author: Meyer, J.

text:
    Astor Cover et al., Respondents, v Helen Cohen, as Administratrix of the Estate of Irving Cohen, Deceased, et al., Respondents, and General Motors Corporation, Appellant.
    Argued January 3, 1984;
    decided February 28, 1984

      POINTS OF COUNSEL

      Roy L. Reardon, Kenneth R. Logan, Irene S. Alpert and Nicholas J. Wittner for appellant.
    I. The trial court erred in this design defect case by admitting, as proof of a defective condition, evidence of design changes made by General Motors Corporation subsequent to the date of manufacture. (Trimarco v Klein, 56 NY2d 98; Caprara v Chrysler Corp., 52 NY2d 114; Rainbow v Elia Bldg. Co., 79 AD2d 287, 56 NY2d 550; Opera v Hyva, Inc., 86 AD2d 373; Bartlett v General Elec. Co., 90 AD2d 183; Bolm v Triumph Corp., 71 AD2d 429.) II. The trial court erred in adopting as the controlling date for determining the admissibility of evidence of design changes in a design defect case the date of the accident rather than the date of manufacture. (Rainbow v Elia Bldg. Co., 79 AD2d 287, 56 NY2d 550; Robinson v Reed-Prentice Div., 49 NY2d 471; Voss v Black & Decker Mfg. Co., 59 NY2d 102.) III. The trial court erred in admitting for an irrelevant and severely prejudicial “limited” purpose an otherwise inadmissible distorted throttle return spring. (Graham v Board of Educ., 19 AD2d 635; Stracher v Corning Glass Works, 39 AD2d 560; Corti v A To Z Equip. Corp., 22 AD2d 694; O’Connell v Westinghouse X-Ray Co., 261 App Div 8; People v Acevedo, 40 NY2d 701.) IV. The trial court erred in permitting plaintiffs to switch at trial from the detailed manufacturing defect theory set forth in their bill of particulars to a totally different design defect theory. (Smiley Steel Co. v Schmoll, 200 App Div 655, 235 NY 520; Bergman v General Motors Corp., 74 AD2d 886; Paldino v E.J. Korvettes, Inc., 65 AD2d 617; Solomon v Travelers Fire Ins. Co., 5 AD2d 1017; Weisent v City of New York, 29 AD2d 776; Hlavati v City of Mount Vernon, 265 App Div 946.) V. The trial court erred in submitting this case to the jury on a manufacturing defect theory. (Caprara v Chrysler Corp., 52 NY2d 114; Robinson v Reed-Prentice Div., 49 NY2d 471; Rainbow v Elia Bldg. Co., 79 AD2d 287, 56 NY2d 550.) VI. Other errors also warrant reversal. (Johnson v Lutz, 253 NY 124; Murray v Donlan, 77 AD2d 337; Secor v Kohl, 67 AD2d 358; Rubin v O’Donnell, 37 AD2d 858; Guido v Kuster, 36 AD2d 727; Hayes v State of New York, 50 AD2d 693, 40 NY2d 1044; Mahon v Giordano, 30 AD2d 792; Yeargans v Yeargans, 24 AD2d 280; People v Richards, 78 AD2d 664; Marshall v Davies, 78 NY 414.)

      Marshall M. Kolba for Kinney Motors, Inc., respondent.
    The judgment and rulings below in favor of Kinney and against General Motors must be affirmed. (Matter of Winburn, 270 NY 196; United States Print. & Lithograph Co. v Powers, 233 NY 143.)

      Emilio Nunez, Harry H. Lipsig, Pamela Anagnos Liapakis, Jay W. Dankner and Cheryl R. Eisberg for Astor Cover and another, respondents.
    I. The exclusionary rule as enunciated by this court does not bar the admission of preaccident evidence in a design defect case which relates to the state of the art at the time of manufacture nor does it preclude the admission of such evidence in a negligence case. (Rainbow v Elia Bldg. Co., 79 AD2d 287, 56 NY2d 550; Bolm v Triumph Corp., 71 AD2d 429; Bartlett v General Elec. Co., 90 AD2d 183; Corcoran v Village of Peekskill, 108 NY 151; Priolo v Lefferts Gen. Hosp., 54 Misc 2d 654; Braniff Airways v Curtiss-Wright Corp., 411 F2d 451; Schumacher v Richards Shear Co., 59 NY2d 239.) II. In order to advance the goals and policies related particularly to cases founded in strict products liability, this court should adopt a single standard concerning admissibility of evidence in both manufacturing and design defect cases. (Codling v Paglia, 32 NY2d 330; Caprara v Chrysler Corp., 52 NY2d 114; Voss v Black & Decker Mfg. Co., 59 NY2d 102; Barry v Manglass, 55 AD2d 1; Unterberger v Snow Co., 630 F2d 599.) III. The trial court’s instructions to the jury were entirely proper and reflective of the evidence and theories presented at trial. (Caprara v Chrysler Corp., 52 NY2d 114.) IV. The trial court properly permitted plaintiffs to submit proof as to the defect claimed which is sufficiently described in the verified bill of particulars. (Somma v Sears, Roebuck & Co., 52 AD2d 784; Palazzo v Abbate, 45 AD2d 760; Hlavati v City of Mount Vernon, 265 App Div 946; Weisent v City of New York, 29 AD2d 776; Tetreault v State of New York, 50 Misc 2d 170; Pogor v Cue Taxi Serv., 43 Misc 2d 487, 45 Misc 2d 933.) V. The trial court properly exercised its discretion in admitting a throttle return spring for the sole purpose of facilitating the jury’s understanding of oral testimony. (Radosh v Shipstad, 20 NY2d 504; Riddle v Memorial Hosp., 43 AD2d 750; People v Sexton, 187 NY 495.) VI. The trial court’s evidentiary and procedural rulings were free from error and in no way prejudiced General Motor’s defense. (Johnson v Lutz, 253 NY 124; Kelly v Wasserman, 5 NY2d 425; Chemical Leaman Tank Lines v Stevens, 21 AD2d 556; Murray v Donlan, 77 AD2d 337; Basile v Huntington Utilities Fuel Corp., 60 AD2d 616; McDonald v Wesendock, 30 Misc 601; People v Thomas, 117 Misc 2d 1011; People v Edwards, 47 NY2d 493; People v O’Neall, 47 NY2d 952; People v Del Vermo, 192 NY 470.)
   OPINION OF THE COURT

Meyer, J.

In a strict products liability action based upon design defect, whether the product as marketed was reasonably safe for its intended use is determined by whether a reasonable person with knowledge of the potential for injury of the product and of the available alternatives, balancing the product’s risks against its utility and costs and against the risks, utility and cost of the alternatives, would have concluded that it should not have been marketed in the condition that it \yas. The critical time being the date of marketing, postmanufacture changes in design are admissible to demonstrate feasibility of alternatives, but feasibility having been conceded in the present case, it was error to permit introduction of evidence concerning a Federal motor vehicle safety standard applicable only to cars marketed in years subsequent to that in which the car involved in the instant case was delivered. For this reason and on the bases of other errors hereafter detailed, the order of the Appellate Division should be reversed, with costs, and a new trial granted.

I

On June 8, 1974, Irving Cohen was operating his 1973 Chevrolet Malibu. It had been purchased by him from defendant Kinney Motors in October, 1972, and had been driven approximately 12,000 miles during the 18 months between the time it was delivered to him new on December 22, 1972 and the accident. During that period no difficulty had been experienced with the acceleration system of the car. Seeking to parallel park on the west side of East 49th Street in Brooklyn, Cohen brought the car to a stop on that side and put it in reverse, when, according to him, the car shot backward at high speed and could not be stopped although he had his foot on the brake. It proceeded backward in an arc some 70 feet to the east side of the street, through an open space on that side where it jumped the curb, stopping only when it hit the wall of a building. Plaintiff, Astor Cover, who was walking along the east sidewalk at that point, was crushed against the wall by the car, as a result of which one leg was amputated above the knee and the other required a brace. With a prosthesis and the brace he now can stand only with the help of canes with forearm extensions.

An action was promptly begun on behalf of Cover and his wife against Cohen based on negligence in the operation of the car and in that connection Cohen’s examination before trial was taken. In August, 1976, after the death of Cohen and a substitution of counsel for plaintiffs, the complaint was amended to add as defendants Kinney Motors, the dealer, and General Motors, the manufacturer of the automobile involved in the accident, and Cohen’s administratrix was substituted as a defendant.

A bifurcated trial resulted in the jury answering affirmatively interrogatories asking (1) whether Irving Cohen was negligent in the operation of the Chevrolet and whether that was a proximate cause of the accident, (2) whether General Motors was negligent and whether its negligence was a proximate cause of the accident, (3) whether the throttle return spring of the Chevrolet was defective and whether the defect existed at the time it left the possession of General Motors and Kinney, and (4) whether the Chevrolet was unreasonably dangerous as a result of the defect in the spring and the defect a proximate cause of the accident. Following the space for answering the fourth interrogatory was the direction “If your answer is ‘yes’ then you must also find as against Kinney Motors as the seller (of the vehicle) on this issue of strict liability”. Degrees of fault were assessed by the jury as Irving Cohen 2%, General Motors 94% and Kinney Motors 4%, and damages were assessed in favor of Astor Cover at $6,000,000 and in favor of Pearl Cover, on her derivative cause of action, at $2,000,000.

The Trial Judge submitted the case to the jury as to Cohen on the basis of negligence, as to Kinney solely on the basis of strict liability and as to General Motors on the basis of both negligence and strict liability. Following the jury’s responses noted above, he granted Kinney’s motion for judgment on its cross complaint against General Motors “for indemnification as a matter of law” and granted General Motors’ motion to reduce the verdicts to the amounts demanded in the complaint ($3,000,000 and $1,000,000, respectively), but otherwise denied General Motors’ motion for judgment notwithstanding the verdict and for a new trial.

General Motors appealed to the Appellate Division from the judgment in favor of the Covers but not from the judgment over in Kinney’s favor, and Kinney filed a notice of appeal, which it designated as “protective,” from the judgment against it in plaintiffs’ favor. In a memorandum which discussed only the excessiveness of the verdicts, but stated that defendants’ other contentions were without merit, the Appellate Division reversed unless plaintiffs stipulated to the further reduction of the verdict and judgment to $2,000,000 for Astor Cover and $300,000 for Pearl Cover. Plaintiffs so stipulated. General Motors now appeals to this court, pursuant to our leave (59 NY2d 605). Kinney did not seek leave, but has filed a brief arguing that, because the judgment against it derives wholly from the liability found against General Motors, if the judgment against General Motors is reversed, plaintiffs’ judgment against Kinney must also be reversed.

The appeal raises questions concerning the propriety of the introduction in evidence of (1) a Federal motor vehicle safety standard which postdated the manufacture of the car involved in the accident, (2) the throttle spring removed from the Cohen vehicle some 15 months after the accident, (3) a statement made by Irving Cohen to a police officer shortly after the accident and recorded in his report on the accident, and (4) a technical service bulletin with respect to the carburetor spring of the 1973 Chevrolet sent to its dealers by General Motors under date of January 22, 1974. Also presented is the question whether if there is a reversal as to General Motors, there can also be a reversal as to Kinney, a nonappealing party. We conclude that it was error to have permitted the standard, the spring and the Cohen statement to reach the jury but that the bulletin, if properly related to the defect upon which plaintiffs based their claim, was admissible on the cause of action for negligent failure to warn. We conclude also that there should be a reversal and a new trial as to both General Motors and Kinney.

II

The combined effect of our decisions in Caprara v Chrysler Corp. (52 NY2d 114) and Rainbow v Elia Bldg. Co. (56 NY2d 550) is to permit the introduction in a strict products liability case based upon a manufacturing defect of evidence of a manufacturer’s subsequent modifications to establish defectiveness of the product when made, but to proscribe the use of such evidence to establish fault in a strict products liability case based upon a defect in design or the failure to warn or adequately instruct concerning the use of the product. Such evidence may be admissible in cases of the latter type to establish feasibility but, in view of the abstruse, subjective judgment involved in the balancing of risks and benefits necessary to determine whether the product as made and sold was reasonably safe (see Voss v Black & Decker Mfg. Co., 59 NY2d 102, 109), and the substantial risk that such evidence may be overemphasized by the jury, will not be admitted even for that purpose if the manufacturer concedes feasibility (see Bolm v Triumph Corp., 71 AD2d 429, 437, mot for lv to app dsmd 50 NY2d 928).

Plaintiffs recognize that such is the present rule but urge upon us the value of a single standard for all such cases and argue that in any event the determinative time should be the date of the accident rather than the date, of manufacture. We decline the single standard invitation because of the different inquiries involved in the different types of cases, as expounded in Caprara and Rainbow (see, also, Opera v Hyva, Inc., 86 AD2d 373 [Simons, J.]). With respect to determinative date, we do not blink the facts that some of the opinions speak of “postaccident” modifications (e.g., Caprara, 52 NY2d, at p 122; Rainbow, 79 AD2d, at pp 292, 293, 294) and that there is little if any deterrent effect upon the manufacturer’s improvement of his product in allowing introduction of evidence concerning postmanufacture preaccident modifications. We conclude, nevertheless, that except for the limited exceptions for feasibility, already noted, and for cases, discussed below, involving a claimed violation of the manufacturer’s continuing duty to warn, data not available at the time of manufacture is not admissible in such a case.

The references in Caprara and Rainbow to “postaccident” modifications are not deemed significant; the adjective was simply descriptive of the modifications under discussion in those cases. Other language in those and other cases establishes the date of manufacture as the critical time (Caprara, 52 NY2d, at p 124 [“defective when it leaves their possession”]; Rainbow, 79 AD2d, at p 293 [“technology of the industry at the time of manufacture”], and at p 295 [“testing unavailable when the product was made”]; see Voss v Black & Decker Mfg. Co., 59 NY2d, at p 107 [“before making the product available to the public”]). Nor is the lesser deterrence from improvement of significance for, as Caprara itself makes clear, its rule is bottomed essentially upon the potential for prejudice which the admission of evidence of later modifications entails (52 NY2d, at p 122).

Admissibility in the present case of evidence concerning Federal motor vehicle safety standard 124 is complicated by the facts that though it was first proposed by the Government in 1969, it is, as finally adopted, applicable only to 1974 and later model vehicles; that although the standard itself never came into evidence, the original draft proposal as printed in the Federal Register together with General Motors’ comments on it as it was being developed were admitted together with testimony of the then Director of the National Highway Traffic Safety Bureau, at whose instance the proposed standard was prepared, that the standard had in fact been promulgated prior to the accident and required an accelerator spring different from that on the Cohen vehicle; and that that testimony and those documents came in as part of plaintiffs’ case on rebuttal.

Beyond peradventure, therefore, the jury became aware, notwithstanding that the standard in the form finally adopted was not received in evidence, that a standard had ultimately been adopted by the Federal Government, that it was adopted prior to the accident and that it required an accelerator spring different from that on the 1973 Chevrolet. Its admission was both improper, under the Caprara/ Rainbow rules outlined above, and clearly prejudicial (Trimarco v Klein, 56 NY2d 98,108), and constitutes reversible error unless its admission can be justified, notwithstanding the prejudice, on some other ground.

Plaintiffs suggest that General Motors’ involvement “in the rule making procedures is probative of the fact that it did not need a federal standard to inform it that its spring needed replacement.” There are a number of answers. First, the issue before the jury was whether the 1973 Malibu with the production spring it came equipped with was reasonably safe (Voss v Black & Decker Mfg. Co., 59 NY2d, at p 108), not whether it used the safest possible accelerator spring (Levine v Blaine Co., 273 NY 386, 389; Garthe v Ruppert, 264 NY 290, 296). That the agency proposed a change established only that a better way was thought possible, not that balancing risks and benefits of both the existing way was not reasonably safe. Second, the proposal related to cars of many manufacturers, not just to Chevrolets or even all General Motors cars, and resulted in no requirement for recall or replacement of the springs on any pre-1974 model year car of any manufacturer. Thus, the agency’s ultimate conclusion was that a better way was possible, not that the springs previously in use by General Motors and other manufacturers were not reasonably safe at the time they were used in the manufacture of cars. Third, nothing in General Motors’ comments on the proposed rulemaking suggests knowledge on its part that its 1973 model production spring was not reasonably safe. To the contrary, General Motors detailed for the agency the design of its accelerator control system, stated “We believe that this design is in the interest of motor vehicle safety” and commented that a “ ‘redundant and failsafe’ * * * accelerator control system * * * could, in our judgment, tend to repress rather than advance vehicle safety.”

The issue before the jury was whether upon delivery to Irving Cohen in December, 1972 of his 1973 Malibu with the spring then in use by General Motors the car was reasonably safe in design. On that issue admission of evidence concerning the standard promulgated by the National Highway Traffic Safety Bureau in January, 1973 was reversible error. The prejudice resulting was, moreover, compounded by the facts that the testimony of the bureau director and the documents introduced through him came in on rebuttal, by the introduction of the spring from the Cohen car, and by the admission of Irving Cohen’s statement to the police officer.

The spring, removed from the Cohen vehicle some 15 months after the accident, was admitted over objection that no proper foundation had been laid and that although it was elongated no explanation of the elongation was offered. Plaintiffs’ argument that it was necessary to introduce that particular spring despite the elongation in order to show the jury what a production accelerator spring looked like is belied by the testimony of the adjuster who removed the spring from the Cohen car that he replaced it with a spring purchased at Jamaica Chevrolet. The court’s statement to the jury at the time of admission that the spring was admitted “for the limited purpose of indicating to the jury how it was * * * on the date * * * removed * * * and for that purpose only” and its instruction in the final charge that it is “merely here for the purpose of the witness being able to testify as to the spring he removed from the car” emphasize the error for, absent foundation testimony, both the spring removed from the car 15 months after the accident and “how it was” on the date removed were irrelevant and inadmissible. And while the final charge included the further statement that the spring was not admitted “for the purpose of establishing the condition of the spring or which spring was on the car at the time the car was manufactured or at the time of the accident,” that too compounded the error for it left the jury wholly at a loss as to the significance of the adjuster’s testimony that it was the spring he removed from the car, and was followed by the statement that “You have a right to consider all questions and all answers made with regard to that spring if you find it to be relevant in this case.” Bearing in mind the bureau director’s testimony concerning the weakness of the production spring to perform its function and the confusing instructions with respect to the purpose for which the elongated spring was admitted, we conclude that its admission must be deemed prejudicial.

Prejudice resulted also from the erroneous admission of Officer Hlinko’s testimony and his accident report of Irving Cohen’s statement that “his accelerator stuck on him.” That evidence was admitted on the basis that defendant had a duty to report to the officer and that his statement was a declaration against interest. But the statement was exculpatory rather than inculpatory and, therefore, cannot qualify as a declaration against interest (Mahon v Giordano, 30 AD2d 792; see Secor v Kohl, 67 AD2d 358, 363) and it, therefore, cannot be said that there was no motive to falsify (see Richardson, Evidence [Prince, 10th ed], § 262). Nor was the report admissible as a business record for Cohen was under no duty to report to the officer and the declaration does not meet the test of any other hearsay exception (Matter of Leon “RR”, 48 NY2d 117,122; Johnson v Lutz, 253 NY 124; Secor v Kohl, supra; Toll v State of New York, 32 AD2d 47, 49; Mahon v Giordano, supra; see Ann., 77 ALR3d 115; Richardson, op. cit., § 299). Plaintiffs’ suggestion that it may qualify under the exception for a spontaneous declaration (excited utterance) was not advanced below and the record does not sufficiently establish the time interval between the event and the statement, Mr. Cohen’s condition at the time or whether the statement was in response to an inquiry, all of which are relevant to admissibility on that ground (People v Sostre, 51 NY2d 958; People v Edwards, 47 NY2d 493; People v Caviness, 38 NY2d 227; see Fisch, NY Evidence [2d ed], § 1000).

Ill

For the same reasons that govern the Federal standard, the technical service bulletin issued by General Motors some 13 months after delivery of the Cohen Chevrolet was not admissible on the design defect cause of action or the failure to warn cause of action insofar as it turned on the design and risk status of the vehicle at the time of delivery. A manufacturer or retailer may, however, incur liability for failing to warn concerning dangers in the use of a product which come to his attention after manufacture or sale, through advancements in the state of the art, with which he is expected to stay abreast, or through being made aware of later accidents involving dangers in the product of which warning should be given to users (see Schumacher v Richards Shear Co., 59 NY2d 239, 247; 1 NY PJI2d 364-365; 1A Frumer & Friedman, Products Liability, § 8.02). Because liability on the theory of negligent failure to warn was presented during trial of the instant action and can be expected to arise again during retrial and because it is a necessary predicate for determining admissibility of the technical service bulletin, we outline the governing law.

Although a product be reasonably safe when manufactured and sold and involve no then known risks of which warning need be given, risks thereafter revealed by user operation and brought to the attention of the manufacturer or vendor may impose upon one or both a duty to warn (Rekab, Inc. v Hrubetz & Co., 261 Md 141; doCanto v Ametek, Inc., 367 Mass 776; Comstock v General Motors Corp., 358 Mich 163; Bottazzi v Petroleum Helicopters, 664 F2d 49; Rozier v Ford Motor Co., 573 F2d 1332, reh en banc den 578 F2d 871; Schenebeck v Sterling Drug, 423 F2d 919; Braniff Airways v Curtiss-Wright Corp., 411 F2d 451; see Jackson v New Jersey Mfrs. Ins. Co., 166 NJ Super 448, cert den 81 NJ 330; Prosser, Torts [4th ed], p 647; Restatement, Torts 2d, § 388). Not entirely clear from the cases, however, is what constitutes sufficient notice to the manufacturer or vendor to require its issuance of a warning, whether the manufacturer satisfies its obligation by notifying the vendor or must notify the user as well, or what the obligation of the vendor who receives such notice is to the user.

What notice to a manufacturer or vendor of problems revealed by use of the product will trigger his postdelivery duty to warn appears to be a function of the degree of danger which the problem involves and the number of instances reported (Comstock, 358 Mich, at p 176 [thousands of defective power brakes]; Bottazzi, 664 F2d, at p 52 [several instances of corrosion of propeller shaft of a helicopter]; Braniff Airways, 411 F2d, at p 453, cert den 396 US 959 [instances of cylinder barrel separation in an aircraft engine]; Restatement, Torts 2d, § 388, Comment i [“part of a lot, some of which he has discovered to be so imperfect as to be dangerous”]). When a prima facie case on that issue has been made will, of course, depend upon the facts of each case. Where, as here, however, the manufacturer has issued and sent to the vendor a technical service bulletin acknowledging that “[s]ome 1973 passenger cars * * * may exhibit an erratic idle speed and slow return to idle”, that acknowledgment, if otherwise relevant (see n 2 above), together with testimony that erratic idle speed or slow return to idle or both may seriously impair control of the vehicle presents a question of fact (General Motors Corp. v Dodson, 47 Tenn App 438; see Rozier v Ford Motor Co., 573 F2d 1332, supra; Bowman v General Motors Corp., 64 FRD 62).

The nature of the warning to be given and to whom it should be given likewise turn upon a number of factors, including the harm that may result from use of the product without notice, the reliability and any possible adverse interest of the person, if other than the user, to whom notice is given, the burden on the manufacturer or vendor involved in locating the persons to whom notice is required to be given, the attention which it can be expected a notice in the form given will receive from the recipient, the kind of product involved and the number manufactured or sold, and the steps taken, other than the giving of notice, to correct the problem (McLaughlin v Mine Safety Appliances Co., 11 NY2d 62; Rosebrock v General Elec. Co., 236 NY 227; Petzold v Roux Labs., 256 App Div 1096; Rehab, Inc. v Hrubetz & Co., 261 Md 141, supra; Comstock v General Motors Corp., 358 Mich 163, supra; Kozlowski v Smith’s Sons Co., 87 Wis 2d 882; LaBelle v McCauley Ind. Corp., 649 F2d 46; Jones v Bender Welding & Mach. Works, 581 F2d 1331; Pan-Alaska Fisheries v Marine Constr. & Design Co., 565 F2d 1129; Noto v Pico Peak Corp., 469 F2d 358; see Restatement, Torts 2d, § 388, Comment n; Prosser, loc. cit.). Germane also will be any governmental regulation dealing with notice (Clement v Rousselle Corp., 372 So 2d 1156, cert den 383 So 2d 1191 [Fla]). Generally, the issue will be one of fact for the jury (Rekab, Inc., 261 Md, at p 150) whose function will be to assess the reasonableness of the steps taken by the manufacturer or vendor in light of the evidence concerning the factors listed above presented in the particular case, as well as any expert testimony adduced on the question. The manufacturer and the vendor do not necessarily have the same obligation to warn concerning dangers learned of after delivery of the product, as the Trial Judge recognized by dismissing for insufficiency of evidence the cause of action against Kinney for negligent failure to warn. On trial of the case, therefore, the technical service bulletin will be admissible, subject only to the Trial Judge’s ruling on its relevancy, but the instructions to the jury on the duty to warn should outline the factors for them to consider under the evidence presented.

IV

Despite the above grounds for reversal as to General Motors, plaintiffs argue that our recent decision in Hecht v City of New York (60 NY2d 57) forecloses reversal as to Kinney, which did not appeal to this court. We disagree.

All causes of action against Kinney except that predicated on strict liability were dismissed by the Trial Judge. The case went to the jury under instructions that if they found the Cohen vehicle defective and the defect a proximate cause of the accident their verdict should be for plaintiffs even though General Motors or Kinney had no knowledge of the defect, and with interrogatories which contained the direction that if they answered affirmatively the question as to defect and proximate cause “then you» must also find as against Kinney Motors as the seller (of the vehicle) on this issue of strict liability”. Pertinent also is the provision of the judgment granted Kinney on its cross complaint against General Motors that it was “for indemnification as a matter of law.”

As we noted in Hecht v City of New York (60 NY2d 57, 62, supra), “It is, of course, axiomatic that, once an appeal is properly before it, a court may fashion complete relief to the appealing party. On rare occasions, the grant of full relief to the appealing party may necessarily entail granting relief to a nonappealing party”. This is such an occasion, for here, if the judgment against Kinney stands, General Motors will be required by the indemnity judgment against it to pay plaintiffs on the basis of a defective product manufactured by General Motors notwithstanding that on retrial the product may be found not to have been defective.

For the foregoing reasons, the order of the Appellate Division should be reversed, with costs, and a new trial granted as to both General Motors and Kinney.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler and Kaye concur; Judge Simons taking no part.

Order reversed, with costs to defendant General Motors against plaintiffs, and a new trial granted as to defendants General Motors and Kinney.

      . Three other rulings are argued by General Motors: that design defect proof was beyond the scope of the bill of particulars, that evidence concerning Irving Cohen’s visit to his doctor on the morning of the accident was improperly excluded, and that certain cross-examination of a police sergeant should not have been allowed. They are either not preserved or do not merit discussion other than to note, as to the bill of particulars point, that paragraph 21 of the bill stated that the vehicle “was defective *** in * * * the design ***of the pull back spring of the carburetor” and paragraph 22(b) specified that the “spring * * * did not release entirely when the accelerator was released” (cf. Caprara v Chrysler Corp., 52 NY2d 114, 119, n 2).

      . [4] The bulletin was admitted subject to connection, over objection as to relevance, but there does not appear to have been any specific later ruling that the required connection had been made. Relevance of such a bulletin is, of course, in the first instance for the Trial Judge (Prashker v Beech Aircraft Corp., 258 F2d 602, 608, cert den 358 US 910; see Harmon v Ford Motor Co., 89 AD2d 800, 801; Bertocci v Fiat Motors, 76 AD2d 779, 780; Johantgen v Hobart Mfg. Co., 64 AD2d 858, 859; see Uitts v General Motors Corp., 58 FRD 450, 62 FRD 560; Ann., 20 ALR3d 1430). Because the question will arise again on retrial, we note that in view of the highly prejudicial content of the bulletin the better practice would bé for relevance to be established prior to admission, out of the presence of the jury.

      . Not considered because not urged during the prior trial is strict liability as it relates to a continuing duty to warn (see Opera v Hyva, Inc., 86 AD2d 373; Rainbow v Elia Bldg. Co., 49 AD2d 250, 253; Ann., 53 ALR3d 239).


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    In the Matter of Thomas F. McGuinness, as President of the Suffolk County Court Employees Association, Inc., et al., Appellants, v New York State Office of Court Administration et al., Respondents.
    Argued February 13, 1984;
    decided March 20, 1984

      POINTS OF COUNSEL

      David Schlachter for appellants.
    I. Petitioners-appellants were granted permanent status in the position of principal office assistant by chapter 846 of the Laws of 1980. II. Awarding petitioners-appellants permanent status would not violate the New York Constitution. (Matter of Grossman v Rankin, 54 AD2d 639, 43 NY2d 493; People ex rel. Sweet v Lyman, 157 NY 368; Matter of Ricketts, 111 App Div 669; Matter of Madden v Reavy, 284 NY 418; Matter of Carow v Board of Educ., 272 NY 341; McCoy v Helsby, 28 NY2d 790; Corkum v Bartlett, 46 NY2d 424.) III. The effective date of the reclassification was arbitrary and capricious.

      Ellen Smithberg, Paul A. Feigenbaum and Michael Colodner for respondents.
    I. Appellants are not entitled to permanent status in the title of principal office assistant, pursuant to chapter 846 of the Laws of 1980, on the basis of their performance of out-of-title duties. (Matter of Gavigan v McCoy, 37 NY2d 548; Matter of Ainsberg v McCoy, 26 NY2d 56; Matter of Meenagh v Dewey, 286 NY 292; Amico v Erie County Legislature, 36 AD2d 415, 30 NY2d 729; Matter of Fornara v Schroeder, 261 NY 363; Matter of Howard v Wyman, 28 NY2d 434; Matter of Bernstein v Toia, 43 NY2d 437.) II. Article VI (§ 28, subd [b]) of the State Constitution forecloses legislative determinations of individual court staffing needs based upon legitimizing out-of-title. duties. (Corkum v Bartlett, 46 NY2d 424; McCoy v Helsby, 28 NY2d 790; Saxton v Carey, 44 NY2d 545.)
   OPINION OF THE COURT

Per Curiam.

Petitioners contend that, by virtue of the provisions of chapter 846 of the Laws of 1980 (applicable in the Counties of Nassau and Suffolk), they are entitled to permanent competitive class status in the position of principal office assistant, without the necessity of passing a competitive examination. They base this contention on their having performed the duties of that position for the year prior to July 1, 1980, even though, as they concede, they have never been provisionally appointed to that position and their work was out of title.

Supreme Court granted their petition and directed that they be appointed to the position of principal office assistant retroactive to July 1, 1980. The Appellate Division reversed and dismissed the petition on the merits. We affirm; petitioners are not entitled to the benefit of the provisions of chapter 846 of the Laws of 1980.

Throughout the declaration of legislative findings and intent and the operative provisions of chapter 846 are sprinkled references to positions which have been “provisionally filled” or “filled provisionally”, to “present incumbents”, “qualified incumbents serving provisionally”, “incumbents of such positions who have served * * * therein”, “incumbents occupying positions” and “[i]ncumbents * * * who have been provisionally promoted” — none of which terms include employees working out of title. At only one point in the statute is reference made to persons who “have been employed in or performed the duties of such position for one year prior to the effective date hereof”, and then that dependent clause stating the qualifying requirement applies only to “incumbents occupying positions”.

As observed by the Appellate Division, we have consistently held “that the performance of out-of-title duties creates no right to reclassification to a new position involving those duties”. (Matter of Gavigan v McCoy, 37 NY2d 548, 550-551, and cases cited therein.) We agree with that court that, in view of these holdings, “[w]ithout a much clearer statement from the Legislature than is found in chapter 846 of the Laws of 1980 that it intends a statute to run counter to this well-established rule, [the courts] would be ill advised to so interpret one of its enactments”. (96 AD2d, p 563.)

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

Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye concur in Per Curiam opinion; Chief Judge Cooke taking no part.

Order affirmed, with costs.


author: Chief Judge Cooke,

text:
    Ruth Markoff, Individually and as Executrix of Milton Markoff, Deceased, Appellant, v South Nassau Community Hospital, Defendant, and Marilyn R. Eckstein et al., Respondents.
    Argued December 15, 1983;
    decided February 21, 1984

      POINTS OF COUNSEL

      Stephen A. Weingrad for appellant.
    I. The court below erred in vacating the ex parte order pursuant to which defendants were properly served within the Statute of Limitations without applying the CPLR 205 (subd [a]) extension of time provision. (Carrick v Central Gen. Hosp., 51 NY2d 242; George v Mt. Sinai Hosp., 47 NY2d 170; Erickson v Macy, 236 NY 412; Smalley v Hutcheon, 296 NY 68.) II. The court below erred in vacating the ex parte order when in fact defendant doctors had adequate notice of the pendency of this lawsuit prior to the expiration of the Statute of Limitations. (Milliken v Meyer, 311 US 457.) III. The court below erred in not reviewing the issue of whether reversible error was committed in vacating defendants’ default without an adequate affidavit of merits. (Swart v Lehmann, 39 AD2d 807; Arnold v Weidman, 38 AD2d 362; Levin v 40 Realty, 80 AD2d 515, 54 NY2d 624; Barasch v Micucci, 49 NY2d 594; Eaton v Equitable Life Assur. Soc., 56 NY2d 900; Abrams v Abrams, 56 AD2d 775.) IV. The Legislature, in eliminating the ability of defendant to specifically appear and requiring defendants to answer or move with respect to the specific defense of jurisdiction, did not intend for the court not to have personal jurisdiction over those defendants, during the pendency of the litigation. V. The court below in the interests of justice should have exercised its discretion to allow plaintiff’s affirmation in support of the ex parte application to meet the standard of impracticability. (Connell v Hayden, 83 AD2d 30; Giordano v McMurtry, 53 NY2d 962; 53rd & 7th Corp. v Rossi, 85 Misc 2d 916; Grammenos v Lemos, 457 F2d 1067.)

      Steven J. Ahmuty, Jr., for respondents.
    I. The courts below properly held that the six-month extension under CPLR 205 (subd [a]) was not available to plaintiff because her prior actions had been dismissed for lack of personal jurisdiction. (Smalley v Hutcheon, 296 NY 68; Erickson v Macy, 236 NY 412; Knox v Beckford, 258 App Div 823, 285 NY 762; Parker v Mack, 92 AD2d 699; Ciaschi v Town of Enfield, 86 AD2d 903; George v Mt. Sinai Hosp., 47 NY2d 170.) II. The ex parte order was properly vacated under the circumstances presented here. (Booth v Lipton, 87 AD2d 856; Connell v Hayden, 83 AD2d 30; Pober v Boulevard Hosp., 72 AD2d 600; Chalk v Catholic Med. Center, 58 AD2d 822; Liebeskind v Liebeskind, 86 AD2d 207, 58 NY2d 858; Giordano v McMurtry, 79 AD2d 548, 53 NY2d 962; Badenhop v Badenhop, 84 AD2d 771; Langdon v Mohr, 67 AD2d 648; Escobedo v Schwerin, 58 AD2d 762; Deason v Deason, 73 Misc 2d 964.) III. Special Term properly vacated the purported “default” of the individual defendants. (Donnelly v Pepicelli, 58 NY2d 268; Miskiewicz v Hartley Rest. Corp., 58 NY2d 963; Barasch v Micucci, 49 NY2d 594; A & J Concrete Corp. v Arker, 54 NY2d 870.)
   OPINION OF THE COURT

Chief Judge Cooke,

When an action that has been timely commenced is later dismissed, CPLR 205 (subd [a]) provides that, even if the Statute of Limitations has or will run, a new action may be commenced within six months of the termination, except if the dismissal was on the merits, for failure to prosecute, or by voluntary discontinuance. An action will not be deemed “commenced,” however, until there has been proper service of a summons upon a defendant in compliance with the appropriate method prescribed by the CPLR. Therefore, when an action is dismissed for lack of personal jurisdiction because service of the summons was defective, or because service never occurred, CPLR 205 (subd [a]) will not apply notwithstanding a defendant’s actual notice, because the action was never “commenced,” within the meaning of that statute.

Milton Markoff was treated by defendant doctors at defendant South Nassau Community Hospital in October, 1978. Eight months after his discharge, Mr. Markoff died, allegedly as a result of defendants’ malpractice. Plaintiff Ruth Markoff, individually and as executrix of the estate of her husband, sought to commence an action for medical malpractice and wrongful death.

On March 19, 1981, following an initial unsuccessful attempt to effect service on July 14, 1980, plaintiff obtained an ex parte order authorizing expedient service upon defendants pursuant to CPLR 308 (subd 5). Pursuant to this, summonses were left for defendants at the hospital on March 30, 1981. Defendants’ answer asserted the defense of lack of personal jurisdiction, and they moved to vacate the ex parte order. Vacatur was granted in May, 1981. The action was terminated for lack of personal jurisdiction, due to the absence of any valid service, by an order dated September 23, 1981.

Meanwhile, in late August and early September, 1981, plaintiff had personally served defendants in compliance with CPLR 308 (subd 1). On October 22, 1981, defendants served an answer that raised the Statute of Limitations as a defense. Plaintiff, in turn, notified defendants that they were in default because the answer was untimely. Defendants successfully moved to vacate the default. Defendants also succeeded in having the action dismissed as barred by the Statute of Limitations, notwithstanding plaintiff’s invocation of CPLR 205.

The Appellate Division affirmed the order vacating the ex parte order authorizing expedient service and the order dismissing the complaint as barred by the Statute of Limitations. This court now affirms.

In the present case, the Statutes of Limitations expired in June, 1981, for the wrongful death action and in April, 1981, for the medical malpractice action. Proper service did not occur until the following August and September. Thus, plaintiff’s action is time barred unless she may take advantage of CPLR 205.

CPLR 205 (subd [a]) provides that when “an action is timely commenced” but it is later terminated, the plaintiff may commence a new action within six months after the termination. The new action must arise from the same transaction or occurrence, and the new action must have been timely if it had been commenced when the prior action was instituted. The statute by its express terms provides that it is not applicable when the action is terminated by voluntary discontinuance, a dismissal for neglect to prosecute, or a final judgment on the merits.

The requisite predicate for the application of CPLR 205 (subd [a]) is that the terminated action must have been “timely commenced” (see Carrick v Central Gen. Hosp., 51 NY2d 242, 250). An action is “commenced,” within the meaning of any statute governing limitation, including CPLR 205 (subd [a]) when there has been service of a summons (see CPLR 203, subd [b]; see, also, Erickson v Macy, 236 NY 412, 414-415). Service is only effective, however, when it is made pursuant to the appropriate method authorized by the CPLR (see Feinstein v Bergner, 48 NY2d 234, 241; McDonald v Ames Supply Co., 22 NY2d 111, 115-116; Braun v St. Vincent’s Hosp. & Med. Center, 87 AD2d 857, 857-858). Actual notice alone will not sustain the service or subject a person to the court’s jurisdiction when there has not been compliance with prescribed conditions of service (see Mullane v Central Hanover Trust Co., 339 US 306; Feinstein v Bergner, 48 NY2d 234, 241, supra; McDonald v Ames Supply Co., 22 NY2d 111, 115-116, supra; CPLR 304).

Therefore, when an action is dismissed for lack of personal jurisdiction due to a lack of or improper service, it has not been “commenced” for purposes of CPLR 205 (subd [a]). This failure precludes the application of the statute (see Carrick v Central Gen. Hosp., 51 NY2d 242, 249, supra; George v Mt. Sinai Hosp., 47 NY2d 170, 175, 178; Erickson v Macy, 236 NY 412, 415-416, supra; Smalley v Hutcheon, 296 NY 68, 73).

In so holding, the court does not create a new exception outside those expressly provided in the statute. Rather, it merely recognizes that timely commencement of the prior action is a condition precedent to the invocation of CPLR 205 (subd [a]), and that an action dismissed for lack of personal jurisdiction based upon improper service has not satisfied that condition.

When the ex parte order authorizing the alternative method of service was vacated here, the service made in March, 1981 was nullified (see Erickson v Macy, 236 NY 412, 414-415, supra). Plaintiff never made a proper service until after the pertinent Statutes of Limitations had run. Consequently, the prior action was never timely commenced and she is barred from taking advantage of CPLR 205 (subd [a]).

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

Judges Jasen, Jones, Wachtler, Simons and Kaye concur; Judge Meyer taking no part.

Order affirmed, with costs.

      . There is no controversy regarding the validity or the timeliness of service upon the hospital. “Defendants” hereinafter will refer to the defendant doctors only.

      . Plaintiff also challenges both the vacatur of service and the vacatur of defendants’ default in answering. Both orders are matters to be determined within the discretion of the Appellate Division. As such, this court may only reverse if the Appellate Division abused its discretion as a matter of law. It was not such an abuse of discretion to affirm the vacatur of the ex parte order authorizing expedient service. The plaintiff’s conclusory affidavit stating that service was impracticable under the other provisions of CPLR 308, without specifying why or that prior attempts were made, was insufficient to justify the order of expedient service under CPLR 308 (subd 5) (see Giordano v McMurtry, 79 AD2d 548, affd 53 NY2d 962; Langdon v Mohr, 67 AD2d 648, 649). Similarly, it was not an abuse of discretion as a matter of law to affirm the vacatur of defendants’ default in answering where the defendants promptly moved for vacatur, presented good cause for the delay, and caused no prejudice to plaintiff (see A & J Concrete Corp. v Arker, 54 NY2d 870, 872).

      . To the extent that Amato v Svedi (35 AD2d 672) supports the view that CPLR 205 (subd [a]) does apply if a defendant receives actual notice but there is a technical flaw in the method of service resulting in a dismissal for lack of personal jurisdiction, that decision is in error. A careful reading of Amato reveals that the dismissal there was based upon the absence of subject matter jurisdiction, and the references to a lack of “personal jurisdiction” are inadvertent.


author: Chief Judge Cooke.

text:
    The People of the State of New York, Appellant, v Warner A. Morris, Respondent.
    Argued January 11, 1984;
    decided February 28, 1984

      POINTS OF COUNSEL

      Larry M. Himelein, District Attorney, for appellant.
    I. An indictment which alleges that an offense was committed during a 24-day period is not jurisdictionally defective for failing to specify the exact date of the offense, when the precise date is unknown. (People v Iannone, 45 NY2d 589; People v Taylor, 74 AD2d 177; People v MacAfee, 76 AD2d 157; People v Barlow, 88 AD2d 668; People v Britt, 48 Misc 2d 705, 49 Misc 2d 256; People v Matera, 52 Misc 2d 674; People v Lupia, 65 Misc 2d 755; People v Cunningham, 64 AD2d 722.) II. A course of conduct of sexual abuse of a child is by its very nature a continuing offense. (People v Brown, 66 AD2d 223; People v MacAfee, 76 AD2d 157; People v Barlow, 88 AD2d 668; People v Yonko, 41 AD2d 514, 34 NY2d 825.)

      Raymond W. Bulson for respondent.
    I. The indictment was jurisdictionally defective for failure to comply with CPL 200.50 (subd 6). (People v MacAfee, 76 AD2d 157; People v Barlow, 88 AD2d 668; People v Britt, 49 Misc 2d 256; People v Cunningham, 64 AD2d 722, 48 NY2d 938.) II. A bill of particulars cannot be used to cure a defective indictment. (People v Davis, 41 NY2d 678; People v MacAfee, 76 AD2d 157; People v Iannone, 45 NY2d 589.) III. Rape and sodomy are not continuing offenses. (People v MacAfee, 76 AD2d 157.)
   OPINION OF THE COURT

Chief Judge Cooke.

Although an indictment that specifies the date and time when an offeiise occurred would be preferred, such precision is not always necessary. An indictment will not be dismissed as defective under CPL 200.50 with respect to the time period alleged for the commission of a crime, if it or, in some instances, the bill of particulars provides a reasonable approximation, under the circumstances of the individual case, of the date or dates involved. Here, the indictment charging that defendant sexually abused two young girls was reasonably precise under the circumstances, notwithstanding that the crimes were alleged to have been committed within a 24-day period.

Defendant was indicted in April, 1981 for rape and sodomy, each in the first degree. The rape charge arose out of defendant’s alleged sexual intercourse with a child who, at the time, was six years old and lived in defendant’s home. The sodomy count was founded on defendant’s asserted deviate sexual intercourse with his daughter, who was then five years old. The indictment averred that both events occurred “during the month of November 1980.”

On May 1,1981, the People served a demand for a notice of alibi. Defendant, in turn, demanded a bill of particulars specifying the exact times, places, and dates of the alleged crimes. The People responded by narrowing the times to “on or about and between Friday, November 7, 1980 and Saturday, November 30, 1980.” The crimes purportedly occurred at defendant’s home. The exact times, however, were stated to be unknown to the People.

Defendant answered the alibi demand by stating that, because the exact dates of the offenses were not set forth, he was unable to determine whether, at the time of the commission of the charged offenses, he was at a place other than the scene of the crimes. He maintained that he would offer an alibi, if such existed, when the exact dates and times of the crimes were specified. On October 24, 1981, defendant moved to dismiss the indictment as defective on the ground that neither the indictment nor the bill of particulars set forth a designated date on or about when each crime occurred, as required by CPL 200.50 (subd 6). This assigned defect, it is contended, deprived defendant of adequate notice guaranteed under the Federal and State Constitutions (US Const, 6th Arndt; NY Const, art I, § 6).

Trial Term granted defendant’s motion, and the Appellate Division affirmed. This court now reverses.

One of the essential functions of an indictment in modern practice is to provide the defendant with sufficient information regarding the nature of the charge and the conduct which underlies the accusation to allow him or her to prepare or conduct a defense (see People v Iannone, 45 NY2d 589, 594, 598; People v Fitzgerald, 45 NY2d 574, 579-580). It serves to satisfy the notice requirements of the Federal and State Constitutions (see People v Iannone, supra, at p 594). To fulfill this purpose, the CPL sets out objective requirements for an indictment by which its sufficiency may be tested (see CPL 200.50). Among other things, it must contain “[a] plain and concise factual statement in each count which * * * asserts facts supporting every element of the offense charged and the defendant’s * * * commission thereof with sufficient precision to clearly apprise the defendant * * * of the conduct which is the subject of the accusation” (CPL 200.50, subd 7, par [a]). Generally, “the indictment need only allege where, when and what the defendant did” (Pitler, NY Crim Prac Under the CPL, § 6.21, p 302). As an attendant function, it should sufficiently identify the alleged crime so that the constitutional prohibition against double jeopardy may be used by a defendant to bar a subsequent prosecution for the same offense (see People v Iannone, supra, at p 594; People v Helmer, 154 NY 596, 600).

Failure to meet the CPL requirements for an indictment may result in dismissal. Not all defects will require such a result, however, inasmuch as the defect may be cured in some circumstances by providing the missing information in the bill of particulars (see People v Iannone, 45 NY2d 589, 597, 598, supra; People v Fitzgerald, 45 NY2d 574, 579-580, supra; People v Bogdanoff, 254 NY 16, 24). This is true when the claimed shortcoming is an indefinitely stated time. Of course, this procedure must not subject a defendant to “actual danger of trial upon a charge upon which he has not been indicted” (People v Bogdanoff, supra, at p 28).

It is also important to note that “the requirements for a valid indictment will vary with the particular crime involved, and what is sufficient to charge [one crime] would be insufficient with respect to many other crimes” (People v Iannone, supra, at p 599). The indictment, or the bill of particulars, must state such specifics “as may be necessary to give the defendant and the court reasonable information as to the nature and character of the crime charged” (People v Bogdanoff, supra, at p 24).

With these general principles in mind, consideration must be given to the information to be included in an indictment under the statute with respect to the interval when a crime allegedly occurred. The explicit language of the statute does not require the exact date and time. Moreover, this provision is stated in the disjunctive: the crime must have been committed “on, or on or about, a designated date, or during a designated period of time” (CPL 200.50, subd 6 [emphasis added]).

No further restrictions appear on the face of the statute regarding whether a single date is mandatory in an indictment for a particular crime or crimes. Nor is there any restriction on the length of the designated period of time which may be stated. Thus, the present indictment, as refined by the bill of particulars, is facially sufficient under the CPL because a “designated period of time” is stated.

This, however, does not conclude the inquiry. As well as measuring the allegations in this particular indictment against the statutory requirements, consideration must be given to whether the period of time, as designated in the accusatory instrument, serves the function of protecting defendant’s constitutional right “to be informed of the nature and cause of the accusation” (US Const, 6th Arndt; NY Const, art I, § 6; see Russell v United States, 369 US 749, 763; People v Iannone, 45 NY2d 589, 594, supra). The notice requirement of the Sixth Amendment is met if in addition to stating the elements of the offense, “the indictment contains such description of the offense charged as will enable [defendant] to make his defense and to plead the judgment in bar of any further prosecution for the same crime” (Rosen v United States, 161 US 29, 34; see Russell v United States, supra, at pp 763-764). In order for a defendant to make his defense “with all reasonable knowledge and ability” and to have “full notice of the charge”, it is important that the indictment “charge the time and place and nature and circumstances of the offense with clearness and certainty” (United States v Cruikshank, 92 US 542, 566; see United States v Weiss, 491 F2d 460, 466; United States v Salazar, 485 F2d 1272,1277). The standard is that of reasonableness; “[reasonable certainty, all will agree, is required in criminal pleading” (United States v Cruikshank, supra, at p 568; see People v Bogdanoff, 254 NY 16, 24, supra). The lack of a precise date is not a fatal defect if it is not a substantive element of the crime (see United States v Antonelli, 439 F2d 1068,1070; People v Jones, 129 App Div 772,. affd 195 NY 547; People ex rel. White v McMann, 8 AD2d 921). When time is not an essential element, the indictment is often permitted to state the time in approximate terms (see United States v Bagaric, 706 F2d 42, 61; United States v Tramunti, 513 F2d 1087, 1113; United States v Salazar, 485 F2d 1272, 1277, supra). The determination of whether sufficient specificity to adequately prepare a defense has been provided to a defendant by the indictment and the bill of particulars must be made on an ad hoc basis by considering all relevant circumstances.

On a motion to dismiss the indictment for failure to sufficiently detail when a crime allegedly occurred (see CPL 210.20, subd 1), significant factors in considering sufficiency are the span of time set forth and the knowledge the People have or shpuld have of the exact date or dates of the crime. Usually, the period should be examined first. It may be that the interval ascribed for a particular crime is so excessive that, on its face, it is unreasonable and dismissal should follow.

If the defendant claims the People knew but purposely failed to allege the most particular date and time possible, the accuracy of the contention and the existence of good cause to withhold such information should be determined either on the moving papers or after a hearing, whichever may be appropriate (see CPL 210.45, subd 3). We need not now comment upon the conditions which might constitute such good cause (cf. People v Matera, 52 Misc 2d 674, 678-679). If defendant’s claims are borne out, without a showing of good cause, the indictment should be dismissed because it is unreasonable for the prosecutor to plead an overinclusive duration of time simply to keep the defendant in ignorance of the actual date or period involved.

A defendant may also contend that the prosecutor is able but has failed to obtain more specific information due to a lack of diligent investigatory efforts. The test for adequacy embraces good faith. Reasonableness and fairness demand that the indictment state the date and time of the offense to the best of the People’s knowledge, after a reasonably thorough investigation has been undertaken to ascertain such information. In evaluating the possibility that a more specific date could have been obtained through diligent efforts, the court might consider, among other things: (1) the age and intelligence of the victim and other witnesses; (2) the surrounding circumstances; and (3) the nature of the offense, including whether it is likely to occur at a specific time or is likely to be discovered immediately.

If it is found that the People have exerted diligent investigatory efforts, the indictment should then be examined to determine whether, under the circumstances, the designated period of time set forth is reasonable. In making this determination, factors to be considered might include but should not be limited to the length of the alleged period of time in relation to the number of individual criminal acts alleged; the passage of time between the alleged period for the crime and defendant’s arrest; the duration between the date of the indictment and the alleged offense; and the ability of the victim or complaining witness to particularize the date and time of the alleged transaction or offense.

In the present case, defendant is alleged to have committed two sexual criminal acts over a 24-day period against victims who were only five and six years old and resided in the defendant’s home. The dates are not material elements of the crimes. It is not disputed that the young victims were unable to provide the precise dates and hours involved. There has been no showing, indication or even accusation of bad faith by the People. Defendant was arrested 12 days after the end of the period set forth and the Grand Jury indicted defendant five months after the acts alleged occurred.

Under the circumstances of this case, the time period in the indictment, as further delineated in the bill of particulars, is not so inadequate as to justify dismissal. Defendant has been informed of the nature of the charges, the conduct underlying them, the place of the crimes, the witnesses present, and the time of the offense, within a reasonably designated period. Defendant has been provided with reasonable and adequate notice under the Federal and State Constitutions and is not prevented from preparing a defense, notwithstanding that it would be easier to prepare an alibi defense if the exact date and time of the offense were known and provided. In addition, the indictment contains such other particularity so as to provide defendant with the means of preventing a subsequent prosecution for the same charge.

Defendant argues that unfairness may develop if, at trial, a more precise date for each crime is discovered and he is then precluded from establishing an alibi because he did not provide notice, or if the trial court does not grant an adjournment to allow the defendant to investigate a possible alibi defense. These questions need not be decided at this time. Such determinations, if required at all, should be made in the sound discretion of the trial judge at the time the issues may arise.

In view of this resolution, there is no need to discuss the People’s contention that the acts charged should be considered a continuing offense.

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

Judges Jasen, Jones, Wachtler, Meyer and Kaye concur; Judge Simons taking no part.

Order reversed, etc.

      . The bill of particulars further provided that, as to the rape, no witnesses were known, except possibly defendant’s wife. The child rape victim was reported to be a witness to the sodomy.

      . Indeed, the predecessor statute, section 280 of the Code of Criminal Procedure, expressly provided that “[t]he precise time at which the crime was committed need not be stated in the indictment; but it may be alleged to have been committed at any time before the finding- thereof, except where the time is a material ingredient in the crime” (L 1881, ch 442, § 280; see, also, Code Grim Pro, § 284, subd 5).


author: Meyer, J. Kaye, J.

text:
    In the Matter of the Arbitration between Rosalyn Silverman, as Executrix of Ben Silverman, Deceased, Respondent, and Benmor Coats, Inc., Appellant. (And Another Proceeding.) Crawford S. Norris, Respondent, v Robert R. Cooper, Appellant.
    Argued December 12, 1983;
    decided February 28, 1984

      POINTS OF COUNSEL

      Alan J. Pomerantz for appellant in the first above-entitled proceeding. I.
    The court has the authority to vacate an arbitrator’s award if the arbitrator exceeded his power to the prejudice of a party. (Matter of Granite Worsted Mills [Aaronson Cowen, Ltd.], 29 AD2d 303, 25 NY2d 451, 26 NY2d 842; Matter of Farker Co. v Hanson Disc, 583 F2d 68; Matter of National Cash Register Co. [Wilson], 8 NY2d 377; Matter of Deering Miliken & Co. [Boepple Sportswear Mills], 4 AD2d 652, 4 NY2d 956.) II. The arbitrator exceeded his power to the prejudice of Benmor, and adversely affected the rights of persons not before it. (City of New York v Long Is. Airport’s Limousine Serv. Corp., 48 NY2d 469; First Nat. Bank v Shuler, 153 NY 163; Matter of Lezette v Board of Educ., 35 NY2d 272; First Nat. Bank v American Foam Rubber Corp., 530 F2d 450, cert den sub nom. Buchman v American Foam Rubber Corp., 429 US 858.)

      Stanley M. Langer for respondent in the first above-entitled proceeding.
    I. The arbitrator did not exceed the powers conferred on him by paragraph 5 of the arbitration agreement; the effect of the subordination agreement on the debt to respondent was properly before the arbitrator. (Lentine v Fundaro, 29 NY2d 382; Matter of Sprinzen [Nomberg], 46 NY2d 623; Matter of Local Div. 1179, Amalgamated Tr. Union [Green Bus Lines], 50 NY2d 1007; Board of Educ. v Yonkers Federation of Teachers, 46 NY2d 727.) II. The rights and limitations imposed by paragraph 5.04 on Levy and Saretsky to execute a subordination agreement on behalf of respondent was properly before the arbitrator.

      John B. Sherman and Steven L. Cohen for appellant in the second above-entitled proceeding.
    The arbitrator completely disregarded several express provisions of the agreements in rendering his award; accordingly, the result below is manifestly irrational, and the award based upon “disposition of assets” should be vacated. (Matter of National Cash Register Co. [Wilson], 8 NY2d 377; Rochester City School Dist. v Rochester Teachers Assn., 41 NY2d 578; Lentine v Fundaro, 29 NY2d 382; Matter of Granite Worsted Mills [Aaronson Cowen, Ltd.], 25 NY2d 451; Matter of Stange v Thompson-Starrett Co., 261 NY 37;Bowmer v Bowmer, 50 NY2d 288.)

      Christopher R. Belmonte and Alan R. Wentzel for respondent in the second above-entitled proceeding.
    No grounds for vacatur exist. (Matter of White Fashions [Susquehanna Mills], 295 NY 450; Matter of United Buying Serv. Int. Corp. v United Buying Serv., 38 AD2d 75, 30 NY2d 822; Matter of Shevell [Besen], 29 AD2d 751; Board of Educ. v Niagara-Wheatfield Teachers Assn., 46 NY2d 553; Harwyn Luggage v Henry Rosenfeld, Inc., 58 NY2d 1063; Grossman v Laurence Handprints-N. J., 90 AD2d 95.)
   OPINION OF THE COURT

Meyer, J.

Because arbitration will not be stayed unless the entire controversy is nonarbitrable, participation in an arbitration involving one or more arbitrable issues does not waive the participant’s right to seek vacatur of the award as in excess of the arbitrator’s powers pursuant to CPLR 7511 (subd [b], par 1, cl [iii]). An award may not be vacated at the instance of a participant, however, unless the limitation on the arbitrator’s powers is contained, explicitly or by reference, in the arbitration clause itself, and the particular aspect of the award which, it is claimed, the arbitrator lacked power to make has been brought to the attention of the court requested to confirm (or vacate) the award, or it is clear that the opposing party has not been prejudiced by the failure to do so. In Matter of Silverman (Benmor Coats) there should be an affirmance because the limitation urged was not specifically related to the power of the arbitrator. In Norris v Cooper there should be an affirmance because although the limitation now claimed was stated in the arbitration clause, it was waived by respondent’s failure to raise it in opposition to the petition for confirmation of the award.

I

In Matter of Silverman petitioner’s decedent owned 70% of the shares of Benmor Coats, Inc. (Benmor). The remaining shares were held by Paul Levy and Arthur Saretsky. Benmor was indebted to Silverman in the amount of $70,000, which was, however, subordinated to past and future creditors of Benmor who became such prior to January 1, 1980.

Silverman died in July, 1979, and on November 7,1979, petitioner (his widow and the executrix of his estate) entered into a settlement agreement with Benmor, Levy and Saretsky, under which Benmor purchased the estate’s shares. Paragraph 5 of that agreement dealt with the subordinated loan by Silverman to the corporation, which had by then been reduced to $64,000. It was agreed in subparagraph 5.02 that the parties would meet in January, 1980 to negotiate repayment of the loan “subject to the consent of the Bank and trade creditors, and subject further to the business conditions then affecting Benmor.” Levy and Saretsky were appointed attorneys-in-fact for plaintiff and the estate with power to execute all documents necessary to continue subordination of the unpaid balance. Arbitration was provided for in subparagraph 5.05, which read, in pertinent part: “Any dispute with respect to the obligations of this Paragraph 5 including the ability of Benmor to make payments shall be settled by Arbitration in the City of New York before the American Arbitration Association pursuant to the rules of that Association, and any decision of the Association may be enforceable in any court of competent jurisdiction.”

The January, 1980 meeting was never held because Benmor informed the estate that neither the bank nor the trade creditors would consent to an alteration of the subordination agreement. On April 24, 1980, the estate served its demand for arbitration, stating that “Benmor has failed to make payment as required by Paragraph 5” of the settlement agreement, and seeking interest payments in default and principal payments as per paragraph 5. Prior to the arbitration hearings, Paul Levy, acting as attorney-in-fact under the settlement agreement, resubordinated the loan for 1981.

The arbitrator’s award directed payment of interest then due and required payment thereafter of interest at the rate of 6% of the unpaid balance. With respect to principal, it provided that the attorney-in-fact for Benmor could continue to execute subordination documents but required principal payments by Benmor of $650 per mohth for each of the last six months of 1981 and, commencing April 1, 1982 and yearly thereafter, of 35% of Benmor’s after-tax net income until the loan was paid in full, after-tax net income being computed, however, by excluding salaries in excess of $40,000, travel and entertainment in excess of $20,000 and by also adjusting Benmor’s income taxes to those limitations. The award made no reference to creditors’ consent to such payments.

The estate moved to confirm, and Benmor cross-moved to vacate the award. Benmor argued that the arbitrator had exceeded his power in ordering repayments of principal even though neither bank nor trade creditors had consented to such repayments. Supreme Court granted the motion to confirm, noting that the arbitrator had taken the creditors’ interests into account by awarding only minimal principal repayments in 1981 and by tying subsequent repayments to after-tax profits, and that, therefore, the subordination provisions of the settlement agreement had not been violated. The Appellate Division, one Justice dissenting, affirmed. The majority reasoned that the arbitrator, having fashioned an award which avoided imperiling the creditors for whom the subordination agreement was made, had not exceeded his powers. The dissenter concluded that bank and trade creditors were necessary parties and an award without their consent was both in excess of the arbitrator’s power and prejudicial to Benmor.

In Norris v Cooper, in the spring of 1969, petitioner Norris was succeeded by respondent Cpoper as exclusive importer and distributor for the United States of Twining Tea. In December, 1969, Cooper and Norris executed an agreement under which Norris was to act as consultant to a company (Cooper Co.) to be formed by Cooper to carry out the distributorship. Paragraph 4 of the agreement provided that as consideration for his assistance, Norris was to receive 50% of “the annual after-tax net operating profits” during 1971 through 1975 and 25% of such profits thereafter. Paragraph 4(d) of the agreement, as amended, provided: “The determination of ‘after-tax net profits’, ‘after-tax net operating profits’ and ‘gross profits on sales’ of [Cooper Co.] will be made by the then independent public accountants for [Cooper Co.], which determination shall be final, conclusive and binding upon the parties. Such determination shall be made in accordance with generally accepted accounting principles, applied on a consistent basis”. Excluded from the computation, however, were operating profits from any activity of Cooper Co. other than its Twining Division and salary in excess of $30,000 paid to Cooper. Arbitration was provided for in paragraph 8, which read: “Any controversy, claim, or dispute arising out of or relating to this agreement, or the interpretation or breach thereof, except as otherwise provided in paragraph 4 above, shall be settled by arbitration in the City of New York, in accordance with the laws of the State of New York and the rules then obtaining of the American Arbitration Association, and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.”

On December 5, 1979, Twining notified Cooper Co. of its intention not to renew the distributorship when it expired on December 31, 1981. Twining then formed Grosvenor Marketing Limited, a Delaware corporation, and assigned to it effective January 1, 1980, with Cooper Co.’s consent, all of Twining’s rights and obligations under its agreement with Cooper Co. On March 31,1980, Grosvenor and Cooper Co. entered into an agreement canceling the latter’s distributorship effective January 1, 1980.

The cancellation agreement between Grosvenor and Cooper Co. recited*that since January 1, 1980, Cooper Co. had distributed Twining Teas solely for the benefit of Grosvenor and that all income, profits, expenses and liabilities since that time were for Grosvenor’s account. The consideration payable to Cooper Co. under the cancellation agreement was $3,040,000, of which $3,000,000 was allocated to the cancellation of the distributorship agreement and $40,000 to Cooper Co.’s agreement not to compete in the sale of tea or tea products for four years thereafter. The accountant’s statement, prepared May 21, 1980 for the period ending March 31, 1980, showed income of Cooper Co. for the first three months of 1980 of $337,297, which it noted was to be transferred to Grosvenor pursuant to the cancellation agreement. It also noted as a contingent liability Norris’s claim that Cooper Co. was liable to him for consulting fees based on 25% of the company’s after-tax operating profit, and that on March 31, 1980, Cooper Co. had adopted a plan of liquidation under the Internal Revenue Code which “excludes from taxation the gains resulting from * * * the distributorship cancellation agreement.” Thereafter Norris demanded arbitration, claiming breach of Cooper’s agreement with him that Cooper Co. would pay him an agreed portion of its annual profits. The arbitrator awarded him $26,694 as the “year end balance for 1979” plus $750,000 for “disposition of assets.”

Norris petitioned for confirmation of the award and Cooper cross-moved to vacate it on the ground that the arbitrator exceeded his powers and the award was manifestly irrational. The claimed excess of power detailed in the moving papers was stated to be that “it does not reflect in any way the taxes Cooper would have to pay on the $3,000,000 consideration, and hence violates the contractual requirement that the 25% payment be computed on ‘after-tax net operating profits’ ” and that it failed to deduct expenses. Special Term confirmed the award and the Appellate Division affirmed, both without opinion.

In each case, appellant argues that the arbitrator exceeded his power. In Matter of Silverman, it is argued, additionally, that the creditors were necessary parties.

II

CPLR article 75 evidences in numerous ways the intent of the Legislature that, once it is clear that a valid agreement to arbitrate has been made and complied with and that the claim sought to be arbitrated is not barred by limitations, the authority of the arbitrator is plenary. Thus, CPLR 7501 mandates that “the court shall not consider whether the claim with respect to which arbitration is sought is tenable, or otherwise pass upon the merits of the dispute”; a party served with notice of intention to arbitrate who does not within 20 days thereafter raise the objections that a valid agreement to arbitrate was not made or complied with or assert the bar of a time limitation is thereafter precluded from raising such objections (CPLR 7503, subd [c]) and even if not so served is barred from raising those objections by participation in the arbitration (CPLR 7511, subd [b], par 2); and every procedural right provided for in the article other than the right to be represented by counsel is waived either by written consent or simply by continuing with the arbitration without objection (CPLR 7506, subds [d], [fj; 7511, subd [b], par 1, cl [iv]). The only basis upon which an award can be vacated at the behest of a party who participated in the arbitration or was served with notice of intention to arbitrate is that the rights of that party were prejudiced by corruption, fraud or misconduct in procuring the award, partiality of an arbitrator, that the arbitrator exceeded his power or failed to make a final and definite award, or a procedural failure that was not waived (CPLR 7511, subd [b], par 1).

It follows that any limitation upon the power of the arbitrator must be set forth as part of the arbitration clause itself, for to infer a limitation from the substantive provisions of an agreement containing an arbitration clause calling for arbitration of all disputes arising out of the contract, or for arbitration in some other broadly worded formulation, is to involve the courts in the merits of the dispute — interpretation of the contract’s provisions — in violation of the legislative mandate (Matter of Nationwide Gen. Ins. Co. v Investors Ins. Co., 37 NY2d 91, 95; see Matter of Wilaka Constr. Co. [New York City Housing Auth.], 17 NY2d 195; Siegel, NY Prac, §§ 589, 590). Consistent with that policy, a broad arbitration clause is held to submit to the arbitrator questions of fraud in the inducement, except as related to the arbitration clause itself or as the alleged fraud can be shown to permeate the entire contract (Matter of Weinrott [Carp], 32 NY2d 190), as well as compliance with notice and time conditions precedent to arbitration set forth in the arbitration clause itself (Matter of Tilbury Fabrics v Stillwater, Inc., 56 NY2d 624; Matter of United Nations Dev. Corp. v Norkin Plumbing Co., 45 NY2d 358). To exclude a substantive issue from arbitration, therefore, generally requires specific enumeration in the arbitration clause itself of the subjects intended to be put beyond the arbitrator’s reach.

Moreover, absent provision in the arbitration clause itself, an arbitrator is not bound by principles of substantive law or by rules of evidence (Lentine v Fundaro, 29 NY2d 382). He may do justice as he sees it, applying his own sense of law and equity to the facts as he finds them to be and making an award reflecting the spirit rather than the letter of the agreement, even though the award exceeds the remedy requested by the parties (Matter of Sprinzen [Nomberg], 46 NY2d 623, 631; Matter of Port Washington Union Free School Dist. v Port Washington Teachers Assn., 45 NY2d 411, 418; Matter ofRaisler Corp. [New York City Housing Auth.], 32 NY2d 274, 283). His award will not be vacated even though the court concludes that his interpretation of the agreement misconstrues or disregards its plain meaning or misapplies substantive rules of law, unless it is violative of a strong public policy, or is totally irrational, or exceeds a specifically enumerated limitation on his power (Matter of Local Div. 1179, Amalgamated Tr. Union [Green Bus Lines], 50 NY2d 1007; Matter of Sprinzen [Nomberg], supra; Rochester City School Dist. v Rochester Teachers Assn., 41 NY2d 578, 582). Nor will an arbitration award be vacated on “ ‘the mere possibility’ ” that it violates an express limitation on the arbitrator’s power (Matter of Tilbury Fabrics v Stillwater, Inc., 56 NY2d, at p 627).

Generally the contention that a claim proposed to be submitted to arbitration is in excess of the arbitrator’s power is waived unless raised by an application for a stay (CPLR 7503; Matter of Tilbury Fabrics v Stillwater, Inc., 56 NY2d 624; supra; Matter of Board of Educ. [Hess], 49 NY2d 145, 151; Rochester City School Dist. v Rochester Teachers Assn., 41 NY2d 578, 583, supra). An application for a stay will not be granted, however, even though the relief sought is broader than the arbitrator can grant, if the fashioning of some relief on the issue sought to be arbitrated remains within the arbitrator’s power (Matter of Port Washington Union Free School Dist. v Port Washington Teachers Assn., 45 NY2d 411, 418-419, supra). Moreover, the tendency of the courts is to read a limitation on the arbitrator’s power narrowly and allow the arbitration to proceed (compare Information Sciences v Mohawk Data Science Corp., 43 NY2d 918, 920, and Matter of Macy & Co. [National Sleep Prods.], 39 NY2d 268, 271, with Bowmer v Bowmer, 50 NY2d 288, 294-296). Thus, it is only when the sole matter sought to be submitted to arbitration is clearly beyond the arbitrator’s power that a stay will be granted (Clifton-Fine Cent. School Bd. of Educ. v Wisner, 59 AD2d 50, 51, mot for lv to app den 43 NY2d 643).

That a stay cannot be obtained does not foreclose postarbitration reliance upon a claimed limitation on the arbitrator’s power. The limitation will not be waived if the party relying on it asserts it at Special Term in opposition to an application for confirmation or as the basis for a motion to vacate (CPLR 7511, subd [b], pars 1, 2). Failure to do so will, however, waive the claimed limitation and proscribe its consideration by the courts (Matter of Tilbury Fabrics v Stillwater, Inc., 56 NY2d 624, 626, supra, affg 81 AD2d 532, 533).

Ill

Against the foregoing background the specific contentions of the parties may be evaluated.

The arbitration clause in Matter of Silverman covers any dispute with respect to the subordinated loan, without limitation. Expressly included is “the ability of Benmor to make payments.” Although a distinction can be drawn between the ability to pay, and the right to pay, any part of the subordinated loan without the consent of the creditors, drawing it would involve the courts in the merits of the issue to be arbitrated: the right of the estate to principal payments under paragraph 5. Absent an express limitation on the power of the arbitrator (as distinct from the limitation of Benmor’s obligation to pay set forth in subparagraph 5.02), the award made did not exceed his power.

Nor were the creditors necessary parties to the confirmation proceeding. Although the award mandates payment to Benmor before all creditors have been paid in full, it cannot be said that confirmation of the award will “inequitably affect” them (see CPLR 1001, subd [a]). They are not bound by it, of course, and retain whatever right they have under the subordination agreement to proceed against both Benmor and the Silverman estate, both of which are parties to that agreement, if in their view it has been violated.

The Norris arbitration clause explicitly limits the controversies, claims or disputes that may be arbitrated by the phrase “except as otherwise provided in paragraph 4 above.” Subdivision (d) of paragraph 4 made the accountants’ determination of after-tax net profits and after-tax net operating profits “final, conclusive and binding upon the parties” provided only that the determination “be made in accordance with generally accepted accounting principles, applied on a consistent basis”. Whether the latter condition had been met, therefore, remained within the competence of the arbitrator, as did the question whether Cooper was in default as to the payment due for the last quarter of 1979. That being the case, Cooper’s failure to seek a stay of arbitration did not waive his right to move for vacatur of the award on the ground that in determining that Norris was entitled to $750,000 for “disposition of assets” the arbitrator had intruded upon an area which was the exclusive province of the accountants, and thus had exceeded his power.

It was, however, waived by Cooper’s failure to advance before Special Term the specific argument now made to us that by failing to include the $3,000,000 payment to Cooper Co. as profits in its financial statement for the period, the accountants had conclusively determined that it did not constitute profits. Cooper argued only that the award did not reflect taxes paid and that it made no allowance for expenses. Those arguments necessarily assumed that the $3,000,000 payment to Cooper Co. constituted “profits” within the meaning of the agreement. Norris, therefore, had no reason to address in the courts below the question whether the payment was profits. The fact that Cooper had earned (but transferred to Grosvenor) $337,297 during the first three months of 1980 suggests that, during the 24 months Cooper Co.’s distribution rights (and Norris’s consulting fees) would have continued but for the cancellation agreement, Cooper Co.’s profits would have approximated $2,700,000. That fact, plus the fact that Cooper’s present argument is predicated not upon an affirmative determination by the accountants that the $3,000,000 did not constitute profits but upon the negative implication arising from the accountants’ failure to refer to the payment in their March 31, 1980 report except in the footnote stating its exclusion from taxation, strongly suggests that had Cooper made the argument below Norris would have been able to controvert the negative implication Cooper now seeks to draw, or to establish that generally accepted accounting principles did not require any further reference to the distribution cancellation payment than was contained in the footnote. Having failed to make the present argument below, Cooper has waived his right to advance that argument before us in support of his application to vacate the award as beyond the arbitrator’s power to make.

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

Kaye, J.

(dissenting). Arbitration being a matter of choice and consent, when arbitrators exceed the powers which the parties confer on them, their awards in principle are subject to vacatur. (CPLR 7511, subd [b], par 1, cl [iii].)

In both Matter of Silverman (Benmor Coats) and Norris v Cooper the arbitrators exceeded the powers conferred on them by the parties. In Silverman, although the dispute submitted to arbitration by the company and the estate was limited to a subordinated loan the repayment of which was expressly made subject to consent of the company’s creditors, the arbitrator nonetheless fashioned a remedy which provided for full repayment to the estate without the creditors’ consent. In Norris, while the parties specifically excepted from the arbitrator’s reach the calculation of the company’s net after-tax operating profits, which were to be conclusively determined by its independent accountants, the arbitrator nonetheless fixed net profits contrary to the accountants’ determination. In my view, both awards should be vacated because they are beyond the powers conferred by the parties on the arbitrators. In neither case does the award reflect the choice or consent of the parties as evidenced by their agreements to arbitrate.

As the majority opinion shows, there is in fact virtually no restraint on arbitral excesses. The award may contravene principles of substantive law and rules of evidence, it may exceed the remedy requested by the parties, it may disregard the plain meaning of the arbitration agreement, and still it will be confirmed. Short of a violation of public policy or totally irrational result, yet to be found by this court, an award will not be set aside. While the majority recognizes that under CPLR 7511 an award may be vacated if the arbitrator exceeds a specifically enumerated limitation on his power, that relief too has been circumscribed, and is even further circumscribed today.

In Silverman the arbitrator, in overstepping his authority by providing for the repayment of subordinated debt without the creditors’ consent, attempted to accommodate the creditors, who were never made part of the arbitration proceeding, by providing for a long-term payout to the estate of the company’s “after-tax net income.” For purposes of his award, however, he placed ceilings on allowable business deductions by the company, to assure that there would be “after-tax net income” to pay the estate. However imaginative the arbitrator’s efforts may have been, the fact remains that he had no authority to direct repayment of subordinated debt to the estate without the consent of the company’s creditors. The creditors, who may well object to a schedule for repayment which can place subordinated obligations ahead of theirs, of course retain their right to proceed against the company on its debts to them, as the majority acknowledges. But then the company is caught between the estate’s demands for repayment in accordance with the arbitration award and the creditors’ demands for payment under the subordination agreement — precisely the unhappy situation avoided in the first instance by the parties’ agreement which limited the arbitrator’s powers.

The Silverman award is confirmed because the limitation was not “an express limitation on the power of the arbitrator.” I respectfully disagree. The arbitration clause in Silverman was confined to paragraph 5 disputes, and paragraph 5, captioned “Subordinated Loan,” recited that repayment to the estate was “subject to the consent of the Bank and trade creditors.” Simple application of this express limitation on the arbitrator’s power requires no interpretation of the agreement. The court’s insistence that even such a limitation is insufficient establishes that, however plain, any restriction on the arbitrator’s power which is not fully spelled out in the same breath as the undertaking to arbitrate will simply be given no effect.

As Norris shows, even a limitation which is set forth in the arbitration clause may not be sufficient. In Norris v Cooper, Norris was to receive as consideration for acting as advisor and consultant to Cooper’s company, an amount equal to 25% of the company’s annual after-tax net operating profits. While disputes were to be subject to arbitration, the arbitration clause explicitly limited arbitrable controversies by the phrase “except as otherwise provided in paragraph 4 above.” Subdivision (d) of paragraph 4 made the company accountants’ determination of after-tax net profits and after-tax net operating profits “final, conclusive and binding upon the parties,” provided only that the determination “be made in accordance with generally accepted accounting principles, applied on a consistent basis”. Contrary to the determination of the accountants that a $3,000,000 payment received from a third party for cancellation of a distributorship agreement was not after-tax net operating profits of the company, the arbitrator awarded Norris 25% of this amount, or $750,000.

The majority acknowledges that this award transcends the arbitrator’s power. This time, however, an improper award is confirmed on the ground that in seeking to set aside the award pursuant to CPLR 7511 (subd [b], par 1, cl [iii]), Cooper did not specify before Special Term that the arbitrator had exceeded his power by determining after-tax net operating profits. Had this argument been presented to Special Term, it is clear from the parties’ submissions in this court, as well as the court’s independent efforts, that Norris had no factual or legal basis to controvert the arbitrator’s lack of authority. A new argument in support of the relief requested may be raised in this court for the first time when, as here, it could not have been obviated or cured if brought to the attention of the proponent of the award while the matter was before the arbitrator or the court below. (Persky v Bank of Amer. Nat. Assn., 261 NY 212, 218-219; Matter of Kaplan [Blumenfeld], 8 NY2d 214, 220; American Sugar Refining Co. v Waterfront Comm., 55 NY2d 11, 25, app dsmd sub nom. New York Shipping Assn. v Waterfront Comm., 458 US 1101); see Telaro v Telaro, 25 NY2d 433, 439). This rule of practice has long been acknowledged by this court (see Cohen and Karger, Powers of the New York Court of Appeals, §§ 161, 163; Wright v Wright, 226 NY 578; People v Bradner, 107 NY 1, 4; Cook v Whipple, 55 NY 150, 157).

The majority’s affirmance of the awards before the court today underscores the need for extraordinary caution at the outset, for once arbitration has been designated there is little hope of later containing it by way of judicial supervision. But electing arbitration should not be tantamount to assumption of the risk. Persistent denial by this court of judicial review even when the ground rules set by the parties are ignored by the arbitrator does not foster, but instead diminishes, the desirability of arbitration as a remedy of choice.

Chief Judge Cooke (concurring in Matter of Silverman [Benmor Coats] and dissenting in Norris v Cooper). In Matter of Silverman (Benmor Coats), I agree with the majority that the arbitrator did not go beyond the scope of his authority and thus, the award may not be vacated. In Norris v Cooper, however, the arbitration clause explicitly limited the arbitrator’s power in resolving the dispute and the limitation was ignored. I agree with the position of the dissent that the issue of the arbitrator’s lack of power may be raised in this court. Accordingly, I join Judge Kaye’s dissent as to Norris v Cooper and would vacate the award therein.

In Matter of Silverman (Benmor Coats): Order affirmed, with costs.

Chief Judge Cooke and Judges Jones, Wachtler and Simons concur with Judge Meyer; Chief Judge Cooke concurs in a memorandum; Judge Kaye dissents and votes to reverse in a separate opinion in which Judge Jasen concurs.

In Norris v Cooper: Order affirmed, with costs.

Judges Jones, Wachtler and Simons concur with Judge Meyer; Judge Kaye dissents and votes to reverse in a separate opinion in which Chief Judge Cooke and Judge Jasen concur; Chief Judge Cooke dissents in a memorandum.

       See, e.g., the clause set forth in the footnote to the Norkin Plumbing case (45 NY2d, at p 364), which, though denominated a broad clause in the aspect (fraud in the inducement) there in issue, contained specifically enumerated exceptions. Instructive also is the differentiation between various contract provisions in Matter of County of Rockland (Primiano Constr. Co.) (51 NY2d 1). To the extent that Matter of Granite Worsted Mills (Aaronson Cowen, Ltd.) (25 NY2d 451) and Matter of Stange v ThompsonStarrett Co. (261 NY 37) hold contrary to the rule stated in this opinion, they are overruled.

       The majority strains to suggest that question might have been raised about the accountants’ treatment of the $3,000,000, the court even reaching the point, on its own, of projecting company profits. But determination of the company’s profits was, by prearrangement of the parties, left exclusively to the independent accountants. No suggestion is made, by Norris or even by the court, of how their determination might have violated generally accepted accounting principles which, again by both parties’ choice, was the only basis for challenging the financial statements.