text:
    Carlos Torres, Jr., Plaintiff, v City of New York et al., Appellants, et al., Defendant, and Beekman Downtown Hospital, Respondent.
    Argued May 31, 1978;
    decided July 6, 1978

      APPEARANCES OF COUNSEL

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

      James M. O’Brien for respondent.
   OPINION OF THE COURT

Memorandum.

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

On this appeal our review is limited to so much of the order of the Appellate Division as affirmed the dismissal of the claim of the City of New York for contribution by Beekman Downtown Hospital. There is no evidence in this record of negligence on the part of the hospital or its employees which the jury might have found was the proximate cause of the injuries suffered by plaintiff.

Taken in the light most favorable to plaintiff (and thus the city) there was proof that in addition to the fact that plaintiff was wearing only khaki pants, a T-shirt and socks but no shoes on a very cold December day, Officer Merrill, one of the policemen who brought plaintiff to the hospital, before going off to verify his suspicions, informed the receiving nurse that he believed plaintiff was an escaped mental patient. The nurse, although denying any recollection that the officer had so informed her, testified that under the procedure then applicable at the hospital if a policeman brought in a patient with mental illness, a notation would be made on the chart, the physician responsible would be informed, and the policeman would be asked to guard the patient until he could be seen by the doctor or until such time as arrangements could be made to have him transferred to an appropriate facility.

No such procedure was followed in this instance. The policeman left to make his telephone inquiry and the nurse, after making an initial examination for vital signs, left the patient alone and unattended in the emergency room. The patient had entered the hospital at 9:41 a.m. and he walked out on his own at 9:55 a.m. because he felt that the nurses and policemen were talking about him. Thus there was evidence from which a jury could have concluded that the hospital was guilty of negligent nonsurveillance of plaintiff in violation of applicable hospital practice. Had plaintiff been injured while in the hospital in consequence of such inattention there might have been a predicate for a jury finding of liability.

The city’s claim against the hospital for contribution was properly dismissed in this instance, however, because the injuries were not sustained until sometime after plaintiff had left the hospital, returned to his home, changed his clothes and walked to a subway station where he jumped in front of a train. Nor was there any proof that the hospital had any grounds or authority for detaining plaintiff at the hospital or that the hospital’s procedure called for an attempt at any such detention by persuasion or otherwise.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler and Cooke concur in memorandum; Judge Fuchs-berg dissents and votes to reverse on the dissenting opinion by Mr. Justice Vincent D. Damiani at the Appellate Division (58 AD2d 647-650).

Order affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of Norman Harris, Appellant, v Michael Codd, as Police Commissioner of the City of New York, Respondent.
    Submitted June 2, 1978;
    decided July 6, 1978

      APPEARANCES OF COUNSEL

      Milton L. Cobert for appellant.

      Allen G. Schwartz, Corporation Counsel (Paul T. Rephen and Leonard Koerner of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed, without costs, for relevant reasons stated in the memorandum at the Appellate Division (57 AD2d 778).

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


text:
    Saratoga Harness Racing, Inc., Appellant, v City of Saratoga Springs et al., Respondents.
    Argued June 6, 1978;
    decided July 6, 1978

      APPEARANCES OF COUNSEL

      Ernest B. Morris and David W. Morris for appellant.

      Thomas Nolan, Sr., for County of Saratoga, respondent.

      Louis J. Lefkowitz, Attorney-General (Francis V. Dow and Ruth Kessler Toch of counsel), for New York State Tax Commission, respondent.

      Philip Stillman for Capital District Regional Off-Track Betting Corporation, respondent.

      Herbert J. Lustig, William Lerner and Neil J. Katz, for Finger Lakes Racing Association, Inc., amicus curiae.

   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, without costs.

For the reasons stated by Mr. Justice D. Vincent Cerrito at Special Term we agree that the reference in subdivision 1 of section 130 of the New York State Off-Track Pari-Mutuel Betting Law (L 1974, ch 139, § 3) to the conduct of off-track pari-mutuel betting "in such locality imposing the tax by a regional corporation, pursuant to this article” (emphasis added) refers only to the conduct of such betting by a regional off-track betting corporation in a county which has elected to become a member participating county of that regional offtrack betting corporation. In this action for a declaratory judgment plaintiff alleges in its complaint that the County of Saratoga is not a member of defendant Capital District Regional Off-Track Betting Corporation and that the City of Saratoga Springs is not eligible to become such a member. Accordingly it appears on the face of the complaint that plaintiff is not entitled to the benefits of subdivision 1 of section 130, and that the declaration to such effect at the Appellate Division was properly made.

In view of this disposition it is not necessary to consider the effect to be accorded, on the present motion to dismiss, to plaintiff’s allegation that defendant OTB Corporation "is conducting pari-mutuel betting and its business generally within the City of Saratoga Springs and the County of Saratoga”, or the proof tendered in the motion papers as to the activities allegedly conducted by defendant OTB Corporation in the County of Saratoga and the City of Saratoga Springs.

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

Order affirmed.


text:
    In the Matter of Joanne H. Piersma, on Behalf of Kenneth Majors, Respondent, v Robert J. Henderson, as Superintendent of the Auburn Correctional Facility, Appellant. In the Matter of Robert Smith, Respondent, v Chairman of New York State Board of Parole et al., Appellants.
    Argued June 8, 1978;
    decided July 6, 1978

      APPEARANCES OF COUNSEL

      Louis J. Lefkowitz, Attorney-General (Frederick R. Walsh and Jean M. Coon of counsel), for appellants.

      Amanda Potterñeld and Daniel J. Steinhock for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, without costs, in each case.

The parole detainer warrants were properly dismissed. (People ex rel. Walsh v Vincent, 40 NY2d 1049; Matter of Beattie v New York State Bd. of Parole, 39 NY2d 445.) It is of no significance for present purposes that the parolees in these cases were being held on new commitments rather than only on new arrest charges.

Chief Judge Breitel and Judges Gabrielli, Jones, Wachtler and Fuchsberg concur in memorandum; Judges Jasen and Cooke concur on constraint of People ex rel. Walsh v Vincent (40 NY2d 1049).

In each case: Order affirmed.


text:
    In the Matter of Westchester County Civil Service Employees Association, Inc., et al., Appellants, v Joseph A. Cimino, as Commissioner of Hospitals of the County of Westchester, et al., Respondents.
    Argued May 30, 1978;
    decided July 6, 1978

      APPEARANCES OF COUNSEL

      James M. Rose and Arthur H. Grae for appellants.

      David N. Brainin, County Attorney (Jonathan Lovett of counsel), for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, on the memorandum at the Appellate Division (58 AD2d 869).

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


text:
    In the Matter of Albany Calcium Light Company, Inc., Respondent, v State Tax Commission, Appellant.
    Argued June 1, 1978;
    decided July 6, 1978

      APPEARANCES OF COUNSEL

      Louis J. Lefkowitz, Attorney-General (Robert W. Bush and Ruth Kessler Toch of counsel), for appellant.

      Jeremiah F. Manning for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed insofar as appealed from, with costs.

On this appeal by the State Tax Commission the only question before us is whether the cylinders, which the petitioner uses to deliver gas to its customers, were purchased for resale so as to be exempt from the sales tax at the time of purchase (Tax Law, § 1105, subd [a]; § 1101, subd [b], par [4]).

Initially we note that the statute defines a sale (Tax Law, § 1101, subd [b], par [5]) and does not separately define a resale. It appears then that the Legislature does not consider a sale and resale as discrete concepts and thus a purchaser who acquires an item for the purpose of sale or rental (Tax Law, § 1101, subd [b], par [5]) purchases it for resale within the meaning of the statute. We also recognize that a company which furnishes gas to its customers in cylinders must, if it is to remain solvent, include and recover the cost of the cylinder in the rate charged for the gas. It does not follow, however, that when the gas is delivered in the cylinder the customer is renting the cylinder absent a specified charge for that rental. It should not fall within judicial "decisional analysis” to determine what is or is not a rental (cf. Matter of Crossman Cadillac v Board of Assessors, 44 NY2d 964, decided herewith).

Demurrage charges for retaining the cylinder beyond the initial 30-day period are, on the other hand, rental fees which are not included in the customers’ cost of purchasing the gas. However, the fact that the petitioner charges such a fee does not mean that the cylinders were purchased for the purpose of rental. Obviously the petitioner did not acquire the cylinders with the expectation of collecting these unusual charges which are purely incidental to its primary business of selling gas to its customers.

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

Order reversed, with costs, and the determination of the State Tax Commission that petitioner’s original acquisition of metallic cylinders was not tax exempt reinstated in a memorandum.


text:
    In the Matter of Albany-Edison Oxygen Co., Inc., Respondent, v James H. Tully, Jr., et al., Constituting the State Tax Commission, Appellant.
    Argued June 1, 1978;
    decided July 6, 1978

      APPEARANCES OF COUNSEL

      Louis J. Lefkowitz, Attorney-General (Nigel G. Wright and Ruth Kessler Toch of counsel), for appellant.

      James F. Seely for respondent.
   OPINION OF THE COURT

Judgment reversed, with costs, and the determination of the State Tax Commission that petitioner’s original acquisition of metallic cylinders was not tax exempt reinstated (see Matter of Albany Calcium Light Co. v State Tax Comm., 44 NY2d 987, decided herewith).

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


text:
    State of New York et al., Appellants, v Alexander Rutkowski et al., Respondents.
    Argued June 6, 1978;
    decided July 6, 1978

      APPEARANCES OF COUNSEL

      Louis J. Lefkowitz, Attorney-General (Francis J. Keehan,

      Ruth Kessler Toch and Stanley Fishman of counsel), for appellants.

      Robert Krutman for Alexander Rutkowski and another, respondents.

      Richard A. Stoloff for Gloria Stevens, respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified.

In answer to the complaint the defendants stated as affirmative defenses, without elaboration, that the statutes (Public Health Law, § 1116; ECL 17-1505) "are so vague, uncertain and ambiguous as to be unconstitutional. ” The burden of course was on the defendants to demonstrate the unconstitutionality of the laws (People v Byron, 17 NY2d 64; Fenster v Leary, 20 NY2d 309). Here both Special Term and the Appellate Division determined that the statutes were unconstitutionally vague by posing certain hypothetical situations in which they believed that there might be some doubt as to whether the laws applied. However neither court found that the application of the statutes to this case was doubtful or that the statutes did not give these defendants adequate notice that their particular conduct was subject to the statutory requirements. Indeed the defendants themselves made no such contention in their answer or in the papers submitted on the motion for summary judgment.

"It is well established that vagueness challenges to statutes which do not involve First Amendment freedoms must be examined in light of the facts of the case at hand” (United States v Mazurie, 419 US 544, 550; see, also, People v Rice, 41 NY2d 1018) and not by referring to hypothetical cases (United States v National Dairy Corp., 372 US 29, 31-33). In this case then the courts should not have relied on hypotheses in determining whether the statutes were unconstitutionally vague. And in view of the fact that the defendants have not claimed or shown that the statutory language is so indefinite that they could not have reasonably understood that their conduct in this case was proscribed, there was no basis for holding that the statutes were unconstitutional. In sum, on this record the defendants have not met their burden of demonstrating that the statutes are unconstitutionally vague as applied to them.

The State, however, was not entitled to summary judgment on the complaint since the defendants deny that the lots were sold for residential purposes. The deeds produced in the record do not contain covenants restricting the use of the lots to residences and the State does not claim that the lots were zoned for residential use alone (Matter of Slavin v Ingraham, 37 NY2d 653, 658). The circumstances surrounding the sales may be sufficient to establish that the defendants sold the lots for residential purposes, but that cannot be decided as a matter of law on these motion papers (cf. Matter of Slavin v Ingraham, supra, p 658).

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

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

       We note that the rule may be different under subsequent amendments to Public Health Law (§ 1115) (L 1977, ch 638, § 2) and Environmental Conservation Law (§ 17-1501) (L 1977, ch 638, § 1).


author: Per Curiam.

text:
    In the Matter of Ethel R. Pomeroy, Respondent, v Robert P. Whalen, as Commissioner of Health, et al., Appellants.
    Argued June 6, 1978;
    decided July 6, 1978

      APPEARANCES OF COUNSEL

      Louis J. Lefkowitz, Attorney-General (Francis J. Keehan, Ruth Kessler Toch, Stanley Fishman and Peter G. Crary of counsel), for appellants.
    No appearance for respondent.
   OPINION OF THE COURT

Per Curiam.

The petitioner purchased a 250-acre tract of contiguous lands in 1956 under a single deed. Two years later, having decided to develop a portion of this tract, the landowner followed the requirements set forth in section 1116 of the Public Health Law by applying to the Department of Health for approval of sanitary facilities and water systems contemplated for the first 16-lot section of a residential subdivision to be known as "Highland Acres”. A certificate of approval for the realty subdivision plans submitted by the petitioner was issued in July, 1968.

In 1972 the department discovered that the petitioner had sold additional residential lots from the same tract, outside the boundaries of the approved 16-acre subdivision. Although no new application had been submitted and no approval granted for the additional six lots in the Highland Acres subdivision, the petitioner extended the original subdivision’s water supply to service the unapproved lots.

According to testimony adduced during proceedings commenced by the commissioner to determine whether the unapproved sales violated section 1116 of the Public Health Law, the department had repeatedly notified the petitioner that she would be required to secure separate approval for any new portion of her realty subdivision and its water supply system. There was also undisputed evidence of severe water shortages and sanitary problems at Highland Acres.

The petitioner did testify, however, that she had secured verbal approval for the extension from a Department of Health official. This was categorically denied by department personnel. The issue was resolved against the landowner by the hearing officer, whose findings of six Public Health Law violations for the unapproved sales with recommended penalties for each violation were subsequently adopted by the commissioner.

In contesting that determination the petitioner has sought insulation from the approval requirements of the Public Health Law on the ground that the statute at the time of its application by the commissioner was unconstitutionally vague in defining a subdivision (see L 1977, ch 638, amdg Public Health Law, § 1115). A majority at the Appellate Division agreed based on that court’s holding in State of New York v Rutkowski (58 AD2d 14, revd 44 NY2d 989, decided herewith).

To be sure no individual should be held responsible for conduct which could not reasonably be understood in advance to be proscribed (e.g., People v Bergerson, 17 NY2d 398, 403). However this principle should neither be applied in the abstract nor in a vacuum. Instead "[t]he test is whether a reasonable man subject to the statute would be informed of the nature of the offense prohibited and what is required of him” (People v Byron, 17 NY2d 64, 67; see Rose v Locke, 423 US 48, 49; United States v National Dairy Corp., 372 US 29, 32).

The provisions challenged for vagueness by the petitioner in this case required approval of water system plans only for "residential subdivisions”, defined in terms of contemplated sales of five or more residential lots within a contiguous tract (Public Health Law, § 1115). Despite the statute’s clear mandate that "[n]o subdivision or portion thereof shall be sold” without Department of Health approval (Public Health Law, § 1116) and despite the petitioner’s initial compliance with this directive by securing approval for a 16-lot subdivision in 1968, the record establishes the petitioner’s subsequent unapproved sales of six additional parcels for residential purposes from an adjoining portion of the same tract. Knowing that she was subject to the statute (see Matter of Slavin v Ingraham, 37 NY2d 653, 658) and knowing that it required approval for further segmentation of the tract, the petitioner may not reasonably be heard to complain of sanctions imposed for conduct known to be proscribed (see State of New York v Rutkowski, 44 NY2d 989, supra, decided herewith).

Accordingly, the judgment of the Appellate Division should be reversed insofar as appealed from and the matter remitted to that court to determine whether there is substantial evidence to sustain the commissioner’s determination that the petitioner violated sections 1115 and 1116 of the Public Health Law by the sale of six residential lots from an unapproved portion of her realty subdivision.

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

Judgment reversed, with costs, and the matter remitted to the Appellate Division, Third Department, for further proceedings in accordance with the opinion herein.


text:
    In the Matter of Sun Oil Company of Pennsylvania, Appellant, v Board of Zoning Appeals of the Town of Harrison et al., Respondents.
    Argued June 8, 1978;
    decided July 6, 1978

      APPEARANCES OF COUNSEL

      George P. Forbes, Jr., for appellant.

      Ronald B. Bianchi for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, on the memorandum at the Appellate Division (57 AD2d 627).

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


text:
    Walter K. Neubauer, Appellant, v Audrey H. Neubauer, Respondent.
    Argued May 31, 1978;
    decided July 6, 1978

      APPEARANCES OF COUNSEL

      John F. Lawton for appellant.

      Harrison V. Williams, Jr., for respondent.
   OPINION OF THE COURT

Memorandum.

The order should be affirmed.

Balancing the financial circumstances of the parties, their age, health, station in life and preseparation standard of living, it is evident that the upward modification of the award of permanent alimony by the Appellate Division was justified (see Hickland v Hickland, 39 NY2d 1; Kay v Kay, 37 NY2d 632; Kover v Kover, 29 NY2d 408). It is not disputed that, among other considerations, the wife has neither capital assets, income, nor any employable skills. She also suffers from a long-standing emotional problem requiring constant medical attention. On the other hand, the husband’s net worth is substantial and his annual income in the years immediately preceding the trial ranged from $187,000 to $90,817. The parties had been married for 26 years and enjoyed an affluent life style.

Due to the impossibility of making a permanent alimony award because the wife was then about to undergo hospitalization, the original judgment provided that either party could move to amend the support provisions subsequent to the completion of her convalescence. As stated by the Trial Judge, “It was understood that the anticipated motion for amendment would be determined upon the financial evidence as adduced at the trial and as it might be updated.” That procedural path was in fact followed without objection and was characterized by the husband as having afforded him an opportunity to present “voluminous and detailed financial data * * * prior to the decision [on the motion to amend] being rendered”. Certainly, under these circumstances, a second oral hearing was not required.

Finally, in light of the subsequent appellate litigation, the increase in counsel fees awarded was not an abuse of discretion (Mittman v Mittman, 30 AD2d 867, 868, affd 24 NY2d 826; Match v Match, 242 App Div 782; Foster & Fried, Law and the Family, § 24:9, p 160).

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

Order affirmed, with costs, in a memorandum.


text:
    The People of the State of New York, Respondent, v Thomas M. Dowling, Appellant.
    Argued June 1, 1978;
    decided July 6, 1978

      APPEARANCES OF COUNSEL

      Aaron Nussbaum and Edward H. Frieberger for appellant.

      Eugene Gold, District Attorney (Michael R. Gore of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

On the undisputed facts, the police officers had probable cause to arrest the defendant. Also, since we have held subdivision 3 of section 265.15 of the Penal Law constitutional (People v Lemmons, 40 NY2d 505), it was not error for the court to instruct the jury on the presumption which it articulates. As to the asserted departure from the stipulation that the District Attorney would present no evidence that the defendant "menaced” the witness Diaz, even if it could be said to have been contravened by the People’s putting before the jury information that the defendant had pointed the gun at her, under the circumstances in which it came to be introduced, and on the entire record, it must be regarded as harmless. Finally, we note that, having considered defendant’s remaining contentions, we find them without merit.

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

Order affirmed.


text:
    The People of the State of New York, Respondent, v Carl McBride, Appellant.
    Argued June 2, 1978;
    decided July 6, 1978
    APPEARANCES OF COUNSEL

      Donald S. Hillman and William E. Hellerstein for appellant.

      John J. Santucci, District Attorney (William Schrager of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

Defendant was indicted for forgery and related offenses. Because he was in Federal custody on an unrelated conviction at the time, a detainer was lodged against him by New York authorities. In an effort to obtain an immediate trial, defendant claims that, pursuant to CPL 580.20 ("Interstate Agreement on Detainers”), he delivered a demand for a speedy trial to his Federal institutional caseworker on February 7, 1972. It was not until October 17, 1972, however, that proceedings were initiated to bring him to trial.

CPL 580.20 (art 3, subd [a]), mandates that a defendant who is in custody in another jurisdiction must be brought to trial within 180 days of his written demand under pain of dismissal of the charges (see CPL 580.20, art 5, subd [c]). Since the People have failed to tender any justification for the delay in excess of the statutory period, the motion to dismiss should have been granted (cf. People v Miller, 34 NY2d 336).

The statute contemplates that the demand "shall be given or sent by the prisoner to the warden, commissioner of correction or other official having custody of him, who shall promptly forward it * * * to the appropriate prosecuting official and court” (CPL 580.20, art 3, subd [b]). Failure on the part of the Federal authorities to forward a defendant’s demand does not vitiate his right to a speedy trial (cf. People v Masselli, 13 NY2d 1, 4, 6; People v Esposito, 37 Misc 2d 386, 394). We decline the People’s invitation, extended on appeal for the first time, that decision be reserved pending a hearing on their assertion that in this instance the defendant had not given or sent the demand to one of the designated Federal officials and that the latter had therefore never had the opportunity to forward it to the prosecuting official and court. The People have also failed to avail themselves of several opportunities to raise this issue; in fact, on this appeal, they disclosed that they had no evidence that defendant failed to make the delivery he described.

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

Order reversed, etc.


text:
    Dur-Bar Realty Company, Appellant, v City of Utica, Respondent.
    Argued June 6, 1978;
    decided July 6, 1978

      APPEARANCES OF COUNSEL

      Daniel S. Cohen for appellant.

      Lawrence P. George, Corporation Counsel (Charles N. Brown of counsel), for respondent.

      Louis J. Lefkowitz, Attorney-General (Julius Feinstein, Ruth Kessler Toch, Stanley Fishman and Peter G. Crary of counsel), in his statutory capacity pursuant to section 71 of the Executive Law.
   OPINION OF THE COURT

Order affirmed, with costs, on the opinion by Mr. Justice Harry D. Goldman at the Appellate Division (57 AD2d 51).

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


text:
    Edna Mandel, Appellant, v City of New York et al., Respondents.
    Argued May 31, 1978;
    decided July 6, 1978

      APPEARANCES OF COUNSEL

      Arthur N. Seiff for appellant.

      Allen G. Schwartz, Corporation Counsel (Paul T. Rephen and Bernard Burstein of counsel), for City of New York, respondent.

      Sidney A. Schwartz and John T. McDonald for Paul Wiener, respondent.
   OPINION OF THE COURT

Memorandum.

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

Plaintiff’s proof, viewed in its most favorable light, fails to disclose that under the circumstances present here, the City of New York was negligent in permitting the extraordinary snowfall to exist for an unreasonable period of time or that it had a reasonable opportunity to remedy the condition (Reutlinger v City of New York, 281 NY 592; Schlausky v City of New York, 41 AD2d 156, 158). Nor was there adequate proof adduced at trial from which a jury could impose liability on defendant landlord since there was no showing that he created a dangerous condition or that the shoveling actually made the existing mass of snow any more dangerous than it had been previously (Cardoza v Sheiner, 33 AD2d 663, affd 26 NY2d 897).

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

Order affirmed.


text:
    Haydee Brown, as Administratrix of the Estate of George Brown, Also Known as Jorge Brown, Deceased, Respondent, v State of New York, Appellant.
    (Claim No. 55142.)
    Argued June 1, 1978;
    decided July 6, 1978

      APPEARANCES OF COUNSEL

      Louis J. Lefkowitz, Attorney-General (Peter J. Dooley and Ruth Kessler Toch of counsel), for appellant.

      Martin S. Rothman, Melvin S. Barasch and Ronald Goldfarb for respondents.
   OPINION OF THE COURT

Order affirmed, without costs, on the memorandum at the Appellate Division (56 AD2d 672). No costs are allowed because of excessive length of respondent’s brief (see Matter of Bianca v Frank, 43 NY2d 168, 174).

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


author: Fuchsberg, J.

text:
    In the Matter of the Rochester Urban Renewal Agency, Appellant, Relative to Acquiring Title to Real Property for the Southeast Loop Urban Renewal Project in the City of Rochester. Patchen Post, Inc., Respondent. In the Matter of Village of Newark Urban Renewal Agency, Appellant, Relative to Acquiring Title to Real Property for an Urban Renewal Project Known as Newark Midtown Project in the Village of Newark. Newark Grange, No. 366 et al., Respondents.
    Argued April 26, 1978;
    decided June 13, 1978

      POINTS OF COUNSEL

      Donald J. Corbett, Louis N. Kash, Corporation Counsel, and Charles Capobianco for appellant in the first above-entitled proceeding.
    I. The court’s determination that the improvement qualified as a "specialty” and valuing it solely by this method was contrary to the evidence and to established principles of law. (Matter of County of Nassau [Colony Beach Club of Lido], 43 AD2d 45; City of Glen Cove v Switzer Contr. Co., 47 AD2d 917; City of Mechanicville v Fort, 43 AD2d 645; Amsterdam Urban Renewal Agency v Masonic Assn. of Amsterdam, 39 AD2d 617; Samuelson v Salamanca Urban Renewal Agency, 34 AD2d 369; City of Buffalo v Clement Co., 41 AD2d 41; Rochester Smelting & Refining Co. v State of New York, 38 AD2d 674; Evans v State of New York, 31 AD2d 565; Kingsbury v State of New York, 27 AD2d 893; Matter of City of New York [Lincoln Sq. Slum Clearance Project], 15 AD2d 153.) II. The court’s rejection of petitioner’s appraisal technique and acceptance of respondent’s cost approach was contrary to both law and facts. (Stiriz v State of New York, 26 AD2d 964; Matter of City of New York [A. & W. Realty Corp.], 1 NY2d 428; Evans v State of New York, 31 AD2d 565.) III. The land value arrived at by the trial court was excessive. IV. Were the courts below correct in their interpretation of the decision of the Court of Appeals in Keator v State of New York (23 NY2d 337)? V. There appears to be a conflict or at the least confusion between the decisions of the courts below in defining specialty properties. (Amsterdam Urban Renewal Agency v Masonic Assn. of Amsterdam, 39 AD2d 617; Matter of Rochester Urban Renewal Agency [Patchen Post], 55 AD2d 1029.)

      John F. Redmond for respondent in the first above-entitled proceeding.
    I. The courts below placed proper reliance on the Court of Appeals decision in Keator v State of New York (23 NY2d 337) among others and were correct in determining that the specially designed and constructed veteran’s clubhouse properly qualified for the "specialty” designation, thereby entitled to be valued according to the judicially approved method of "reproduction cost less depreciation.” (Matter of City of New York [Kramer Realty Corp.], 16 AD2d 148, 12 NY2d 1094; Matter of the City of Glen Cove [Cecil Ave. Renewal Project], 64 Misc 2d 712; Keator v State of New York, 23 NY2d 337; Albany Country Club v State of New York, 37 Misc 2d 134, 19 AD2d 199, 13 NY2d 1085; Matter of County of Suffolk, 70 Misc 2d 232; Matter of County of Nassau [Colony Beach Club of Lido], 43 AD2d 45; City of Glen Cove v Switzer Contr. Co., 47 AD2d 917.) II. Respondent’s comparables were properly found to be of greatest probative weight in determining a fair and reasonable land value of the subject property, thereby completely justifying the opinion as to land value arrived at by the courts below. (Geffen Motors v State of New York, 33 AD2d 980; New York State Elec. & Gas Corp. v Goff, 55 AD2d 733; Innamorato v State of New York, 65 Misc 2d 440; Azzolini v State of New York, 63 Misc 2d 631; Fredenburgh v State of New York, 26 AD2d 966; Spano v State of New York, 22 AD2d 757.) III. The "income” approach to value in part relied upon by appellant’s appraiser in valuing this non-income-producing, tax exempt clubhouse does not merit judicial consideration and should be stricken. (St. Agnes Cemetery v State of New York, 3 NY2d 37; Matter of City of New York [Shorefront High School — Rudnick], 25 NY2d 146, 26 NY2d 748; Matter of Daly v Smith, 18 App Div 194; City of Binghamton v Rosefsky, 29 AD2d 820; Matter of City of New York [Chestnut Props. Co.], 39 AD2d 573; Matter of Port of N. Y. Auth. [Lincoln Tunnel — 450 W. 34th St.

      Corp.], 2 NY2d 296; Mattydale Shopping Center v State of New York, 303 NY 974; Stiriz v State of New York, 26 AD2d 964.)

      Donald J. Corbett for appellant in the second above-entitled proceeding.
    I. The court’s determination that the improvement qualified as a "specialty” and valuing it solely by this method was contrary to the evidence and to established principles of law. (Matter of County of Nassau [Colony Beach Club of Lido], 43 AD2d 45; City of Glen Cove v Switzer Contr. Co., 47 AD2d 917; City of Mechanicville v Fort, 43 AD2d 645; Amsterdam Urban Renewal Agency v Masonic Assn. of Amsterdam, 39 AD2d 617; Samuelson v Salamanca Urban Renewal Agency, 34 AD2d 369; City of Buffalo v Clement Co., 41 AD2d 41; Rochester Smelting & Refining Co. v State of New York, 38 AD2d 674; Evans v State of New York, 31 AD2d 565; Kingsbury v State of New York, 27 AD2d 893; Matter of City of New York [Lincoln Sq. Slum Clearance Project], 15 AD2d 153.) II. Respondent failed to sustain its burden of proving that the building on the subject property was a specialty. (Matter of Village of Penn Yan Renewal Agency v Pen Yan Realty Corp., 57 Misc 2d 1033; McDonald v State of New York, 52 AD2d 721; Samuelson v Salamanca Urban Renewal Agency, 34 AD2d 369; City of Buffalo v Clement Co., 41 AD2d 41; Matter of City of New York [Lincoln Sq. Slum Clearance Project], 15 AD2d 153, 12 NY2d 1086; Matter of City of New York [First Elephant Estates — La Hermosa Church], 17 AD2d 317; Matter of City of New York [De Nigris Realty], 20 AD2d 42; Wackerman v Town of Penfield, 47 AD2d 988; Matter of Forrest v Evershed, 7 NY2d 256.) III. The commissioners were in error in completely ignoring the income approach to valuation used by plaintiif-appellant. (Great Atlantic & Pacific Tea Co. v Kiernan, 42 NY2d 236.) IV. The Commissioners of Appraisal and the courts below were in error in their determination of the land value of the subject premises. V. The commissioners and the courts below were in error in giving two highest and best uses for the building on the subject property. (Amsterdam Urban Renewal Agency v Masonic Assn. of Amsterdam, 39 AD2d 617.) VI. There appears to be conflicts between the decisions of the courts below defining specialty properties. (City of Binghamton v Rosefsky, 29 AD2d 820; Kingston Urban Renewal Agency v Strand Props., 33 AD2d 594; Amsterdam Urban Renewal Agency v Masonic Assn. of Amsterdam, 39 AD2d 617; Matter of Servstation Realty Co. v Board

      of Assessors of Nassau County, 56 AD2d 890; Matter of Rochester Urban Renewal Agency [Patchen Post], 55 AD2d 1029; Matter of Village of Newark Urban Renewal Agency v Newark Grange, No. 366, 57 AD2d 1065.)

      Samuel C. Shoolman for Newark Grange, No. 366, respondent in the second above-entitled proceeding.
    I. The record supports the finding of the appraisal commission and lower courts that the Newark Grange Hall was a specialty (and therefore required to be valued by the cost approach). (Keator v State of New York, 23 NY2d 337; Matter of Great Atlantic & Pacific Tea Co. v Kiernan, 42 NY2d 236; Matter of City of New York [Lincoln Sq. Slum Clearance Project], 15 AD2d 153, 12 NY2d 1086; Matter of County of Nassau [Colony Beach Club of Lido], 43 AD2d 45, 39 NY2d 958; Dormitory Auth. of State of N. Y. v 59th St. & 10th Ave. Realty Corp., 41 NY2d 1037; McDonald v State of New York, 42 NY2d 900; City of Binghamton v Rosefsky, 29 AB2d 820; Kingston Urban Renewal Agency v Strand Props., 33 AD2d 594; Amsterdam Urban Renewal Agency v Masonic Assn. of Amsterdam, 39 AD2d 617.) II. The commission’s assessment of land value is within the range of credible evidence and not grossly excessive. (Sparks v State of New York, 48 AD2d 236, 39 NY2d 884.) III. The power of the courts to review the commissioners’ award is strictly limited. (Matter of Prospect Park & Coney Is. R. R, 85 NY 489.)
   OPINION OF THE COURT

Fuchsberg, J.

The issue at the heart of both these condemnation proceedings is whether a building owned and operated by each of the respondent nonprofit organizations was properly classified as a specialty and was therefore correctly evaluated in accordance with the cost of reproduction less depreciation method. In each instance, the building in its present form had been specially constructed for the organization at its clubhouse and had been so used ever since.

In Matter of Rochester Urban Renewal Agency (Patchen Post) the structure was a fraternal meeting hall owned by a post of the Veterans of Foreign Wars. Though used primarily by and for its members, the facilities were made available without charge to other VFW posts, to their auxiliaries, and to other service groups. Respondent’s expert, on the assumption that the property was a specialty despite the described use by others, supported the employment of the reproduction cost less depreciation basis. Petitioner’s expert, proceeding on the expressed premise that there is a "market for every product”, arrived at the conclusion that the building could be sold for income-producing use and that its price should therefore be fixed at "market value”. Trial Term, adopting respondent’s approach, rendered a total award of $223,471.50 plus interest. The Appellate Division affirmed (55 AD2d 1029).

In Matter of Village of Newark Urban Renewal Agency (Newark Grange), the property consisted of a two-story plus basement brick structure used by respondent for its meetings and for public functions to which its primary facilities had been tailored at the time of construction. Additionally, however, these facilities were at times rented for temporary use by other civic organizations, while other portions of the building were leased to community-related tenants such as the local government and the area newspaper. Notwithstanding these collateral income-producing uses, Commissioners of Appraisal (see Condemnation Law, §§ 4, 13, repealed by L 1977, ch 839, § 2, eff July 1, 1978), after hearing the testimony adduced by each side, found that the property was a specialty and that the cost of reproduction less depreciation method was applicable. Measuring the value by that yardstick, their report, confirmed by the Wayne County Court, recommended an award of $160,627. The Appellate Division affirmed the judgment entered thereon (57 AD2d 1065).

At the threshold, we note that our scope of review is narrow. In the present procedural posture of these cases, coming to us as they do with affirmed findings, we have no power to weigh the evidence or review the findings of fact (St. Agnes Cemetery v State of New York, 3 NY2d 37, 40; Matter of City of New York [Sound View Houses], 307 NY 687; Cohen and Karger, Powers of the New York Court of Appeals, § 119). Essentially, we must confine ourselves to the question of whether a proper evaluation technique was utilized (Acme Theatres v State of New York, 26 NY2d 385, 388; Matter of City of New York [Exterior St.], 285 NY 455, 458). Though the award in the Newark case, based as it is upon a report of the commissioners, whose findings are deemed entitled to the benefit of "every favorable intendment” ab initio (Auburn Renewal Agency v Schwartz Sons, 41 NY2d 1026, affg 53 AD2d 1051; Matter of Huie [Fletcher — City of New York], 2 NY2d 168), may, if anything, reinforce the limitation on our review of factual matters, our power to set aside an award that rests upon erroneous appraisal principles nevertheless applies (Matter of City of New York [Atlantic Improvement Corp.], 28 NY2d 465, 472; Latham Holding Co. v State of New York, 16 NY2d 41, 44-45; Kingston Urban Renewal Agency v Strand Props., 33 AD2d 594 [Cooke, J.]).

Turning at once to those principles, we note that, though an owner is guaranteed "just compensation” when private property is taken for public use under the power of eminent domain (US Const, 5th Arndt; NY Const, art I, § 7, subd [a]), there is no inflexible formula or set of inexorable rules by which that term is to be realized in dollars and cents (see United States v Fuller, 409 US 488, 490; Matter of City of New York [School of Ind. Arts], 2 Misc 2d 403). It is only the goal which is fixed, i.e., a reasonable and adequate award — the fair equivalent of the actual loss sustained (County of Erie v Fridenberg, 221 NY 389, 393; cf. Matter of Board of Water Supply, 189 App Div 20).

That loss ordinarily is represented by what it can reasonably be anticipated a prudent buyer would be willing to pay in an open market. Generally, this is based on the highest and best use to which the property may be put rather than the more limited use to which a particular owner may happen to be putting it at the time of its appropriation (Matter of County of Suffolk [Firester], 37 NY2d 649, 652; St. Agnes Cemetery v State of New York, 3 NY2d 37, 41 supra).

In ascertaining the highest and best use, courts give recognition to the fact that, in most cases, the "market value”, as that term itself implies, is not only capable of determination, but represents "just compensation” since it corresponds, though perhaps roughly, to the value of the property to the owner (1 Orgel, Valuation under Eminent Domain [2d ed], § 15). There is, moreover, another sense in which it may serve as a complete indemnity. Since this method of valuation is premised on the existence of a viable market for the property, the presence of that market and the obtaining of such an award presumably puts it within the owner’s power, to the extent that it is possible to do so with a commodity as idiosyncratic as real estate, actually to replace it, if he so desires.

But when the property is of a kind seldom traded, it lacks a "market price” and there must accordingly be recourse to some other method of evaluation (see, e.g., Kimball Laundry Co. v United States, 338 US 1, 6). Churches, hospitals, clubhouses and like structures held by nonprofit agencies as centers for community service commonly fall within this category (Keator v State of New York, 23 NY2d 337, 339; Matter of Simmons, 127 NYS 940; 1 Orgel, Valuation under Eminent Domain [2d ed], § 40). A particular building may be regarded by the organization that owns and utilizes it as worth everything it cost to construct and more, yet it may not be "marketable” because no similar group would have sufficient need for the property to be willing to purchase it even at its reproduction value (see Keator v State of New York, supra, pp 339-340; cf. Amsterdam Urban Renewal Agency v Masonic Assn. of Amsterdam, 39 AD2d 617).

Although such properties are sometimes sold, the purpose of the acquisition usually is conversion to another use; hence such sales offer little, if any, guidance to an appraiser (see 4 Nichols, Eminent Domain, § 12.32, subd [1]). Evaluation under such circumstances will, at best, tend to be impermissibly speculative. Therefore, the quest for an objective criterion must not be so relentless that the special value of the property to its owner is ignored in deciding whether another method of evaluation is appropriate. For an owner of property like that of each of the respondents here "is entitled to be made whole, and making it whole means more than forcing it to abandon its non-profit community use and accept what it could obtain in the marketplace from a profit motivated purchaser” (United States v 564.54 Acres of Land, 506 F2d 796, 800).

Thus, we have recognized that properties of this character can be unique and have permitted them, once it has been established that market value is an unworkable tool, to be valued as specialties on the basis of reproduction cost less depreciation (see Keator v State of New York supra; cf. Matter of City of New York [Salvation Army], 43 NY2d 512, 517, where we approved this approach voluntarily followed). When this method is employed, it has no relationship to market value as such; indeed, it reflects the need, under the prevailing circumstances, to resort to an entirely different technique for determining what is "just compensation” (see United States v 564.54 Acres of Land, supra).

Applying these principles to each of the two cases now before us, the records contain sufficient proof to support the determinations that the uses to which their owners were devoting the properties at the time when each was taken were in accord with their highest and best use and that "just compensation” could only be achieved through a specialty approach. In neither can we say that that evaluation technique was erroneously applied as a matter of law.

Both buildings were found to have been specially designed with unique structural features for which there was no recognizable market value. Neither the fact that the VFW extended its hospitality by making its clubhouse’s facilities available to other service organizations, nor that the Newark Grange property produced some rental income used to offset its operating expenses, required the Supreme Court in the one case, or the commissioners in the other, to find that either was not a specialty. These were no more than factual considerations to be taken into account in arriving at a determination of the use and character of each building and the availability, if any, of a market. Over all, there was evidence from which it could be found that at no time was each designed for, nor readily adaptable to, nor directed in its use towards, ends which were primarily commercial (cf. Amsterdam Urban Renewal Agency v Masonic Assn. of Amsterdam, 39 AD2d 617, supra).

Accordingly, the orders appealed from should be affirmed.

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

In each case: Order affirmed, with costs.


author:
      Per Curiam.
     Fuchsberg, J. Cooke, J.

text:
    In the Matter of the Claim of George Robinson, Appellant. Philip Ross, as Industrial Commissioner, Respondent.
    Argued May 3, 1978;
    decided June 15, 1978

      POINTS OF COUNSEL

      David Raff, Joel Giller, Susan Shapiro and Scott Singer for appellant.
    I. The denial of unemployment benefits to appellant is violative of the due process clauses of both the State and Federal Constitutions. (Graves v Meystrik, 425 F Supp 40; Java v California Dept. of Human Resources Dev., 317 F Supp 875, 402 US 121; Goldberg v Kelly, 397 US 254; Matter of Robinson [Ross], 55 AD2d 168; Connally v General Constr. Co., 269 US 385; Small Co. v American Sugar Refining Co., 267 US 233; Boutilier v Immigration Serv., 387 US 118; Baggett v Bullitt, 377 US 360; Cramp v Board of Public Instruction, 368 US 278; Standard C. & M. Corp. v Waugh Chem. Corp., 231 NY 51.) II. Appellant had no legal obligation to report for unemployment benefits between May 2, 1974 and September 29, 1974. III. To deny appellant benefits for failure to report would frustrate the legislative policy in permitting the reopening of finally determined matters. (Matter of Klabin [Catherwood], 30 AD2d 1005; Matter of Van Teslaar [Levine], 35 NY2d 311.)

      Louis J. Lefkowitz, Attorney-General (Irving Jorrisch, Samuel A. Hirshowitz and Murray Sylvester of counsel), for respondent.
    The statutes, regulation and instructions make it clear that regular reporting is a necessary prerequisite to obtain unemployment insurance benefits. There was no violation of claimant’s constitutional rights. (Matter of Horowitz [Corsi], 271 App Div 765; Matter of Stewart [Corsi], 279 App Div 500; Matter of Howard [Levine], 43 AD2d 52; Matter of Iacone [Catherwood], 34 AD2d 590; Matter of Alderman [Levine], 52 AD2d 655; Matter of Zeen [Levine], 50 AD2d 700; Matter of Zaimoff [Catherwood], 27 AD2d 782; Matter of Nixon [Catherwood], 29 AD2d 895; Matter of Tuminaro [Catherwood], 29 AD2d 711.)
   OPINION OF THE COURT

Per Curiam.

The claimant in this proceeding under section 624 of the Labor Law seeks unemployment benefits for a period during which he had failed to comply with the respondent’s reporting requirements. Although notice of that obligation is conceded, the claimant would base a constitutional right to benefits on the respondent’s failure to reiterate the continuing nature of its reporting rule at every stage of the administrative appeals process.

In September, 1973 the claimant was disqualified from receiving benefits when his local unemployment insurance office accepted his former employer’s statement that the employee had provoked his own discharge by deserting his post at the employer’s cash register without warning or good cause. The original notice of ineligibility mailed to the claimant stated on its face: "If you ask for a hearing, continue to report to your insurance and employment offices on your assigned days as long as you remain unemployed. This will protect your rights to any benefits you claim.”

The claimant requested a hearing on the initial ruling of ineligibility and also contested his discharge through a proceeding before the New York City Commission on Human Rights. He argued before the Human Rights Commission that his discharge had in fact resulted solely from the former employer’s racial prejudice. Although a complete remedy of back pay and reinstatement was sought in the separate proceeding before the commission, for five months the claimant nevertheless opted to preserve any alternative right to unemployment benefits by complying with the respondent’s reporting requirements. However after February 8, 1974 he stopped reporting at his local office despite the pendency of his appeal to the Unemployment Insurance Appeal Board and despite the fact that he was at no time advised to discontinue reporting.

Two weeks later on February 22 the board handed down its decision affirming the referee’s determination of ineligibility and rejecting the claim for benefits. But in September, 1974 the Commission on Human Rights ruled that the claimant had been wrongfully discharged in violation of the New York City Human Rights Law. The requested back pay was awarded from the time of the employee’s discharge until the date of the commission’s hearing on May 1, 1974. Although the commission also directed reinstatement by the former employer, due to an apparent oversight the claimant was not directed to be compensated between May 1 and the date of his actual reinstatement on October 28, 1974.

After being informed by the commission that it lacked the authority to correct that deficiency and that resort to the courts would be the only appropriate remedy, the claimant instead applied to the Unemployment Insurance Appeal Board requesting that it reopen its prior decision based on the commission’s new findings. The board subsequently reversed its original determination of misconduct and rescinded its prior decision. Upon remand, however, the claimant’s local unemployment office found him ineligible for benefits during the uncompensated period between May 1 and September 29 since he had failed to report during that time.

Having failed to overturn this ruling by resort to the appeal board or by further appeal to the Appellate Division, the claimant now contends that benefits during the contested period could not be denied consistent with the requirements of due process. The failure to report was excusable in his view because he was never told to continue reporting after the appeal board had rejected his claim on February 22, 1974 and because the reporting rules and regulations are too vague to provide actual notice that the obligation would continue even though the claim for benefits had been rejected on appeal.

This case presents no question of constitutional violation. Unless mandatory due process is to be equated with abstract notions of "ideal” fairness, the claimant’s arguments must be rejected. The Labor Law in three separate places mandates that all claimants report for accepting work assignments and for keeping local offices abreast of changes in unemployment status (Labor Law, § 590, subds 1, 8; § 596, subd 2). In addition the commissioner’s regulations unambiguously provide that a claimant may not receive credit from the day he fails to report until he next complies, unless of course the failure is excused for "good cause”, meaning circumstances beyond a claimant’s control (12 NYCRR 473.2; see, e.g., Matter of Horowitz [Corsi], 271 App Div 765).

In this case the claimant was well aware of the continuing nature and the importance of the reporting obligation. Having received a number of notices that he would have to continue reporting "as long as [he] remained] unemployed” and as long as he wished "to protect [his] rights to any benefits”, the claimant in fact complied until a few weeks prior to the board’s initial rejection of his claim. Although that decision gave no further reporting instructions one way or other, the fact remains that the claimant himself had exclusive knowledge that the charge of misconduct underlying the determination of ineligibility was not only pending before the board but was also still being contested in a different forum. Thus even during the months following the rejection of his claim, he must have known that his rights to any benefits could be revived despite the apparent finality of the board’s adverse decision. Any doubts whether or not to continue reporting could easily have been resolved by a simple inquiry.

In the absence of any inquiry or other credible excuse for failing to report during the period in question, the board determined the factual issue of "good cause” against the claimant. That determination is well supported by the record and should not be disturbed either by direct review (see, e.g., Matter of Sperling [Catherwood], 20 AD2d 584, mot for lv to app den 14 NY2d 481) or by crediting the claimant’s substitute due process challenge to the clarity of the respondent’s reporting rules and regulations.

Not only are the reporting regulations clear, workable and reasonable, but their importance is illustrated by the very facts of this case. The claimant’s testimony and his attorney’s concessions indicate that he was actually employed at various times and tasks during the ostensibly uncompensated period. Because he kept no records of the days worked or the amounts earned, it would have been impossible to compute the benefits due, even if the claimant had been able to establish good cause for his failure to report.

Despite the asserted hardship involved in this particular case, the procedure which the claimant now contests was on balance fair as well as workable. The fact that an "ideal” if less pragmatic procedure might be possible hardly alters this conclusion. Unless he has been denied the opportunity to preserve possible rights to unemployment benefits, the claimant should not be heard to complain when his own failure to meet a known obligation cuts off the expectancy. Here the opportunities as well as their conditions were clearly presented to the claimant. Were due process to require more, the concept might well encompass all common disappointments and routine inequities inherent in all institutional procedures.

The order of the Appellate Division should be affirmed.

Fuchsberg, J.

(dissenting). I would dismiss the appeal taken as of right, grant leave to appeal and reverse on the sole ground, sufficiently discussed in Judge Cooke’s opinion to need no amplification here, that the denial of claimant’s application is not in accord with the fair intendment of the relevant provisions of the Labor Law.

Cooke, J.

(dissenting). I dissent, respectfully, and vote to reverse.

This claimant was denied benefits solely because he did not continue to report to his local unemployment office after he had been repeatedly advised that he was ineligible and had exhausted his administrative appeal rights. Admitting that the copy of the appeal board decision furnished to the claimant did not give any instructions about continued reporting, the board stated that claimant "reasonably should have followed” prior instructions given on the copy of the referee’s decision and in the agency’s handbook. At best these instructions advised that the claimant should continue to report during his administrative appeal, but by no stretch of the imagination could the claimant determine from these that he was to continue reporting indefinitely, even after the agency had finally determined that he was not entitled to benefits. Despite the absence of an express instruction, the Appellate Division stamped its approval on the board’s logic by similarly reasoning as to claimant that "the board could properly conclude that he was never told not to continue reporting” (55 AD2d 168, 170).

There should be a reversal because a careful and meaningful review of the record reveals that due process has not been afforded in this case. Moreover, even were the court to conclude that, because of circumstances which will be discussed later, the appeal as of right should be dismissed for a purported lack of direct involvement of a substantial constitutional question, leave to appeal should be granted and the order appealed from reversed on the ground that denial of claimant’s application contravenes the letter and spirit of New York’s Labor Law.

After approximately three years with the Grand Central Station branch store of Liggett Drug, claimant George Robinson was wrongfully discharged from his position as a cashier on September 23, 1973. He promptly sought benefits but his claim was denied by his local unemployment insurance office, effective on September 27, 1973, based on his employer’s allegation of his misconduct or that he provoked his discharge.

After a hearing, the referee sustained the local office determination disqualifying claimant because he voluntarily left his employment without good cause by provoking his discharge. Claimant appealed and, in a decision mailed February 22, 1974, the Unemployment Insurance Appeal Board affirmed the referee’s decision, thereby marking the last step in claimant’s unsuccessful initial efforts to obtain redress from that administrative agency. After having received the board’s February, 1974 determination, claimant did not report to the local office again until September 30, 1974. Significantly, however, when the case was later reopened, both the appeal board and the referee found that he had reported, whenever required, from the time he filed his claim on September 26, 1973 through February 8, 1974.

Meanwhile, although still seeking unemployment benefits, on October 4, 1973, claimant filed a complaint against his employer with the New York City Commission on Human Rights. On September 24, 1974, the commission upheld his position, finding that the employer had unlawfully and discriminatorily discharged the claimant, and ordered his reinstatement, with back pay ’for the period from the unlawful termination in September, 1973 to May 1, 1974, the date of the hearing before the commission. Since claimant remained unemployed beyond the latter date, he requested reconsideration of the amount of the award, but was advised by the commission that it had no statutory authority to reopen the hearing on his case.

Claimant then returned to the Unemployment Insurance Appeal Board, which, on April 2, 1975, reopened, reconsidered and rescinded its decision of February 22, 1974, denying him benefits. Completely accepting the finding of the Commission on Human Rights, the appeal board concluded claimant was not guilty of misconduct; it fully adopted the commissioner’s determination that in not immediately ringing up a sale on his register claimant had been complying with his employer’s instructions regarding apprehending shoplifters, and, accordingly, concluded that he was not subject to disqualification for his action. The board therefore referred the matter óf claimant’s eligibility benefits in light of the back pay award to the local office for determination.

By initial determination, with respect to May 1, 1974 to September 29, 1974, the local office ruled that claimant was ineligible for benefits because of his failure to comply with reporting requirements during that period. The referee, however, reversed this decision, concluding that claimant had good cause not to continue reporting to the local office during this period and hence that his failure to appear at the office should be excused.

The appeal board in turn reversed the decision of the referee on February 25, 1976. Despite the latter’s finding that the claimant’s testimony was credible with respect to his contention that he was told not to continue reporting, the board cast this testimony aside as incredible, choosing instead to rely on its understanding that it was the practice of the local officer and the examiner involved in this case never to advise a claimant to discontinue reporting because of an adverse ruling. As mentioned, the board, while admitting that the copy of its adverse decision furnished to claimant did not advise him to continue to report, explained that he "reasonably should have followed” prior instructions with respect to earlier steps in the administrative process. And, as also discussed, the Appellate Division reasoned: "the board could properly conclude that he was never told not to continue reporting” (55 AD2d, at p 170).

The only reporting requirements given to claimant appear in these instances. First, the New York State Unemployment Insurance Information Handbook for Claimants (1973 ed), under the section entitled "Reporting Requirements”, stated (p 10): "To keep your claim going when your are unemployed, you must report weekly on the day and time noted in your insurance book.” Next, the form on which appears the initial determination denying benefits provided: "If you ask for a hearing, continue to report to your insurance and unemployment offices on your assigned days as long as you remain unemployed. This will protect your rights to any benefits you claim.” Finally, on the back of the form setting forth the referee’s decision following a hearing, it was explained: "If you have any questions or doubts about the meaning of this decision take it to the local office within the 20-day period. Inquire there if you should continue to report and what else you must do.” These notices all relate to prior steps in the administrative process. After that, there is no instruction to continue to report. It bears emphasizing that when claimant challenged the referee’s decision and the latter was upheld, the copy of the appeal board decision gave absolutely no instruction to continue reporting.

A claimant’s property interest in unemployment benefits is protected by the procedural due process rights afforded by the Fourteenth Amendment (Graves v Meystrik, 425 F Supp 40, 47, affd 431 US 910). When a statute "either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application [that statute], violates the first essential of due process of law” (Connally v General Constr. Co., 269 US 385, 391). Phrased differently, the overriding principle is that the information should "be sufficiently precise to afford adequate notice of the standards by which the individuals affected are required to guide themselves” (Boutiller v Immigration Serv., 363 F2d 488, 495, affd 387 US 118). Plainly, the information furnished here failed completely at giving notice of the purported reporting requirement.

The board insists that the claimant should have known that he should continue reporting for as long as he was technically eligible, but the materials furnished to him do not state any such mandate. Logically, one might assume that, after the administrative appeal was lost, there was no further opportunity to obtain benefits from that agency. Indeed, one might reasonably conclude that there is no requirement to continue showing up at an office that had denied the claim at every level and had not furnished any other benefit, such as employment through its referral service. It is also asserted that claimant could have inquired at the local office if he had any doubts as to continuing reporting requirements, but this is no answer since it has been demonstrated by claimant, and not refuted by respondent, that the Unemployment Insurance Division Field Operations Manual does not advise employees of local offices to advise an inquiring claimant of any reporting obligation after he or she had received an adverse final determination from the appeal board.

Focusing on the issue, the constitutional question is quite simple and the proper resolution obvious. Due process requires notice which need not be perfect but which must be adequate as a guide to conduct. Based on the information furnished, an intelligent person would reasonably conclude that after the administrative appeal is lost, the agency has unequivocally demonstrated that even if the claimant continues to report he will not receive benefits. The board admits that its procedure does not advise of a continuing obligation, but instead relies on an expectation that claimants will blindly continue to show up at the local office indefinitely. This was not and never will be what due process requires.

With respect to the question of the direct involvement of the constitutional issue, it is asserted that the claimant has not squarely presented the issue because he could have obtained further relief from the Commission on Human Rights, which failed to grant recovery for the period from May 1 to September 29, 1974. This assertion is incorrect and manifests a total misunderstanding of how the constitutional issue arose. Indeed, that it was necessary to reach the constitutional issue is implicit in our denial of the motion to dismiss the appeal (42 NY2d 909).

As previously mentioned, the Commission on Human Rights stated that it lacked authority to reopen its proceeding in this case. To seek judicial relief would have required claimant, who was unemployed for this period, to challenge a favorable determination by the commission and face a cross appeal by his employer who would then resist payment of the award against it. Instead, claimant returned to the Unemployment Insurance Appeal Board, which, it must be stressed, completely and unequivocally accepted the findings of the Commission on Human Rights, and reopened the case. Notably, the board never even suggested any concern over whether redress for the period in question should have been secured from the commission and ultimately the board denied the claim solely on the basis of the failure to comply with the purported reporting requirements. Therefore, in this procedural stance, the constitutional issue was squarely presented, had to be reached, and is directly involved.

Even if the constitutional question was not, as has been demonstrated, directly involved, the appeal should simply be dismissed on the ground that an appeal as of right does not lie, and then leave to appeal should be granted to claimant in order to consider this issue (see, e.g., Matter of Board of Coop. Educational Servs. of Rockland County v New York State Public Employment Relations Bd., 41 NY2d 753, 756-757). The court should then reverse the order appealed from on State law grounds.

With respect to reporting requirements, subdivision 2 of section 596 of the Labor Law provides: "2. Registration and reporting for work. A claimant shall register as totally unemployed at a local state employment office serving the area in which he was last employed or in which he resides in accordance with such regulations as the commissioner shall prescribe. After so registering, such claimant shall report for work at the same local state employment office or otherwise give notice of the continuance of his unemployment as often and in such manner as the commissioner shall prescribe.” All that has been said about the adequacy of the notice for due process purposes is applicable to this statute. The Industrial Commissioner has simply not prescribed any reporting requirement for those whose noneligibility has been finally determined by the appeal board. To base an obligation to report on what was demanded at an earlier stage of the administrative process does not follow the statute’s specifications or its design.

In any event, it appears that a continuing reporting obligation is not contemplated under the law. As noted, a claimant must report as often and in such manner as the commissioner shall prescribe (Labor Law, § 596, subd 2). A "claimant”, however, is defined as "any person seeking benefits for unemployment” (Labor Law, § 515). After having been advised that his claim has been finally denied by the appeal board, such person is no longer a "claimant” still "seeking benefits” or at least one would logically so conclude. Therefore, under the statutory scheme there would be no requirement for such individual to continue to report to his local unemployment office.

In conclusion, the foregoing detail refutes the contention that claimant was ineligible because of his failure to follow established procedures. There was no notice or at best a grossly inadequate notice of any obligation to continue reporting indefinitely. The claimant was found by the board to have reported, whenever required, prior to its denial of his appeal. Moreover, lacking any logical basis is the suggestion that he should have continued to appear, absent an express requirement, for job referrals, since the local office failed to secure employment for him through the period when he was required to and did in fact report.

It is also not justifiable to disregard this case as arising under unusual circumstances. A denial of a claim for unemployment may be reopened for any number of reasons. For example, in a given case it may later be established that an employer misinformed the agency or that the board simply made a mistake. In such cases, if the claimant had not continued to report, the appeal board would deny the claim as it has done here. The fact is that cases of this sort are often lost in the shuffle. This claimant was fortunate enough to have legal counsel and the court should take the opportunity to consider the issue regardless of the context in which it arises. To reason that a person must indefinitely appear at an unemployment office because no one told him not to do so is illogical and cannot withstand due process analysis.

Accordingly, I vote to reverse the order appealed from and to remit the matter to the appeal board for a determination of the amount of benefits to which the claimant is entitled for the period involved.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones and Wachtler concur in Per Curiam opinion; Judge Fuchs-berg dissents and votes to dismiss the appeal taken as of right, grant leave to appeal and reverse in a memorandum; and Judge Cooke dissents and votes to reverse in a separate opinion.

Order affirmed, with costs.

      The brief of the respondent Industrial Commissioner concedes: "Whether [claimant] last reported on February 8, 1974 as the insurance office files indicate * * * or on February 22, as appellant contends, is not directly in point since claimant received full payment from the time of his discharge in September, 1973 until May 1, 1974 * * * and would not be entitled to benefits for that period (Matter of Stewart [Corsi], 279 App. Div. 500).”
      The fact that claimant may not have reported during the week of February 11, 1974 is not determinative or significant. Local offices frequently excuse a failure to report in a given week (see 12 NYCRR 473 [g]) and, in fact, the record reveals that this claimant was excused on at least one occasion. However, when he received the adverse board determination of February 22, 1974 (based on voluntarily leaving his employment without good cause by provoking his discharge, a basis not ultimately relied upon by the board in its decision filed September 25, 1976 and now under review), claimant, quite understandably, did not seek an excuse for the intervening period since the board had demonstrated that his claim would not be honored. Therefore, that he may have last reported on February 8, 1974, rather than on February 22, 1974, is of no importance in this case.


author: Chief Judge Breitel.

text:
    In the Matter of Dermot C. Reilly, Appellant, v Ogden R. Reid, as Commissioner of the New York State Department of Environmental Conservation, et al., Respondents.
    Argued May 4, 1978;
    decided June 13, 1978

      POINTS OF COUNSEL
    . John Cole Crary and Dermot C. Reilly, pro se, for appellant.
    I. Petitioner cannot be deprived of an adjudication on the merits because he brought a prior proceeding arising out of the same series of transactions for different relief on different grounds. (Polhemus v Fitchburg R. R. Co., 123 NY 502; Matter of Thomas, 216 NY 426; Cook v Conners, 215 NY 175; Perry v Dickerson, 85 NY 345.) II. The court below erred in finding the issues sought to be raised in this proceeding substantially the same as those previously before the court. III. Neither res judicata nor collateral estoppel has application in this proceeding. (Matter of Reilly v Reid, 55 AD2d 975, 41 NY2d 806; Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304; Smith v Kirkpatrick, 305 NY 66; Matter of Meenagh v Dewey, 286 NY 292; Steinbach v Relief Fire Ins. Co., 77 NY 498; Ward v Boyce, 152 NY 191; Rader v Manufacturers Cas. Ins. Co., 1 AD2d 799; Townsley v Niagara Life Ins. Co., 218 NY 228.) IV. Matter of Gowan v Tully (58 AD2d 936) is not authority applicable to this case.

      Louis J. Lefkowitz, Attorney-General (Michael F. Colligan and Ruth Kessler Toch of counsel), for respondent.
    Petitioner is barred by the judgment in a prior proceeding from relitigating what was already or could have been litigated in the prior proceeding. (Statter v Statter, 2 NY2d 668; Pray v Hegeman, 98 NY 351; Leonard Park Off. Plaza v P & P Sheet Metal Works, 51 AD2d 537; Eidelberg v Zellermayer, 5 AD2d 658; Williamson v Columbia Gas & Elec. Corp., 186 F2d 464; Hahl v Sugo, 169 NY 109.)
   OPINION OF THE COURT

Chief Judge Breitel.

Petitioner Reilly, a former associate attorney in the Office of the Counsel of the State Department of Environmental Conservation, seeks restoration to his abolished position and back pay. In this proceeding under CPLR article 78 he alleges that the abolition of his position by respondents, the department and its commissioner, was illegal. Special Term denied respondents’ motion to dismiss the petition on res judicata grounds, but the Appellate Division unanimously reversed and dismissed. Petitioner appeals.

In an earlier petition, Reilly unsuccessfully contended that upon abolition of his position he was entitled, under section 80 of the Civil Service Law, to be appointed to a similar position in the same office. The issue presented, therefore, is whether final adjudication of the earlier proceeding is a bar, under principles of res judicata, to the present proceeding.

There should be an affirmance. In the earlier proceeding, petitioner alleged the same foundation facts and pressed for relief nearly identical to that requested in this proceeding. The final adjudication reached in the earlier proceeding must, under principles of res judicata, or, more precisely, claim preclusion, bar the cause of action now asserted.

Petitioner’s position as associate attorney in the competitive class of the civil service was abolished, ostensibly for budgetary reasons, as of January 29, 1976. In accordance with the Civil Service Law, petitioner was offered a chance to displace an incumbent from the next lower competitive position in the office, the position of senior attorney (Civil Service Law, § 80, subd 6). He declined the offer, and instead, brought his first proceeding seeking appointment to a noncompetitive or exempt position claimed to be the same as or similar to the abolished competitive position (Civil Service Law, § 80, subd 1). That proceeding was eventually dismissed on the ground that his competitive position was not, as a matter of law, similar to the exempt or noncompetitive positions sought (Matter of Reilly v Reid, 55 AD2d 975, mot for lv to app den 41 NY2d 806). No issue was expressly tendered or resolved whether the abolition of petitioner’s position was valid. It was assumed.

While the first proceeding was pending, petitioner brought the instant proceeding, contending for the first time that abolition of his position was illegal and seeking restoration to the abolished position with back pay. The petition alleges that the "position has not been, abolished, but the duties have merely been reassigned” to the noncompetitive or exempt positions, and that the abolition was "arbitrary, capricious, an abuse of discretion and contrary to the law of the State of New York.”

Special Term denied respondents’ motion to dismiss, holding that the legality of the abolition of petitioner’s position was "not material” to determining his rights upon abolition. The Appellate Division reversed, finding identity of issues in the two proceedings, and holding the proceeding barred "by the principles of res judicata and collateral estoppel”.

The doctrine of res judicata embraces many concepts, and the differences among the concepts, it has been said, are often confused (see 5 Weinstein-Korn-Miller, NY Civ Prac, par 5011.08). This case involves, principally, questions of claim preclusion, that is, in more traditional terms, whether petitioner’s present claim, as distinguished from discrete issues previously litigated, is barred by final adjudication against him in the prior proceeding (see, generally, Matter of American Ins. Co. [Messinger], 43 NY2d 184, 189, n 2).

It is blackletter law that a valid final judgment bars future actions between the same parties on the "same cause of action” (see, e.g., 50 CJS, Judgments, § 598). The difficulty arises in determining when a second action involves the same cause of action as an earlier one (Perry v Dickerson, 85 NY 345, 348). Many definitional verbalizations have been attempted, none with complete success. For instance, in Secor v Sturgis (16 NY 548, 558) it was said that "[t]he true distinction between demands or rights of action which are single and entire, and those which are several and distinct is, that the former immediately arise out of one and the same act or contract, and the latter out of different acts or contracts.”

In Schuylkill Fuel Corp. v Nieberg Realty Corp. (250 NY 304, 306-307) Chief Judge Cardozo stated the formulation as: "A judgment in one action is conclusive in a later one * * * when the two causes of action have such a measure of identity that a different judgment in the second would destroy or impair rights or interests established by the first”. But even this formulation, now a classic, does not solve the more subtle situations which arise. For one thing, the formulation defines a consequential test, rather than the premise which leads to the consequence.

The nub of the problem is that the policy bases for res judicata, in the sense of claim preclusion, do not permit easy definition of the "same cause of action”, a term which, as will be seen, is not one of single meaning in the practice.

Res judicata is designed to provide finality in the resolution of disputes to assure that parties may not be vexed by further litigation (see Matter of New York State Labor Relations Bd. v Holland Laundry, 294 NY 480, 493-494; Weiner v Greyhound Bus Lines, 55 AD2d 189, 191). The policy against relitigation of adjudicated disputes is strong enough generally to bar a second action even where further investigation of the law or facts indicates that the controversy has been erroneously decided, whether due to oversight by the parties or error by the courts (see Deposit Bank v Frankfort, 191 US 499, 510-511; Kiker v Hefner, 409 F2d 1067, 1068-1069). Considerations of judicial economy as well as fairness to the parties mandate, at some point, an end to litigation. Afterthoughts or after discoveries however understandable and morally forgivable are generally not enough to create a right to litigate anew.

These strong policy bases, however, if applied too rigidly, could work considerable injustice. In properly seeking to deny a litigant two "days in court”, courts must be careful not to deprive him of one (cf. Commissioners of State Ins. Fund v Low, 3 NY2d 590, 595). Thus, claim preclusion is tempered by recognition that two or more different and distinct claims or causes of action may often arise out of a course of dealing between the same parties, even though it is not, except in refined legal analysis, easy to say that a different gravamen is factually involved (see, e.g., Smith v Kirkpatrick, 305 NY 66). A party’s choice to litigate two such claims or causes of action separately does not bar his assertion of the second claim or cause of action (see Secor v Sturgis, 16 NY 548, 554, supra).

A "cause of action” may denote one of several separately stated claims in a pleading based on the same congeries of facts but related to different legal theories of recovery. A "cause of action” may also denote a separately stated claim on the same congeries of facts, but for different legal relief. But even if there are variations in the facts alleged, or different relief is sought, the separately stated "causes of action” may nevertheless be grounded on the same gravamen of the wrong upon which the action is brought. In the sense of res judicata or claim preclusion, although there may be separately stated or statable causes of action, they are nevertheless based on the "same cause of action”, to which the consequential test defined in the Schuylkill case (supra) applies. Nor will differences in legal theory generally avail to permit relitigation of claims based on the same gravamen (see Matter of Gowan v Tully, 45 NY2d 32, 36, decided herewith).

Section 61 of Restatement of Judgments, Second (Tent Draft No. 1, 1973), exemplifies the trend away from rigid formulations. It provides:

"§ 61. Dimensions of 'Claim’ for Purposes of Merger or Bar —General Rule Concerning 'Splitting’
"(1) When a valid and final judgment rendered in an action extinguishes the plaintiff’s claim pursuant to the rules of merger or bar [citations omitted], the claim extinguished includes all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose.
"(2) What factual grouping constitutes a 'transaction’, and what groupings constitute a 'series’, are to be determined pragmatically, giving weight to such considerations as whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties’ expectations or business understanding or usage.”

Thus, no single definitional formulation is always determinative. This does not mean, however, that the principles are to be applied on a case-by-case basis. It does mean that there are varying categories of cases, categories which are recognized as in the rules used and suggested in the Restatement in determining "factuál groupings”.

The approach of the Second Restatement is in accord with New York law, and indicates affirmance in this case. Each proceeding brought by petitioner arose out of the same act of respondents alleged to be wrongful, namely, abolition of his position. Each petition sought the same basic relief: restoration to his original duties. True, in the first proceeding, petitioner sought a different position to which he claimed his duties had been transferred, while in the present proceeding he seeks restoration to his old position. True, in the first proceeding, petitioner relied on section 80 of the Civil Service Law, while in the present petition the allegations of illegality are more general and amorphous. But where the same foundation facts serve as a predicate for each proceeding, differences in legal theory and consequent remedy do not create a separate cause of action (see City of Rye v Metropolitan Transp. Auth., 24 NY2d 627, 637; Eidelberg v Zellermayer, 5 AD2d 658, 663, affd 6 NY2d 815). The principle is made explicit in section 61.1 of Restatement of Judgments, Second (Tent Draft No. 1, 1973):

"§ 61.1 Exemplifications of General Rule Concerning Splitting
"The rule of § 61 applies to extinguish a claim by the plaintiff against the defendant even though the plaintiff is prepared in the second action
"(a) To present evidence or grounds or theories of the case not presented in the first action, or
"(b) To seek remedies or forms of relief not demanded in the first action.”

It is true that even when two successive actions arise out of the identical course of dealing, the second may not be barred, it has been said, if "[t]he requisite elements of proof and hence the evidence necessary to sustain recovery vary materially” (Smith v Kirkpatrick, 305 NY 66, 72, supra). That is not, however, the present situation. In each petition it is alleged that petitioner was wrongfully deprived of his duties. Whether that alleged wrong is rectified by restoring the dutes to petitioner’s old position or by transferring petitioner to a new position is of insufficient legal consequence. In either event, petitioner must establish that abolition of his position without transferring him to an equivalent position was in violation of law. The precise theory on which illegality of the action is predicated may be different, but that does not entitle petitioner to separate his claims (Eidelberg v Zellermayer, 5 AD2d 658, 663, supra; Restatement, Judgments 2d [Tent Draft No. 1, 1973], § 61.1).

Petitioner’s situation is a far cry from that of plaintiff in the Smith case. Plaintiff in his first action sought an accounting for breach of a contract employing him, on a commission basis, to solicit business. In the alternative, he sought recovery as a joint venturer with defendant. Then, when his complaint was dismissed, largely on Statute of Frauds grounds, he sought recovery in quantum meruit only for the reasonable value of his services. Thus, in the Smith situation, the foundation facts or the "factual grouping” which constitutes a transaction, and the necessary evidence differed in the two actions (see Restatement, Judgments 2d [Tent Draft No. 1, 1973], § 61, subd [2]). In one, the proof would have centered on the "null” agreement itself; in the other, the null agreement would be ignored and the emphasis shifted to work actually performed. No comparable difference in proof would have appeared in petitioner Reilly’s two proceedings (see, also, Lipkind v Ward, 256 App Div 74, 78).

In sum, the essential identity of petitioner’s two causes of action requires invocation of the doctrine of claim preclusion. To conclude otherwise would be to afford petitioner a second opportunity to obtain substantially the same relief he was denied in the prior proceeding, based on the same actions of the respondents. This is precisely the type of repetitive litigation the doctrine of claim preclusion is designed to avoid.

Moreover, even if the petition were not barred by the doctrine of claim preclusion, further litigation between the parties regarding the legality of the abolition might arguably be foreclosed by the doctrine of collateral estoppel, or issue preclusion. One might reasonably conclude, even accepting petitioner’s verbalized distinctions between his two "causes of action”, that the first proceeding, seeking transfer to a new position, necessarily assumed the validity of the abolition of the old position (see Statter v Statter, 2 NY2d 668, 672). Of course, that issue need not be reached in this case, since, as discussed, the claim itself is precluded.

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

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

Order affirmed.


text:
    In the Matter of James A. Gowan et al., on Behalf of Themselves and All Others Similarly Situated, Appellants, v James H. Tully, Jr., as Commissioner of the Department of Taxation & Finance of the State of New York, Respondent.
    Argued May 4, 1978;
    decided June 13, 1978

      POINTS OF COUNSEL

      John T. DeGraff, Algird F. White, Jr., and Terence J. Devine for appellants.
    I. The opinion at Special Term is grounded upon a gross misconception of the issues before the court on the Nolan [52 AD2d 295] appeal. II. The Elrod decision [427 US 347] of the United States Supreme Court was not pleaded and could not have been pleaded in the Nolan proceeding. Consequently, the doctrine of res judicata is not applicable. (Israel v Wood Dolson Co., 1 NY2d 116; Smith v Kirkpatrick, 305 NY 66; Murphy v Erie County, 28 NY2d 80.) III. The doctrine of collateral estoppel is not a bar. (Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304; Karameros v Luther, 279 NY 87; Matter of Bass v Bragalini, 207 Misc 1055, 286 App Div 944.)

      Louis J. Lefkowtiz, Attorney-General (William J. Kogan and Ruth Kessler Toch of counsel), for respondent.
    I. Petitioners herein are bound both by those matters which were litigated in Nolan v Tully and those matters that might have been litigated therein. (Nolan v Tully 52 AD2d 295, 40 NY2d 803, 844; Friedman v State of New York, 24 NY2d 528; Schwartz v Public Administrator of County of Bronx, 24 NY2d 65; Israel v Wood Dolson Co., 1 NY2d 116; Dye v Lincoln First Bank of Rochester, 38 NY2d 769; Watts v Swiss Bank Corp., 27 NY2d 270; Schuylkill Fuel Corp. v Neiberg Realty Corp., 250 NY 304; Wilkins v American Export Isbrandtsen Lines, 46 AD2d 244, 38 NY2d 758; Brenner v Title Guar. & Trust Co., 276 NY 230.)
   OPINION OF THE COURT

Chief Judge Breitel.

Petitioners are former part-time estate tax attorneys in the noncompetitive class of the civil service in the State Department of Taxation and Finance. They brought this proceeding under CPLR article 78 for reinstatement to the positions from which they had been removed by respondent commissioner. They appeal from an order of the Appellate Division which affirmed, one Justice dissenting, the dismissal of their petition on grounds of res judicata. An earlier petition seeking the same relief had resulted in a final judgment for respondent.

At issue is whether petitioners may escape the doctrine of res judicata by tendering an additional basis for finding their dismissals illegal, namely, that the dismissals were patronage dismissals made in bad faith in contravention of the Supreme Court’s intervening decision in Elrod v Burns (427 US 347).

The order of the Appellate Division should be affirmed. Once a cause of action has been finally adjudicated, tender of an additional legal issue not raised in the original action does not avoid the bar of res judicata merely because the Supreme Court of the United States had not fully articulated the additional issue until after the cause of action had been adjudicated.

Petitioners were among 44 part-time estate tax attorneys, all of whom resigned or were removed during 1975 and were replaced by members of a different political party. In July, 1975, before the removals had been completed, several of the attorneys brought a proceeding seeking reinstatement (see Matter of Nolan v Tully, 52 AD2d 295, mot for lv to app den 40 NY2d 803, mot to dismiss app granted 40 NY2d 844). That proceeding, the Nolan proceeding, was determined to be a class action on behalf of all estate tax attorneys who had been or might be discharged before final determination of the proceeding (CPLR 902). Petitioners in the present case were, therefore, members of the class, although they were not actually discharged until after the Nolan proceeding was brought. Relief was sought primarily under section 75 of the Civil Service Law, but the petition, as amended, also alleged a violation of State and Federal constitutional rights.

The instant proceeding was brought while the Nolan matter was still pending. In addition to the allegations made in the Nolan proceeding, the petition alleged that the terminations were not in good faith and that "the incumbents were removed * * * for the sole purpose of appointing successors with different political affiliations”. By agreement of counsel, the instant proceeding was held in abeyance pending final adjudication of the Nolan proceeding.

At the Appellate Division in the Nolan proceeding, the Nolan petitioner argued that the dismissals were made in bad faith, and sought to have the court take judicial notice of allegations to that effect made in the petition in the instant proceeding. The Appellate Division, in affirming the dismissal of the Nolan petition, however, discussed only the issues arising under section 75 of the Civil Service Law. The court held that despite the fact that petitioners were in the noncompetitive class of the civil service, they were not entitled to tenure because they were independent officers under section 22 of the Civil Service Law. (Matter of Nolan v Tully, 52 AD2d 295, 296-299, supra.) Then, in Elrod v Burns (427 US 347, supra), decided shortly after the Appellate Division’s affirmance in Nolan, a three-Judge plurality of the Supreme Court concluded that patronage dismissals were unconstitutional under the First and Fourteenth Amendments of the United States Constitution (id., at p 373). Leave to appeal the Nolan case to this court was nevertheless denied, and an appeal as of right was dismissed for lack of a substantial constitutional question (see 40 NY2d 803, supra; 40 NY2d 844, supra). A motion by petitioners in this case to intervene in this court was dismissed as academic.

Following final adjudication of the Nolan proceeding, the instant proceeding was dismissed on res judicata grounds, and the dismissal- was affirmed at the Appellate Division, one Justice dissenting.

At the outset, it should be evident that the gravamen in this proceeding is the same as that in the Nolan proceeding. In each case, petitioners challenged the patronage dismissals, and seek reinstatement. The foundation facts are the same, and so is the relief sought. Mere differences in legal theory do not create separate causes of action (Matter of Reilly v Reid, 45 NY2d 24, 30, decided herewith; Restatement, Judgments 2d [Tent Draft No. 1, 1973], § 61.1). Applying the consequential test of Schuylkill Fuel Corp. v Nieberg Realty Corp. (250 NY 304, 306-307), there can be no question that a judgment for petitioners in this case would destroy a right adjudicated in the Nolan proceeding, namely, respondent’s power to dismiss petitioners.

The only question of even marginal substance involves the purported unavailability in the Nolan proceeding of a legal issue tendered in this proceeding. Petitioners contend that since the issue in Elrod v Burns (427 US 347, supra) was not resolved in time to raise the unconstitutionality of patronage dismissals in the Nolan proceeding, they should not be barred from raising that issue now.

It is settled law, however, that "[t]he conclusive effect of a final disposition is not to be disturbed by a subsequent change in decisional law” (Slater v American Min. Spirits Co., 33 NY2d 443, 447; see Sears, Roebuck & Co. v 9 Ave. — 31 St. Corp., 274 NY 388, 398-403). The principle applies even when the change heralds a new policy as important as the relative apportionment doctrine evolved in Dole v Dow Chem. Co. (30 NY2d 143; see Slater v American Min. Spirits Co., 33 NY2d 443, 447, supra). That the change in legal doctrine is constitutional in nature does not, automatically, dictate a different result. It may be that where a final adjudication affects "important ongoing social or political relationships”, a subsequent major change in constitutional doctrine should permit reconsideration of the original claim, at least as to its future effect (see Restatement, Judgments 2d [Tent Draft No. 1, 1973], § 61.2, Comment e). That possibility need not be addressed, for the situation posited is not presented in this case.

Moreover, it is not clear that the Elrod case represents a major change in the law. First, the scope of the decision remains uncertain, since a majority of the Supreme Court was unwilling to hold all patronage dismissals constitutionally impermissible (427 US, at pp 374-375 [Stewart, J., concurring]; at pp 375-376 [Burger, Ch. J., dissenting]; at pp 376-389 [Powell, J., dissenting], supra). Second, as petitioners acknowledge, civil service employees in this State have long been protected from certain kinds of dismissals made in bad faith upon change in the appointing power (cf., e.g., Matter of Wipfler v Klebes, 284 NY 248, 252-254). Although this protection originates in the merit selection provisions of the State Constitution rather than in the Federal Constitution, and the extent of the protection may not be completely defined, the issue was there for petitioners to raise. Not having done so in the Nolan proceeding, they may not now be heard to complain.

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

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

Order affirmed.

      Not questioned by petitioners is the res judicata effect, generally, of class action judgments against members of the class who do not actually participate in the litigation. The issue has been extensively treated elsewhere (see, e.g., Restatement, Judgments 2d [Tent Draft No. 2, 1975], § 85, subd [1], par [e], Comment e; 2 Weinstein-Korn-Miller, NY Civ Prac, par 905.02; Young v Shuart, 67 Misc 2d 689, 693 [Meyer, J.], mod on other grounds 39 AD2d 724). In any event, it is not reached since it was never raised.