text:
    State of New York, Appellant, v Barclays Bank of New York, N. A., Respondent.
    Argued September 13,1990;
    decided October 18, 1990

      POINTS OF COUNSEL

      Robert Abrams, Attorney-General (Denise A. Hartman, O. Peter Sherwood and Peter H. Schiff of counsel), for appellant.

      David M. Satnick and John Nocera for respondent.
   OPINION OF THE COURT

Hancock, Jr., J.

In the absence of actual or constructive possession of a check, does the named payee have a right of action against the depositary bank which has paid out the proceeds over a forged indorsement? This is the question presented in plaintiffs appeal from a dismissal of its action to recover the amounts of several checks drawn by taxpayers to the order of various State taxing authorities. The checks were never delivered to plaintiff; the taxpayers’ dishonest accountant misappropriated them, and deposited them in his own account at Banker’s Trust Company of Hudson Valley, N. A. For reasons stated hereafter, we hold that plaintiff has no right of action and accordingly affirm the order granting summary judgment to defendant.

I

The case stems from the activities of Richard Caliendo, an accountant. Caliendo prepared tax returns for various clients. To satisfy their tax liability, the clients issued checks payable to various State taxing entities, and gave them to Caliendo. Between 1977 and 1979, he forged indorsements on these checks, deposited them in his own account with defendant, and subsequently withdrew the proceeds. In November 1980— shortly after the scheme was uncovered — Caliendo died when the plane he was piloting crashed. The State never received the checks. In 1983, after learning of these events, the State commenced this action seeking to recover the aggregate face amount of the checks.

Supreme Court denied defendant’s motion to dismiss the complaint and its subsequent motion for summary judgment, concluding that the payee’s possession of the checks was not essential to its action against the depositary bank. On appeal, the Appellate Division reversed and dismissed the complaint. It held that requiring "delivery, either actual or constructive, [as] an indispensable prerequisite for” a conversion action under UCC 3-419 (1) (c) is consistent with the view of most authorities and supported by practical considerations (State of New York v Barclays Bank, 151 AD2d 19, 21-24). We agree.

II

It has long been held that a check has no valid inception until delivery (see, Irving Trust Co. v Leff, 253 NY 359, 363; Cowing v Altman, 71 NY 435, 441). Further, a payee must have actual or constructive possession of a negotiable instrument in order to attain the status of a holder (see, UCC 1-201 [20]) and to have an interest in it. These are established principles of negotiable instruments law (see, Papex Intl. Brokers v Chase Manhattan Bank, 821 F2d 883, 885 [1st Cir 1987]; UCC 3-410, Official Comment 5 pertaining to subd [1] [ordinarily the obligation on an instrument is not effective until delivery]; Bailey, Brady on Bank Checks § 5.1, at 5-2 [6th ed 1988]; see also, Uniform Negotiable Instruments Law § 16).

Permitting a payee who has never had possession to maintain an action against the depositary bank would be inconsistent with these principles. It would have the effect of enforcing rights that do not exist. For this reason, most courts and commentators have concluded that either actual or constructive delivery to the payee is a necessary prerequisite to a conversion action under section 3-419 (1) (c) (see, Papex Intl. Brokers v Chase Manhattan Bank, supra; Lincoln Natl. Bank & Trust Co. v Bank of Commerce, 764 F2d 392 [5th Cir]; Winn v First Bank, 581 SW2d 21 [Ky App 1978]; Caviness v Andes & Roberts Bros. Constr. Co., 508 SW2d 253 [Mo App 1974]; 1 White & Summers, Uniform Commercial Code § 15-5, at 757 [Practitioner’s-3d ed 1988] ["court(s) should not recognize a conversion cause of action for one who, though a payee on a check, has never received actual or constructive possession of that check”]; Bailey, Brady on Bank Checks, op. cit., § 27.8, at 27-23 [payee who has not received delivery of check cannot sue depositary bank for converting it because "only a person with rights in the instrument may claim conversion”]).

Significant practical considerations support this conclusion. Where a payee has never possessed the check, it is more likely that the forged indorsement resulted from the drawer’s negligence, an issue which could not be readily contested in an action between the payee and the depositary bank (see, Papex Intl. Brokers v Chase Manhattan Bank, supra, at 886; Lincoln Natl. Bank & Trust Co. v Bank of Commerce, supra, at 398). Moreover, as noted by the Appellate Division, the payee is not left without a remedy, inasmuch as it can sue on the underlying obligation (see, UCC 3-802 [1] [b]; Papex Intl. Brokers v Chase Manhattan Bank, supra, at 885).

Henderson v Lincoln Rochester Trust Co. (303 NY 27), on which plaintiff relies, does not support its argument in this respect. There, in concluding that the payee could maintain an action either in contract or conversion, the court did not reach the issue of nondelivery of the check. Other cases cited by plaintiff are readily distinguished. They involve situations where the plaintiff, unlike the State here, had received constructive possession of the check through delivery to the payee’s agent, to a copayee, or to a coindorsee (see, e.g., Lund’s, Inc. v Chemical Bank, 870 F2d 840 [2d Cir] [delivery to coindorsees]; United States v Bankers Trust Co., 17 UCC Rep Serv 136 [ED NY 1975] [delivery to copayee]; Burks Drywall v Washington Bank & Trust Co., 110 Ill App 3d 569, 442 NE2d 648 [1982] [delivery to copayee or agent]; Thornton & Co. v Gwinnett Bank & Trust Co., 151 Ga App 765, 260 SE2d 765 [1979] [delivery to agent]).

Plaintiff maintains, however, citing language in Burks Drywall (442 NE2d, supra, at 652) and Thornton (260 SE2d, supra, at 767), that, based solely on its status as named payee and intended beneficiary of the checks, it has a sufficient interest to bring a conversion action under UCC 3-419 (1) (c) or a common-law action for money had and received. We believe such a rule would be contrary to the underlying theory of the UCC and, to the extent that the cases cited by plaintiff suggest it, we decline to follow them. Plaintiff’s contention that depositary banks could frequently avoid liability for paying over forged indorsements — if payees could not bring suit against them in the absence of delivery — is unfounded. The depositary bank could still be liable to the drawee bank (UCC 3-417 [1] [a]; 4-207 [1] [a]) and to the drawer, in certain circumstances where the forged indorsement was effective (see Underpinning & Found. Constructors v Chase Manhattan Bank, 46 NY2d 459, 464-466).

Nor are we persuaded by plaintiff’s suggestion that permitting a suit under UCC 3-419 (1) (c) by a payee not-in-possession would promote judicial economy and avoid circuity of action. On the contrary, relegating such a payee to a suit against the drawer on the underlying obligation would give full effect to the UCC’s loss allocation scheme by furthering the aim of placing ultimate responsibility on the party at fault through an orderly process in which each defendant in the transactional chain may interpose the defenses available to it (see, Hartford Acc. & Indem. Co. v American Express Co., 74 NY2d 153, 165; Prudential-Bache Sec. v Citibank, 73 NY2d 263, 269; 1 White & Summers, op. cit., §§ 15-1 — 15-5, 16-7; see also, SOS Oil Corp. v Norstar Bank, 76 NY2d 561,571-572 [decided today]). And requiring a payee-not-in-possession to sue the drawer on the underlying claim would actually avoid circuity of action in some instances — for example, where the drawer’s suit against the drawee bank is barred by valid defenses (see, UCC 3-406, 4-406) or where the drawer has an effective defense against the payee’s claim. This concern has particular pertinence here where — as the Appellate Division observed (151 AD2d, at 20) —it is contended that some of the checks were for inflated or nonexistent tax liabilities for which the drawers-taxpayers would have valid defenses against the State. In such cases, permitting a payee-not-in-possession to sue the depositary bank at the other end of the transactional chain would only produce unnecessary litigation. Accordingly, we agree with the Appellate Division that the rule requiring actual or constructive possession by a payee as a prerequisite for a suit against the depositary bank is preferable (see, Papex Intl. Brokers v Chase Manhattan Bank, supra; Lincoln Natl. Bank & Trust Co. v Bank of Commerce, supra) and we adopt it.

Ill

Plaintiff contends, nevertheless, that even if possession is a prerequisite to a cause of action by a named payee against a depositary bank, it should prevail because the drawers’ delivery of the checks to Caliendo constituted constructive delivery to the State. It is a general rule that putting a check in the hands of the drawer’s own agent for purpose of delivery to the payee does not constitute delivery to the payee (see, Papex Intl. Brokers v Chase Manhattan Bank, 821 F2d, at 886, supra; Lincoln Natl. Bank & Trust Co. v Bank of Commerce, 764 F2d, at 398, supra; Daggett v Simonds, 173 Mass 340, 53 NE 907 [1898]); this is so because the drawer has control of the agent and the check is revocable and ineffective until the agent delivers it (see, Caviness v Andes & Roberts Bros. Constr. Co., 508 SW2d 253, 256, supra [Mo App 1974]; 11 Am Jur 2d, Bills & Notes, § 278). Here, of course, Caliendo had no agency or other relationship with the State which might have imputed his possession of the checks to it. Indeed, the State does not contend that it knew of Caliendo’s dealings with the drawers or even of the checks’ existence. Thus, applying these general rules, the State’s claim must fail.

Wolfin v Security Bank (170 App Div 519, affd 218 NY 709), relied on by plaintiff, is not to the contrary. There, the drawer of the check gave it to the named payee with instructions that it be indorsed and delivered to plaintiff. Unlike the case at bar —where the checks were never delivered to the payee but remained in the hands of the drawers’ accountant and agent— in Wolfin the drawer retained no control after the check was delivered to the named payee as a fully negotiable instrument (Wolfin v Security Bank, 170 App Div, at 521, supra; UCC 1-201 [14], [20]; 3-102 [1] [a]).

Finally, contrary to plaintiff’s contentions, it cannot recover under a theory of unjust enrichment or quasi contract. It is true that, in creating a statutory right to bring a conversion action for payment over a forged indorsement (see, UCC 3-419 [1] [c]) at the time of the Uniform Commercial Code’s enactment, the Legislature did not intend to abrogate the payee’s pre-Code common-law rights to sue in assumpsit, for money had and received or unjust enrichment (see, Hechter v New York Life Ins. Co., 46 NY2d 34, 37-39; and see, Restatement of Restitution, Introductory Note, at 5-9). This does not help plaintiff, however.

The theory of an action in quasi contract "rests upon the equitable principle that a person shall not be allowed to enrich himself unjustly at the expense of another. * * * It is an obligation which the law creates, in the absence of any agreement, when and because the acts of the parties or others have placed in the possession of one person money, or its equivalent, under such circumstances that in equity and good conscience he ought not to retain it” (Miller v Schloss, 218 NY 400, 407 [emphasis added]; see, Restatement of Restitution § 1, at 12-15). The general rule is that "the plaintiff must have suffered a loss and an action not based upon loss is not restitutionary” (Restatement of Restitution § 128, comment f, at 531 [emphasis added]). On this point, plaintiff’s action in quasi contract, like its action for conversion under UCC 3-419 (1) (c), must fail. The checks were never actually or constructively delivered to plaintiff. It, therefore, never acquired a property interest in them and cannot be said to have suffered a loss.

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

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone and Bellacosa concur.

Order affirmed, with costs.

      . Defendant Barclays Bank of New York, N. A. is a successor to Bankers Trust Company. Henceforth, "defendant” will refer to Barclays and Bankers Trust as one entity.

      . Plaintiffs complaint is framed as one for money had and received. Supreme Court in denying defendant’s dismissal motion under CPLR 3211 (a) (7), however, treated the action as one in contract, alone, or in both contract and conversion. Although, in its brief, plaintiff now appears to view the action primarily as one for money had and received or quasi contract, it cites cases and authorities pertaining to a conversion action under UCC 3-419 (1) (c), and the Appellate Division apparently viewed it as such. For purposes of resolving the legal question before us — the effect of lack of delivery of the checks — it makes no difference whether plaintiffs action is under UCC 3-419 (1) (c) or under some common-law theory. The result is the same (see, part III, infra). We accordingly discuss the authorities as being applicable to both the statutory and common-law theories.

      . Lund’s involved three checks, two of which were indorsed and delivered to coindorsees of plaintiff, thus, giving plaintiff sufficient possession to maintain a conversion action with respect to those checks under UCC 3-419 (1) (c). A third check indorsed solely to Lund’s, Inc. was determined on remand not to have been constructively delivered to plaintiff Lund. As to that check, the action was dismissed in reliance upon the Appellate Division’s decision in this case (see, Lund v Chemical Bank, 1990 WL 17711 [SD NY]).

      . The only other cases cited by plaintiff are distinguishable or do not support its contention: Charmglow Prods. v Mitchell St. State Bank (687 F Supp 448 [ED Wis 1988] [checks given to a nonagent third party either in its capacity as sole payee with intended delivery to plaintiff or as plaintiff’s copayee ruled as constructive delivery to plaintiff]) and Matter of Estate of Balkus v Security First Natl. Bank (128 Wis 2d 246, 381 NW2d 593 [1985] [notes found among the possessions of their maker after his death — but never delivered to payee or to an independent third party — held not to have been constructively delivered to payee]).

      . Allen v Mendelsohn & Son (207 Ala 527, 93 So 416 [1922]), relied on by plaintiff, is not in point. The suit was not against the depositary bank. Rather, the case involved a dispute over the proceeds of a stolen check between the named payee and the defendants who held the proceeds which had been paid to them over a forged indorsement. In holding that, as between the parties, the plaintiffs’ rights were superior, the court noted that the forged indorsement passed no title to defendants and that they had no property interest in the check or its proceeds.


source: Caselaw Access Project

author: Bellacosa, J.

license: Public Domain

text:
    In the Matter of Sandy Williams, Appellant, v Raymond E. Cornelius, as Justice of the Supreme Court, Respondent.
    Argued September 12,1990;
    decided October 23, 1990

      POINTS OF COUNSEL

      Edward J. Nowak, Public Defender (David Juergens, Kathleen McDonough, Drew R. DuBrin, Brian Shiffrin and James Eckert of counsel), for appellant.

      Robert Abrams, Attorney-General (Denise A. Hartman, O. Peter Sherwood and Peter H. Schiff of counsel), for respondent.
   OPINION OF THE COURT

Bellacosa, J.

The appeal, here by this Court’s grant of leave to petitioner, is from a judgment of the Appellate Division dismissing as moot the proceeding seeking to review a summary criminal contempt adjudication. We conclude that petitioner is entitled to her day in court on the merits and, therefore, reverse.

The facts alleged in the petition verified by petitioner and the underlying transcript of the contempt proceeding attached to the petition as an exhibit present petitioner’s case. She is a 20-year-old black woman who attended Supreme Court in Rochester as a spectator at a friend’s criminal calendar call. She was seated with two companions in the back of the courtroom when a female court officer approached and asked them why they were present. They explained they were waiting for a friend’s case to be called and identified it by name. The officer walked away and, after an undetermined amount of time, petitioner, while talking with her companions, used the epithet "white bitch” — that was the basis of her being found in criminal contempt of the court. The remark was overheard by an Assistant District Attorney, who then left his place and spoke to the female court officer who, in turn, reported something to the Judge at the Bench. The Judge interrupted his calendar call to inquire:

"the court: Deputy, I would like to know the name of the lady in the blue.
"the court deputy: Please stand and give the Court your name.
"ms. williams: Sandy Williams.
"the court deputy: Sandy Williams, your Honor.
"the court: Miss Williams, I am going to ask you to remain. I have several other matters. Then we have a matter to address.”

At the conclusion of the calendar call, the Judge summoned Ms. Williams alone to the Bench, her companions having been excused and the courtroom doors locked. As far as the record shows from the exhibit attached to the petition, the entire colloquy of what transpired between petitioner and respondent is as follows:

"the court: State your name again, please.
"ms. williams: Sandy Williams.
"the court: Miss Williams, how old are you?
"ms. williams: Twenty.
"the court: I believe that you committed a criminal contempt in the presence of the Court by calling my court officer a 'white bitch5. You have the right to speak. Do you wish to say anything?
"ms. williams: He [the Assistant District Attorney] didn’t hear me call her one. He just heard me say 'the white b-i-t-c-h’ [the letters were spelled out but the word not uttered].
"the court: Whom were you referring to?
"ms. williams: I wasn’t talking to him. I was talking to my friends.
"the court: Was there any other white female around you? "ms. williams: She had already left for the hall.
"the court: I advise you, Miss Williams, that I do consider that a contempt of this Court in the presence of the Court. I do hereby impose a summary contempt on you. Is there anything you would like to say?
"ms. williams: No.
"the court: I hereby sentence you to the Monroe County Jail for five days.
"ms. williams: Five days?
"the court: Five days. Be seated in the jury box.”

The Judge committed Ms. Williams to the Monroe County Jail to start serving the sentence immediately. Three days later she was released.

Petitioner timely commenced this CPLR article 78 proceeding to review the Judge’s action against her. On the respondent Judge’s motion, the Appellate Division dismissed the proceeding for mootness. We reinstate the petition and remit the case, the respondent having expressly asked for the chance to answer on the merits if the mootness motion failed (CPLR 7804 [fp.

A court has the summary power to punish contemptuous behavior which takes place "in its immediate view and presence, and directly tend[s] to interrupt its proceedings” (Judiciary Law § 750 [A] [1]). The power is extraordinary, because it authorizes the Judge to act as prosecutor, jury and Judge at once, and to impose incarcerative sanctions without affording an alleged contemnor the right to an evidentiary hearing, the right to counsel, or the opportunity for adjournment to prepare a defense. This unique authority has historically been justified, based on the urgency of the situation, as a necessary tool to preserve the immediate order in a courtroom (Matter of Katz v Murtagh, 28 NY2d 234, 238).

The prescribed article 78 challenge to review such judicial action is not rendered moot merely because the sentence has been served, as it is the only method of review (Judiciary Law § 752). Inasmuch as lasting consequences potentially flow from the adjudication, the proceeding remains ripe for judicial review (Sibron v New York, 392 US 40; Matter of Katz v Murtagh, supra, at 236; see also, Lindsay v New York State Bd. of Parole, 48 NY2d 883).

In this case, petitioner served three days of the five-day sentence immediately. That did not eradicate the official public rebuke, a continuing blot on her record and reputation. The Judge’s action against her, if not subjected to scrutiny and correction, if warranted, would remain a matter of permanent record, at least with the court, the county jail, the prosecutor’s office, and the local Sheriff’s Department. Unless she is given the opportunity to vacate the adjudication by the only judicial review afforded to her, she may be required in honesty and in law to disclose her incarceration and conviction on future job applications and applications for school, as well as any license or permit applications. The adjudication could no doubt be used to attack her credibility as a witness or party in a court of law. Also, if she were ever charged with a crime, this matter could reemerge as a pall, for example, on bail, plea or sentencing aspects of such a case.

Strong policy reasons exist, also, for holding such review of contempt proceedings not moot. For were we to conclude otherwise and agree to dismiss the article 78 proceeding on the procedural bar, we would thus insulate from merits review the exercise of one of the most powerful and extraordinary judicial weapons. The contempt power is surely necessary but so, too, is the objective, distanced review of its invocation (see, Sibron v New York, 392 US, supra at 52-53). By allowing CPLR article 78 review in this case, where it appears especially vital to the protection of petitioner’s basic rights and to the validation of the process itself, we do not diminish the potency of the tool or the necessity for its availability and proper exercise.

Respondent should have the opportunity to answer petitioner’s argument that the summary contempt adjudication should be vacated because her conduct did not constitute criminal contempt under Judiciary Law § 750 (A) (1). Her argument rests on allegations and her copy of the contempt proceeding transcript which, if they constitute the true and complete record and if proven, show that the conduct did not take place in the court’s "immediate view and presence”. Petitioner emphasizes in her petition that the Judge did not hear the alleged epithet, and that she answered his demand for an explanation by not even repeating the word but spelling out its letters. There is nothing in the record, prepared solely from petitioner’s side at this pleadings stage, showing that the Assistant District Attorney and the court officer were sworn and gave any statement as to what actually lead up to the contempt adjudication or what was said between themselves and to the Judge. Clearly, Judiciary Law § 750 (A) (1) requires more than is presently available and presented (see, Johnson v Mississippi, 403 US 212, 215; Matter of Douglas v Adel, 269 NY 144, 146-147; see also, Sedler, The Summary Contempt Power and the Constitution: The View From Without and Within, 51 NYU L Rev 34, 43).

Respondent, of course, must be given his full procedural entitlements, including the opportunity to answer on the merits.

Accordingly, the judgment of the Appellate Division should be reversed, with costs, and respondent’s motion to dismiss denied.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone and Hancock, Jr., concur.

Judgment reversed, etc.


author: Per Curiam. Kaye, J.

text:
    In the Matter of Alfred DiNatale et al., Respondents, v Judith A. Levitt, as Director of the New York City Department of Personnel, et al., Appellants.
    Argued September 11,1990;
    decided October 23, 1990

      POINTS OF COUNSEL

      Victor A. Kouner, Corporation Counsel (Patrick L. Taylor and Pamela Seider Dolgow of counsel), for appellants.

      Leonard A. Shrier and Robert Perez-Wilson for respondents.
   OPINION OF THE COURT

Per Curiam.

Petitioners are employees of the New York City Department of Parks and Recreation. On May 31, 1986, each took a competitive civil service examination administered by respondents for promotion to Park Supervisor. They were subsequently notified that they had scored below the passing grade of 70. Petitioners then commenced this article 78 proceeding seeking an order directing respondents to review their examination results pursuant to the administrative review procedures contained in section 50-a of the Civil Service Law. The parties stipulated to limit the proceeding to a challenge to respondent Personnel Director’s grading of 13 of the examination questions and to the appropriate remedy should an error be found in the grading.

Supreme Court found that 10 of the challenged questions were wrongly scored and directed respondents to regrade the exam and compile a special eligible list containing petitioners’ names. It directed that the list remain in effect for four years following its promulgation, or for as long as necessary to reach all persons on it who scored equal to or higher than the last person appointed from the original list, whichever period was shorter. The Appellate Division affirmed. On appeal to this Court, respondents contend that the courts below erred in fixing the four-year duration of the special eligible list.

The State Constitution requires that all appointments and promotions in the civil service, and its subdivisions, shall be made according to merit and fitness to be ascertained, as far as practicable, by competitive examination (NY Const, art V, §6). After examination, the names of successful candidates are placed on the eligible list in order of their grades and appointments must be made from among the top three names (Civil Service Law § 50 [6]; §§ 60, 61). Under section 56 of the Civil Service Law, the duration of an eligible list shall be fixed at 1 to 4 years as determined by the administrative board or personnel officer to whom the function of developing an eligible list has been delegated (see, Hurley v Board of Educ., 270 NY 275, 280; see also, Matter of Mena v D'Ambrose, 44 NY2d 428, 433). In this case respondent set the duration of the original Park Supervisor list at four years.

Petitioners do not contest the Personnel Director’s authority to set the duration of the eligible list in the first instance (see, Civil Service Law § 56). Rather, they contend that when the court orders a special eligible list it also has the discretion to establish the duration of the list. They successfully contended in the courts below that to preserve the integrity of the civil service system the special list should have the same duration as the original. Supreme Court directed that "[t]he special list shall have a duration of four years from the date on which it is promulgated, or as long as is necessary to reach for appointment all persons whose regraded examinations place them at a level equal to or higher than the last person appointed from the expired original list, whichever period is shorter.”

Under section 17 (4) of the Civil Service Law, respondent Levitt, as Personnel Director of New York City, has been delegated the function of conducting examinations and establishing eligible lists for the position of Park Supervisor and she has the discretion to determine how long those lists shall remain in force, limited only by the requirement that the lists continue for not less than one nor more than four years (see, Hurley v Board of Educ., 270 NY 275, supra; Matter of Mena v D'Ambrose, 44 NY2d 428, supra; Civil Service Law § 56). There is nothing in our opinion in Mena which requires that the special list have the same duration as the original list. On the contrary, we held there that petitioners were "entitled to the continuation of a special eligible list * * * for a period consistent with section 56 commencing at the time when the list was corrected”, i.e., 1 to 4 years (Matter of Mena v D'Ambrose, supra, at 433, see also, Matter of Deas v Levitt, 73 NY2d 525, 534).

This interpretation is consistent with the purpose behind the merit and fitness requirements upon which civil service rules rest. As we noted in Hurley, "[a] competitive examination may demonstrate merit and fitness, at the time of the examination. As time passes, its value as a test of merit and fitness diminishes. Others may, then, be better prepared and more fit to fill a position than those who are upon the list. The Legislature, or administrative boards or officers, to whom that function has been delegated * * *, may determine how long an existing list shall remain in force” (270 NY, at 280). Some lists age quickly as the nature of a job and the skills required to perform it change; others retain their value for a longer period. The agency authorized to administer the competitive examination and to establish the eligible list is best positioned to judge the length of the special list depending on particular skills and knowledge necessary for the job, the needs of the relevant agency, the number of appointments available, as well as a variety of other factors relevant in deciding the utility of the list as a test of "merit and fitness” and its reasonable duration. Indeed, even greater flexibility may be necessary and desirable in the case of specially ordained lists, because unlike original lists, they may be promulgated years after the pertinent examination, thus diminishing their value as a test of merit and fitness. These are considerations which should be weighed by affected Personnel Directors, not Judges.

The result of the rule proposed by the dissenters is that although the original list of candidates eligible for promotion to Park Supervisor was established in October 1986, appointment of those placed on the special list could be made long after the qualifications tested or the needs of the position have changed and years after the statutory four-year maximum provided in the Civil Service Law has expired. In many cases the result of applying such a rule could be even more aggravated than the result proposed here (see, e.g., Andriola v Ortiz, 156 AD2d 241 [judgment directing creation of special list entered seven years after test]).

Accordingly, we hold that once a petitioner has successfully attacked the validity of an original eligible list and a special list has been ordered judicially to remedy error, the duration of the special list is to be determined by the municipal commission or personnel officer charged with that task in the first instance in accordance with section 56 of Civil Service Law.

Accordingly, the order of the Appellate Division should be modified, with costs to respondents, in accordance with the opinion herein, and, as so modified, affirmed.

Kaye, J.

(dissenting in part). No one disputes the legal authority of the Personnel Director, under the Civil Service Law, to administer examinations, establish eligible lists, and determine how long those lists should remain in force. What is at issue here, however, is an equitable remedy — a special eligible list established by judicial decree in order to redress the erroneous grading of a civil service examination, where the Civil Service Law provides no remedy — and the judicial discretion necessary to effectuate that remedy. The Court now eviscerates that judicial remedy by holding that the duration of a special eligible list cannot be fixed by the court but, like the original list, must also be left for the discretion of the Personnel Director.

Petitioners here do not argue that special eligible lists must have the same duration as the original lists. Instead, they argue — correctly in my view — that the court should have the discretion to fashion the appropriate equitable remedy within the limits of the Civil Service Law, as the court did here in providing that the special list should have a life of four years "or as long as is necessary to reach for appointment all persons whose regraded examinations place them at a level equal to or higher than the last person appointed from the expired original list, whichever period is shorter.” A similar approach was taken in Matter of Mena v D'Ambrose (44 NY2d 428), where we allowed a special list to continue past expiration of the original list, because that remedy was necessary to redress the violation and maintain the integrity of the system, which must be the paramount concern. Our holding today would disallow the flexibility of Mena, as well as the discretionary remedy fashioned by the Trial Judge in this case.

The majority’s reliance on Hurley v Board of Educ. (270 NY 275), and particularly the concern expressed regarding the time-value of eligible lists, is entirely misplaced. In Hurley, the Legislature was attempting to extend an expired list, in clear derogation of constitutional mandate. Here, as in Mena, it is the agency itself that has violated the constitutional mandate, and the paramount concern must be to right the wrong. The majority now fears that appointments "could be made long after the qualifications tested or the needs of the position have changed and years after the statutory four-year maximum provided in the Civil Service Law has expired.” (Majority opn, at 552.) Yet we confronted — and explicitly rejected — that very argument in Mena (44 NY2d, at 433), opting instead for the court’s discretion to impose a remedy that redressed the violation.

I cannot agree that, in these circumstances, allowing the offending agency, rather than the court, discretion to determine the duration of a special list can in any sense promote the integrity of the civil service system. To the contrary, where the merit and fitness requirements have been violated by the agency, allowing the court proper discretion to fashion the remedy both safeguards and advances the objectives of the civil service system.

I would affirm the Appellate Division order.

Judges Simons, Alexander, Titone and Bellacosa concur in Per Curiam opinion; Judge Kaye dissents in part and votes to affirm in a separate opinion in which Chief Judge Wachtler and Judge Hancock, Jr., concur.

Order modified, with costs to appellants, in accordance with the opinion herein and, as so modified, affirmed.


author: Hancock, Jr., J.

text:
    The People of the State of New York, Respondent, v Albert Wesley, Appellant.
    Argued September 7,1990;
    decided October 23, 1990

      POINTS OF COUNSEL

      Carolyn Connors Balowitz, Linda S. Reynolds and Barbara Davies Eberl for appellant.

      Kevin M. Dillon, District Attorney (Susan D. Nusbaum and John J. DeFranks of counsel), for respondent.
   OPINION OF THE COURT

Hancock, Jr., J.

Defendant was convicted after a jury trial of second degree manslaughter (Penal Law § 125.15 [1]), second degree assault (Penal Law § 120.05 [2]), and fourth degree criminal possession of a weapon (Penal Law § 265.01 [2]). His sole contention on appeal is that the court’s jury charge on the defense of justification (Penal Law § 35.15) employed an improper standard for determining the reasonableness of defendant’s belief that it was necessary to use deadly physical force. We agree with defendant that the trial court’s instruction failed to satisfy fully the requirements of Penal Law § 35.15 as explained in People v Goetz (68 NY2d 96, 112-115). Section 35.15 requires an assessment of reasonableness which must be determined from the point of view of the particular defendant under the standard of a reasonable person in defendant’s circumstances at the time of the incident. Accordingly, there should be a reversal and a new trial.

I

In an indictment dated November 8, 1985, defendant was charged with the second degree murder of Eric Stone, the second degree assault of Keith Robinson, and fourth degree criminal possession of a weapon. The trial testimony, viewed in a light most favorable to defendant (see, People v Collice, 41 NY2d 906), revealed that defendant, a 19-year-old college student, was on the porch of a house in Buffalo with Diane Jackson, Jelean McMillan, and Arlene Woods. Woods, who had a knife in her possession, got into an argument with Jackson. The argument continued as Jackson and Woods walked away from each other. Suddenly, Woods doubled back after Jackson and threatened to stab her. Defendant managed to get the knife away from Woods and placed it in a paper bag.

At about that time, three male teen-agers arrived on the scene. Two of these youths — Eric Stone and Keith Robinson— began calling defendant "faggot” and Woods a lesbian. Despite defendant’s pleas to be left alone, Stone, Robinson and others continued shouting epithets at defendant as he walked down the street. Stone and Robinson also threatened defendant, saying "We’ll Tuck’ you up” and "We’ll kick your ass”.

Stone left the scene for a few minutes and returned carrying a stick (sometimes referred to as a pipe), 2 to 2 Vi feet in length and 1 to 3 inches in diameter. After more argument, Stone struck defendant with the stick, and defendant stabbed him in the chest. Stone fell to the ground and dropped the stick. Robinson then picked up the stick and began chasing defendant out of the area where the stabbing had taken place. When Robinson returned, he had been stabbed in the hand. Stone died as a result of the stab wound. Defendant was arrested several hours later.

At the precharge conference, the Trial Judge declined to give the defense’s proposed justification charge, stating that the proposed charge was not required under People v Goetz (68 NY2d 96, supra). The Judge told both attorneys that he would charge in accordance with Goetz, but was unable at that time to state the precise language. The following is that portion of the court’s charge under section 35.15 which pertains to the requirement of reasonableness:

“You have heard the conflicting stories told by the witnesses as to what actually happened, and you must consider these stories under the rules of law as I have explained them to you. Having decided in your own minds that what truly occurred, you must then decide whether there was legal justification for the Defendant’s alleged acts.
In order to find justification for the Defendant’s acts, you must find that he believed his conduct necessary to defend himself from what he reasonably believed to be an unprovoked physical assault against himself even if he was mistaken in his conclusion that the victim was about to assault him. As long as he reasonably believed that such assault was about to take place, he was justified in using physical force to repel such an assault. If from all of the testimony you have heard, you believe that the victim’s conduct was provoked by the Defendant himself with an intent to cause a physical injury to the victim, or that the Defendant was the initial aggressor in the altercation, then such conduct was not legally justifiable to warrant a verdict of not guilty.”

The defense exception stated, among other things, that the charge “did not direct the jury to place themselves, or a reasonable person in [defendant’s] place, and the Goetz decision states * * * a reasonable person * * * is now the standard, but there still is that subjective element * * * and you’re looking at it from [defendant’s]point of view” (emphasis added). The jury convicted defendant of second degree manslaughter, second degree assault, and fourth degree criminal possession of a weapon. The Appellate Division affirmed and a Judge of this Court granted defendant leave to appeal.

II

In People v Goetz (68 NY2d 96, supra), we concluded that section 35.15 "retains an objective element” (People v Goetz, supra, at 112) for assessing the reasonableness of defendant’s belief in the necessity for use of deadly force. But, in rejecting the argument that the standard of reasonableness should be purely subjective, we emphasized that the statute requires a determination of reasonableness that is both subjective and objective (id., at 113-115). The critical focus must be placed on the particular defendant and the circumstances actually confronting him at the time of the incident, and what a reasonable person in those circumstances and having defendant’s background and experiences would conclude (see, 1 CJI[NY] PL 35.00, Introductory Comment, at 848-849).

To determine whether a defendant’s conduct was justified under Penal Law § 35.15, a two-step inquiry is required. The jury must first determine whether defendant actually believed that deadly physical force was necessary (see, People v Goetz, supra, at 115). If the People fail to meet their burden of proving that defendant did not actually believe that the use of deadly physical force was necessary, then the jury must move to the second step of the inquiry and assess the reasonableness of this belief (id., at 115).

We held in Goetz that Penal Law § 35.15 requires a jury to consider both subjective and objective factors in determining whether a defendant’s conduct was reasonable. We stated that "a determination of reasonableness must be based on the 'circumstances’ facing a defendant or his 'situation’ * * * [A] jury should be instructed to consider this type of evidence in weighing the defendant’s actions.” (Id., at 114-115.) Evidence of a defendant’s "circumstances” includes relevant knowledge that the defendant may have had about the victim, the physical attributes of all those involved in the incident, and any prior experiences that the defendant may have had "which could provide a reasonable basis for a belief that another person’s intentions were to injure or rob him or that the use of deadly force was necessary” (id., at 114).

III

In this case, the jury was never instructed that they should assess the reasonableness of defendant’s belief that he was in deadly peril by judging the situation from the point of view of defendant as though they were actually in his place. They were never told, in words or substance, that in deciding the question of reasonableness they “must consider the circumstances [that] defendant found himself in” (id., at 113) as well as defendant’s background and other characteristics and the attributes of the other persons involved (id., at 114). The Trial Judge’s repetition of the word "reasonable” and the phrase "reasonably believed” was not sufficient to inform the jurors that they should assess defendant’s circumstances from defendant’s position. The charge did not direct the jury’s attention to the factors that we outlined in Goetz as critical to the jury’s consideration of the defendant’s circumstances, and did not inform the jurors that they should mentally place themselves in defendant’s circumstances when judging reasonableness.

We are unpersuaded by the People’s contention that a subjective element was sufficiently injected into the charge on reasonableness in the court’s instruction that the jury must consider "the conflicting stories told by the witnesses” in deciding what truly occurred. This instruction was no more than a reiteration of the general charge to the jury on its duty to resolve conflicts in the testimony and it was not related to the particular instruction on justification which followed.

The People’s alternative argument that the deficiency in the justification charge should be treated as harmless error is unavailing. Consideration of the factors required by Goetz (see, People v Goetz, supra, at 113-115), including defendant’s background and characteristics and the circumstances confronting him at the time of the incident — given the heightening tensions and the threats and epithets — might have been significant in the jury’s assessment of the reasonableness of defendant’s belief that he was in peril. In view of the sharply conflicting testimony of the witnesses, we cannot say that the proof of guilt was so forceful and compelling that, had a proper and complete justification instruction been given, the result would not have been different (see, People v Crimmins, 36 NY2d 230, 241-242).

Accordingly, the order of the Appellate Division should be reversed and a new trial ordered.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone and Bellacosa concur.

Order reversed, etc.


author: Kaye, J.

text:
    SOS Oil Corp., Respondent, v Norstar Bank of Long Island, Appellant.
    Argued September 12,1990;
    decided October 18, 1990

      POINTS OF COUNSEL

      Kevin P. Simmons, Gilbert Henoch, Michele Gapinski, Nina A. Kannatt and John Biedermann for appellant.

      Thomas J. Quigley and Joseph DiBenedetto for respondent.
   OPINION OF THE COURT

Kaye, J.

Defendant, Norstar Bank of Long Island, in paying a $255,000 check, erroneously debited the drawer and credited the payee (plaintiff, SOS Oil Corporation) with $25,000 instead of the face amount of the check. The bank’s error went undetected for more than a year, during which time the drawer closed its account with Norstar and ceased doing business. The issue before us is whether SOS was correctly awarded summary judgment, under UCC 4-302, for the $230,000 discrepancy, or whether the bank’s defenses gave rise to a triable issue of fact.

The following facts are uncontested. SOS during 1984 had an ongoing arrangement to sell wholesale petroleum products to Conlo Services Corporation. Owing to the large volume of sales, a "running account” was maintained between SOS and Conlo. To facilitate Conlo’s payments, SOS opened a checking account with Norstar, where Conlo also maintained an account, and Conlo deposited its payments directly into SOS’s account, apparently retaining the deposit slips. Norstar thus functioned both as payor bank (UCC 4-105 [b]) in accepting presentment of Conlo’s checks for payment, and as depositary bank (UCC 4-105 [a]) in accepting deposits of Conlo checks into SOS’s account, although it performed its separate functions without regard to the fact that it was doing both. This appeal centers on Norstar’s role as payor bank in paying Conlo’s check, but the unusual facts call upon us also to take note of its role as depositary bank in encoding the check.

In connection with opening its account, SOS completed and adopted a "Corporate Resolution” on a Norstar form, which among other things named the SOS officers authorized to make loans and withdrawals on behalf of the corporation. The resolution began with a declaration that SOS designated Norstar "as a depository,” and in paragraph 9 it established notification and time requirements for bringing suit against the bank for claimed errors in the customer’s statements of account. Unless written notification were given to the bank within 14 days and suit commenced within one year of delivery of a statement, according to paragraph 9 of the "Corporate Resolution” the statement as rendered would be considered correct for all purposes and Norstar would not be liable to SOS for any errors in that record.

On July 9, 1984, Conlo deposited into SOS’s account its check drawn on its account at Norstar, payable to SOS, in the amount of $255,000. The amount was correctly indicated on the deposit slip prepared by Conlo as well as on the check itself, both in numbers and in script. Norstar then encoded the check mechanically — meaning the bank wrote the amount on the check in computer-readable magnetic ink, which permitted automated processing (see generally, 1 White & Summers, Uniform Commercial Code § 17-3, at 846 [Practitioner’s-3d ed 1988]; Bailey, Brady on Bank Checks § 19.2 [6th ed 1987]; Clark, Bank Deposits, Collections and Credit Cards |[ 10.5, at 10-8 [rev ed 1981]). Instead of $255,000, however, Norstar mistakenly encoded the amount of the check as $25,000, which amount was then credited to SOS and debited to Conlo. The $25,000 deposit appeared on SOS’s July 31, 1984 statement from Norstar.

Months later SOS discovered the error, when a dispute arose with Conlo as to how much of their "running account” balance had been paid, whereupon SOS asked Norstar for a copy of the deposit slip and check for the July 9 transaction. On October 31, 1985, SOS brought the error to Norstar’s attention and demanded the $230,000 difference. By that time, Conlo’s account at Norstar had been closed for more than a year and Conlo had gone out of business.

Norstar refused to pay, resulting in the present complaint on alternative theories of Norstar’s UCC 4-302 liability as payor bank, breach of contract as depositary bank, and negligence in underencoding the check. Norstar denied liability and asserted both the notification requirements of the "Corporate Resolution” and defenses of estoppel, account stated, contributory negligence and illegality of the underlying SOSConlo transaction. The trial court granted plaintiff’s cross motion for summary judgment on its UCC 4-302 cause of action, concluding that neither the bank’s contractual defense nor its remaining defenses were valid against that statutory claim. The Appellate Division affirmed, as do we.

Uniform Commercial Code § 4-302

The Uniform Commercial Code imposes distinct accountability on payor banks, providing in section 4-302 that: "In the absence of a valid defense such as breach of a presentment warranty (subsection [1] of Section 4-207), settlement effected or the like, if an item is presented on and received by a payor bank the bank is accountable for the amount of * * * a demand item other than a documentary draft whether properly payable or not if the bank, in any case where it is not also the depositary bank, retains the item beyond midnight of the hanking day of receipt without settling for it or, regardless of whether it is also the depositary bank, does not pay or return the item or send notice of dishonor until after its midnight deadline”.

Absent certain defenses, a payor bank, even when also functioning as a depositary bank, may by the operation of UCC 4-302 be held accountable to a payee for the amount of a check presented for immediate payment when it fails to pay, return or send notice of dishonor before the midnight deadline —that is, midnight of the next banking day following the banking day on which the bank receives the check (UCC 4-104 [1] [h]). A payor bank’s delay is thus tantamount to final payment of the item according to its tenor (see, UCC 4-213 [1] [d] and 4-301; see also, Bank Leumi Trust Co. v Bank of Mid-Jersey, 499 F Supp 1022, affd 659 F2d 1065 [3d Cir]; Third Century Recycling v Bank of Baroda, 704 F Supp 417 [SD NY]; Clark, op. cit, ]f 5.02 [2], at 5-63 [1990]). The statute makes the bank fully accountable whether it has paid nothing or — as here— something less than the face amount of the instrument (see, Georgia R. R. Bank & Trust Co. v First Natl. Bank & Trust Co., 139 Ga App 683, 229 SE2d 482, affd 238 Ga 693, 235 SE2d l).

The midnight deadline rule of UCC 4-302 places a heavy burden on payor banks — one that exceeds that of depositary or collecting banks, which can reduce their obligation by the amount that could not have been recovered had ordinary care been used (see, UCC 4-103 [5]; see also, 6 Hawkland, Leary & Alderman, UCC Series § 4-302:04, at 69 [art 4]). The heavy burden imposed by UCC 4-302 serves important commercial purposes: it expedites the collection process by motivating banks to process instruments quickly, and it firms up the provisional credits received by each bank in the collection chain, thereby supplying a key element of certainty in commercial paper transactions (see, David Graubart, Inc. v Bank Leumi Trust Co., 48 NY2d 554, 562). By requiring that deficiencies in a drawer’s account be determined swiftly, the midnight deadline rule is a vital part of the payor bank’s role in assuring the integrity of commercial paper (see, 1 White & Summers, op. cit., § 17-2, at 825-827).

In the present case, it is undisputed that Conlo’s check and deposit slip were in all respects regular and accurate, that the only actual mistake was Norstar’s, and that Norstar retained the check past its midnight deadline. Under UCC 4-302, Norstar is therefore accountable for the face amount of the check. The only dispute is whether Norstar can by its defenses avoid accountability under UCC 4-302. We agree with both the trial court and the Appellate Division that the bank cannot, and conclude that summary judgment was properly awarded to SOS.

The "Corporate Resolution” Defense

Norstar’s primary contention on this appeal is that the "Corporate Resolution” requires reversal of the award of summary judgment in favor of SOS. The bank urges that the "Corporate Resolution” defines the terms of its relationship with SOS, that SOS agreed upon prompt written notification of any claimed error in its statements as a condition precedent to suit, and that SOS’s failure to provide notice of the $230,-000 claimed error for more than a year precludes recovery.

As in the interpretation of any document, we look for the parties’ intent within the four corners of the instrument, reading any ambiguity against the drafter — in this case Nor-star. We are also mindful that interpreting the banking form as Norstar advocates could in practical effect alter the scheme of liability under the UCC (see, 1 White & Summers, op. cit., § 18-2, at 872; see also, Sunshine v Bankers Trust Co., 34 NY2d 404, 410), and for that additional reason we read Norstar’s form strictly against the bank.

Applying those standards, we conclude that the notification requirement of paragraph 9 does not apply here. In view of that conclusion, we are not called upon to decide whether the time limitations of that paragraph could ever be a valid restriction on a customer’s claim (see, Putnam Rolling Ladder Co. v Manufacturers Hanover Trust Co., 74 NY2d 340, 349, n 2).

Paragraph 9 in relevant part reads: "Unless the Corporation shall notify the Bank in writing within fourteen calendar days of the delivery or mailing of any statement of account and cancelled check, draft or other instrument for the payment of money (hereinafter referred to as Instrument’) of any claimed errors in such statement, or that the Corporation’s signature upon any such returned Instrument was forged, or that any such Instrument was made or drawn without the authority of this Corporation or not in accordance with the signature arrangement set forth in paragraph 2(a) hereof, or that it was raised or otherwise altered, or unless this Corporation shall notify said Bank in writing within six months after the delivery, or mailing of any such Instrument that any endorsement was forged, improper, made without the authority of the endorser or missing, said statement of account shall be considered correct for all purposes and said Bank shall not be liable for any payments made and charged to the account of the Corporation or for any other errors in the statement of account as rendered to it.”

In support of its position Norstar points to the embracive language of paragraph 9 requiring timely written notice of "any claimed errors” in statements of account, the absence of which renders statements correct "for all purposes,” and immunizes the bank from liability "for any payments made and charged to the account of the Corporation or for any other errors in the statement of account as rendered to it.” (Emphasis added.) Those words, however, cannot be taken out of context. Beginning with the opening paragraph, the form devised by Norstar designates the bank "as a depository” of the corporation, and evidences an intent that it should govern the bank’s role as depositary bank paying items drawn on its customer’s account.

Paragraph 9, for example, provides that the corporation must give written notice within 14 days of delivery of "any statement of account and cancelled check, draft or other instrument for the payment of money * * * of any claimed errors in such statement, or that the Corporation’s signature upon any such returned Instrument was forged, or that any such Instrument was made or drawn without the authority of this Corporation or not in accordance with the signature arrangement set forth in paragraph 2(a) hereof, or that it was raised or otherwise altered.” Moreover, the paragraph specifies that no action can be brought against the bank to recover payment of any instrument on which any signature or endorsement "has been forged or was improper, or which was drawn, made, accepted or endorsed without the authority of the Corporation or the endorser” or not in accordance with signature arrangements with the bank unless there has been both the 14-day written notification and commencement of suit within one year "after the date when such statement and cancelled Instruments were delivered or mailed to the Corporation in the case of an authorized signature or any alteration on the face or back of the item or one and one-half years in the casé of an unauthorized endorsement.”

By its very language, paragraph 9 plainly is directed to situations where Norstar is acting as depositary and the customer receives both a statement of account and the underlying instruments of payment, such as checks, that are the basis for the claim of error — not the situation at issue here.

Other sections of the "Corporate Resolution” similarly support that conclusion — for example, the paragraph dealing with stop payment orders, the paragraph eliminating the bank’s duty to inquire regarding the use of funds drawn on the customer’s account, and the several paragraphs relating to authorized signatories. Indeed, Norstar’s argument that the time requirements are a permissible variation of SOS’s obligation to examine its bank statements under UCC 4-406 itself reveals that the resolution is concerned with payments made out of the customer’s account, where the customer will be able to compare the debit entries against the underlying items. UCC 4-406 applies "[w]hen a bank sends to its customer a statement of account accompanied by items paid in good faith in support of the debit entries” (see, UCC 4-406, official comment 7) — quite different from the present situation.

Thus, reading the "Corporate Resolution” strictly against the bank, we agree with the trial court and Appellate Division that the limitations of paragraph 9 are inapplicable here, and that this defense was properly rejected as a matter of law.

The Bank’s Remaining Defenses

Nor can Norstar avoid liability here by resort to the defenses of estoppel, account stated, contributory negligence or illegality of the underlying transaction.

Norstar urges that such defenses are allowed pursuant to UCC 1-103, which states that "[ujnless displaced by the particular provisions of [the] Act, the principles of law and equity, including * * * estoppel * * * shall supplement its provisions.” As Norstar has failed to establish any basis for the remaining defenses it has asserted, we need not reach SOS’s broader argument — addressed by the Appellate Division — that only UCC defenses would be available in a claim for breach of a bank’s statutory duty under UCC 4-302 (see, 152 AD2d 223, 227).

The primary common-law defense asserted by Norstar is estoppel. Norstar claims that SOS’s failure to report the bank’s error for more than a year, during which time Conlo closed its account and went out of business, mandates that SOS be equitably estopped from recovering against Norstar. But such a defense, if allowable at all under UCC 4-302, would require some factual showing that the bank’s failure to meet its midnight deadline was a consequence of justifiable reliance on a representation, action or failure to act on the part of SOS (see, Chrysler Credit Corp. v First Natl. Bank, 746 F2d 200, 206-207 [3d Cir]). There is no such showing here. Even looking at Norstar’s role as depositary rather than payor, there is no showing that any action by SOS in any way contributed to Norstar’s encoding error (see, e.g., Bank Leumi Trust Co. v Bally’s Park Place, 528 F Supp 349).

Norstar’s defense of account stated, similarly, raises no issue of fact relating to its UCC 4-302 liability. Norstar relies on a pre-UCC case — Potts & Co. v Lafayette Natl. Bank (269 NY 181) — concerned with a customer’s duty to examine its statement and underlying checks and report any errors to its depositary bank, and is plainly inapposite in a suit by a payee against the payor bank under UCC 4-302. Furthermore, an account stated defense (if not entirely superseded by UCC art 4) would not affect Norstar’s responsibility as depositary bank in encoding Conlo’s check, but would at best be addressed to the issue of items properly paid out of SOS’s account — which are not questioned here.

The importation of comparative negligence into the UCC has been expressly rejected by this Court (see, Putnam Rolling Ladder v Manufacturers Hanover Trust Co., 74 NY2d 340, supra). Norstar’s last proffered defense — that the underlying transaction was illegal in that SOS gave no consideration for the $255,000 check — even if supported by any factual showing —could have no effect on Norstar’s liability for failure to meet its midnight deadline, or even for the error in encoding Conlo’s check. Thus, all of Norstar’s defenses were correctly rejected as a matter of law.

Finally, the UCC objectives of promoting certainty and predictability in commercial transactions are served by the result reached here. It has been estimated that overwhelmingly all items first presented are paid (6 Hawkland, Leary & Alderman, op. cit., § 4-302:05, at 84); moreover, a payor bank ordinarily can minimize or avoid the remaining exposure by passing liability upstream to the bank that actually made the mistake (see, Bailey, op. cit., § 19.5, at 19-9; First Natl. Bank v Fidelity Bank, 724 F Supp 1168 [ED Pa], affd 908 F2d 962 [3d Cir]; but see, Bank Leumi Trust Co. v Bank of Mid-Jersey, supra). In the present case, of course, the bank suffering the loss happens also to be the one that made the mistake in the first instance.

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

Chief Judge Wachtler and Judges Simons, Alexander, Titone, Hancock, Jr., and Bellacosa concur.

Order affirmed, with costs.

      . In December 1987 Norstar also commenced a third-party action against Conlo, which has not answered. That action is not before us on this appeal.

      . The UCC 4-302 defenses, which explicitly include breach of a presentment warranty, may allow the payor bank to pass liability on to the depositary bank that made the encoding error (see, First Natl. Bank v Fidelity Bank, 724 F Supp 1168 [ED Pa]). In this case, because Norstar functioned as payor bank and depositary bank, we do not reach the issue of interbank liability.


author: Alexander, J.

text:
    Norman J. Mordkofsky, Respondent, v V.C.V. Development Corp., Appellant.
    Argued September 13,1990;
    decided October 23, 1990

      POINTS OF COUNSEL

      Nina Cangiano and Glen Feinberg for appellant.

      Norman J. Mordkofsky, respondent pro se.

   OPINION OF THE COURT

Alexander, J.

Plaintiff Norman J. Mordkofsky, the contract-vendee of a home being custom built in Sullivan County by defendant V.C.V. Development Corp., was injured when the deck of the house gave way while he was inspecting the progress of the work. He commenced this action against defendant to recover for his injuries, asserting two causes of action: negligence and violations of Labor Law §§ 200 and 241, respectively. Supreme Court denied without prejudice to renew, defendant’s motion for a change of venue, denied plaintiff’s cross motion for summary judgment and granted summary judgment dismissing plaintiff’s second cause of action, concluding that plaintiff was not a member of the class intended to be protected by those provisions of the Labor Law. On appeal to the Appellate Division, that court modified the Supreme Court order to reinstate the Labor Law cause of action and otherwise affirmed, holding that the protection afforded by sections 200 (l) and 241 (6) ***6extends to anyone lawfully frequenting an area in which construction work is being performed. The case is before us by leave of the Appellate Division upon the certified question: "Was the order of this Court, which modified the order of the Supreme Court, properly made?” For the reasons that follow, we answer the question in the negative, reverse the Appellate Division order, and reinstate Supreme Court’s dismissal of the second cause of action.

Plaintiff adopts the reasoning expressed in Corbett v Brown (32 AD2d 27 [3d Dept]) to support his position that sections 200 and 241 protect members of the general public as well as workers. In Corbett (supra, at 31) the Appellate Division determined that, although the 1962 amendment to section 241 of the Labor Law, which repealed all seven subdivisions of former section 241 and replaced them with a single sentence, provided "for the protection of a special class, namely employees, it does not do so exclusively, as it also provides for the protection of anyone lawfully frequenting the premises.” Plaintiff argues that this language, also inserted in section 200 by the 1962 amendment demonstrates that the Legislature intended to extend the protection of sections 200 and 241 of the Labor Law to the general public.

In addition, plaintiff relies on the Industrial Code (12 NYCRR 23-1.4 [b] [39]), which defines "persons lawfully frequenting” as "[a]ny person exercising a lawful right of presence or passage in an area” and asserts that such reliance is proper in interpreting the language of Labor Law §§ 200 (1) and 241 (6) (see, Lozo v Crown Zellerbach Corp., 142 AD2d 949; DaBolt v Bethlehem Steel Corp., 92 AD2d 70, lv dismissed 60 NY2d 701).

There exists support for plaintiffs expansive reading of the statute in some Appellate Division decisions (see, e.g., Kelly v Canino, 156 AD2d 948 [4th Dept] [plaintiff injured at construction site seeking counsel and comfort from his religious pastor/contractor]; DeFreece v Penny Bag, 137 AD2d 744 [2d Dept] [plaintiff seeking employment fell through hole in roof of premises]; Corbett v Brown, 32 AD2d 27, supra [3d Dept] [interpreting the 1962 version of § 241]; see also, Brennan v M.L.P. Bldrs., 262 NY 464 [protection of pre-1962 § 241 extended to plaintiff, a steamfitter, invited to jobsite for potential employment by steamfitter boss]). Yet, in all but one of these cases — Kelly v Canino (supra) — the injured plaintiff was either a worker at the premises or a person seeking employment at the jobsite.

We have held that in order to invoke the protections afforded by the Labor Law and to come within the special class for whose benefit liability is imposed upon contractors, owners and their agents (see, Zimmer v Chemung County Performing Arts, 65 NY2d 513; Allen v Cloutier Constr. Corp., 44 NY2d 290; Koenig v Patrick Constr. Corp., 298 NY 313), a "plaintiff must demonstrate that he was both permitted or suffered to work on a building or structure and that he was hired by someone, be it owner, contractor or their agent” (Whelen v Warwick Val. Civic & Social Club, 47 NY2d 970, 971).

Our holdings reflect the clear legislative history of sections 200, 240 and 241 of the Labor Law, which demonstrates that the Legislature’s principal objective and purpose underlying these enactments was to provide for the health and safety of employees. Section 200 codifies the common-law duty of an employer to provide employees with a safe place to work (Allen v Cloutier Constr. Corp., 44 NY2d 290, 299, supra; Yearke v Zarcone, 57 AD2d 457, 459 [Simons, J.], lv denied 43 NY2d 643). Sections 240 and 241 seek to "protectQ workers by placing 'ultimate responsibility for safety practices at building construction jobs where such responsibility actually belongs, on the owner and general contractor’ (1969 NY Legis Ann, at 407), instead of on workers, who 'are scarcely in a position to protect themselves from accident’ ” (Zimmer v Chemung County Performing Arts, 65 NY2d, at 520, quoting Koenig v Patrick Constr. Co., 298 NY 313, 318, supra [emphasis supplied]). Recovery under the Labor Law similarly has been barred in actions where the plaintiff was a volunteer (see, Chabot v Baer, 82 AD2d 928, affd 55 NY2d 844; see also, Attanasio v Attanasio, 126 AD2d 812; Alver v Duarte, 80 AD2d 182).

In light of the legislative history and past precedent of this Court, we conclude that plaintiff is not entitled to the protections provided by Labor Law §§200 and 241. The primary purpose of the Labor Law was the protection of workers, thus, we are not persuaded that these provisions were also intended to extend protection to a contract-vendee such as plaintiff. Because he was not an "employee” or "employed” at this site, was not a "mechanic, workingman or laborer working for another for hire” (Labor Law §2 [5]) nor one "permitted or suffered to work” (Labor Law §2 [7]) at the place of the occurrence he cannot be considered to have been within the class of persons "employed therein or lawfully frequenting” the premises entitled to the protection afforded by the "flat and unvarying duty” imposed by the Labor Law. That cases such as Zimmer, Allen, and Whelen dealt primarily with claims seeking to impose liability under the provision of Labor Law § 240 in no way diminishes their applicability here.

Accordingly, the order of the Appellate Division should be reversed, with costs, and plaintiffs second cause of action dismissed. The certified question should be answered in the negative.

Chief Judge Wachtler and Judges Simons, Kaye, Titone, Hancock, Jr., and Bellacosa concur.

Order reversed, etc.

      . Labor Law § 200 provides: 1. All places to which this chapter applies shall be so constructed, equipped, arranged, operated and conducted as to provide reasonable and adequate protection to the lives, health and safety of all persons employed therein or lawfully frequenting such places.

      . Labor Law § 241 (6) provides:
      All contractors and owners and their agents * * * when constructing or demolishing buildings or doing any excavating in connection therewith, shall comply with the following requirements: * * *
      6. All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places.


text:
    In the Matter of County of Nassau (Nassau Community College), Respondent, v New York State Public Employment Relations Board et al., Appellants.
    Argued September 5,1990;
    decided October 23, 1990

      POINTS OF COUNSEL

      Richard M. Betheil for Adjunct Faculty Association of Nassau Community College, appellant.

      Sandra M. Nathan and John M. Crotty for New York State Public Employment Relations Board, appellant.

      Peter A. Bee for respondent.
   OPINION OF THE COURT

Alexander, J.

The New York State Public Employment Relations Board (PERB) and the Adjunct Faculty Association of Nassau Community College (AFA) appeal, pursuant to leave granted by the Appellate Division, from a judgment of that court (with one Justice, dissenting in part) annulling a determination of PERB declaring that Nassau County had engaged in an "improper employer practice” (see, Civil Service Law § 209-a [1] [e]; § 205 [5] [d]) by allegedly refusing to continue to abide by a term of an expired collective bargaining agreement between Nassau County and the AFA.

For the reasons that follow, we conclude that PERB’s interpretation of the expired collective bargaining agreement was irrational and therefore arbitrary and capricious (see, CPLR 7803 [3]). Accordingly, we affirm the judgment of the Appellate Division.

In 1982 the College and the AFA entered into a collective bargaining agreement that expired in 1984. Despite having completed impasse procedures, the parties have not reached a new agreement. In September 1985, the president of the College wrote the AFA’s president, advising "effective for the Spring 1986 semester adjunct [faculty] appointments and thereafter, the College will no longer honor the seniority provisions of your contract to the extent that they may require that adjunct course assignments] be made solely on the basis of seniority.” The president advised further, that the chair of each department would be directed to "make assignments on a basis consistent with academic and student needs and in the same manner as day-time faculty assignments.” Additionally, the president’s letter stated "[a]U faculty in the institution will be uniformly evaluated within each department consistent with sound academic policy.” The president sought to impose uniform standards on all faculty because he feared the College might lose its accreditation in the absence of such uniformity, and thus jeopardize its ability to fulfill its statutory mandate to offer its students an academic program comparable to those in "institutions providing regular four-year courses” (Education Law § 6303 [3]).

The union responded to this letter by filing an improper employer practice charge with PERB based partially on allegations that the College’s threatened actions would violate Civil Service Law § 209-a (1) (e) by refusing to continue a term of the expired agreement which requires the assignment of courses to adjunct faculty members be made solely on the basis of seniority. The charges were dismissed by the PERB Administrative Law Judge (AU) on February 24, 1986 after a hearing, upon finding, inter alia, that the agreement’s provisions concerning "eligibility and qualifications” take precedence over the seniority provisions and that the College’s "right to determine qualifications is unrestricted.” The ALJ observed that in a prior proceeding commenced by the College questioning whether the seniority provisions of the parties’ agreement were mandatorily negotiable, it had been determined that the seniority provisions of the agreement did not require that course assignments be made solely on the basis of seniority. The ALJ concluded that the College’s declared intention to assign courses based on criteria in addition to seniority could not be considered violative of Civil Service Law § 209-a (1) (e). On appeal, PERB affirmed the ALJ’s decision in a determination dated June 5, 1986.

Meanwhile, as the president’s September letter indicated would be done, in November 1985, the College directed each department chairperson to prepare lists designating which adjunct faculty members were qualified to teach the courses offered in the spring of 1986 under stated qualifications. Very few of the approximately 800 adjunct faculty members were disqualified from teaching any course. Several of those who were disqualified were reinstated after instituting grievance procedures as outlined in the agreement.

The improper employer practice charge at issue here was filed by the AFA on January 27, 1986. The charge alleges that the College failed to comply with the terms of the expired agreement by declaring certain senior adjunct faculty members unqualified to teach any available course. The charge asserted that the adjunct faculty members now declared "unqualified” "had been deemed to be qualified many years ago [and] [n]o discussions over changing the qualifications to teach were conducted.” The AFA charged that the College violated Civil Service Law § 209-a (1) (e) by unilaterally implementing new qualifications for employment in violation of section 10.1 (e) of the collective bargaining agreement.

After a hearing, the PERB Administrative Law Judge dismissed this charge in a decision dated December 19, 1986. The union sought PERB review of the ALJ’s decision contending that the ALJ "erred in failing to find that in the past the employer has deemed an adjunct professor who had successfully taught a course once as qualified to teach that course in the future.” The AFA also argued that once an adjunct faculty member had completed the one-semester probationary period, he or she was qualified to teach in the corresponding department. PERB reversed the ALJ’s decision (20 PERB [f 3036) and ordered the petitioner, inter alia, (1) "[forthwith [to] rescind its determinations that adjunct faculty members who had previously been placed on the seniority list are no longer academically qualified” and (2) to comply with section 10.1 (e) of the agreement.

PERB concluded that the contract provisions concerning seniority, when considered in conjunction with the provisions relating to probation, created a "kind of tenure” for adjunct faculty members, notwithstanding that they are employed under separate semester-long contracts and do not have "continuing employment.” Further, PERB determined that by virtue of having been found qualified when first hired and having satisfactorily completed one semester of teaching a course, an adjunct faculty member acquires the right to be placed on the seniority list and to teach that course whenever it is offered by the department in the future. PERB also found that section 10.1 (e) "precludes the college from unilaterally determining that adjunct faculty members who had been considered academically qualified were no longer academically qualified solely on the basis of newly-imposed standards of academic qualification.”

The College commenced this article 78 proceeding challenging the PERB determination as being affected by error of law, arbitrary and capricious and not supported by substantial evidence. Supreme Court transferred the proceeding to the Appellate Division pursuant to CPLR 7804 (g). The Appellate Division granted the petition, annulled PERB’s determination and dismissed the improper employer practice charge (151 AD2d 168). The court concluded that the AFA’s claims were barred by res judicata and that PERB’s finding of an improper employer practice, premised on an alleged violation of the expired collective bargaining agreement, was based on a misinterpretation of that agreement. One Justice dissented in part and concurred in part, agreeing with the majority that the AFA’s claims were barred by res judicata insofar as they sought to prevent the College from imposing new standards of academic qualification, but disagreeing that res judicata also barred the AFA’s contention that the College failed to update the departmental lists "in concert” with the AFA as required by section 10.1 (e). As indicated, the Appellate Division granted PERB and the AFA leave to appeal to this Court.

PERB argues that because of its expertise in interpreting the Taylor Law (Civil Service Law § 200 et seq.) the courts should defer to its determination of improper practice charges based upon its interpretation of collective bargaining agreements. Where an administrative agency’s interpretation "is without sound basis in reason, and in disregard of the terms of the contract” (Matter of Century Operating Corp. v Popolizio, 60 NY2d 483, 488), a determination based upon such an interpretation will be set aside.

Such is the case here, where PERB concluded that section 10.1 (e) of the expired collective bargaining agreement, in conjunction with other provisions of the agreement, created a type of "tenure”, such that an adjunct faculty member who has once taught a course successfully, i.e., having satisfied the probationary period of section 18.1 (see, n 4, supra) is forever "qualified” to teach that course. PERB ruled therefore that the College was precluded from thereafter "unilaterally determining that adjunct faculty members who had previously been considered academically qualified were no longer academically qualified solely on the basis of newly-imposed standards of academic qualification”.

This interpretation is unsupported by the actual text of the collective bargaining agreement. No provision of the agreement provides that any member of the adjunct faculty is vested with such "tenure.” Section 10.1 (e) does not so provide; it simply requires the College and the AFA to maintain a list of qualified adjunct faculty members and does not as PERB found, "bindO the college to its earlier decisions regarding academic qualifications”.

Indeed any such provision in a collective bargaining agreement divesting the College of its power to set academic qualification would be of questionable validity.

PERB argues finally that the Appellate Division erred in applying principles of res judicata to its determination in the instant proceeding, contending that the issue concerning qualifications determined here was not raised or considered in the prior proceeding and that in any event that doctrine should not apply to PERB’s interpretation of the Taylor Law. We need not decide this issue however, since our decision is based on the conclusion that PERB’s interpretation of section 10.1 (e) of the parties’ collective bargaining agreement is irrational. Accordingly, the judgment of the Appellate Division annulling the PERB determination and dismissing the improper employer practice charge should be affirmed, with costs.

Chief Judge Wachtler and Judges Simons, Kaye, Titone, Hancock, Jr., and Bellacosa concur.

Judgment affirmed, with costs.

      . Nassau County is the sponsor of Nassau County Community College, an institution administered by a Board of Trustees (see, Education Law § 6301 et seq.) and is a signatory on the collective bargaining agreement, and the petitioner herein. For ease of reference however, the Nassau County Community College (the College) will be referred to throughout as the party in interest.

      . Civil Service Law § 209-a (1) (e) provides, in part: "It shall be an improper practice for a public employer or its agents deliberately * * * to refuse to continue all the terms of an expired agreement until a new agreement is negotiated”.

      . Section 10.1 (e) states: "Each adjunct department will maintain a list of couses [sic] for which each adjunct faculty member is academically qualified!.] This list will be prepared and updated annually by the department!'^ adjunct supervising administrator in concert with the Adjunct Faculty Association.”

      . Section 18.1 (Probation) states, in part: "All adjunct faculty whose first employment at Nassau Community College begins after August 31, 1976 will be on probation for one (1) semester. During this period a probationary instructor’s employment may be terminated by the Dean of Instruction in the event of unsatisfactory observations on two distinct occasions. Such observations may be made by the Dean of Instruction or his designated representatives. Such observations shall be reported in writing with a copy given to the subject instructor.”


author: Titone, J. Bellacosa, J.

text:
    The People of the State of New York, Respondent, v Lewis Newball, Appellant.
    Argued September 7,1990;
    decided October 23, 1990

      POINTS OF COUNSEL

      Andrew E. Abraham and Philip L. Weinstein for appellant.

      Charles J. Hynes, District Attorney (Monique Ferrell and Jay M. Cohen of counsel), for respondent.
   OPINION OF THE COURT

Titone, J.

Defendant, who was convicted primarily upon the testimony of two undercover narcotics officers, contends that the identification testimony of one of the officers should have been precluded since the People did not serve a CPL 710.30 notice with regard to that testimony even though the officer had "previously identified” defendant within the meaning of CPL 710.30. We agree. Because that officer’s prior identification of defendant was police-arranged, and was not within the category of confirmatory identifications recently described by this Court as being of a kind not "ordinarily burdened or compromised by forbidden suggestiveness” (People v Wharton, 74 NY2d 921, 922), the People’s failure to comply with the notice requirements of CPL 710.30 was improper and, accordingly, defendant’s motion to preclude should have been granted.

On October 21, 1986, two undercover officers, "Officer John Smith” and "Officer Jane Doe,” were assigned to investigate the reported sale of controlled substances at a number of locations in the 77th Precinct in Brooklyn. Pursuant to this assignment, Officer Smith approached and attempted to purchase "crack” cocaine from a man present at one of these locations. Officer Doe, who was waiting nearby in an unmarked car, observed Officer Smith and the man from approximately 50 to 75 feet away. Upon completion of the sale, Officer Smith radioed a description of the seller to his backup unit so that they could make the arrest. However, by the time the backup unit arrived, the subject had left and could not thereafter be found.

On November 18, 1986, while Officer Smith was involved in another "buy and bust” operation, he fortuitously spotted the "lost subject” from the October 21st sale. Since he was still acting undercover, Officer Smith did not attempt to make the arrest himself. Instead he radioed his backup unit, to which Officer Doe had been assigned, and gave them the subject’s description and location. Upon arriving at the location, Officer Doe identified defendant to the rest of the backup unit as the person she had seen with Officer Smith on October 21. Defendant was subsequently arrested.

Prior to trial, defendant was not served with a CPL 710.30 notice pertaining to Officer Doe’s previous identification of him. Nonetheless, at trial, Officer Doe was permitted to identify defendant as the person she had seen during the October 21st "buy and bust” operation, and as the person she had identified 28 days later at the time of his arrest. On the basis of this testimony, as well as the testimony of Officer Smith, defendant was convicted of criminal sale of a controlled substance in the third degree.

On defendant’s appeal, the Appellate Division rejected his arguments that CPL 710.30 had been violated. Relying on People v Gissendanner (48 NY2d 543) and People v Wharton (74 NY2d 921, supra), the court held that "[u]nder the circumstances of this case, [Officer Doe’s] identification testimony did not fall within the intendment of the statute.” (158 AD2d, at 554.) Since the Appellate Division erred in that conclusion, we now reverse.

At the outset, it should be stressed that the actions taken by the undercover officers here are not in issue. Nor could they be, for their conduct was clearly proper, and indeed commendable. The problem here lies not in regard to what the police did, but solely concerns the People’s failure to serve a timely CPL 710.30 notice.

CPL 710.30 requires that, within 15 days of arraignment, the People serve upon the defendant notice of their intention to introduce at trial "testimony regarding an observation of the defendant either at the time or place of the commission of the offense or upon some other occasion relevant to the case, to be given by a witness who has previously identified him as such.” If notice is not given, the People must be precluded from introducing such evidence at trial, unless they are permitted to serve a late notice for "good cause shown” (CPL 710.30 [2]), or the defendant, "despite the lack of such notice, [has] moved to suppress such evidence and such motion has been denied and the evidence thereby rendered admissible as prescribed in [CPL 710.70]” (CPL 710.30 [3]).

CPL 710.30 constitutes a legislative attempt to déal effectively with the reality that not all police-arranged identifications are free from unconstitutional taint (see, People v Col lins, 60 NY2d 214, 219). By requiring that notice be given, the statute acts to ensure that a defendant is given the opportunity, prior to trial, to test the reliability of the identification testimony that the People plan to offer against him (id.; see, People v White, 73 NY2d 468, 474; Bellacosa, Practice Commentary, McKinney’s Cons Laws of NY, Book 11A, CPL 710.30, at 113-114).

The People, in an attempt to justify their failure to comply with CPL 710.30 in this case, argue that Officer Doe’s November 18th identification of defendant did not constitute a previous identification within the intendment of the statute since, in their view, it was not the result of a "police-arranged” identification procedure, but was essentially the product of a mere chance meeting on the street. We disagree. Officer Doe did not encounter defendant by mere happenstance on November 18. She was specifically pointed to his location by Officer Smith. We can see no reason to distinguish such an identification from other State-prompted identification procedures, such as street showups made at the behest of the police. Both, unlike identifications resulting from spontaneous and unplanned encounters, come about at the deliberate direction of the State; thus, each must be said to implicate the due process concerns underlying CPL 710.30.

Further, the People’s reliance on our decision in Gissendanner (48 NY2d 543, supra) is misplaced. Contrary to their assertions, that case does not stand for the general proposition that an identification made by a police officer during the course of an arrest is always exempt from the notice requirements of CPL 710.30. Gissendanner instead established that CPL 710.30 is not applicable in situations where "the defendant’s identity is not in issue, or * * * the protagonists are known to one another” (48 NY2d, at 552, supraX Officer Doe’s acquaintance with defendant by virtue of her alleged viewing of him on October 21, however, cannot be said to have made defendant "known to” her as contemplated in Gissendanner. As we observed in People v Collins (60 NY2d 214, 219, supra): "[Knowledge], of course, is necessarily a question of degree. When a crime has been committed by a family member, former friend or long-time acquaintance of a witness there is little or no risk [of taint through police suggestion]. * * * But in cases where the prior relationship is fleeting or distant it would be unrealistic to ignore the possibility that police suggestion may improperly influence the witness in making an identification.” Officer Doe’s relationship with the person she viewed on October 21 cannot be said to be other than distant and fleeting, since she observed the person for only a few minutes and from a distance of no closer than 50 feet. Thus, her prior "knowledge” of the suspect does not excuse the People’s failure to give CPL 710.30 notice.

Nor does Officer Doe’s November 18th identification of defendant fall within the category of confirmatory identifications recently described by this Court as being of a kind not "ordinarily burdened or compromised by forbidden suggestiveness” (People v Wharton, 74 NY2d, at 922, supra). In Wharton, we held that a Wade hearing was not required where an undercover officer, five minutes after purchasing drugs in a "buy and bust” operation, drove by the site to view the seller —who was by then being detained by the backup unit — and, three hours later, identified the seller at the precinct. We reasoned that under such circumstances, "[t]he viewing by [the] trained undercover narcotics officer occurred at a place and time sufficiently connected and contemporaneous to the arrest itself as to constitute the ordinary and proper completion of an integral police procedure,” and so, unlike a station house showup identification by a civilian witness, "was not of a kind ordinarily burdened or compromised by forbidden suggestiveness” (id., at 922-923, supra). Significantly, however, this Court also cautioned that "[w]here the nature and circumstances of the encounter and identification may warrant, a hearing should * * * be held.” (Id., at 923.)

This case is clearly within this latter category. First, Officer Doe’s identification of defendant cannot be said to have constituted the "completion of an integral police procedure,” since it lacked any continuity with her initial viewing of defendant on October 21. Even more important, however, is the passage of some four weeks between the initial viewing and the later identification. Because of this significant lapse of time, Officer Doe’s identification of defendant cannot be said to have the same assurances of reliability that were found to exist in Wharton (cf., People v Rubio, 133 AD2d 474). Consequently, this case presents precisely the type of special circumstances which call for a CPL 710.60 (4) hearing and therefore implicate the notice requirements of CPL 710.30. Since no such notice was given and no hearing was held, it was error to admit Officer Doe’s identification testimony into evidence.

Finally, contrary to the People’s assertions, the evidence of defendant’s guilt was not so overwhelming as to render this error harmless (see, People v Crimmins, 36 NY2d 230, 241). Once Officer Doe’s testimony is excluded, the People’s case against defendant is left to depend almost entirely on the testimony of Officer Smith. That testimony, however, was based upon an identification which occurred 28 days after Officer Smith encountered the drug suspect. In light of the possible effects this passage of nearly a month’s time may have had on the jury’s assessment of the reliability of Officer Smith’s testimony, it cannot be said with any degree of certainty that had Officer Doe’s testimony, which tended to significantly bolster the testimony of Officer Smith, been excluded, the outcome would not have been different (see, id., at 241-242).

Accordingly, the order of the Appellate Division should be reversed, the motion to suppress identification testimony granted, and a new trial ordered.

Bellacosa, J.

(dissenting). Under the facts as portrayed in the majority opinion, I would decide the case differently. The conviction should be upheld because the analysis and applied rule punishes proper police work in the identification and apprehension of a criminal encountered fortuitously by the police on the street.

It appears that an undercover police officer received a radio call from another officer who spotted defendant; the former was thus simply summoned to the street location, one block away, where defendant was being kept under surveillance. Upon arrival, the summoned officer identified the "lost suspect” and defendant was arrested by a backup team of officers.

The majority agree that commendable ordinary-course-of-business identification action by the police on the street was carried out, leading to the arrest of the right person. Yet, the police conduct is characterized as "police-arranged” and "deliberately directed”. I do not believe this conduct qualifies for slotting as "other State-prompted identification procedures, such as street showups made at the behest of the police.” (Majority opn, at 591.) Indeed, the key legal question on which we therefore differ is that I think the lower courts were correct in concluding that preclusion under CPL 710.30 (1) (b) is unwarranted, because this type of street identification by the police "does not come into play” within the intendment of the statute (People v Gissendanner, 48 NY2d 543, 552). In that threshold procedural respect, this case is significantly different from People v Gordon (76 NY2d 595, 599 [decided today]).

Two related precedential lines support affirmance of the determinations below in this case (see, People v Morales, 37 NY2d 262, 272; People v Gissendanner, 48 NY2d 543, supra). As in Morales, the officers here were performing expert and customary undercover drug enforcement duties on the street and, as in the Gissendanner sense, defendant here was already sufficiently known to the identifying officer to exempt the situation from the statutory notice and preclusion sanction. Thus, while I agree completely that this is not a confirmatory identification case within the framework of People v Wharton (74 NY2d 921), I also note that it is not a station house showup under People v Riley and People v Rodriguez (70 NY2d 523) and People v Gordon (76 NY2d 595, supra).

The case for me may be reduced to the simple syllogism of police officers doing precisely what their job demands in the particular situation, with no attendant violation of defendant’s statutory or decisional law rights, and therefore with no justifiable basis for disturbing fair and correct determinations by the lower courts.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander and Hancock, Jr., concur with Judge Titone; Judge Bellacosa dissents and votes to affirm in a separate opinion.

Order reversed, etc.

      . For the protection of the identities of the undercover officers involved we have used fictitious names.

        . Contrary to the People’s assertions, the error claimed here is preserved for our review. Defense counsel’s contention, prior to trial, that the District Attorney’s voluntary disclosure form should have disclosed Officer Doe’s November 18th identification of defendant, sufficiently alerted the trial court that defendant was claiming a lack of CPL 710.30 notice.