author: Chief Judge Breitel.

text:
    Graphic Arts Mutual Insurance Company, Appellant, v Bakers Mutual Insurance Company of New York, Respondent, et al., Defendant.
    Submitted September 15, 1978;
    decided November 2, 1978

      POINTS OF COUNSEL

      Luke A. Burke for appellant.
    I. Exclusion (d) clearly referred to all other employment not just other "incidental” employment. (City of Albany v Standard Acc. Ins. Co., 7 NY2d 422.) II. Exclusion (e) in Graphic’s policy by its terms also relieves Graphic of any obligation to defend and indemnify Chimes. (Westchester Light. Co. v Westchester County Small Estates Corp., 278 NY 175; Village of Potsdam v Home Ind. Co., 52 AD2d 278; Jewtraw v Hartford Acc. & Ind. Co., 280 App Div 150, 286 App Div 931, 2 NY2d 788.)

      Theodore T. Weiser and Alex Goodman for respondent.
    I. No viable cause of action exists as against Chimes Cake Co., Inc. (Carinha v Action Crane Corp., 58 AD2d 261; Taft v Shaffer Trucking, 52 AD2d 255; Margolin v New York Life Ins. Co., 32 NY2d 149; Logan v Esterly, 34 NY2d 648; Opper v Tripp Lake Estates, 274 App Div 422; Kelly v Diesel Constr. Div. of Carl A. Morse, Inc., 35 NY2d 1; Albarran v City of New York, 56 AD2d 822; Di Bernardo v Heimroth, 58 AD2d 344; Rauch v Jones, 4 NY2d 592; Castle v North End Contr. Corp., 21 AD2d 8.) II. A viable cause of action exists as against Edward J. Carr, the additional assured under the automobile liability policy of insurance issued by Graphic Arts Mutual Insurance Company to Chimes Cake Co., Inc. (Raymond v Ormsby, 54 AD2d 1021; Village of Potsdam v Home Ind. Co., 52 AD2d 278; Greaves v Public Serv. Mut. Ins. Co., 5 NY2d 120; Davis v De Frank, 33 AD2d 236; Rosado v Eveready Ins. Co., 34 NY2d 43; Mount Vernon Fire Ins. Co. v Travelers Ind. Co., 90 Misc 2d 717.)
   OPINION OF THE COURT

Chief Judge Breitel.

Plaintiff Graphic Arts Mutual, the automobile liability insurer of Chimes Cake Co., seeks a declaratory judgment that defendant Bakers Mutual, the workers’ compensation and employer’s liability carrier, is solely responsible, under the terms of the insurance policies, for third-party recoveries in a personal injury action involving Chimes and two of its employees. The Appellate Division, reversing a ruling that Graphic alone is responsible, held that both Graphic and Bakers must provide coverage. Only Graphic appeals.

The dispute between insurers, submitted on stipulated facts, arises out of a two-vehicle collision in which Wacht, an employee of Chimes Cake Co., sustained personal injuries. Wacht was a passenger in a truck owned by his employer and driven by a coemployee, Carr, when the truck collided ;with a vehicle owned by Armor Elevator Co. and operated by one Jarnatowski. For present purposes it is accepted that both vehicles had been operated negligently.

There are two issues, each involving limitations in the Graphic automobile policy. The first concerns the exclusion for bodily injury of an employee arising out of employment by the insured. At issue is whether the employer’s vicarious liability for the concurrent negligence of its employee, Carr, is within the exclusion when, on the third-party complaint of a nonemployee joint tort-feasor the employer is subject to comparative or equitable apportionment for injuries sustained by its employee, Wacht (see Dole v Dow Chem. Co., 30 NY2d 143, 148-149; CPLR art 14). Assuming such vicarious liability is not one for bodily injury of an employee arising out of employment by the insured, also at issue is whether it is an excluded "obligation for which the insured * * * may be held liable under” the Workers’ Compensation Law.

There should be an affirmance. An employer’s vicarious or derivative liability to a third-party tort-feasor for the bodily injuries sustained by one employee due to the negligence of a coemployee does not necessarily arise out of employment by the insured. Even though the injured party be an employee, the employer’s obligation to contribute a coemployee’s apportioned share of liability for negligence to a third-party nonemployee joint tort-feasor arises, instead, out of the third party’s independent right to seek comparative or equitable apportionment under the Dole-Dow doctrine. Nor does the Workers’ Compensation Law require the employer to contribute to the nonemployee joint tort-feasor the share of damages apportioned to the coemployee joint tort-feasor. The conclusion that neither exclusion in the Graphic policy relieves Graphic of its obligation to cover the derivative liability of Chimes, moreover, is in consonance with a functional analysis of separate lines of insurance. It makes sense that an automobile liability policy cover obligations arising out of operation of the automobile.

Wacht, the injured employee, brought a personal injury action against the owner and operator of the second vehicle, Armor and Jarnatowski, who, in turn, served a third-party complaint on Carr and Chimes. In the third-party claim "indemnification or contribution”, based on the concurrent negligence of the coemployee Carr and the derivative liability of the owner and employer Chimes, was sought.

At the time of the collision, Graphic was Chimes’ automobile liability insurer, and Bakers its workers’ compensation and employer liability carrier. To settle a dispute between the two insurers as to which one, under the terms of the insurance policies, was responsible for any judgment against Chimes and Carr, Graphic brought this declaratory judgment action.

In the interim the underlying tort action by Wacht was settled for $125,000. Seventy-five percent of the settlement was to be paid by Armor and Jarnatowski, and the remaining 25%., or $31,250, by either Graphic or Bakers. As noted, the Appellate Division held that under the terms of their respective policies both insurers were obligated to indemnify Chimes against the third-party claims. Since no appeal has been taken by Bakers, only the obligation of Graphic is at issue.

In disclaiming responsibility, Graphic relies on two exclusions in its policy. Paragraphs (d) and (e) provide that the policy does not apply:

"(d) under coverage A [bodily injury liability], to bodily injury * * * of any employee of the insured arising out of and in the course of (1) domestic employment by the insured, if benefits therefor are in whole or in part either payable or required to be provided under any workmen’s compensation law, or (2) other employment by the insured.

"(e) under coverage A, to any obligation for which the insured or any carrier as his insurer may be held liable under any workmen’s compensation * * * law.”

Turning first to paragraph (d), no support is offered or perceived for the conclusion of the Appellate Division that the words "other employment” refer to incidental or nonregular employment by the insured. In context, the term "other” in clause (2) serves to include all employees not covered in clause (1), that is, all but domestic employees (see City of Albany v Standard Acc. Ins. Co., 7 NY2d 422, 431).

It is then argued by Graphic that since Chimes’ liability on the third-party claim is ultimately one for bodily injuries sustained by the employee Wacht, it arises out of "other employment by the insured” and is therefore not covered by the Graphic policy. Paragraph (d), no doubt, relieves the automobile liability carrier from direct liability as an insure for injuries sustained by employees, other than domestics not covered by any workers’ compensation law, whether caused by a stranger or a coemployee (see City of Albany v Standard Acc. Ins. Co., supra, pp 431-433). This accords with the general prohibition of a tort right of action by a covered employee against his employer, or for that matter against his coemployee (Workers’ Compensation Law, § 11). It does not follow, however, that every liability of the employer triggered somehow by injuries sustained by a covered employee, in this case Wacht, is excluded.

The right under the Dole-Dow doctrine to seek equitable apportionment based on relative culpability is not one intended for the benefit of the injured claimant. It is a right affecting the distributive responsibilities of tort-feasors inter sese. (See Dole v Dow Chew. Co., 30 NY2d 143, 152-153, supra; CPLR art 14.) It is elementary that injured claimants may still choose which joint tort-feasors to include as defendants in an action and, regardless of the concurrent negligence of others, recover the whole of their damages from any of the particular tort-feasors sued (see Kelly v Long Is. Light. Co., 31 NY2d 25, 30; 2A Weinstein-Korn-Miller, NY Civ Prac, par 1401:04; McLaughlin, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 1404:1, p 381). Thus, to urge on behalf of Graphic that the third-party claim against Chimes assumes legally the color of the claim of Wacht does not withstand analysis.

Chimes may not be directly liable for injuries sustained by its employee Wacht. It may be, and was, however, liable to a third party for the third party’s suffering liability for negligence concurred in by Chimes’ employee, Carr. So, too, Graphic may not be directly liable for injuries sustained by its insured’s employee, in this case Wacht. But, it is liable for recovery against its insured where the concurrent negligence of its employee Carr exposes the insured to equitable apportionment under the Dole-Dow doctrine at the suit of a joint tort-feasor. This is just as it would have been had a stranger been the injured party in the principal tort action.

As a practical matter, Graphic should be responsible for the damages paid by Chimes. Applying a functional analysis to separate lines of insurance, and an insurance policy should be read in light of the role it is to play, it makes sense that the automobile liability carrier not exclude from coverage liabilities sustained by the insured owner in connection with operation of the automobile.

Similarly unavailing is Graphic’s resort to paragraph (e), which excludes "any obligation for which the insured * * * may be held liable under any workmen’s compensation * * * law”. That Chimes is obligated to Wacht, as a covered employee, under the Workers’ Compensation Law is undisputed. As noted by the Appellate Division, however, the liability at issue is not one owed to Wacht, but to third parties for the apportioned negligence of a coemployee of Wacht. Even though it is an employee who is injured, the Workers’ Compensation Law does not require the employer to contribute to a nonemployee joint tort-feasor the share of damages apportioned to the coemployee tort-feasor.

In sum, then, neither exclusion paragraph relieves Graphic of its responsibility to provide coverage for accidental bodily injuries arising out of Chimes’ ownership of the truck. In thus concluding, there is agreement with the relevant determinations at the Appellate Division and at Special Term, which held Graphic responsible for the equitable apportionment of liability between the third-party tort-feasors and Carr, and, vicariously, Carr’s employer under principles of respondeat superior. There is no necessary agreement with all of their reasoning, or with their comments upon issues not before this court on the present appeal. In passing it is noted that the Appellate Division accurately read the opinion in Rogers v Dorchester Assoc. (32 NY2d 553) as holding that the rule of Dole v Dow Chem. Co. (30 NY2d 143, supra) did not extend to apportionment of liability between one vicariously liable and the one primarily liable. Nothing there suggested, however, that the apportionment rule was not applicable as between one vicariously liable and a third-party tort-feasor.

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

Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur.

Order affirmed.


source: Caselaw Access Project

author: Wachtler, J.

license: Public Domain

text:
    In the Matter of Faymor Development Co., Inc., Respondent, v Board of Standards and Appeals of the City of New York, Appellant.
    Argued September 13, 1978;
    decided October 31, 1978

      POINTS OF COUNSEL

      Allen G. Schwartz, Corporation Counsel (Alfred Weinstein, L. Kevin Sheridan and Marvin B. Mitzner of counsel), for appellant.
    I. The Board of Standards and Appeals correctly decided that it had no power to grant relief upon the grounds invoked by petitioner; it was error for the court below to direct the board to grant such relief. (Matter of Temkin v Karagheuzoff, 34 NY2d 324; Matter of Pokoik v Silsdorf, 40 NY2d 769; Pollard v Trivia Bldg. Corp., 291 NY 19; Lawrence Constr. Corp. v State of New York, 293 NY 634; Matter of Union Free School Dist. No. 2 of Town of Cheektowaga v Nyquist, 38 NY2d 137; Matter of Wong v Finkelstein, 299 NY 205; Matter of Lefrak Forest Hills Corp. v Galvin, 40 AD2d 211, 32 NY2d 796.) II. Assuming the board has the power to grant relief in a case such as this, there is latitude for the exercise of discretion to refuse relief. Accordingly, a remand to the board, not final relief, should have been ordered.

      Jay A. Kranis and Charles L. Sylvester for respondent.
    The court below appropriately granted Faymor an allowance of time, equal to the time lost, within which to secure vested rights. The position taken by the board is untenable and without merit. (Matter of Pokoik v Silsdorf, 40 NY2d 769; Matter of Bayswater Health Related Facility v Karagheuzoff, 37 NY2d 408; Matter of Temkin v Karagheuzoff, 34 NY2d 324; Matter of Our Lady of Good Counsel R. C. Church & School v Ball, 45 AD2d 66, 38 NY2d 780; Matter of Lefrak Forest Hills Corp. v Galvin, 40 AD2d 211, 32 NY2d 796; Matter of New York City Housing & Redevelopment Bd. v Foley, 23 AD2d 84, 16 NY2d 826.)
   OPINION OF THE COURT

Wachtler, J.

Petitioner Faymor Development Co. commenced this article 78 proceeding to annul a determination of the New York City Board of Standards and Appeals which denied petitioner’s application to reinstate a building permit automatically revoked when the property was rezoned. Petitioner claimed that it was prevented from completing construction on its foundations and acquiring vested rights under the permit because of illegal interference by protesting area residents supported by delaying tactics and acquiescence on the part of municipal officers ultimately culminating in the zoning change. The Supreme Court dismissed the petition but the Appellate Division reversed. The city appeals claiming that the board lacked the power to reinstate the permit on the ground stated and that the courts may not compel the board to do an unauthorized act.

Petitioner is the owner of an undeveloped parcel of land located at Far Rockaway in Queens County. In January, 1972 it applied for a building permit to erect a six-story multiple dwelling with cellar. This was a permitted use under the R3-2 zoning then applicable to the property. On December 19, 1972 the permit was granted. It was renewed on November 1, 1973.

In the summer of 1974 petitioner was prepared to begin construction of the foundation. On June 3, however, the building department revoked the permit when a community planning board raised various "objections and questions”, noting in particular that the building was to be erected over a mapped but undeveloped street in purported violation of section 36 of the General City Law. Petitioner appealed and on July 23 the board reinstated the permit.

Community groups then brought an article 78 proceeding against the board to annul this determination. Hundreds of area residents also proceeded to the work site, surrounded it with parked cars and refused to allow petitioner’s construction crews and equipment to enter on August 16. This continued until August 19 when the area residents brought an action to enjoin petitioner from proceeding with construction and immediately obtained an ex parte stay. This stay and a subsequently granted temporary injunction remained in effect until Friday, September 27, at which time it lapsed due to the failure of the plaintiffs to post a $75,000 bond.

On Monday, September 30, petitioner’s work crews returned to the site and proceeded with the construction without incident. The following day, however, they once again found their way blocked by area residents and parked vehicles completely surrounding the work site. Petitioner’s efforts to enter its property and resume construction on this and subsequent days were unsuccessful. The petitioner twice obtained court orders directing the protesters to cease interfering with construction. The protesters refused to comply. On October 3 petitioner hand delivered a written request to the police department for assistance in gaining access to its property. Petitioner sent similar requests to the traffic department and the fire department to have the vehicles removed. Despite these requests the protesters and their vehicles remained in place until the board of estimate rezoned the property on October 10. As rezoned the property was placed in the R3-1 category which only permits the construction of one- and two-family homes.

On October 11 the building department informed petitioner that its building permit had been revoked pursuant to section 11-331 of the zoning resolution which provides that a building permit for this type of project automatically lapses on the effective date of a zoning change unless the foundation has been completed. Petitioner appealed to the board noting that it had incurred substantial costs and obligations in excess of $1,380,000 and had been prevented from completing its foundation and obtaining vested rights because of "illegal mob actions by area residents” aided by the actions or "inaction of the city agencies who have the duty and obligation to enforce the law.” Petitioner requested that the board direct the reinstatement of the building permit by either "deeming that the [petitioner] had obtained vested rights, or alternatively, granting the [petitioner] a grace period within which to obtain its vested right.”

The board found that it was "required * * * to support the action of the Building Department”. It noted that petitioner had not in fact completed the foundation and held that this requirement of section 11-331 was mandatory: "The Board has no discretionary power but must strictly apply the provision in the zoning resolution.” The board also stated that it was "not empowered to determine the issue of common-law vested rights nor to grant petitioner a 'grace period’ within which to acquire vested rights.”

Petitioner then commenced this article 78 proceeding seeking an order annulling that determination and directing the board to reissue the permit. The. Supreme Court dismissed the petition holding that the construction completed by petitioner was not sufficient to establish vested rights and that petitioner was not entitled to equitable relief because here, unlike Matter of Temkin v Karagheuzoff (34 NY2d 324) and Matter of Bayswater Health Related Facility v Karagheuzoff (37 NY2d 408), the city had not actively interfered with construction. The court also held that it could not "be said that the independent action of private citizens, even illegal, is sufficient to give rise to a vested right.”

The Appellate Division reversed and directed that the permit be reinstated for 103 days, the "total number of lost days for construction due to the earlier improper revocation by the Department, the court-ordered stays and the street actions” by area residents. The court stated: "[T]he rule of law must prevail. The right to proceed pursuant to a valid building permit, no less than any other civil right, is not to be lost because others resort to the streets, or because governmental authorities have improperly placed hurdles barring the appropriate exercise of such right.” (57 AD2d 928, 929.)

As noted, on this appeal the city relies on the principle that "A public body cannot be commanded in an article 78 proceeding to perform an act not authorized by the statute from which it derived its power” (Matter of Wong v Finkelstein, 299 NY 205, 207). The city argues that once the property was rezoned, the board, according to the terms of the zoning resolution was only permitted to reinstate the permit if the foundations had been completed and, thus, the Appellate Division should not have directed the board to grant the relief on the other grounds asserted by the petitioner.

A court, however, may estop the city from asserting the landowner’s failure to complete the foundations if, for instance, the city has interrupted construction by illegally suspending the permit (Matter of Temkin v Karagheuzoff, 34 NY2d 324, supra; Matter of Bayswater v Karagheuzoff, 37 NY2d 408, supra). Similarly a court may deny an agency the benefit of a change in the law when it has intentionally or even negligently delayed action on an application for a permit or license until after the law had been amended to authorize denial of the application (Matter of Pokoik v Silsdorf, 40 NY2d 769; Matter of Our Lady of Good Counsel v Ball, 38 NY2d 780, affg 45 AD2d 66). In none of these cases has it been suggested that the board was expressly authorized by statute to issue or reinstate the permit whenever there had been illegal or negligent interference with the petitioner’s right to acquire vested rights. Nor should it be assumed that a court’s equitable power to order the board to grant the relief depended or should depend upon the existence of such statutory authority. A party may be ordered to do equity. When a court is called upon to exercise equitable powers it is not precluded from doing so because the agency involved may not possess similar powers.

The city claims that the case now before us is distinguishable because here the petitioner’s failure to complete its foundations and acquire vested rights was not due to any "willful or negligent action of officials charged with issuing the permits involved or by illegal change in the building or zoning laws.”

There is, of course, no suggestion that the petitioner was at fault. The city had approved and authorized the construction of the building; it was a lawful use under the law then in effect and, in reliance on the permit, petitioner had apparently incurred considerable financial expense and obligations. It was prepared to begin construction and it had the right to "vest” its interest by constructing the foundations (Matter of Temkin v Karagheuzoff, 34 NY2d 324, 328, supra; Matter of Pokoik v Silsdorf, 40 NY2d 769, supra).

Nevertheless petitioner’s efforts to proceed with construction were delayed, obstructed and ultimately frustrated because of violent opposition from area residents. They commenced dubious, if not frivolous lawsuits and obtained a stay on the condition that they post a bond to cover petitioner’s losses. The bond was never posted. They took to the streets and physically excluded petitioner from its property in disregard of law and court orders to cease interference.

But the city played a part as well. Throughout the period city officials displayed a willingness to appease the protesters at petitioner’s expense. At the outset the building department revoked the permit on technical grounds. The defect, if there was one, had been evident on the face of the plans for over a year and a half and was only acted upon when community opposition to the project was heard (see, e.g., Matter of Bayswater v Karagheuzoff, 37 NY2d 408, 415-416, supra). Finally, to satisfy the protesters the board of estimate terminated the permit and the petitioner’s rights by zoning out the project. In the interim city police officials stood by while a lawless mob prevented petitioner from vesting its rights under the existing law. A municipality of course can rarely be held liable in damages for failure to provide adequate services (Riss v City of New York, 22 NY2d 579; see, also, Schuster v City of New York, 5 NY2d 75). It may, however, be estopped from claiming the benefits of its own inaction, whether intentional or merely negligent (Matter of Pokoik v Silsdorf, supra; Matter of Our Lady of Good Counsel v Ball, supra).

In sum, as a result of the combined action by area residents and the action and neglect of public officials, the petitioner was denied all opportunity to proceed with construction as it had a right to do under the permit. In fairness the city cannot now rely on the failure of the petitioner to complete its foundations as a ground for denying reinstatement of the permit (Matter of Temkin v Karagheuzoff, supra, p 329; Matter of Bayswater, supra, p 416).

Accordingly the order of the Appellate Division should be affirmed.

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

Order affirmed, with costs.

       After the permit was revoked in October of 1974, the article 78 proceeding previously brought by the area residents was dismissed as being moot.


author: Fuchsberg, J.

text:
    Rocca J. Segar et al., Respondents, v George W. Youngs et al., Respondents, and Virginia Reuss, Appellant.
    Submitted September 13, 1978;
    decided October 31, 1978

      POINTS OF COUNSEL

      Charles A. Gardner for appellant.
    I. Extinguishing the lien of defendant Reuss by the county conveyance produces an inequitable result. II. The Real Property Tax Law provides for the survival of defendant Reuss’ lien despite the conveyance by the county to plaintiffs. III. Defendant Reuss agrees with the interpretation of the court below of subdivision 1 of section 1020 of the Real Property Tax Law. (City of Rochester v Kapell, 86 App Div 224, 177 NY 533.) IV. Permitting defendant Reuss’ lien to be extinguished by the county conveyance frustrates the statutory scheme of allowing villages to raise revenue by the sale of tax certificates. V. The cases relied on by the court below to characterize defendant Reuss’ lien as a private lien are distinguishable on the facts. (Lee v Farone, 261 App Div 674; Riverhead Estates Civic Assn. v Gobron, 206 Misc 405.)

      John Oliver III, respondent pro se, and for Rocca J. Segar, respondent.
    I. Section 1020 of the Real Property Tax Law cuts off the outstanding tax sale certificates of Virginia Reuss and the Village of Gouverneur. (City of Rochester v Kapell, 86 App Div 224; County of Nassau v Lincer, 254 App Div 746.) II. Any liens for village taxes ceases to exist when a village tax sale is held. III. Holders of village tax sale certificates have the means to protect themselves. IV. The county treasurer had no authority to convey the premises subject to any claims of any district of the State or county. V. There is no other way in which village tax sale certificates can be cut off. VI. The village does not lose its tax money if the tax sale certificate is extinguished.

      Robert J. Ayling for Village of Gouverneur, respondent.
    I. Section 1020 of the Real Property Tax Law does not extinguish village tax liens. (City of Rochester v Kapell, 86 App Div 224, 177 NY 533; County of Nassau v Lincer, 165 Misc 909, 254 App Div 746, 280 NY 662; Incorporated Vil. of Garden City v Roeder, 254 App Div 747; Riverhead Estates Civic Assn. v Gobron, 206 Misc 405; Intercounty Operating Corp. v Terry, 181 Misc 362.) II. The deed from the county treasurer properly preserves village tax liens. III. Collection of unpaid village taxes will be severely restricted if a county tax sale cuts off unpaid village tax liens.
   OPINION OF THE COURT

Fuchsberg, J.

In this action to quiet title, brought pursuant to article 15 of the Real Property Actions and Proceedings Law, we are called upon to decide whether village tax liens are extinguished by the conveyance of a county tax deed under section 1020 of the Real Property Tax Law. We hold they are.

The property to which the tax liens in question attached is located in the Village of Gouverneur, County of St. Lawrence. In October, 1972, plaintiffs Segar and Oliver bought tax sale certificates covering certain village and county taxes on the property then in default. Subsequently, the property having fallen into arrears on 1973 taxes as well, the village failed to sell the tax sale certificate issued for that period and therefore retained ownership of it. Still later, on March 13, 1975, it sold defendant Reuss a certificate for unpaid village taxes for 1974.

Meanwhile, in February, 1975, the defendant Youngs, who held a mortgage on the property, had obtained a judgment of foreclosure and sale against its record owner. Segar and Oliver learned of the impending sale, whereupon they, as holders of county tax certificates on the property, applied for and received a county treasurer’s deed as provided by section 1018 of the Real Property Tax Law. Having obtained title, they then promptly commenced this action, pending the outcome of which the sale has been withheld.

The case now comes to us in the following procedural context:

Special Term granted the plaintiffs’ motion for summary judgment against Youngs, the mortgagee, but denied relief against both lienors, Reuss and the village. Holding that the village’s liens were not extinguished by the county tax sale or tax deed, the court proceeded to grant the village’s affirmative motion for summary judgment. On appeal, a closely divided Appellate Division modified. The majority was of the opinion that, although the publicly held village interest survived, the one privately owned by Reuss did not. The dissenters would have found Reuss’ liens entitled to the same preference as those of the village. Reuss alone now appeals to this court.

We believe an affirmance is required, but for the reasons which follow:

Subdivision 1 of section 1020 of the Real Property Tax Law provides: "A conveyance by the county treasurer [of a deed to real property sold for nonpayment of taxes] shall vest in the grantee an absolute estate in fee, subject, however, to (a) all claims of the county or state for taxes, liens or other encumbrances” (emphasis ours). By its plain language, this section permits the survival of county or State liens, but not claims of a municipal taxing authority. That the Legislature knew how to give preferential treatment to village tax liens when it intended to do so is demonstrated by subdivision 3 of section 1464 of the Real Property Tax Law, which allows village treasurers to convey deeds to tax delinquent real property within their jurisdictions and to thus "vest in the grantee an absolute estate in fee, subject however, to all claims the village, county or state may have thereon for taxes, liens or encumbrances”. The conscious parallelism between section 1020 and section 1464 strongly suggests that the limitation to "county or state” specifically incorporated in the former was deliberate. Each statute should, therefore, be read for what its unambiguous words say, no more and no less.

City of Rochester v Kapell (86 App Div 224, 225, affd on opn below 177 NY 533) is not to the contrary. That case did not involve present section 1020 of the Real Property Tax Law, but its predecessor statute. Notably, the earlier one did not speak either in the precise terms of "county or state” or of "village, county or state”. "Village”, "county” and "state”, of course each represent a well-recognized governmental entity discretely referred to not only in our statutes, but in as fundamental a document as our State Constitution (art IX, § 3, subd [d], par [2]). Moreover, the old statute did more than merely fail to include the phrase "county or state” within its text. It provided instead that tax deeds were to be subordinate to "all the claims which the People of this State may have thereon, for taxes, or other liens, or incumbrances” (emphasis ours). From the proclamation of America’s Declaration of Independence down there has hardly been a more comprehensive term by which to describe broadly the concept of our Government as a whole than "the People” (see, e.g., United States v Quincy, 31 US 445; United States v Trumbull, 48 F 99). The more parochial nature of a village is also self-evident. Thus, to have ruled, as the Appellate Division did in Kapell, that under the old statute taxes due a city were a claim of "the People” of the entire State, was by no means to say that under the present statute taxes due a village are the same as those due the "county or state”.

Similarly, neither County of Nassau v Lincer (254 App Div 746, 254 App Div 760, affd 280 NY 662) nor Incorporated Village of Garden City v Roeder (254 App Div 747), both relied on to support the result below, is apt. Each of them interpreted a statute other than the one before us, i.e., the then Nassau County Tax Act.

Consequently, we conclude that the interests of the Village of Gouverneur did not survive the county tax deed granted to the plaintiffs. And, since the rights of the defendant Reuss were derived from those of the village, her liens were also extinguished by the grant.

Therefore, we would ordinarily have been required not only to affirm so much of the order appealed from as sustained the judgment against Reuss, but to modify it so as to set aside the judgment insofar as it favored the village. However, since the plaintiffs did not seek leave to appeal from that part of the order affecting the village, we may not disturb it (Cohen and Karger, Powers of the New York Court of Appeals, § 180, p 674; Matter of Horner, 237 NY 489 [Cardozo, J.]).

Accordingly, the order should be affirmed, but without costs.

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

Order affirmed.


text:
    The People of the State of New York, Appellant, v Michael Fitzgerald, Respondent.
    Argued October 16, 1978;
    decided November 30, 1978

      POINTS OF COUNSEL

      Carl A. Ver gari, District Attorney (Janet Cunard of counsel), for appellant.
    The indictment is, on its face, legally sufficient. (People v Williams, 243 NY 162; People v Weiss, 252 App Div 463, 276 NY 384; Lohman v The People, 1 NY 379; People v Santoro, 229 NY 277; People v Barton, 51 AD2d 1044; People v Conroy, 97 NY 62; People v Farson, 244 NY 413; Sanchez v People, 22 NY 147.)

      Andrew W. Tully, Jr., for respondent.
    I. The first and second counts violate a fundamental right of defendant and are thus illegally insufficient. (People v Farson, 244 NY 413; People v Cook, 81 Misc 2d 235; People v Schultz, 301 NY 495; People v Zambounis, 251 NY 94; People v Grogan, 260 NY 138; People v Santoro, 229 NY 277; People v Weiss, 252 App Div 463, 276 NY 384.) II. The culpable mental states of criminal negligence and intent are different in substance and pleading. (People v Strong, 45 AD2d 18, 37 NY2d 568; People v Montanez, 41 NY2d 53.)
   OPINION OF THE COURT

Wachtler, J.

The question on this appeal is whether two counts of an indictment which charge the defendant with criminally negligent homicide and assault in the third degree contain sufficient factual allegations to satisfy the requirements of CPL 200.50 (subd 7). The trial court and the Appellate Division found both counts deficient and the People have appealed.

On the evening of December 22, 1975 two teenage girls were struck by a hit-and-run driver in Westchester County. One of the girls, Cara Pollini, immediately died as a result of a broken neck; the other, Susan Bassett, was severely injured. Several days later the defendant, accompanied by an attorney, surrendered himself and the automobile to the police. A Westchester County Grand Jury subsequently returned a four-count indictment against the defendant. The first count charges him with criminally negligent homicide as follows: "The defendant, in the Village of Briarcliff Manor, County of Westchester and State of New York, on or about December 22, 1975, with criminal negligence, caused the death of one Cara Pollini, while operating a 1967 Ford automobile and striking said Cara Pollini with said automobile.” The second count charges the defendant with assault in the third degree and alleges that at the same time and place the defendant "with criminal negligence, did cause physical injury to one Susan Bassett, by means of a dangerous instrument, to wit, a 1967 Ford automobile.” The last two counts of the indictment charge the defendant with leaving the scene of an accident, after hitting the two girls.

The defendant made a pretrial motion to dismiss the first two counts, principally on the ground that they failed to comply with the requirements of CPL 200.50 (subd 7) which states that an indictment must contain "A plain and concise factual statement in each count which, without allegations of an evidentiary nature, asserts facts supporting every element of the offense charged and the defendant’s or defendants’ commission thereof with sufficient precision to clearly apprise the defendant or defendants of the conduct which is the subject of the accusation”. Specifically he claimed that "the crux of each count is the required mental culpability known as 'criminal negligence’ and, other than a naked recitation of those statutory words, there is not the slightest factual indication of acts or conduct on behalf of the defendant that would raise his alleged conduct from civil negligence to criminal negligence.” The defendant also moved to dismiss these counts on the grounds that the evidence before the Grand Jury was not legally sufficient to sustain the charges and that the Grand Jury proceeding was defective. In the alternative the defendant requested a bill of particulars and discovery of certain photographs and scientific reports. The prosecutor consented to discovery and agreed to furnish the defendant with a bill of particulars describing, among other things, "how and by what manner or means the defendant is alleged to have acted with criminal negligence” but otherwise opposed the motion.

The trial court dismissed the first two counts on the ground that the evidence before the Grand Jury was legally insufficient. The court also found that the factual allegations were insufficient to advise the defendant of the "unlawful conduct complained of’, so as to enable him to prepare his defense. Principal reliance was placed on People v Barnes (44 AD2d 740) in which an indictment charging the defendant with criminally negligent homicide, without itemizing the negligent acts, was held not to satisfy the requirements of CPL 200.50 (subd 7). There the court noted that the Legislature had abolished the "short form” indictment and concluded that under the CPL section an indictment in which "the charges are alleged by a recitation of the language of the statute” would no longer be considered adequate.

The Appellate Division affirmed solely on the ground that these counts did not allege sufficient facts, without reaching the question of the legal sufficiency of the evidence submitted to the Grand Jury. The Appellate Division held that an indictment which "confines itself to the language of the statute” is valid unless the statutory language .would not fairly inform the accused of the nature of the charge preferred against him. Here, the court concluded, greater particularity is required because "merely stating in an indictment that death was caused by, or an assault occasioned through, 'criminal negligence’ * * * fails to apprise the defendant of the facts supporting those charges” (62 AD2d 885, 888, 889).

On this appeal the People argue that criminal negligence refers to the defendant’s state of mind and that "the allegation of the state of mind without a factual basis is sufficient.”

Generally the mental element in an indictment may be alleged in the words of the statute, or equivalents, without setting forth the facts demonstrating the basis for the allegation. Thus where the statute defining the crime requires proof of a premeditated design, an allegation that the defendant acted "with a premeditated design” is sufficient without additional factual support. "[T]he manner in which the design was evinced, and the circumstances establishing it are matters of evidence to be proved on the trial * * * The conduct of the accused before and at the time of the transaction, the preparation made, and his lying in wait, his threats and declarations tending to show his intention in making the assault, with many other facts and circumstances which might be suggested, may be given in evidence upon the issue of premeditation, but it would be improper, and often impracticable, to spread them out in the indictment.” (Tully v People, 67 NY 15, 18-19.) In this case, then, if the indictment had alleged that the defendant hit the victim with his automobile with intent to kill — instead of with criminal negligence — and thereby caused her death, there is no doubt that these factual allegations would be sufficient to support every element of the crime of murder.

Under the Revised Penal Law criminal negligence is listed as one of the "culpable mental states”, like intent but involving a lesser degree of culpability (Penal Law, § 15.05). Unlike intent, however, the criminal negligence concept does not refer only to a subjective state of mind. It also includes certain "underlying conduct”, namely conduct involving "(1) 'a substantial and unjustifiable risk’ that a result or circumstance described by a penal statute will occur or exists, as the case may be, and (2) 'a gross deviation’ from the standard of conduct or of care that a reasonable person would observe” (see Commission Staff Notes on the Proposed New York Penal Law, Gilbert Criminal Law and Procedure [1971], p 2-248). It is the combination of the defendant’s conduct, that is, the creation of a certain type of risk, together with his mental state, namely his failure to perceive the risk when there is a legal duty of awareness, which constitutes criminal negligence (see, e.g., People v Haney, 30 NY2d 328, 334; People v Cruciani, 36 NY2d 304; People v Stanfield, 36 NY2d 467, 470; People v Strong, 37 NY2d 568; People v Montanez, 41 NY2d 53). In short, it cannot be said that an allegation that the defendant acted with "criminal negligence” refers only to his state of mind.

The requirement that an indictment "contain * * * [a] plain and concise factual statement * * * supporting every element of the offense charged * * * with sufficient precision as to clearly apprise the defendant * * * of the conduct which is the subject of the accusation” (GPL 200.50, subd 7) presents special difficulties in cases involving criminal negligence. The underlying conduct creating the risk will obviously vary from case to case, and will often involve a complex set of circumstances which defy a concise statement. A complete itemization of all the circumstances might well produce an indictment more complex than the common-law form and restore the technical pleading and practice the statute was designed to avoid (see People v Iannone, 45 NY2d 589 [decided herewith]; People v Farson, 244 NY 413, 417).

On the other hand the defendant has the right to be informed of the conduct which forms the basis for the accusation, primarily in order to prepare a defense (People v Iannone, supra). Thus a person accused of causing death or injury by acting with "criminal negligence” is entitled to know specifically what conduct on his part involved a "substantial and unjustifiable risk” of death or injury and "a gross deviation” from the standard of reasonable care (Penal Law, § 15.05, subd 4). That information, however, may be provided by a bill of particulars which is designed to insure that the defendant is supplied with sufficient information to properly prepare his defense (CPL 200.90). There is no requirement that the information be contained in a single document, provided the defendant is adequately and timely informed of the precise nature of the charges he must prepare to meet (People v Iannone, supra). An indictment charging the defendant with negligent homicide in the language of the statute, coupled with a bill of particulars setting forth the specific acts of negligence underlying the charge, has been held to satisfy the requirements of the long form indictment authorized under the Code of Criminal Procedure (People v Rice, 19 AD2d 911), and now mandated under the Criminal Procedure Law (see Practice Commentary, McKinney’s Cons Laws of NY, Book 11 A, CPL art 200, pp 194-195).

We note that in many cases it may be feasible and advisable to set forth the specific acts of negligence in the indictment (see, e.g., People v Haney, 30 NY2d 328, 331, supra). When that is not done the defendant has the right to a bill of particulars which, as noted, has been tendered in this case. We simply hold that because this latter procedure is available the indictment, or the particular counts involved, are not subject to dismissal on the ground that the defendant has not been adequately advised of the nature of the charge and the conduct which is the basis of the accusation.

Accordingly the order of the Appellate Division should be reversed and the matter remitted to that court for consideration of the sufficiency of the Grand Jury evidence.

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

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

      . Section 125.10 of the Penal Law states: "A person is guilty of criminally negligent homicide when, with criminal negligence, he causes the death of another person.”
      Subdivision 4 of section 15.05 of the Penal Law provides: "A person acts with criminal negligence with respect to a result or to a circumstance described by a statute defining an offense when he fails to perceive a substantial and justifiable risk that such result will occur or that such circumstance exists. The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.”

      . Subdivision 3 of section 120.00 of the Penal Law states that a person is guilty of assault in the third degree when "With criminal negligence, he causes physical injury to another person by means of a deadly weapon or dangerous instrument.”

      . Neither the prosecutor nor the defendant argue the sufficiency of the Grand Jury evidence on this appeal. And, as noted, the Appellate Division found it unnecessary to reach that issue.


text:
    In the Matter of Country-Wide Insurance Company, Respondent, v Daniel C. Wagoner, Respondent, and Aetna Casualty and Surety Company, Appellant.
    Argued September 14, 1978;
    decided November 30, 1978

      POINTS OF COUNSEL

      J. Mark McCarthy for appellant.
    The court below erred in reversing the Special Term, which latter had held that Country-Wide’s policy issued to Daniel Wagoner provides primary coverage for the accident of May 12, 1972, and that Aetna’s policy issued to Clifford Wagoner provides excess coverage only. (Harrington v Harrington, 290 NY 126; Drivas v Lekas, 292 NY 204; Rudman v Cowles Communications, 30 NY2d 1; Insurance Co. of North Amer. v Godwin, 46 AD2d 154; Matter of Sentry Ins. Co. [Amsel], 36 NY2d 291; Public Serv. Mut. Ins. Co. v Katcher, 36 NY2d 295.)

      Eric M. Alderman and Bernard Samuels for Country-Wide Insurance Company, respondent.
    I. There exists no legally sufficient facts in the record to substantiate a finding that there was an effective termination of the Aetna policy insuring Daniel Wagoner on his 1962 Chevrolet automobile, as there was no compliance with the termination conditions of that policy. (Gately-Haire Co. v Niagara Fire Ins. Co. of City of N. Y., 221 NY 162; Drivas v Lekas, 292 NY 204; Motor Vehicle Acc. Ind. Corp. v Davidson, 35 AD2d 785; Crown Point Iron Co. v Aetna Ins. Co., 127 NY 608; Nobile v Travelers Ind. Co., 4 NY2d 536; Providence Washington Ins. Co. v Security Mut.

      Ins. Co., 35 NY2d 583; Teeter v Allstate Ins. Co., 9 AD2d 176, 9 NY2d 655.) II. The order of the court below finding the exclusionary paragraph of the endorsement’s "other insurance” clause inapplicable was proper in that it has no application in the case at bar. (Matter of Nagle [MVAIC], 22 NY2d 165; Rosado v Eveready Ins. Co., 34 NY2d 43; Public Serv. Mut. Ins. Co. v Katcher, 36 NY2d 295; Summit Ins. Co. of N. Y. v Beach, 80 Misc 2d 382; Matter of Dingsor v Merchants Mut. Ins. Co., 72 Misc 2d 862; Insurance Co. of North Amer. v Godwin, 46 AD2d 154; Greaves v Public Serv. Mut. Ins. Co., 5 NY2d 120; Towne v Eisner, 245 US 418.)
   OPINION OF THE COURT

Fuchsberg, J.

As it comes to us on appeal, this case presents what is essentially a controversy between two insurance carriers, Country-Wide Insurance Company and Aetna Casualty and Surety Company. The question it poses is narrow, but bears on the nature of the coverage provided by the automobile accident indemnification endorsement which, in compliance with the directives of section 167 of the Insurance Law, must form a part of each of the millions of motor vehicle liability policies in this State.

Specifically, the issue is whether the term "automobile”, as it appears in the endorsement, is intended to include a "motorcycle”. We hold that it does. While we recognize that, without more, the literal meaning of the words "automobile” and "motorcycle” might suggest a contrary result (see Midwest Mut. Ins. Co. v Fireman’s Fund Ins. Co., 258 SC 533; but see Aetna Ins. Co. v Hurst, 2 Cal App 3d 1067), the circumstances and considerations we detail below compel the conclusion we have reached.

The applicable facts are undisputed. Daniel C. Wagoner was injured by a "hit and run” driver, a category of "uninsured motorist” against whom the Motor Vehicle Accident Indemnification Corporation Law protects (Insurance Law, § 600 et seq.). At the time, Wagoner was operating a motorcycle which he owned and on which he maintained a liability policy purchased from Country-Wide. Since Wagoner then resided in his father’s household, he also qualified as an "insured” under a policy Aetna had issued on his father’s car. As mandated by subdivision 2-a of section 167 of the Insurance Law each policy contained an identically worded endorsement, Condition No. 6 of which read in pertinent part as follows:

"6. Other Insurance. With respect to bodily injury to an Insured while occupying an automobile not owned by the named insured, this insurance shall apply only as excess insurance over any * * * primary insurance * * * in the amount by which the limit of liability for this coverage exceeds the applicable limit of liability of such other insurance.

"Except as provided in the foregoing paragraph, if the insured has other similar insurance available to him and applicable to the accident * * * the company shall not be liable for a greater proportion of any loss to which this coverage applies than the limit of liability hereunder bears to the sum of the applicable limits of liability of this insurance and such other insurance.”

Under the other insurance clause then, if a motorcycle falls within the endorsement’s reference to "automobile”, Wagoner, albeit an "insured” of Aetna, would at the time of his injury have been occupying an automobile not owned by his father, thus limiting Aetna’s exposure to that of an excess insurer. In that event, because Country-Wide, as issuer of the policy on the motorcycle is undeniably a primary insurer, Aetna would provide coverage only when Country-Wide’s had been exhausted. Conversely, if a motorcycle in this context may not be regarded as an automobile then Wagoner did not occupy "an automobile not owned by the named insured”, and Aetna would proportionately share the primary loss with CountryWide as a coinsurer.

Wagoner timely submitted his "uninsured motorist” claims and filed a demand for arbitration against Country-Wide. Urging that Aetna as a coinsurer should be liable pro rata for payment of any award to Wagoner, Country-Wide then commenced this proceeding for an adjudication to that effect and for a stay of arbitration. Special Term, after a hearing, rejected the petitioner’s contentions, holding that the policy issued by Aetna on the father’s car applied only as excess coverage. Accordingly, the court stayed the arbitration against Aetna and ordered Country-Wide to proceed to arbitration on Wagoner’s claim. However, the Appellate Division, one Justice dissenting, disagreed with the disposition and entered an order vacating the stay of arbitration.

In now reversing its order and reinstating that of Special Term, we lean heavily on the realities that surround the language to be construed. For we do not write on a blank page, but one that already records a history of judicial, legislative and administrative action.

The endorsement itself, not unlike other provisions in contracts offered to the public by the government-regulated insurance industry, is not the product of insurance company draftsmanship. The words of Condition No. 6 were chosen by the legislatively created Motor Vehicle Accident Indemnification Corporation with the approval of the State Superintendent of Insurance as part of the endorsement required by subdivision 2-a of section 167 of the Insurance Law (see Insurance Law, § 606, subd [b]). We, therefore, hearken back to the neutral sources that brought it into being for clues about the intended scope of Condition No. 6.

The purpose of the endorsement was to help effectuate the scheme of compulsory automobile liability insurance that has prevailed in New York State for the past quarter of a century by providing coverage to insured persons who suffer automobile accident injuries at the hands of financially irresponsible motorists (Ackerman v MVAIC, 36 Misc 2d 1048, affd 18 AD2d 307). The aim, to make the prescribed compensation available in all such cases, would appear to call for a policy of inclusion rather than exclusion in determining whom it covers (e.g., Matter of Neals v Allstate Ins. Co., 34 AD2d 265).

Significantly, although the endorsement itself is silent, the principal Insurance Law provisions from which it is derived confirm this policy as it applies to motorcycles. Under subdivision 2-a of section 167, each automobile liability policy must contain an endorsement making payable to an insured certain amounts "as damages from an owner or operator of an uninsured motor vehicle”. (Italics supplied.) And, according to subdivision a of section 601, "motor vehicle” encompasses "motorcycle”. It is difficult to ascribe any reason for watering down the reach of the word "automobile” as it is used in the endorsement from what was intended by the phrase "motor vehicle” in the statute that forms the raison d’etre for the endorsement.

Nearly 10 years ago we held that the endorsement’s term "uninsured automobile” must be given the broader definition of the statute (Matter of Askey [General Acc. Fire & Life Assur. Corp.], 30 AD2d 632, affd 24 NY2d 937). Similarly, when used in the endorsement, the unqualified word "automobile” has been held to mean "motor vehicle” to permit recovery by an insured who, while operating a motorcycle, suffered injury at the hands of an uninsured motorist (Public Serv. Mut. Ins. Co. v Katcher, 44 AD2d 795, revd on other grounds 36 NY2d 295; cf. Matter of Sentry Ins. Co. [Amsel], 36 NY2d 291, 293-94).

Our courts have thus announced that the broader language of the statute must be deemed to be incorporated in the endorsement. Had these decisions conflicted with rather than conformed to the over-all scheme for regulation and loss distribution, the Legislature, the superintendent and the Indemnification Corporation could have taken steps to rectify the problem. Of course, one cannot always peer unobstructed over legislative shoulders, but not a single one of the concerned governmental bodies registered any dissatisfaction. This acquiescence could hardly have escaped the notice of the sophisticated insurance industry, sensitive to the slightest legislative breeze that might unsettle the statistical basis of its calculations.

Reasons for this passiveness are not difficult to fathom. In a situation where totality of exposure remains unchanged, in the long run it matters little, if at all, whether two carriers share the risk as coinsurers or as primary and excess insurer respectively. The aggregate payment to the claimant will in the end be the same (see Matter of Public Serv. Mut. Ins. Co. v Cross, 38 AD2d 930) and, because each of the limited number of liability carriers licensed in the State writes a relatively large number of policies each year, there will be an averaging out of the number of cases in which any particular carrier ends up as excess carrier or as coinsurer. In the unlikely event that there had been an adverse economic impact in the years since Askey and Katcher, the actuarial experience by which insurance companies live would have seen compensatory adjustment and reallocation of premiums and costs long before our decision today. But, even so, the consequences of a change of course at this time would in all likelihood only repeat whatever degree of disruption originally occurred.

Finally, we observe that, in the setting of this case, we have thought it best to place little reliance on the canons of construction. That is not to derogate the value of the many maxims that abound in that field. But, heeding the advice of two venerable legal scholars, because "there are still two opposing canons on almost every point” (Llewellyn, Common Law Tradition, p 521), it must be the circumstances above all that govern the application of particular words (Holmes, Theory of Legal Interpretation, 12 Harv L Rev 417). Here, we perceive that the good sense of the situation is clear; it is the case and not one canon or another that must control.

For these reasons, the order of the Appellate Division should be reversed and the order of Special Term reinstated.

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

Order reversed, with costs, and the order of the Supreme Court, Onondaga County, reinstated.

      . Wagoner also owned a Chevrolet automobile insured by Aetna. He originally asserted the claim arising out of his accident under that policy, too. Both Special Term and the Appellate Division, however, found that the policy on the Chevrolet had been canceled prior to the accident (88 Misc 2d 976, 979; 57 AD2d 498, 503-504). Aetna, of course, was not aggrieved by the holding and Country-Wide, though aggrieved, took no appeal to this court. Since the third policy is no longer in the case, we have omitted so much of the earlier history of this litigation as is related to it.

      . Insurance Co. of North Amer. v Godwin (46 AD2d 154) held that the term "automobile” as used in the exclusionary clause of the endorsement did not include motorcycle. There, confronted with a possible exclusion from coverage rather than, as here, a choice of which type of coverage applies, the court construed the policy strictly against the insurer.


author: Gabrielli, J.

text:
    The People of the State of New York, Respondent, v Thomas Iannone, Appellant. The People of the State of New York, Respondent, v Joseph Corozzo, Also Known as Jo-Jo, Appellant.
    Argued September 12, 1978;
    decided November 30, 1978

      POINTS OF COUNSEL

      Rudolph E. Greco, Jr., for appellant in the first above-entitled action.
    Count four of the indictment fails to state facts constituting a crime, but rather conclusions, in violation of CPL 200.50 and the Sixth Amendment, and therefore the court was without jurisdiction to pronounce sentence. (Russell v United States, 369 US 749; People v Clough, 43 AD2d 451; People v Cook, 81 Misc 2d 235; People v McGuire, 5 NY2d 523; People v Zambounis, 251 NY 94; People v Hendricks, 31 AD2d 982; People v Corbalis, 178 NY 516; People v Farson, 244 NY 413; People v Albow, 140 NY 130.)

      Patrick Henry, District Attorney (Mark D. Cohen of counsel), for respondent in the first above-entitled action.
    The count of the indictment which appellant pleaded guilty to (count four) was adequate pursuant to State and Federal Constitutions provisions and CPL 200.50; therefore the court properly obtained jurisdiction over defendant to impose judgment. (People v Armlin, 6 NY2d 231; People v Alexander, 306 NY 656; People v Schultz, 301 NY 495; People v Grogan, 260 NY 138; People v Williams, 243 NY 162; People v Farson, 244 NY 413; People v Willis, 158 NY 392; People v Helmer, 154 NY 596; People v Kohut, 30 NY2d 183; People ex rel. Guido v Calkins, 9 NY2d 77.)

      Alexander Potruch for appellant in the second above-entitled action.
    I. Count two of the indictment fails to state facts constituting a crime, but rather conclusions in violation of CPL 200.50 and the Sixth Amendment of the United States Constitution. Consequently, the court below lacked the necessary jurisdiction to render a conviction and sentence. (People v Cook, 81 Misc 2d 235; People v Schultz, 301 NY 495; People v Schildhaus, 10 Misc 2d 641; People v Ebasco Servs., 77 Misc 2d 784; Russell v United States, 369 US 749; People v McGuire, 5 NY2d 523; People v Zambounis, 251 NY 94; People v Barnes, 44 AD2d 740.) II. The evidence was insufficient for submission to the jury and for conviction. (Matter of Winship, 397 US 358; People v Bradford, 227 NY 45; People v Devinny, 227 NY 397.)

      Patrick Henry, District Attorney (Mark D. Cohen of counsel), for respondent in the second above-entitled action.
    I. The criminal usury count of the indictment which appellant was convicted of (count two) was adequate pursuant to State and Federal Constitutions provisions and CPL 200.50; therefore the court properly obtained jurisdiction over defendant to impose judgment. (People v Grimsley, 60 AD2d 980; People v Willett, 213 NY 368; People v Wiechers, 179 NY 459; People v Longe, 269 App Div 474; People v Graffeo, 172 App Div 694, 220 NY 722; People v Harper, 37 NY2d 96; People v McGuire, 5 NY2d 523; People v Scott, 3 NY2d 148; People v Hendricks, 31 AD2d 982; People v Langford, 16 NY2d 32.) II. The prosecution proved all required elements of the crime of criminal usury. (People v Regina, 19 NY2d 65; People v Ross, 21 NY2d 258; People v Carter, 27 AD2d 589, 19 NY2d 967; People v Lang, 36 NY2d 366; People v Robinson, 36 NY2d 224; People v Baker, 23 NY2d 307; People v Simons, 22 NY2d 533; People v Amazon, 52 AD2d 1012.)
   OPINION OF THE COURT

Gabrielli, J.

Defendants in these two cases appeal from separate orders of the Appellate Division sustaining their respective convictions of criminal usury. In each case, the defendant contends that the indictment by which he was charged failed to state facts constituting a crime. For the reasons discussed below, the orders appealed from are affirmed.

Defendant Iannone was indicted by a Grand Jury for the crime of conspiracy and three counts of criminal usury. He pleaded guilty to one count of criminal usury in full satisfaction of that indictment. The count to which he pleaded guilty reads as follows: "AND THE GRAND JURY AFORESAID, by this Indictment, further accuse the above named defendants of the crime of CRIMINAL USURY, in violation of Section 190.40 of the Penal Law, committed as follows: The defendants, acting in concert and in aid of one another, from and between, in and about August of 1974 to December of 1974, in the County of Suffolk, not being authorized and permitted by law to do so, knowingly charged, took and received money as interest on a loan of a sum of money from a certain individual at a rate exceeding twenty-five percentum per annum and the equivalent rate for a shorter period.” At sentencing, defendant for the first time moved to dismiss the indictment on the ground that it failed to set forth facts which constitute a crime. The motion was denied. On appeal to the Appellate Division, that court affirmed the judgment appealed from.

Defendant Corozzo was separately indicted for conspiracy, criminal usury, and grand larceny. The count charging him with criminal usury contained language very similar to that used in the Iannone indictment. Following a jury trial during which he unsuccessfully moved to dismiss the criminal usury count for failure to make out a prima facie case against him, Corozzo was convicted of that crime. The Appellate Division affirmed his conviction. Before this court, defendant for the first time seeks to argue that the indictment was insufficient for failure to allege facts stating a crime.

Were we to decide the question of the sufficiency of the challenged indictments on the merits, we would sustain them. The right to indictment by a Grand Jury before being tried for an infamous crime is explicitly guaranteed by section 6 of article I of our State Constitution. That right is a fundamental one which ordinarily may not be waived by a defendant, since it not only accrues to the benefit of the individual defendant, but also serves to preserve a significant societal interest. This does not mean, however, that any particular form of indictment is constitutionally mandated. A distinction must be drawn between the constitutional imperative that a person accused of an infamous crime normally be brought to trial only upon indictment by a Grand Jury, and the additional requirements as to the information a particular document issued by a Grand Jury must contain in order to serve as a valid and sufficient indictment.

The requirement of indictment by Grand Jury is intended to prevent the people of this State from potentially oppressive excesses by the agents of the government in the exercise of the prosecutorial authority vested in the State (see 1 Holds-worth, A History of English Law, p 321 [3d ed, 1922]). Thus, before an individual may be publicly accused of crime and put to the onerous task of defending himself from such accusations, the State must convince a Grand Jury composed of the accused’s peers that there exists sufficient evidence and legal reason to believe the accused guilty.

The indictment qua document, on the other hand, has traditionally served several purposes, not all of which implicate the right to indictment by Grand Jury, and not all of which remain as inextricably connected to the indictment as was once true. First and foremost, an indictment has been considered as the necessary method of providing the defendant with fair notice of the accusations made against him, so that he will be able to prepare a defense (see People v Armlin, 6 NY2d 231, 234). This function of the indictment is founded not upon the right to indictment by a Grand Jury, but rather on the notice requirement of section 6 of article I of our State Constitution and presumably that of the Sixth Amendment to the Federal Constitution as well. Achievement of this purpose historically involved both a legal and a factual statement: normally the indictment has been required to both charge all the legally material elements of the crime of which defendant is accused, and state that defendant in fact committed the acts which comprise those elements (see People v Farson, 244 NY 413).

Another traditional function of the indictment qua document has been to provide some means of ensuring that the crime for which the defendant is brought to trial is in fact one for which he was indicted by the Grand Jury, rather than some alternative seized upon by the prosecution in light of subsequently discovered evidence (see Russell v United States, 369 US 749, 770). This particular objective of an indictment obviously does rest upon the guarantee of indictment by a Grand Jury, as it is meant to protect against possible avoidance of that mandate in a particular case.

Finally, the indictment has traditonally been viewed as the proper means of indicating just what crime or crimes defendant has been tried for, in order to avoid subsequent attempts to retry him for the same crime or crimes (see People v Williams, 243 NY 162, 165). This function is based upon the constitutional prohibition against double jeopardy, of course, and is illustrative of the way in which the device of the indictment was seized upon as a convenient method of achieving several necessary goals.

Indeed, each of the functions traditionally fulfilled by the indictment is a necessary one, in the sense that each serves to provide some requisite constitutional protection. It does not necessarily follow, however, that the indictment is and must remain the constitutionally mandated means of securing each of those constitutional rights. To so hold would be to mistake the forms of legal procedure for the substantive guarantees they are intended to embody as best they can at a particular moment in legal history, and to encrust them with an aura of inflexible invulnerability which can only serve to deter subsequent attempts to create even more effective methods of achieving the ever elusive goal of justice. Rather, we must recognize that as a consequence of the vagaries of legal history and the not always consistent development of procedural mechanisms, each of these laudatory objectives was at one time deemed best achieved by utilization of the indictment. Such is not itself a constitutional imperative, however, and if a requisite constitutional protection is provided by other devices, the failure of a particular indictment to suffice for that particular purpose is not necessarily fatal.

The historical development of the form of indictment presently used in New York exemplifies a continuing attempt to eschew formalism and ritual in favor of a more realistic approach to the basic requirements of a valid indictment. Under the common law, the indictment was an arcane and intricate work of art which all too often served to mystify rather than to inform defendants. "At that time specialized knowledge of legal precedents and the technical craftmanship of a legal artist were required for the drawing of an indictment. Perfection of form was essential to validity” (People v Bogdanoff, 254 NY 16, 21; see 4 Blackstone’s Commentaries, ch 23). As one commentator reported, "very great niceties have been allowed to prevail * * * This circumstance has frequently been regretted by able judges, as offering too many opportunities for the escape of prisoners, to the encouragement rather than the depression of crime. Thus Lord Hale observed, that the strictness required in indictments was grown to be a blemish and inconvenience in the law” (1 Chitty’s Criminal Law, p 170). As significantly, the common-law indictment often "left the accused in the dark as to the nature of the crime charged” (Denzer, Practice Commentary, McKinney’s Cons Laws of NY, Book 11 A, CPL art 200, p 195), thus actually failing to fulfill any of the traditional functions of an indictment even though it was technically sufficient.

With the enactment of the Code of Criminal Procedure (L 1881, ch 442), the Legislature provided an alternative and considerably less complex form of indictment, which was intended to prevent dismissals of indictments due to mere technical defects while at the same time ensuring that the accused would be adequately informed of the charges lodged against him (see People v Williams, 243 NY 162, supra). Under section 275 of the code, an indictment was required to contain "[a] plain and concise statement of the act constituting the crime”. Although considerably simpler than the common-law indictment, the section 275 indictment became known to the bar as the "long-form” indictment following later authorization by the Legislature (L 1929, ch 176) of the "simplified” indictment, which merely required "[a] statement of the specific crime with which the defendant is charged” (Code Crim Pro, § 295-b, subd 2).

Thus, under the latter statute, an indictment which essentially merely cited the section of the law which a defendant was accused of violating would ordinarily be sufficient. The simplified indictment may no longer be used in this State, as it was not retained when the Criminal Procedure Law was enacted to replace the Code of Criminal Procedure. One reason for this was that, as a practical matter, the simplified indictment often told the accused little about the nature of the crime he was accused of committing. Nonetheless, the validity of the simplified indictment was consistently upheld by this court against constitutional challenges. In People v Bogdanoff (254 NY 16, supra), the seminal case sustaining the simplified indictment, we indicated that such an indictment would not pass constitutional muster were it the only informational document which a defendant could obtain as of right. We concluded, however, that the perceived defects in the simplified indictment were alleviated by the fact that a defendant charged via a simplified indictment could demand a bill of particulars (Code Crim Pro, § 295-g) which must provide "such particulars as may be necessary to give the defendant and the court reasonable information as to the nature and character of the crime charged” (Code Crim Pro, § 295-h, subd 2), and which became a part of the record. Implicit in this conclusion was the rationale that an indictment need not be deemed constitutionally insufficient for a failure to conform to all the traditional requirements of a valid indictment, as long as all the requisite protections normally provided by means of the indictment are in fact made available as of right to a defendant. In such a case, moreover, the sufficiency of an indictment would not be disturbed by the fact that a particular defendant for some reason did not choose to utilize a procedural mechanism which was made available to him (see People v Langford, 16 NY2d 32).

That the simplified indictment as such no longer exists in New York does not detract from the force of those considerations which led us to conclude that the simplified indictment was valid. Indeed, subsequent changes in criminal procedures have served to decrease the significance of the indictment as an informational document. For example, it has traditionally been stated as a hard and fast rule that a bill of particulars may not be used to sustain an otherwise defective indictment (e.g., Denzer, Practice Commentary, McKinney’s Cons Laws of NY, Book 11 A, CPL 200.90, p 292). That this is not a fundamental rule should have been made clear by our decision in Bogdanoff, in which we sustained the simplified indictment because of the availability of the bill of particulars. The traditional refusal to allow buttressing of an indictment by a bill of particulars was based on the fact that there existed no statutory authorization for a bill of particulars, and thus the availability of such a device was left to the discretion of the trial court (see People v Bogdanoff, 254 NY 16, 24, supra). That was not a problem with respect to the simplified indictment, since a defendant was entitled to a bill of particulars as a matter of right. Today there exists statutory authorization for a bill of particulars with respect to all indictments. Indeed, CPL 200.90 provides that "[i]f the court is satisfied that any or all of the items of information requested are necessary to enable the defendant adequately to prepare or conduct his defense, it must grant the motion as to every such necessary item” (emphasis added). Thus, the effect of the present provisions are in fact the same as were the provisions concerning simplified indictments, since there also it was for the court to determine whether a particular piece of information was necessary.

In a similar vein, the development of modern discovery rules in criminal cases has diminished the significance of the indictment’s function as a provider of information (see CPL art 240). The importance of the indictment as an instrument for effectuating other objectives traditionally obtained through the indictment has also lessened. For example, the need to utilize the indictment as the means of resolving any double jeopardy inquiry has been considerably alleviated by the modern practice of maintaining full records of criminal proceedings which may be considered by subsequent courts. Similarly, the function of the indictment as the vehicle for assuring that the crime for which the defendant is tried is the one for which he was indicted by the Grand Jury is of less significance due to the practicability of using sources extraneous to the indictment should a challenge be made on those grounds (see CPL 210.30).

In short, careful consideration of the realities of criminal practice in New York leads ineluctably to the conclusion that the basic essential function of an indictment qua document is simply to notify the defendant of the crime of which he stands indicted. This purpose is clearly reflected by the present statutory provisions controlling the form of the indictment, which are in essence quite similar to the so-called long-form indictment used under the Code of Criminal Procedure. CPL 200.50 requires an indictment to contain "[a] plain and concise factual statement in each count which, without allegations of an evidentiary nature, asserts facts supporting every element of the offense charged and the defendant’s or defendants’ commission thereof with sufficient precision as to clearly apprise the defendant or defendants of the conduct which is the subject of the accusation”. Thus, "[a]s a general rule, the indictment need only allege where, when and what the defendant did” (Pitler, New York Criminal Practice Under the CPL, p 302). Were we able to reach the merits of this challenge to the indictments, we would conclude that the challenged indictments fulfill both the statutory and the constitutional mandates for a valid indictment in this State. They charge each and every element of the crime of criminal usury, and allege that the defendants committed the acts which constitute that crime at a specified place during a specified time period. No more is needed.

While it is true that the prosecutor might have been wiser had he included more detail, what was presented suffices to charge a statutory crime such as criminal usury. When indicting for statutory crimes, it is usually sufficient to charge the language of the statute unless that language is too broad (see People v Farson, 244 NY 413, 417, supra). That is especially true when the crime is one such as this, in which the acts that constitute the crime are many and are spread over a considerable period of time and space. To require a listing of every action undertaken by the defendant in the course of this crime would serve no useful purpose, and would instead mark a step back towards the needless complexities of the common-law indictment. We would note, however, that the requirements for a valid indictment will vary with the particular crime involved, and what is sufficient to charge the crime of criminal usury would be insufficient with respect to many other crimes.

A word of caution is in order. It is beyond cavil that a defendant has a basic and fundamental right to be informed of the charges against him so that he will be able to prepare a defense. Hence the courts must exercise careful surveillance to ensure that a defendant is not deprived of this right by an overzealous prosecutor attempting to protect his case or his witnesses. Any effort to leave a defendant in ignorance of the substance of the accusation until the time of trial must be firmly rebuffed. This is especially so where the indictment itself provides a paucity of information. In such cases, the court must be vigilant in safeguarding the defendant’s rights to a bill of particulars and to effective discovery. Should the prosecutor decide to use an indictment which, although technically sufficient, does not adequately allow a defendant to properly prepare for trial, he may well run afoul of the defendant’s right to be informed of the accusations against him. These cases do not present any such difficulty, however, for the defendants do not contend that they were in fact unaware of the crimes with which they were charged, nor that they were actually prejudiced; rather, they contend only that the indictments with which they were charged were insufficient. Thus, were the issue of the sufficiency of these indictments properly before us, we would sustain them for the many reasons discussed above.

As it is, however, the defendants in these two appeals have failed to preserve a question of law which this court may review and have waived their objections to the sufficiency of the factual allegations in the indictments by which they were brought before the courts. Although the questions of waiver and failure to preserve a question of law are conceptually severable, in the present case the dispositive considerations are the same. The Court of Appeals, unlike the Appellate Division, normally may review only questions of law which were timely raised before the. court of original jurisdiction. Defendant Iannone made no challenge to the sufficiency of the factual statements in the indictment until he appeared for sentencing, some time after his plea of guilty. Defendant Corozzo seeks to raise that issue for the first time before this court. Since neither defendant timely moved to dismiss the indictment on that ground (see CPL 210.20, subd 2; 255.20), they did not preserve that issue for our review (People v Soto, 44 NY2d 683, 684; People v Willett, 213 NY 368, 374-375; Cohen and Karger, Powers of the New York Court of Appeals, p 748).

In reaching this conclusion, we reject defendants’ contention that an insufficiency in the factual allegations of an indictment is a jurisdictional defect which may not be waived and which is reviewable in this court even absent any objection below (see, generally, People v Patterson, 39 NY2d 288, 295, affd 432 US 197). Although it is true that a jurisdictional defect in an indictment is not waived by a guilty plea and may be raised for the first time on appeal (see People v Scott, 3 NY2d 148), it is equally true that not every defect in an indictment is a jurisdictional defect for these purposes (see, e.g., People v Brous, 296 NY 1028). In essence, an indictment is jurisdictionally defective only if it does not effectively charge the defendant with the commission of a particular crime. For example, an indictment will be jurisdictionally defective if the acts it accuses defendant of performing simply do not constitute a crime (see People v Case, 42 NY2d 98), or if it fails to allege that a defendant committed acts constituting every material element of the crime charged (see People v McGuire, 5 NY2d 523). Insufficiency in the factual allegations alone, as opposed to a failure to allege every material element of the crime, does not constitute a nonwaivable jurisdictional defect which may be reviewed by this court even in the absence of an objection below (People v Soto, 44 NY2d 683, 684, supra).

In summation, at least in the absence of any claim that a defendant has been deprived of his right to be informed of the charges against him, any objection to the sufficiency of the factual allegations in an indictment which does properly charge the commission of a crime is waived unless timely made. In the instant appeals, there are no claims of actual prejudice, the indictments do fully charge the crime of criminal usury, and the arguments made before this court concern only the sufficiency of the factual allegations. Since the defendants did not timely object to this claimed defect, they have waived their right to do so and have failed to preserve any question of law for review by this court.

We have considered the other issues raised by defendant Corozzo, and find them to be unpersuasive. The trial court’s instructions to the jury were neither inconsistent nor erroneous, especially in light of the absence of any claim or indication that defendant Corozzo might have been authorized by law to charge a higher interest rate.

Accordingly, in each case the order appealed from should be affirmed.

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

In each case: order affirmed.

      . The language of the indictment carefully tracks and includes every material element of the crime of criminal usury, which was then defined as follows: "A person is guilty of criminal usury when, not being authorized or permitted by law to do so, he knowingly charges, takes or receives any money or other property as interest on the loan or forbearance of any money or other property, at a rate exceeding twenty-five percentum per annum or the equivalent rate for a longer or shorter period” (L 1967, ch 791, § 27). This language now defines the crime of criminal usury in the second degree (Penal Law, § 190.40).

      . Corozzo was charged as follows: "The defendants, acting in concert and in aid of one another, from between, in and about the month of June of 1974, to between, in and about the month of September of 1974, in the County of Suffolk, not being authorized and permitted by law to do so, knowingly charged, took and received money as interest on a loan of a sum of money from a certain individual at a rate exceeding twenty-five percentum per annum and the equivalent rate for a shorter period.”

      . The right to indictment by a Grand Jury in New York is dependent solely upon our State Constitution, since the Grand Jury provision contained in the Fifth Amendment to the Federal Constitution is not applicable to the States (Hurtado v California, 110 US 516; see Peters v Kiff, 407 US 493, 496).

      . Prior to January 1, 1974, section 6 of article I of the New York Constitution provided in pertinent part that "[n]o person shall be held to answer for a capital or otherwise infamous crime * * * unless on indictment of a grand jury”. That provision completely precluded any possibility of a waiver by a defendant of indictment by a Grand Jury because it established a "fundamental public [right]” (Matter of Simonson v Cahn, 27 NY2d 1, 4). Since then, however, the section has itself been amended to create a single exception to this principle: "a person held for the action of a grand jury upon a charge for such an offense, other than one punishable by death or life imprisonment, with the consent of the district attorney, may waive indictment by a grand jury and consent to be prosecuted on an information filed by the district attorney”.


text:
    In the Matter of the Claim of Anne Holcomb, Respondent, v Daily News et al., Appellants. Workmen’s Compensation Board, Respondent.
    Argued October 25, 1978;
    decided December 6, 1978

      POINTS OF COUNSEL

      Louis Busell and Peter M. Pryor for appellants.
    The court below erred as a matter of law. It is the law of this State, Professor Larson to the contrary notwithstanding, that an injury sustained by an employee in the course of transportation to or from work via an employer’s facility is not covered under the Workmen’s Compensation Law, unless the employer is obligated to furnish such transportation under the employment contract. (Van Gee v Korts, 252 NY 241; Matter of Guido v Terra-Rube Constr. Corp., 7 AD2d 554, 10 NY2d 858; Matter of De Voe v New York State Rys., 218 NY 318; Matter of Kowalek v New York Cons. R. R. Co., 229 NY 489; Matter of Murphy v New York City Tr. Auth., 38 AD2d 346, 33 NY2d 878; Capozzi v United States, 326 F Supp 784; Tablon v Interborough R. T. Co., 232 NY 410; Green v Travelers Ins. Co., 286 NY 358; Matter of Brothers v Manhattanville Food Shop, 23 AD2d 605.)

      Louis J. Lefkowitz, Attorney-General (Morris N. Lissauer, Ruth Kessler Toch and Daniel Polansky of counsel), for Workmen’s Compensation Board, respondent.
    Substantial evidence supported the decision of the Workmen’s Compensation Board that decedent’s fatal accident while riding on the employer’s truck arose out of and in the course of his employment. (Matter of Barrett v Al Charyn, Inc., 13 AD2d 863, 11 NY2d 849; Matter of Ruiz v Deldan Design, 27 AD2d 774; Matter of Hawthorne v Peartrees, Inc., 56 AD2d 961, 43 NY2d 683; Matter of Guggenheimer v Hedke & Co., 32 AD2d 1017, 27 NY2d 596; Matter of Collier v County of Nassau, 46 AD2d 970; Matter of Devito v Imbriano, 39 AD2d 796, 33 NY2d 757; Michigan Mut. Liab. Co. v State of New York, 31 AD2d 780, 25 NY2d 647; Matter of Peterson v Acme Elec. Corp., 277 App Div 820, 301 NY 816; Matter of Middleton v Coxsackie Correctional Facility, 38 NY2d 130; Matter of Wolfe v Sibley, Lindsay & Curr Co., 36 NY2d 505.)
   OPINION OF THE COURT

Wachtler, J.

The Workmen’s Compensation Board (Board) awarded death benefits to decedent’s widow, and the Appellate Division unanimously affirmed. Appellants contend that the fatal accident did not arise out of and in the course of decedent’s employment, as a matter of law, and that the claimant is therefore not entitled to the benefits sought.

On September 19, 1974 decedent, John Holcomb, an employee of the Daily News (News) was on his way to his place of work, the employer’s Brooklyn plant, when he noticed and hailed a passing News delivery truck. Recognizing Holcomb, the driver, who had transported him to the plant several times before, stopped the truck to pick him up. During the ride to the plant Holcomb accidentally fell from the truck suffering fatal injuries.

Although the News was not required by the terms of its express written contract to furnish its employees transportation to and from work, several News truck drivers testified at the hearing that they frequently and regularly did so. Indeed, it was a common practice for drivers to make advance transportation arrangements with other News employees. George Fox, business agent of the Mailers and Deliverers Union and former News truck driver, stated that the practice occurred "every night of the week, 365 days a year.”

Appellants sought to establish that a company rule prohibited this practice, but several News drivers indicated that not only did they know of no such rule, but that company supervisors and dispatchers were aware that drivers were transporting other News employees to work. Fox noted that supervisors had gone so far as to criticize drivers for not having picked up employees.

In a supplemental decision the Board found "that the employer had no rules against picking up fellow employees and driving them to the place of employment; that it was a common practice [of] the employer to have employees picked up and driven to the place of employment; that the employer in effect acquiesced in such course of conduct and that it was advantageous to the employer * * * to have employees brought to the plant on time.”

Preliminarily we note that appellants do not argue that the Board’s factual findings are unsupported by substantial evidence. They urge rather that as a matter of law transportation connected accidents are compensable only where the employer is obligated by contract, either express or implied, to furnish transportation to the injured employee. Since decedent’s contract of employment included no such provision, appellants contend that the fatal accident was not compensable.

The issue is whether workmen’s compensation benefits may properly be awarded for a transportation related injury, where an employer, absent an express contractual duty to provide its employees transportation, knowingly acquiesces to a long-established and commonly occurring practice of its truck drivers to transport other of its employees to work.

In workmen’s compensation cases involving injuries to employees while being transported by their employer to or from work, great emphasis has been placed on whether the transportation was gratuitous or contractually obligatory. It has long been the prevailing rule that transportation provided solely as a gratuitous accommodation for the employees’ convenience is not an incident of the employment (Matter of Kowalek v New York Cons. R. R. Co., 229 NY 489). Injuries sustained by an employee while being transported in this manner have, therefore, been held not to come under the ambit of the Workmen’s Compensation Law (Tallon v Inter borough R. T. Co., 232 NY 410). By contrast, injuries suffered by an employee while in a conveyance furnished by the employer are compensable, if the employment contract, expressly or impliedly, establishes the employer’s duty to provide transportation (Matter of Sihler v Lincoln-Alliance Bank & Trust Co., 280 NY 173). The rule has been stated as follows: "[A] servant is not entitled to compensation under the Workmen’s Compensation Act if injured in a conveyance while on his way to work, unless the contract of hiring expressly or impliedly provides for transportation” (Van Gee v Korts, 252 NY 241, 244-245).

But in more recent cases this rule has been tempered in favor of a more liberal approach. Any inflexible requirement of an express contractual obligation has been abandoned in cases where the employer regularly provides a conveyance exclusively to transport employees to and from work (Michigan Mut. Liab. Co. v State of New York, 31 AD2d 780, affd 25 NY2d 647; Matter of Collier v Nassau, 46 AD2d 970; cf. Matter of Littler v Fuller Co., 223 NY 369; but see Green v Travelers Ins. Co., 286 NY 358).

While transportation provided by an employer in .isolated cases only, or on an infrequent basis, may not be deemed to be an incident of employment, a frequent and regular practice of providing transportation must be viewed differently. Such a course of conduct indicates that the employer has implicitly assumed the responsibility of transporting his employees to work. The employees may come to rely on the employer to continue providing transportation and the employer may likewise encourage the practice to assure that the employees, will arrive at the job on time. At some point the practice may become so common and so associated with the employment that it must be seen as incidental to it (1 Larson, Workmen’s Compensation Law, § 17.30). Once this point is reached there is no meaningful distinction between transportation furnished by custom and that provided by contractual obligation. In both cases the employer has knowingly assumed a duty, partially at least, for his own benefit. Unfortunately it is predictable, and indeed inevitable, that accidents will occur from time to time while employees are traveling to work. An employer who assumes by custom or contract the responsibility to transport his employees must likewise bear the responsibility for the risks encountered in connection with the transportation. This is especially true when the employer is in exclusive control of the conveyance.

A different result is not required because the conveyance used to transport the employees is at the same time used for another purpose. It would make little sense to negate the employer’s obligation to conduct its employees to work on this basis alone, since the source of the employer’s duty is the frequency and regularity with which it knowingly provides transportation. Consideration must be given to these factors.

In the case before us, the Board found that "it was a common practice” of the employer to transport its employees to and from work, and "that the employer in effect acquiesced in such course of conduct and that [this practice] * * * was advantageous to [it]”. These findings are supported by the testimony of several News truck drivers, and are sufficient basis for the award of workmen’s compensation benefits.

This is not to say that the Board was obliged to find in favor of the claimant. The issue of whether a custom was sufficiently established to render the transportation an incident of the employment was a question of fact for the Board to decide. Our scope of review is limited to whether there is substantial evidence in the record as a whole to support the determination (Matter of Pell v Board of Educ., 34 NY2d 222, 230-231). An examination of the record reveals that this test is satisfied.

In deciding as we do today not only are we fashioning a more rational and sensible rule but we are also promoting the policy of the Workmen’s Compensation Law. As we recently noted: "[T]he Workmen’s Compensation Law, being remedial in character, is to be construed liberally to accomplish the economic and humanitarian objects of the act. (Matter of Husted v Seneca Steel Serv., 41 NY2d 140, 145.)” (Matter of Greene v City of New York Dept. of Social Servs., 44 NY2d 322, 326.)

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

Judges Jasen, Gabrielli, Jones, Fuchsberg and Cooke concur with Judge Wachtler; Chief Judge Breitel concurs in result only.

Order affirmed.

       By amendment the Workmen’s Compensation Board is now known as the Workers’ Compensation Board (L 1978, ch 79, eff April 18, 1978).