author: Kaye, J.

text:
    Susan Sullivan, Respondent, v Brevard Associates, Appellant.
    Argued October 15, 1985;
    decided November 19, 1985
    POINTS OF COUNSEL

      Jeffrey R. Metz, Robert D. Goldstein and Steven L. Schultz for appellant.
    I. The court below erred in determining that respondent and the tenant of record constituted an "immediate family” and that a brief and fleeting shared occupancy between a tenant of record and her sister constitutes a "family unit” so as to allow the sister to assume the right to possession upon the tenant of record’s vacatur. (Matter of Pell

      v Board of Educ., 34 NY2d 222; Matter of Herzog v Joy, 74 AD2d 372; Hotel Armstrong v Temporary State Hous. Rent Commn., 11 AD2d 395; Post v 120 E. End Ave. Corp., 62 NY2d 19; Matter of Clarke v Morris, 46 Misc 2d 476.) II. The court below erred in affirming the Supreme Court’s determination that a transfer of occupancy from a tenant of record to her sister without the consent of the landlord did not constitute a breach of a substantial obligation of tenancy and a violation of Real Property Law § 226-b. (Vance v Century Apts. Assoc., 61 NY2d 716; Matter of Anderson v Board of Educ., 46 AD2d 360, 38 NY2d 897; Matter of St. Vincent’s Hosp. & Med. Center v Tax Commn., 119 Misc 2d 606.) III. In light of the Court of Appeals recent decision in Tagert v 211 E. 70th St. Co., tenant’s sister who continued in residence for the remainder of the tenant of record’s lease term upon the latter’s vacatur is not entitled to a renewal lease. (Tagert v 211 E. 70th St. Co., 63 NY2d 818; Equity Props. Corp. v Bonhomme, 109 Misc 2d 760, 111 Misc 2d 999.)

      Sanford F. Young and Lisa S. Young for respondent.
    I. The lower courts correctly held that plaintiff was a member of her sister’s immediate family and that they resided jointly in the subject premises, thus entitling plaintiff to the right of possession of the premises upon her sister’s departure. (Tagert v 211 E. 70th St. Co., 63 NY2d 818; Matter of Herzog v Joy, 74 AD2d 372, 53 NY2d 821; Matter of Maryland v Aubach, 59 NY2d 711; Padula v State of New York, 48 NY2d 366; Bendes v Albert, 108 Misc 2d 955; Solomon v Burrows, 90 Misc 2d 770; Avrum Realty Corp. v Talton, 120 Misc 2d 534.) II. The holding of this court in Tagert should not be extended to this case. (Tagert v 211 E. 70th St. Co., 63 NY2d 818; First Intl. Bank v Blankstein & Son, 59 NY2d 436; Randall-Smith, Inc. v 43rd St. Estates Corp., 23 AD2d 835.) III. Appellant waived any alleged violation of the occupancy clause of the lease by its acceptance of 11 monthly rent checks in respondent’s name. (Solomon v Burrows, 90 Misc 2d 770; Matter of Brighton Sixth St. Corp. v Finkelstein, 193 Misc 785; Rafolin Constr. Corp. v Lippman, 116 Misc 2d 926.) IV. Real Property Law § 226-b has no application to the case at bar. (Matter of Herzog v Joy, 74 AD2d 372, 53 NY2d 821.) V. Real Property Law § 235-f is not applicable to the case at bar.
   OPINION OF THE COURT

Kaye, J.

Under New York City’s Rent Stabilization Law, a landlord need offer a renewal lease only to a tenant of record, and is not obligated to offer a renewal lease to a relative of the tenant who occupies the apartment with the tenant during a portion of the lease term.

Catherine Sullivan rented apartment 12J in an apartment building owned and operated by defendant, Brevard Associates, at 245 East 54th Street in Manhattan under a renewal lease, with the term beginning October 1, 1981 and ending September 30, 1982. The lease, a standard form of apartment lease issued by the Real Estate Board of New York, designated Catherine as "You, the Tenant,” and Catherine alone signed the lease in that capacity, although the lease form contained two signature lines for "Tenant,” the second of which was left blank. Paragraph 1 of the lease provided in relevant part: "You shall use the Apartment for living purposes only. Subject to the laws which prohibit discrimination, only You and members of your immediate family, as defined by applicable law, and servants, if any, may live in the Apartment.” In August 1981, before the lease was signed, plaintiff, Susan Sullivan, moved into the apartment with her sister and Catherine began to spend two or three nights a week away from the apartment with a friend. In November 1981, Catherine moved into her friend’s apartment and stayed at apartment 12J only occasionally. She retained a key, however, and indicated that she might move back in the future. Susan remained in the apartment and, beginning September 1981, paid the rent each month with her checks.

On June 3, 1982, Brevard served Catherine, as tenant, with a notice to cure, claiming that Susan’s use and occupancy of the apartment constituted a violation of a substantial term of the tenancy. Susan then commenced this action seeking a judgment declaring her to be a tenant properly in possession of the premises. Initially, Special Term denied Susan’s motion for summary judgment, finding an absence of proof as to whether she and her sister ever jointly occupied apartment 12J. Following depositions of Susan and Catherine, Brevard sought summary judgment dismissing the complaint and Susan cross-moved for summary judgment. Special Term granted Susan’s cross motion, declaring that she was a tenant with the right to possession of the apartment by virtue of her joint occupancy of the apartment with her sister. The Appellate Division affirmed, without opinion, and we granted leave.

Due to the passage of time — the lease having expired September 30, 1982 — the question before us is whether the landlord was obligated to offer Susan a renewal lease. Susan’s right to occupy the apartment until September 30, 1982, is no longer in issue. Only the consequence of that occupancy remains.

Under the City Rent Stabilization Law, a renewal lease must be offered to a "tenant” (Administrative Code of City of New York § YY51-6.0 [c] [4]). Thus, the determinative question is whether Susan was a tenant. Only Catherine was designated as "the tenant” in the lease; although Susan was already living in the apartment at the time the lease was signed, she was not a party to it. Our inquiry then turns to whether, for purposes of renewal rights, any provision of the law alters the definition of tenant found in the lease. We conclude that Susan was not a tenant entitled to a renewal lease, and that the Appellate Division order declaring her a tenant properly in possession of the apartment should therefore be reversed.

Susan urges that, under the laws applicable to rent control, a sister’s joint occupancy with the tenant of record would entitle the sister alone to possession, use or occupancy of the apartment during the lease term and to continued possession beyond the lease term, and that these principles should apply as well to a rent-stabilized apartment. Without reaching the question whether Susan would be considered a member of Catherine’s immediate family entitled under the rent control laws to possession beyond the lease term, **§we conclude that such a result does not in any event obtain under rent stabilization.

New York City’s Rent Control Law broadly defines "tenant” as "tenant, subtenant, lessee, sublessee, or other person entitled to the possession or to the use or occupancy of any housing accommodation” (Administrative Code § Y51-3.0 [m]; Rent and Eviction Regulations of Housing and Development Administration § 2 [o]; Rent and Eviction Regulations of Division of Housing and Community Renewal, 9 NYCRR 2200.2 [o]). The State Rent and Eviction Regulations further provide (§ 56 [4], 9 NYCRR 2104.6 [d]; 9 NYCRR 2204.6 [d]) that no occupant may be evicted "where the occupant is either the surviving spouse of the deceased tenant [of record] or some other member of the deceased tenant’s family who has been living with the tenant.” In Matter of Herzog v Joy (74 AD2d 372), relying on these provisions, the Appellate Division refused to set aside a determination of the Rent Commission that an apartment did not qualify for decontrol, and we affirmed for reasons stated by that court (53 NY2d 821). Although the tenant of record no longer resided in the apartment, her sister had lived with her for about a year before the tenant moved out, and the sister remained the sole occupant. As the Appellate Division concluded, the sister could not be evicted "since she [was] entitled to possession by virtue of her relationship to, and contemporaneous occupancy of the apartment with * * * the original tenant” (74 AD2d, at p 376).

The language, purpose and scope of the Rent Stabilization Law persuade us that the rationale of Matter of Herzog v Joy, if even generally applicable to rent control, does not apply to rent-stabilized apartments.

Neither the rent-control definition of "tenant” nor its provision limiting eviction of occupants upon the death of the tenant — the premises of Matter of Herzog v Joy — is found in the Rent Stabilization Law, and we conclude that in both instances these omissions from the law were deliberate. Although other statutes and regulations contain a definition of the term "tenant” identical to that set forth in the New York City Rent Control Law (see, McKinney’s Uncons Laws of NY § 8582 [7] [Emergency Blousing Rent Control Act]; Rent and Eviction Regulations of Division of Housing and Community Renewal, 9 NYCRR 2100.2 [g]; Emergency Tenant Protection Regulations of Division of Housing and Community Renewal, 9 NYCRR § 2500.2 [h]), the City Rent Stabilization Law does not. Indeed, there is conspicuously absent from the Rent Stabilization Law any definition of the term "tenant,” leaving only the lease definition of tenant. (Compare, Cooper v 140 E. Assoc., 27 NY2d 115, with Burns v 500 E. 83rd St. Corp., 59 NY2d 784, 786 where, in other contexts, we have given significance to the failure of the Rent Stabilization Law to adopt the rent-control definition of "tenant”.) Additionally, the Rent Stabilization Law does not contain any provision similar to rent control regulation section 56 (4) limiting the circumstances under which occupants may be evicted following the death of the tenant of record. Again, the fact that such a provision has been omitted from the Rent Stabilization Law cannot be overlooked, especially since it has been included, where intended, in other regulations (see, Rent and Eviction Regulations of Division of Housing and Community Renewal, 9 NYCRR 2104.6 [d]). Neither of the premises of Matter of Herzog v Joy being applicable to rent-stabilized apartments, the result reached in that case is therefore inappropriate.

The Rent Stabilization Law, moreover, sets forth its own specific scheme of regulation, different from rent control. Rent stabilization protects only the primary residence of the tenant. It expressly excludes dwelling units "not occupied by the tenant, not including subtenants or occupants, as his primary residence,” and a landlord may seek "to recover possession on the ground that a housing accommodation is not occupied by the tenant as his primary residence” (Administrative Code § YY51-3.0 [a] [1] [f]). Under the Rent Stabilization Law a Stabilization Code need only "requir[e] owners to grant a one or two year vacancy or renewal lease at the option of the tenant” (Administrative Code § YY51-6.0 [c] [4]). Section 60 of the Stabilization Code of the Rent Stabilization Association of New York City, Inc., approved pursuant to the Rent Stabilization Law provides that "[e]very owner shall notify the tenant in occupancy * * * prior to the end of the tenant’s lease term, by mail, of such termination and offer to renew the lease * * * and shall give such tenant a period of 60 days to renew such lease and accept the offer”. Conversely, section 54 (E) (1) of the Stabilization Code provides that an owner shall not be required to offer a renewal lease to a tenant if he establishes "that the tenant in possession maintains his primary residence at some place other than at such housing accommodations.” Under these provisions, "only the tenant may renew a lease; family members have no such right after the tenant has vacated.” (Tagert v 211 E. 70th St. Co., 63 NY2d 818, 821.)

Our refusal to ignore this scheme of the Rent Stabilization Law, in favor of concepts borrowed from the Rent Control Law, is consistent with the purpose and scope of rent stabilization, which is a less onerous form of regulation than rent control (8200 Realty Corp. v Lindsay, 27 NY2d 124, 136-137). Rent control subjects an ever-decreasing number of rental units to stringent controls. Rent stabilization, on the other hand, was adopted in 1969 as a "compromise solution” under which rents of previously unregulated post-1947 housing could be regulated while "encouraging future construction of housing accommodations by allaying the fears of builders concerned about possible further extension of rent control to new construction” (8200 Realty Corp. v Lindsay, 27 NY2d 124, 136-137, supra). The Rent Stabilization Law recognizes the greater stringency of rent control regulation by imposing rent control of units as a penalty for landlords who fail to become or remain members in good standing of the Real Estate Industry Stabilization Association (Administrative Code § YY51-6.0 [a]).

In these circumstances, we find no basis for concluding that Susan was a "tenant” entitled to a renewal lease. Neither the lease nor any law governing rent-stabilized apartments constitutes her a tenant.

Finally, by accepting her rent checks Brevard did not waive its right to contest Susan’s continued occupancy. There is no evidence that, by simply accepting her checks, Brevard intended to relinquish a known right. Even assuming that Brevard immediately noticed that the monthly rent checks were from someone other than the tenant, still there is no evidence that Brevard knew or should have known at the time that Susan was actually occupying the apartment, or that her occupancy was a substantial violation of the lease.

Accordingly, the order of the Appellate Division should be reversed, with costs, plaintiff’s cross motion for summary judgment denied, defendant’s motion for summary judgment granted, and judgment granted in favor of defendant declaring that plaintiff is not entitled to a renewal lease.

Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Alexander and Titone concur.

Order reversed, etc.

       The term "immediate family” under rent control has been defined to include "a husband, wife, son, daughter, stepson, stepdaughter, father, mother, father-in-law or mother-in-law.” (McKinney’s Uncons Laws of NY § 8605 [Local Emergency Housing Rent Control Act § 5, L 1962, ch 21, § 1, as amended by L 1980, ch 69].)


source: Caselaw Access Project

author: Titone, J. Jasen, J. Chief Judge Wachtler

license: Public Domain

text:
    SHAD Alliance et al., Respondents, v Smith Haven Mall, Appellant.
    Argued October 15, 1985;
    decided December 19, 1985
    POINTS OF COUNSEL

      Robert S. Smith and Audrey S. Feinberg for appellant.
    I. Respondents have no right under the New York Constitution to leaflet on private property. (People v Tremaine, 281 NY 1;
      Matter of New York State Commn. Against Discrimination v Pelham Hall Apts., 10 Misc 2d 334; Kaiser Aetna v United States, 444 US 164; PruneYard Shopping Center v Robins, 447 US 74; Hudgens v NLRB, 424 US 507; Lloyd Corp. v Tanner, 407 US 551; Food Employees v Logan Plaza, 391 US 308; People v Bush, 39 NY2d 529; Watchtower Bible & Tract Socy. v Metropolitan Life Ins. Co., 297 NY 339, 335 US 886; Bellanca v State Liq. Auth., 54 NY2d 228, 456 US 1006.) II. Genuine issues of material facts preclude the granting of summary judgment to respondents.

      Christopher A. Hansen and Steven R. Shapiro for respondents.
    I. Respondents’ right to leaflet peacefully in appellant’s shopping center is protected under the New York State Constitution. (PruneYard Shopping Center v Robins, 447 US 74; Hudgens v NLRB, 424 US 507; Matter of Beach v Shanley, 62 NY2d 241; People v Ferber, 57 NY2d 256; Cooper v Morin, 49 NY2d 69; People v Adams, 53 NY2d 241; People v Elwell, 50 NY2d 231; People v Isaacson, 44 NY2d 511; Sharrock v Dell Buick-Cadillac, 45 NY2d 152; Bellanca v State Liq. Auth., 54 NY2d 228.) II. Summary judgment is appropriate since appellant failed to raise any factual disputes in Special Term.

      Edward R. Korman and Naomi Siegel for The New York Government Affairs Committee of the International Council of Shopping Centers, amicus curiae.

    I. NY Constitution, article I, § 8 confers on defendant the right not to be compelled to subsidize political action groups by furnishing a convenient place for them to urge their views on the public. (Hudgens v NLRB, 424 US 507; Lloyd Corp. v Tanner, 407 US 551; PruneYard Shopping Center v Robins, 447 US 74; Abood v Detroit Bd. of Educ., 431 US 209, 433 US 915; Murphy v American Home Prods., 58 NY2d 293.) II. The history of NY Constitution, article I, § 8 demonstrates that it should not be applied to privately owned shopping centers. (PruneYard Shopping Center v Robins, 447 US 74; Hudgens v NLRB, 424 US 507; People v Bush, 39 NY2d 529; Dorsey v Stuyvesant Town Corp., 299 NY 512, 339 US 981.) III. NY Constitution, article I, § 8 confers on defendant the right to exclude plaintiffs from its property in the circumstances here. (PruneYard Shopping Center v Robins, 447 US 74; Abood v Detroit Bd. of Educ., 431 US 209; Galda v Bloustein, 686 F2d 159; Matter of Consolidated Edison Co. v Public Serv. Commn., 93 Misc 2d 313, 63 AD2d 364, 47 NY2d 94, 447 US 530.) IV. Considerations of judicial policy require that the conflicting interests here at issue be resolved by the Legislature. (Murphy v American Home Prods., 58 NY2d 293.)
   OPINION OF THE COURT

Titone, J.

All members of the court agree that the right to free expression is one of this Nation’s most cherished civil liberties. We differ solely on the question whether article I, § 8 of our State Constitution, considered in light of both history and modern conditions, precludes the owner of a private shopping mall from enforcing a blanket no-handbilling policy and compels the owner to permit use of the mall for the distribution of leaflets opposing nuclear energy. As the court concludes that article I, § 8 only limits State action, not present here, the order of the Appellate Division should be reversed and a declaration made in defendant’s favor.

I

Smith Haven Mall, a typical suburban shopping center located in central Suffolk County, Long Island, is privately owned and operated by defendant Prudential Insurance Company of America. It consists of 97 acres, of which 85 acres are dedicated to parking facilities, and contains three major department stores and approximately 125 other stores, restaurants, and service businesses, all connected by pedestrian walkways. Each of the commercial establishments is a tenant, paying rent for the use of space.

The Mall has consistently and nondiscriminatorily prohibited all leafletting, and all types of political activities or gatherings. To maintain and foster an environment conducive to the business of its tenants, the Mall has permitted only those types of events which will generate goodwill, consumer interest, and patronage. On some occasions the Mall has permitted local officials to park mobile vans in its parking lot to offer public services such as advice to senior citizens and veterans, and blood and glaucoma tests. All such activities are conducted from within the vans, and it bears emphasis that in no circumstances does the Mall permit any kind of campaigning, petitioning or distributing of leaflets in connection with these activities.

In July and August of 1980, individuals representing plaintiffs SHAD and Paumanok, organizations that oppose, through what they describe as "education and non-violent action,” the use of nuclear energy to generate electricity, including plaintiffs Glaser and Cina, came to the Mall, and, without obtaining permission from the Mall owner, proceeded to hand out leaflets opposing the use of nuclear power and encouraging people to attend various demonstrations concerning the Shore-ham Nuclear Power Plant. On both occasions, a security officer informed them of the Mall’s policy prohibiting leaflet-ting on the premises and directed them to cease doing so.

Plaintiffs then brought this action against the Mall. Their complaint alleges claims under the New York Constitution only and seeks declarative and injunctive relief compelling the Mall to permit them to distribute leaflets.

On cross motions for summary judgment, Special Term, though acknowledging that the "Mall is private property and operated for * * * commercial benefit”, held that the free speech provision contained in NY Constitution, article I, § 8 invalidated the no-handbilling policy and compelled the Mall to permit plaintiffs to distribute leaflets, subject to the imposition of "reasonable regulations concerning time, place and manner” (118 Misc 2d 841, 843, 849).

The Appellate Division affirmed by a sharply divided court. The majority elaborated on Special Term’s theme, reading the State Constitution to "require that the mall be enjoined from prohibiting the distribution of leaflets on its premises, subject only to the adoption of reasonable regulations as to the time, place and manner in which such activities may be carried out” (106 AD2d 189, 190). The dissent urged that the result could not be reached "without ignoring the history of the Bill of Rights and its purpose, and without undertaking to rewrite the Constitution” (106 AD2d, at p 205). We now reverse.

II

It is, of course, now beyond dispute that a shopping center owner’s adoption and enforcement of a blanket no-handbilling policy does not infringe any rights under the First Amendment to the United States Constitution (Hudgens v NLRB, 424 US 507; Lloyd Corp. v Tanner, 407 US 551) because the actions of the owner do not constitute the State action necessary to trigger Federal constitutional protections.

Plaintiffs, therefore, urge us to construe our State Constitution’s free speech provision more broadly. The linchpin of their argument is that no State action requirement exists or should exist under our State Constitution so that the free speech provision may be read as imposing an affirmative limitation on private conduct. The history of the State action requirement, traditional usage and understanding and contemporary approaches to constitutional adjudication, lead us to a contrary conclusion.

The free speech provision now found in NY Constitution, article I, § 8 was added in 1821 as part of the New York Bill of Rights, which was essentially based on the Bill of Rights contained in the United States Constitution (Chaffee, Free Speech in the United States, at 4-6; 2 Chester, Legal & Judicial History of New York, at 41, 121-122; 1 Lincoln, Constitutional History of New York, at 733-734, 739-740). The Reports of the Proceedings and Debates at the 1821 Convention plainly indicate that the New York Bill of Rights, like its Federal counterpart, was intended by its drafters to serve as a check on governmental, not private, conduct (Carter and Stone, Reports of the Proceedings and Debates of the Convention of 1821, at 163, 172). General Root, for example, explicitly directing himself to the "4th clause, respecting the liberty of speech and the press * * * said it was doubtless intended to secure the citizen as well against the arbitrary acts of the legislature, as against those of the judiciary” (id., at 167).

Language almost identical to article I, § 8 was inserted into the Connecticut Constitution in 1818, three years prior to New York’s Constitutional Convention in 1821 (Cologne v Westfarms Assoc., 192 Conn 48, 59-60, 469 A2d 1201, 1207). The Connecticut Supreme Court found that a "review of [its] origin discloses no evidence of any intention to vesta in those seeking to exercise such rights as free speech and petition the privilege of doing so upon property of others” (id., 192 Conn, at p 62, 469 A2d, at p 1208). Other courts have generally employed a similar approach (e.g., Pendrell v Chatham Coll., 386 F Supp 341, 344 ["Article I, section 7 of the Constitution of Pennsylvania * * * imposes a limitation upon the power of the State to interfere with freedom of the press and freedom of speech, but contains no self-executing private cause of action, express or implied”]; State v John W., 418 A2d 1097, 1101 [Me] ["Both article I, § 4 of the Maine Constitution and the first amendment of the United States Constitution protect the people against governmental encroachment on their freedom of speech”] [emphasis supplied]; see also, State v Marley, 54 Hawaii 450, 461, 509 P2d 1095, 1103; People v Sterling, 52 Ill 2d 287, 287 NE2d 711; Commonwealth v Hood, 389 Mass 581, 452 NE2d 188; Commonwealth v Noffke, 376 Mass 127, 379 NE2d 1086; Woodland v Michigan Citizens Lobby, 423 Mich 188, 378 NW2d 337; State v Felmet, 302 NC 173, 273 SE2d 708; Lenrich Assoc. v Heyda, 264 Ore 122, 504 P2d 112; Logan Val. Plaza v Amalgamated Food Employees Union, 425 Pa 382, 227 A2d 874, revd 391 US 308; United States Supreme Court reversal expressly overruled in Hudgens v NLRB, 424 US 507, supra; Western Pa. Socialist Workers 1982 Campaign v Connecticut Gen. Life Ins. Co., 335 Pa Super Ct 493, 485 A2d 1, lv granted, — Pa —, 497 A2d 607; but see, Batchelder v Allied Stores Intl., 388 Mass 83, 445 NE2d 590 [4-3 decision] [finding a State constitutional right to solicit signatures on nominating petitions under provision of State Constitution guaranteeing free and equal elections; reach of free speech provision left open])._

On the two occasions that we considered the free speech claims of persons who, like the plaintiffs here, sought to engage in expressive activities on private property, we permitted private property owners to exclude such persons from their premises (People v Bush, 39 NY2d 529; Watchtower Bible & Tract Socy. v Metropolitan Life Ins. Co., 297 NY 339, cert denied 335 US 886). Indeed, in People v Bush (supra), we cited both Hudgens v NLRB (supra) and Lloyd Corp. v Tanner (supra) with approval. Thus, it is firmly established that the State and Federal constitutional guarantees of freedom of speech protect the individual against action by governmental authorities, not by private persons (see, Sunshine Book Co. v McCaffrey, 4 AD2d 643, 647; Reiter v American Legion, 189 Misc 1053, 1057, affd 273 App Div 757; cf. Under 21 v City of New York, 65 NY2d 344, 360-361; Matter of Wilson, 59 NY2d 461, 476-477).

These observations are hardly surprising. That a Bill of Rights is designed to protect individual rights against the government is standard constitutional doctrine (Cooley, Constitutional Limitations, at 36-37 [rev ed 1972]; Hand, The Bill of Rights [Harvard Univ Press 1958]; Rottschaeffer, American Constitutional Law § 305 [1939]; Tribe, American Constitutional Law, at 1147, n 1), and, while the drafters of the 1821 free speech clause may not have envisioned shopping malls, there can be no question that they intended the State Constitution to govern the rights of citizens with respect to their government and not the rights of private individuals against private individuals. That intent is consistent with modern constitutional theory as well as the understanding prevalent in 1821 (see, Sharrock v Dell Buick-Cadillac, 45 NY2d 152, 160 [absence of express State action requirement does not dispense with this constitutional predicate]; Cooley, Constitutional Law ch 12, at 219 [3d ed 1898]; McLain, Constitutional Law § 205, at 294 [2d ed 1910]; Pomeroy, Constitutional Law § 230 [10th ed 1888]). Indeed, this fundamental concept concerning the reach of constitutionally guaranteed individual rights is not only deeply rooted in constitutional tradition, it is at the foundation of the very nature of a constitutional democracy.

The State action requirement, consistently recognized and reaffirmed in our decisions (see, e.g., Under 21 v City of New York, 65 NY2d 344, 360-361, supra; Matter of Wilson, 59 NY2d 461, 476-477, supra), performs a vital function. Actions of the Federal Government are limited by the Federal Constitution’s reservation to State governments of all powers not expressly granted it (see, Board of Educ. v Nyquist, 57 NY2d 27, 43, n 5). State governments are not similarly restrained (ibid.). State constitutional provisions, therefore, protect individual liberty by limiting the plenary power of the State over its citizens (see, Bellanca v State Liq. Auth., 54 NY2d 228, 235-236, cert denied 456 US 1006; Grad, State Bill of Rights in Constitutions of the United States: National and State, at 117-118 [1980]; Rankin, State Constitutions: The Bill of Rights, at 4-5). Thus, State action is a crucial foundation for both private autonomy and separation of powers (see, Tribe, American Constitutional Law, op. cit., at 1149-1151).

No one disputes that we have the power, indeed the duty, to assure that the protections provided by our State Constitution remain meaningful in light of emerging needs and changing social values (see, e.g., Bellanca v State Liq. Auth., 54 NY2d 228, supra; Cooper v Morin, 49 NY2d 69; People v Settles, 46 NY2d 154, 161; People v Isaacson, 44 NY2d 511, 519-520; People v Hobson, 39 NY2d 479). But this can never be "made an excuse for imposing the individual beliefs and philosophies of the judges upon other branches of government,” for it actually "shackles progress, and breeds distrust and suspicion of the courts” (Cardozo, Nature of the Judicial Process, at 91). A State Constitution is a document defining and limiting the powers of State government, not a blueprint for the judiciary to turn what it perceives to be "desirable” social policies into law (see, Berger, "The Supreme Court as a Legislature”: A Dissent, 64 Cornell L Rev 988; Deukmejian and Thompson, All Sail and No Anchor — Judicial Review Under the California Constitution, 6 Hast Const LQ 975; Horowitz, Courts and Social Policy, at 19; Thayer, Origin and Scope of American Doctrine of Constitutional Law, 7 Harv L Rev 129, 135).

We agree with the dissent that the willingness of courts to interpret constitutional provisions in light of changing conditions has safeguarded both our Constitutions and the freedom they protect (dissenting opn, at p —). There is a profound difference, however, between interpreting constitutional provisions and dispensing with constitutional requirements. In circumstances such as these, where State action has historically been a component of the constitutional inquiry, the principled "modern” approach would not dispense with the requirement, but rather would question how it is appropriately defined given the novel context (see generally, Tribe, op. cit., at 1147-1174; Nowak-Rotunda-Young, Constitutional Law, at 497-508 [2d ed 1983]; Sharrock v Dell Buick-Cadillac, 45 NY2d 152, 160-161, supra; Dworkin, A Matter of Principle, at 386-389 [1985]; Alderwood Assoc. v Washington Envtl. Council, 96 Wn 2d 230, 247 et seq., 635 P2d 108, 118 et seq. [Dolliver, J., concurring]; Woodland v Michigan Citizens Lobby, 423 Mich 188, 378 NW2d 337, supra).

It would be a "demonstration of judicial arrogation” (Montgomery v Daniels, 38 NY2d 41, 53) and it "would neither serve the purposes of orderly government nor honor the role of the judiciary to lay aside standards of judicial review recently held appropriate” (Board of Educ. v Nyquist, 57 NY2d 27, 49, n 9, supra). Abrogation of a State action requirement, as urged here by plaintiffs, would have broad and mischievous consequences because it would signify "a determination by the court that it, instead of the legislature, will settle conflicting interests among citizens and that it will accomplish this by what it chooses to call a constitutional basis” (Alderwood Assoc. v Washington Envtl. Council, 96 Wn 2d 230, 250, 635 P2d 108, 119, supra [Dolliver, J., concurring]), which is then beyond legislative reach. A disciplined perception of the proper role of the judiciary, and, more specifically, discernment of the reach of the mandates of our State Constitution, precludes us from casting aside so fundamental a concept as State action in an effort to achieve what the dissent perceives as a more socially desirable result.

ra

We now turn to the question whether a shopping mall owner’s enforcement of a blanket no-handbilling policy constitutes State action within the meaning of our State Constitution. If there be no State action, our inquiries must end (see, Nowak-Rotunda-Young, Constitutional Law, op. cit., at 497).

In the context of a due process challenge to private action, we have commented that, despite its outward simplicity as a concept, State action is in fact an elusive principle not reducible to ritualistic incantations or precise formalism (see, Sharrock v Dell Buick-Cadillac, 45 NY2d 152, 158, supra [citing Burton v Wilmington Parking Auth., 365 US 715, 722]; see also, Tribe, American Constitutional Law, op. cit., at 1148-1149). The factors to be considered in determining whether it has been shown include: "the source of authority for the private action; whether the State is so entwined with the regulation of the private conduct as to constitute State activity; whether there is meaningful State participation in the activity; and whether there has been a delegation of what has traditionally been a State function to a private person (Melara v Kennedy, 541 F2d 802, 805). As the test is not simply State involvement, but rather significant State involvement, satisfaction of one of these criteria may not necessarily be determinative to a finding of State action” (Sharrock v Dell Buick-Cadillac, supra, at p 158).

The relevant inquiry in this case thus becomes the degree to which the State has involved itself in the enforcement of private property rights against individuals wishing to assert their rights of free expression. If such entanglement or delegation exists, it must then be ascertained whether that entanglement or delegation is sufficient to trigger the protections of the State Constitution (Sharrock v Dell Buick-Cadillac, supra, at p 161).

Plaintiffs have not alleged, much less demonstrated, that any State action is involved here. Smith Haven Mall is not the functional equivalent of a government and its conduct is not the equivalent of governmental conduct (cf. Marsh v Alabama, 326 US 501). To be sure, the shopping mall has taken on many of the attributes and functions of a public forum, as the record demonstrates, but the characterization or the use of property is immaterial to the issue of whether State action has been shown. Nor can the nature of property transform a private actor into a public one (see, Lloyd Corp. v Tanner, 407 US 551, 564-565, supra; Cologne v Westfarms Assoc., 192 Conn 48, 469 A2d 1201, supra; Lenrich Assoc. v Heyda, 264 Ore 122, 124, 504 P2d 112, 114, supra). Rather, the analysis must proceed from the other direction to show significant government participation in private conduct that limits free speech rights. This plaintiffs have failed to do.

Discussion concerning the purportedly unobstructive nature of plaintiffs’ activities, the need for inexpensive channels of communication, and the long and rich tradition of free expression in this State begs the question. Such factors are irrelevant to whether State action is present and whether there has been a constitutional infringement. Since there is no State action involved, the provisions of our State Constitution have no role in the resolution of a dispute between private parties.

For these reasons, the order of the Appellate Division should be reversed, with costs, defendant’s motion for summary judgment granted, plaintiffs’ motion for summary judgment denied, and a declaration made that plaintiffs have no right to distribute leaflets on the defendant’s property, contrary to defendant’s wishes.

Jasen, J.

(concurring). While I concur in the opinion of Judge Titone, I write to emphasize what I believe to be a critical limitation upon a shopping mall owner’s right to exclude expressionist activity. In my view, where the owner of a shopping mall voluntarily and affirmatively creates a public forum or accommodation for expressionist activity, by inviting or permitting members of the general public to engage in noncommercial expressive conduct of a civic or community nature in the common areas of the mall, the owner cannot, at the same time, exclude particular expressionists upon purely discriminatory or arbitrary grounds.

In the first instance, the exclusive choice and control rests with the property owner as to whether a mall shall be open or closed to noncommercial expressionist activity. As is true for any owner of private property, the mall owner may exercise his common-law right to exclude and, thereby, deny access to all individuals whose purpose is other than to engage in shopping, browsing, or other commercial or business activities. (Madden v Queens County Jockey Club, 296 NY 249, 253-254, cert denied 332 US 761.)

However, once the owner of a shopping mall has opened the doors to the public to participate in the exchange of noncommercial ideas, such as to present or partake of cultural, educational, or political activities, the common-law right of the owner to exclude any expressionist from his private property must be limited to nondiscriminatory and nonarbitrary grounds. (See, Matter of United States Power Squadrons v State Human Rights Appeal Bd., 59 NY2d 401, 409-415; Jacobson v New York Racing Assn., 33 NY2d 144, 149-150.) The owner may not exclude any person or group from the common areas of a mall,, thus serving as a public forum or accommodation for expressionist purposes, on the basis of race, creed, color, gender, political belief, content of expression, or some other reason repugnant to the law or public policy of this State. (See, Matter of Walker, 64 NY2d 354, 359; Hollis v Drew Theol. Seminary, 95 NY 166, 172.) Of course, a mall owner must still be permitted to regulate the expressive conduct so as to preclude disruption, vulgarity, incitement, or whatever else threatens the health or safety of the patrons or interferes with the primary commercial purpose of a mall. But persons otherwise welcome in a shopping mall for expressionist purposes cannot be excluded solely on the basis of the ideational content of their expression or for some other invidious reason.

It is imperative that this court recognize, not only the absence of a constitutional right of free expression in a privately owned shopping mall, but also the presence of necessary limitations upon the owner’s common-law right of exclusion. The principles which mandate these limitations constitute the most fundamental precepts of nondiscrimination and nonarbitrariness which underlie the decisional law, statutes and public policy of this State. (See, e.g., Matter of United States Power Squadrons v State Human Rights Appeal Bd., supra; Jacobson v New York Racing Assn., supra; Madden v Queens County Jockey Club, supra; Woollcott v Shubert, 217 NY 212, 216-219; Aaron v Ward, 203 NY 351, 356-357; Civil Rights Law § 40; Executive Law §§ 292, 296.)

Under the facts presented in this case, it cannot be said that the mall owner acted in a discriminatory or arbitrary fashion. The Smith Haven Mall does provide rent-free space to members of the general public for various expressionist activities, but plaintiffs have sought only to engage in the distribution of handbills which is uniformly prohibited by the mall owner. The absolute prohibition against this particular manner of expression, being an entirely content-neutral and reasonable means of avoiding litter, confrontation and interference with commercial activity, is a nonarbitrary rule which does not violate any antidiscrimination law or public policy. Consequently, in my view, the mall owner’s ban against handbilling is a permissible exercise of the common-law right of exclusion.

Chief Judge Wachtler

(dissenting). The question presented by this case is whether article I, § 8 of our State Constitution, which affirmatively guarantees the freedom of expression, is to be interpreted in light of modern conditions so as to preserve its underlying purpose and vitality. Because the majority opinion unnecessarily restricts the applicability of article I, § 8, and its decision will adversely affect the ability of many persons and organizations to express their views, I dissent.

The Smith Haven Mall (hereinafter the Mall) is the largest retail center in Suffolk County, and is one of only 18 shopping centers in New York which contain over 1 million square feet of interior space (see, Shopping Center World, at 53 [Jan. 1985]). As found by the lower courts, the Mall was designed to encourage the public to congregate and linger, and it contains several large seating areas. Furthermore, the Mall permits its facilities to be used for a large number of public purposes and community activities, including charity auctions, presentations by the Boy Scouts and Girl Scouts, recruitment efforts by universities and the Armed Forces, voter registration drives by the League of Women Voters, promotional events by local towns, and the provision of free health services. Plaintiffs’ attempts to distribute leaflets caused no greater interference with the commercial interests of the Mall than any of these activities do. On each of the two occasions when the representatives of the plaintiff organizations came to the Mall, they stood under the portico outside of the main entrance to the Mali’s building. Ignored by the majority is the finding by the lower courts — as had been conceded by the Mall in its answer —that the plaintiffs’ activities did not in any manner disrupt the Mall’s operation.

It is true that the Supreme Court has held that the First Amendment to the United States Constitution does not protect leafletting in a privately owned shopping center (see, Lloyd Corp. v Tanner 407 US 551; Hudgens v NLRB, 424 US 507). The Supreme Court has also acknowledged, however, that a State may recognize broader free speech rights on private property as a matter of State law without violating any Federal constitutional rights of the property owner. In PruneYard Shopping Center v Robins (447 US 74), the court held that California’s recognition of a State constitutional right to solicit signatures for petitions in shopping malls did not infringe upon either the Federal property, due process or First Amendment rights of the mall owners. Addressing the same claims as were made by the shopping center owner in this case, the United States Supreme Court found that this State-imposed limitation on the mall owners’ right to exclude was not a taking of their property " 'in the constitutional sense’ ” because there was no indication that it would "unreasonably impair the value or use of their property as a shopping center” (id., at pp 82-83). The Supreme Court specifically noted, in support of this conclusion, that the mall owner was permitted to adopt time, place and manner regulations on the expressive activity so as to minimize any interference with the mall’s commercial functions.

Article I, § 8, originally adopted as article VII, § 8 of the New York State Constitution of 1821, states in relevant part: "Every citizen may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press.” It is significant that, although the First Amendment of the United States Constitution had been ratified 30 years earlier, the drafters of the free speech section at the 1821 New York State Constitutional Convention chose not to follow the language of that provision. Rather, the language chosen, an affirmative grant of the" freedom of expression to all citizens, followed by a separate clause limiting legislative action, was the same as had been adopted in several other States (see, e.g., Pa Const of 1790, art IX, § 7, cited in 8 Swindler, Sources and Documents of United States Constitutions, at 292; Miss Const of 1817, art I, § 6, cited in id., vol 5, at 348; Conn Const of 1818, art I, § 5, cited in id., vol 2, at 145; Me Const of 1819, art I, § 4, cited in id., vol 4, at 315).

The discussion of the free speech provision at the 1821 Convention was confined almost exclusively to that portion of the provision concerning prosecutions for libels (see, Carter and Stone, Reports of the Proceedings and Debates of the Convention of 1821, at 163-173), and the proceedings do not reveal any specific intent with regard to the extent of the "State action” requirement in article I, § 8. While the majority also relies on statements made at the 1967 Constitutional Convention (majority opn, at p 504, n 6), such statements, of course, are entirely irrelevant with regard to the meaning of article I, § 8, adopted 146 years earlier. The absence of any evidence of specific intent which would dictate the result in this case is not surprising. Article I, § 8 was drafted in 1821, long before shopping malls existed. Nor was there any indication then that privately owned property would come to replace town squares and downtown business districts as the public gathering centers in many communities. The majority apparently views constitutional provisions as inflexible law to be interpreted precisely as the framers did at the time of their adoption, and thus finds article I, § 8 inapplicable here, regardless of what present-day circumstances are.

I do not dispute that the history of a constitutional provision is important, and particularly where the proceedings of a constitutional convention reveal a specific and limited purpose for a provision, it may be dispositive (see, e.g., Matter of Esler v Walters, 56 NY2d 306, 313-314). Still, we have before us in this case a brief provision adopted in 1821 after little discussion which, in broad and general terms, sets forth a basic ideal of a democracy. It is largely because of the willingness of courts to interpret such constitutional provisions in light of changing conditions that our freedoms have remained intact and our Constitutions have survived for so long. As stated by Chief Justice Marshall 166 years ago, a Constitution is "intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs.” (M’Culloch v Maryland, 4 Wheat [17 US] 316, 415.)

In Brown v Board of Educ. (347 US 483), the Supreme Court had to determine whether the equal protection clause in the Fourteenth Amendment required that States provide integrated public schools, rather than ones which were "separate but equal.” The court conceded that it could not rely upon the specific intent underlying the provision, as the relevant history was inconclusive as to whether integrated schools were to be required. Instead, the court stated: "[W]e cannot turn the clock back to 1868 when the Amendment was adopted * * * We must consider public education in the light of its full development and its present place in American life throughout the Nation. Only in this way can it be determined if segregation in public schools deprives these plaintiffs of the equal protection of the laws” (347 US, at pp 492-493 [emphasis supplied]).

Here too, given the obvious absence of specific intent, we must consider whether article I, § 8 protects plaintiffs’ activities in light of the purpose underlying the provision and the role of large shopping malls in modern society. The proceedings of the 1821 Constitutional Convention reveal that the free speech provision, as an integral part of the Bill of Rights, was proposed primarily to express the view that fundamental principles of individual liberties were safeguarded under New York law (see, Carter and Stone, Reports of the Proceedings and Debates of the Convention of 1821, at 102). There can be little doubt, of course, that the right of free expression is one of our most cherished liberties and is essential for the functioning of a democracy (see, e.g., Matter of Oliver v Postel, 30 NY2d 171, 183; Matter of Steinbeck v Gerosa, 4 NY2d 302, 313-314, appeal dismissed 358 US 39; Cox, Freedom of Expression, at 1-5). The question thus becomes whether protecting the peaceful and orderly exercise of free speech in a large shopping mall is required to uphold the fundamental values enshrined in article I, § 8.

Free speech rights are only valuable if there are adequate means of communication available to those who wish to express a view. Inexpensive channels of communication which provide direct access to large numbers of people are often essential for effective expression (see, e.g., Martin v City of Struthers, 319 US 141, 146). To this end, the distribution of leaflets or handbills in places where people gather has long been recognized as vital for the preservation of a meaningful freedom of speech (see, e.g., Martin v City of Struthers, 319 US, at pp 146-147, supra; Schneider v State, 308 US 147, 162).

Historically, town squares and downtown business districts were the public gathering centers for communities (see, e.g., Alderwood Assoc. v Washington Envtl. Council, 96 Wn 2d 230, 239, 635 P2d 108, 114; Note, Private Abridgment of Speech and the State Constitutions, 90 Yale LJ 165, 168). Not surprisingly, public parks, streets and sidewalks came to be recognized as traditional public forums where expressive activity such as leafletting received its greatest protection (see, e.g., Shuttlesworth v Birmingham, 394 US 147, 152; Jamison v Texas, 318 US 413, 415-416; Schneider v State, 308 US 147, 163, supra; Hague v C. I. O., 307 US 496, 515-516). When the significance of streets and sidewalks as public forums was being developed in the 1930’s and 1940’s, privately owned shopping centers were virtually nonexistent; as late as 1950 there were fewer than 100 of them in the entire country (Eagle, Shopping Center Control: The Developer Besieged, 51 J Urb L 585, 589). By now, this number is greater than 25,000 (see, Shopping Center World, at 55 [Jan. 1985]), and, more importantly, privately owned shopping centers have, in many communities, replaced downtown business districts as the public gathering centers (see, e.g., Food Employees v Logan Plaza, 391 US 308, 318, 324; Robins v PruneYard Shopping Center, 23 Cal 3d 899, 907, 910, 592 P2d 341, 345, 347, affd 447 US 74).

This displacement is most pronounced with respect to the large regional malls which contain numerous facilities other than retail shops and thereby encourage lengthy and frequent visits to the premises (see, Note, Private Abridgment of Speech and the State Constitutions, 90 Yale LJ, at 168). Again, the number of such malls has been dramatically increasing during the past 25 to 30 years (see, Sternleib and Hughes, Shopping Centers: U.S.A., at 180, 189), and New York has seen no exception to this trend (see, Shopping Center World, at 53 [Jan. 1985]; id., at 66, 78 [Jan. 1981]).

The facts found by the lower courts with respect to the Smith Haven Mall demonstrate the significant role that large regional shopping malls play as public gathering places. Almost one half of all its customers do not ordinarily shop at any other shopping centers, and its broad range of facilities insure that many of a person’s shopping, business, entertainment and personal needs can be met there. The Mall promotes itself as a place for the public to congregate and linger, and the fact that it permits its facilities to be used for numerous public purposes, and does grant access to certain groups for the dissemination of information, belies any assertion that the premises are limited exclusively to commercial functions. The conclusion, reached by the lower courts, that the Mall has all of the attributes of a downtown business area or town center is inescapable.

It is also evident that, in light of the large number of people who congregate at the Mall, the exercise of free speech by those who seek to communicate with the general public will be adversely affected by a complete denial of access to the Mall. As the Supreme Court has sustained the constitutionality of a Federal statute prohibiting the placement of unstamped materials in homeowners’ mailboxes (see, United States Postal Serv. v Greenburgh Civic Assns., 453 US 114), a group without the funds needed for mass mailings or advertisements in the mass media will be effectively precluded from expressing its views to the public in those portions of New York, such as Suffolk County, where privately owned malls have become the primary public gathering places.

The majority dwells on the requirement of State action under article I, § 8, and on the absence of the traditional indicia of State action set forth in the context of equal protection and due process claims. However, because the Mall, though privately owned, has, through its size, nature of use and broad invitation to the public, become the functional equivalent of a traditional public forum, and because a complete denial of access will have a significant adverse effect on the dissemination of ideas in the community, any requirement of State action under article I, § 8 has been satisfied, and the Mall should not be able to ban the distribution of leaflets on its premises. The mall owner, of course, would be entitled to adopt time, place and manner restrictions on the leafletting designed to prevent any interference with the commercial functions of the Mall (see, PruneYard Shopping Center v Robins, 447 US, at p 83; id., at pp 96-97 [Powell, J., concurring]; Robins v PruneYard Shopping Center, 23 Cal 3d, at p 910, 592 P2d, at p 347, supra; Batchelder v Allied Stores Intl., 388 Mass 83, 92, 445 NE2d 590, 595).

Our State Constitution is an innovative document. It was intended to ensure that rights and privileges granted in the past would be preserved in the future under changing conditions. In the past, those who had ideas they wished to communicate to the public had the unquestioned right to disseminate those ideas in the open marketplace. Now that the marketplace has a roof over it, and is called a mall, we should not abridge that right.

Judges Jasen, Simons, Kaye and Alexander concur with Judge Titone; Judge Jasen concurs in a separate concurring opinion; Chief Judge Wachtler dissents and votes to affirm in another opinion in which Judge Meyer concurs.

Order reversed, with costs, defendant’s motion for summary judgment granted, plaintiffs’ motion for summary judgment denied, and judgment granted in favor of defendant declaring that plaintiffs have no right to distribute leaflets on defendant’s property, contrary to defendant’s wishes.

      . "Every citizen may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press.”

      . In fact, during the 1976 New York Senatorial campaign, then United States Senator James Buckley was evicted from the Mall when he attempted to campaign there.

      . The Supreme Court has acknowledged that, in certain circumstances, a State may recognize broader free speech rights as a matter of State law without offending any Federally guaranteed rights enjoyed by the property owner (PruneYard Shopping Center v Robins, 447 US 74).

      . General Root’s view is consistent with the history of the free speech clauses contained in American State Constitutions as traced by Professor Chaffee. He notes that, unlike their European counterparts, the free speech provisions in American Constitutions are "not merely expressions of political faith * * * Their history shows that they limit legislative action as much as any other part of the Bill of Rights” (Chaffee, Free Speech in the United States, at 4). Professor Chaffee also observes that the first clause of article I, § 8, which the dissent urges is some sort of affirmative guarantee of free expression, actually was aimed at curbing legislation concerning defamation (id., at 5, n 2, citing Reports of New York Constitutional Convention of 1821, at 167, 487). Sister State courts have construed identical language in their Constitutions as a limitation on legislative power to abolish defamation actions (Note, Developments in the Law: The Interpretations of State Constitutional Rights, 95 Harv L Rev 1324, 1405-1406; see, McCall v Courier-Journal & Louisville Times Co., 623 SW2d 882, 886 [Ky], cert denied 456 US 975).

      . State v Schmid (84 NJ 535, 423 A2d 615, appeal dismissed sub nom. Princeton Univ. v Schmid, 455 US 100), which did not involve a shopping center, does not rest on an abandonment of a State action requirement for the court noted that its prior decisions had "observed that the State Constitution serves only to limit the sovereign power which inheres directly in the people and indirectly in their elected representatives” (84 NJ, at p 558, 423 A2d, at p 627; see also, Brown v Davis, 203 NJ Super 41, 495 A2d 900). In any event, New Jersey added its free speech provision in 1844, well after New York had done so (84 NJ, at 557-558, 423 A2d, at p 627). Thus, its analysis sheds little light on the intent of the framers of the New York Bill of Rights.
      In Alderwood Assoc. v Washington Envtl. Council (96 Wn 2d 230, 635 P2d 108), a majority of the court actually rejected the abrogation of a State action requirement. Justice Dolliver, whose vote was decisive, emphatically rejected the plurality’s reasoning, finding it "both unnecessary and imprudent” (96 Wn 2d, at p 247, 635 P2d, at p 118).
      The 4-3 decision of the California Supreme Court in Robins v PruneYard Shopping Center (23 Cal 3d 899, 592 P2d 341, affd 447 US 74) is hardly persuasive authority. That court, in overruling its own contrary precedent only five years old (Diamond v Bland, 11 Cal 3d 331, 521 P2d 460, cert denied 419 US 885), simply said that the California Constitution protected speech and petitioning at private shopping centers. There is not much analysis and only tangential discussion, if it can be called that, of the State action question. It is evident that the result in Robins was dictated by "the accident of a change of personalities in the Judges of [the] court”, which this court has correctly condemned as "a shallow basis for jurisprudential evolution” (People v Hobson, 39 NY2d 479, 491). Be that as it may, the California Constitution was adopted in 1849 (see, Diamond v Bland, 11 Cal 3d, at pp 337-338, 521 P2d 460, 465 [dissenting opn]) and thus similarly offers no insight on the construction of the New York Constitution.

      . In Sharrock v Dell Buick-Cadillac (45 NY2d 152, 157-163), for example, we did not determine that, under the circumstances of the particular infringement, State action need not be shown. Rather, we formulated a method of determining whether governmental conduct could be inferred or discovered in a transaction that historically had been characterized as "private.” It is also instructive to note that the framers of the proposed New York State Constitution of 1967 — whose aim was to modernize the Constitution to meet changing needs and understandings — adopted a view and articulation of the free speech right that clearly included a State action requirement (see, 12 Proceedings of 1967 Constitutional Convention of the State of New York, at 3 [text of proposed free speech provision]; and see, id., vol 3, at 347-351 [debate concerning the propriety of adopting the free speech language of the First Amendment]).

      . Structurally and functionally, a shopping center is very different from the "company town” in Marsh v Alabama (326 US 501, 502), which consisted of "residential buildings, streets, a system of sewers, a sewage disposal plant and a 'business block.’ ” The Mall is closed to the public after business hours and the owner does not perform "the full spectrum of municipal powers” or "[stand] in the shoes of the State” (Lloyd Corp. v Tanner, 407 US 551, 569).

      . It should also be noted that whether the Mall was designed and used not merely as a commercial center, but as a social and community center as well, and whether there are meaningful alternatives for free expression, were hotly contested questions of fact, which could not be resolved by summary judgment (CPLR 3212 [b]; Lopez v Senatore, 65 NY2d 1017; Winegrad v New York Univ. Med. Center, 64 NY2d 851). The findings of the courts below on these questions, relied on by the dissent, could not be accepted by this court in the present procedural posture. For the purpose of disposition of this appeal, however, these findings are irrelevant.

      . The First Amendment provides that "Congress shall make no law * * * abridging the freedom of speech”.

      . In Sharrock v Dell Buick-Cadillac (45 NY2d 152), we recognized the importance of .such linguistic differences from a parallel provision of the United States Constitution in determining whether to interpret a State constitutional provision more broadly than its Federal counterpart. In Sharrock, we relied largely on "the unique language of the due process clause of the New York Constitution” and more specifically, on the absence of "any language requiring State action” (id., at pp 159, 160), in holding that the State provision did not contain the same State action requirement as that in the 14th Amendment to the United States Constitution. The majority’s claim that the first clause of article I, §8 "was aimed at curbing legislation concerning defamation” (majority opn, at p 500, n 4) is unsupported by either the text of the provision, the second sentence of which specifically provides that in a prosecution for libel "if it shall appear to the jury that the matter charged as libelous is true, and was published with good motives * * * the party shall be acquitted”, or by Professor Chaffee’s statement cited by the majority, which unambiguously refers to this second sentence.

      . The harm to those groups which need personal contact with the public, such as to collect signatures for a petition, will, of course, be even more pronounced.


author: Meyer, J.

text:
    In the Matter of Charles A. Field Delivery Service, Inc., Respondent. Lillian Roberts, as Commissioner of Labor, Appellant.
    Decided December 19, 1985
    APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Richard S. Lo Primo of counsel), for appellant.

      Michael R. Suprunowicz for respondent.
   OPINION OF THE COURT

Meyer, J.

A decision of an administrative agency which neither adheres to its own prior precedent nor indicates its reason for reaching a different result on essentially the same facts is arbitrary and capricious. The order of the Appellate Division confirming the determination of the Unemployment Insurance Appeal Board that respondent’s delivery persons are independent contractors for whom respondent need make no unemployment insurance contribution should, therefore, be reversed and the matter remitted to the Board for further proceedings in accordance with this opinion.

I

Respondent operates a delivery service pursuant to a contract with a medical laboratory. Respondent’s drivers are called directly by the laboratory and on the basis of those calls pick up specimens from the offices of physicians who use the laboratory’s services. The driver takes them to Albany County Airport for transportation to the laboratory. Upon completion of the laboratory’s testing and analysis the results are delivered to a collection center, from which they are picked up by respondent’s drivers and delivered to the forwarding physician. The drivers collect no money from the physicians and channel any complaints received directly to the laboratory without informing respondent.

The drivers have no written contract with respondent and are terminable at will. They use their own vehicles and pay for their own gas, tolls, insurance and other expenses. They are free to determine the order in which calls will be made and to make pickups or deliveries for others, for which respondent receives no part of the compensation, so long as all pickups and deliveries under respondent’s contract with the laboratory are completed on the day received. A driver who is unable to work on a particular day is responsible for finding a replacement driver for that day.

Drivers are not required to complete time sheets or other records or forms for respondent, except an itemized invoice covering a two-week period and stating the names, addresses and dates of pickups and deliveries made during that period. Each driver is compensated by respondent on the basis of the number and type of the jobs completed by him during the period, the amount paid for any given delivery being computed by respondent’s president on the basis of the distance traveled and the time expended in completing it. No taxes are withheld from a driver’s compensation, nor is workers’ compensation insurance provided.

The Commissioner of Labor determined that respondent’s drivers were employees rather than independent contractors and assessed a deficiency of $2,834.40 against respondent under the Unemployment Insurance Law (Labor Law § 570). Respondent having requested a hearing, the administrative judge agreed that the drivers were employees, but on respondent’s appeal to the Unemployment Insurance Appeal Board, that body reversed, concluding that respondent "did not have the right to exercise significant control over the method or manner by which the drivers chose to complete performance of their delivery services” and on reconsideration, adhered to that decision. In neither its original decision nor its decision on reconsideration did the Board cite any precedent for its determination.

On the Commissioner’s appeal to the Appellate Division that court affirmed, without opinion, two Justices dissenting. The dissenters, finding that the facts of the case were "indistinguishable, in any significant respect” from two earlier Board decisions which had been confirmed by both the Appellate Division and the Court of Appeals (Matter of Di Martino [Buffalo Courier Express Co.—Ross] 59 NY2d 638, affg 89 AD2d 829; Matter of Wells [Utica Observer-Dispatch & Utica Daily Press—Roberts] 59 NY2d 638, affg 87 AD2d 960) and concluding that "it is incumbent on the Board to decide like cases the same way or explain the departure [citations omitted]”, voted to reverse. (112 AD2d, at p 507.) We agree that, absent an explanation by the agency, an administrative agency decision which, on essentially the same facts as under-laid a prior agency determination, reaches a conclusion contrary to the prior determination is arbitrary and capricious. And we conclude, as did the dissenters below, that the present case involves facts indistinguishable from those of the Di Martino and Wells cases. We, therefore, reverse and remit to the Board for further proceedings.

II

Stare decisis is no more an inexorable command for administrative agencies than it is for courts (see, Wachtler, Stare Decisis and a Changing New York Court of Appeals, 59 St John’s L Rev 445, 452). They are, therefore, free, like courts, to correct a prior erroneous interpretation of the law (Matter of Pascual v State Bd. of Law Examiners, 79 AD2d 1054, 1055, lv denied 54 NY2d 601; Matter of Leap v Levitt, 57 AD2d 1021, lv denied 42 NY2d 807) by modifying or overruling a past decision (see, Davis, Administrative Law §§ 20:10-20:11 [2d ed]; Jaffe, Judicial Control of Administrative Action, at 587-588). They are, likewise, free, like courts, to determine how disputed facts are to be decided, judging credibility and drawing such inference as they find reasonable in order to resolve contested questions of fact (Matter of McSweeney v Hammerlund Mfg. Co., 275 App Div 447, 450; see, Matter of Dresher [Lubin], 286 App Div 591; Gabrielli and Nonna, Judicial Review of Administrative Action in New York: An Overview and a Survey, 52 St John’s L Rev 361, 363; Jaffe, Judicial Review: Questions of Law, 69 Harv L Rev 239, 241), and it is not within the power of the courts to impose factual consistency.

The policy reasons for consistent results, given essentially similar facts, are, however, largely the same whether the proceeding be administrative or judicial — to provide guidance for those governed by the determination made (Matter of Howard Johnson Co. v State Tax Commn., 65 NY2d 726, 727); to deal impartially with litigants; promote stability in the law; allow for efficient use of the adjudicatory process; and to maintain the appearance of justice (Davis, Doctrine of Precedent as Applied to Administrative Decisions, 59 W Va L Rev 111, 128-136). The underlying precept is that in administrative, as in judicial, proceedings "justice demands that cases with like antecedents should breed like consequences” (id., at 117; accord, Koslow, Standardless Administrative Adjudication, 22 Admin L Rev 407, 424; Kramer, Place and Function of Judicial Review in the Administrative Process, 28 Fordham L Rev 1, 8). Legislative awareness of the policy considerations involved is evident from Labor Law § 534, the third unnumbered paragraph of which requires that the Board "maintain a current index, by topic, of the principles of law established by the decisions rendered by the board and the courts concerning matters arising under [the Unemployment Insurance Law]” and make copies of the index available for public inspection and examination at all locations where unemployment insurance hearings are conducted.

From the policy considerations embodied in administrative law, it follows that when an agency determines to alter its prior stated course it must set forth its reasons for doing so. Unless such an explanation is furnished, a reviewing court will be unable to determine whether the agency has changed its prior interpretation of the law for valid reasons, or has simply overlooked or ignored its prior decision (Kramer, op. cit., at 68-70). Absent such an explanation, failure to conform to agency precedent will, therefore, require reversal on the law as arbitrary, even though there is in the record substantial evidence to support the determination made (Matter of Howard Johnson Co. v State Tax Commn., 65 NY2d, at p 727, supra; Matter of New York Tel. Co. v Public Serv. Commn., 62 NY2d 57, 62; Matter of Dresher [Lubin], 286 App Div, at p 594, supra; Matter of Fitzgerald v State Div. of Dept. of Public Serv., 262 App Div 393, 397; see, Atchison, Topeka & Santa Fe Ry. Co. v Wichita Bd. of Trade, 412 US 800, 807-808 [plurality opn]; Greater Boston Tel. Corp. v Federal Communications Commn., 444 F2d 841, 852, cert denied 403 US 923; 4 Davis, Administrative Law § 20:11, at 37 [2d ed]; Kaufman, Judicial Review of Agency Action: A Judge’s Unburdening, 45 NYU L Rev 201, 204, 209).

Ill

Examined against that background, it is clear that there must be a reversal. The question before the Board, not uncommon in Unemployment Insurance Law cases, was whether the drivers working for respondent were its employees for whom respondent was required to make contributions to the unemployment insurance fund (Labor Law § 511) or independent contractors for whom no such contribution need be made. Whether an employer-employee relationship exists is a question of fact, to be decided on the basis of evidence from which it can be found that the alleged employer "exercises control over the results produced * * * or the means used to achieve the results” (Matter of 12 Cornelia St. v Ross, 56 NY2d 895, 897). No one factor is determinative, but control over means is the more important factor to be considered (Matter of Ted Is Back Corp. [Roberts], 64 NY2d 725, 726). The Board’s determination of the issue, if supported by substantial evidence on the record as a whole, is beyond judicial review even though the evidence would have supported a contrary conclusion (Matter of Concourse Ophthalmology Assoc. [Roberts], 60 NY2d 734, 736; Matter of Di Martino [Buffalo Courier Express Co.—Ross], 59 NY2d 638, 641, supra).

The problem in the present case is that in the Di Martino and Wells cases (supra), the Board determined that the relationship was that of employer-employee, determinations which were confirmed by us, on the record before the Board, as supported by substantial evidence. In Di Martino, each of the delivery persons for a newspaper company signed an "independent contractor” agreement. The delivery persons were provided with a list of customers and were required to make all deliveries by a specified time. All subscription fees were collected by the newspaper itself. The delivery persons used their own vehicles but received a mileage allowance. The newspaper bore the risk of loss for damaged papers, and the newspaper took all complaints from subscribers directly. In Wells, the delivery persons also signed an "independent contractor” agreement and used their own vehicles to deliver newspapers to retailers. They were not reimbursed for gas or mileage. Remuneration was on a per-delivery basis, with no sequence prescribed for the drop-offs. The delivery persons were allowed to subcontract their deliveries. The ultimate responsibility for each delivery person was to finish all deliveries by a stated time. Delivery persons were paid without any deductions, and there were no employment rules or regulations to follow. Comparison of the facts on the basis of which Di Martino and Wells were decided with the facts of the instant case recited above makes evident, if not the impossibility of distinguishing this case from Di Martino and Wells, at least the existence of sufficient factual similarity between those cases and this to require explanation by the Board of why it reached a different result in this case.

For the foregoing reasons, the order of the Appellate Division should be reversed, without costs, and the matter remitted to the Board for further proceedings in accordance with this opinion.

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

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed, without costs, and matter remitted to the Appellate Division, Third Department, with directions to remand to the Unemployment Insurance Appeal Board for further proceedings in accordance with the opinion herein.

      . The facts stated in the preceding three paragraphs of this opinion are the facts on which the Board based its determination.

      . Indeed, it is often suggested that such an agency "has somewhat greater freedom than a common-law court” (Matter of Dresher [Lubin], 286 App Div 591, 594; see, Food Mktg. Inst. v Interstate Commerce Commn., 587 F2d 1285, 1290; Davis, Administrative Findings, Reasons and Stare Decisis, 38 Cal L Rev 218; Davis, Doctrine of Precedent As Applied To Administrative Decisions, 59 W Va L Rev 111, 124; Ann., 79 ALR2d 1126, 1131-1132; 2 NY Jur 2d, Administrative Law, § 146, at 230).

      . Although the Unemployment Insurance Appeal Board is not covered by the State Administrative Procedure Act (§ 102 [1]), that act likewise requires that each agency governed by the act "maintain an index by name and subject of all written final decisions, determinations and orders rendered by the agency in adjudicatory proceedings”, make the index and the text of any such decision available for public inspection and copying, and index each decision within 60 days after it is rendered (State Administrative Procedure Act § 307 [3] [a]).


author: Simons, J.

text:
    The People of the State of New York, Appellant, v Howard Worley, Respondent. The People of the State of New York, Appellant, v John Hamilton, Respondent.
    Argued October 16, 1985;
    decided December 26, 1985

      POINTS OF COUNSEL

      Elizabeth Holtzman, District Attorney (Barbara D. Underwood and Leonard Joblove of counsel), for appellant.
    I. A continuance granted for defense motions, or on defendants’ request or consent, constitutes a period of "delay resulting from” the motions or continuance, regardless of the People’s state of readiness or ability to become ready for trial. (People v Brothers, 50 NY2d 413; People v Kendzia, 64 NY2d 331; People v Jones, 105 AD2d 179, 64 NY2d 890; People v Cole, 90 AD2d 27; People v Williams, 72 AD2d 950; People v Williams, 56 NY2d 824; People v Bratton, 103 AD2d 368, 63 NY2d 945; United States v Cobb, 697 F2d 38; Sanders v Winship, 57 NY2d 391; People v Panarella, 50 AD2d 304.) II. If People v Colon changed the manner of computing excludable time pursuant to CPL 30.30 (4) (a) and (b), any such change should not apply retroactively to the present case. (People v Colon, 59 NY2d 921; People v Pepper, 53 NY2d 213, 454 US 967; People v Morales, 37 NY2d 262; Desist v United States, 394 US 244; United States v Johnson, 457 US 537; People v Lomax, 50 NY2d 351; People v Hamilton, 46 NY2d 932; People v Sturgis, 38 NY2d 625; People v Miller, 78 AD2d 817; People v Ronzetti, 88 AD2d 982; People v Scafo, 77 AD2d 668.) III. After exclusion of the periods enumerated in CPL 30.30 (4), the People were ready for trial well within the 90 days specified by CPL 30.30 (1) (b). (People v Colon, 59 NY2d 921; People v Sturgis, 38 NY2d 625; People v Lomax, 50 NY2d 351; People v Giordano, 56 NY2d 524; People v Miller, 78 AD2d 817.)

      David P. Friedman and William E. Hellerstein for respondents.
    The dismissal of the misdemeanor informations pursuant to CPL 30.30 was proper where the People failed to convert each of the misdemeanor complaints into informations within 90 days of arraignment and then failed to demonstrate that the delay in converting was caused by events excludable under CPL 30.30 (4). (People v Colon, 110 Misc 2d 917, 112 Misc 2d 790, 59 NY2d 921; People v Sturgis, 38 NY2d 615; People v Osgood, 52 NY2d 37; People v Williams, 56 NY2d 824; People v Brothers, 50 NY2d 413; People v Berkowitz, 50 NY2d 333; People v Gruden, 42 NY2d 214; People v Taranovich, 37 NY2d 442; People v Pepper, 53 NY2d 213; Gurnee v Aetna Life & Cas. Co., 55 NY2d 184.)
   OPINION OF THE COURT

Simons, J.

Defendants in these two separate proceedings were charged in the Criminal Court of New York City with misdemeanors. Both complaints were dismissed on speedy trial grounds because the People failed to convert the complaints to informations within 90 days after the proceedings were commenced (see, CPL 30.30 [1] [b]). In granting the motions to dismiss, the court relied on People v Colon (59 NY2d 921) and applied it retroactively to these proceedings, which had been commenced before that decision was announced, holding that the Colon decision did not represent a "clear and unanticipated break with past law” in the area (see, People v Pepper, 53 NY2d 213; Desist v United States, 394 US 244). Both orders were affirmed by the Appellate Term.

On this appeal, the People contend that the Colon rule, which applies to delays resulting from defendant’s absence (see, CPL 30.30 [4] [c]), should not be applied to delays occasioned by adjournments requested by defendant or to which he consents (see, CPL 30.30 [4] [a], [b]). They note that if the periods of delay occasioned by such adjournments before conversion are not charged to them, then their statement of readiness was timely in each case. We agree that the delays were not chargeable to the People and therefore reverse the orders appealed.

On March 9, 1983 defendant Worley was charged in a complaint with assault, third degree, and criminal mischief, fourth degree, arising out of an incident with William Silver-man, and a separate, unrelated count of assault, third degree, arising from an incident with Police Officer George Betz. The Betz complaint rested entirely on nonhearsay allegations. After several adjournments for defense motions and adjournments granted by the court at defendant’s request or with his consent, the People filed a supporting deposition on July 28, 1983 and converted the complaint to an information (see, CPL 170.65). They announced their readiness for trial on the same date. On October 14, 1983 Criminal Court granted in part defendant’s CPL 30.30 motion and dismissed the two counts relating to the Silverman incident. It held that inasmuch as the complaint had not been converted to an information within 90 days, those charges must be dismissed because the People were barred from excluding delays before conversion occasioned by defendant’s motions or adjournments he had requested or consented to.

On November 3, 1982 defendant Hamilton was charged in a complaint with criminal possession of a weapon in the fourth degree and menacing arising out of an incident with Regina Crawford. The case was adjourned several times at the request or with the consent of the defendant. The People supplied a supporting deposition on April 7, 1983, thereby converting the complaint to an information, and they announced their readiness for trial on June 30, 1983. On August 9, 1983 the Criminal Court granted defendant’s CPL 30.30 motion to dismiss.

In People v Sturgis (38 NY2d 625), we held the People were not ready for trial within the statutory six-month period applicable to felonies because they could not proceed to trial without an indictment and they had not obtained one within six months after the proceeding was commenced. This was so, we held, even though defendant was absent during two and one-half months of the six-month period. The two and one-half months could not be excluded as delay "resulting from the absence or unavailability of the defendant” because defendant’s absence did not prevent submission of the case to the Grand Jury (see, CPL 30.30 [4] [c]). In People v Colon (supra) we affirmed an order which applied the Sturgis rationale to misdemeanor complaints, holding that the defendant’s absence or unavailability during part of the 90-day period did not prevent the People from converting the complaint to an information and obtaining an accusatory instrument on which they could proceed to trial. Inasmuch as they had failed to do so within the period allowed by CPL 30.30, the proceeding was properly dismissed. The Sturgis-Colon rationale should not apply in the present circumstances, however, because even though defendants’ actions did not prevent the People from obtaining accusatory instruments sufficient for trial, defendants waived the delay in the proceedings by requesting or consenting to them.

The history of the statute supports such a construction. In enacting CPL 30.30 the Legislature intended to impose an obligation on the People to be ready for trial. The statutory scheme differed from and was intended to supersede stringent speedy trial rules previously adopted by the Administrative Board which required the People to actually bring the defendant to trial within a specified time. Several critics believed that adoption of the Board’s rules would necessitate massive increases of personnel in the courts and prosecutors’ offices to avoid wholesale dismissals and urged that the rule be limited to delay caused by the prosecution. The Legislature responded to this concern by enacting section 30.30, intending its provisions to address only the problem of prosecutorial readiness (see generally, People v Brothers, 50 NY2d 413, 416-417; Bellacosa, Practice Commentary, McKinney’s Cons Laws of NY, Book 11 A, CPL 30.30). The protection of speedy trial rights, which would include the consideration of delays caused not only by the prosecution but also by factors such as court congestion, were addressed by CPL 30.20 and by constitutional provisions. Inasmuch as the Legislature intended CPL 30.30 to address delays caused by the People, the time required for defendant’s pretrial motions and his requested adjournments should be excluded. Those delays have been caused by the defendant for his own benefit, and with the court’s permission, under circumstances in which both the defendant and the court have determined that the adjournment is desirable. In view of the defendant’s express waiver of the delay, the People are not required to causally trace their lack of readiness to defendant’s actions before the court is warranted in excluding the periods resulting from adjournments authorized by subdivision 4 (a) and (b).

The Sturgis and Colon decisions are also distinguishable from these appeals because they address policy concerns unique to subdivision 4 (c). Sturgis and Colon were intended to prevent indefinite delays and prosecutorial inaction in cases involving absent defendants. In such situations, the delay is open-ended in nature, and not subject to the court’s control, thus creating the potential for unjustified and limitless delay. To avoid that prospect, the court interpreted subdivision 4 (c) as requiring that prosecutors obtain an accusatory instrument sufficient for trial before claiming the delay resulted from defendant’s absence. To contrast, adjournments at the defense’s request or with his consent may be granted only with the court’s permission and may be limited by it to a reasonable period of time. Furthermore, exclusions rest generally on theories of estoppel or waiver, and the defendant’s absence is much more equivocal evidence of his consent to delay than are defense motions or requests for adjournments by which defendant impliedly consents to delay (see, People v Parker, 57 NY2d 136). We recognized this difference between the application of paragraphs (a) and (c) of subdivision 4 in Sturgis when we refused to charge the prosecutor with nine days’ delay resulting from defense counsel’s request for an adjournment but did charge him with the time during defendant’s absence (see, People v Sturgis, 38 NY2d 625, 627, supra; see also, People v Berke, 66 NY2d 861; People v Lomax, 50 NY2d 351; People v Hamilton, 46 NY2d 932; People v Campbell, 96 AD2d 725; People v Ronzetti, 88 AD2d 982).

Accordingly, in each case the order of the Appellate Term should be reversed and the complaint reinstated.

Chief Judge Wachtler and Judges Jasen, Meyer, Kaye, Alexander and Titone concur.

In each case: Order reversed, etc.

      . CPL 30.30 (4) (a) and (b) provides:
      "4. In computing the time within which the people must be ready for trial pursuant to subdivisions one and two, the following periods must be excluded:
      "(a) a reasonable period of delay resulting from other proceedings concerning the defendant, including but not limited to: proceedings for the determination of competency and the period during which defendant is incompetent to stand trial; demand to produce; request for a bill of particulars; pre-trial motions; appeals; trial of their charges; and the period during which such matters are under consideration by the court; or "(b) the period of delay resulting from a continuance granted by the court at the request of, or with the consent of, the defendant or his counsel. The court must grant such a continuance only if it is satisfied that postponement is in the interest of justice, taking into account the public interest in the prompt dispositions of criminal charges. A defendant without counsel must not be deemed to have consented to a continuance unless he has been advised by the court of his rights under these rules and the effect of his consent”.

      . Paragraph (c) of subdivision 4 has since been amended to provide that there shall be excluded from the time charged to the People the period of delay extending from the day on which a bench warrant has been issued for a defendant who has failed to appear to the day on which he subsequently appears in court (see, L 1984, ch 670).