author: Wachtler, J.

text:
    In the Matter of Joseph Curle, Respondent, v Benjamin Ward, as Commissioner of the Department of Correctional Services of the State of New York, et al., Appellants.
    Argued February 7,1979;
    decided April 3, 1979,
    amended April 5,1979

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Lawrence L. Doolittle and Ruth Kessler Toch of counsel), for appellants.

      Richard R. Rowley and Jeffrey G. Plant for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, with costs to respondent, by providing that the declarations of unconstitutionality be stricken.

Examination of the record on respondent’s motion for summary judgment reveals that appellants have failed to tender sufficient evidence of the claimed detrimental impact of employee membership in the Ku Klux Klan (or even the perception thereof by inmates) upon the operation of correctional facilities to support the disciplinary action taken in this case. The only “evidence” submitted constitutes nothing more than speculation as to the effect which such membership might have upon the correctional facilities. In view of the meager and nearly barren state of the record, we do not address the broader constitutional issue raised by the parties.

Wachtler, J.

(dissenting). I would dissent. We need no more than what is in this record to meet the important constitutional issue presented by this case. Certainly our own intelligence and the documentation made a part of this record details the malevolent bigotry which the Ku Klux Klan represents. In addition the affidavits from prisoners, a psychiatrist and the Assistant Deputy Commissioner of the Department of Correctional Services, as well as our own common sense is proof enough of the effect prison guards who are members of the Klan would have on a prison population comprised mainly of Blacks and hispanics.

Only a brief recitation of the facts is necessary. On September 4, 1975 appellant, Benjamin Ward, Commissioner of the New York State Department of Correctional Services, promulgated a directive forbidding employees from Ku Klux Klan membership. Suspicions arose that respondent, Joseph Curie, a prison guard at Elmira Correction Facility, was a member of the Klan. To investigate these suspicions, the department interviewed Curie on October 2, 1975. At the interview, although Curie answered questions concerning his activities while at work, he refused, on the advice of counsel, to answer questions probing into his suspected Klan membership. On October 31 he was served with a notice of discipline, charging insubordination, suspending him without pay from service, and informing him that the penalty of dismissal was proposed.

Curie commenced this article 78 proceeding, converted into an action for injunctive and declaratory relief, seeking to bar his dismissal for refusing to answer questions regarding this suspected Klan affiliation. He also sought to have the commissioner’s directive declared unconstitutional. Special Term granted the guard’s motion for summary judgment, and the Appellate Division affirmed, one Justice dissenting.

Curie asserts that the commissioner’s policy of prohibiting prison guards from participation in the Ku Klux Klan unconstitutionally conditions public employment on the surrender of freedom of association. He further urges that termination of his employment for refusing to answer questions regarding his suspected affiliation with the Klan would similarly be unconstitutional. The commissioner contends that the State’s policy is compelled by the State interests in the effectiveness and security of the prison system and rights of the inmates to humane treatment. These interests, according to the commissioner, justify whatever abridgment there may be of the guard’s freedom of association.

It has long been recognized that the constitutional guarantees of freedom of speech and assembly necessarily imply like protections for the freedom of association (NAACP v Alabama, 357 US 449, 460; Abood v Detroit Bd. of Educ., 431 US 209, 233; Board of Educ. v Helsby, 37 AD2d 493, affd 32 NY2d 660). Since speech, assembly and association all serve a common purpose — to promote the free exchange of ideas — defeating any one of these rights might defeat them all (see Rice, Freedom of Association, Foreword, p viii, Robert McKay). Freedom of association therefore stands as a fundamental right in a free society (Buckley v Valeo, 424 US 1).

Guilt by association, repeatedly condemned as an unconstitutional violation of this right (De Jonge v Oregon, 299 US 353; Yates v United States, 354 US 298), may assume many forms. One such form, conditioning public employment on the surrender of this right, has therefore been held impermissible (Elrod v Burns, 427 US 347; Keyishian v Board of Regents, 385 US 589; Matter of Board of Educ. v Helsby, 37 AD2d 493, affd 32 NY2d 660, supra). Similarly the government’s power to compel disclosure of organizational affiliations is constitutionally circumscribed (Shelton v Tucker, 364 US 479; Bates v Little Rock, 361 US 516; but see Communist Party v Control Bd., 367 US 1). These restrictions help assure that legitimate governmental concern in the affairs of individuals and groups will not turn to unjustified oppression of beliefs and activities.

On the other hand, it is true, as the commissioner contends, that our commitment to liberty must sometimes yield to the exigencies of maintaining an orderly society (United States Civ. Serv. Comm. v Letter Carriers, 413 US 548, 567; Matter of Abdush-Shahid v New York State Narcotics Addiction Control Comm., 52 AD2d 846). A person may not exercise his rights without limitation at the expense of the rights of others (Lehman v City of Shaker Hgts., 418 US 298, 308 [Douglas, J., concurring]). Early in the development of constitutional law the courts were therefore called upon to arrive at a formulation to resolve conflicts between these interests. The principle which first emerged prohibited the government from infringing on fundamental rights unless exercised so as to pose "a clear and present danger [of] bringing] about the substantive evils that Congress has a right to prevent” (Schenck v United States, 249 US 47, 52; NAACP v Button, 371 US 415; Lewis v American Federation of Tel. & Radio Artists, 34 NY2d 265, 272). More recently the courts have announced that government may abridge a fundamental right only if the exercise of that right seriously jeopardizes a compelling State interest (Shapiro v Thompson, 394 US 618; First Nat. Bank of Boston v Bellotti, 435 US 765, 795; Phelan v City of Buffalo, 54 AD2d 262, 267). Accordingly in numerous cases the First Amendment freedom of association has bowed to the vital interests of the State (Matter of Shelofsky v Helsby, 32 NY2d 54; United States Civ. Serv. Comm. v Letter Carriers, 413 US 548, supra; Broadrick v Oklahoma, 413 US 601).

In assessing whether the government has established a compelling State interest in this case, one must first note that two closely interrelated State interests are involved: (1) to promote security and effectiveness in correction facilities by preventing arbitrary hostility and violence between guards and inmates, and (2) to protect the inmates’ right to be free from racial discrimination, thereby promoting rehabilitation.

Predictably, a determination of what constitutes a compelling State interest is no simple task. It is nevertheless clear that the government’s regulatory powers magnify where individual rights are exercised in public institutions — particularly prisons (Adderley v Florida, 385 US 39; cf. Grayned v City of Rockford, 408 US 104, 116; Pell v Procunier, 417 US 817, 827-830). The utter urgency of preventing violence in the prison system is at once apparent. "The interest in preserving order and authority in the prisons is self-evident. Prison life, relations between the inmates themselves and between the inmates and prison officials or staff contain the ever-present potential for violent confrontation and conflagration” (Jones v North Carolina Prisoners’ Union, 433 US 119, 132). The unfortunate truth of this observation is underscored by the nightmarish riot at Attica in 1971 which cost the lives of 9 guards and 34 inmates (Kwartler, Behind Bars: Prisons in America, p 32).

Unquestionably the Klan’s reputation for violence and illegality indicates that the employment of Klan members as prison guards will surely trigger a recurrence of violent disruption. The terrorism of the Ku Klux Klan is a matter of common knowledge, and amply supported by the record in this case (Report by the Committee on Un-American Activities, The Present Day Ku Klux Klan Movement [1967]; Epstein and Forster, Report on the Ku Klux Klan; Hoover, The Resurgent Klan, 52 Amer Bar Assn Journal, p 617). We must be mindful, however, that even if an organization engages in lawless and subversive activities, membership in the organization is not punishable absent proof of both knowledge of the illegality and the specific intent to further the organization’s illegal aims (Elfbrandt v Russell, 384 US 11). Abridging the freedom of association is prohibited for a mere advocacy of doctrine without the advocacy of unlawful action (compare Noto v United States, 367 US 290, with Scales v United States, 367 US 203). An "undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression” (Tinker v Des Moines School Dist., 393 US 503, 508). Nor is the "mere desire to avoid discomfort and unpleasantness that always accompany an unpopular viewpoint” (Tinker v Des Moines School Dist., supra, at p 509). The First Amendment is truly tested not by the voice of conformity but by the call to dissent.

But the State does not seek by the disciplinary action taken in this case to punish prison guards for harboring unpopular beliefs. Rather it seeks to rid the prison system of racism, relieving the institutional strain which can only erupt into outbreaks of disorder.

Although the objectives and practical necessities of imprisonment require a retraction of prisoners’ rights (Price v Johnson, 334 US 266, 285), an inmate retains that degree of constitutional freedom consistent with incarceration (Pell v Procunier, 417 US 817, 822, supra; Palmer, Constitutional Rights of Prisoners, 2d ed, pp 35-54; Jones v North Carolina Prisoners’ Union, 433 US 119, supra). And it is most clear that "[prisoners are protected under the Equal Protection Clause of the Fourteenth Amendment from invidious discrimination based on race” (Wolff v McDonnell, 418 US 539, 556). We must always be alert that society’s right and obligation to punish those convicted of criminal offenses not be extended to strip them bare of all constitutional freedoms. During a criminal’s imprisonment the State must stand vigil as guardian of those retained rights for the prisoner himself is incapable of doing so.

The prison population in this State is more than 70% Black and hispanic. The Klan openly professes hatred towards these groups. Inmates forced into daily interaction with Klan members who are prison guards will inevitably face the indignity, degradation and threat of violence spawned by racial discrimination.

Of course the mere mention of the words "racial discrimination” is not enough to justify the commissioner’s directive. A claim of discrimination must be supported by sufficient evidence (cf. Matter of Rockwell v City of New York, 12 AD2d 272, affd 10 NY2d 721), I believe, however, that the standard of proof to substantiate such a claim, should be somewhat less stringent than that generally required to establish a compelling State interest. One reason for the lesser standard is simply that the government is not here seeking to curtail liberty to advance its own purposes. Rather, it is seeking to safeguard the individual rights of the prisoners, over whom it has complete control, where these rights are irreconcilably opposed to the rights of Klansmen prison guards. The factor of conflicting rights distinguishes this case from United States v Robel (389 US 258) where no such consideration was involved.

Since a conflict of constitutional rights is presented here, resolution of this case requires a balancing of the competing interests. Critical to this process is the awareness that prisoners are a captive audience, powerless to divorce themselves from associations thrust upon them. "While petitioner clearly has a right to express his views to those who wish to listen, he has no right to force his message upon an audience incapable of declining to receive it” (Lehman v City of Shaker Hgts., 418 US 298, 307, supra [Douglas, J., concurring]).

Yet another reason impels that a lesser standard of proof apply here. A compelling State interest is established by a grave and immediate threat of harm. In most cases, as with the danger posed by subversive activity to national security, merely belonging to an organization without the specific intent to further its illegal aims is generally not enough to establish a compelling State interest because the likelihood is slight that grave and immediate harm will flow from membership alone. Hence, proof of illegal specific intent, indicative of a far more immediate threat, is necessary to meet the evidentiary burden. But racial discrimination is an entirely different matter. The mere presence of a guard who believes in Klan doctrine, may subtly, if not blatantly, infest the prison environment with the taint of racism, an affliction which can paralyze the rehabilitative process. Even if the prisoners do not know that a guard is a Klansman his attitudes may nonetheless be conveyed. The perception by inmates of these attitudes may breed frustration, hatred, and disruption. Hence grave and immediate harm may be caused by the communication of racist attitudes regardless of the absence of illegal specific intent or easily demonstrable racist behavior (cf. Cook v Hudson, 511 F2d 744; see, generally, Note, Nonrenewal of Teachers’ Contracts for Enrolling Children in a Private Segregated School, 7 U Tol L Rev 229).

Before termination of employment may be predicated on Klan membership, however, the record must show the probable effect of a Klansman’s attitudes on prisoners. In his affidavit, Edward Kaufman, Chief Psychiatrist and Medical Director at the Lower Eastside Service Center for the City of New York, stated "My review of material on the Klan emphasized that the history of this movement was such that an employee of the New York State Department of Corrections who was a member of the Klan could not do so without seriously endangering the mental health and rehabilitation of all inmates.” Similarly, Lewis L. Douglass, Executive Deputy Commissioner of the Department of Correctional Services of the State of New York, concluded "that many black inmates are thoroughly terrorized of the Ku Klux Klan, and of correction officers whom they believe to be members of the Ku Klux Klan.” In addition, numerous letters written by inmates of various New York prisons substantiate these opinions and indicate that the presence of Klansmen in our prisons poses an immediate danger of violence. This proof indicating the fear, interference with rehabilitation and threat of disruption triggered by the presence in the prison system of guards who support Klan dogma, is sufficient to withstand a motion for summary judgment. Indeed it is curious that the majority, unwilling to accept the proof of the " 'probable’ effect” of Klan membership on the prison system, characterizes what would usually be considered expert opinion evidence as "nothing more than speculation.”

That is not to say that the commissioner will ultimately prevail, but on this record he should not be deprived of the opportunity to submit further proof. To deny him such an opportunity would be to close our eyes to an explosive problem in correctional institutions, and to prevent the commissioner from taking steps to defuse the volatile prison environment. If the threat to the prison system is shown to be grave and immediate, it would be irresponsible and indeed indefensible to await catastrophe as the necessary antecedent to preventive action. The First Amendment does not require such a result, and the conscience will not allow it.

The order of the Appellate Division should be reversed, respondent’s motion for summary judgment denied, and the case remitted to Special Term.

Chief Judge Cooke and Judges Jasen, Jones and Fuchs-berg concur; Judge Wachtler dissents and votes to reverse in a separate opinion in which Judge Gabrielli concurs.

Order modified, with costs to respondent, in accordance with the memorandum herein and, as so modified, affirmed.

       Respondent has been reinstated pending the outcome of this action.


source: Caselaw Access Project

license: Public Domain

text:
    Yorktown Printing & Pennysaver Corporation, Appellant, v National Pennysavers, Inc., Respondent.
    Argued February 16, 1979;
    decided April 3,1979
   Appeal dismissed, without costs, upon the ground that the appeal does not lie under CPLR 5601 (subd [a], par [iii]).


text:
    Patricia D. O’Neill, Appellant, v John J. O’Neill, Respondent.
    Submitted February 16, 1979;
    decided April 3, 1979
   Appeal dismissed, without costs, upon the ground that the modification at the Appellate Division is not in a respect which is within the power of the Court of Appeals to review (CPLR 5601, subd [a], par [iii]); Patron v Patron, 40 NY2d 582).


text:
    In the Matter of Francis E. Rinehart, an Attorney, Appellant. Committee on Grievances of the Association of the Bar of the City of New York, Respondent.
    Decided April 3, 1979
   On the court’s own motion, the decision and order of this court dated March 29, 1979 each amended by adding thereto the following: "Motion for leave to appeal, and appeal taken as of right, from an order of the Appellate Division dated February 6, 1979 denying reargument, each dismissed without costs upon the ground that said order does not finally determine the proceeding within the meaning of the Constitution.” [See 46 NY2d 1036.]


text:
    In the Matter of U. S. Pioneer Electronics Corp., Appellant. Nikko Electric Corp. of America, Respondent.
    Submitted February 12, 1979;
    decided April 3, 1979
   Motion to dismiss the appeal herein denied.


text:
    In the Matter of Charles J. Wilcox, as District Attorney of Rensselaer County, Respondent, v M. Andrew Dwyer, Jr., as Judge of the County Court of Rensselaer County, et al., Appellants.
    Submitted March 19,1979;
    decided April 3, 1979
   Motion to dismiss the appeal herein denied.


text:
    In the Matter of Windsor Park Tenants’ Association et al., Appellants, v New York City Conciliation and Appeals Board et al., Respondents.
    Submitted February 26, 1979;
    decided April 3, 1979
   Motion for leave to appeal and for a stay dismissed upon the grounds that (1) the order of the Appellate Division sought to be reviewed [see 59 AD2d 121] does not necessarily affect the final determination as required by CPLR 5602 (subd [a], par 1, cl [ii]) (Martin v Alabama 84 Truck Rental, 33 NY2d 685; Cohen and Karger, Powers of the New York Court of Appeals, § 79, p 344), and (2) movants are not aggrieved by said order of the Appellate Division (CPLR 5511; Matter of Ton-Da-Lay v Diamond, 36 NY2d 856; Cohen and Karger, Powers of the New York Court of Appeals, § 91, pp 393-394).


text:
    The People of the State of New York, Respondent, v Peter Conlon, Appellant.
    Submitted March 5,1979;
    decided April 3,1979
   Motion to dismiss the appeal taken by defendant granted and his appeal dismissed upon the ground that the order appealed from is not adverse to defendant, as required by CPL 450.90 (subd 1).


text:
    Vita Brienza et al., Respondents, v Thomas F. Roche, as Director of the Department of Personnel of the City of New York, et al., Appellants.
    Submitted March 21, 1979;
    decided April 5, 1979

      APPEARANCES OF COUNSEL

      Allen G. Schwartz, Corporation Counsel (L. Kevin Sheridan and Susan L. Bloom of counsel), for appellants.

      Ross M. Branca for respondents.
   OPINION OF THE COURT

Order reversed, with costs, and the petition dismissed on the authority of Yetman v D’Ambrose (46 NY2d 830).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg.


text:
    Joseph Cetrone et al., Respondents, v Alphonse E. D’Ambrose, as Director of the Department of Personnel and Chairman of the Civil Service Commission of the City of New York, et al., Appellants.
    Submitted March 21, 1979;
    decided April 5,1979

      APPEARANCES OF COUNSEL

      Allen G. Schwartz, Corporation Counsel (L. Kevin Sheridan, Carolyn E. Demarest and Susan L. Bloom of counsel), for appellants.

      Joseph W. Allen for respondents.
   OPINION OF THE COURT

Order reversed, with costs, and the petition dismissed on the authority of Yetman v D’Ambrose (46 NY2d 830).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg.


author: Jasen, J.

text:
    In the Matter of Baumann & Sons Buses, Inc., et al., Respondents, v Board of Education, Northport-East Northport Union Free School District, Appellant, and Starlite Bus Company, Inc., Intervenor-Respondent.
    Argued February 7, 1979;
    decided April 5, 1979

      APPEARANCES OF COUNSEL

      Bernard C. Smith for appellant.

      Frederic Block and Joel Markowitz for respondents.
   OPINION OF THE COURT

Memorandum.

The judgment of Supreme Court appealed from and the order of the Appellate Division thereby brought up for review should be reversed, with costs, and the earlier judgment of Supreme Court dismissing the petition reinstated.

Although we are informed that the particular controversy between the parties has now been resolved, we do not dismiss the appeal on grounds of mootness. The issue of statutory construction is one of first instance and of public importance affecting boards of education and trustees of school districts generally and thus likely to recur (Le Drugstore Etats Unis v New York State Bd. of Pharmacy, 33 NY2d 298, 301; Matter of Plumbing, Heating, Piping & Air Conditioning Contrs. Assn. v New York State Thruway Auth., 5 NY2d 420, 422, n 1).

We reverse the disposition at the Appellate Division and reinstate the dismissal of the petition for the reasons stated in the dissenting opinion of Mr. Justice Joseph A. Suozzi at the Appellate Division.

The Legislature has vested responsibility and discretion in boards of education and district trustees to choose whether to provide transportation services by extension of existing contracts or to let bids anew. Of course, should a board of education, after competitive bidding, elect to reject all bids and extend the existing transportation contract it may do so (Matter of White Carriage Corp., 16 Ed Dept Rep 354). The issue here is the obverse; may the courts compel the board to reject all bids and to continue with the existing carrier when that carrier later offers to cut its bid price? Whatever might be the apparent short-term economy of mandating acceptance of the lowest cost contract in a single instance, it would be destructive of the competitive bidding process to permit an existing carrier, after having been underbid, then to circumvent the bidding process by unilaterally insisting on extension of its existing contract, even though at a below-bid figure. So to shackle the board or trustee would be to clothe the existing carrier with power to manipulate and thus prospectively to frustrate competitive bidding.

Jasen, J.

(dissenting). After having been awarded a transportation contract for the 1976-1977 school year on the basis of competitive bidding, respondent Bauman & Sons Buses, Inc., sought to extend its contract for the 1977-1978 school year. Rather than accepting this offer, appellant board of education solicited competitive bids for the contract. Although respondent was invited to, and did, participate in the bidding, appellant Starlite Bus Company, Inc., submitted the lowest bid. On the basis of that bid, the school board awarded the contract to Starlite, notwithstanding the continued offer by Baumann to extend its 1976-1977 contract at an alleged savings of approximately $45,000 over the bid submitted by Starlite.

Under these circumstances, the majority holds that the board of education did not abuse its discretion in awarding the transportation contract to Starlite. I cannot agree and, therefore, dissent.

While it is true that a board of education has discretion to extend an existing transportation contract or solicit competitive bids (Education Law, § 305, subd 14), that discretion is not unbridled: it is intended to ensure that transportation contracts are awarded in the best interests of the school district. To this end, a board of education may, after receiving competitive bids, reject them all and negotiate an extension of an existing contract. (Matter of White Carriage Corp., 16 Ed Dept Rep 354.) Concerning the effect which rejection of competitive bids and renegotiation of existing contracts might work upon the competitive bidding process, the Commissioner of Education, charged with administration of the Education Law (see Matter of Howard v Wyman, 28 NY2d 434, 438), stated: "Although it is no doubt unpleasant from the point of view of the low bidder when a district negotiates the extension of an existing contract after soliciting bids on a new contract, both the bidding requirement and the authority to extend contracts are meant to enable a district to obtain the necessary transportation at the best price available, and they appear to have had that effect in this instance.” (Matter of White Carriage Corp., 16 Ed Dept Rep, at p 355.) Quite correctly, in my view, the commissioner has, in interpreting the Education Law, placed the best interests of the school district above the parochial interests of competing service contractors. (Cf. Orelli v Ambro, 41 NY2d 952; Matter of Ross v Wilson, 308 NY 605.)

In the current fiscal crisis gripping our municipalities and school districts (see Flushing Nat. Bank v Municipal Assistance Corp. for the City of N. Y., 40 NY2d 731; Bethlehem Steel Corp. v Board of Educ., 44 NY2d 831, app dsmd sub nom. Rochester v Waldert, 47 USLW 3301 [US Oct. 31, 1978] [No. 78-386]), can it logically be said that the board of education did not in the instant case abuse its discretion by ignoring a claimed savings of approximately $45,000 for the very same transportation services desired? Certainly, if the board were concerned with the safety or reliability of the services offered by a contractor, a determination to award the transportation contract to another contractor at an increased cost would lie in the discretion of the board. However, in the present case, there is no indication of any such concern. Not only was the board familiar with Baumann’s services from the 1976-1977 school year, but, moreover, it could have found little fault with those services inasmuch as it subsequently awarded Baumann the transportation contract for the 1978-1979 school year. I cannot but conclude under these circumstances that the board abused its discretion.

Accordingly, I would affirm the order of the Appellate Division.

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

Judgment appealed from and the order of the Appellate Division brought up for review reversed, etc.


author: Per Curiam.

text:
    Friends of Animals, Inc., Respondent, v Associated Fur Manufacturers, Inc., et al., Appellants, et al., Defendants.
    Argued February 12, 1979;
    decided April 5, 1979

      APPEARANCES OF COUNSEL

      Robert Cammer, Harold I. Cammer and Charles Goldberg for appellants.

      Sidney Schreiberg for respondent.
   OPINION OF THE COURT

Per Curiam.

Because plaintiff failed to show facts sufficient to require a trial of the issue of actual malice, defendants’ motion for summary judgment was properly granted.

The complaint in this libel action alleges a single cause of action against all defendants for conspiracy to defame plaintiff by publication of a false statement that "Friends of Animals has hired trappers to skin baby seals alive to be filmed and shown on television under the presumption that the act was spot news”. Plaintiff asserts that this was published in retaliation for its campaign to persuade people not to buy fur coats. Trial Term granted defendants’ motion for summary judgment and dismissed the complaint, but the Appellate Division reversed. We now reinstate the judgment of Supreme Court.

We agree with the majority at the Appellate Division that for purposes of seeking damages for defamation plaintiff is a "public figure”. Accordingly defendants must be deemed to have a qualified privilege and may be held to be liable only if plaintiff establishes the existence of actual malice. (Rinaldi v Holt, Rinehart & Winston, 42 NY2d 369, 383-384; Chapadeau v Utica Observer-Dispatch, 38 NY2d 196.) This plaintiff has failed to do.

To obtain summary judgment it is necessary that the movant establish his cause of action or defense "sufficiently to warrant the court as a matter of law in directing judgment” in his favor (CPLR 3212, subd Do]), and he must do so by tender of evidentiary proof in admissible form. On the other hand, to defeat a motion for summary judgment the opposing party must "show facts sufficient to require a trial of any issue of fact” (CPLR 3212, subd [b]). Normally if the opponent is to succeed in defeating a summary judgment motion he, too, must make his showing by producing evidentiary proof in admissible form. The rule with respect to defeating a motion for summary judgment, however, is more flexible, for the opposing party, as contrasted with the movant, may be permitted to demonstrate acceptable excuse for his failure to meet the strict requirement of tender in admissible form (e.g., Phillips v Kantor & Co., 31 NY2d 307; Indig v Finkelstein, 23 NY2d 728; also CPLR 3212, subd [f]). Whether the excuse offered will be acceptable must depend on the circumstances in the particular case. Notwithstanding that the burden on the opponent is not always so heavy as that on the movant, in this case the opposing plaintiff has tendered no evidentiary proof of actual malice in any form. Nothing but conclusory assertion is offered.

In view of our conclusion in this regard, we do not reach or consider defendants’ other contentions.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the judgment of Supreme Court granting defendants’ motion for summary judgment dismissing the complaint reinstated.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur in Per Curiam opinion.

Order reversed, with costs, and the judgment of Supreme Court, New York County, reinstated. Question certified answered in the negative.


text:
    Robert Carey, Appellant, v New York State Human Rights Appeal Board et al., Respondents.
    Argued February 16, 1979;
    decided April 5, 1979

      APPEARANCES OF COUNSEL

      Robert D. Arenstein and Arthur F. Woodard for appellant.

      Robert Abrams, Attorney-General (Judith T. Kramer and Samuel A. Hirshowitz of counsel), for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (61 AD2d 804).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg.


text:
    The People of the State of New York, Respondent, v Robert Joseph Williams, Appellant.
    Argued February 9,1979;
    decided April 5,1979
    APPEARANCES OF COUNSEL

      Peter L. Yellin, Public Defender (James M. Zacearía of counsel), for appellant.

      Patrick D. Monserrate, District Attorney (Michael R. Wright of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Though the prosecutor’s summation comment suggesting that the defendant may have engaged in other criminal conduct was prejudicial in nature, the Trial Judge’s lucid curative instructions to the jury, .following which neither any further objection nor any request for a mistrial was made, must be deemed to have corrected the error to the defendant’s satisfaction.

The other prosecutorial summation statements to which defendant has drawn our attention went without objection at all. Consequently, they are not preserved for our review (CPL 470.05, subd 2; People v Utley, 45 NY2d 908). Had the summation excesses assumed due process proportions depriving defendant of his constitutional right to a fair trial and had they been preserved, the harmless error doctrine, on which the Appellate Division relied, would, of course, have been inapplicable (see People v Crimmins, 36 NY2d 230, 237-238; People v Savvides, 1 NY2d 554).

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

Order affirmed in a memorandum.


text:
    Associated Coal Sales Corp. et al., Appellants, v Joseph T. Hughes, Defendant, and Thyssen Incorporated et al., Respondents.
    Argued March 26, 1979;
    decided April 5, 1979
   Appeal dismissed, without costs. No appeal lies as of right from that portion of the order appealed from which unanimously affirms the dismissal of the complaint against August Thyssen-Hutte Aktiengesellschaft (CPLR 5601, subd [a]). The remainder of the order does not finally determine the action within the meaning of the Constitution. (Walker v Sears, Roebuck & Co., 36 NY2d 695; Lizza Inds. v Long Is. Light. Co., 36 NY2d 754; see Orange & Rockland Utilities v Howard Oil Co., 46 NY2d 880.)


text:
    Joseph C. Valentino, Jr., as Administrator of the Estate of Lorraine B. Valentino, Deceased, Appellant, v State of New York, Respondent.
    (Claim No. 57242.)
    Argued March 26, 1979;
    decided April 5, 1979
   Appeal dismissed, without costs, upon the ground that the dissent at the Appellate Division is not on a question of law (CPLR 5601, subd [a], par [i]).


text:
    Berwick Development Corporation, Respondent, v Daniel Corsani, Appellant.
    Submitted March 26,1979;
    decided April 5,1979
   Motion to dismiss the appeal herein granted and the appeal dismissed, without costs, upon the ground that a direct appeal within the meaning of article VI (§ 3, subd b, par [2]) of the New York State Constitution does not lie from a judgment which has been reviewed by an appellate court.


text:
    John L. Grady et al., Appellants, v Roderick A. McLean, Respondent.
    Submitted March 12, 1979;
    decided April 5,1979
   Motion for leave to appeal from an order of the Appellate Division dated February 16, 1979 dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution. Motion pursuant to CPLR 5514 (subd [a]) for an extension of time to move for leave to appeal dismissed upon the ground that the statute does not authorize such relief. Motion for leave to appeal from an order of the Appellate Division dated April 14, 1978 dismissed upon the ground that it was not timely made.


text:
    Helen C. Greene, Respondent, v Theodore J. Greene, Individually and as a Partner of Finley, Kumble, Wagner, Heine & Underberg, et al., Defendants and Third-Party Plaintiffs-Appellants. Norman R. Grutman et al., Third-Party Defendants-Respondents.
    Submitted March 26,1979;
    decided April 5,1979
   Motion to dismiss the appeal herein denied.


text:
    Irving Mason, Individually and as Personal Representative of the Estate of Gussie Mason, Deceased, Doing Business as Mason Management Company, Respondent, v Samuel Wolpo, Appellant. Irving Mason, Individually and as Personal Representative of the Estate of Gussie Mason, Deceased, Doing Business as Mason Management Company, Respondent, v Foxcroft Village, Inc., Appellant, and Richard Wolpo et al., Respondents.
    Submitted March 12,1979;
    decided April 5,1979
   Motion, insofar as it seeks leave to appeal from an order of the Appellate Division which affirmed an order of County Court denying respondent Wolpo’s motion to vacate the court’s judgment of October 25, 1977, dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion, insofar as it seeks leave to appeal from an order of the Appellate Division which affirmed the judgment of County Court entered January 6, 1978, denied.


text:
    In the Matter of the Board of Education of Deer Park Union Free School District, Respondent, v Deer Park Teachers Association, by its President, Marletta Stevenson, Appellant. (And Another Proceeding.)
    Submitted March 5,1979;
    decided April 5,1979
   Motion for leave to appeal granted. Motion for a stay denied, but see CPLR 5519 (subd [a], par 2).


text:
    The People of the State of New York, Respondent, v Gregory Bacon and Jerry Skinner, Appellants.
    Submitted March 19, 1979;
    decided April 5, 1979
   Motion to dismiss the appeal of appellant Bacon granted and said appeal dismissed upon the ground that appellant Bacon is not presently available to obey the mandate of the court in the event of an affirmance (see People v Del Rio, 14 NY2d 165; People ex rel. Mallin v Kuh, 38 NY2d 982).


text:
    John R. Quinzio, Appellant, v Town of Clay et al., Respondents. (And Six Other Titles.)
    Submitted March 12,1979;
    decided April 5,1979
   Motion by respondents Calocerinos and Spina to dismiss the appeal herein granted and the appeal dismissed as to all respondents, with costs and $20 costs of motion to respondents Calocerinos and Spina only, upon the grounds that (1) insofar as the appeal is taken from orders of the Appellate Division affirming dismissal of the complaint, no substantial constitutional question is directly involved, and (2) insofar as the appeal is taken from orders of the Appellate Division affirming orders settling the record, said orders do not finally determine the action within the meaning of the Constitution.


author: Fuchsberg, J.

text:
    In the Matter of Barbara Axel, Respondent, v Duffy-Mott Company, Inc., Respondent. Workers’ Compensation Board, Appellant.
    Argued February 6, 1979;
    decided April 5, 1979

      POINTS OF COUNSEL

      Robert Abrams, Attorney-General (Henriette Frieder and Daniel Polansky of counsel), for appellant.
    I. The court below erred, as a matter of law, in weighing the evidence in the record and making original factual conclusions contrary to those made by the Workers’ Compensation Board. (Matter of Morton, 284 NY 167; Matter of Pell v Board of Educ., 34 NY2d 222; Matter of Shell Creek Sailing Club v Board of Zoning Appeals of Town of Hempstead, 20 NY2d 841; Matter of Stork Rest. v Boland, 282 NY 256; Matter of Slade v Perkins, 33 NY2d 899; Matter of Daly v Opportunities for Broome, 39 NY2d 862; Matter of Gordon v New York Life Ins. Co., 300 NY 652; Matter of Greene v City of New York Dept. of Social Servs., 44 NY2d 322; Matter of Schmidt v Wolf Contr. Co., 269 App Div 201, 295 NY 748.) II. Substantial evidence, as defined by the courts, supported the Workers’ Compensation Board’s factual decision that the employer had discriminated against claimant as prohibited under the provisions of section 120 of the Workers’ Compensation Law. (Matter of Gordon v New York Life Ins. Co., 300 NY 652; Matter of Hawthorne v Peartrees, Inc., 56 AD2d 961, 43 NY2d 683; Matter of Guggenheim v Hedke & Co., 32 AD2d 1017, 27 NY2d 596; Matter of Holland v Edwards, 307 NY 38; City of Schenectady v State Div. of Human Rights, 37 NY2d 421; State Div. of Human Rights v Kilian Mfg. Corp., 35 NY2d 201; Matter of Stone v N. Y. Artificial Breeders’ Co-op., 33 AD2d 524, 25 NY2d 742.)

      Charles K. O’Neill, Paul G. Pennoyer, Jr., and Laurence S. Markowitz for Duffy-Mott Company, Inc., respondent.
    I. Section 120 of the Workers’ Compensation Law requires that the board’s finding of discrimination be supported by substantial evidence that claimant’s discharge was caused and motivated by her workers’ compensation claim. (Matter of Stork Rest. v Boland, 282 NY 256; Laiken v American Bank & Trust Co., 34 AD2d 514; Tilbro Home Bldrs. v Leidel, 42 AD2d 578, 35 NY2d 347; Matter of McGrath v New York State Div. of Human Rights, 52 AD2d 1027; State Div. of Human Rights v Service Systems Corp., Vending Div., 40 AD2d 1075; Matter of State Div. of Human Rights v Bystricky, 36 AD2d 278, 30 NY2d 322; Matter of Antarenni Inds. v State Human Rights Appeal Bd., 38 AD2d 948; Matter of Sperry Rand Corp. v State Human Rights Appeal Bd., 46 AD2d 678; Matter of City of Albany v Helsby, 36 AD2d 348, 29 NY2d 433.) II. The board’s finding of discrimination is not supported by substantial evidence. (Matter of Kopec v Buffalo Brake Beam-Acme Steel & Malleable Iron Works, 304 NY 65; Matter of Stearns v American Laundry Mach. Co., 279 App Div 481; Jackson v New York State Div. of Human Rights, 42 AD2d 684; Matter of Antarenni Inds. v State Human Rights Appeal Bd., 38 AD2d 948; Bache & Co. v State Div. of Human Rights, 35 AD2d 928, 31 NY2d 1021; Matter of New York Tel. Co. v Wethers, 36 AD2d 541, 30 NY2d 791; Matter of Tecce v McKesson & Robbins, 23 AD2d 594, 20 NY2d 779; Matter of James, 34 NY2d 491.) III. The decision of the court below reversing the board’s determination was based on a proper consideration of the entire record in the case. (Board of Educ. v State Div. of Human Rights, 38 AD2d 657, 30 NY2d 925; Matter of Marsh v Hanley, 50 AD2d 687; Matter of Kopec v Buffalo Brake BeamAcme Steel & Malleable Iron Works, 304 NY 65; Matter of Stearns v American Laundry Mach. Co., 279 App Div 481; Universal Camera Corp. v Labor Bd., 340 US 474; Matter of Stork Rest. v Boland, 282 NY 256; 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176; Matter of McCormack v National City Bank of N. Y., 303 NY 5; Matter of Cortland-Clinton, Inc. v New York State Dept. of Health, 59 AD2d 228.) IV. The portions of the record cited by the Attorney-General do not constitute substantial evidence supporting the board’s decision.
   OPINION OF THE COURT

Fuchsberg, J.

On this appeal we for the first time meet section 120 of the Workers’ (formerly Workmen’s) Compensation Law head-on. This relatively recently enacted statute forbids employers to discharge or otherwise discriminate against employees who claim compensation for job-related injuries or who testify in proceedings to enforce such payment. Its violation subjects the employer to a statutory penalty and entitles the mistreated employee to be reinstated and reimbursed for any wages lost as a result of the discrimination.

The case comes to us in the following context: On April 9, 1973, at the instance of a third party, Barbara Axel, a computer programmer employed by the Duffy-Mott Company, sustained a serious injury to her right arm as a result of which she later filed a compensation claim against her employer. On January 25, 1974, two days after she had testified at a hearing on her claim, Duffy-Mott terminated her employment. According to the complaint filed by Ms. Axel with the compensation board, her discharge was in retaliation for her prosecution of the injury claim. Duffy-Mott contends that its action was premised solely on a deterioration in job performance and on a dispute the employee had with a supervisor. After a hearing, the workers’ compensation referee resolved the issue in the employee’s favor, a determination thereafter unanimously affirmed by a three-member panel of the board itself. However, on appeal to the Appellate Division, that court, by a vote of three to two, reversed and dismissed the claim (62 AD2d 651). It held as a matter of law that the evidence established that Ms. Axel’s discharge was based on permissible, nonretaliatory grounds. For the reasons that follow, we reverse.

Initially staking out some of the guideposts by which this appeal is to be approached, we first note section 120’s self-evident purpose — to insure that employees may exercise their rights under the compensation statutes without fear that doing so will prejudice them in their employment (see Department of Labor Memorandum on L 1973, ch 235, NY Legis Ann, 1973, p 244; 2A Larson, Workmen’s Compensation Law, § 68.36). As with retaliation statutes generally, it also may be said to promote the integrity of board proceedings by encouraging employees to speak openly and honestly at compensation hearings, whereas unremedied retaliation tends to stifle not only the particular employee against whom it is directed but all others who become aware of the fact that reprisal can be taken with impunity (see Lopatka, Protection Under the National Labor Relations Act and Title VII of the Civil Rights Act for Employees Who Protest Discrimination in Private Employment, 50 NYU L Rev 1179, 1195).

It is also pertinent to observe the difference between the basic standards by which the board was governed in reaching its decision, and those to which the quasi-judicial determination it arrived at was to be subjected on judicial review. It was the board’s prerogative to weigh the evidence and decide the case in favor of the party whose proofs, in its view, preponderated (cf. 3 Larson, Workmen’s Compensation Law, § 80.20). As to pure questions of fact and factual inferences to be drawn therefrom, it needs no supporting citations to recite that a decision of the board is conclusive upon the courts if supported by substantial evidence. It is equally well established that it is not the role of a reviewing court to substitute its view of the factual merits of a controversy for that of an administrative agency (cf. Matter of Malacarne v City of Yonkers Parking Auth., 41 NY2d 189, 193; Matter of Fisher [Levine] 36 NY2d 146, 150).

Of course, in searching the record for the presence of substantial evidence in a case premised on an alleged violation of a statute purposed to counter retaliation or other discrimination, we must keep in mind that those engaged in such conduct rarely broadcast their intentions to the world. Rather, employers who practice retaliation may be expected to seek to avoid detection, and it is hardly to be supposed that they will not try to accomplish their aims by subtle rather than obvious methods (see, generally, Matter of Holland v Edwards, 307 NY 38, 45; State Div. of Human Rights v Kilian Mfg. Corp., 35 NY2d 201, 209-210). Moreover, employers are vested with considerable discretion in the hiring and firing of their employees so as to maintain an efficient and productive work force, and the visible manifestations of even a most improperly motivated discharge may be difficult to sort out from a nonretaliatory exercise of this discretion.

Inspecting the record here with sensitivity to these factors, we are convinced that, though the case could be termed a close one, the board’s decision finds adequate support in the evidence. It is at once apparent that September 9, 1973 might be found to represent a line of demarcation in a pattern of events starting with the day of the claimant’s injury and ending with that of her discharge. A letter concededly sent by Ms. Axel’s lawyer to Duffy-Mott on that date could well have served to bring home the fact that his client was intent on pursuing her compensation remedy. It was no mere coincidence, says the claimant, that the receipt of this letter marked the end of a long period, starting with the time she had first come to work for Duffy-Mott, during which memoranda written by her supervisors consistently described her abilities in glowing terms and regularly recommended that she receive substantial salary increases. It is significant in tying Duffy-Mott’s change of attitude to the receipt of the letter, continues the claimant, that, before it arrived, she received yet another increase months after the accident despite the intervention of her injury-enforced absence and a somewhat handicapped work performance upon her return.

Be that as it may, whatever inferences might be drawn from the events of the preletter period if they stood alone, they become far more pronounced by reason of the sharply contrasting second part of the before and after picture that emerges from the record that follows the lawyer’s communication. Then only does Ms. Axel’s personnel file begin to contain adverse references to her attendance record, her use of an office phone to make personal calls during working hours and her alleged failure to complete assigned work promptly. Particularly odd in light of the excellence of her antecedent ratings is a directive that claimant’s supervisors document all discussions with her on these matters. While reasonable men most certainly could differ as to the inferences to be drawn from this train of events, we cannot say that it does not admit of ones consistent with the board’s apparent conclusion that Duffy-Mott was attempting to build a case against Ms. Axel so that it would have an excuse to discharge her (see, generally, Spurlock, Proscribing Retaliation Under Title VII, 8 Ind L Rev 453, 476-489).

A sharp question of fact also arose over whether claimant’s supervisors ever actually brought the performance deficiencies mentioned in her file to her attention. Ms. Axel flatly denied these subjects were ever broached, and the evaluation of her credibility obviously was for the board (Matter of Slade v Perkins, 33 NY2d 988; Matter of Gordon v New York Life Ins. Co., 300 NY 652, 654; 3 Larson, Workmen’s Compensation Law, § 80.20).

True, the employer did demonstrate the existence of factors that could have had a deleterious effect on claimant’s ability and desire to do her work properly. The severity of Ms. Axel’s compensation injury itself — it included a 75% loss of use of her right shoulder which, in terms of its over-all effect, resulted in a worker’s compensation finding that she had lost 30% of the use of her right arm — is one such factor. By an unfortunate coincidence, as the record shows, claimant, an only child, also lost her mother in the fall of 1973 and thereafter, additionally, had to assume the burden of coping with her father’s psychotic reaction to the death of his wife. These certainly could have affected her job performance. But that was not the whole question. Rather, it was whether, but for the animus which the claimant insists the pressing of her compensation claim induced, this hitherto exemplary and loyal employee would have been dismissed. And the answer to that question could rightfully take into account not only the first-rate employment history that preceded Ms. Axel’s misfortunes, but their objective and unfeigned character and the appropriateness of her reaction to them.

Moreover, in the employer’s accusation that she changed her hair style and dress following her mother’s death, it was permissible for the board to find confirmation of the charge that Duffy-Mott was searching for a pretextual ground for letting Ms. Axel go. Since claimant spent her work time with a computer and her fellow employees and not with clients of the firm, Duffy-Mott had little basis, if any, on which to argue that her appearance had a direct adverse effect on its business. Just creating such an issue could demonstrate a remarkable insensitivity to Ms. Axel’s need for a change of pace that might brighten her life and help her rise above the understandably depressing nature of her misfortunes. In any event, it. is hard to quarrel with the board’s conclusion that the employer’s attitude in this regard was more characteristic of one seeking an excuse than of one justifiably upset over an employee’s poor performance.

Finally, the circumstances immediately preceding the time of claimant’s discharge were a most crucial factor in evaluating its propriety. In this connection, there are a number of indications of the mounting tension with which the employer approached the time of the compensation hearing scheduled for January 23, 1976. Some days before the hearing, when several of Ms. Axel’s coworkers received subpoenas to testify, her supervisor made sure that their displeasure was reflected in a memorandum to claimant’s file. And, practically on the eve of the hearing, Ms. Axel found herself arguing with a supervisor when she was criticized because her prospective absence on the day she was scheduled to appear before the board would delay the completion of one of her work assignments. It was this "dispute” that was later to be cited by the employer as a nonretaliatory reason for her severance.

Moreover, these events could almost be said to have been presaged by an even more ominous one that faced Ms. Axel at the beginning of that month. In December of 1973, she had been given a leave of absence, inclusive of some days of earned vacation, presumably to afford her time to recover from her problems. However, when she returned to work in January, she was greeted with an announcement that she had been reduced to the status of one on a probationary "trial period”. Add to this the fact that claimant’s notice of termination that same month followed on the heels of her compensation testimony by only two days, and it is impossible to say that the board could not find in this course of conduct meaningful support for an inference that the employer’s motive for dismissing Ms. Axel was retaliatory.

Furthermore, once the employee had introduced evidence of retaliation, the board could have treated the burden of proving that the termination was for a legitimate reason independent of a retaliatory or other impermissible motive as having shifted to the employer (cf. Matter of Maloff v City Comm. on Human Rights [Anilyan], 46 NY2d 908; Matter of Pace Coll. v Commission on Human Rights of City of N. Y., 38 NY2d 28, 40).

It is noteworthy, therefore, that Duffy-Mott offered no evidence of its treatment of other employees who were tardy, who made personal telephone calls during business hours or whose performance was called into question on the other grounds raised against Ms. Axel. No documentation of established company policies or rules on any of these subjects was proffered, and no showing was made that claimant’s conduct on this score differed after her lawyer’s letter was introduced into the scene as against what it had been earlier. Any proof that the employer’s diarying of relatively commonplace conversations with Ms. Axel was consistent or inconsistent with its practice with other employees was also conspicuous by its absence (see Spurlock, Proscribing Retaliation Under Title VII, 8 Ind L Rev 453, 476-477).

In sum, allowing for the elusiveness of proof of discriminatory intent, the inferences to be drawn from the evidence submitted in this case formed an adequate foundation for the board’s finding that Duffy-Mott’s severance of Ms. Axel was a violation of section 120 in that it was in retaliation for her pursuit of the compensation claim (see, generally, 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176; Bethlehem Steel Corp. v New York State Div. of Human Rights, 36 AD2d 898).

Before closing, however, we add a caveat. The board, in delineating the rationale for its decision, commented on the fact that Duffy-Mott had "vigorously” opposed Ms. Axel’s compensation and unemployment insurance claims. As to that, we take this occasion to observe that, absent unusual circumstances, no adverse inferences may be drawn from such conduct per se. The employer, too, has a right to present its position to the board and should not be penalized for doing so (cf. Horovitz, Injury and Death Under Workmen’s Compensation Laws, p 387 [discussing due process rights of employers]). This is certainly no less true where, as here, the employer is not self-insured and turns over the conduct of the case to its carrier. Nevertheless, inasmuch as the record contains sufficient acceptable evidence to more than meet the substantiability standard, we are convinced that this concern of the board did not affect its ultimate determination.

For all these reasons, the order of the Appellate Division should be reversed, with costs, and the decision of the Workers’ Compensation Board reinstated.

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

Order reversed, etc.

APPENDIX

WORKERS’ COMPENSATION LAW

§ 120. Discrimination against employees who bring proceedings

It shall be unlawful for any employer or his duly authorized agent to discharge or in any other manner discriminate against an employee as to his employment because such employee has claimed or attempted to claim compensation from such employer, or because he has testified or is about to testify in a proceeding under this chapter. Any employer who violates this section shall be liable to a penalty of not less than one hundred dollars or more than five hundred dollars, as may be determined by the board. All such penalties shall be paid into the state treasury and be applicable to the expenses of administering this chapter. Such penalty shall be collected in like manner as an award of compensation. Any employee so discriminated against shall be restored to his employment and shall be compensated by his employer for any loss of wages arising out of such discrimination: provided, that if such employee shall cease to be qualified to perform the duties of his employment, he shall not be entitled to such restoration and compensation. The employer alone and not his carrier shall be liable for such penalties and payments. Any provision in an insurance policy undertaking to relieve the employer from the liability for such penalties and payments shall be void.

      . The full text of section 120 (L 1973, ch 235, § 1) is appended at the foot of this opinion.

      . There is a growing universality of legislative concern for combating coercion of the kind here alleged both within our State (e.g., Executive Law, § 296, subd 1, par [e]; Administrative Code of City of New York, § Bl-7.0, subd 7), and without (e.g., Civil Rights Act of 1964, tit VII, § 704, subd [a], US Code, tit 42, § 2000e-3, subd [a]; 111 Ann Stat, ch 48, § 853, subd [d]; Minn Stat Ann, § 363.03, subd 7, par [1]; Pa Stat Ann, tit 43, § 955, subd [d]).


author: Fuchsberg, J. Jones, J.

text:
    Mighty Midgets, Inc., Respondent-Appellant, v Centennial Insurance Company, Appellant-Respondent.
    Argued January 2, 1979;
    decided April 5, 1979

      POINTS OF COUNSEL

      Harold Y MacCartney, Jr., and John D. MacCartney for appellant-respondent.
    I. Plaintiff failed to give Centennial or its authorized agents written notice of the occurrence as soon as practicable and the breach of this condition vitiated the insurance contract and excused Centennial’s performance. (Deso v London & Lancashire Ind. Co. of Amer., 3 NY2d 127; Security Mut. Ins. Co. of N. Y. v Acker-Fitzsimons Corp., 31 NY2d 436; Allstate Ins. Co. v Manger, 30 Misc 2d 326; Neptune v MacDougall, 28 Misc 800; Safeguard Ins. Co. v Baldauf, 20 Misc 2d 667; Rushing v Commercial Cas. Ins. Co., 251 NY 302; Peerless Ins. Co. v Nationwide Ins. Co., 12 AD2d 602; Reina v United States Cas. Co., 228 App Div 108, 256 NY 537; Cortes v Hartford Acc. & Ind. Co., 14 Misc 2d 1062.) II. Oral notice of the occurrence given to Hall did not comply with the policy provision which required Mighty Midgets to give Centennial or its authorized agents written notice of the occurrence as soon as practicable and Frank B. Hall, Inc., could not waive this provision of the policy. (Walsh v Hartford Fire Ins. Co., 73 NY 5; Marvin v Universal Life Ins. Co., 85 NY 278; Quinlan v Providence Washington Ins. Co., 133 NY 356; Nothhelfer v American Sur. Co. of N. Y., 277 App Div 1009, 302 NY 910; Smith v Zurich Gen. Acc. & Liab. Ins. Co., 278 App Div 982, 303 NY 948; Bazar v Great Amer. Ind. Co., 306 NY 481; General Acc. Fire & Life Assur. Corp. v Bongiorno, 5 Misc 2d 666.) III. The trial court found as a matter of fact that Mighty Midgets, Inc., gave oral notice of the occurrence to Frank B. Hall, Inc., and this finding precludes plaintiffs reliance on a "good faith belief of non-liability” as an excuse for its failure to give prompt written notice of the occurrence to Centennial. (Walterman v Mutual Benefit Health & Acc. Assn., 260 App Div 478; Hurlburt v Liability Mut. Ins. Co., 26 AD2d 600.) IV. Plaintiff knew it had liability coverage with Centennial at the time it orally reported the occurrence to Frank B. Hall, Inc., and, therefore Mighty Midgets’ failure to give Centennial written notice of the occurrence was inexcusable as a matter of law. (Padavan v Clemente, 43 AD2d 729; National Grange Mut. Ins. Co. v Malone, 21 AD2d 881, 15 NY2d 1025; Reina v United States Cas. Co., 228 App Div 108; Acosta v Roach, 12 Misc 2d 494; Public Serv. Mut. Ins. Co. v Levy, 87 Misc 2d 924.) V. The trial court erred in holding that Centennial was precluded from disclaiming by virtue of the application of subdivision 8 of section 167 of the Insurance Law and/or by virtue of the application of the doctrine of "equitable estoppel”. (Allstate Ins. Co. v Manger, 30 Misc 2d 326; Oakley v Morton, 11 NY 25; Claflins, Inc. v Gerber, 214 App Div 245; Winter & Giordano Landscaping Contr. Corp. v Colaizzo, 17 Misc 2d 450; Gorman v Metropolitan Life Ins. Co., 158 App Div 682; Callahan v American Motorists Ins. Co., 56 Misc 2d 734; O’Dowd v American Sur. Co. of N. Y., 3 NY2d 347; Weatherwax v Royal Ind. Co., 250 NY 281.) VI. The court below correctly held that plaintiff was not entitled to recover counsel fees in connection with the prosecution of the declaratory judgment action. (Doyle v Allstate Ins. Co., 1 NY2d 439; Broquedis v Employers Mut. Liab. Ins. Co. of Wis., 45 AD2d 591; Padavan v Clemente, 43 AD2d 729; Grimsey v Lawyers Tit. Ins. Co., 31 NY2d 953; Sucrest Corp. v Fisher Governor Co., 83 Misc 2d 394; Rekemeyer v Empire Mut. Ins. Co., 60 AD2d 492; Goldberg v Lumber Mut. Cas. Ins. Co. of N. Y., 297 NY 148.)

      Ronald G. McCormack for respondent-appellant.
    I. The notice given was as soon as practicable, and delay being excused by the carelessness and negligence of the agent of defendant-appellant acted upon in good faith by plaintiff-respondent. (67 Wall St. Co. v Franklin Nat. Bank, 37 NY2d 245; Bersani v General Acc. Fire & Life Assur. Corp., 36 NY2d 457; Posner v United States Fid. & Guar. Co., 38 Misc 2d 653, affd sub nom. Posner v New York Mut. Underwriters, 16 AD2d 1013; Price v Lawrence-Van Voast, Inc., 58 AD2d 727; Lewis v Guardian Fire & Life Assur. Co., 181 NY 392; Deso v London & Lancashire Ind. Co. of Amer., 3 NY2d 127; State Farm Mut. Auto. Ins. Co. v Bush, 46 AD2d 958; Rushing v Commercial Cas. Co., 251 NY 302; Padavan v Clemente, 43 AD2d 729; Public Serv. Mut. Ins. Co. v Levy, 87 Misc 2d 924.) II. Questions of fact affirmed by the court below are beyond the scope of review. (City of New York v Third Ave. Ry. Co., 294 NY 238; Matter of MacDonald, 40 NY2d 995; People v Gruttola, 43 NY2d 116;
      Donigi v American Cynamid, 43 NY2d 935; Zurich Ins. Co. v Martinez, 24 Misc 2d 437, 14 AD2d 754; Marcus v London & Lancashire Ind. Co. of Amer., 6 AD2d 702, 5 NY2d 961.) III. Defendant-appellant, by reason of its error and neglect, is estopped from disclaiming its obligations under the policy and the disclaimer is void. (Allstate Ins. Co. v Gross, 27 NY2d 263; Aetna Cas. & Sur. Co. v Dimino, 40 AD2d 1076; Tannenbaum v Cosmopolitan Mut. Ins. Co., 36 AD2d 588; Wright v Wright, 35 AD2d 895, 28 NY2d 483.) IV. The trial court was correct in its award of counsel fees for the commencement and prosecution of the declaratory judgment action. (Fugazy Travel Bur. v Ernst & Ernst, 31 AD2d 924; Glens Falls Ins. Co. v United States Fire Ins. Co., 34 NY2d 778; Johnson v General Mut. Ins. Co., 24 NY2d 42; Hurney v Mattson, 59 AD2d 934.)
   OPINION OF THE COURT

Fuchsberg, J.

Applying an objectively stanced reasonable person standard, in the facts and circumstances of this case we hold that it could be found that written notification of the occurrence of an accident approximately seven and a half months after the assured learned of the event met a liability policy’s requirement that the insurer be given notice "as soon as practicable”. On a subsidiary issue, we also hold that the insurer is not liable for attorneys’ fees and disbursements necessarily incurred in the policyholder’s successful prosecution of the action it brought to compel the insurer to comply with its policy obligations.

Plaintiff, Mighty Midgets, Inc., is a nonprofit corporation organized to encourage, manage and otherwise lend support to boys’ football teams in Orangetown, Rockland County. On this appeal, its liability carrier, Centennial Insurance Company, challenges so much of an order of the Appellate Division as affirmed a judgment declaring that Centennial was required to defend and, within the limits of the applicable coverage, indemnify the Midgets against liability asserted in a suit arising out of an occurrence in which nine-year-old Glenn De Temple suffered serious personal injuries. The Midgets cross-appeal from so much of the order as deleted an award to cover its attorneys’ fees and expenses in the present litigation.

The accident to Glenn, then a member of a Midgets-sponsored team, took place on October 18, 1970, when, immediately after the completion of a game in which he had participated, a large pot of boiling water which rested on the counter of an improvised frankfurter stand the Midgets operated as a fund-raising activity was caused to pour over him. Robert Halle, the unpaid volunteer president of the Midgets, was not present. But, learning of the misadventure before the day was out, he was the one who thereafter acted for his organization in a sequence of communications which, as found by the Trial Judge and later affirmed by the Appellate Division, provide the factual backdrop for the central legal issues confronting us today.

The first communication took the form of a telephone call to the Dunn & Fowler Division of Frank B. Hall & Company (Dunn), to whom Halle gave oral notice of the event and made inquiry as to the procedure to be followed in presenting a claim. It was no accident that it was Dunn that Halle called. Both the Centennial liability policy and a second one providing accident and health protection with the Hartford Accident & Indemnity Company had been secured for the Midgets at the instance of Dunn, a leading specialist in athletic team insurance and apparently the organization upon which the more than 2,500 teams enrolled in the national program of which the Midgets were a part would rely for guidance in insurance matters. Dunn’s role went far beyond that of solicitor of the liability policy. It collected the premiums, issued the policy and was designated by the policy as "agent or broker”. Moreover, this disjunctive phraseology was not at odds with the modus operandi Dunn and Centennial had in fact adopted. Their established practice was for Dunn, who wrote most if not all its athletic team business with Centennial, to be entrusted with large batches of policies executed by Centennial’s authorized signatories in blank, leaving it to Dunn rather than Centennial to fill in such things as policy numbers, names of assureds it procured and the premiums to be charged. When Dunn was ready to do so, it required no further authorization from Centennial to decide, as indeed it did in the case of the Midgets, if and when a policy was to go into effect.

Returning to Halle’s initial telephone call, his testimony, fully credited by the courts below, is that, upon identifying himself, describing the De Temple incident and asking whether he should "put it under a medical or [a] liability claim”, the Dunn representative to whom he reported instructed him the appropriate one was under the Hartford accident and health policy. There was not the slightest suggestion that notice to Centennial would also be in order. The result was that the 21-year-old Halle, whose limited personal and vocational backgrounds were totally alien to either the world of insurance or that of the law, and who, as Dunn and Centennial presumably would know, until then had no previous experience in the processing of a liability claim, filed a claim only on a Hartford form supplied him by Dunn.

Thereafter, so far as the Midgets knew, things proceeded uneventfully until April 7, 1971, when Hartford for the first time notified the Midgets that its policy did not cover the accident because it had transpired after the game in which Glenn had participated was over. In the intervening months, Glenn’s father, an avid supporter of the Midgets, had never indicated the slightest intention of pursuing any claim other than the one filed against the Hartford. Nor does that possibility appear to have ever entered Halle’s mind. But Hartford’s refusal to pay the medical claim apparently roused the De Temples from their quiescence sufficiently for them to consult counsel, who, on May 25, sent a letter informing the Midgets that a liability suit on behalf of their clients was in the offing. Still reflecting his belief that communicating with Dunn was the same as communicating with Centennial, Halle forwarded this letter to Centennial care of Dunn and reminded this insurer that the facts of the accident had been reported previously, an obvious reference to his original telephone call. This was the Midgets’ first written notice to Centennial.

It was on this record that Trial Term, sitting without a jury, found as fact (1) that Dunn’s handling of the communications from Halle was negligent; (2) that, "under the circumstances”, including Halle’s "limited * * * understanding of insurance matters” and the relationship between Dunn and Centennial, the Midgets acted reasonably in that they did all that they "could do” until the arrival of the letter on May 25 first disabused them of the misinformation Dunn had imparted; and (3) that the letter transmitting the De Temple lawyer’s liability claim letter constituted written notice given "as soon as practicable” after the claim was made. Though the subsequent affirmance by the Appellate Division was by a vote of three to two, there was no division among its members either over the operative facts or over the deletion of the award for fees and expenses. However, the dissenters would have held the Midgets’ written notice untimely. For the reasons which follow, we, in turn, now affirm.

At the outset, we draw attention to the two provisions of the Centennial policy about which the controversy revolves. One tells us that, in the event of an occurrence resulting in personal injury or property damage, "written notice * * * shall be given by or for the INSURED to the company or any of its authorized agents as soon as practicable”. The other reads: "Notice to any agent * * * shall not effect a waiver or a change in any part of this policy or estop the company from asserting any right under the terms of this policy; nor shall the terms of this policy be waived or changed, except by endorsement issued to form a part of this policy, signed by a duly authorized representative of the company”.

It is well settled that the phrase "as soon as practicable” is an elastic one, not to be defined in a vacuum. By no means does it connote an ironbound requirement that notice be "immediate” or even "prompt”, relative as even those concepts often are; "soon”, a term close to each of these in common parlance, is expressly qualified in the policy here by the word "practicable”. Nor was compliance with the insurance policy’s temporal requirement to be measured simply by how long it was before written notification came forth. More crucial was the reason it took the time it did. So, the provision that notice be given "as soon as practicable” called for a determination of what was within a reasonable time in the light of the facts and circumstances of the case at hand. (Deso v London & Lancashire Ind. Co. of Amer., 3 NY2d 127, 129; State Farm Mut. Auto. Ins. Co. v Bush, 46 AD2d 958.)

Of course, there is no inflexible test of reasonableness. As with most questions whose, answers are heavily dependent on the factual contexts in which they arise, rules of general application are hard to come by (see, e.g., Chinn v Butchers’ Mut. Cas. Co. of N. Y., 190 Misc 117 [failure to foresee that an insurance claim would eventuate]; Melcher v Ocean Acc. & Guar. Corp., 226 NY 51 [failure to foresee that an insurance claim would eventuate]; Padavan v Clemente, 43 AD2d 729 [justifiable lack of knowledge of insurance coverage]). Most pertinent to the case now before us, the conduct and representations of Centennial or its agent may be considered in determining whether notice has been unduly delayed (National Union Fire Ins. Co. v Hall, 233 Ky 337; General Fin. Co. v Pennsylvania Threshermen & Farmers’ Mut. Cas. Ins. Co., 348 Pa 358; 8 Appleman, Insurance Law & Practice, § 4741; 14 Couch, Insurance 2d, § 49:428).

Measured by these criteria, the contention that the Midgets’ delay in providing written notice was unreasonable as a matter of law is untenable. True, approximately seven and a half months elapsed between the date of the accident and the time when Halle, via Dunn, now found to have been Centennial’s agent for the receipt of written notice of claim (cf. Insurance Law, § 167, subd 1, par [c]), concededly delivered such notice. But, the Trial Judge found that the reason for so long a passage of time was the Midgets’ genuine, if misguided, belief that all the insurance notice necessary to protect the Midgets’ interests under any policies it carried for the De Temple accident had been furnished. There is nothing to indicate that it had a motive for not complying or that it did not stand ready to provide any information in any form that was required.

These factors could be weighed in the balance in determining whether the eventual written notice was given "as soon as practicable”. The dealings between Dunn and the Midgets could bear directly on that issue. Specifically, to that end the conduct of Dunn on the occasion of the original telephone call and thereafter, though ineffectual to legitimatize the oral notice given in the first instance, was relevant and material insofar as it affected the time the Midgets took before meeting the mandate for written notice.

Is the unsophisticated Halle then to be deemed not to have acted "as soon as practicable” as a matter of law because, on his initial experience in the reporting of an accident under the liability policy, he sought direction from Dunn, which had sold the Midgets both policies? To the contrary, even absent the close relationship which the undisputed evidence shows Centennial and Dunn enjoyed, the former, as an insurer, can hardly have failed to appreciate how common it is for policyholders to rely almost exclusively on the advice of intermediaries, be they agents or brokers (cf. Drennan v Sun Ind. Co., 271 NY 182; Quinlan v Providence Washington Ins. Co., 133 NY 356).

Nor did Halle necessarily have to abandon his reliance on the correctness of Dunn’s original advice when, in April, he learned that Hartford had taken the position that its health and accident coverage did not apply. Notification that Hartford was denying coverage did not have to dissipate Halle’s erroneous belief that Centennial never was in the picture. It could be found, as the Trial Judge did, that, once the sense of security into which Halle had been lulled by Dunn’s and Centennial’s continued silence was dispelled by the receipt of the De Temple claim letter, he acted posthaste in forwarding it to Centennial’s agent.

In sum, under these circumstances there was enough evidence from which it could be found that the Midgets’ failure to notify the insurer before it did was not unreasonable and that, consequently, Centennial was not entitled to disclaim. Since our review is limited to determining whether the conclusion of the fact-finding courts finds support in the evidence, we must uphold their determination (Estate of Canale v Binghamton Amusement Co., 37 NY2d 875).

The Appellate Division was also correct in modifying the judgment of Trial Term by striking the award to the Midgets for the expenses to which it was put in bringing this action. It is the rule in New York that such a recovery may not be had in an affirmative action brought by an assured to settle its rights (Doyle v Allstate Ins. Co., 1 NY2d 439; Grimsey v Lawyers Tit. Ins. Corp., 31 NY2d 953), but only when he has been cast in a defensive posture by the legal steps an insurer takes in an effort to free itself from its policy obligations (see Johnson v General Mut. Ins. Co., 24 NY2d 42; Glens Falls Ins. Co. v United States Fire Ins. Co., 41 AD2d 869, affd on opn below 34 NY2d 778). Essentially, the latter cases find support in the theory that an insurer’s responsibility to defend reaches the defense of any actions arising out of the occurrence.

In contrast with other legal systems, such as that in Great Britain, it has now long been the universal rule in this country not to allow a litigant to recover damages for the amounts expended in the successful prosecution or defense of its rights (see, generally, Alyeska Pipeline Co. v Wilderness Soc., 421 US 240, 247-259; Fleischmann Corp. v Maier Brewing Co., 386 US 714, 716-717; Goodhart, Costs, 38 Yale LJ 849, 873-874). Though not exempt from criticism (see Ehrenzweig, Reimbursement of Counsel Fees and the Great Society, 54 Cal L Rev 792), this practice reflects a fundamental legislative policy decision that, save for particular exceptions (see, e.g., CPLR 8303) or when parties have entered into a special agreement (Tyng v American Sur. Co., 174 NY 166), it is undesirable to discourage submission of grievances to judicial determination and that, in providing freer and more equal access to the courts, the present system promotes democratic and libertarian principles (see McCormick, Counsel Fees and Other Expenses of Litigation as an Element of Damages, 15 Minn L Rev 619, 641). There is nothing in the nature of this suit for declaratory judgment that should cause us to add to the exceptions to this now ingrained policy. Thus, unlike the circumstances presented when an insurer compels its assured to defend against its attempts to obtain a declaration of its right to disclaim, here it is the insured itself that has taken the offensive. Furthermore, it is not inherently unfair to disallow recovery for litigation fees to a prevailing party when these would not be assessed against an unsuccessful one.

For all these reasons, the order of the Appellate Division should be affirmed, but without costs.

Jones, J.

(dissenting). I am compelled to dissent. I cannot escape the clutches of the categorical, unrelenting dictate set forth in Condition 9 of the liability policy: "CHANGES. Notice to any agent or knowledge possessed by any agent or by any other person shall not effect a waiver or a change of any part of this policy or estop the company from asserting any right under the terms of this policy; nor shall the terms of this policy be waived or changed, except by endorsement issued to form a part of this policy, signed by a duly authorized representative of the company.”

In my analysis this explicit provision must be held to preclude an agent — even one so closely tied to the insurer as was the Dunn & Fowler Division of Frank B. Hall & Company, Inc., in this instance — from dispensing with the requirement either that notice of the occurrence be in written form or that it be given "as soon as practicable”. Nor can I bring myself to conclude that the application of the standard "as soon as practicable” can be significantly affected by the conduct of the agent. That phrase necessarily focuses attention on the predicament of the insured: in the circumstances in which he finds himself how soon is it practicable for him to give notice of the occurrence? In this case, it is especially difficult to conclude that it was not "practicable” to give notice long before the expiration of seven months when the insured gave the agent oral notice the day after the accident.

I am not unmindful of what appears to be the great inequity and unfairness of the literal application of the quoted policy provision where, as here, the agent of the insurer is justifiably thought to be the proper recipient of all notices with respect to claims covered by the policy and that agent thereafter lulls the insured into what proves to be a wholly false sense of security that no more need be done to give the insured the protection for which he took out the insurance and paid the premiums. I would hazard the surmise that most insureds consider that their obligation to report accidents has been fully discharged when a prompt telephone call has been made to the agent of the insurer with whom they have been dealing. This confidence is reinforced when, as is usually the case, the insurer thereafter undertakes to provide the protection that the policy promises. How distressed would, and should, they be if their policies contained an escape hatch similar to Condition 9 in this policy, such that they were left with a remedy, if any, only against the insurer’s agent on whose assurances they had relied.

I would accordingly reverse and remit for entry of judgment declaring that defendant insurer is not obligated to appear or to defend.

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

Order affirmed, without costs.

      . Though Dunn received copies of the documents and correspondence exchanged between the senior De Temple and Hartford and, eventually, of the latter’s rejection of the claim, it did not advise the Midgets of these developments.

      . Because of the grounds on which we decide this case, it becomes unnecessary to describe subsequent events, although we note that Centennial’s own delay in disclaiming coverage was an alternate ground on which Trial Term premised the insurer’s obligation to defend and indemnify the Midgets.

      . A separate suit, brought by the Midgets against Dunn .to recover damages for the latter’s negligence was consolidated with the declaratory action and the two cases tried together on the same evidence; having decided that Dunn was negligent, the trial court, to avoid duplication, ordered the assessment of damages held in abeyance until after the declaratory and personal injury suits will have been concluded. The personal injury suit has been awaiting the outcome .of the one before us now.