author: Meyer, J. Chief Judge Cooke

text:
    Burns Jackson Miller Summit & Spitzer, Individually and on Behalf of All Others Similarly Situated, Appellant, v William Lindner et al., Respondents. (Action No. 1.) Jackson, Lewis, Schnitzler & Krupman, Appellant, v Local 100, Transport Workers Union of America, et al., Respondents. (Action No. 2.)
    Argued April 26, 1983;
    decided June 16, 1983

      POINTS OF COUNSEL

      Stuart A. Summit, Guy R. Fairstein and Richard A. Zansitis for appellant in the first above-entitled action.
    I. The intentional harm done to appellant and to the class, without excuse or justification, supports a cause of action for damages in prima facie tort. (Advance Music Corp. v American Tobacco Co., 296 NY 79; Aikens v Wisconsin, 195 US 194; Morrison v National Broadcasting Co., 24 AD2d 284, 19 NY2d 453; Board of Educ. v Farmingdale Classroom Teachers Assn., Local 1889, AFT AFL-CIO, 38 NY2d 397; ATI, Inc. v Ruder & Finn, 42 NY2d 454; Opera on Tour v Weber, 285 NY 348; Ruza v Ruza, 286 App Div 767; Lanite Sales Co. v Elevens Corp., 205 Misc 303; McCullough v Certain Teed Prods. Corp., 70 AD2d 771; Calabrisi v Bero, 279 App Div 702.) II. The strike created a nuisance. The pecuniary injury suffered by appellant and by the class is sufficiently different in kind to support a cause of action for damages. (Copart Inds. v Consolidated Edison Co. of N. Y., 41 NY2d 564; State of New York v Local 1115 Joint Bd., Nursing Home & Hosp. Employees Div., 56 AD2d 310; Caso v District Council 37, Amer. Federation of State, County & Municipal Employees, AFL-CIO, 43 AD2d 159; Wakeman v Wilbur, 147 NY 657; Lansing v Smith, 4 Wend 9; Francis v Schoellkopf, 53 NY 152.)

      Stephen D. Hans, Alan E. Wolin and Leonard B. Isaacs for Amalgamated Transit Union, Local 1056, respondent in the first above-entitled action.
    I. Appellant does not state a cause of action in prima facie tort. (Texas & Pacific Ry. Co. v Rigsby, 241 US 33; Motyka v City of Amsterdam, 15 NY2d 134; Di Caprio v New York Cent. R. R. Co., 231 NY 94; Squire Records v Vanguard Recording Soc., 25 AD2d 190; Ballin v Larkin, 62 Misc 2d 949, 36 AD2d 530; Lincoln First Bank of Rochester v Barstro & Assoc. Contr., 49 AD2d 1025; United Mine Workers of Amer. v Osborne Min. Co., 279 F2d 716, 364 US 881; Isbrandtsen Co. v Local 1291 of Int. Longshoremen’s Assn., 204 F2d 495.) II. Appellant’s complaint fails to state a cause of action in public nuisance. (Graceland Corp. v Consolidated Laundries Corp., 7 AD2d 89, 6 NY2d 900; Brookins v Pennsylvania R. R. Co., 202 Misc 467; Copart Inds. v Consolidated Edison Co. of N. Y., 41 NY2d 564; Wakeman v Wilbur, 147 NY 657; Gibbons v Hoffman, 203 Misc 26; Blessington v McCrory Stores Corp., 198 Misc 291, 279 App Div 806, 305 NY 140.)

      Joseph T. Gatti and Paul G. Reilly, Jr., for Amalgamated Transit Union, AFL-CIO, and another, respondents in the first above-entitled action.
    I. The complaint does not state a cause of action in prima facie tort. (ATI, Inc. v Ruder & Finn, 42 NY2d 454; Morrison v National Broadcasting Co., 24 AD2d 284,19 NY2d 453; Ruza v Ruza, 286 App Div 767; Board of Educ. v Farmingdale Classroom Teachers Assn., Local 1889, AFT AFL-CIO, 38 NY2d 397.) II. The complaint does not state a cause of action in public nuisance. (Graceland Corp. v Consolidated Laundries Corp., 7 AD2d 89, 6 NY2d 900; Brookins v Pennsylvania R. R. Co., 202 Misc 467.) III. The complaint should be dismissed as to ATU and its officer because there is no allegation in the complaint that the membership of ATU either authorized or ratified the strike. (Martin v Curran, 303 NY 276; Matter of New York Times Co. [Newspaper Guild of N. Y., Local 3, C. I. O.], 2 AD2d 31.)

      James Reif for Amalgamated Transit Union Division 726, AFL-CIO, respondent in the first above-entitled action.
    I. Alleging the traditional material elements of a common-law tort does not compel sustaining a cause of action thereon for damages. (Donohue v Copiague Union Free School Dist., 47 NY2d 440; Drago v Buonagurio, 46 NY2d 778.) II. Judicial recognition of a cause of action for damages on behalf of a private party against a public sector union for a peaceful work stoppage would be unprecedented. (Wakeman v Wilbur, 147 NY 657; Opera on Tour v Weber, 285 NY 348; Advance Music Corp. v American Tobacco Co., 296 NY 79; Jamur Prods. Corp. v Quill, 51 Misc 2d 501.) III. A third-party cause of action for damages premised upon a peaceful public sector strike should not be created by the judiciary where the Legislature has enacted a comprehensive program regulating public sector labor relations which would be undermined by the cause of action sought. (Jamur Prods. Corp. v Quill, 51 Misc 2d 501; Albala v City of New York, 54 NY2d 269.) IV. The judiciary should not create a third-party cause of action for damages where the Legislature has provided substantial remedies for public sector strikes from which it has deliberately omitted the damage remedy sought and where the system of statutory remedies is the product of conscientious and persistent legislative efforts to define the measures appropriate to the avoidance of strikes. (Northwest Airlines v Transport Workers, 451 US 77; Bachrach v 1001 Tenants Corp., 21 AD2d 662, 15 NY2d 718; David v Fayman, 273 App Div 408, 298 NY 669; Rosner v Textile Binding & Trimming Co., 300 NY 319.) V. The issues which underlie determination whether a third-party cause of action for damages should be created are primarily political and not susceptible to judicial resolution. (Donohue v Copiague Union Free School Dist., 47 NY2d 440.)

      Andrew A. Peterson and Anthony H. Atlas for appellant in the second above-entitled action.
    I. The Taylor Law penalties are not the exclusive remedies for violation of its strike prohibition. (Caso v District Council 37, Amer. Federation of State, County & Municipal Employees, AFL-CIO, 43 AD2d 159; Caso v Gotbaum, 67 Misc 2d 205, 38 AD2d 955; People v Vizzini, 78 Misc 2d 1040.) II. An action for damages resulting from a violation of the Taylor Law’s strike prohibition should be implied in favor of third parties damaged by the strike. (Abounader v Strohmeyer & Arpe Co., 243 NY 458; Pine Grove Poultry Farm v Newton By-Products Mfg. Co., 248 NY 293; Schmidt v Merchants Desp. Transp. Co., 270 NY 287; Maloney v Hearst Hotels Corp., 274 NY 106; Filardo v Foley Bros., 297 NY 217; Willy v Ulledy, 78 NY 310; Amberg v Kinley, 214 NY 531; Karpeles v Heine, 221 NY 74; Martin v Herzog, 228 NY 164; Hopkins v Amtorg Trading Corp., 265 App Div 278.) III. Jackson, Lewis’ amended complaint states a cause of action in noncategorical tort. (Aikens v Wisconsin, 195 US 194; Opera on Tour v Weber, 285 NY 348; Morrison v National Broadcasting Co., 24 AD2d 284, 19 NY2d 453; Penn-Ohio Steel Corp. v Allis-Chalmers Mfg. Co., 7 AD2d 441; Gale v Ryan, 263 App Div 76; Board of Educ. v Farmingdale Classroom Teachers Assn., Local 1889, AFT AFL-CIO, 38 NY2d 397.) IV. Jackson, Lewis was a third-party beneficiary of the collective bargaining agreement breached by the TWU. (Home Bldg. & Loan Assn. v Blaisdell, 290 US 398; Pond v New Rochelle Water Co., 183 NY 330; Kornblut v Chevron Oil Co., 62 AD2d 831, 48 NY2d 853.)

      Asher W. Schwartz, Malcolm A. Goldstein, Julia Penny Clark and Michael H. Gottesman for Local 100, Transport Workers Union of America, respondent in the second above-entitled action.
    I. The Taylor Law precludes private actions for damages resulting from a strike in violation of that statute. (Jamur Prods. Corp. v Quill, 51 Misc 2d 510; Goodman v State of New York, 31 NY2d 381; City of New York v Vizzini, 49 AD2d 833; Sanford v Rockefeller, 35 NY2d 547, app dsmd sub nom. Sanford v Carey, 421 US 973; Donohue v Copiague Union Free School Dist., 47 NY2d 440; David v Fayman, 273 App Div 408, 298 NY 669; Drinkhouse v Parka Corp., 3 NY2d 82; Matter of Knickerbocker Agency [Holz], 4 NY2d 245; Bachrach v 1001 Tenants Corp., 21 AD2d 662, 15 NY2d 718.) II. In any event, the common law provides no right of action to plaintiffs in this case. (Copart Inds. v Consolidated Edison Co. of N. Y., 41 NY2d 564; Doolittle v Supervisors of Broome County, 18 NY 155; Callanan v Gilman, 107 NY 360; Francis v Schoellkopf, 53 NY 152; Rumsey v New York & New England R. R. Co., 133 NY 79; Board of Educ. v Farmingdale Classroom Teachers Assn., Local 1889, AFT AFL-CIO, 38 NY2d 397; Belsky v Lowenthal, 62 AD2d 319,47 NY2d 820; Morrison v National Broadcasting Co., 24 AD2d 284, 19 NY2d 453; Fieger v Glen Oaks Vil., 309 NY 527; City of New York v De Lury, 23 NY2d 175, 394 US 455.) III. No private cause of action for damages can be “implied” from the Taylor Law. (Jamur Prods. Corp. v Quill, 51 Misc 2d 501; Abounader v Strohmeyer & Arpe Co., 243 NY 458; Donohue v Copiague Union Free School Dist., 47 NY2d 440; Bachrach v 1001 Tenants Corp., 21 AD2d 662; Matter of Susquehanna Val. Cent. School Dist. at Conklin [Susquehanna Val. Teachers’ Assn.], 37 NY2d 614; Steitz v City of Beacon, 295 NY 51; Lopes v Rostad, 45 NY2d 617; Motyka v City of Amsterdam, 15 NY2d 134; Pine Grove Poultry Farm v Newton By-Products Mfg. Co., 248 NY 293.) IV. The decisions of courts of other States reinforce the conclusion that no private actions should be allowed for damages caused by a public employee strike.

      John G. Collins for Mid-Atlantic Legal Foundation, Inc., and others, amici curiae.

    I. Plaintiffs-appellants have properly pleaded a cause of action for intentional tort. (Reiner v North Amer. Newspaper Alliance, 259 NY 250; American Bank & Trust Co. v Federal Bank, 256 US 350; Exchange

      Bakery & Rest. v Rifkin, 245 NY 260; Caso v District Council 37, Amer. Federation of State, County & Municipal Employees, AFL-CIO, 43 AD2d 159; Aikens v Wisconsin, 195 US 194; Opera on Tour v Weber, 285 NY 348; Advance Music Corp. v American Tobacco Co., 296 NY 79; Board of Educ. v Farmingdale Classroom Teachers Assn., Local 1889, AFT AFL-CIO, 38 NY2d 397; Reinforce, Inc. v Birney, 308 NY 164; City of New York v De Lury, 23 NY2d 175.) II. The causes of action for public nuisance, breach of statutory duty and breach of contract have each been properly pleaded. (Moch Co. v Rensselaer Water Co., 247 NY 160; Emery v Rochester Tel. Corp., 271 NY 306; Schuster v City of New York, 5 NY2d 75; Weiss v Fote, 7 NY2d 579; Riss v City of New York, 22 NY2d 579; Florence v Goldberg, 44 NY2d 189; Kornblut v Chevron Oil Co., 62 AD2d 831, 48 NY2d 853; State of New York v Local 1115 Joint Bd., Nursing Home & Hosp. Employees Div., 56 AD2d 310; Caso v District Council 37, Amer. Federation of State, County & Municipal Employees, AFL-CIO, 43 AD2d 159; Steelworkers v United States, 361 US 39.)

      Roger Boyle for The Legal Foundation of America, amicus curiae.

    I. The existence of a criminal or civil penalty for an offense against the State is not a defense to civil liability. (Ansteth v Buffalo Ry. Co., 145 NY 210; Allen v Fromme, 141 App Div 362; Phillips v Sun Oil Co., 307 NY 328; Griggs v Day, 136 NY 152.) II. Efforts to distinguish the claim in Caso v District Council from the claims in this case on “special damage” grounds are unpersuasive. (Caso v District Council 37, Amer. Federation of State, County & Municipal Employees, AFL-CIO, 43 AD2d 159.) III. Respondents should not escape liability merely because they have caused large damages to large numbers of innocent victims, especially since the damages sought here are concentrated within a relatively small minority of the larger public harmed by respondents’ conduct. IV. Respondents’ statutory interpretation arguments under the Taylor Law are inapposite, and respondents should not escape liability on the theory that penalties provided by the Taylor Law are “severe”. V. Respondents’ arguments include what amounts to an inappropriate attempt to invoke civil disobedience as a claimed defense to legal liability.

      Beverly Gross and William H. Frappollo for Municipal Labor Committee, amicus curiae.

    I. Public employee labor policy in New York has been pre-empted by the Taylor Law, analogous to Federal pre-emption in the private sector. (Texas & Pacific Ry. Co. v Abilene Cotton Oil Co., 204 US 426; Amalgamated Workers v Edison Co., 309 US 261; Myers v Bethlehem Corp., 303 US 41; Motor Coach Employees v Lockridge, 403 US 274; Garner v Teamsters Union, 346 US 485; Domanick v Triboro Coach Corp., 259 App Div 657; San Diego Unions v Garmon, 359 US 236; People v Vizzini, 78 Misc 2d 1040; Sears, Roebuck & Co. v Carpenters, 436 US 180; Farmer v Carpenters, 430 US 290.) II. The Taylor Law’s no-strike policy, with its attendant deterrents, indicates a legislative intent that such provisions are exclusive and are a limitation on private rights of action. (Jamur Prods. Corp. v Quill, 51 Misc 2d 501; Transamerica Mtge. Advisors v Lewis, 444 US 11; Touche Ross & Co. v Redington, 442 US 560; Cort v Ash, 422 US 66; Scripps-Howard Radio v Commission, 316 US 4; Sanford v Rockefeller, 35 NY2d 547.) III. It is against public policy to permit- damage actions against public employee unions in the face of the comprehensive Taylor Law scheme. (Drago v Buonagurio, 46 NY2d 778.)
   OPINION OF THE COURT

Meyer, J.

The Taylor Law proscription against strikes by public employees neither preempts the right of persons injured by an unlawful strike to sue for damages nor provides a private right to sue for violation of its provisions. The causes of action pleaded by plaintiffs are, however, either not recognized under New York law or as pleaded do not sufficiently state a cause of action. The order of the Appellate Division should, therefore, be affirmed, with costs.

I

This appeal involves separate action by two New York City law firms to recover damages resulting from the April, 1980 transit strike. The first, begun in Queens County by Burns Jackson Miller Summit & Spitzer (“Burns Jackson”), is a class action against the Transport Workers Union of America, AFL-CIO (TWU), the Amalgamated Transit Union, AFL-CIO (ATU), Local 100 of TWU, Locals 726 and 1056 of ATU and their respective officers. It alleges that the strike was intentional and in violation of both section 210 of the Civil Service Law and of a preliminary injunction issued March 31, 1980 by the Supreme Court and seeks damages of $50,000,000 per day for each day of the strike. The complaint sets forth two causes of action: prima facie tort and public nuisance.

The second action, begun in New York County by Jackson, Lewis, Schnitzler and Krupman (“Jackson, Lewis”), likewise alleges an intentional strike in violation of the statute and preliminary injunction. It was, however, brought only against the TWU and its Local 100, and officers of both, sought but $25,000 in damages, and did not ask class action status. It declared on six causes of action: for violation of the Taylor Law, prima facie tort, intentional interference with plaintiff’s business, willful injury, conspiracy and breach of plaintiff’s rights as third-party beneficiary of the contract between defendant unions and the New York City Transit Authority (NYCTA) and the Manhattan and Bronx Surface Transit Operating Authority (MABSTOA).

By stipulation the New York County action was removed to Queens and joined with the Queens action for trial. Thereafter defendants moved pursuant to CPLR 3211 (subd [a], par 7) to dismiss both actions for failure to state a cause of action. Special Term denied the motions, except as to the Jackson, Lewis contract cause of action (108 Misc 2d 458). On cross appeals to the Appellate Division, that court, in an extensive opinion, modified the order appealed from to dismiss both complaints in their entirety (88 AD2d 50). Both plaintiffs appeal to us as of right (CPLR 5601, subd [a]). We conclude (1) that the Taylor Law was neither intended to proscribe private damage actions by persons caused injury by a strike by public employees nor to establish a new private right of action for such damages, and (2) that the complaints fail to state a cause of action for (a) prima facie tort, (b) public nuisance, (c) intentional interference with business, or (d) breach of plaintiffs’ rights as third-party beneficiary of defendants’ contracts with NYCTA or MABSTOA. We, therefore, affirm.

II

The effect of the Taylor Law, whether as preemptive of previously permissible private damage actions or as initiating a new form of private action for damages resulting from a strike in violation of its provisions, turns on what the Legislature intended. The general rule is and long has been that “when the common law gives a remedy, and another remedy is provided by statute, the latter is cumulative, unless made exclusive by the statute” (Candee v Hayward, 37 NY 653, 656; accord Hardmann v Bowen, 39 NY 196, 198; Jordan & Skaneateles Plankroad Co. v Morley, 23 NY 552, 554; Wetmore v Tracy, 14 Wend 250, 255). Likewise, as we noted in Amberg v Kinley (214 NY 531, 535-536): “Whether a statute gives a cause of action to a person injured by its violation, or whether it is intended as a general police regulation, and the violation made punishable solely as a public offense ‘must to a great extent depend on the purview of the legislature in the particular statute and the language which they have there employed.’ (Atkinson v New Castle & Gateshead W.W. Co., L.R. [2 Exch. Div.] 441; Taylor v L.S. & M.S. Ry. Co., 45 Mich. 74.)” (See, also, Abounader v Strohmeyer & Arpe Co., 243 NY 458,463-464; Daggett v Keshner, 284 App Div 733, 738, mod on other grounds 6 AD2d 503, affd 7 NY2d 981.)

The far better course is for the Legislature to specify in the statute itself whether its provisions are exclusive and, if not, whether private litigants are intended to have a cause of action for violation of those provisions. Absent explicit legislative direction, however, it is for the courts to determine, in light of those provisions, particularly those relating to sanctions and enforcement, and their legislative history, and of existing common-law and statutory remedies, with which legislative familiarity is presumed, what the Legislature intended (see Merrill Lynch, Pierce, Fenner & Smith v Curran, 456 US 353, 374-383; Middlesex County Sewerage Auth. v National Sea Clammers Assn., 453 US 1, 13). Whether a private cause of action was intended will turn in the first instance on whether the plaintiff is “one of the class for whose especial benefit the statute was enacted” (Motyka v City of Amsterdam, 15 NY2d 134,139; Cort v Ash, 422 US 66, 78; Texas & Pacific Ry. Co. v Rigsby, 241 US 33, 39). But the inquiry does not, as plaintiffs suggest, end there, for to do so would consider but one of the factors involved in the Legislature’s determination. Important also are what indications there are in the statute or its legislative history of an intent to create (or conversely to deny) such a remedy and, most importantly, the consistency of doing so with the purposes underlying the legislative scheme (Cort v Ash, supra, at p 78; accord Middlesex County Sewerage Auth. v National Sea Clammers Assn., supra, at p 17; Piper v Chris-Craft Inds., 430 US 1, 37-40; see Restatement, Torts 2d, § 847A, Comment i; Note, Private Damage Actions Against Public Sector Unions For Illegal Strikes, 91 Harv L Rev 1309, 1318 [hereafter “Note”]; McMahon & Rodos, Judicial Implication of Private Causes of Action: Reappraisal and Retrenchment, 80 Dickinson L Rev 167).

Analysis begins, of course, with the statute itself. It contains no explicit statement as to either exclusivity or intent to create a private cause of action. Examination of the history and genesis of the Taylor Law leads us to conclude, however, that it is cumulative, not exclusive, and was not intended to establish a new cause of action.

New York’s first statutory proscription against strikes by public employees was the Condon-Wadlin Act, passed in 1947 as a result of a strike by public school teachers in Buffalo (L 1947, ch 391; Civil Service Law, former § 108). It punished violation by automatic termination, and imposed severe restrictions on re-employment, precluding salary increases for a re-employed striker for three years and requiring that the re-employed person be treated as probationary for five years (Wolk, Public Employee Strikes — A Survey of the Condon-Wadlin Acts, 13 NY L Forum 69, 70-71 [hereafter “Wolk”]). Although held constitutional (Matter of Di Maggio v Brown, 19 NY2d 283), the harshness of its penalties resulted in their being enforced but twice over a period of 20 years (id., at p 289), and in widespread criticism and agitation for revision (Wolk, op. cit., p 72; Hanslowe, 1965 Survey of NY Law-Labor Relations Law, 17 Syracuse L Rev 183, 186 [hereafter “Hanslowe 1965”]). The Joint Legislative Committee on Industrial and Labor Conditions in its 1962 report proposed to replace the act, but that proposal failed of adoption and the 1963 Legislature simply adopted ameliorative amendments (Hanslowe 1965, pp 186-187). The embargo on salary increase for a reemployed striker was reduced from three years to six months, the probationary period from five years to one year, and a sanction of loss of two days’ pay for each day an employee was on strike was added. Those amendments were stopgap measures, however, the act expressly providing that they would expire on July 1,1965, and expire they did when Governor Rockefeller vetoed the Rosetti-Lentol bill intended to establish a “less punitive, more labor-conscious measure” on the ground, among others, that it would “undermine the deterrent to strikes by public employees” (Wolk, pp 72-73).

On January 15, 1966, prompted by a massive strike of New York City transit workers which began January 1, 1966, Governor Rockefeller appointed a Committee on Public Employee Relations, chaired by Professor George W. Taylor. The committee was charged “to make legislative proposals for protecting the public against the disruption of vital public services by illegal strikes, while at the same time protecting the rights of public employees” and by March 31, 1966 issued its Final Report recommending that: “(1) The Condon-Wadlin Law should be repealed and replaced by a statute which, as more particularly described below and in the relevant parts of this report, would (a) grant to public employees the right of organization and representation, (b) empower the State, local governments and other political subdivisions to recognize, negotiate with, and enter into written agreements with employee organizations representing public employees, (c) create a Public Employment Relations Board to assist in resolving disputes between public employees and public employers, and (d) continue the prohibition against strikes by public employees and provide remedies for violations of such prohibition” (New York Governor’s Committee on Public Employee Relations, Final Report, 1966, iv, 1 [hereafter “Final Report”]). With respect to illegal strikes, the committee noted the lack of success of the Condon-Wadlin provisions and proposed instead three deterrents: the injunctive power of the courts, but without monetary limit on the fine imposable for violation; the misconduct provisions of section 75 of the Civil Service Law as concerned individual employees; and as concerns the unions, suspension of privileges or decertification, as determined after hearing by the Public Employment Relations Board (Final Report, part 4).

A bill introduced in the Senate based on that report, and supported by the Governor, passed that body on June 7, 1966 (Hanslowe, 1966 Survey of NY Law-Labor Relations Law, 18 Syracuse L Rev 247, 253). The Assembly, however, on the same day passed its own bill, in which the only explicit sanction was discipline pursuant to section 75 of the Civil Service Law. The impasse between the two houses continued into the 1967 session, the Speaker of the Assembly originally opposing penalties altogether, but later modifying that position to permit penalties which would deter strikes “ ‘but not to such an extent that they would destroy unions’ ” (Wolk, p 75, citing Maiorana, Travia Proposes Strike Penalties, New York Times, March 3, 1967, p 22, col 6). The Taylor Law (officially the Public Employees’ Fair Employment Act) was finally adopted in April, 1967, effective September 1,1967 (L 1967, ch 392). It declared it to be “the public policy of the state and the purpose of this act to promote harmonious and cooperative relationships between government and its employees and to protect the public by assuring, at all times, the orderly and uninterrupted operations and functions of government” (Civil Service Law, § 200), granted public employees the rights of organization and representation (§§ 202, 203), empowered public employers to recognize employee organizations and provided for their certification (§ 204), created the Public Employment Relations Board to oversee employee relations (§ 205), and established other objective provisions governing the rights of public employees and their unions. Following the recommendations of the Taylor Committee, it continued the prohibition against public employee strikes (§210) but replaced Condon-Wadlin’s harsh penalties with provisions for injunction without limitation on the fine for violation (§ 211; Judiciary Law, § 751) and for discipline of individual strikers under section 75 of the Civil Service Law. It subjected the employee organization, however, only to forfeiture of dues checkoff for a period limited to 18 months (§ 210, subd 3, former par [f]), but significantly did not implement the Taylor Committee’s decertification recommendation (Collins, 1967 Survey of NY Law-Labor Relations Law, 19 Syracuse L Rev 308, 309).

Enactment of the 1967 law did not end the problem, however. In 1968, Governor Rockefeller re-established the Committee on Public Employee Relations and charged it to examine the experience under the Taylor Law. The committee reported its view that the law was “working well” and that the limited experience under it did not “provide an adequate basis for now recommending changes in the Act” (New York Governor’s Committee on Public Employee Relations, Interim Report, June 17,1968 [hereafter “Interim Report”], Transmittal Letter). Nevertheless, a number of changes were made in the act in 1969 (L 1969, ch 24). Striking employees became subject not only to disciplinary action but also to a one-year probationary period and the deduction of two days’ pay for each day of violation was reinstated (Civil Service Law, § 210, subd 2). The imposition of penalties against employees and employee organizations was made mandatory (§ 210, subds 2, 3) and the failure to seek their imposition was made subject to article 78 review at the instance of any taxpayer (originally § 210, subd 4; now § 213, subd e).

The same act made clear, however, the Legislature’s intent to protect employee organizations from destruction, even though they may have participated in an illegal strike. Thus, although the 18-month limitation on forfeiture of the union’s dues deduction privilege was removed, both that provision (Civil Service Law, § 210, subd 3, par [f]) and section 751 (subd 2, par [a]) of the Judiciary Law (dealing with the fines imposable for criminal contempt) were amended to make the union’s ability to pay a factor in the determination of the penalty to be assessed.

Against that background, for a number of reasons, legislative intent to provide a private remedy cannot be discerned. Although Jackson, Lewis is “one of the class for whose especial benefit the statute was enacted” and a right of action in a member of the class may be implied when clearly in furtherance of the legislative purpose (compare Abounader v Strohmeyer & Arpe Co., 243 NY 458, 465, supra [manufacturer held for fraud with respect to foodstuffs, without regard to privity because otherwise “the statute would be largely emasculated of possible benefits”], with Steitz v City of Beacon, 295 NY 51, 54-55 [private right of action against city for failure to quench a fire started by another will not be implied from a statute requiring the city to maintain a fire department, in view of the crushing burden that would be imposed]), the provisions of the present statute and the history of their enactment strongly suggest that a private action based upon the statute was not intended. True such an action would be a powerful deterrent to public employee strikes, but it would also, as the claim for damages in the Burns Jackson complaint suggests, impose a crushing burden on the unions and each of the employees participating in the strike, who could be held jointly and severally liable with the union for the damages resulting from violation (see as to overdeterrence, ALI Federal Securities Code [Proposed Official Draft], § 1722, subd [a]). It would do so, moreover, notwithstanding that the penalties of the Condon-Wadlin Act were repealed “precisely because that was a statute punitive rather than constructive in nature” (Interim Report, p 20), notwithstanding the “unusually elaborate enforcement provisions, conferring authority to sue for this purpose both on government officials and private citizens” which strongly suggest that the Legislature “provided precisely the remedies it considered appropriate” (Middlesex County Sewerage Auth. v National Sea Clammers Assn., 453 US 1, 13, 15, supra), and notwithstanding the 1966 decision in Jamur Prods. Corp. v Quill (51 Misc 2d 501) which had held that a private cause of action could not be implied from the Condon-Wadlin Act.

Implication of a private action is, moreover, inconsistent with the purposes of the Taylor Law. Its primary purposes, as both Taylor Committee reports emphasize, was to defuse the tensions in public employer-employee relations by reducing the penalties and increasing reliance on negotiation and the newly created Public Employment Relations Board as a vehicle toward labor peace (see Securities Investor Protection v Barbour, 421 US 412, 420; National R. R. Passenger Corp. v National Assn. of R. R. Passengers, 414 US 453, 464, reh den 415 US 952). A private action, which would impose per se liability without any of the limitations applicable to the common-law forms of action hereafter considered, would inevitably upset the delicate balance established after 20 years of legislative pondering. As the Washington Supreme Court has noted, “the schemes created by statute for collective bargaining and dispute resolution must be allowed to function as intended, without the added coercive power of the courts being thrown into the balance on one side or the other” (Burke & Thomas v International Organization of Masters, Mates & Pilots, 92 Wn 2d 762, 772; accord Lamphere Schools v Lamphere Federation of Teachers, 400 Mich 104, 131). Having explicitly directed that in assessing penalties PERB and the courts consider the union’s ability to pay and refused to enact a decertification provision, the Legislature must be deemed to have negated the unlimited liability, not only to third parties but to public employers as well, and the consequent demise of public employee unions, that would result from recognition of a new statutory cause of action.

That no new per se action was contemplated by the Legislature does not, however, require us to conclude that the traditional, though more limited, forms of action are no longer available to redress injury resulting from violation of the statute. The penalties imposable by PERB and the courts for such a violation provide some solace, but no recompense, for those injured by acts which not only violate the statute but also constitute a breach of duty, independent of the statute, which common-law remedies made compensable. Although it is within the competence of the Legislature to abolish common-law causes of action (Montgomery v Daniels, 38 NY2d 41), there is no express provision to that effect in the statute, notwithstanding numerous amendments of the Taylor Law after the decision by the Second Department in Caso v District Council 37, Amer. Federation of State, County & Municipal Employees, AFL-CIO (43 AD2d 159, 160-162; see, also, People v Vizzini, 78 Misc 2d 1040, 1043-1044), holding that law nonexclusive and a public nuisance action maintainable. It is one thing to conclude that limitation of penalties payable to the public treasury and denial of a decertification sanction are inconsistent with the imposition of a new strict liability cause of action, and quite another to conclude that persons damaged by action tortious before public strikes were declared illegal should be denied the recompense to which they would be otherwise entitled in the interest of labor peace. That indemnification against such liability may become a union demand in the bargaining process and prolong an illegal strike must be recognized (cf. Burke & Thomas v International Organization of Masters, Mates & Pilots, 92 Wn 2d 762, 775, supra; Note, 91 Harv L Rev, at p 1320) but is, in our view, an insufficient basis, absent clearer indication of legislative intent, to hold the statute pre-emptive of all common-law causes of action and thus, as the Supreme Court has said in another context, “permit the result, extraordinary in our jurisprudence, of a wrongdoer shifting responsibility for the consequences of his [actions] onto his victim” (Wyandotte Co. v United States, 389 US 191, 204). We are fortified in that conclusion by similar decisions of courts of other States (Fulenwider v Firefighters Assn. Local Union 1784, 649 SW2d 268 [Tenn]; 3 CCH Public Bargaining Cases, par 37630; Burke & Thomas v International Organization of Masters, Mates & Pilots, 92 Wn 2d 762, supra; see Pasadena Unified School Dist. v Pasadena Federation of Teachers, 72 Cal App 3d 100; State ex rel. Danforth v Kansas City Firefighters Local No. 42, AFL-CIO, 585 SW2d 94 [Mo]; cf. Lamphere Schools v Lamphere Federation of Teachers, 400 Mich 104, supra).

Ill

The conclusion that the statute is not exclusive requires that we consider the common-law causes of action asserted in the two complaints, the allegations of which are for purposes of such consideration deemed true (219 Broadway Corp. v Alexander’s, Inc., 46 NY2d 506; see 4 Weinstein-Korn-Miller, NY Civ Prac, par 3211.29). We conclude, for the reasons spelled out below, that neither complaint sufficiently states a cause of action.

A

The cause of action common to the two complaints is that in prima facie tort. The elements of such a cause of action as stated in prior New York cases are (1) intentional infliction of harm, (2) resulting in special damages, (3) without excuse or justification, and (4) by an act or series of acts that would otherwise be lawful (ATI, Inc. v Ruder & Finn, 42 NY2d 454, 458; see Wehringer v Helmsley-Spear, Inc., 91 AD2d 585, affd 59 NY2d 688; 2 NY PJI 624). Plaintiff suggests, however, that it is anomalous to deny a cause of action on the ground that the injury-causing act was imlawful and the balancing analysis espoused in Comment e of section 870 of the Restatement of Torts, Second, lends some credence to that argument.

It can be argued that unlawful acts are not covered by prima facie tort because they will normally be compensable in traditional tort forms of action, unless the policy underlying the traditional tort excludes such an act. But it can also be argued that the reference to “lawful” acts was a result of the genesis of prima facie tort, which was conceived as a means of avoiding a “hardening of * * * categories” (Morrison v National Broadcasting Co., 24 AD2d 284, 287 [Breitel, J.], revd on other grounds 19 NY2d 453), by providing redress for an act, even though otherwise lawful and not encompassed by a traditional tort, done solely for an improper or evil motive.

As it has evolved prima facie tort is neither a “ ‘catch-all’ alternative for every cause of action which cannot stand on its legs” (Belsky v Lowenthal, 62 AD2d 319, 323, affd 47 NY2d 820), nor will the existence of a traditional tort foreclose alternative pleading of prima facie tort, though, of course, double recoveries will not be allowed (Board of Educ. v Farmingdale Classroom Teachers Assn., Local 1889, AFT AFL-CIO, 38 NY2d 397, 406). The “categories” argument, therefore, need not exclude an unlawful act, as, indeed, the Restatement of Torts, Second, has recognized (§ 870, Comment h).

We need not now decide whether an unlawful act can be the predicate for prima facie tort, for there is no recovery in prima facie tort unless malevolence is the sole motive for defendant’s otherwise lawful act or, in Justice Holmes’ characteristically colorful language, unless defendant acts from “disinterested malevolence” (American Bank & Trust Co. v Federal Bank, 256 US 350, 358; see Squire Records v Vanguard Recording Soc., 25 AD2d 190, affd 19 NY2d 797; Morrison v National Broadcasting Co., supra, at p 287; 2 NY PJI 624), by which is meant “that the genesis which will make a lawful act unlawful must be a malicious one unmixed with any other and exclusively directed to injury and damage of another” (Beardsley v Kilmer, 236 NY 80, 90).

Here the prima facie tort causes of action cannot stand because, although they allege intentional and malicious action, they do not allege that defendants’ sole motivation was “disinterested malevolence.”

B

The Burns Jackson complaint alleges in its second cause of action that the strike engaged in by defendants “caused widespread economic dislocation and damage and substantial interference with the public health, safety, comfort and convenience within the New York City metropolitan area, thereby creating a nuisance.” Although the allegation of substantial interference with the common rights of the public at large is a sufficient predicate for a private action based on public nuisance (see Caso v District Council 37, Amer. Federation of State, County & Municipal Employees, AFL-CIO, 43 AD2d 159, supra; and generally Copart Ins. v Consolidated Edison Co. of N. Y., 41 NY2d 564, mot for rearg den 42 NY2d 1102; Restatement, Torts 2d, § 821B; 2 NY PJI 669-670) and additional expense in the performance of a specific contract can constitute the “private and peculiar injury” required for a private action (Wakeman v Wilbur, 147 NY 657, 663; Callanan v Gilman, 107 NY 360, 370; Restatement, Torts 2d, § 821C, Comment i), it is, nevertheless, true that the harm suffered must be “of a different kind from that suffered by other persons exercising the same public right” and that “invasions of rights common to all of the public should be left to be remedied by action by public officials” (Restatements, Torts 2d, § 821C, Comment b; see, also, Comment h; Prosser, Private Action For Public Nuisance, 52 Va L Rev 997, 1008; 2 NY PJI 671).

The damages here alleged are for additional out-of-pocket expenses resulting from defendants’ conduct and for loss of business profits. Such damages, though differing as to the nature of the expense or the particular contract from which greater profit was expected, were, as the Appellate Division noted (88 AD2d, at p 71), suffered by every person, firm and corporation conducting his or its business or profession in the City of New York. Indeed, the class as envisioned by plaintiff’s complaint consists of “professional and business entities conducted for profit * * * that rely on the public transportation system serving the City of New York to enable them to practice their profession and to operate their businesses and that have been damaged as a consequence of the defendants’ disruption of the service provided by that system.”

When the injury claimed to be peculiar is of the same kind suffered by all who are affected, when it “is common to the entire community” (Francis v Schoellkopf, 53 NY 152, 154), or, as Prosser put it (52 Va L Rev, p 1015), “it becomes so general and widespread as to affect a whole community,” the injury is not peculiar and the action cannot be maintained. Cases such as Francis v Schoellkopf (supra), and Lansing v Smith (4 Wend 9) are not to the contrary, for the injuries they involved were not common to the entire community, though the argument made was that a number of persons had been damaged in the same way. The economic loss which results from a transit strike is not recoverable in a private action for public nuisance because the class includes all members of the public who are affected by the strike (Prosser, 52 Va L Rev, p 1009; Note, 91 Harv L Rev, p 1331).

C

The two remaining causes of action may be dealt with more summarily. Jackson, Lewis’ brief devotes but a two-sentence footnote to its third cause of action for intentional interference with business. The complaint alleges that defendants “intentionally and maliciously interfered with the business of the plaintiff” to plaintiff’s special damage in that the productivity of partners and employees was reduced and extra expense incurred. What is apparently sought to be pleaded, therefore, is a claim within section 766A of the Restatement of Torts, Second, for causing plaintiff’s performance of its contracts with its clients to be more expensive or burdensome.

No New York case recognizing such a cause of action has been cited or has been found by us. We need not, however, now decide whether such a cause of action should be recognized by us in other situations. The interference here alleged was but an incidental result of defendants’ conduct and, although that conduct was in violation of the Taylor Law, we conclude that as a matter of policy we should not recognize a common-law cause of action for such incidental interference when the Legislature has, in establishing an otherwise comprehensive labor plan for the governance of public employer-employee relations, failed to do so (De Angelis v Lutheran Med. Center, 58 NY2d 1053; Albala v City of New York, 54 NY2d 269; Donohue v Copiague Union Free School Dist., 47 NY2d 440; Drago v Buonagurio, 46 NY2d 778; cf. Restatement, Torts 2d, § 766A, Comment e; and § 767, Comments d, h).

The Jackson, Lewis contract cause of action alleges that contracts existed between defendant unions and NYCTA and MABSTOA up to and including March 31, 1980, that they continued by operation of law until negotiation of successor agreements ended, that between April 1 and April 11,1980, defendants and their members engaged in a strike against NYCTA and MABSTOA in violation of the contracts, that plaintiff is a third-party beneficiary of the contracts and that plaintiff was damaged by their breach.

A third party may be the beneficiary of a public as well as a private contract (see Kornblut v Chevron Oil Co., 62 AD2d 831, affd 48 NY2d 853; 22 NY Jur 2d, Contracts, § 280). He may recover, however, only by establishing (1) the existence of a valid and binding contract between other parties, (2) that the contract was intended for his benefit and (3) that the benefit to him is sufficiently immediaté, rather than incidental, to indicate the assumption by the contracting parties of a duty to compensate him if the benefit is lost (Port Chester Elec. Constr. Corp. v Atlas, 40 NY2d 652, 655; Associated Flour Haulers & Warehousemen v Hoffman, 282 NY 173; Moch Co. v Rensselaer Water Co., 247 NY 160).

Existence of a valid and binding contract is, thus, a sine qua non (see Dunning v Leavitt, 85 NY 30, 35; 2 Williston, Contracts [3d ed], §§ 347, 394; 22 NY Jur 2d, Contracts, § 281). Here, however, the complaint itself states that the contracts expired on March 31,1980, and its suggestion that they continued by operation of law under Matter of Triborough Bridge & Tunnel Auth (District Council 37 & Local 1396) (5 PERB 3064) is inconsistent with the limitation on the so-called “Triborough Doctrine” stated by us in Matter of Board of Coop. Educational Servs. of Rockland County v New York State Public Employment Relations Bd. (41 NY2d 753, 757-758). The contracts having expired before the strike, any rights of plaintiff as a third-party beneficiary of them expired with it (Fulenwider v Firefighters Assn. Local Union 1784, 649 SW2d 268 [Tenn], supra).

Further reason why Jackson, Lewis’ contract cause of action cannot succeed is that plaintiff is but an incidental beneficiary of the collective bargaining agreement (Isbrandtsen Co. v Local 1291 of Int. Longshoremen’s Assn., 204 F2d 495), the “intention to assume an obligation of indefinite extension to every member of the public * * * [being] the more improbable when we recall the crushing burden that the obligation would impose” (Moch Co. v Rensselaer Water Co., 247 NY 160, 165, supra; see, also, Kornblut v Chevron Oil Co., supra).

For the foregoing reasons, the order of the Appellate Division should be affirmed, with costs.

Chief Judge Cooke

(concurring). I agree that appellants have not stated a cause of action. Inasmuch as the court expressly does not now decide “whether an unlawful act can be the predicate for prima facie tort,” the abstract discussion of the merits of the proposition (pp 332-333) is jurisprudentially unwise and will serve only to confuse litigants and the courts. The inappropriateness of the dicta is magnified by its inconclusiveness. Consequently, I cannot join in that part of the majority opinion.

Judges Jasen, Jones, Wachtler and Simons concur with Judge Meyer; Chief Judge Cooke concurs in result in a concurring memorandum.

Order affirmed, with costs. Question certified not answered as unnecessary.

      . Class certification has never been sought or granted, however.

      . It is undisputed that the 1980 transit strike was in violation of the antistrike provisions of subdivision 1 of section 210 of the Civil Service Law. In fact, several of the defendants herein were the subject of criminal contempt findings and fines (see New York City Tr. Auth. v Lindner, 83 AD2d 573, mots for lv to app dsmd 55 NY2d 701).

      . Because that order brings up for review all aspects of the order appealed from, including so much as affirmed dismissal of Jackson, Lewis’ contract cause of action (Pan Amer. World Airways v Overseas Raleigh Mfg., 49 NY2d 982), the question certified to us by the Appellate Division was unnecessary and is not answered.

      . Not argued in Jackson, Lewis’ brief in this court and, therefore, not considered by us are the fourth and fifth causes of action for willful injury and for conspiracy.

      . The probationary period provision was, however, repealed by chapter 465 of the Laws of 1978.

      . The more particularly does this follow from the failure of either the Taylor Committee’s 1966 Final Report or its 1968 Interim Report, both of which included comprehensive discussion of deterrents, to make any reference to a private cause of action.

      . (L 1974, chs 283, 724, 725; L 1975, ch 850; L 1977, chs 216, 677, 678, 817; L 1978, ch 465; L 1981, chs 378, 814.)


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    In the Matter of Elmer L. Lobdell, a Justice of the Fulton Town Court, Petitioner, v State Commission on Judicial Conduct, Respondent.
    Argued June 3, 1983;
    decided June 30, 1983

      POINTS OF COUNSEL

      Roger H. Mattery for petitioner.
    Petitioner should not be removed from judicial office even though he was not certified in 1981. (Matter of Steinberg, 51 NY2d 74.)

      Gerald Stern and Jean M. Savanyu for respondent.
    I The certification process for lay Justices mandated by the Office of Court Administration is lawful, reasonable and sound. (Bartlett v Bedient, 47 AD2d 389.) II. Petitioner’s misconduct is properly subject to discipline and amply demonstrates his lack of fitness for judicial office. (Matter of Aldrich v State Comm. on Judicial Conduct, 58 NY2d 279.)
   OPINION OF THE COURT

Per Curiam.

Petitioner has brought this proceeding to review a determination of the State Commission on Judicial Conduct that he be removed as a Justice of the Fulton Town Court, Schoharie County. After reviewing the commission’s findings of facts and conclusions of law (see NY Const, art VI, § 22, subd d), this court concludes that petitioner should be removed from office.

Petitioner, who is not an attorney, was elected in November, 1979 to a four-year term as Town Justice beginning January 1, 1980. On April 1, 1982, the commission served petitioner with a complaint alleging that he had demonstrated unfitness to hold judicial office by continuing to preside over cases even though he lacked the required certification to act as a Judge. The commission, following a hearing before a referee, sustained the charge and determined that petitioner should be removed from office. In this proceeding, petitioner concedes that he presided over cases while uncertified, but stresses that he has since received certification and argues that removal is an excessively harsh sanction.

Pursuant to the State Constitution (NY Const, art VI, § 20, subd c), the Legislature has provided that a Town or Village Justice who is not admitted to practice law in this State may not assume the functions of office unless he or she has filed “a certificate of completion of a course of education and training prescribed by the administrative board” (UJCA, § 105, subd [a]; see, also, Town Law, § 31, subd 2). A basic course, under the auspices of the Chief Administrator of the Courts, must be taken at the first available session after a new Justice’s selection. Upon satisfactorily completing the course, the Justice is certified. For continued certification, the Justice is required to complete the next available offering of the advanced course (Rules of the Chief Judge, rule 17.2 [22 NYCRR]).

The essential facts are not disputed. Petitioner failed to complete the first basic training course after his election, offered in November, 1979, and therefore was not certified to perform the duties of Town Justice when he assumed office on January 1,1980. He received temporary certification on April 28, 1980, but had heard seven cases in the interim. In July, 1980, petitioner successfully completed the basic training course and received certification. Due to petitioner’s failure to timely complete the advanced course, his certification expired on December 31, 1980. In March, 1981, petitioner attended the advanced course but failed the final examination. He failed to take the advanced course the next five times it was offered — May, July, September, and October, 1981, and February, 1982. In March, 1982, petitioner again took the advanced course and again failed. In June, 1982, he successfully completed the advanced course.

Although petitioner was not certified during any part of 1981 and thus could not legally perform the functions of his office, petitioner heard 84 cases during that year. He handled 17 of these cases after being notified on October 9, 1981, by the commission that it was investigating a complaint concerning his lack of certification. Petitioner had previously been notified by his administrative Judge and the Office of Court Administration that his failure to achieve certification precluded him from exercising his judicial functions. Petitioner’s response, in a letter to the commission, was only a general statement that he had been “sick”.

A second Justice for the Town of Fulton took office on January 1, 1982. The following month, after receiving complaints from the District Attorney and an enforcement officer of the Department of Environmental Conservation about problems created by petitioner’s lack of certification, the town board requested that petitioner resign. Petitioner refused to do so, but did transfer the 14 cases pending before him to the other Town Justice in April.

In arguing that the sanction of rémoval is too harsh, petitioner emphasizes that he is now qualified to perform the duties of Town Justice. This is true, but it is irrelevant. More is involved than petitioner’s failure to fulfill the requirements for certification. Not only did he fail to successfully complete the advanced training course until June, 1982, but from May, 1981 through February, 1982 he failed even to attend the course although it was offered five times during that period. Petitioner states that he was too ill to attend any of these sessions, yet he presented no evidence to support this assertion and the record indicates that whatever illnesses petitioner may have suffered did not prevent him from presiding over cases throughout 1981.

The most disturbing aspect of petitioner’s conduct, however, was his continuing to preside over cases despite his lack of certification. Petitioner was legally barred from exercising the functions of the office of Town Justice. This fact was repeatedly brought to petitioner’s attention, as was the possibility that his conduct could lead to removal from office. Nevertheless, petitioner continued to hear cases and exercise the functions of his office even though he knew he lacked authority to do so. That petitioner was the only Town Justice in the Town of Fulton during 1981 did not excuse his conduct. Petitioner should have disqualified himself from hearing cases until he received certification.

In conclusion, petitioner presided over nearly 100 cases while he was prohibited by statute and the State Constitution from doing so. Moreover, petitioner persisted in hearing cases in the face of numerous warnings and complaints about the illegality of his activity. This deliberate and repeated flouting of the law constitutes misconduct rendering petitioner unfit for judicial office.

Accordingly, the determined sanction of removal should be accepted, without costs.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer and Simons concur in Per Curiam opinion.

Determined sanction accepted, without costs, and Elmer L. Lobdell removed from the office of Justice of the Fulton Town Court, Schoharie County.


author: Meyer, J.

text:
    The People of the State of New York, Appellant, v New York City Transit Authority, Respondent.
    Argued June 2, 1983;
    decided July 12, 1983

      POINTS OF COUNSEL

      Robert Abrams, Attorney-General {Deborah Bachrach, Peter H. Schiff and Sheila Abdus-Salaam of counsel), for appellant.
    I. The Transit Authority’s use of seniority in making promotions discriminates on the basis of sex in violation of the Human Rights Law (§ 296, subd 1). (Matter of Sontag v Bronstein, 33 NY2d 197; Matter of Trans World Airlines v State Human Rights Appeal Bd., 46 AD2d 138, 38 NY2d 810; State Div. of Human Rights v Kilian Mfg. Corp., 35 NY2d 201; Cullen v Nassau County Civ. Serv. Comm., 53 NY2d 492; City of Schenectady v State Div. of Human Rights, 37 NY2d 421; Griggs v Duke Power Co., 401 US 424; Connecticut v Teal, 457 US 440; Matter of Board of Educ. v New York State Div. of Human Rights, 56 NY2d 257; Robinson v Lorillard Corp., 444 F2d 791, 404 US 1006; United States v Bethlehem Steel Corp., 446 F2d 652.) II. Appellants state a cause of action under the equal protection clause of the New York State Constitution. (Matter of 303 West 42nd St. Corp. v Klein, 46 NY2d 686;
      Personnel Administrator of Mass. v Feeney, 442 US 256; Washington v Davis, 426 US 229; Arlington Hgts. v Metropolitan Housing Corp., 429 US 252.) III. Appellants are entitled to summary judgment on their claim that the Transit Authority’s use of seniority in making provisional dispatcher appointments violates subdivision 1 of section 296 of the Human Rights Law. (Andre v Pomeroy, 35 NY2d 361; Barrett v Jacobs, 255 NY 520; Gelb v Bucknell Press, 69 AD2d 829; Connecticut v Teal, 457 US 440; Grant v Bethlehem Steel Corp., 635 F2d 1007; New York City Tr. Auth. v Beazer, 440 US 568; League of United Latin Amer. Citizens v City of Santa Ana, 410 F Supp 873; Dothard v Rawlinson, 433 US 321; Albermarle Paper Co. v Moody, 422 US 405; Blake v City of Los Angeles, 595 F2d 1367, 446 US 928.)

      Eugene Freidus and Richard K. Bernard for respondent.
    I. The cause of action of appellants is beyond any relevant Statute of Limitations. (United Air Lines v Evans, 431 US 553; Franks v Bowman Transp. Co., 424 US 747; Cates v Trans World Airlines, 561 F2d 1064; Freude v Bell Tel. Co. of Pa., 438 F Supp 1059; State Div. of Human Rights v University of Rochester, 53 AD2d 1020, 40 NY2d 917; Berni v Leonard, 32 NY2d 933, 414 US 1045; Matter of Pell v Board of Educ., 34 NY2d 222; Matter of Mize v State Div. of Human Rights, 33 NY2d 53; New York State Div. of Human Rights v Nationwide Mut. Ins. Co., 74 AD2d 16, 53 NY2d 1008; Personnel Administrator of Mass. v Feeney, 442 US 256.) II. Appellants fail to state a cause of action for which relief can be granted. (Personnel Administrator of Mass. v Feeney, 442 US 256; American Tobacco Co. v Patterson, 456 US 63; Trans World Airlines v Hardison, 432 US 63; Pettway v American Cast Iron Pipe Co., 576 F2d 1157, 439 US 1115; Williams v New Orleans S. S. Assn., 673 F2d 742; Johnson v Ryder Truck Lines, 575 F2d 471; Richards v United States, 369 US 1; Consumer Prod. Safety Comm. v GTE Sylvania, 447 US 102; Matter of 303 West 42nd St. v Klein, 46 NY2d 686; Dandridge v Williams, 397 US 471.) III. Appellants are not properly before this court on the denial of summary judgment below. (H & M Heating Utilities v Teplitz, 16 NY2d 1043; Falcone v Falcone, 23 NY2d 738; O'Reilly v Evans, 106 Misc 2d 959; Boyd v Ozark

      Air Lines, 419 F Supp 1061, 568 F2d 50; Smith v Troyan, 520 F2d 492, 426 US 934, 429 US 933; United Air Lines v Evans, 431 US 553; State Div. of Human Rights v University of Rochester, 53 AD2d 1020, 40 NY2d 917; Matter of Russell Sage Coll. v State Div. of Human Rights, 45 AD2d 153, 36 NY2d 985; California Brewers Assn. v Bryant, 444 US 598; Porter Co. v NLRB, 397 US 99.)
   OPINION OF THE COURT

Meyer, J.

A complaint which alleges that women are being discriminated against through the use of a facially neutral seniority system as the basis for provisional promotions and by giving seniority weight disproportionate to performance in determining permanent promotional appointments states a valid cause of action for violation of the Human Rights Law (Executive Law, art 15) but since it alleges no present intent to discriminate does not sufficiently allege a cause of action under the equal protection clause of the New York State Constitution (art I, § 11). Moreover, on this motion to dismiss the complaint the statutory cause of action cannot be found time barred even though the women’s lack of seniority results from their exclusion from employment at a time in the past beyond the limitation period. The order of the Appellate Division dismissing the complaint should, therefore, be modified to reinstate the first cause of action of the complaint and, as so modified, affirmed, with costs, without prejudice, however, to an application pursuant to CPLR 3211 (subd [e]) by the People to Supreme Court for leave to amend the second cause of action.

I

The action is by the Attorney-General on behalf of women bus drivers employed by the New York City Transit Authority (TA). The complaint alleges that the position of surface line dispatcher (dispatcher) is an entry level management position, that to qualify to take the dispatcher examination an applicant need only have one year’s experience as a bus operator (driver), that in June, 1981 the TA announced that provisional appointments as dispatcher would be based on seniority as a bus operator and that all of the 30 provisional appointments made in August, 1981 went to men, the least senior of whom had 18 years as a driver. It alleges further that because the TA excluded women from taking the driver examination until 1971 and appointed no woman driver until 1978, no woman driver had more than three years’ experience, that until 1976 the TA additionally discriminated against women by imposing a 5-foot 4-inch height requirement for drivers which disqualified 54.8% of adult females but only 3.7% of adult males from such employment. Use of seniority as a driver as a criterion for provisional and permanent appointment to the position of dispatcher, it avers, discriminates on the basis of sex against female bus operators in that it disproportionately disqualifies female drivers and perpetuates prior discriminatory practices of the TA, in violation of section 296 (subd 1, par [a]) of the Executive Law and of section 11 of article I of the State Constitution.

On September 30, 1981, Supreme Court, Kings County, granted a preliminary injunction enjoining the TA pending determination of the action from using seniority as a factor, in part or in whole, in making further provisional appointments, finding that on the papers presented the TA had not established that seniority, in the manner used, bore a rational relationship to job performance.

The September 30, 1981 order also directed an immediate trial of the question whether the TA could continue to use seniority as a factor in determining eligibility for permanent appointment and ordered a new examination and the establishment of an eligibility list for the position of dispatcher. In compliance with the order a new examination was held on January 9,1982, but the trial ordered has not taken place because, before joining issue by answering, the TA moved pursuant to CPLR 3211 (subd [a], pars 5, 7) to dismiss the complaint as untimely and for failure to state a cause of action. In their opposition papers the People asked for partial summary judgment pursuant to CPLR 3211 (subd [c]) with respect to the provisional appointment issue. Supreme Court, by order dated December 11, 1981, deemed the People’s application to be a cross motion but denied it because there was a triable issue as to what degree, if any, seniority could be used in making provisional appointments. It also denied the TA’s motion to dismiss. On cross appeals, the Appellate Division, one Justice dissenting, dismissed the appeal from the September 30, 1981 order as moot, modified the December 11, 1981 order by deleting the provision denying the motion to dismiss and substituting a provision granting the motion, and, as so modified, affirmed the latter order. The People appeal from so much of the Appellate Division order as modified the order of December 11, 1981, but not from the dismissal of the appeal from the order of September 30, 1981. Before us, the People argue both that the complaint was improperly dismissed and that they were improperly denied partial summary judgment on the provisional appointment issue. We conclude, though for a reason other than that given by Supreme Court, that partial summary judgment was properly denied, but that the first cause of action was improperly dismissed.

II

What we determine on a motion to dismiss is whether, accepting as true the factual averments of the complaint, plaintiff can succeed upon any reasonable view of the facts stated (219 Broadway Corp. v Alexander’s, Inc., 46 NY2d 506, 509). For the reasons that follow, we conclude that there is such a view of the facts as to (a) the cause of action under the Human Rights Law but (b) not as to the cause of action under the equal protection clause of the Constitution and (c) that on the complaint alone the first cause of action cannot be held barred by limitations.

A

• As we made clear in Matter of Sontag v Bronstein (33 NY2d 197, 201), an employment practice neutral on its face and in terms of intent which has a disparate impact upon a protected class of persons violates the Human Rights Law unless the employer can show justification for the practice in terms of employee performance. The complaint alleges that provisional appointments as dispatcher were based upon seniority and resulted in all of the provisional appointments going to males to the exclusion of females qualified except as to seniority for the position. It alleges also that seniority is used by the TA as a criterion for permanent appointment as dispatcher. Although it does not specify the value assigned by the TA to seniority in the permanent employment decision, it does allege that female drivers are disproportionately disqualified by its use. A standard or practice “fair in form but discriminatory in operation” as to employment or promotional opportunity is within the reach of the Human Rights Law (State Div. of Human Rights v Kilian Mfg. Corp., 35 NY2d 201, 209; cf. Connecticut v Teal, 457 US 440, 446-447, 454-456). The complaint states a disparate impact cause of action under the Human Rights Law as to both provisional and permanent appointments, which the TA must meet, if it can, by showing business necessity or justification relating to the work of a dispatcher.

That section 52 of the Civil Service Law provides that “due weight” is to be given seniority and that subdivision (h) of section 703 of the Civil Rights Act of 1964 (US Code, tit 42, § 2000e-2, subd [h]) immunizes “bona fide” seniority systems does not detract from that conclusion. What constitutes “due weight” is inextricably intertwined with the relationship between job performance and the value assigned to seniority as a factor in promotion. To promote solely on the basis of seniority, as the People allege was done with provisional appointments, appears prima facie to give undue weight to seniority, although the TA may be able to justify even that great weight. Whether as to permanent appointments the weight given is more than “due” will have to await evidentiary development of exactly what weight is given to seniority in the making of such appointments as well as the claimed justification for it.

As for the “bona fide” seniority provision of the Civil Rights Act, assuming without deciding that it applies at all to an action under New York statute and Constitution (cf. Civil Rights Act, §§ 708,1104 [US Code, tit 42, §§ 2000e-7, 2000h-4]), it does no more than raise an issue of fact — whether the TA seniority system is bona fide — which cannot be decided on the complaint alone. “Bona fides, in the context of the statute requires, at least in part, that the seniority system be applied fairly and impartially to all employees, that it not have its ‘genesis in [unlawful] discrimination’, and that it be maintained free from illegal purposes” (Acha v Beame, 570 F2d 57, 64 [brackets in original]), which is an issue for the trial court (id.).

As the Attorney-General’s brief notes, our conclusion that a valid cause of action has been stated on the theory of disparate impact makes it unnecessary for us to consider whether the seniority standard is also illegal because it continues the effect of the TA’s past discriminatory practices in excluding women entirely until 1971 and in imposing a height requirement.

B

With respect to the equal protection cause of action, purposeful discrimination is a necessary element (Matter of 303 West 42nd St. Corp. v Klein, 46 NY2d 686; see Personnel Administrator of Mass. v Feeney, 442 US 256). The complaint contains no specific allegation of a present intent to discriminate and is, therefore, insufficient in that respect. The order, insofar as it affirmed dismissal of the second cause of action, is affirmed, without prejudice, however, to the right of the People, if so advised, to apply at Special Term for leave to amend (CPLR 3211, subd [e]; see Sanders v Schiffer, 39 NY2d 727).

C

The limitations provisions upon which the TA relies are subdivision 5 of section 297 of the Executive Law, CPLR 214 (subd 2) and CPLR 213 (subd 1). The first deals with a complaint filed with the Division of Human Rights and requires that such a complaint be “filed within one year after the alleged unlawful discriminatory practice.” Although it is a generally accepted principle that the time fixed in a statute which creates a cause of action unknown to the common law is to be treated as a qualification of the newly created right (Romano v Romano, 19 NY2d 444, 448-449), that rule has no application to the present action which is not a complaint filed with the division seeking administrative relief but one for a judicial remedy (Murphy v American Home Prods. Corp., 58 NY2d 293, 306-307).

For several reasons, the Supreme Court’s decision in United Air Lines v Evans (431 US 553), relied upon in the plurality opinion below, does not require a contrary conclusion. Although Evans construed provisions of title VII of the Civil Rights Act of 1964 closely parallel to section 296 (subd 1, par [a]) of the Human Rights Law, the Supreme Court in reaching its decision relied heavily on the bona fide seniority provision (US Code, tit 42, § 2000e-2, subd [h]) of the Civil Rights Act for which there is no Human Rights Law parallel provision and as to which, as already noted, section 52 of the Civil Service Law does not fill the gap. Moreover, the Congress has expressed its intention not to occupy the entire field of discrimination to the exclusion of State laws (US Code, tit 42, §§ 2000e-7, 2000h-4) except as a State law requires or permits the doing of an act inconsistent with the basic objective of title VII to cause employment to be based only on job qualifications (Burns v Rohr Corp., 346 F Supp 994, 997). Thus, Congress has demonstrated its intent “to preserve the effectiveness of state antidiscrimination laws” (Rosenfeld v Southern Pacific Co., 444 F2d 1219, 1226). The Evans decision, therefore, although entitled to respectful consideration in view of the similarity of the underlying provisions, is not binding upon us (Brooklyn Union Gas Co. v New York State Human Rights Appeal Bd., 41 NY2d 84, 86, n 1; Massachusetts Elec. Co. v Massachusetts Comm. Against Discrimination, 375 Mass 160, 167; Anderson v Upper Bucks County Area Vocational Tech. School, 30 Pa Comm Ct 103, 108; cf. American Tobacco Co. v Patterson, 456 US 63, 64).

Nor do the other cited Statutes of Limitations affect the sufficiency of the first cause of action because they are but statutes of repose which must be affirmatively pleaded (CPLR 3018, subd [b]).

For the foregoing reasons, the order of the Appellate Division should be modified in accordance with this opinion and, as so modified, affirmed, with costs.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler and Simons concur.

Order modified, with costs to appellant, by reinstating the first cause of action of the complaint and, as so modified, affirmed, without prejudice to an application by appellant for leave to amend the second cause of action in accordance with the opinion herein.

       The TA was not made aware until receipt of the order of December 11, 1981 that the motion Judge would deem the informal application in the People’s answering papers to be a cross motion and, therefore, replied only on the procedural ground that summary judgment was inappropriate before joinder of issue except on a defendant’s motion. It would, therefore, have been improper to grant the People’s cross motion without “adequate notice” to the TA that the court intended to entertain the partial summary judgment application (CPLR 3211, subd [c]; Rovello v Orofino Realty Co., 40 NY2d 633; cf. Wein v City of New York, 36 NY2d 610, 620-631).


author: Wachtler, J.

text:
    The People of the State of New York, Respondent, v Theodore Pepper, Appellant.
    Argued June 1, 1983;
    decided June 30, 1983

      POINTS OF COUNSEL

      Robert M. Cohen for appellant.
    I. Extensive publicity and failure to grant appellant’s motion for change of venue deprived Ted Pepper of his right to a fair trial. (Matter of Murchison, 349 US 133; People v Moore, 42 NY2d 421; Irvin v Dowd, 366 US 717; People v Culhane, 33 NY2d 90; People v Genovese, 10 NY2d 478; Sheppard v Maxwell, 384 US 333; United States v Trapnell, 638 F2d 1016; People v Harris, 53 AD2d 1007; Patterson v Colorado, 205 US 454.) II. The indictment did not charge the alleged incidents with the requisite particularity. (People v Harper, 37 NY2d 96; People v Iannone, 45 NY2d 589; People v Armlin, 6 NY2d 231; People v Pries, 81 AD2d 1039; People v MacAfee, 76 AD2d 157; People v Fitzgerald, 45 NY2d 574; United States v Simmons, 96 US 360; Berger v United States, 295 US 78; People v Wright, 172 Misc 860; People v Van Every, 222 NY 74.) III. The voir dire was inadequate to serve its intended function of revealing veniremen who would not be able to render an objective verdict. (People v Mordino, 58 AD2d 197; People v Culhane, 33 NY2d 90; People v Blyden, 55 NY2d 73; People v Prior, 268 App Div 717, 294 NY 405; People v Mulroy, 108 Misc 2d 907; Irvin v Dowd, 366 US 717; United States v Marcello, 280 F Supp 510; Ham v South Carolina, 409 US 524; Aldridge v United States, 283 US 308; People v Boulware, 29 NY2d 135.) IV. Defendant was improperly denied challenges for cause. (People v Crimmins, 36 NY2d 230; People v Blyden, 55 NY2d 73; People v Culhane, 33 NY2d 90; People v Branch, 59 AD2d 459, 46 NY2d 645; People v Moorer, 77 AD2d 575; People v Meyer, 78 AD2d 662.) V. For defendant to be convicted, it was necessary to satisfy two separate statutes involving corroboration (Penal Law, § 130.16; CPL 60.22). (People v Carney, 73 AD2d 692; People v Clayborn, 50 AD2d 952; People v Fuller, 66 AD2d 27, 50 NY2d 628; People v Jones, 107 Misc 2d 1082; People v Harse, 98 Misc 2d 188; People v

      Fielding, 39 NY2d 607; People v Baker, 46 AD2d 377; People v Wyler, 37 AD2d 375.) VI. Additional errors deprived defendant of a fair trial and should lead to reversal. (Swain v Alabama, 380 US 202; Pointer v United States, 151 US 396; People v Anthony, 24 NY2d 696; People v Corbett, 68 AD2d 772; People v Branch, 59 AD2d 459; People v Dixon, 81 AD2d 620; People v Van Zile, 143 NY 368; People v Rides, 273 NY 214; Wallace v Berdell, 97 NY 13; Ciccone v Waterfront Comm. of N. Y. Harbor, 71 AD2d 195.) VII. The sentence is excessive, violating the rule of North Carolina v Pearce. (People v Drummond, 40 NY2d 990; People v Pena, 50 NY2d 400; People v Rodriguez, 57 AD2d 676; North Carolina v Pearce, 395 US 711; Ehl v Estelle, 656 F2d 166; Papp v Jago, 656 F2d 221; People v Tai, 64 AD2d 641; People v Ford, 60 AD2d 40; People v Jones, 39 NY2d 694; People v Wilcox, 60 AD2d 954.)

      Sol Greenberg, District Attorney (George H. Barber of counsel), for respondent.
    I. There is nothing to indicate that pretrial publicity deprived defendant of a fair trial. (Dobbert v Florida, 432 US 282; Murphy v Florida, 421 US 794; People v Calogero, 64 AD2d 1010; People v De Francesco, 54 AD2d 597; People v Sekou, 45 AD2d 982; People v Culhane, 33 NY2d 90; People v Blyden, 79 AD2d 192; People v Moorer, 77 AD2d 575; People v Meyer, 78 AD2d 662.) II. The indictment was sufficient and defendant failed to move to dismiss for insufficiency; defendant’s right to a bill of particulars was waived. (People v Iannone, 45 NY2d 589; Cowley v People, 83 NY 464; People v Cunningham, 48 NY2d 938.) III. Judge Clyne’s jury selection questions were proper and in any event defendant’s attorney was not restricted in questioning further except when improper questions were asked. (Murphy v Florida, 421 US 794; People v Genovese, 10 NY2d 478; People v Stanard, 42 NY2d 474; People v Corbett, 52 NY2d 714; People v Boulware, 29 NY2d 135; People v Rivera, 26 NY2d 304; People v Winslow, 51 AD2d 824; People v Sher, 24 NY2d 1031, 396 US 837.) IV. There was no valid basis for any challenge for cause, including one that was withdrawn: defendant was not improperly denied any challenges for cause. (People v McGonegal, 136 NY 62.) V. There was corroboration sufficient to the extent required by section 130.16 of the Penal Law and under the unusual factual circumstances the court was correct in not charging CPL 60.22. (People v Medina, 44 NY2d 199; People v Ruberto, 10 NY2d 428; People v De Barry, 76 AD2d 933; People v Fiedling, 39 NY2d 607; People v De Angelis, 262 App Div 970, 288 NY 630; People v Jelke, 1 NY2d 321; People v Coleman, 42 NY2d 500; People v Speigel, 60 AD2d 210, 48 NY2d 647; People v Johnson, 46 AD2d 55, 38 NY2d 956; People v Lupo, 305 NY 448.) VI. The number of peremptory challenges is established by the Legislature and there were no extraordinary circumstances warranting additional peremptory challenges herein. (Hayes v Missouri, 120 US 68.) VII. The sentence is not excessive and complies with constitutional requirements. (People v Pena, 50 NY2d 400.)
   OPINION OF THE COURT

Wachtler, J.

When this case was previously before us, defendant had pleaded guilty to sodomy in the second degree (Penal Law, § 130.45) in satisfaction of a five-count indictment. We determined that our holding in People v Samuels (49 NY2d 218) should be applied retrospectively to cases still in the appellate process at the time that decision was announced, requiring suppression of defendant’s pretrial statement. Accordingly, defendant’s conviction was reversed, his guilty plea was vacated, and the case was remitted to County Court for further proceedings (People v Pepper, 53 NY2d 213, affg 76 AD2d 1006, cert den 454 US 967).

At the ensuing trial, the complaining witness, who was 11 years old at the time of the acts complained of, testified that her mother had arranged meetings between her and the defendant, at which she was expected “to do sexual things with him”. During these encounters, which took place in parking lots in the Town of Colonie, defendant engaged in acts of sexual contact with the witness. After each meeting, the witness’s mother received money from defendant in varying sums.

Defendant was convicted of two counts of sodomy in the second degree (Penal Law, § 130.45) and two counts of sexual abuse in the second degree (Penal Law, § 130.60). This appeal is from the order of the Appellate Division affirming his conviction.

Defendant argues first that his motion for a change of venue was improperly denied and that he was deprived of a fair trial by the extensive publicity given the matter prior to trial. The motion was made in the Appellate Division in connection with the previous proceedings leading up to defendant’s guilty plea and was denied approximately three years before the instant trial began.

Defendant presents no basis upon which to conclude that the Appellate Division in denying the motion deprived the defendant of his constitutional right to a fair trial, considering the circumstances existing at the time the motion was made. Rather, to support his claim of prejudice, defendant relies primarily upon publicity and media exposure occurring after the motion had been denied. Defendant, by not pursuing his application after his conviction was reversed, failed to preserve any claim that the significant change in circumstances (i.e., additional and prejudicial publicity) warranted a change of venue.

Nor can it be said that defendant was deprived of a fair trial by reason of the pretrial publicity. As the Appellate Division recognized, only 25% of the jury panel was excused for having preconceived ideas concerning defendant’s guilt, and the impartiality of the jurors ultimately chosen to serve was assured by the conduct of the selection process. Precautions were taken by the trial court to ensure that the voir dire examinations did not themselves become a potential source of prejudice. Defense counsel was given an adequate opportunity to explore thoroughly what information each potential juror had previously acquired about the case as well as any preconceived opinions or attitudes about the case or defendant. The record does not support defendant’s contention that the trial court’s curtailment of additional questioning at several points during voir dire and its own examination of the prospective jurors to determine whether they could render an impartial verdict, were designed to preclude the jurors’ honest expression of opinion.

The trial court has broad discretion to prevent this most time-consuming phase of a jury trial from becoming unduly protracted (People v Boulware, 29 NY2d 135, 140; People v Corbett, 68 AD2d 772, 778-779, affd 52 NY2d 714), and defendant has not demonstrated that the court abused that discretion. Importantly, the court’s efforts to curtail further repetitious questioning and to effectively summarize the jurors’ previous responses by asking questions in conclusory fashion did not place undue restrictions or limitations upon defense counsel’s ability to explore fully the relevant opinions and biases of the prospective jurors. In short, the jury selection process was itself fair, and defendant has failed to demonstrate that the jurors chosen were anything but impartial.

Defendant next contends that he was improperly denied the opportunity to make a challenge for cause out of the hearing of the jury. We agree that CPL 270.15 (subd 2) was violated by the court’s refusal to hear the challenge “outside of the hearing of the prospective jurors in such manner as not to disclose which party made the challenge”. Notwithstanding this error, reversal of defendant’s conviction is not warranted on this basis, the defendant having failed to demonstrate any prejudice as a consequence of the error.

Defendant also argues that there was insufficient corroboration of the victim’s testimony as required by section 130.16 of the Penal Law. We disagree. This statute would preclude defendant’s conviction of sodomy and sexual abuse in the absence of evidence, additional to that of the victim who was 11 years old at the time of these acts, tending to “[establish that an attempt was made to engage the alleged victim [in acts of sodomy and sexual abuse] at the time of the alleged occurrence” and tending to connect defendant with commission of the offense. Contrary to defendant’s assertions, we conclude that the necessary corroboration of the victim’s testimony is to be foqnd in the testimony of the victim’s mother. Although this witness did not testify in the same manner as the victim and in fact denied that sexual contact took place between defendant and her daughter, her testimony concerning the encounters between them, at the same times and locations as her daughter related, as well as other details of the arrangements, is clearly sufficient to connect defendant to the commission of the offenses described by the victim. This witness’s testimony also tends to establish that an attempt was made to engage the victim in acts of sexual abuse and sodomy. On one occasion, the witness stated that defendant touched her daughter to see if she had breasts. On the second occasion she stated that defendant engaged her daughter in discussion about her sex life and asked her to kiss him on his penis. According to the witness, as she turned around, she saw her daughter “just going down”, apparently to comply with defendant’s request. The mother’s testimony to these events, notwithstanding her ultimate denial of any sexual" contact between defendant and the victim, provided sufficient corroboration under the statute. The fact that the corroborating witness’s testimony is inconsistent with the victim’s does not, on this record, undermine the corroborative value of the evidence.

Defendant’s contention that the indictment does not charge the alleged incidents with sufficient particularity is not preserved for our review (People v Soto, 44 NY2d 683, 684). Although defendant made an extensive pretrial omnibus motion raising issues related to suppression, discovery and the sufficiency of the evidence before the Grand Jury, nowhere is a concern expressed that the indictment itself was inadequate to give defendant notice of the acts with which he was charged. Further, although defendant specifically requested a bill of particulars, the People were never ordered to supply one, because defendant’s plea of guilty rendered academic motions which had not yet been decided. Following reversal of his conviction, defendant was free to request this relief again, but he waited until just before jury selection to inform the court orally that he had never received the bill of particulars. Under these circumstances, denial of defendant’s oral request was not error.

We have considered defendant’s remaining contentions, and those that are preserved and otherwise within this court’s review powers are without merit.

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

Chief Judge Cooke and Judges Jasen, Jones, Meyer and Simons concur.

Order affirmed.


text:
    The People of the State of New York, Respondent, v Herman Way, Appellant.
    Submitted June 8, 1983;
    decided July 5, 1983

      POINTS OF COUNSEL

      Salvatore G. Farruggio and Harvey L. Woll for appellant.
    The evidence was legally insufficient for conviction and appellant’s guilt was not established beyond a reasonable doubt. (People v Turner, 73 AD2d 56; People v Benzinger, 36 NY2d 29; People v Cleague, 22 NY2d 363; People v Davis, 41 NY2d 678; People v Reyes, 50 NY2d 887; People v Martinez, 72 AD2d 551; People v Byron J., 64 AD2d 639; People v McDowell, 9 NY2d 12; People v Malinowski, 43 AD2d 189.)

      Robert M. Morgenthau, District Attorney {Emily Berger and Amyjane Rettew of counsel), for respondent.
    Defendant’s guilt was proven beyond a reasonable doubt. (People v Wachowicz, 22 NY2d 369; People v Kennedy, 47 NY2d 196; People v Benzinger, 36 NY2d 29; People v Cleague, 22 NY2d 363; People v Montanez, 41 NY2d 53; People v Allen, 61 AD2d 619, 48 NY2d 760.)
   OPINION OF THE COURT

Wachtler, J.

Defendant was convicted, following a jury trial, of burglary in the first degree and robbery in the second degree. 'He argues on this appeal that the evidence of his guilt, being entirely circumstantial, did not establish his participation in these crimes beyond a reasonable doubt. We agree that the circumstantial evidence offered against defendant was insufficient, inasmuch as the facts adduced are not inconsistent with defendant’s innocence, nor does the evidence exclude to a moral certainty every reasonable hypothesis of innocence. The order of the Appellate Division should therefore be reversed and the indictment dismissed.

On the night of the acts for which defendant stands convicted, Angel and Gladys Burgos lived, along with their 21-year-old son and Angel’s brother Carlos, in a first floor apartment on West 121st Street between Amsterdam Avenue and Morningside Drive in Manhattan. At 1:00 a.m., Angel, who had been asleep on the living room floor, was awakened by an armed intruder, who threatened Angel with a handgun and demanded money. The intruder had apparently entered by way of the fire escape, which was directly beneath the living room window facing the street. Angel asked the gunman not to shoot and told him to take whatever money was in the trousers hanging over a chair. According to Angel’s testimony, he took $12 out of his trousers’ pocket and gave the money and the trousers to the gunman, who started emptying the contents of the pockets onto the floor. Gladys Burgos, who testified that she had been asleep in the front bedroom, was awakened by a commotion during which she heard her husband say, “Don’t shoot, don’t shoot”. She came into the living room as the gunman was going through Angel’s trousers. Gladys told the gunman that they had no more money and pleaded with him not to shoot her husband. As she was standing a few feet from the fire escape window, Gladys heard a whistle from outside, followed by a man’s voice saying, “Hurry up”. The gunman glanced toward the window, then told the Burgoses to go into the bedroom and lie down on the floor. He dumped the contents of a cosmetics bag that was on top of a bureau and then left the apartment by the fire escape window. After the gunman was gone, Angel called the police and went to the window where he saw the gunman being chased by two security guards in the direction of Morningside Drive. The gunman was never apprehended.

Angel’s brother, Carlos, had been asleep in the rear bedroom when the intruder entered the apartment. He awoke to hear a conversation taking place in the living room and heard his brother ask someone what he wanted. He then heard his brother say, “Don’t fire, don’t fire”. Carlos awakened his nephew who was also asleep in the rear bedroom and warned him that a robbery was taking place, then removed his pajamas, put on a pair of pants and a shirt and jumped out the bedroom window. Although Carlos gave no definite time frame for these events, he indicated that his sister-in-law was already in the living room at this point. Carlos then proceeded through an alleyway alongside the building and went through a metal gate, coming out onto 121st Street. When Carlos arrived on the street, he saw the defendant, Herman Way, standing on the sidewalk, looking in the direction of the fire escape window, which was 10 to 12 feet above the ground. Carlos testified that he saw defendant look in the direction of Morningside Drive and then in the direction of Amsterdam Avenue. Carlos then ran down 121st Street toward Amsterdam Avenue, where he obtained the assistance of two security guards. As he did this, he saw defendant walking in the same direction. When defendant reached the intersection of 121st Street and Amsterdam, he hailed a taxicab, spoke with the driver momentarily and then continued walking, now south on Amsterdam Avenue. The police arrived a few moments later, and Carlos pointed them in the direction of defendant, who was still walking. Defendant was arrested between 120th and 119th Streets. He was not in possession of a gun or any proceeds of the crime.

As noted, the gunman was never apprehended. Defendant was tried alone, on a theory of accomplice, liability, for burglary in the first degree and robbery in the second degree. His conviction was affirmed by the Appellate Division, over the dissent of two Justices. We agree with the dissenting Justices that the proof was insufficient to support defendant’s conviction.

When a defendant’s conviction is based, as here, entirely upon circumstantial evidence of his guilt, it is subject to strict judicial scrutiny, not because of any inherent weakness in this form of evidence, but to ensure that the jury has not relied upon equivocal evidence to draw unwarranted inferences or to make unsupported assumptions (People v Kennedy, 47 NY2d 196, 201; People v Benzinger, 36 NY2d 29, 32). The well-settled standard of proof in such cases is that the facts from which the inference of defendant’s guilt is drawn must be “inconsistent with his innocence and must exclude to a moral certainty every other reasonable hypothesis” (People v Bearden, 290 NY 478, 480; see People v Cleague, 22 NY2d 363, 366).

Viewing the facts in a light most favorable to the prosecution and giving it the benefit of every reasonable inference to be drawn therefrom (People v Montanez, 41 NY2d 53, 57; People v Kennedy, supra, at p 203), we have no difficulty in accepting as reasonable the inference that the gunman had an accomplice waiting outside, acting as “lookout”. The testimony of Gladys Burgos that she heard a whistle and a warning from outside and saw the gunman glance toward the window leads naturally to that conclusion. Although Angel Burgos, standing a few feet away, heard nothing, his attention was riveted upon the intruder’s gun, and at worst, this presents an inconsistency which must be resolved in the People’s favor on this appeal.

The more critical question is whether defendant, seen standing outside the Burgos apartment, was the accomplice or a passerby innocent of any wrongdoing. Inasmuch as Carlos Burgos was the only witness who saw defendant standing outside the apartment and his testimony is insufficient to establish defendant’s presence at any particular moment, the People rely entirely upon the sequence of events, as related by the three witnesses, to support both the inference that defendant was outside the apartment while the holdup was in progress and that he was the accomplice who warned the gunman to “hurry up”. Although we agree that it may fairly be inferred that defendant was outside and not far from the window of the Burgos apartment at some point during the holdup, we conclude that it cannot further be inferred that he was present at the moment when the warning was given, an inference which is necessary to a conclusion that defendant was the accomplice. No witness was able to testify to a time frame of events even approaching the precision necessary to accept the People’s theory of defendant’s guilt. That being so, and given the complete absence of proof of any prior relationship between the gunman and defendant, the connection between defendant and these crimes is simply too tenuous to support his conviction.

We agree with the dissenters in the Appellate Division that the present case is very similar to People v Cleague (22 NY2d 363, supra), in which this court held that the evidence upon which defendant’s conviction as an accomplice was based was not inconsistent with his innocence. In Cleague, a police officer on motor patrol in the early morning hours noticed defendant walking up and down in a used car lot, looking at automobiles. The officer stopped to observe defendant and saw him look up and down the street and walk twice toward the rear of a small wooden office building near the middle of the lot. The officer questioned defendant, who said he was looking at the cars. During this conversation, the officer noticed a shadow in the office building and upon entry apprehended a burglar who was in the act of carrying articles out the window.

Defendant’s explanation of his presence in the lot — that he stopped there to look at cars on his way to a restaurant — was uncontradicted, and the court noted that although it was unusual to be looking over cars at a time when the lot was closed for business, it was not an implausible circumstance. Given this explanation and the fact that defendant’s conduct could reasonably be viewed as that of an innocent person, as well as the absence of proof of any connection or prior relationship between the burglar and defendant, the court held that the mere coincidence of defendant’s presence on the premises at a time when a burglary was taking place was insufficient evidence from which to infer guilt (id., at p 366).

Similarly, the coincidence of time, place and behavior occurring in the present case is sufficient only to create suspicion, and thus guilt has not been established with the requisite certainty. Although there is proof that the perpetrator had an accomplice, proof which was lacking in Cleague, critically absent is proof that defendant acted as that accomplice. Here, as in Cleague, defendant’s presence on a public street, not in itself unusual, is entirely consistent with innocence. That he looked up toward the open window of the Burgos apartment and looked up and down the street gives rise to no more than mere suspicion. Moreover, defendant’s conduct after he was first observed by Carlos Burgos does nothing to indicate the consciousness of guilt which in other cases has been found to add considerable strength to the other circumstantial evidence adduced (see, e.g., People v Benzinger, 36 NY2d 29, supra [false statement]; People v Wachowicz, 22 NY2d 369 [defendant took several “quick” steps away when police approached]; People v Davis, 41 NY2d 678 [implausible explanation given for presence, with bleeding hand, near shattered window of recently burglarized store]). Defendant’s conduct, in fact, in walking in the same direction as Carlos, toward two security guards, hailing a cab but not getting into it, and then continuing to walk down Amsterdam Avenue, apparently in no hurry to leave the area, might reasonably be viewed as inconsistent with guilt.

The People’s theory of the sequence of events and defendant’s participation as an accomplice is plausible and perhaps even consistent with all the established facts. It is possible that when Carlos observed defendant, his arrival had triggered the warning given the gunman inside. But it is not enough that the hypothesis of guilt accounts for all the facts proved (People v Montanez, 41 NY2d 53, 57, supra) for it is equally possible that when Carlos arrived on the sidewalk, the accomplice had already given the warning and fled, and that defendant had arrived thereafter. Other reasonable explanations, particularly given the lack of a cohesive time frame, are possible, including that offered by the dissenters below. Given these hypotheses of innocence, it cannot be said that defendant’s guilt was proven with the requisite certainty.

Accordingly, the order of the Appellate Division should be reversed and the indictment dismissed.

Chief Judge Cooke and Judges Jones, Meyer and Simons concur with Judge Wachtler; Judge Jasen dissents and votes to affirm for the reasons stated in the memorandum of the Appellate Division (90 AD2d 718).

Order reversed, etc.