author: Meyer, J.

text:
    Donald J. Lucenti, Respondent, v Cayuga Apartments, Inc., Appellant.
    Argued November 19, 1979;
    decided December 13, 1979

      POINTS OF COUNSEL

      George H. Van Lengen for appellant.
    I. The trial court correctly interpreted and applied the Uniform Vendor and Purchaser Risk Act (General Obligations Law, § 5-1311), and the court below erred in reversing its judgment. (Sewell v Underhill, 197 NY 168; Clinton v Hope Ins. Co., 45 NY 454; Goldman v Rosenberg, 116 NY 78; Polisiuk v Mayers, 205 App Div 573; World Exhibit Corp. v City Bank Farmers Trust Co., 270 App Div 654; Burack v Tollig, 6 Misc 2d 450, mod sub nom. Burack v Chase Manhattan Bank, 9 AD2d 914, affd sub nom. Burack v Tollig, 10 NY2d 879.) II. The court below erred in overruling the actual finding of the trial court that plaintiff had abandoned the contract. (Nassoiy v Tomlinson, 148 NY 326; Coe v Hobby, 72 NY 141; Strychalski v Mekus, 54 AD2d 1068; Spano v Perini Corp., 25 NY2d 11; Shipman v Words of Power Missionary Enterprises, 54 AD2d 1052; Kelly v Watson Elevator Co., 309 NY 49; Barnet v Cannizzaro, 3 AD2d 745;
      People v Gaimari, 176 NY 84; Collier v Lukes, 36 AD2d 662; Incardona v Home Ind. Co., 60 AD2d 749.) III. Plaintiffs measure of damages is erroneous, likewise the court’s. (Matter of Simmons, 195 NY 573; Matter of City of Rochester [Genesee Crossroads — Morris], 32 AD2d 882; McAnarney v Newark Fire Ins. Co., 247 NY 176; Sebring v Firemen’s Ins. Co. of Newark, N. J., 227 App Div 103; Incardona v Home Ind. Co., 60 AD2d 749.)

      Connie Fern Miller and Michael J. Pichel for respondent.
    I. Section 5-1311 of the General Obligations Law and the cases construing same, entitle the purchaser to specific performance with an abatement, in cases of material destruction of real property. (Sewell v Underhill, 197 NY 168; Burack v Tollig, 6 Misc 2d 450, mod sub nom. Burack v Chase Manhattan Bank, 9 AD2d 914, affd sub nom. Burack v Tollig, 10 NY2d 879; Rizzo v Landmark Realty Corp., 277 App Div 1094, 278 App Div 630; World Exhibit Corp. v City Bank Farmers Trust Co., 186 Misc 420, 270 App Div 654, 296 NY 586; Matter of County of Westchester v P. & M. Materials Corp., 20 AD2d 431; Horowitz v Haber, 37 Misc 2d 1036.) II. The negotiations between the parties, in the course of which respondent stated he would not purchase the property at the contract price, do not amount to an oral rescission of the contract; and even if the contract were orally rescinded, the claimed oral rescission would not be enforceable as a matter of law. (Brody v Rhoads, 33 Misc 2d 699, 15 AD2d 561; La Rosa v Matthews, 28 Misc 2d 929.) III. The court below was correct to increase the amount of the abatement due plaintiff-respondent. (Burack v Tollig, 6 Misc 2d 450, mod sub nom. Burack v Chase Manhattan Bank, 9 AD2d 914, affd sub nom. Burack v Tollig, 10 NY2d 879; Polisiuk v Mayers, 205 App Div 573; Matter of County of Westchester v P. & M. Materials Corp., 20 AD2d 431; Mc-Anarney v Newark Fire Ins. Co., 247 NY 176; Sebring v Firemen’s Ins. Co. of Newark, N. J., 227 App Div 103; Deitch v Shamash, 56 Misc 2d 875; Rosenbloom v Maryland Ins. Co., 258 App Div 14; Horowitz v Haber, 37 Misc 2d 1036.) IV. Appellant’s brief contains errors and misstatements of fact, and assumes facts not in evidence, and the authorities cited by appellant fail to support its arguments, but instead support respondent’s arguments. (Rizzo v Landmark Realty Corp., 277 App Div 1094; Matter of County of Westchester v P. & M. Materials Corp., 20 AD2d 431; Kelly v Watson Elevator Co., 309 NY 49; Burack v Tollig, 6 Misc 2d 450, mod sub nom.

      Burack v Chase Manhattan Bank, 9 AD2d 914, affd sub nom. Burack v Tollig, 10 NY2d 879; Polisiuk v Mayers, 205 App Div 573; National Factors v Winslow, 52 Misc 2d 194; World Exhibit Corp. v City Bank Farmers Trust Co., 186 Misc 420, 270 App Div 654, 296 NY 586.)
   OPINION OF THE COURT

Meyer, J.

When prior to title closing a building is substantially damaged by fire may the purchaser under a real estate contract which contains no risk of loss provision obtain specific performance with an abatement of the purchase price? The answer to that question is adumbrated by our decision in Hecht v Meller (23 NY2d 301), which noted (at p 304) that section 5-1311 of the General Obligations Law "was enacted to alter the common-law rule which, absent any agreement to the contrary, cast the risk of destruction of the property between the time the contract of sale was entered into and passing of title upon the vendee”, but that the section "did not render realty contracts unenforcible but, rather, simply bestowed a privilege on vendees to rescind the contract”. We now answer the question, as the Hecht quotation suggests, affirmatively.

The issue arises in the context of a contract executed June 21, 1975, by which plaintiff agreed to purchase two contiguous parcels of real estate on each of which there was a freestanding building. One week after the contract was executed the older of the two buildings was substantially destroyed by a fire, which, however, did no damage to the other building. On July 9, 1975 defendant sent plaintiff a proposed modification of the contract which permitted plaintiff to collect the insurance proceeds and use them either in reduction of the purchase-money mortgage or in reconstruction of the building and provided for subordination of the purchase-money mortgage to any bank loan obtained for reconstruction. Plaintiff did not accept the proposed modification but testified that he had simply gone along with the suggestion of defendant’s president that they await the insurance settlement. One of defendant’s other officers testified that on or about July 2, 1975 plaintiff advised her he was abandoning any interest in the property.

Defendant submitted proofs of loss to its insurers on September 19, 1975 and received payments of its claims totaling more than $45,000. On October 15, 1975 defendant’s attorneys forwarded to plaintiff’s attorney their check in refund of the $1,000 deposit paid by plaintiff on signing the contract. Plaintiff’s attorney promptly returned the check, stating that plaintiff wished to proceed with the closing with an abatement of the purchase price. One month later plaintiff began the instant action for specific performance with an abatement of the purchase price.

The Trial Judge held that section 5-1311 of the General Obligations Law required the purchaser either to rescind or to obtain specific performance without abatement and that plaintiff had by his conduct terminated the contract. He, therefore, dismissed the complaint (90 Misc 2d 154). The Appellate Division reversed on the law and the facts and remitted for determination of the abatement to which plaintiff was entitled (59 AD2d 438). On remand the trial court fixed the abatement at $19,500, consisting of $7,500 to remove the remains of the old building and $12,000 as its actual value. Plaintiff again appealed and the Appellate Division modified by increasing the abatement to $27,500, holding that the trial court was correct in considering defendant’s insurance claims but gave too little weight to their statements of value, and fixing the actual value of the building on consideration of the whole record at $20,000 (66 AD2d 928). Plaintiff’s appeal from the Appellate Division’s order, affirming as modified, has been dismissed by us on the ground that he was not aggrieved by the modification (46 NY2d 997). There remains defendant’s appeal which brings up for our review both the Appellate Division’s final order and its earlier nonfinal order (CPLR 5501, subd [a], par 1). There should be an affirmance.

The fundamental issue for our determination is the effect of section 5-1311 of the General Obligations Law. That section provides in pertinent part:

"1. Any contract for the purchase and sale or exchange of realty shall be interpreted, unless the contract expressly provides otherwise, as including an agreement that the parties shall have the following rights and duties:
"a. When neither the legal title nor the possession of the subject matter of the contract has been transferred to the purchaser: (1) if all or a material part thereof is destroyed without fault of the purchaser or is taken by eminent domain, the vendor cannot enforce the contract, and the purchaser is entitled to recover any portion of the price that he has paid; but nothing herein contained shall be deemed to deprive the vendor of any right to recover damages against the purchaser for any breach of contract by the purchaser prior to the destruction or taking; (2) if an immaterial part thereof is destroyed without fault of the purchaser or is taken by eminent domain, neither the vendor nor the purchaser is thereby deprived of the right to enforce the contract; but there shall be, to the extent of the destruction or taking, an abatement of the purchase price.”

Paragraph b of subdivision 1 provides that when legal title or possession has been transferred to the purchaser he is not relieved by destruction of all or any part of the property from his obligation to pay the price; subdivision 2 directs that the section be interpreted and construed so as to effectuate its general purpose to make uniform the laws of the States which enact it and subdivision 3 provides that the section may be cited as the Uniform Vendor and Purchaser Risk Act.

Originally enacted in 1936 on the recommendation of the Law Revision Commission (1936 Report of NY Law Rev Comm, pp 757-780) as section 240-a of the Real Property Law, and repealed and re-enacted in 1963 as section 5-1311 of the General Obligations Law, the section is based upon a proposed uniform law drafted by Professor Samuel Williston, presented by him to the National Conference of Commissioners on Uniform State Laws in 1934, and adopted after some revision at the 1935 meeting of the commissioners (1934 Handbook of National Conference of Commissioners on Uniform State Laws and Proceedings, pp 202-205; 1935 Handbook of National Conference of Commissioners on Uniform State Laws and Proceedings, pp 138-139). The melange from which is to be distilled the interpretation of the quoted section is, therefore, the intention of Professor Williston and the Commissioners on Uniform State Laws as reflected in their drafts and reports, the intention of the 1936 Legislature as reflected in the statute enacted and the report of the Law Revision Commission, and the intention of the 1963 Legislature in the light of case law construing the section in the interim.

There is abundant evidence that in drafting the proposed uniform law Professor Williston sought only to change the rule he believed erroneously declared by Lord Eldon in Paine v Meller (6 Vesey Jr 349 [holding the purchaser required to pay the full price despite destruction of part of the property contracted for]) which was followed in a number of States in this country, including New York. The act as drafted by him turned on whether title or the right to possession had passed, and reversed the Paine v Meller rule by providing that if it had not and "all or a material part” was accidentally destroyed "the vendor cannot enforce the contract, and the purchaser is entitled to recover any portion of the price he has paid, unless the contract expressly provides otherwise”. His memorandum and the commissioners’ 1934 report shows the intention to be to apply "to real estate the same rule as to risk as in the Sales Act and the Conditional Sales Act” (1934 Handbook, supra, at p 202). It was, thus, addressed to risk and not to remedy. The 1935 report proposed essentially the same statute, though with some drafting changes and stated in a prefatory note that "The object of the Act is to protect the purchaser of real estate where there is a binding contract of sale and the property is destroyed before the purchaser has gone into possession or has taken legal title, and to protect the vendor after transfer of possession” and that "The rule which is proposed in this Act is that the purchaser cannot be held if he has taken neither possession nor title, but can be held if he has taken possession or has taken title” (1935 Handbook, supra, at p 138; see, also, 9C Uniform Laws Ann, Uniform Vendor and Purchaser Risk Act, p 313). Conspicuously absent from any of these materials is any reference to a purchaser’s right to specific performance with an abatement, but since specific performance with an abatement imposes on the seller only the risk of loss contemplated by the act, that absence is wholly consistent with the stated purpose of the act (see Note, Uniform Vendor and Purchaser Risk Act, 51 Harv L Rev 1276, 1279-1280) and cannot be read as indicating any intention to affect the purchaser’s optional remedy.

In adopting the act in 1936 the New York Legislature added to paragraph (a) all of clause (2) and so much of clause (1) as follows the semicolon. Since clause (2) which permits either party to enforce the contract when only an immaterial part of the realty is destroyed concludes with the phrase "but there shall be, to the extent of the destruction or taking, an abatement of the purchase price”, it can be argued that because clause (1) does not mention abatement of the price there can be none when a material part of the realty has been destroyed. However, that argument overlooks the fact that clause (1) addresses only the nonenforcement of the contract, to which abatement is simply irrelevant. Whether in the original or the New York version, therefore, the statute simply does not speak to the situation in which a purchaser seeks to enforce the contract notwithstanding that a material part of the realty has been destroyed. In consequence, the common-law abatement rule would continue to apply, absent a contrary indication in some other portion of the statute or in its legislative history.

That the Legislature did not believe its amendments changed the proposed uniform law materially is evidenced by the fact that subdivisions 2 and 3, acknowledging the genesis of the section as a uniform act and providing that it be interpreted uniformly, remained in the section as enacted. Contrary evidence exists, however, as the Trial Judge noted, in the following portion of the Law Revision Commission’s Report (1936 Report of NY Law Rev Comm, pp 778-779): "It will be noted further that under subdivision (a) of the uniform act, where the loss occurs prior to the transfer of legal title or of possession, the contract in effect is rescinded, since 'the vendor cannot enforce the contract and the purchaser is entitled to recover any portion of the price that he has paid.’ This result is contrary to the result reached in the case of Polisiuk v. Mayers (Appellate Division, Second Department) [205 App Div 573, app den 206 App Div 765] where the contract provided that 'the risk of loss or damage to premises by fire until the delivery of the deed is assumed by the seller.’ The court held that even where a substantial part of the property was destroyed by fire prior to the delivery of the deed, the purchaser was entitled to specific performance as to the part remaining with an abatement of the purchase price to the extent of the loss. Although this holding preserves for the purchaser the benefit of his bargain, it would seem more reasonable and more in accord with the actual, although unexpressed intention of the parties, to call the deal off upon the destruction of all or of a substantial part of the property.” (Matter in brackets added.) Based on the last sentence of that paragraph one could conclude, as did the Trial Judge, that specific performance with an abatement was not to be permitted under the section, even though it did not in so many words say so. The extent to which the gratuitous assessment in that last sentence of what was "reasonable and more in accord with the actual, although unexpressed intention of the parties” was incorrect is, however, clear from the cases thereafter decided under the statute which allowed abatement notwithstanding substantial destruction.

In World Exhibit Corp. v City Bank Farmers Trust Co. (186 Misc 420), decided in 1945, the assignee of a vendee in possession under a contract providing that "The risk of loss or damage to said premises by fire, until delivery of said deed, is assumed by the seller” was granted specific performance with an abatement. The court reasoned (at p 423) that section 240-a of the Real Property Law "was intended primarily to shield a vendee”, "was not intended to be invoked at the instance of a vendor”, and did not prevent a vendee from seeking specific performance. It noted also that the section was not operative where "the contract expressly provides otherwise”. Affirming, the Appellate Division concluded (270 App Div 654, 659) that since the parties had provided otherwise the statute played no part and the common-law rule applied. We affirmed without opinion (296 NY 586).

Two years later in Heerdt v Brand (272 App Div 143) the Appellate Division, Fourth Department, affirmed a judgment giving a purchaser out of possession an abatement to the extent of the cost of repair where five days prior to closing the boiler in the house was substantially damaged. The court reasoned that the addition of section 240-a (subd 1, par [a], cl [2]) effected no change in the law, and that the loss fell on the seller since neither title nor possession had passed, but did not otherwise discuss the basis upon which abatement was allowed. Three years later, in 1950, the same Appellate Division in Rizzo v Landmark Realty Corp. (277 App Div 1094, app den 278 App Div 630) reversed a judgment dismissing plaintiff purchaser’s complaint for specific performance stating flatly that: "Section 240-a of the Real Property Law does not deprive a vendee of the right of specific performance with abatement. Said section (subd. 1, par. [a]) renders unenforcible insofar as the vendor is concerned the right to specific performance when the loss is material. It does not, however, destroy any common-law right of the vendee to specific performance with abatement.”

Burack v Tollig (6 Misc 2d 450) involved a purchaser out of possession under a contract that was silent as to risk of loss, who was awarded specific performance with an abatement by reason of a fire, occurring between contract and closing, which destroyed the dwelling on the property. Special Term held section 240-a to be applicable but stated (citing World Exhibit Corp., supra, and Rizzo, supra) that (at p 451) "It has been held, however, that the said provisions of the cited section do not deprive the purchaser of his common-law right to specific performance with an abatement” and noted that the parties conceded plaintiff’s right to such an abatement. The Appellate Division, Second Department, modified with respect to damages and affirmed (9 AD2d 914) and we affirmed, without opinion (10 NY2d 879). The last case decided under section 240-a before it was repealed and re-enacted as section 5-1311, likewise a Second Department decision, was Matter of County of Westchester v P. & M. Materials Corp. (20 AD2d 431). There a vendee out of possession when the contracted-for property was condemned was held entitled only to return of its deposit, the court differentiating condemnation from a material destruction of the property. In doing so it observed with respect to the latter (20 AD2d, supra, at pp 433-434):

"Though the Law Revision Commission Report stated that, upon a material destruction of the premises, the Uniform Act effected a rescission when the purchaser had neither legal title nor possession (Real Property Law, § 240-a; 1936 Report of N. Y. Law Rev. Comm., pp 765, 778), it has been held that, under those circumstances, the purchaser may be granted specific performance together with an abatement of the selling price

* * *
“In the case of a material destruction, the availability of specific performance with abatement under the statute (Real Property Law, § 240-a), upon which we have not had occasion to pass (cf. Polisiuk v. Mayers, 205 App Div 573 [2d Dept.]; Burack v. Tollig, 10 NY2d 879, supra) finds rational support in the expectation that a purchaser may want his bargain for a proportionately diminished consideration. Such an intention may reasonably be imputed to the contracting parties, resting as it does on the just result that both parties will thus realize, in lesser form, the substance of their agreement.”

Thus, notwithstanding the statement in the 1936 Law Revision Commission Report quoted above, no decision made under section 240-a denied to a purchaser out of possession specific performance with an abatement when there was a material destruction of the property between contract and closing. Against this decisional background, the repeal and reenactment of the section as section 5-1311 of the General Obligations Law must be assessed. The applicable principle is stated in Matter of Scheftel (275 NY 135, 141): "the Legislature is presumed to have had knowledge of the construction which had been placed on the provision * * * and in adopting in these re-enactments the language used in the earlier act, must be deemed to have adopted also the interpretation of the legislative intent decided by this court, and to have made that construction a part of the re-enactment”, and in McKinney’s Statutes (McKinney’s Cons Laws of NY, Book 1, Statutes, § 75, p 165): "In the case of a revision or consolidation of statutes, if there is no change in the phraseology of the statute, its former judicial construction becomes a part of the subsequent statute.” The conclusion to be drawn from the foregoing analysis is that as we stated in Hecht v Meller (23 NY2d 301, 304, supra), section 5-1311 "bestowed a privilege on vendees to rescind the contract” in the event of a material destruction prior to closing but did not take from them their common-law optional remedy of specific performance with an abatement.

The remaining issues may be summarily disposed of. When the Appellate Division reverses on the facts, as it was empowered to do based on its evaluation of the record, our usual procedure is to adopt those findings which the weight of the evidence supports. Bearing in mind the submission by seller’s attorney of a proposed modified contract more than one week after seller’s vice-president claims the purchaser abandoned the contract, the continuing negotiations between the parties, the failure to return the contract deposit until after the insurance settlement amount was known, and the testimony that seller’s officer had agreed to await the insurance settlement before resolving the matter, we hold that the weight of the evidence supports the Appellate Division’s factual conclusions. Nor do we find any error in the Appellate Division’s modification of the abatement figure, based as it apparently was upon defendant’s statements of value in the proofs of loss submitted by it.

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

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

Order affirmed.

      . Williston states that the act has been adopted in California, Hawaii, Michigan, North Carolina, Oregon, South Dakota and Wisconsin (7 Williston, Contracts [3d Jaeger ed], § 943B). The parties have not cited, nor has our research uncovered, any decision from any of those States germane to the present case.

      . By chapter 576. The repeal of section 240-a of the Real Property Law was by subdivision 7 of section 19-101 of the General Obligations Law.

      . Indeed, the author of the Harvard Law Review note cited above concluded that "specific performance with compensation may well be allowed under the Act if it is adopted in those majority jurisdictions where the question could not previously arise” (51 Harv L Rev, at p 1280). New York, which in cases such as Sewell v Underhill (197 NY 168) required the purchaser to complete the sale without abatement, was such a jurisdiction.

      . Polisiuk v Mayers (205 App Div 573, app den 206 App Div 765) recognized the right to specific performance with abatement when the contract put the risk of loss prior to delivery of the deed on the vendor, which is what the statute now does when the purchaser is out of possession. Specific performance with abatement had long been recognized in other situations, e.g., Feldman v Lisansky (239 NY 81); Bostwick v Beach (103 NY 414); Warren v Hoch (276 App Div 607; see Friedman, Contracts and Conveyances of Real Property [3d ed], p 808).

      . The reporter’s memorandum in this court (10 NY2d 879) stated that "The contract provided that, with respect to fire losses, section 240-a of the Real Property Law should apply” but that, of course, is consistent with the statute, not a provision "otherwise”.

      . Compare the last sentence of the quotation from the 1936 Law Revision Commission Report, supra, p 539, and note the reference in the P. & M. Materials Corp. decision to the very page of that report from which the quotation is taken.

      . Accord: Friedman, Contracts and Conveyances of Real Property ([3d ed], § 4.11, p 381): “Presumably this [the statute] does not prevent the purchaser from enforcing the contract with an abatement”.

      . (Cf. Engle v Talarico, 33 NY2d 237, 242.)


source: Caselaw Access Project

author: Fuchsberg, J.

license: Public Domain

text:
    The People of the State of New York, Respondent, v Vida Gissendanner, Appellant.
    Argued November 13, 1979;
    decided December 17, 1979

      POINTS OF COUNSEL

      Edward J. Nowak, Public Defender (Rhonda Greenstein of counsel), for appellant.
    I. The in-court identifications of appellant by Officers Eisenhauer and Grassi were inadmissible, since the District Attorney’s office failed to give the defense the required pretrial notice of these identifications. The failure to exclude these identifications violated CPL 710.30, denied appellant a fair trial and amounts to constitutional error. (Gilbert v California, 388 US 263; United States v Wade, 388 US 218; Stovall v Denno, 388 US 293; People v Travison, 59 AD2d 404; People v Johnson, 54 AD2d 586; People v Lee, 27 AD2d 700; People v Blake, 35 NY2d 331; People v Joyiens, 39 NY2d 197; People v Chillis, 60 AD2d 968; People v Thomas, 60 AD2d 993; People v Slater, 53 AD2d 41; People v Rivera, 30 AD2d 692.) II. The trial court’s refusal to subpoena the police personnel records of Investigators Eisenhauer and Grassi, the two principal prosecution witnesses, violated appellant’s constitutional and statutory rights of confrontation, cross-examination and compulsory process and deprived appellant of a fair trial. (Davis v Alaska, 415 US 308; Bruton v United States, 391 US 123; Douglas v Alabama, 380 US 415; Kirby v United States, 174 US 47; Pointer v Texas, 380 US 400; Washington v Texas, 388 US 14; People v Bromwich, 135 App Div 67, 200 NY 385; People v Werblow, 123 Misc 204; Barber v Page, 390 US 719; United States v Reynolds, 345 US 1.) III. The proof adduced at trial failed, as a matter of law,, to establish appellant’s guilt beyond a reasonable doubt. (People v Owens, 148 NY 648; People v Ledwon, 153 NY 10; People v Whitmore, 28 NY2d 826.) IV. The trial court’s unjustified curtailment of defense counsel’s cross-examination of Officer Eisenhauer violated appellant’s Sixth and Fourteenth Amendment rights. (Alford v United States, 282 US 687; People v Becker, 210 NY 274; People v Cole, 43 NY 508; Matter of Friedel v Board of Regents of Univ. of State of N. Y., 296 NY 347; People v Ramistella, 306 NY 379; Smith v Illinois, 390 US 129; Brookhart v Janis, 384 US 1; Houghton v Jones, 1 Wall [68 US] 702.) V. Appellant’s conviction should be reversed on the grounds of cumulative error. (People v Carborano, 301 NY 39; People v Garcia, 7 AD2d 492.)

      Lawrence T. Kurlander, District Attorney (Kenneth R. Fisher of counsel), for respondent.
    I. No so-called identifications occurred in this case. (United States v Wade, 388 US 218; Stoval v Denno, 388 US 377; Simmons v United States, 390 US 377; People v Bullock, 45 AD2d 902; People v Morales, 37 NY2d 262; Russell v United States, 408 F2d 1280, 395 US 928; Wise v United States, 383 F2d 206, 390 US 964; Stanley v Cox, 486 F2d 48, cert den sub nom. Stanley v Slayton, 416 US 958.) II. The trial court did not abuse its discretion when it refused to grant an application for the subpoena of the police personnel files; appellant’s rights to confrontation were not infringed. (People v Vasquez, 49 AD2d 590; People v Norman, 76 Misc 2d 644; Brady v Maryland, 373 US 83; People v Sumpter, 75 Misc 2d 55; People v Zanders, 95 Misc 2d 82; Montes v State of New York, 94 Misc 2d 972; People v Puglisi, 44 NY2d 748; United States v Cardillo, 316 F2d 606, 375 US 822; United States v Garrett, 542 F2d 23.) III. The cross-examination of Eisenhauer was not curtailed. (United States v

      Corey, 566 F2d 429.) IV. The verdict is supported by the evidence. (People v Reyes, 38 AD2d 921, 30 NY2d 881, cert den sub nom. Reyes v New York, 409 US 1110; People v Victory, 33 NY2d 75.)
   OPINION OF THE COURT

Fuchsberg, J.

A jury found the defendant Vida Gissendanner guilty of the criminal sale of cocaine (Penal Law, § 220.16). The Appellate Division has affirmed the judgment of conviction by a vote of 4 to 1.

The primary issue on the present appeal is the propriety of the trial court’s refusal to honor defendant’s request that it issue subpoenas duces tecum requiring the production of personnel records of two police officers, the principal witnesses against the defendant. Implicated by this denial, asserts the defendant, are the constitutional and statutory guarantees of compulsory process and, ultimately, the companion right of confrontation which the records may have supported (see Pointer v Texas, 380 US 400; Washington v Texas, 388 US 14; US Const, 6th Arndt; Civil Rights Law, § 12). A second issue requires us to decide whether in-court identifications by the officers, each of whom had also had occasion to see the defendant on the date of her arrest, should have been received in the light of the District Attorney’s failure to serve the pretrial notice required by CPL 710.30 (subd 1).

Turning initially to the question involving the subpoenas, we focus on the trial events from which it arises:

The chief prosecution witness, Ronald Eisenhauer, an undercover investigator for the Irondequoit Police Department, testified that the defendant had made the illegal sale to him. According to Eisenhauer, he and three other officers proceeded to defendant’s home, where the other three took up surveillance from an unmarked car parked across the street while he approached her house. Encountering the defendant, whom he had previously met, on the walk leading to the house, he was invited inside where, after she asked him if he wished to purchase drugs, the illegal sale was negotiated. They were alone at the time.

Investigator David Grassi, one of the officers in the surveillance team, also was called. He testified that, though he did not witness the actual sale, from his position in the driver’s seat he observed Eisenhauer enter the house with defendant and then exit alone about 15 minutes later. A third occupant of the police vehicle, Detective Craig Corey, also took the stand; he told the jury that he had watched Eisenhauer approach the house but, because his view of the entrance was partially obscured by hedges, did not witness Eisenhauer actually enter the house or see the defendant at all.

The defendant, testifying in her own behalf, recited a story materially at odds with the Eisenhauer-Grassi version. While she acknowledged having met Eisenhauer on several prior occasions, she denied ever having sold drugs to him. As to the night of the crime, she related that, on that evening, as she was driving toward her home, she observed Eisenhauer standing on the porch near the door, whereupon she drove past the house and, returning a short time later, noticed him leave the porch and get into a parked car.

Given this scenario, not surprisingly, defendant’s trial strategy concentrated on undermining the credibility of Eisenhauer and Grassi in order to persuade the jury that they had concocted the story of the drug sale. To that end, defense counsel, on the eve of trial, for the first time requested the court to issue subpoenas duces tecum broadly framed to compel the production of "any and all records of [Eisenhauer’s and Grassi’s] employment * * * with the Irondequoit Police Department and any other law enforcement agency, [including] records of performance in any disciplinary actions.” In support of this application, counsel stated only that the purpose was to "find material appropriate for cross-examination when the officers testify”; at no time did he request the court to conduct its own in camera inspection of the personnel files before determining whether any of the contents should be disclosed. The court refused to issue the subpoena on the grounds that "no factual basis”, nor any "showing of necessity other than a general discovery” had been demonstrated to warrant such an order. In its opinion of affirmance, the Appellate Division, in the same vein, characterized the unembellished request for the subpoenas as no more than an attempt to conduct a "fishing expedition” into confidential records. In our view, the ruling was not erroneous. Our reasons follow.

At the outset, we recognize the tension between the constitutionally based rights of an accused to confront and cross-examine adverse witnesses on the one hand, and the interest of the State and its agents in maintaining confidential data relating to performance and discipline of police on the other. Among other values the latter is said to serve are the maintenance of police morale and the encouragement of both citizens and officers to co-operate fully without fear of reprisal or disclosure in internal investigations into misconduct. As to those accused of crime, it should be too obvious to need reiteration that restrictions on the right to cross-examine key prosecution witnesses can deprive a defendant of an important means of combating inculpatory testimony or at least demonstrating the existence of a reasonable doubt as to guilt (Davis v Alaska, 415 US 308, 315-317; Douglas v Alabama, 380 US 415, 418; cf. Greene v McElroy, 360 US 474, 496-497).

Granting, however, that the constitutional roots of the guarantees of compulsory process and confrontation may entitle these to a categorical primacy over the State’s interest in safeguarding the confidentiality of police personnel records, it is not to be assumed that, in striking the balance between the two, police confidentiality must always yield to the demands of a defendant in a criminal case. The circumstances which support such demands may vary greatly. And, though access must be afforded to otherwise confidential data relevant and material to the determination of guilt or innocence, as, for example, when a request for access is directed toward revealing specific "biases, prejudices or ulterior motives of the witness as they may relate directly to issues or personalities in the case at hand” (Davis v Alaska, supra, at p 316), or when it involves other information which, if known to the trier of fact, could very well affect the outcome of the trial (cf. United States v Garrett, 542 F2d 23, 26; United States v Cardillo, 316 F2d 606, 611, 615-616, cert den 375 US 822), there is no such compulsion when requests to examine records are motivated by nothing more than impeachment of witnesses’ general credibility. In such cases, the defendant’s rights have generally been canalized within the bounds of the traditional evidentiary rule that governs the introduction of extrinsic proof of matters collateral to the issues at trial, i.e., its availability rests largely on the exercise of a sound discretion by the trial court (see People v Ocasio, 47 NY2d 55, 60; People v Schwartzman, 24 NY2d 241, 245, cert den 396 US 846; People v Sorge, 301 NY 198, 202; 3A Wigmore, Evidence [Chadbourn rev], §§ 1005, 1006; Richardson, Evidence [10th ed — Prince], § 491).

Thus, in Davis v Alaska (supra), the Supreme Court found the Sixth Amendment had been violated because the defendant had been precluded from establishing an eyewitness’ status as a juvenile delinquent probationer to support the contention that his unfavorable testimony had been inspired by a desire to curry favor with the prosecution. Justice Stewart, in a concurring opinion, pointedly observed that the Constitution did not confer "a right in every case to impeach the general credibility of a witness through cross-examination about his past delinquency adjudications or criminal convictions” (emphasis ours) (415 US, at p 321; cf. People v Sandoval, 34 NY2d 371).

But when a defendant shows a likelihood that the witness’ prior criminal or disciplinary record may provide a motive to falsify, disclosure of this information has been held warranted (Davis v Alaska, supra; cf. People v Cwikla, 46 NY2d 434). Also, when prior bad acts allegedly contained within disciplinary or personnel records bear peculiar relevance to the circumstances of the defendant’s case, detailed cross-examination and disclosure, usually after an in camera inspection, have been permitted (see People v Puglisi, 44 NY2d 748 [narcotics case; defense counsel had information that undercover officer who testified had improperly handled previous "buys”]; People v Vasquez, 49 AD2d 590 [narcotics case; testifying police officer had been convicted for "shaking down” narcotics dealers]; Pitchess v Superior Ct., 11 Cal 3d 531; State v Pohl, 89 NM 523; State v Fleischman, 10 Ore App 22 [all involving prosecutions for assault on police officers; defendants claimed officers were the aggressors and made a predicate showing that each had previously been accused of employing excessive force]; United States v Garrett, 542 F2d 23, supra [held error to restrict cross-examination of undercover policeman about prior suspension for refusal to take urine test to determine whether he had used drugs]).

Conversely, access has been denied in cases in which the defendant failed to demonstrate any theory of relevancy and materiality, but, instead, merely desired the opportunity for an unrestrained foray into confidential records in the hope that the unearthing of some unspecified information would enable him to impeach the witness (see People v Norman, 76 Misc 2d 644 [police personnel records]; State v Sagner, 18 Ore App 464 [police disciplinary records]; Commonwealth v Santos, — Mass —, 384 NE2d 1202 [sealed juvenile record]). Indeed, entitlement to access on no more than a bare allegation that the inspection is sought as fodder for an untracked attack on credibility would render the principle of confidentiality meaningless for all practical purposes.

The thread that runs through these cases does not indicate that a defendant must make a preliminary showing that the record actually contains information that carries a potential for establishing the unreliability of either the criminal charge or of a witness upon whose testimony it depends. The decisions erect no inviolable shield to prevent the discovery of what might turn out to be relevant and exculpatory material. What they do call for is the putting forth in good faith of some factual predicate which would make it reasonably likely that the file will bear such fruit and that the quest for its contents is not merely a desperate grasping at a straw. Here there was no such demonstration.

Here, defendant’s counsel made no pretense but that the records’ contents would not directly bear on the hard issue of guilt or innocence; he cited no possible line of inquiry in which they might be employed beyond that of general credibility impeachment. Even on that score, no basis was presented, in the form of information from any extraneous source or otherwise, to suggest that either of the officers had ever committed a discreditable act on which one could premise an inference that impeachable material tending to affect their credibility was to be found in their files. In short, nothing better than conjecture having been presented to the court, it acted well within its range of discretion in rejecting the application.

Nor is our conclusion that there was no abuse of discretion as a matter of law shaken by two subsidiary arguments defendant mounts on the subpoena issue. The first of these is a claim that the files became especially relevant when Detective Corey testified that, unlike Eisenhauer and Grassi, he had not observed the defendant on the walkway. But what defendant characterizes as a "diametrically opposed” version of events, not only may be self-explained by the partially obscured view, but need not have been perceived as indicative of anything worse than the kind of discrepancy that differing faculties of concentration and memory will commonly produce in the most honest of witnesses. Dispositive, in any event, is the fact that defendant did not renew her subpoena application, either then or thereafter (see CPL 470.05, subd 2).

The second argument is posited on the rule articulated in Brady v Maryland (373 US 83), under which a defendant is entitled as a matter of due process to any evidence within the possession of the prosecutor that can be considered exculpatory and "material either to guilt or to punishment” (373 US, at p 87). Noting that, in general, the subpoena duces tecum may not be used for the purpose of discovery or to ascertain the existence of evidence (see People v Coleman, 75 Misc 2d 1090, 1091), and putting aside for now the question of whether, for Brady purposes, confidential police personnel files are within the possession and control of the prosecution (compare People v Sumpter, 75 Misc 2d 55, 58, with People v Norman, 76 Misc 2d 644, 649-650, supra), the simple answer to this contention is that there emerged not the slightest inkling that the personnel records contained any exculpatory material. More specifically, though recognizing that the right to cross-examine witnesses subsumes the right to obtain disclosure of their prior statements in the case (People v Rosario, 9 NY2d 286), in doing so we have made clear that this is not so broad as to permit a roving tour through the prosecutor’s files and that, at times, the necessities of effective law enforcement may require that such information be kept confidential (9 NY2d, at p 290; People v Poole, 48 NY2d 144, 149).

Before leaving the issues centering on the police personnel records, we also take occasion to point out that the Legislature has recently codified standards for disclosure of precisely the material sought in this case. Section 50-a of the Civil Rights Law, though effective after the defendant’s trial, fairly reflects the pre-existing judicial consensus in such situations; after declaring police personnel records to be confidential, it provides that, on "a clear showing of facts sufficient to warrant the judge to request records for review”, an in camera inspection is to be conducted and, if the court then determines that the records contain matter that is relevant and material in the action, such portions may be disclosed to the person who has made the request (Civil Rights Law, § 50-a, subds 2, 3). As we have emphasized, dehors the statute, the application here was devoid of any good faith demonstration that the matter sought was material and relevant, and no request was ever made that the court conduct a preliminary in camera review of the records to determine whether disclosure of some portions at least was warranted (see People v Poole, supra).

We turn now, though more briefly, to defendant’s claim that the District Attorney should have provided pretrial notice of the fact that Officers Eisenhauer and Grassi had occasion to view the defendant subsequent to their observations of her on the night of the crime. Eisenhauer led the police in arresting the defendant several months after the drug sale, while Grassi by happenstance saw the defendant after she had been brought to the police station following her arrest. Though the in-court identification testimony of the police officers was based on their viewing of her during the commission of the crime and, in Eisenhauer’s case, on two conceded previous contacts, the defendant takes the position that the subsequent sightings fall within CPL 710.30, which provides for pretrial notice of the prosecutor’s intention to offer at trial, inter alia, "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” (subd 1, par [b]). We disagree.

The statute was apparently a legislative response to the problem of suggestive and misleading pretrial identification procedures treated by the Supreme Court in Gilbert v California (388 US 263), United States v Wade (388 US 218) and Stovall v Denno (388 US 293). The focus of those decisions was on in-court identifications predicated on earlier police-arranged confrontations between a defendant and an eyewitness, typically involving the use of lineups, showups or photographs, for the purpose of establishing the identity of the criminal actor (see Levine & Tapp, Psychology of Criminal Identification: The Gap from Wade to Kirby, 121 U of Pa L Rev 1079, 1086 et seq.).

In cases in which the defendant’s identity is not in issue, or those in which the protagonists are known to one another, "suggestiveness” is not a concern and, hence, the statute does not come into play (see People v Bullock, 45 AD2d 902, 903; Sobel, Eye-Witness Identification: Legal and Practical Problems, § 2, p 4; State v Thomas, 292 NC 527, 539; State v Wheeler, 34 NC App 243, 251 [inadvertent observations of defendant at police station not "identifications”]).

In all, neither police officer having "previously identified” the defendant within the intendment of the statute, defendant’s objection to their in-court identification testimony was properly overruled.

On the rationales set out in this opinion, and because we find the defendant’s remaining contentions, too, lack merit, the order of the Appellate Division should be affirmed.

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

Order affirmed.


text:
    David Graubart, Inc., Respondent, v Bank Leumi Trust Company of New York, Appellant.
    Argued November 14, 1979;
    decided December 19, 1979

      POINTS OF COUNSEL

      Amos Alter and Stephen F. Harmon for appellant.
    I. The facts are undisputed. (Rotuba Extruders v Ceppos, 46 NY2d 223; Columbia Ribbon & Carbon Mfg. Co. v A-1-A Corp., 42 NY2d 496.) II. The accepted banking practice must here prevail. (Community Bank v Federal Reserve Bank of San Francisco, 500 F2d 282; Sterling Nat. Bank & Trust Co. of N. Y. v Savings Banks Trust Co., 56 AD2d 789.)

      Samuel W. Gilman for respondent.
    I. Questions of fact exist which inhibit summary judgment in favor of appellant. II. Respondent is entitled to recover against appellant as a matter of law. (Sunshine v Bankers Trust Co., 34 NY2d 404.)
   OPINION OF THE COURT

Fuchsberg, J.

On this appeal, here on a question certified by the Appellate Division pursuant to CPLR 5602 (subd [b], par 1), we are called upon to determine the role played by article 4 of the Uniform Commercial Code in fixing rights and obligations arising out of a second presentment of a check previously returned for insufficient funds. The heart issue is whether a payor bank is relieved of liability for retaining such an instrument beyond its "midnight deadline” (see Uniform Commercial Code, § 4-302) when it does so pursuant to an agreement concordant with a practice among banks for a payor to hold a previously dishonored item long enough to provide an opportunity for sufficient funds to be deposited by the drawer to meet the check.

The operative facts are uncomplicated. Plaintiff David Graubart, Inc. (payee), was issued a check for $13,000 drawn by the Prins Diamond Company on the latter’s account with the defendant Bank Leumi Trust Company (payor bank). Graubart then deposited the check in its own account with the National Bank of North America (depositary bank), which, pursuing normal collection channels, routed it to the payor bank via the New York Clearing House. When the payor bank found that the Prins account had been overdrawn, it marked the item "insufficient funds” and promptly returned it to the depositary bank, again through clearing house channels. Notified of the dishonor, the payee redeposited the check with its bank, which this time apparently chose to forward it directly to Leumi on a collection basis, thus bypassing the clearing house (see Uniform Commercial Code, § 4-204, subd [2], par [a]). The item was accompanied by an "advice to customer” slip — a copy of which was also delivered to Graubart — indicating, as with collection items generally, that credit would only be given on payment. In addition, in a space bearing the printed legend "Special Instruction: (Return immediately if not paid unless otherwise instructed)”, the slip contained a typed direction that the payor bank was to "remit [its] cashiers’ [sic] check when paid” (cf. Uniform Commercial Code, § 4-211, subd [1], par [b]). But when, after no more than seven banking days, the drawer’s account remained bare of funds to permit the check to clear, Leumi again returned the check to the depositary bank. Sometime during the course of these transactions the drawer made an assignment for the benefit of creditors.

The gravamen of the fourth cause of action in the suit the payee thereafter commenced against Leumi, as well as of its subsequent motion for summary judgment, was that the latter’s failure to return the resubmitted check to the depositary bank before its "midnight deadline” — defined as midnight of the next banking day following that on which the item was received (Uniform Commercial Code, § 4-104, subd [1], par [h]) —without more, rendered it liable to the payee for the face amount of the check under subdivision (a) of section 4-302 of the Uniform Commercial Code. This section, with seeming finality, provides, in pertinent part, that "if an item is presented on and received by a payor bank the bank is accountable for the amount of * * * a demand item * * * if the bank * * * retains the item beyond midnight of the bank day of receipt without settling for it or * * * does not pay or return the item or send notice of dishonor until after its midnight deadline”.

In opposition, and in support of its own cross motion, the payor bank submitted an affidavit by its assistant vice-president, who, after setting out his knowledge of banking practice, asserted that the "advice to customer” slip constituted a memorandum of an agreement requiring it to process the instrument in question in accordance with a common banking practice whereunder previously dishonored checks were to be held for such time as is reasonable under all the circumstances, even beyond the midnight deadline if necessary, to enable funds from which to pay them to come into the account. To this the payee’s only reply was in the form of counsel’s affirmation. Aside from a bald assertion, for which no foundation was supplied, challenging the existence of the custom, the affirmation merely interjected, for the first time, unsupported allegations of bad faith and collusion on Leumi’s part. Though it stated that the drawer was indebted to Leumi at the time of the assignment for the benefit of creditors, it made no showing of any unfair conduct on the part of the payor bank whatsoever.

Special Term denied both motions, holding that triable issues existed, and the Appellate Division, over a vigorous dissent by Mr. Justice Joseph P. Sullivan, has since affirmed. In thereafter granting leave to appeal to this court, it posed the very broad question: "Was the order of the Supreme Court, as affirmed by this Court, properly made?” For the reasons that follow, we conclude a negative response is mandated.

The payor bank’s assault on the conclusion of the courts below is grounded on the contention that there were no factual issues precluding summary judgment and that, on the undisputed facts, its actions were proper as a matter of law for two reasons: (1) on the authority of Leaderbrand v Central State Bank (202 Kan 450), it need not have given the payee notice of dishonor upon representment of the previously dishonored item, and (2) its conduct in varying the code’s midnight deadline pursuant to a valid agreement which accords with custom and usage in the banking community relieves it of the effect of the provisions of article 4 (citing, inter alia, Uniform Commercial Code, § 4-103).

The preliminary dispute as to the existence of unresolved questions of fact need not detain us. The date of the contested transactions and the nonadherence to the midnight deadline, if applicable, were conceded for the purposes of the motion. The payor bank’s officer established the custom as to collection of previously dishonored checks, and the payee’s own submission of the "advice to customer” slip confirmed that the agreement had been made in contemplation of the custom. And, since Graubart’s counsel’s affirmation was made without personal knowledge of the facts, it was not competent to defeat the motion for summary judgment (Rotuba Extruders v Ceppos, 46 NY2d 223, 229, n 4; Columbia Ribbon & Carbon Mfg. Co. v A-l-A Corp., 42 NY2d 496, 500; CPLR 3212, subd [b]; see, generally, Mallad Constr. Corp. v County Fed. Sav. & Loan Assn., 32 NY2d 285, 292-293). Leumi’s recitations therefore went undisputed.

Turning to the legal merits, we conclude first that Leumi’s reliance on Leaderbrand v Central State Bank (202 Kan 450, supra), which held that no notice of dishonor need be given as to an item previously returned for insufficient funds, is unavailing. The Leaderbrand court reasoned that subdivision (4) of section 3-511 of the code, in excusing further notice of dishonor with respect to "drafts” once dishonored by "nonacceptance”, necessarily encompassed dishonor of "checks” by "nonpayment”. But, while a check is a kind of draft (Uniform Commercial Code, § 3-104, subd [2], par [b]), "nonpayment” and "nonacceptance” are distinctly different concepts, the latter referring specifically to a payor’s refusal to certify that it will honor a time instrument when later presented for payment (Uniform Commercial Code, § 3-410, subd 1; see Wiley v Peoples Bank & Trust Co., 438 F2d 513, 516-517; Comment, 18 Kan L Rev 679, 682-684, n 48). Since it would be futile to present for payment a draft that has been dishonored by nonacceptance (when the obligation is conditioned on acceptance [see Uniform Commercial Code, § 3-501, subd (1), par (a)]), such presentment and further notice are excused as superfluous. In contrast, a demand item such as a check may eventually be paid if resubmitted at a time when the drawer’s account has an adequate balance. This possibility makes it entirely reasonable to afford redeposited checks the full panoply of article 4 protections. (See, generally, Clark & Squillante, Law of Bank Deposits, Collections and Credit Cards [1970], pp 71-72.)

Though its Leaderbrand point is, therefore, without merit, Leumi’s argument that its retention of the check beyond its midnight deadline was consonant with its agreement with the depositary bank is another matter. In this connection, initially we note that section 4-301 of the code, which establishes the procedural rules enforced by section 4-302, nowhere suggests that the deadline does not apply to previously dishonored items. But, it is well recognized that the code’s requirements can be modified by agreement to conform them with commercial usage, in or out of banking circles, so that parties may advantage themselves of the "wisdom born of accumulated experience” (Bankers Trust Co. v Dowler & Co., 47 NY2d 128, 134). Thus, section 4-103 provides in part:

"(1) The effect of the provisions of this Article may be varied by agreement except that no agreement can disclaim a bank’s responsibility for its own lack of good faith or failure to exercise ordinary care * * *.
* * *
"(4) The specification or approval of certain procedures by this Article does not constitute disapproval of other procedures which may be reasonable under the circumstances”.

The concept of an "agreement” under the code is, as with contract law generally, broad enough to permit the written terms of a memorandum to be supplemented and clarified by reference to customs and usages in the commercial milieu in which it is to be performed (e.g., Uniform Commercial Code, § 1-201, subd [5]; § 1-205; 3 Corbin, Contracts [1960 ed], § 556; Walls v Bailey, 49 NY 464). But the bare fact that the payor bank acted in accordance with its agreement with the depositary bank does not, in and by itself, relieve the former of liability (Official Comment, McKinney’s Cons Laws of NY, Book 62V2, part 2, Uniform Commercial Code, § 4-203, p 555). Section 4-103 demands that every party sought to be bound— here the payee — have assented to the agreement’s terms (Official Comment 2, op. tit., Uniform Commercial Code, § 4-103, pp 519-520). However, we hold that here there was such consent.

Under section 4-201 of the code, a payee’s presentment of an item to a depositary bank for collection creates a principal-agent relationship between the two, a status that persists until final settlement (see Official Comment 4, op. tit., Uniform Commercial Code, § 4-201, pp 544-545). Graubart’s voluntary establishment of its bank’s authority constitutes an assent to the latter’s dealing with the check in the manner customary in the banking industry (see Restatement, Agency 2d, § 36). To the extent that a payee deems itself aggrieved by a depositary bank’s ignoring of limitations on its authority, of which none are claimed here, the law provides recourse against it, but not against a third party who relies on the agent’s apparent authority (see Walsh v Hartford Fire Ins. Co., 73 NY 5; Wen Kroy Realty Co. v Public Nat. Bank & Trust Co., 260 NY 84).

All this is not to say that any act by a depositary bank as an agent will relieve the payor bank of liability or that a payee may be deemed to have consented to any manner of agreement, no matter how unfair. Limitations remain. In addition to the duties of good faith and ordinary care, the requirement that the agreement be a reasonable one stands undiminished (see Uniform Commercial Code, § 4-103, subd [4]).

As to good faith and ordinary care, neither of these is a serious obstacle in the circumstances of this case. The payee’s complaint alleges no bad faith or favoritism on the part of the payor bank, and the mere fact that the drawer was indebted to Leumi when it assigned for the benefit of creditors does not permit us to presume collusion in the absence of specific evidence. Moreover, beyond the superficial sense in which ordinary care is relevant to virtually every step in the collection process (see Uniform Commercial Code, § 4-202, subd [1]), this standard was not intended to prohibit banking procedures that themselves are reasonable and carried out with care (see Leary, Check Handling Under Article Four of the Uniform Commercial Code, 49 Marq L Rev 331, 342; see, also, Sunshine v Bankers Trust Co., 34 NY2d 404, 410; Uniform Commercial Code, § 4-213, subd [1]> pars [b], [d] [permitting time of "final payment” of an item to be set by agreement]). Indeed, subdivision (3) of section 4-103 goes a long way toward equating "general banking usage”, relied upon by Leumi here, with ordinary care.

Further, in this case the reasonableness of the suspension of the midnight deadline is demonstrated by an examination of the underlying purpose of the rule. Far from merely encouraging banks to process deposited instruments promptly, the deadline plays the central role in "firming up” the provisional credit received by each transferor in the payee — depositary bank — intermediary bank chain. Under section 4-213 of the code, provisional credits become final as soon as the payor bank settles for the item and the time for revocation under the midnight deadline passes. This point is particularly critical for banks that funnel hundreds or thousands of checks per day into the collection stream because it enables them to assume that payment has been effectuated after a certain period of time unless there is a prompt return. (See, generally, Blake v Woodford Bank & Trust Co., 555 SW2d 589, 600-601 [Ky]; Official Comments 7-11, op. cit, Uniform Commercial Code, § 4-213, pp 591-593.)

These concerns, however, are irrelevant to any evaluation of the custom followed under the agreement between the banks here. It creates no provisional credits that must be firmed up, and the payee can only collect when the payor bank remits its cashier’s check, thus signifying that the drawer’s account received sufficient funds to cover the check. By its nature, the procedure singles out the item as an exceptional one; no transferor will assume it has been paid until specific notice is received.

Moreover, the concept of a midnight deadline is not compatible with any approach under which the payor bank seeks to wait for the deposit of funds in the drawer’s account. The reasonableness of such a banking custom must, therefore, be measured on its own terms. We conclude that this criterion is met when a depositary bank takes a possibly worthless instrument and directs the payor bank to adopt a technique that may provide the only chance for collection.

There is nothing unfair about this procedure. It is calculated to produce satisfied obligations in many instances where legal recourse, with all its attendant expense, inconvenience and uncertainty, would otherwise be necessary. Furthermore, the payee here cannot claim it was injured by its reliance on the payor bank’s silence after receipt of the item; the prior dishonor provided adequate warning of the questionable safety of the instrument. In any event, the payee’s right to sue the drawer on the underlying obligation was revived upon the first dishonor, and representment in no way cut short that prerogative (Uniform Commercial Code, § 3-802, subd [1], par [b]; § 4-301, subd [3]; Blake v Woodford Bank & Trust Co., supra, pp 598-599).

We therefore hold that the payor bank’s adherence to the depositary bank’s instructions for processing the drawer’s check does not render it liable to the payee under section 4-302. Accordingly, the certified question should be answered in the negative, the order of the Appellate Division reversed, and summary judgment granted in the defendant’s favor on the fourth cause of action.

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

Order reversed, with costs, and summary judgment granted in favor of defendant dismissing the fourth cause of action. Question certified answered in the negative.

      . A clearing house, of course, is a facility for transferring checks and other items to and from depositary banks and payor banks and for settling the balances due among them as a result of such transactions (see 8 Michie, Banks and Banking, ch 18, § 1, p 331, and n 1).

      . The other causes of action in the payee’s complaint challenged the timeliness of the payor bank’s action in processing the check upon its initial deposit. These claims have been dismissed and are not before us on this appeal.

      . (I.e., liable, Rock Is. Auction Sales v Empire Packing Co., 32 Ill 2d 269; Sun Riv. Cattle Co. v Miners Bank, 164 Mont 237.)

      . Section 4-301 of the Uniform Commercial Code reads in pertinent part:
      "(1) Where an authorized settlement for a demand item * * * has been made before midnight of the banking day of receipt the payor bank may revoke the settlement and recover any payment if before it has made final payment * * * and before its midnight deadline it
      "(a) returns the item; or
      "(b) sends written notice of dishonor or nonpayment if the item is held for protest or is otherwise unavailable for return.
      "(2) If a demand item is received by a payor bank for credit on its books it may return such item or send notice of dishonor and may revoke any credit given or recover the amount thereof withdrawn by its customer, if it acts within the time limit and in the manner specified in the preceding subsection.
      * * *
      "(4) An item is returned:
      "(a) as to an item received through a clearing house, when it is delivered to the presenting or last collecting bank or to the clearing house or is sent or delivered in accordance with its rules; or
      "(b) in all other cases, when it is sent or delivered to the bank’s customer or transferor or pursuant to his instructions.”

      . As the Official Comments explain: "In view of the technical complexity of the field of bank collections, the enormous number of items handled by banks, the certainty that there will be variations from the normal in each day’s work in each bank, the certainty of changing conditions and the possibility of developing improved methods of collection to speed the process, it would be unwise to freeze present methods of operation by mandatory statutory rules” (Official Comment 1, McKinney’s Cons Laws of NY, Book 62 Vi, part 2, Uniform Commercial Code, § 4-103, p 519).

      . The payee’s second presentment of the check for payment was with full knowledge that its previous rejection was for insufficiency of the drawer’s balance.

      . In some collection transactions convenience dictates that checks pass through so-called "intermediary banks” in addition to or instead of a clearing house before being forwarded to the payor bank (see Uniform Commercial Code, § 4-105, subd [c]).

      . Other than that the payor bank, permissibly, as we have demonstrated, did not feel bound by the deadline, the payee pointed to no facts indicating that the check was held for an unreasonable length of time.


author: Jones, J.

text:
    The People of the State of New York, Respondent, v Edward Johnson, Appellant.
    Argued December 10, 1979;
    decided December 19, 1979

      POINTS OF COUNSEL

      Noel Tepper and Robert M. Schwartz for appellant.
    I. The police violated Edward Johnson’s Fifth Amendment right to remain silent. (People v Grant, 45 NY2d 366; People v Buxton, 44 NY2d 33; People v Clark, 45 NY2d 432; Schmerber v California, 384 US 757; Miranda v Arizona, 384 US 436.) II. Edward Johnson’s consent to search was obtained in violation of his right to counsel, as once demand for counsel is made by a defendant in custody, any interrogation must cease until counsel is present. (People v Hobson, 39 NY2d 479; Miranda v

      Arizona, 384 US 436; People v Grant, 45 NY2d 366; Michigan v Mosley, 423 US 96; People v Tompkins, 45 NY2d 748; People v Pinzon, 44 NY2d 458; People v Lopez, 28 NY2d 23, 404 US 840.) III. The police violated Edward Johnson’s Fourth Amendment right as his consent was involuntary as a matter of law. (Miranda v Arizona, 384 US 436.)

      John R. King, District Attorney (Bridget R. Rahilly of counsel), for respondent.
    The search and seizure was conducted pursuant to a valid consent. (Schneckloth v Bustamonte, 412 US 218; People v Gonzalez, 39 NY2d 122; People v Rodriguez, 11 NY2d 279; United States v Watson, 423 US 411; People v Phiefer, 43 NY2d 719; People v Kuhn, 33 NY2d 203; People v Glass, 43 NY2d 283; People v Gruttola, 43 NY2d 116; Schmerber v California, 384 US 757.)
   OPINION OF THE COURT

Jones, J.

The qhestion posed by this appeal is whether, after a request for counsel has been made by a suspect in custody, his consent to a warrantless search of his premises may be obtained by a request immediately addressed to him in the absence of counsel. We hold that a consent so obtained is unavailing.

Acting on information from participants in an ongoing series of thefts of building materials, Deputy Sheriff Price of the Dutchess County Sheriff’s Department went to defendant’s premises about 6:30 in the early evening of August 26, 1975. On ascertaining defendant’s identity the officer advised him that he was under arrest for grand larceny, handcuffed him and placed him in the back seat of the police car. Price read defendant his rights under Miranda v Arizona (384 US 436) from a card the officer carried, each of which defendant said that he understood. Another officer present at the scene testified that after Price had advised defendant that he had the right to speak to a lawyer defendant responded: "You’re damn right, I’m going to have a lawyer.” About 7:00 p.m. another officer, Sergeant Fikar, who apparently was in charge of the investigation, arrived and inquired whether defendant had been given his Miranda rights. When advised that he had been, Fikar, who saw building materials on his premises, asked defendant, "where did all this stuff come from”, whereupon defendant said that he wanted to talk to his attorney before making any statement. Fikar ceased questioning about the crime but asked defendant if he minded if he looked around, and defendant said "no”, adding, "I have nothing to hide”. The sergeant asked defendant to sign a consent to search form; when defendant agreed to do so the officer produced a form which defendant signed after having been twice told that he had the right not to do so. The form contained a statement that the signer had been informed of his constitutional right not to have a search made without a search warrant and to refuse to consent to such a search. Thereafter, at Fikar’s request defendant opened various buildings on his property which, when searched by the several police officers who by then had come on the premises, produced a quantity of stolen building materials. After the initial search of the three buildings, defendant again expressed his desire for an attorney and informed the officers who his attorney was. Defendant was then permitted to telephone the attorney. Shortly thereafter the attorney arrived on the scene but voiced no objection to the search.

After a hearing on defendant’s motion to suppress the materials recovered at his premises County Court denied the motion, finding that under the criteria set forth in People v Gonzalez (39 NY2d 122) a consent to the search had been freely and voluntarily given by defendant. Defendant thereupon pleaded guilty to grand larceny in the second degree. On appeal the Appellate Division affirmed the conviction, without opinion. We now reverse.

We perceive no basis for differentiation with respect to the constraint imposed on the police by a defendant’s request for an attorney between their thereafter obtaining a statement from him and their thereafter obtaining his consent to a warrantless search of his premises. As we noted in People v Grant (45 NY2d 366), the Supreme Court in Miranda v Arizona (384 US 436, supra) accorded a different significance to an exercise of the constitutional right to counsel (US Const, 6th Arndt; NY Const, art I, § 6) than to an election to remain silent in exercise of the constitutional right against self incrimination (US Const, 5th Arndt; NY Const, art I, § 6). "If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. At that time, the individual must have ail opportunity to confer with the attorney and to have him present during any subsequent questioning” (Miranda v Arizona, 384 US 436, 474, supra; see Fare v Michael C., 439 US 1310). The defendant’s rights are no less at stake and the advice of counsel no less important if the police seek a relinquishment of defendant’s constitutional right to be secure against unreasonable searches and seizures than if they seek a waiver of his privilege against self incrimination.

In the present case, defendant twice stated his desire for an attorney before consenting to the search. Notwithstanding this, the police afforded him no opportunity to attempt to reach his attorney; on the contrary they pressed their investigation and without break or interruption sought and obtained his consent to the search of his premises. There was no "scrupulous honoring” of his request for counsel. The focus of their endeavors simply shifted from obtaining oral statements to eliciting his consent to the equally prejudicial search of his property. In these circumstances it was constitutionally impermissible to seek his consent to the search before he had been permitted access to counsel, and his consent thereto, although found to have been voluntarily given, was legally ineffectual. The motion to suppress the physical evidence should therefore have been granted (cf. People v Grant, 45 NY2d 366, supra; People v Buxton, 44 NY2d 33).

It perhaps needs be added that the People can derive no solace from the circumstance that when the attorney did arrive on the scene after the initial search of the buildings had been completed he then raised no objection. Obviously he could not then undo what had already been accomplished. The evidence, as a matter of law, does not support any conclusion that defendant then, on advice of counsel, gave a voluntary, knowing consent to a search of his premises with the intent that it relate back and retroactively validate what to that point had been an unconstitutional search.

Accordingly, the order of the Appellate Division should be reversed, defendant’s plea and thus his conviction vacated, his motion to suppress the physical evidence granted, and the case remitted to County Court for further proceedings on the indictment.

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

Order reversed, plea and conviction vacated, motion to suppress physical evidence granted, and case remitted to Dutchess County Court for further proceedings on the indictment.


text:
    Gilbert Colon, Respondent, v Aetna Casualty & Surety Company, Appellant.
    Argued December 11, 1979;
    decided January 3, 1980

      POINTS OF COUNSEL

      Michael Majewski, J. Robert Morris and Joseph D. Ahearn for appellant.
    The canons of statutory construction, especially those relating to laws in pari materia, to the presumptions attaching to terms which have been judicially interpreted, and to the assumption that the Legislature is aware of the legal meaning imparted to terms employed in earlier statutes dealing with the same general subject matter, were completely misapplied by the court below causing that court to err in concluding that the instant plaintiff was not an occupant of the disabled vehicle thereby entitling him to first-party benefits under the Comprehensive Automobile Reparations Act. (Matter of Rice v Allstate Ins. Co., 32 NY2d 6; Estate of Cepeda v United States Fid. & Guar. Co., 37 AD2d 454;
      Seligman v Friedlander, 199 NY 373; Matthews v Matthews, 240 NY 28; Matter of Curtin v City of New York, 287 NY 338; Insurance Co. of North Amer. v Godwin, 46 AD2d 154; Matter of Durant [MVAIC], 20 AD2d 242, 15 NY2d 408; Matter of Shaw v Motor Vehicle Acc. Ind. Corp., 24 Misc 2d 466; Montgomery v Daniels, 38 NY2d 41; Jewish Hosp. of Brooklyn v "John Doe”, 252 App Div 581.)

      Richard Klein for respondent.
    I. Plaintiff pedestrian was a covered person entitled to benefits from the insurer of the offending vehicle. II. Pedestrian is a clear and unambiguous word and/or term. Having been defined by statute, definition should be applied and not interpreted. III. Plaintiff’s claim is for section 672 Insurance Law payments, as distinguished from section 608 protection. IV. Judicial interpretations seeking to broaden coverage under a different statute should not properly be employed to restrict coverage under no-fault. (Estate of Cepeda v United States Fid. & Guar. Co., 37 AD2d 454; State-Wide Ins. v Murdock, 31 AD2d 978; Matter of Allstate Ins. Co. v Flaumenbaum, 62 Misc 2d 32; Matter of Motor Vehicle Acc. Ind. Corp. v Oppedisano, 41 Misc 2d 1029.) V. Article 17 and article 18 express different legislative policy.
   OPINION OF THE COURT

Jones, J.

A person who had exited his disabled vehicle and was standing on the highway diverting oncoming traffic was not an "occupant” of his own car and therefore is not excluded from no-fault insurance benefits under the policy of the driver of the vehicle which struck him on the ground that he was "an occupant of another motor vehicle” within the meaning of section 672 (subd 1, par [a]) of the Insurance Law.

On the evening of November 12, 1976 plaintiff, accompanied by two passengers, was operating his automobile on the Grand Central Parkway in New York City when the hood of the vehicle flew up, smashing the windshield and blocking the view of the driver. After stopping the car and trying to close the hood without success, the three positioned the vehicle partially on the center median pavement and themselves stood in the roadway some distance from the car, flagging oncoming traffic to warn of the disabled vehicle. After this had continued for about 15 minutes, a passing motorist volunteered to go to telephone for a towtruck. Plaintiff and his passengers continued to flag traffic from positions behind the disabled automobile for another five minutes, varying their locations, until, when plaintiff was walking in the road six or seven feet from his car, he was struck by a vehicle traveling on the Parkway and operated by one Conwell, defendant’s insured.

The present declaratory judgment action seeks a determination that plaintiff is entitled to benefits under the no-fault provisions of Conwell’s liability policy, following defendant’s rejection of plaintiff’s claim filed with it. The rejection was predicated on defendant’s determination that "[t]he claimant is not considered a pedestrian but a passenger of a disabled vehicle. He should be covered under the No Fault coverage of the disabled vehicle. Therefore benefits are denied under our insured No Fault coverage.”

Trial Term granted judgment declaring that defendant insurer is not obligated to plaintiff as a person entitled to benefits under the no-fault provisions of the Insurance Law. The Appellate Division unanimously reversed, and we now affirm that disposition.

The question is whether plaintiff was a "person other than an occupant of another motor vehicle” within the contemplation of section 672 (subd 1, par [a]) of the Insurance Law. That paragraph defines the claimants who are entitled to payment of first-party benefits under the Comprehensive Automobile Insurance Reparations Act — the so-called no-fault program. If, as plaintiff claims, he is such a person then he is entitled to receive first-party benefits at the hands of Aetna, the insurer of the Conwell automobile; if, as the insurer asserts, plaintiff was an "occupant” of his own disabled car, then he is excluded from coverage under the Aetna policy.

When plaintiff was struck by the Conwell vehicle he was not an "occupant” of his own car within the ordinary and customary meaning of the term, and the insurer does not contend otherwise. Its claim is predicated on the very much expanded meaning of the word "occupying” as used in section 617 of the Insurance Law under the Motor Vehicle Accident Indemnification Corporation Law, and it asserts that the word "occupant” under no-fault should be accorded a similar expanded meaning.

When the MVAIC program was enacted in 1958 by section 617 the benefits of coverage in the case of hit-and-run accidents were extended to qualified persons "occupying” the motor vehicle at the time of the accident. Not content with the literal and customary meaning of the word, the Legislature explicitly provided that it was intended in that statute to embrace situations which would not normally be thought to be included in the term, i.e., in addition to including presence "in or upon” the motor vehicle — the normal denotation of the word — "occupying” was to extend as well to situations involving "entering into or alighting from”. Thus, the Legislature gave the word a specially constructed definition for the purposes of section 617 coverage. Taking guidance from this legislative signal the courts have held that a person who is "vehicle oriented” falls within the scope of the term for purposes of section 617 — now a very far cry from the lexicographer’s definition of the word.

From a policy standpoint this has accorded with the legislative declaration of purpose to secure to innocent victims of motor vehicle accidents recompense for the injury and financial loss inflicted upon them (Insurance Law, § 600, subd [2]). Inasmuch as "occupying” is a term defining included coverage, the more expansive a meaning accorded the term, the broader the sweep of coverage. Accordingly both Legislature and the courts have been disposed to stretch rather than to narrow the embrace of the critical word.

When article 18 inaugurating no-fault insurance was added to the Insurance Law in 1973, in defining entitlement to first-party benefits the Legislature again had occasion to resort to use of the stem "occupy” in employing the term "occupant”. Notwithstanding the specially constructed definition ascribed in section 617 and charged with awareness of the judicial interpretation given the concept by the courts over the intervening years, the Legislature chose to use the unembellished word "occupant”. It neither expressly incorporated the MVAIC meaning of the term by cross reference, as it might have, nor did it include the statutory signal that it was, for no-fault purposes, to have the specially constructed definition including "entering in or alighting from”. We can only conclude that the Legislature made a conscious choice to give the word "occupant” a different meaning for no-fault purposes than its associated term "occupying” had for MVAIC purposes, in effect to leave the word to its customary lexicographical and thus more restricted meaning.

This, too, serves to accomplish the presumed intention of the Legislature in seeking an equitable distribution of compensation among accident victims to assure maximum appropriate coverage of the new no-fault insurance program. In this instance, in contrast to that under MVAIC, the word "occupant” functions as a term of exclusion. Thus, to accord a restricted meaning will work an expansion of coverage.

For the foregoing reasons we conclude that the word "occupant” appearing in section 672 (subd 1, par [a]) of the Insurance Law should be ascribed its normal, dictionary meaning and that plaintiff is therefore entitled to benefits under the policy issued by defendant.

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

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

Order affirmed.

      . (E.g., Matter of Rice v Allstate Ins. Co., 32 NY2d 6; Matter of State-Wide Ins. Co. v Murdock, 31 AD2d 978, affd 25 NY2d 674; Estate of Cepeda v United States Fid. & Guar. Co., 37 AD2d 454; Matter of Motor Vehicle Acc. Ind. Corp. v Oppedisano, 41 Misc 2d 1029.)

      . As we observed in Matter of Sentry Ins. Co. (Amsel) (36 NY2d 291, 294-295): "The Legislature, of course, frequently employs the same words in different statutes with different meaning and effect”.


author: Jasen, J.

text:
    In the Matter of Frank P. Di Marsico, Respondent, v Gordon M. Ambach, as Commissioner of Education of the State of New York, et al., Appellants.
    Argued September 14, 1979;
    decided November 27, 1979

      POINTS OF COUNSEL

      Robert Abrams, Attorney-General (John J. O’Grady of counsel), for appellants.
    The Legislature, in transferring responsibility for medical disciplinary proceedings from the Education Department to the Health Department, did not evidence any intent to restrict the responsibility of the Board of Regents for regulation of the medical profession. (Matter of Lumpkin v Department of Social Servs. of State of N. Y., 45 NY2d 351; Matter of Bernstein v Toia, 43 NY2d 437; Matter of Rubin v Levine, 41 NY2d 1024; Matter of Howard v Wyman, 28 NY2d 434.)

      Richard M. Rosenbaum and Frank H Penski for respondent.
    The Board of Regents improperly delegated responsibility to the Regents review committee and failed to perform its own statutorily mandated functions in this case.
   OPINION OF THE COURT

Jasen, J.

Presented for our determination on this appeal is the issue whether the Board of Regents may enlist the aid of a review committee when rendering a final determination in a medical misconduct proceeding.

The relevant facts are as follows: By a notice of hearing and statement of charges dated August 31, 1976, it was alleged that petitioner, a duly licensed physician and part owner of a nursing home, was guilty of professional misconduct in that he failed to provide six of his patients — all of whom were residents of the health-care facility — with proper medical care. (Education Law, § 6509, subds [2], [9].) Hearings on these charges were held by a committee on professional conduct pursuant to title II-A of article 2 of the Public Health Law. The committee sustained the charges, in whole or in part, as to five of the patients and recommended that petitioner’s license to practice medicine be suspended for a one-year period. The Commissioner of Health recommended total acceptance of the committee’s findings and recommendation, and directed that the entire record of the proceeding be transmitted to the Board of Regents for a final decision and order. (Public Health Law, § 230, subd 10, par [i].)

Upon receipt of this matter, the Board of Regents transferred it to a three-person review committee composed of one member of the Board of Regents and two nonmembers. This review committee issued a report accepting the findings of guilt, but, taking a more serious view of petitioner’s misconduct, recommended that his license to practice medicine be revoked rather than suspended for one year. The Board of Regents adopted this recommendation of the review committee and ordered that petitioner’s "license to practice as a physician in the State of New York as well as [petitioner’s] registration to so practice be revoked”.

Thereafter, petitioner instituted the instant CPLR article 78 proceeding contending, inter alia, that the findings of negligence and misconduct were not supported by substantial evidence, that the penalty of revocation of his license to practice medicine was excessive, and that the Board of Regents was without authority to refer this matter to a review committee. The Appellate Division, concluding that the Board of Regents acted erroneously in submitting petitioner’s case to the review committee, annulled the determination of the Board of Regents and remitted the matter to the board to assess the charges against petitioner without the assistance of a review committee. In light of its disposition, the Appellate Division did not reach the other contentions raised by petitioner.

Respondents were granted leave to appeal by this court from the order of the Appellate Division pursuant to CPLR 5602 (subd [a], par 2). We now reverse and reinstate the determination of the Board of Regents, and remit this matter to the Appellate Division for consideration of the additional issues not previously reached by that court.

On this appeal, respondents argue that the Board of Regents possesses the authority to refer medical misconduct proceedings to a review committee before the board renders its final determination. To support this contention, respondents cite section 6506 of the Education Law which provides, in pertinent part, as follows: "The board of regents shall supervise the admission to and the practice of professions. In supervising, the board of regents may: * * * (4) Appoint such committees as it deems necessary”. In short, respondents’ position is that the Board of Regents is empowered by statute to refer all matters involving the supervision of the professions to review committees if it deems such action necessary in order to fulfill its supervisory responsibility.

Petitioner contends, however, that the Board of Regents lacks the power to utilize review committees when passing upon a case of professional misconduct involving the medical profession. Specifically, petitioner calls our attention to the provisions of section 6510-a of the Education Law. That section, while providing for final administrative review by the Board of Regents in medical misconduct proceedings, fails to authorize expressly the use of review committees. Petitioner maintains that in the absence of such provision, the Board of Regents is precluded from enlisting the aid of a review committee when rendering a final determination. We do not agree.

Prior to 1975, cases of professional misconduct involving all professionals governed by article 130 of the Education Law— which includes physicians — were processed according to the procedure outlined in section 6510 of the Education Law. That section vested in the Education Department the authority to investigate the complaint and further provided for a hearing before the committee on professional conduct for the medical profession. The transcripts and results of the hearing would be sent to a review committee of the Board of Regents for its consideration. The committee would then issue a written report of its review and transmit such report to the Board of Regents for a final determination.

In 1975, however, the Legislature established a new procedure for processing claims of professional misconduct involving members of the medical profession. (L 1975, ch 109, §§ 28, 29, 31, 32, 37.) Although the bills, as originally introduced, would have divested the Education Department and the Board of Regents of all authority in matters concerning professional medical misconduct (S5007, A6969, A6969-B [198th Session (1975)]), the final bill as enacted into law — while transferring responsibility for prehearing and hearing proceedings from the Department of Education to the Department of Health— retained the Board of Regents as the administrative body vested with the responsibility of ultimately determining the guilt or innocence of the physician and the penalty, if any, to be imposed. (L 1975, ch 109, § 32, adding Education Law, § 6510-a.)

While it is true that the new procedure adopted by the Legislature does not provide expressly for the referral of professional medical misconduct matters to a Board of Regents review committee (compare Public Health Law, § 230, and Education Law, § 6510-a, with Education Law, § 6510, subd 3), the Board of Regents, in furtherance of its statutory duty to supervise the professions, still possesses the authority to appoint committees if it deems such committees necessary in order to fulfill its statutory obligation. As stated in section 6506 of the Education Law: "The board of regents shall supervise the admission to and the practice of the professions. In supervising, the board of regents may * * * (4) Appoint such committees as it deems necessary”. We believe this section provides more than adequate support for respondents’ position that the Board of Regents may refer, in its discretion, professional medical misconduct proceedings to a review committee if the Board of Regents concludes that such referral would be beneficial or necessary.

Further support for our conclusion. that the Board of Regents may refer matters involving professional medical misconduct to review committees can be discerned from the construction given the recently enacted statutory procedure by the Board of Regents itself. As reported by Regent Emlyn Griffith, Chairman of the Regents Committee on Professional Discipline, at a meeting of the board: "Your committee has concluded that the reports and recommendations of the Commissioner of Health with respect to medical discipline cases should be handled in the same manner as the reports and recommendations of the hearing panels in all other professions. Accordingly, within the statutory time frame, the Regents Committee will have its three-member review committee study the documents and recommendations received from the Commissioner of Health, afford an opportunity to each respondent to appear with counsel before the review committee, and then process its findings and recommendations through the Regents Committee on Professional Discipline to the entire Board for final decision.” (New York State University Journal of Meetings [Board of Regents], June 25-27, 1975, p 652.)

Thus, it is clear that the Board of Regents did not construe the statutory change as divesting the board of its power to refer professional medical misconduct matters to a review committee. Inasmuch as the Board of Regents is charged, by statute, with the responsibility of ultimately passing upon a physician’s guilt or innocence and the penalty to be imposed in misconduct proceedings (Education Law, § 6510-a, subd 2), its interpretation of the statutory provisions delineating the procedure to be followed should be accorded great weight and accepted by the courts if not unreasonable or irrational. (Matter of Bernstein v Toia, 43 NY2d 437, 448; Ostrer v Schenck, 41 NY2d 782, 786; Matter of Howard v Wyman, 28 NY2d 434, 438.)

Although section 6510-a of the Education Law does not provide expressly for the referral of professional medical misconduct proceedings to a review committee, neither does it expressly prohibit such referrals. In light of the authority granted the Board of Regents to appoint committees (Education Law, § 6506, subd [4]), we now hold that it was reasonable and rational for the Board of Regents to interpret the relevant statutory provisions as permitting the use of referral committees. As a practical matter, any other construction would give rise to a cumbersome procedure for the handling of these cases.

Nor is there any evidence to support petitioner’s contention that the Board of Regents failed to fulfill its duties as set forth in subdivision 2 of section 6510-a of the Education Law. Petitioner does not now argue that the Board of Regents did not have access to the transcript of the proceedings or the findings, conclusions and recommendations of both the Committee on Professional Misconduct and the Commissioner of Health. The mere fact that the Board of Regents may have relied upon the report of its review committee does not, without more, lead inescapably to the conclusion that the Board of Regents failed to exercise independent judgment when determining the guilt of petitioner and the penalty to be imposed for his actions. (See Matter of Taub v Pirnie, 3 NY2d 188.)

Accordingly, the order of the Appellate Division should be reversed, with costs, the determination of the Board of Regents reinstated and the matter remitted to the Appellate Division, Third Department, for consideration of additional issues not previously considered by that court.

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

Order reversed, with costs, the determination of the Board of Regents reinstated and the matter remitted to the Appellate Division, Third Department, for further proceedings in accordance with the opinion herein.

       A committee on professional conduct of the State Board for Professional Medical Conduct consists of four physicians and one layperson. (Public Health Law, § 230, subd 6.)