drugs a short time later and gave them to the officer. The three men then returned to Nassau County.

On April 13, 1976, defendant was indicted by a Nassau County Grand Jury and charged with criminal sale of a controlled substance in the second degree (Penal Law, § 220.41), criminal possession of a controlled substance in the second degree (Penal Law, § 220.18) and criminal possession of a controlled substance in the third degree (Penal Law, § 220.16). Prior to trial, defendant moved to dismiss the indictment upon the ground that the Nassau County Court lacked geographical jurisdiction of the offenses charged. This motion was denied. At the close of the People’s case and again at the close of all the evidence, the defendant renewed his motion to dismiss. Each time the trial court denied the motion, ruling that it was for the jury to determine whether facts sufficient to support jurisdiction in Nassau County had been demonstrated.

Thereafter, the trial court charged the jury, without objection, that Nassau County would have jurisdiction of the offenses charged if the jury found either: (1) that defendant had formed an intent to sell or possess drugs in Nassau County such that this element of the crimes or an attempt to commit the crimes could be found to have occurred there; or (2) that the offense occurred in a private vehicle during a trip extending through more than one county.

The jury found the defendant not guilty of the crimes of criminal sale of a controlled substance in the second degree and criminal possession of a controlled substance in the third degree and guilty of criminal possession of a controlled substance in the second degree.

On appeal, the Appellate Division, Second Department, reversed defendant’s conviction and dismissed the indictment, ruling that the fact that the sale occurred in New York County precluded, as a matter of law, any finding that Nassau County had jurisdiction of the offense of possession of a controlled substance in the second degree. There should be a reversal.

The judgment of conviction can be reversed as a matter of law only if there is no evidence in the record upon which the jury could have found jurisdiction. In this case, there is such evidence. Therefore, defendant’s motion to dismiss was properly denied.

At trial, the confidential informant testified that during the return trip from New York County to Nassau County, the paper bag which contained the illegal drugs was passed around inside the car and that defendant at one point actually had possession of the drugs. On the basis of this testimony, the jury could easily have found that the offense of possession occurred in a private vehicle during a trip extending through more than one county. This being so, the Appellate Division erred in holding, as a matter of law, that the jury could not have found that Nassau County had jurisdiction of the offense of possession. Since defendant did not object to the trial court’s charge on the issue of jurisdiction, this charge, although erroneous, has become the law of the case. And, on the basis of that charge, the jury could also have found that the defendant formed the culpable mental state which is the element of the crime of possession in Nassau County.

Inasmuch as the Appellate Division predicated its decision on the law, it is apparent that the court did not exercise its broad power to review questions of fact. (See CPL 470.15, subd 1.) Accordingly, the case must be remitted to the Appellate Division for a determination of whether the jury’s implicit finding, in accordance with the Trial Judge’s instruction, that Nassau County had jurisdiction of the offense of possession, is against the weight of the evidence. If the court determines that the jury’s finding of jurisdiction was, in fact, against the weight of the evidence, then dismissal of the indictment would be proper. (CPL 470.20, subd 5.)

In the event, however, that the court finds that the jury’s implicit finding of jurisdiction is not against the weight of the evidence, the defendant would be entitled to a new trial. Defendant was arrested pursuant to an arrest warrant. Although he was advised of his constitutional rights at police headquarters and purportedly waived them, defendant was not provided with counsel during the interrogation when he admitted that "he sold two pounds [of peyote] to Nick and Mike down at the village.” As our recent decision in People v Samuels (49 NY2d 218) indicates, a defendant cannot waive his rights in the absence of counsel after being arrested pursuant to an arrest warrant. We also held in the Samuels case that this infringement of a defendant’s right to counsel may be raised for the first time on appeal. (Id., at p 221; see, also, People v Ermo, 47 NY2d 863.) Thus, even if jurisdiction is sustained on the facts upon remittal, defendant is entitled to a new trial at which his admissions to the police must be suppressed.

Should a new trial be necessary, two deficiencies in the trial court’s original charge should also be corrected. The trial court charged the jury that Nassau County would have jurisdiction of the crimes charged if the jury found that the offenses occurred in a private vehicle during a trip through more than one county. In doing so, the trial court simply read the provisions of CPL 20.40 (subd 4, par [g]) to the jury. This was error. In People v Moore (46 NY2d 1), this court held that CPL 20.40 (subd 4, par [g]) was intended to apply only in those instances where the county in which the crime occurred is unknown. Thus, while the statute might apply to the instant case, it may be so applied only if the jury is instructed in accordance with our decision in Moore. We note also that before the People are entitled to the benefit of such a charge, the prosecutor must, in good faith, elicit all facts tending to show the exact location where the crime was committed. If, after such an effort, it cannot be determined whether the crime of possession occurred in New York County or Nassau County, then a properly instructed jury may find that either county has jurisdiction of the offense.

The trial court, relying upon CPL 20.40 (subd 1, par [a]), also charged the jury that Nassau County would have jurisdiction of the offenses charged if it were shown that the element of intent to possess or to sell the controlled substance had been formed by defendant in Nassau County. Inasmuch as any retrial would be limited to the crime of possession of a controlled substance in the second degree, such a charge would be inappropriate. Section 220.18 of the Penal Law states that a person who "knowingly and unlawfully” possesses a controlled substance commits the crime of criminal possession of a controlled substance in the second degree. In our view, the statute requires that "knowledge” and "possession” occur at the same time. The separate element of knowledge cannot occur before possession occurs. Thus, we do not believe that CPL 20.40 (subd 1, par [a]) can supply a jurisdictional predicate for the crime of criminal possession of a controlled substance upon the theory that "knowledge” occurred in one county and "possession” in another.

Accordingly, the order appealed from should be reversed, the indictment reinstated, and the case remitted to the Appellate Division, Second Department, for further proceedings in accordance with this opinion.

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

Order reversed, etc.


author: Gabrielli, J.

text:
    Jose De Leon, an Infant, by Paula Quinones, His Mother, et al., Appellants, v New York City Transit Authority, Respondent.
    Argued March 21, 1980;
    decided April 29, 1980

      POINTS OF COUNSEL

      Albert A. Juron for appellants.
    I. Section 83 of the Railroad Law does not apply to subway trains. (Trudell v New York R. T. Corp., 281 NY 82.) II. Section 83 of the Railroad Law may not be applied unless there is clear evidence of printed regulations posted up at the time in a conspicuous place inside of the passenger car. (Meagher v Long Is. R. R. Co., 27 NY2d 39; Kuttell v Erie R. R. Co., 225 NY 727; Buel v New York Cent. R. R. Co., 31 NY 314.)

      John A. Murray and Helen R. Cassidy for respondent.
    The jury was properly charged that section 83 of the Railroad Law, may have some application to the question of plaintiffs contributory negligence. In any event, any error, if there be one, was technical and not prejudicial. (Meagher v Long Is. R. R. Co., 27 NY2d 39; Sindle v New York City Tr. Auth., 33 NY2d 293; Trudell v New York R. T. Corp., 281 NY 82; Simons v Brooklyn Hgts. R. R. Co., 142 App Div 36; Werle v Long Is. R. R. Co., 98 NY 650; Matter of Kornblum Metals Co. v Intsel Corp., 38 NY2d 376; Bunt v New York Cent. R. R. Co., 281 NY 756; Zobel v City of New York, 275 App Div 722, 300 NY 490; McGoey v City of New York, 304 NY 584; Kumkumian v City of New York, 305 NY 167; Lederman v New York City Tr. Auth., 36 Misc 2d 571, 21 AD2d 751, 14 NY2d 488.)
   OPINION OF THE COURT

Gabrielli, J.

On August 17, 1970, the infant plaintiff, Jose De Leon, was seriously injured when he slipped and fell between two moving subway cars while riding on a train operated by defendant, the New York City Transit Authority. Alleging that the accident had been caused by defendant’s negligence in operating the subway train, Jose’s mother subsequently brought an action against the Transit Authority on behalf of herself and the infant plaintiff. At trial, the Transit Authority sought to take advantage of the immunity from tort liability conferred by section 83 of the Railroad Law which provides, in pertinent part, that "[n]o railroad corporation shall be liable for any injury to any passenger while on the platform of a car * * * in violation of the printed regulations of the corporation, posted up at the time in a conspicuous place inside the passenger cars, then in the train, if there shall be at the time sufficient room for the proper accommodation of the passenger inside such passenger cars”. The sole question presented upon this appeal is whether the facts adduced at trial were sufficient to warrant application of this statutory defense.

During the trial, the Transit Authority called various witnesses in an effort to demonstrate that the infant plaintiff, who was seven years old at the time of the accident, had either been standing on the platform which separated the cars or had been running between the cars in violation of subway regulations when he slipped and fell. Plaintiff, on the other hand, introduced contrary evidence tending to show that he had been asleep well inside the subway car when the train lurched forward, propelling him through the open car door and onto the unguarded outer platform from which he fell.

After all of the evidence for both sides had been presented, the Trial Judge informed the parties that he intended to leave to the jury the determination whether defendant Transit Authority should be exonerated from liability pursuant to section 83 of the Railroad Law. Plaintiff’s counsel promptly objected, contending that defendant Transit Authority had failed to elicit facts sufficient to substantiate every element of the statutory defense. Specifically, plaintiff’s counsel argued that the Transit Authority had failed to introduce any proof that the subway regulation prohibiting standing or running between cars had been conspicuously posted, as required, inside the passenger cars of the train in which plaintiff was riding at the time the accident occurred. Because of this defect in the Transit Authority’s proof, plaintiff argued, the Transit Authority was not entitled to have the jury consider whether section 83 of the Railroad Law should be applied to bar plaintiff’s claim.

The Trial Judge rejected these contentions, however, reasoning that the adequacy of defendant’s proof concerning its section 83 claim was a question of fact that rested solely within the province of the jury. Accordingly, over counsel’s objections, the Trial Judge instructed the jury that it should exonerate the Transit Authority of all liability for plaintiffs injuries if it found that the subway regulation prohibiting riding between cars was conspicuously posted in the car in which plaintiff was riding and if it further found that plaintiff had been acting in violation of the regulation at the time the accident occurred. Ultimately, the jury returned a verdict in favor of defendant.

For the reasons discussed below, we conclude that the verdict must be set aside and a new trial granted. Section 83 of the Railroad Law provides a complete defense to a claim of liability directed against a railroad corporation (see Carpino v Baker, 66 AD2d 201). In order to be eligible to take advantage of this defense, however, the defendant railroad corporation must introduce some evidence tending to substantiate each of the elements set forth in the statute, including the requirement that notice of the regulation in question be conspicuously posted (Trudell v New York R. T. Corp., 281 NY 82). In the present case, no such proof was offered on behalf of defendant Transit Authority at trial. The only evidence in the record on this point came from the witness Edwin Weidman, who was the assistant general superintendent for defendant corporation at the time of the trial. Mr. Weidman, who was not employed by the Transit Authority at the time of the accident, was unable to state from personal knowledge whether the passenger car in which plaintiff had been riding contained a conspicuously posted notice prohibiting riding between cars. In fact, Mr. Weidman was able to state only that it was the current practice of the Transit Authority to post such notices on its subway cars. His testimony was thus irrelevant to the central question whether the requisite notices had been posted on Transit Authority trains at the time the infant plaintiff sustained his injuries.

In the absence of any other evidence tending to show that the required notices were posted, the Trial Judge’s decision to permit the jury to consider defendant’s claim of immunity under section 83 must be regarded as error. Moreover, contrary to defendant Transit Authority’s assertions, the error cannot be considered harmless solely because there were other grounds, apart from section 83, which would have justified the jury’s verdict. To be sure, the trial court properly advised the jury that it should exonerate defendant if it found that the infant plaintiff had been contributorily negligent or had "assumed the risk” of an accident as a consequence of his own carelessness. And the court further instructed the jury, without objection by plaintiff, that it could consider a subway regulation which forbade riding "outside * * * of any subway car” (21 NYCRR 1051.10 [c]) in determining whether through carelessness plaintiff had contributed to his own injury. A breach of this regulation, according to the Trial Judge’s charge to the jury would constitute "some evidence” of contributory negligence by plaintiff (see Trudell v New York R. T. Corp., 281 NY 82, 86, supra). None of these instructions, however, could be considered the equivalent of a direction pursuant to section 83 of the Railroad Law requiring that the defendant railroad operator be exonerated of liability if the jury found that the injured plaintiff had been riding between trains in violation of posted notices prohibiting such conduct. Such an instruction, pursuant to section 83, in effect, removes from the jury the responsibility of determining whether the plaintiff was contributorily negligent as a matter of fact and instead permits it to find contributory negligence per se if the statutory conditions are met. Thus, where the instruction is erroneously given, it cannot be considered "harmless” error merely because there were other correct directions which gave the jury the option of relieving the defendant of liability upon a finding of ordinary contributory negligence on the part of the plaintiff.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the matter remitted for a new trial.

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

Order reversed, with costs, and case remitted to Supreme Court, Kings County, for a new trial.

      .  In the present appeal, plaintiff also contends that the immunity conferred upon "railroad corporations” under section 83 of the Railroad Law is not available to defendant, a subway operator governed by the provisions of the Rapid Transit Law. We have no occasion to consider this argument, however, since plaintiff failed to raise it in the court of first instance (see CPLR 4110-b; 5501, subd [a], par 3).

      .  The verdict initially was set aside by the trial court on the ground that defense counsel’s tactics had prejudiced plaintiff's position and deprived him of a fair trial. The Appellate Division, however, reversed the decision of the trial court and reinstated the verdict after concluding that the trial court had incorrectly assessed defense counsel’s conduct (70 AD2d 926). In the present appeal from the order of the Appellate Division reinstating the unfavorable verdict, plaintiff has abandoned any arguments concerning the conduct of defense counsel and has chosen instead to rely solely upon his contention that the trial court’s instructions to the jury were erroneous. Although this contention was not raised before the Appellate Division, there can be no objection to this court’s consideration of the issue on appeal, since plaintiff did register a timely and specific protest to the trial court’s instruction at the time it was given (Cohen and Karger, Powers of the New York Court of Appeals, p 624, n 1).

      . Since the accident occurred before September 1, 1975, plaintiff’s cause of action was governed by the common law contributory negligence rule.