author: Bbllacosa, J.

text:
    [634 NE2d 162, 611 NYS2d 790]
    Timothy J. Farnham, Appellant, v Aaron L. Kittinger et al., Defendants, and Norfolk & Western Railway Company et al., Respondents. Stephen A. Cobb, Appellant, v Aaron L. Kittinger et al., Defendants, and Norfolk & Western Railway Company et al., Respondents.
    Argued February 15, 1994;
    decided March 30, 1994

      POINTS OF COUNSEL

      David M. Civilette, Dunkirk, and Anthony J. Spann, P. C., for appellants.
    I. General Obligations Law § 9-103 should be strictly construed. (Basso v Miller, 40 NY2d 233; Sega v State

      of New York, 60 NY2d 183; Seminara v Highland Lake Bible Conference, 112 AD2d 630.) II. Plaintiffs were not in a vehicle operated for recreational purposes. (Iannotti v Consolidated Rail Corp., 74 NY2d 39; Messinger v Festa, 117 AD2d 784.) III. Whether defendant’s conduct constitutes a "willful or malicious failure to guard or to warn against the dangerous condition” is a question of fact to be determined at trial. (Gardner v Owasco Riv. Ry., 142 AD2d 61.)

      Saperston & Day, P. C, Buffalo (Katherine B. Roach and Thomas F. Segalla of counsel), for Norfolk & Western Railway Company, respondent.
    I. Summary judgment was appropriate in favor of Norfolk & Western. (Andre v Pomeroy, 35 NY2d 361; Frank Corp. v Federal Ins. Co., 70 NY2d 966; Bowles v Kawasaki Motor Corp., 179 AD2d 299; Gardner v Owasco Riv. Ry., 142 AD2d 61; Ugarizza v Schmieder, 46 NY2d 471; Mercado v Vega, 77 NY2d 918.) II. The Toyota Land Cruiser was a motorized vehicle used for recreational purposes. (Gruber v Fairport Cent. School Dist, 147 Misc 2d 545; Messinger v Festa, 117 AD2d 784.) III. The subjective intent of the driver of the Toyota Land Cruiser is irrelevant to the application of General Obligations Law § 9-103 as the vehicle was used for recreational purposes. (Messinger v Festa, 117 AD2d 784.) IV. The property at issue was suitable and appropriate for the use undertaken by plaintiffs. (Larini v Biomass Indus., 918 F2d 1046; Fenton v Consolidated Edison Co., 165 AD2d 121; Wiggs v Panzer, 187 AD2d 504; Obenauer v Broome County Beaver Lake Cottagers Assn., 170 AD2d 739.) V. At most, negligence is alleged against Norfolk & Western; the allegations do not rise to the level of willful or malicious failure to warn. (Fenton v Consolidated Edison Co., 165 AD2d 121; Sega v State of New York, 60 NY2d 183; Gardner v Owasco Riv. Ry., 142 AD2d 61; Larini v Biomass Indus., 918 F2d 1046; Hoffman v Wunderlich, 147 AD2d 807; Phillips v Baird, 156 AD2d 998; Bowles v Kawasaki Motor Corp., 179 AD2d 299.) VI. Norfolk & Western does not own the access road; accordingly, there is no basis to impose liability on Norfolk & Western. (Basso v Miller, 40 NY2d 233; Metcalf v City of Cortland, 56 AD2d 959.)

      Bragar & Wexler, P. C., New York City (Raymond A. Bragar of counsel), and Lustig & Brown, P. C, Buffalo (David Paige of counsel), for The Penn Central Corporation and another, respondents.
    I. This Court’s Iannotti v Consolidated Rail Corp. (74 NY2d 39) decision which correctly resolved the meaning of "motorized vehicle operation for recreational purposes”, was properly applied here by the Court below. (Scattareggia v

      Niagara Mohawk Power Corp., 134 Misc 2d 234; Gardner v Owasco Riv. Ry., 142 AD2d 61; Hardy v Gullo, 118 AD2d 541; Messinger v Festa, 117 AD2d 784.) II. The Court below correctly held that plaintiffs’ allegations in support of "willful or malicious failure to warn” at most raise an issue of simple negligence. (Sega v State of New York, 60 NY2d 183; Gardner v Owasco Riv. Ry., 142 AD2d 61; Bowles v Kawasaki Motor Corp., 179 AD2d 299; Indig v Finkelstein, 23 NY2d 728; GTF Mktg. v Colonial Aluminum Sales, 66 NY2d 965; Zuckerman v City of New York, 49 NY2d 557; Oates v Marino, 106 AD2d 289; Gelb v Bucknell Press, 69 AD2d 829; Capelin Assocs. v Globe Mfg. Corp., 34 NY2d 338; Fenton v Consolidated Edison Co., 165 AD2d 121.)
   OPINION OF THE COURT

Bbllacosa, J.

General Obligations Law § 9-103 cloaks landowners with a special immunity against the usual duty to keep designated open spaces reasonably safe for persons who enter to recreate. The key prerequisite favors owners as against users who enter places to engage in statutorily enumerated recreational activities, including by specified motorized vehicle operation. The complementary goals of the statute are to encourage landowners to leave and allow their open lands to be accessible to recreators, the inducement being the special immunity; and to correspondingly withdraw from recreators, as a quid pro quo, their usual right to sue an owner for injuries suffered from failure to keep a place reasonably safe.

In this case, plaintiffs were passengers in a four-wheel-drive, multipurpose vehicle capable of recreational off-road use. They drove onto defendants’ property at night purportedly to find a private place to relieve themselves. We conclude that, in this case, factual aspects may be present concerning the recreational intent of the plaintiffs users precluding summary judgment to defendants. Thus, the order of the Appellate Division granting summary judgment to defendants Penn Central Corporation, Norfolk & Western Railway Company, and the Penndel Company, dismissing the complaints based on the statutory immunity should be reversed and the case remitted for further proceedings.

L

In Chautauqua County, within the Town of. Hanover, New York, a cleared right-of-way or access road owned by defendont Penn Central runs parallel to defendant Norfolk & Western’s operational railroad line. When Penn Central ceased operation on its line in 1972, it cleared its rail ties from the remaining access road. Norfolk & Western utilizes Penn Central’s right-of-way to access its active rail line and denies any ownership to the right-of-way. Years ago, the two railroad lines crossed Dead Creek on supporting steel bridges a few feet apart and about 15 feet above the water. The inactive Penn Central line across the creek, with rail and ties removed, now consists of only a steel frame crossing; Norfolk’s functioning line crosses the creek with intact ties and track across its bridge. No car bridge has ever spanned Dead Creek.

On June 28, 1985, shortly after midnight, plaintiffs passengers were driving along Allegheny Road from a bar where they had consumed beer. Plaintiffs Farnham and Cobb, along with driver defendant Kittinger, decided to enter the defendants’ right-of-way where it crosses Allegheny Road, apparently to answer nature’s call. Kittinger’s vehicle is an automobile designed with high clearance and four-wheel-drive features to allow the vehicle to maneuver on unpaved surfaces. It proceeded on the access road for about one-half mile. Suddenly, Kittinger noticed the lack of a suitable bridge for an auto crossing over Dead Creek; he defensively turned left. The vehicle hit a large bump, causing it to veer onto Norfolk’s adjacent rail tracks. Ultimately, it flipped over and landed topside in the shallow waters of Dead Creek. Plaintiffs Farnham and Cobb suffered serious injuries and each commenced suit.

Defendants Penn Central, Norfolk & Western and Penndel Company invoked the immunity bar of General Obligations Law § 9-103. Supreme Court rejected their defense in a detailed interpretation of Iannotti v Consolidated Rail Corp. (74 NY2d 39). Supreme Court agreed with plaintiffs’ contention that they were not engaged in "motorized vehicle operation for recreational purposes” and found that the abandoned right-of-way was not suitable for recreational activities. As to the issue concerning malicious creation of a trap, Supreme Court stated that "[t]he evidence [also] demonstrates an issue of fact as to 'willful or malicious’ conduct.” Supreme Court denied defendants’ motions for summary judgment.

The Appellate Division reversed and granted summary judgment in favor of the property owners defendants and dismissed the complaints against them (192 AD2d 1062). This Court granted leave to appeal and we now reverse the order of the Appellate Division, deny the motions for summary judgment and remit the case for further proceedings.

The critical determination for the trial court will be whether the plaintiffs’ activity falls within the enumerated category of "motorized vehicle operation for recreational purposes” as a matter of fact under the circumstances of this case and its distinctive fact pattern (General Obligations Law § 9-103). We conclude that off-road operation of a noninherently recreational, multipurposed motor vehicle does not automatically constitute "motorized vehicle operation for recreational purposes” within the meaning of General Obligations Law § 9-103. Such an extended view would grant landowners immunity farther than the words and intent of the statute prescribe, and farther than the precise ratio decidendi of Iannotti compels. By like token, however improbable it is to characterize plaintiffs’ conduct in these circumstances as recreational, it is incompatible with the complementary purposes of the statute to grant summary judgment precluding as a matter of law the availability of the statutory immunity for the defendants here.

IL

General Obligations Law § 9-103 grants a special immunity to owners, lessees or occupants from the usual duty to keep places safe. When individuals enter or use the property of another in pursuit of one or more of the specified recreational categories, with or without permission from the owner, they do so at their own peril and without potential recourse to sue for damages based on failure of landowners to maintain usual safekeeping measures (General Obligations Law § 9-103 [1] [a]). That is their part of the statutory bargain, so to speak. Further, the owner has no duty "to give warning of any hazardous condition or use of or structure or activity on such premises to persons entering for such purposes” (General Obligations Law § 9-103 [1] [a]). These features strike the balance that the Legislature intended to allow or encourage more people to use more accessible land for recreational enjoyment (L 1956, ch 842 [predecessor to General Obligations Law § 9-103]). Forty-eight States have recreational use statutes attempting to strike this balance, with varying results (see, e.g., Comment, Wisconsin’s Recreational Use Statute: Towards Sharpening the Picture at the Edges, 1991 Wis L Rev 491 [1991]; Butler, Outdoor Sports and Torts: An Analysis of Utah’s Recreational Use Act, 1988 Utah L Rev 47 [1988]).

In New York, however, the 18 uses enumerated in General Obligations Law § 9-103 are essentially self-explanatory. An owner owes no usual duty to keep lands safe for entry and use by others for "hunting, fishing, organized gleaning as defined in section seventy-one-y of the agriculture and markets law, canoeing, boating, trapping, hiking, cross-country skiing, tobogganing, sledding, speleological activities, horseback riding, bicycle riding, hang gliding, motorized vehicle operation for recreational purposes, snowmobile operation, cutting or gathering of wood for non-commercial purposes or training of dogs” (General Obligations Law § 9-103 [1] [a]). Thus, recreational wanderers and wanderers partaking of these enumerated activities are owed none of the usual safekeeping duties imposed on owners (see, e.g., Clark v State of New York, 178 AD2d 908; Larini v Biomass Indus., 918 F2d 1046; Rains v United States, 752 F Supp 71; Reid v Kawasaki Motors Corp., 189 AD2d 954; Phillips v Baird, 156 AD2d 998, lv denied 75 NY2d 711; Wiggs v Panzer, 187 AD2d 504; Dean v Glens Falls Country Club, 170 AD2d 798; Sega v State of New York, 60 NY2d 183). Liability against owners is foreclosed in these prescribed recreational instances by operation of the statute.

Unlike its specific counterparts, the more generalized use category of "motorized vehicle operation for recreational purposes” is somewhat more ambiguous or nuanced. We believe that motorized vehicles which are inherently recreational, like motorcycles, minibikes and all-terrain vehicles (L 1971, ch 343), are largely free of ambiguity under the statute. As we said in Iannotti, "[ojbviously, that the bike was being used for transportation would not mean that its use was not also recreational” (Iannotti v Consolidated Rail Corp., 74 NY2d 39, 47, supra).

Many automobiles, on the other hand, in today’s marketplace have been developed as multipurpose motorized vehicles for overlapping family, work and recreation. These vehicles are engineered with the capacity to leave paved road surfaces and venture up mountains, into woods and across streams. The person who uses such a vehicle may simply be intrigued with the four-wheel-drive capacity for purposes of handling snow and ice conditions, large pot holes or exciting, untraversed side-road vistas. The nature and fast-changing engineering and marketing of such vehicles cannot, however, automatically shift these vehicles into the inherently recreational type so plainly covered by General Obligations Law § 9-103. Thus, persons pulling off the road in such noninherently recreational vehicles simply for personal reasons should not be deemed to have automatically triggered the statute’s immunity framework. They are not the intended use beneficiaries who, by operation of law, give up their common-law negligent injury protections. Nor are persons duty-bound to go upon land, such as emergency responding personnel, no matter what type of vehicles or instrumentalities they utilize, in fulfillment of inherently nonrecreational responsibilities.

For the immunity statute to apply in the noninherently recreational motorized vehicles context, there must be a showing of particularized recreational use. Such a showing may be made by reference to one of the enumerated activities or a specific showing of motor vehicle operation for recreational purposes within the contemplation of the statute. The use should not have to be exclusively recreational, but recreational it must be for the users to forfeit their common-law rights and for the owners to acquire the protective immunity cloak of the statute. This aspect, thus, injects a difficult blend of ambiguities and competing interests for the application of the statute in these circumstances.

We conclude, therefore, that the current range of four-wheel-drive, multipurpose operational vehicles that can be used for access into open properties do not garner automatic immunity to landowners unless the user is shown to have some recreating purpose. In situations such as are presented here, the courts will have to delve into the intent of the users. That is subjective. Where the user is shown to be involved in a statutorily contemplated or enumerated recreational purpose and activity (see, Messinger v Festa, 117 AD2d 784), the objective part of the test, immunity is bestowed by operation of the statute. If, on the other hand, the user enters the property for emergency purposes, or for other nonrecreational purposes, and not for prescribed recreational purposes, then the user has demonstrated a threshold nonrecreational use. That withholds from the landowner an automatic statutory immunity. It does not, of course, create or justify liability in and of itself.

We believe that the need to explore for recreational intent is particularly relevant when uses are associated with noninherently recreational motor vehicles (see, Gardner v Owasco Riv. Ry., 142 AD2d 61, lv denied 74 NY2d 606). Since Iannotti involved the use of an inherently recreational vehicle — a motorized dirt bike — no exploration of recreational intent was necessary. As to such vehicles, motorcycles and all-terrain vehicles, the subjective intent of the parties remains irrelevant, since those motor vehicles by their nature are designed predominantly for recreational purposes. Additionally, the Legislature, in adopting in 1971 the new category of "motorized vehicle operation for recreational purposes,” made plain its intention to include particularly the following inherently recreational vehicles: "motorcycle, motorbike, mini-bike or other type of mechanical device propelled by a motor” like three- and four-wheel all-terrain vehicles (Mem of Member of Assembly Betros, Bill Jacket, L 1971, ch 343, at 24-25 ["Purpose of Bill”]). We note that the more broadly embracive language in Iannotti in this respect, suggesting that recreational intent is irrelevant as to all types of vehicles, whether inherently recreational or not, should not be followed. We conclude the rule should not emerge so broadly as applied in light of the words and history of the statute and the governing principles and purpose as illuminated by the discrete fact developments and impact of the rules in this case. The Court is now satisfied that the Legislature did not intend an immunity sweep broader than we have now construed, albeit recognizing this is less than Iannotti seemed to promise. The Legislature may exercise its policy choice to modify, limit or expand this special immunity if it wishes in light of the empirical data, the evolution of the precedents and the competing policy objectives of the legislation.

We conclude that in the procedural posture and unusual circumstances of this case we need not decide whether suitability of property for a particular recreational use is generally an independent ingredient governing the availability of immunity under General Obligations Law § 9-103. In light of the permutations of consequences flowing from the diverse views expressed in Iannotti itself on suitability, which produced different applications by the two prior courts, we deem it prudent to decide no more than to deny defendants’ motions for summary judgment — the only aspect before us — for the reasons we have given.

m.

Also before us is a question of limitation in the scope of General Obligations Law § 9-103. It explicitly retains exposure to liability for willful or malicious failure to warn against a dangerous condition, use, structure or activity (General Obligations Law § 9-103 [2] [a]). However, it is the "plaintiff [who] must prove that the defendant willfully or maliciously failed to guard or to warn against a dangerous condition, use, structure, or activity[, while t]he defendant’s negligence, if any, is immaterial” (Sega v State of New York, 60 NY2d 183, 192, supra). Thus, while generally no duty to warn obtains, there is no automatic immunity from liability upon a showing of "willful or malicious” failure to warn. Inherent in this preserved exposure to suit, though, is a high-threshold demonstration by the injured party to show willful intent by the alleged wrongdoer. General Obligations Law § 9-103 (2) (a) in this regard must be viewed as an exception to the general immunity from liability. As an exception, it should not be read so expansively as to promote question-of-fact inquiries as a general rule. The exception "must be strictly construed in order that the major policy underlying the legislation itself is not defeated,” with all doubts resolved in favor of the general provision rather than the exception (McKinney’s Cons Laws of NY, Book 1, Statutes § 213; see also, Matter of Charles, 279 App Div 741, affd 304 NY 776).

Strongly illustrative of this application are the few available precedents. In Cutway v State of New York and Sega v State of New York (together, at 60 NY2d 183, supra), this Court found that the owners’ conduct was not willful or malicious towards either a hiker leaning against a guardrail that collapsed, or a three-wheel motorized vehicle operator who struck a cable strung across the roadway. Nor did liability attach to the owner of a railroad access road on which a neighbor had built an ice barrier to slow vehicles that injured plaintiff (Gardner v Owasco Riv. Ry., 142 AD2d 61, 65, supra). An owner’s actions in creating a dangerous condition must be based on a showing of particular, not inferred, malice and willfulness, and not on simple negligence (Bowles v Kawasaki Motor Corp., 179 AD2d 299; Wilkins v State of New York, 165 AD2d 514; Fenton v Consolidated Edison Co., 165 AD2d 121, lv denied 78 NY2d 856).

IV.

Applying our rationale to the record before us, we conclude that a fact question remains as to the plaintiffs users’ recreational intent, if any here, within the meaning of the statute during their sojourn down the rail access road to find a private place to urinate. If the owners can demonstrate some recreational purpose, within the objective features of the statute, the owners are entitled to dismissal under the immunity statute. If the plaintiffs’ purpose was entirely nonrecreational activity as understood under the immunity statute, then General Obligations Law § 9-103 does not save the owners from lawsuit exposure. In such instances, liability will be determined in accordance with the dictates of New York’s customary property owner principles (see, Basso v Miller, 40 NY2d 233).

We are also satisfied that plaintiffs’ claim of willful and malicious conduct was correctly rejected by the Appellate Division under our standard prevailing precedents and authorities. Finally, while the Appellate Division’s order must be reversed for the reasons we have given, we refrain from addressing its discussion of the suitability question in this case, and no inferences one way or the other should be drawn in that regard.

Accordingly, in each action, the order of the Appellate Division should be reversed, with costs, and the defendants’ motions for summary judgment denied.

Chief Judge Kaye and Judges Simons, Smith, Levine and Ciparick concur; Judge Titone taking no part.

In each action, order reversed, etc.


source: Caselaw Access Project

author: Simons, J.

license: Public Domain

text:
    [634 NE2d 168, 611 NYS2d 796]
    The People of the State of New York, Respondent, v Antonio Bora, Appellant.
    Argued March 22, 1994;
    decided May 3, 1994

      POINTS OF COUNSEL

      Lisa A. Ferrari, New York City, and Philip L. Weinstein for appellant.
    The hearing court improperly denied appellant’s motion to suppress the physical evidence because the police instruction to "stop” constituted a seizure that violated appellant’s rights under the New York State Constitution and the common law of this State and for which reasonable suspicion was lacking. (People v Dodt, 61 NY2d 408; People v Cox, 61 NY2d 1020; People v Stewart, 41 NY2d 65; People v Hollman, 79 NY2d 181; People v May, 81 NY2d 725; People v Dunn, 77 NY2d 19; People v Hicks, 68 NY2d 234; People v Harrison, 57 NY2d 470; People v Cantor, 36 NY2d 106; United States v Mendenhall, 446 US 544.)

      Robert M. Morgenthau, District Attorney of New York County, New York City (Howard L. Perzan and Mark Dwyer of counsel), for respondent.
    The officers’ approach and subsequent pursuit of defendant were warranted, measured responses to the information in the radio report, their observations of defendant, and defendant’s flight. (People v Harrison, 57 NY2d 470; People v McRay, 51 NY2d 594; People v Salaman, 71 NY2d 869; People v Martinez, 80 NY2d 444; People v Jones, 69 NY2d 853; People v De Bour, 40 NY2d 210; People v

      Carney, 58 NY2d 51; People v Benjamin, 51 NY2d 267; People v McLaurin, 56 AD2d 80, 43 NY2d 902; People v Cruz, 43 NY2d 786.)
   OPINION OF THE COURT

Simons, J.

The sole issue presented on this appeal is whether a direction by a uniformed police officer to "stop”, made to defendant as he began to walk away from the officer on a street corner, constituted a "seizure” as a matter of law.

I.

On June 1, 1989, Police Officer Stuller and his partner received a radio report that a black male, wearing red and blue clothing, was selling narcotics on the corner of 148th Street and St. Nicholas Avenue in Manhattan. The officers proceeded to the corner, arriving within one minute, where they observed approximately 10 people, including defendant, standing. Defendant, who is black, was the only person on the corner wearing red and blue clothing. When Officer Stuller got out of the patrol car, defendant was 15 to 20 feet away from the officers. He looked in their direction and, as Officer Stuller walked toward him, defendant began to move away. When Stuller directed defendant to "stop”, he ran. As he fled, he threw a brown paper bag to the ground. The officers pursued defendant and arrested him. The bag was recovered and found to contain 101 vials of crack cocaine.

Before trial, defendant moved to suppress the drugs. He maintained that the command to "stop” constituted a seizure, that the officers did not possess the requisite reasonable suspicion to effect a seizure and, therefore, the bag containing the vials of cocaine was the product of the unlawful police conduct and had to be suppressed. Supreme Court denied the motion and defendant thereafter pleaded guilty to the crime of criminal possession of a controlled substance in the fifth degree. The Appellate Division affirmed, holding that the police had a sufficient basis for making a common-law inquiry of defendant and that, by attempting to flee, defendant had provided the officers with reasonable suspicion to pursue him (191 AD2d 384, 385-386).

II.

On this appeal defendant does not question the officers’ right to make a common-law inquiry or his subsequent pursuit. Rather, he contends that he was unlawfully seized by the direction to stop at a time when the officer, as the legal test requires, had no reasonable basis to suspect that a crime had been, was being, or was about to be committed (see, Terry v Ohio, 392 US 1, 27; People v Martinez, 80 NY2d 444, 447; People v Leung, 68 NY2d 734, 736). Thus, the narrow issue presented is whether the officer’s conduct was a sufficient show of authority under the circumstances to escalate a lawful investigative inquiry into an unlawful seizure of defendant’s person.

Under the Fourth Amendment of the Federal Constitution, as recently interpreted, it is clear that defendant was not seized when the officers asked him to stop. The Supreme Court held in California v Hodari D. (499 US 621, 626) that a seizure requires either physical force or, if there is no physical force, a submission to the assertion of authority. Inasmuch as defendant Hodari D. fled in that case, he was not seized, for purposes of the Federal Constitution, until he was physically restrained by the officers and thus the drugs discarded by him during his flight were properly received in evidence at trial. Similarly, in the case before us, there was neither physical force nor a submission to authority and thus no seizure of defendant under Federal law because of the officer’s direction to stop. Accordingly, defendant rests his claim on the New York Constitution and our common-law rules regulating seizures and investigative inquiries (see, NY Const, art I, § 12; People v Hollman, 79 NY2d 181; People v De Bour, 40 NY2d 210).

While the search and seizure provision of the State Constitution is similar to the wording of the Fourth Amendment and supports a policy of uniformity between State and Federal courts, we have held that our State provision, for reasons peculiar to New York, is subject to its own interpretation (see, People v Keta, 79 NY2d 474, 496-497; People v Johnson, 66 NY2d 398, 406-407). Accordingly, when construing our State provision, we have not required that an individual be physically restrained or submit to a show of authority before finding a seizure in cases such as this. Under New York law, one may be seized if the police action results in a "significant interruption [of the] individual’s liberty of movement” (People v De Bour, 40 NY2d 210, .216, supra; People v Martinez, 80 NY2d 444, 447, supra; People v Townes, 41 NY2d 97). An interruption may result from the use of force or because the individual "submits to the authority of the badge” (People v Cantor, 36 NY2d 106, 111; see also, United States v Mendenhall, 446 US 544, 553-554). Defendant maintains that a direction to a citizen to stop, when made by a uniformed police officer, invariably involves a sufficient show of authority to constitute a seizure as a matter of law.

While a verbal command, standing alone, will not usually constitute a seizure, we have recognized that when coupled with other behavior, it may. Thus, in People v Townes (41 NY2d 97, supra), a plainclothes police officer emerged from an unmarked cár with his gun drawn, approached two men walking down a street and shouted "Freeze, police”. The People conceded, and this Court agreed, that the officer’s actions amounted to a seizure of the defendant. Similarly, in People v Boodle (47 NY2d 398, cert denied 444 US 969), we held that the defendant was seized, while sitting in the back of a moving patrol car, when a police officer commanded him to "Just keep your hands where I can see them” (see also, People v May, 81 NY2d 725, 727).

The facts here are uncomplicated. The police received a radio report of a man selling narcotics. Within a minute they arrived at the location indicated and observed that defendant was the only person, out of a group of 10, who matched the description. As one of the officers walked toward him, defendant, after looking in the officer’s direction, walked away from him. At this point, the officer directed him to "stop”. While a reasonable person might have been taken aback by a police officer’s direction to "stop”, the key question is whether defendant’s liberty of movement was interrupted.

There are no bright lines separating various types of police activity. Determining whether a seizure occurs during the course of a street encounter between the police and a private citizen involves an analysis of the "most subtle aspects of our constitutional guarantees” (Cantor, 36 NY2d 106, 112, supra; see generally, People v Hicks, 68 NY2d 234, 239, supra). The test is whether a reasonable person would have believed, under the circumstances, that the officer’s conduct was a significant limitation on his or her freedom (see, People v Hicks, 68 NY2d 234, 240, supra). Typically the inquiry involves a consideration of all the facts and a weighing of their individual significance: was the officer’s gun drawn, was the individual prevented from moving, how many verbal commands were given, what was the content and tone of the commands, how many officers were involved and where the encounter took place. The courts below found no seizure here and, based on a review of the record, we cannot say, as a matter of law, that their conclusions were erroneous. While the language used by police may, in some instances, be so forceful and intimidating that it constitutes the seizure of an individual, the evidence does not indicate it rose to that level here.

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

Chief Judge Kaye and Judges Titone, Bellacosa, Smith, Levine and Ciparick concur.

Order affirmed.


author: Bellacosa, J. Simons, J.

text:
    [634 NE2d 171, 611 NYS2d 799]
    In the Matter of Jean M. Lloyd, as Parent and Natural Guardian of David J. Lloyd, an Infant, Respondent, v Karen Grella et al., as Commissioners of Schools for the Rochester City School District Board of Education, Appellants.
    Argued March 17, 1994;
    decided May 3, 1994

      POINTS OF COUNSEL

      Donald T. Schmitt, Rochester, and Adam D. Kaufman for appellants.
    I. The holding of the courts below conflict with well-settled principles of law concerning the discretion traditionally accorded to school districts by the Legislature and the judiciary regarding control over access to students and buildings. (Matter of Ellis v Allen, 4 AD2d 343, 4 NY2d 693; Matter of Budney v Niagara Falls Bd. of Educ., 38 Misc 2d 825; Trietley v Board of Educ., 65 AD2d 1; Dahl v Secretary of U. S. Navy, 830 F Supp 1319; Meinhold v United States Dept. of Defense, 808 F Supp 1455; Pruitt v Cheney, 963 F2d 1160; Ware v Valley Stream High School Dist., 75 NY2d 114; Matter of Wagschal v Board of Examiners, 117 AD2d 470, 69 NY2d 672; Matter of Mitchell C. v Board of Educ., 67 AD2d 284.) II. The courts below in interpreting section 2-a of the New York State Education Law made a significant departure from the rules customarily employed by the judiciary in interpreting statutes. (Matter of Alonzo M. v New York City Dept. of Probation, 72 NY2d 662; Grayson v Town of Huntington, 144 Misc 2d 1064, 160 AD2d 835, 76 NY2d 714; Matter of State of New York [Abrams] v Ford Motor Co., 74 NY2d 495; Van Amerogen v Donnini, 156 AD2d 103; Matter of Cristo Bros., 97 AD2d 274, 64 NY2d 975; Matter of Love Canal, 92 AD2d 416; Pajak v Pajak, 56 NY2d 394; Patrolmen’s Benevolent Assn. v City of New York, 41 NY2d 205; National Superlease v Reliance Ins. Co., 126 Misc 2d 988, 123 AD2d 608, 69 NY2d 611; Sega v State of New York, 60 NY2d 183.) III. The courts below erred in holding that the remedy of mandamus is available to enjoin the discretionary action of respondents-appellants in adopting a recruitment policy. (Matter of Young v Town of Huntington, 121 AD2d 641; Matter of New York State Inspection, Sec. & Law Enforcement Empls. v Cuomo, 64 NY2d 233; Matter of Kennedy v Macaluso, 86 AD2d 775, 56 NY2d 630, 805; Matter of County of Fulton v State of New York, 76 NY2d 675; Matter of Walker v Board of Educ., 78 AD2d 982; Matter

      of Brown v New York State Dept. of Social Servs., 106 AD2d 740; Matter of Savastano v Prevost, 66 NY2d 47.)

      Regan & Regan, P. C., Rochester (John M. Regan, Jr., of counsel), for respondent.
    I. The appeal should be dismissed as moot as petitioner no longer has an interest in the outcome. (Matter of Lyon Co. v Morris, 261 NY 497; Matter of Hearst Corp. v Clyne, 50 NY2d 707; Matter of Gold-Greenberger v Human Resources Admin., 77 NY2d 973.) II. The Court below had authority in a proceeding under CPLR article 78 in the nature of mandamus to grant petitioner-appellee’s relief. (Matter of Kaye v Board of Educ., 97 AD2d 794; Matter of Panarella v Birnbaum, 60 Misc 2d 95, 37 AD2d 987, 32 NY2d 108; Matter of Walker v Board of Educ., 78 AD2d 982; Howard v Clark, 59 Misc 2d 327; Matter of Brown v New York State Dept. of Social Servs., 106 AD2d 740; Trietley v Board of Educ., 65 AD2d 1.) III. The courts below correctly interpreted section 2-a of the Education Law to hold unlawful appellant’s Resolution of December 5, 1991. (Matter of Anderson v Board of Educ., 46 AD2d 360; Matter of Wilson v Board of Educ., 39 AD2d 965.)

      Arthur Eisenberg, Ruth E. Harlow, New York City, and William B. Rubenstein, of the Pennsylvania and District of Columbia Bars, admitted pro hac vice, for American Civil Liberties Union and another, amici curiae.

    I. Under section 2-a of the New York Education Law, local school boards may specify conditions for on-campus recruitment as long as these conditions are the same for military and nonmilitary recruiters. (Patrolmen’s Benevolent Assn. v City of New York, 41 NY2d 205; Finger Lakes Racing Assn. v New York State Racing & Wagering Bd., 45 NY2d 471; Matter of Smathers, 309 NY 487; Matter of Albano v Kirby, 36 NY2d 526; New York State Bridge Auth. v Moore, 299 NY 410.) II. Because discrimination on the basis of sexual orientation, especially in public schools, represents a serious harm similar to other types of invidious discrimination, the Rochester Board’s anti-discrimination policy furthers an important government purpose that should not be lightly displaced. (Pruitt v Cheney, 963 F2d 1160; Cleburne v Cleburne Living Ctr., 473 US 432; Rowland v Mad Riv. Local School Dist., 470 US 1009; Watkins v United States Army, 875 F2d 699; Under 21 v City of New York, 108 AD2d 250, 65 NY2d 344.)

      John D. Feerick, New York City, Janet Gallagher, Arthur S. Leonard, Sara L. Mandelbaum and James M. Williams for The Association of the Bar of the City of New York, amicus curiae.

    I. The Board’s Resolution is consistent with section 2-a of the Education Law. (Matter of Lloyd v Grella, 190 AD2d 1026; Trietley v Board of Educ., 65 AD2d 1; Sega v State of New York, 60 NY2d 183; People ex rel. Makin v Wilkins, 22 AD2d 497; De Ville v Continental Assur. Co., 10 AD2d 386, 8 NY2d 1080.) II. The school board’s exclusion of discriminatory employers from school facilities is consistent with its equal protection obligations to students. (High Tech Gays v Defense Indus. Sec. Clearance Off., 895 F2d 563, 908 F2d 375; Ben-Shalom v Marsh, 881 F2d 454; Woodward v United States, 871 F2d 1068; Pruitt v Cheney, 963 F2d 1160; Meinhold v United States Dept. of Defense, 808 F Supp 1455; Bowen v Gilliard, 483 US 587; Rowland v Mad Riv. Local School Dist., 470 US 1009; Watkins v United States Army, 847 F2d 1329, 875 F2d 699; Bowers v Hardwick, 478 US 186; Norwood v Harrison, 413 US 455.)

      Curtis J. Berger, Carl C. Monk, New York City, and Victor L. Streih, of the District of Columbia Bar, admitted pro hac vice, for the Association of American Law Schools, amicus curiae.

    I. Maintenance of a nondiscriminatory learning environment is a cardinal principle of all educational institutions and of the Association of American Law Schools. (Brown v Board of Educ., 347 US 483.) II. Treating law school students differently on the basis of sexual orientation disrupts the learning environment and undermines the goals of legal education. III. Statutes should be construed to permit a constructive and supportive learning environment to exist and flourish in all educational institutions, including law schools. (Trietley v Board of Educ., 65 AD2d 1; Nomi v Regents for Univ. of Minn., 796 F Supp 412, 5 F3d 332; Matter of Doe v Rosa, 159 Misc 2d 694.) IV. This Court should substitute for the lower courts’ decisions a statutory interpretation that requires all prospective employers permitted on campus to agree to abide by a school’s policy of nondiscrimination. (Matter of Doe v Rosa, 159 Misc 2d 694.)

      Evan Wolfson, New York City, Robinson Silverman Pearce Aronsohn & Berman (Carey Wagner and Timothy W. Reinig of counsel) and Harry B. Bronson, Rochester, for Lambda Legal Defense & Education Fund, Inc., and another, amici curiae.

    The lower court erred in holding that Education Law § 2-o’s requirement that the military be granted access "on the same basis” as others, somehow constitutes a guarantee of special access. (Matter of Cristo Bros., 97 AD2d 274, 64 NY2d 975; Pajak v Pajak, 56 NY2d 394; Patrolmen’s Benevolent Assn. v City of New York, 41 NY2d 205; Matter of Howard v Wyman, 28 NY2d 434; Matter of Doe v Rosa, 159 Misc 2d 694.)

      Jay Worona, Albany, and Shari Greenleafiov the New York State School Boards Association, Inc., amicus curiae.

    I. The lower court incorrectly determined the Rochester City School District violated Education Law § 2-a. (Matter of State of New York [Abrams] v Ford Motor Co., 74 NY2d 495; Matter of Alonzo M. v New York City Dept. of Probation, 72 NY2d 662; Matter of Doe v Rosa, 159 Misc 2d 694; Bowen v Kendrick, 487 US 589; Nomi v Regents for Univ. of Minn., 796 F Supp 412, 5 F3d 332; Dahl v Secretary of U. S. Navy, 830 F Supp 1319; Meinhold v United States Dept. of Defense, 808 F Supp 1455.) II. Public school districts have traditionally been afforded and are entitled to a large measure of deference so as to permit local control over the operation of schools. (Milliken v Bradley, 418 US 717; Hazelwood School Dist. v Kuhlmeier, 484 US 260; Nomi v Regents for Univ. of Minn., 796 F Supp 412, 5 F3d 332.)

      William E. Fay, III, New York City, for Parents for the Restoration of Values in Education, amicus curiae.

    I. The Military Law and Education Law of the State of New York require an affirmance of the decision below. (Matter of Alfonso v Fernandez, 195 AD2d 46.) II. The sexual orientation criteria and the notice requirements about the military in the Resolution are contrary to parental rights and public policy. (Matter of Alfonso v Fernandez, 195 AD2d 46; People v Gonzales, 148 Misc 2d 973.)

      Deborah A. Batts, New York City, Mary C. Daly, James L. Kainen and Russell G. Pearce for The Society of American Law Teachers, amicus curiae.

    I. The lower courts’ interpretation of Education Law § 2-a impedes the educational mission of law schools subject to that provision. (Brown v Board of Educ., 347 US 483.) II. The lower courts’ decisions improperly and unnecessarily interfere with the reasonable exercise of discretion by educational institutions in pursuit of educational goals. (Trietley v Board of Educ., 65 AD2d 1; Matter of Susan M. v New York Law School, 76 NY2d 241; Nomi v Regents for Univ. of Minn., 796 F Supp 412, 5 F3d 332; United States v City of Philadelphia, 798 F2d 81.)
   OPINION OF THE COURT

Bellacosa, J.

The Rochester City School Board resolved that employers, including the military, who discriminate on the basis of sexual orientation or other reasons shall be barred from school site student recruitment. Education Law § 2-a grants military recruiters access to educational venues "on the same basis” as all other employment recruiters.

Petitioner Lloyd, on behalf of her son who has graduated from the Rochester schools, sued, urging that Education Law § 2-a invalidates the Rochester City School Board Resolution. The Supreme Court, whose judgment and opinion were adopted by the Appellate Division, agreed and granted the petition, in effect allowing unqualified military access. This Court granted leave to appeal and now reverses and dismisses the petition. We hold that Education Law § 2-a does not override the local Resolution.

L

In August 1984, Education Law § 2-a was enacted to ensure equal access for the military to educational institutions so that students would be able to acquire direct information about military employment opportunities (L 1984, ch 786). The law was enacted to overcome the particular discriminatory exclusion of the military from schools for recruitment purposes. Education Law § 2-a states in part:

"Notwithstanding any other provision of law to the contrary, if a trustee, president, principal, * * * or a board of education * * * permits the release of directory information relating to pupils or permits access to school buildings, school grounds or other school property to persons who inform pupils of educational, occupational or career opportunities, such trustee, president, principal, officer, board or administrator shall provide access to directory information relating to pupils and access to such school property on the same basis for official representatives of the state militia and the armed forces of the United States for the purpose of informing pupils of educational, occupational or career opportunities within the state militia or armed forces of the United States” (emphasis added).

In December 1991, the Rochester City School District Board of Education adopted a Resolution denoted as Policy 91-92:519 (6). Undeniably, the Policy is directed largely at the military’s open, long-standing and uncontroverted discriminatory policies. Its interdiction of the military’s recruitment opportunities at school sites includes in relevant parts:

”2. No organization shall be permitted in any City School District building for the purpose of recruiting City School District students if such organization has a stated policy which discriminates against any person on the basis of race, color, religion, handicap, sex, creed, political beliefs, age, economic status, or sexual orientation, until such time as these discriminatory policies are discontinued” (Resolution: Policy 91-92:519 [6] []f 2]).
"8. All secondary schools have the responsibility of notifying students annually of the Armed Forces policy of discriminating against persons on the basis of sexual orientation, as stated in Department of Defense Directive 1332.14, or as subsequently amended or modified, which provides, in pertinent part, that: 'Homosexuality is incompatible with military service.’ ” (Resolution: Policy 91-92:519 [6] [If 8].)
"9. This policy does not prohibit the dissemination of information to students by school counselors about the Armed Forces and how to contact the Armed Forces about career opportunities.
"The notice requirement of paragraph '8’ shall be provided to students through inclusion in individual building handbooks and through written notification distributed to students by building school counselors, simultaneous with the provision of information about the Armed Forces” (Resolution: Policy 91-92:519 [6] [¶] 9]).

The Policy gives direct emphasis to the salient portions of the Department of Defense Directive 1332.14 (32 CFR part 41, Appendix A, part 1 [H]), which include the assertion that "[h]omosexuality is incompatible with military service” (Resolution, op. cit., []f 8]). The Rochester Resolution does, also, generally bar any organization that has a stated policy that discriminates against protected classifications.

Parent and natural guardian Lloyd, on her son’s behalf, seeks a judgment compelling the officials of the Rochester school system to allow mandated duties and admit military employment recruiters to their school sites. Supreme Court granted the petition, holding in part:

"Respondents’ belief that they possess discretion to impose preconditions or exclusionary criteria for access to school property by the military is without legal justification. Education Law § 2-a does not permit school boards such far-reaching clout or authority, which was clearly not contemplated or intended by the original drafters of the law. * * * Certainly, the establishment of restrictions and criteria of the magnitude of those imposed by the Board in this instance, along with the chastising of the military’s discriminatory practices, does not equate with the setting of permissible educational policy by local boards of education.
"Upon the foregoing, this court concludes and determines that the Board’s action in approving the disputed resolution on December 5, 1991, and specifically paragraph No. 2 therein, as it directly affects and impacts the military, was preempted by, and in violation of Education Law § 2-a. In this respect, therefore, the legal relief requested by the petitioner is granted. The Board of Education must perform the duties imposed upon it by law and provide the military the same access to school property as other recruiters are afforded for purposes of informing students of 'educational, occupational or career opportunities’ (Education Law § 2-a), regardless of the military’s policy concerning homosexuals” (151 Misc 2d 412, 418-419 [emphasis in original]).

The Appellate Division affirmed "for reasons stated in decision at Supreme Court” (190 AD2d 1026).

The issue is whether Education Law § 2-a mandates unqualified military access, thus negating the Rochester Resolution. The Court is unanimous that the Resolution would have to yield should it conflict with higher organic law, the State statute (see, Board of Educ. v Licata, 42 NY2d 815). We hold, however, that the statute does not have that effect. Rather, it specially protects military recruiters by granting them equal access. It does not correspondingly divest local school boards of their traditional discretionary powers to adopt protocols barring stated discriminatory policies and practices such as are at issue in this case. The use of the phrase "on the same basis” in Education Law § 2-a is synonymous with "equal access”, not unqualified access. Thus, mandamus does not lie to void the Resolution-Policy, because Education Law § 2-a does not dictate the unequivocal and exclusive preeminence that the prior courts and the dissent would accord to it.

IL

Schools are allowed to establish policies applicable to all organizations desiring access to school facilities on a uniform basis. Education Law § 2-a was enacted to protect equal access by military recruiters, not give them unqualified or preferential access (compare, Matter of Doe v Rosa, 159 Misc 2d 694; see also, Gay & Lesbian Law Students Assn. at Univ. of Conn, v Board of Trustees, Univ. of Conn., 1992 WL 310610 [Conn Super Ct, Oct. 14, 1992]). Rochester Policy 91-92:519 (6) at issue here bars access to all recruiters when they fail to meet specified criteria tailored for the Rochester school system. The fact that it significantly targets a concededly discriminatory entity does not divest it of its uniform applicability.

We must also deal, however, with the question whether a policy that includes a special impact on military recruiters clashes with the intent of the Legislature promulgated in Education Law § 2-a. We think there is no such direct conflict and conclude that the school board here exercised a discretionary power to exclude all recruiters engaging in promulgated discrimination, as the still-evolving military policy does.

We acknowledge that our holding eliminates Education Law § 2-a as an obstacle to the challenged Policy which bars discriminating military recruiters and others from schools in Rochester. On the other hand, the holding of Supreme Court, as affirmed by the Appellate Division, if allowed to stand, would grant the military unenacted and unintended universal access by an overarching interpretation of Education Law § 2-a. That construction, which would give undue preference to military recruitment, finds no support in an equal access statute, designed as "a narrow and legitimate jurisprudential” shield, not as an unlimited sword of entry (Braschi v Stahl Assocs. Co., 74 NY2d 201, 214, 215 [Bellacosa, J., concurring]).

Some bromides of statutory construction are also helpful in analyzing this case. When the language of a statute is clear, effect should be given to the plain meaning of the words used (see, Matter of State of New York [Abrams] v Ford Motor Co., 74 NY2d 495; Matter of Alonzo M. v New York City Dept. of Probation, 72 NY2d 662, 665). In such instances, the court should look no further than unambiguous words and need not delve into legislative history (Matter of State of New York [Abrams] v Ford Motor Co., 74 NY2d 495, supra; Sega v State of New York, 60 NY2d 183; Van Amerogen v Donnini, 156 AD2d 103; Matter of Cristo Bros., 97 AD2d 274, affd 64 NY2d 975; McKinney’s Cons Laws of NY, Book 1, Statutes §§ 76, 92). "[0]n the same basis” is a plain meaning phrase which, on its face, supports the conclusion we reach.

Even if we agree with Supreme Court’s premise that the phrase "on the same basis” is susceptible to "varying plausible interpretations,” we would disagree with its reasoning and conclusion that the "legislative history * * * evinces an obvious intent to guarantee or secure access by military recruiters to our high schools” on the preferential basis found here (151 Misc 2d, at 416, 418, affd 190 AD2d 1026, supra). That would fly in the face of the "on the same basis” qualification.

In any event, we conclude that the legislative history supports access only upon similar terms and conditions as are allowed to other prospective employers. It does not support something denominated broadly and unqualifiedly as "guaranteed access.” The New York State Assembly Memorandum in Support of Legislation (Bill Jacket, L 1984, ch 786) states that the purpose or general idea of the bill is:

"[T]o allow military recruiters equal access to educational institutions and directory information where access and such information is supplied to other recruiters offering educational and/or occupational opportunities.”

Senator Tully, the bill’s sponsor, argued that "this bill merely allows military recruiters equal access to educational institutions and directory information where that access is afforded to other recruiters in the private sector” (NY State Senate Debate, 1984, at 3109). Assembly Member Flanagan added:

"[W]e are not guaranteeing by this bill, freedom of speech or recruitment for all other recruiters. For that matter, we are not guaranteeing freedom of recruitment for one single recruiter. What this bill is designed to do is to say if you are a recruiter for the United States Military Forces, that you are a first-class citizen, and that a campus cannot deny you access on the basis, solely, of the fact that you are a military recruiter. The people that wanted this bill came to see me in my office, and I said, 'You know, I don’t want to get involved with telling the schools what to do’ ” (New York State Assembly Debate, June 12, 1984, at 181).

Plainly, when school board policymakers exclude recruiters "on the same basis,” like those who statedly discriminate against homosexuals, the statute’s special admittance pass for the military is not operative. It does not override the evenhanded exclusion of all employers who proclaim their discriminatory policies.

We are also satisfied that the holdings of the Appellate Division and the Supreme Court undermine well-settled principles protecting the discretion traditionally reposed in local school districts regarding access to students on school property. The long-standing deference afforded local school boards to exercise ultimate authority for access to students, school buildings and school property generally is well founded (see, Education Law § 414 [1] [Board of Education may adopt "reasonable regulations” for the use of school facilities]; Trietley v Board of Educ., 65 AD2d 1, 6, quoting Stein v Oshinsky, 348 F2d 999, 1002, cert denied 382 US 957 ["(determination of what is to go on in public schools is primarily for the school authorities”]; Matter of Budney v Niagara Falls Bd. of Educ., 38 Misc 2d 825; Matter of Ellis v Allen, 4 AD2d 343, appeal dismissed 4 NY2d 693; but see, Board of Educ. v Licata, 42 NY2d 815, supra).

This feature of our analysis adds persuasive support for our holding. The military may recruit on Rochester school grounds "on the same basis” as any other employer when it conforms to the nondiscriminatory practices and policies applicable to all recruiters. The statute and the Policy are not in conflict in that regard and can be read and interpreted as compatible when properly so read and interpreted. In effect, we confidently conclude that Education Law § 2-a does not tolerate the contradiction of encouraging the efforts of schools in inculcating an abhorrence of discrimination, while compelling the admittance of openly discriminating potential employers.

Mandamus is not available here because the Policy enacted by the local school board was a permissible discretionary action not in contradiction of or forbidden by Education Law § 2-a (Education Law § 414 [1] [Board of Education may adopt "reasonable regulations” for the use of school facilities]; § 2-a; see also, Matter of County of Fulton v State of New York, 76 NY2d 675, 678; Matter of Hamptons Hosp. & Med. Ctr. v Moore, 52 NY2d 88, 96).

Accordingly, the order of the Appellate Division should be reversed and the petition dismissed, with costs.

Simons, J.

(dissenting). The State Legislature has declared that military recruiters must be allowed "access to * * * school property on the same basis” as other occupational recruiters (Education Law § 2-a). The Rochester School Board allows recruiters generally on school property but adopted a policy designed to deny access to those the Legislature has decreed are entitled to access: the military. The majority recognizes the obvious fact, found by the courts below, that the Board’s action was a deliberate effort to bar military recruiters notwithstanding the statute but finds no fault with it.

Thus, the issue before the Court is whether the Board may do that which the State statute specifically bars it from doing —discriminate against the military in its recruiting policy. Clearly, it may not. The majority avoids that obvious result by miscasting the Board’s policy as a facially neutral measure aimed at all discriminating employers. That rationale fails for three reasons. First, by its very terms, the policy does not bar "all organizations that discriminate”; instead, it bars only those organizations that have a stated policy of discrimination. The difference is significant. Because some types of discrimination mentioned in the policy are illegal under State law, no employer seeking to recruit in the Rochester schools will ever have a stated policy of discrimination, except the military. Second, despite the majority’s assurances to the contrary, the Board’s policy simply is not facially neutral. While paragraph 2 is stated in neutral terms applying to all recruiters (Resolution: Policy 91-92: 519 [6] [ff 2]), the other relevant parts of the policy deal exclusively — and expressly — with only one employer, the military. Paragraph 8 and paragraph 9, for instance, set forth special recruiting rules and state that they apply solely to the military (see, majority opn, at 543). Third and most important, even if this policy were facially neutral, the Board’s compliance with Education Law § 2-a should be judged by the substance and effect of the policy not by its mere form. In a variety of circumstances, our Court and the Supreme Court of the United States have declared that facially neutral provisions will be invalidated when either their motive or their effect is illicit discrimination (see, e.g., Gomillion v Lightfoot, 364 US 339, 347; Matter of Board of Educ. v New York State Div. of Human Rights, 56 NY2d 257, 261-262; Matter of 303 W. 42nd St. Corp. v Klein, 46 NY2d 686, 696). Here, both the Board’s motive and the effect of its resolution were discriminatory. The resolution mentions only one employer — the military — by name, and at oral argument, the Board’s attorney was unable to name any other recruiter that would be affected by it. As a matter of fact, only one employer will ever fall within the policy’s prohibition against a "stated policy” of discrimination. In short, the Board decided to discriminate against the military because it disagreed with a military policy enacted by Congress. Such discrimination against the military is precisely what Education Law § 2-a prohibits.

It will not help to cast the decision as a discretionary one, as the majority has done. The Board has no discretion to do that which the statute prohibits. Nor is the case stronger because the resolution is viewed as a weapon against the military’s discriminatory recruiting policies. Those policies were surely known to the legislators at the time the statute was proposed and they were not then, nor are they now, contrary to State or Federal law as construed by our Court or the Supreme Court.

Nor can this decision be supported by the statutory language permitting the even-handed regulation of recruiters. The statute provides for access to school property on the same basis, i.e., equivalent time and under equivalent terms. It does not permit local autonomy on the desirability or undesirability of individual employers’ lawful employment policies, marketing practices or product line.

In sum, the local Board has, for its own reasons, done that which the Legislature has said it may not do and the resolution is therefore void.

Chief Judge Kaye and Judges Titone, Smith, Levine and Ciparick concur with Judge Bellacosa; Judge Simons dissents and votes to affirm in a separate opinion.

Order reversed, etc.


author: Smith, J.

text:
    [634 NE2d 177, 611 NYS2d 805]
    In the Matter of New York Yankees Partnership, Respondent, v Carol O’Cleireacain, as Commissioner of Finance of the City of New York, Appellant.
    Argued March 22, 1994;
    decided May 5, 1994

      POINTS OF COUNSEL

      Paul A. Crotty, Corporation Counsel of New York City (George P. Lynch, Edith I. Spivack, Edward F. X. Hart and Frances J. Henn of counsel), for appellant.
    I. Petitioner identified the payments and deducted them as such for Federal tax purposes; petitioner now repudiates that identification to avoid local tax. (Butterfield v Rudde, 58 NY 489; Golden v Koch, 49 NY2d 690; Levine v Bornstein, 4 NY2d 241; Matter of General Reins. Corp. v Pink, 269 NY 347; Matter of Petrella v Siegel, 73 NY2d 846; Matter of Smathers, 309 NY 487; Stoike v First Natl. Bank, 290 NY 195, 864, 320 US 762; Delaware County Elec. Coop. v Power Auth., 96 AD2d 154, 62 NY2d 877; Matter of Aronsky v Board of Educ., 75 NY2d 997; Town of Massena v Niagara Mohawk Power Corp., 45 NY2d 482.) II. Petitioner has not established that the payments were in fact for anything other than services or the use of capital. III. The City’s determination is both rational and reasonable; if it is not confirmed, petitioner will obtain an illegal double deduction. (Matter of Grace v New York State Tax Commn., 37 NY2d 193; Matter of Mobil Oil Corp. v Finance Adm’r, 58 NY2d 95; Matter of Colt Indus, v New York City Dept. of Fin., 66 NY2d 466; Matter of Royal Indem. Co. v Tax Appeals Tribunal, 75 NY2d 75; Cagle v Commissioner of Internal Revenue, 539 F2d 409; Red Hook Cold Stor. Co. v Department of Labor, 295 NY 1; Matter of Howard v Wyman, 28 NY2d 434; Matter of Trump-Equit. Fifth Ave. Co. v Gliedman, 57 NY2d 588; Matter of Lower Manhattan Loft Tenants v New York City Loft Bd., 104 AD2d 223, 66 NY2d 298; Matter of Gottlieb v Mirabal, 123 AD2d 574.)

      Shea & Gould, New York City (Adam B. Gilbert and Fran M. Jacobs of counsel), for respondent.
    I. Under the "plain meaning” doctrine, since section 11-507 (3) of the Administrative Code of the City of New York is unambiguous, all deductions except those actually for services or use of capital should be allowed. (People v Cruz, 48 NY2d 419, 446 US 901; Caminetti v United States, 242 US 470; People v Walker, 81 NY2d 661; Matter of State of New York [Abrams] v Ford Motor Co., 74 NY2d 495; Matter of Alonzo M. v New York City Dept. of Probation, 72 NY2d 662; Matter of Washington Post Co. v New York State Ins. Dept., 61 NY2d 557; Eaton v New York City Conciliation & Appeals Bd., 56 NY2d 340; Zaldin v Concord Hotel, 48 NY2d 107; Matter of Richmond Constructors v Tishelman, 61 NY2d 1.) II. There is no legal basis for the City’s contention that payments for unrealized receivables are necessarily payments for services or use of capital. (Fairbanks v United States, 306 US 436; Commissioner of Internal Revenue v Jackson Inv. Co., 346 F2d 187; McClain v Commissioner of Internal Revenue, 311 US 527; Perrin v United States, 444 US 37; Storer Cable Communications v City of Montgomery, 806 F Supp 1518.) III. The City itself made a factual finding that the payments at issue here were not for services or use of capital, and that finding may not now be disturbed. (Matter of Seagrott Floral Co. [Riccardi] 78 NY2d 439; Alpert v 28 Williams St. Corp., 63 NY2d 557; Hunt v Bankers & Shippers Ins. Co., 50 NY2d 938; Matter of Motor Vehicle Acc. Indem. Corp. v Mahoney, 46 Misc 2d 3, 25 AD2d 821.) IV. None of the City’s remaining arguments warrants reversal of the IAS Court’s decision. (Matter of Teachers Ins. & Annuity Assn. v City of New York, 82 NY2d 35; New York State Dept. of Social Servs. v Dublino, 413 US 405; McLean v Mathews, 458 F Supp 285; Matter of Cissley v New York State Tax Commn., 98 AD2d 899; Pajak v Pajak, 56 NY2d 394.)
   OPINION OF THE COURT

Smith, J.

The issue in this case is whether payments made in liquidation of partnership interests and representing the outgoing partners’ share in the amortization of player contracts are payments "for services or for use of capital” within the meaning of section 11-507 of the Administrative Code of the City of New York and, thus, not deductible from the partnership’s unincorporated business gross income.

Petitioner, an Ohio limited partnership with its principal place of business in New York, owns and operates the New York Yankees major league baseball team. Five limited partners withdrew from the partnership in 1978, 1979 and 1981 and, pursuant to the partnership agreement which allowed retiring partners to receive payments equalling the fair market value of the partnership interests, petitioner paid them in liquidation of their interests. For Federal income tax purposes, petitioner treated the liquidation payments in part as the retiring partners’ distributive share of partnership income, and in part as the retiring partners’ share of the partnership’s unrealized receivables, without regard to the income of the partnership. The latter portion constituted the retiring partners’ shares in player contracts that had been amortized by it in the current year and in prior years. Pursuant to section 736 (a) (2) and section 707 (c) of the Internal Revenue Code, petitioner claimed a deduction for the guaranteed payments for unrealized receivables for the 1978, 1979 and 1981 tax years on its Federal partnership tax return. Petitioner’s identical claimed deduction for purposes of the City Unincorporated Business Income Tax gave rise to this dispute.

After an audit for the 1978, 1979 and 1981 tax years, the City’s Department of Finance disallowed petitioner’s claimed deductions and assessed a deficiency of $410,142.99. Thereafter, petitioner filed a deficiency petition and, at the ensuing administrative hearing, the Department of Finance submitted a revised deficiency statement.

The sole issue raised at the hearing was the deductibility, for New York City Unincorporated Business Income Tax purposes, of the portion of the payments attributable to unrealized receivables. Petitioner asserted that the subject payments were deductible from its unincorporated business gross income under section 11-507 of the Administrative Code, and that section 11-507 (3), which expressly disallows deductions for amounts paid to a partner "for services or for use of capital,” is not a bar since the subject payments were not made for such purpose. The Department of Finance urged that the payments were not deductible under section 11-507 of the City’s tax code because section 707 (c) of the Internal Revenue Code considers "guaranteed payments” to be payments "for services or the use of capital,” and section 11-501 of the City’s tax code equates the meanings of terms in the Unincorporated Business Income Tax provisions of the Administrative Code with terms used in a comparable context in the Internal Revenue Code. Thus, the Department asserted, the claimed deductions were for payments for services or for the use of capital, which are not deductible for Unincorporated Business Income Tax purposes.

Respondent Commissioner of Finance denied the deficiency petition, finding that although "[n]o portion of the payments were specifically for services rendered to petitioner or interest for use of the liquidating partners’ capital,” the Federal income tax characterization of the payments attributable to unrealized receivables as guaranteed payments for services or for use of capital must have the same meaning for Unincorporated Business Income Tax purposes unless another meaning is clearly intended, and petitioner did not meet its burden of proving that the payments were not for such purpose. The Commissioner concluded that the payments were improperly deducted from petitioner’s unincorporated gross income, and assessed the deficiency at $266,414.85.

Petitioner then commenced this CPLR article 78 proceeding, seeking to annul the Commissioner’s determination. Supreme Court (1) granted the application to annul the determination, (2) concluded that since the Commissioner found that the subject payments were not for services or for use of capital, section 11-507 (3) was improperly applied to deny the deduction for said payments, and (3) remanded the matter to the Department of Finance to recalculate, consistent with its decision, the amount owed or to be refunded. The Appellate Division affirmed, reasoning that petitioner had correctly deducted the subject payments, which were not for services or for use of capital, from its unincorporated gross income (194 AD2d 314). This Court granted leave to appeal and we now affirm the order of the Appellate Division.

It is settled that if the language of a statute "is clear and unambiguous, the court should construe it so as to give effect to the plain meaning of the words used” (Patrolmen’s Benevolent Assn. v City of New York, 41 NY2d 205, 208). Section 11-507 (3) of the Administrative Code plainly disallows deductions "for amounts paid * * * for services or for use of capital.” As stated, the payments at issue here constituted unrealized receivables of the partnership, made without regard to partnership income, that were attributable to the retiring partners’ shares in amortized player contracts. We conclude that petitioner correctly claimed a deduction for such payments from its unincorporated business gross income.

Respondent’s assertion that the interplay between the Federal and local tax statutes necessarily leads to the conclusion that the subject payments are for services or the use of capital and, thus, are not deductible for Unincorporated Business Income Tax purposes is untenable. Respondent argues, in essence, that since (1) section 736 (a) (2) of the Internal Revenue Code characterizes payments made in liquidation of a partner’s interest in the partnership as a guaranteed payment described in section 707 (c), (2) section 707 (c) considers guaranteed payments as payments to a partner for services or the use of capital, (3) section 11-501 of the Administrative Code mandates the use of Federal tax law meanings for terms employed in its Unincorporated Business Income Tax provisions, and (4) section 11-507 (3) prohibits the deduction of payments to a partner for services or for use of capital, it necessarily follows that petitioner’s claimed deduction for the subject payments to the retiring partners should not be allowed.

Nothing in the statutory provisions relied on by respondent can be construed to restrict the subject payments to payments for services or the use of capital for City unincorporated business tax purposes. That Internal Revenue Code § 707 (c) gives guaranteed payments the same tax treatment as payments for services or the use of capital does not mean that the guaranteed payments attributable to amortized player contracts at issue here are in fact payments for services or the use of capital within the meaning of the Unincorporated Business Income Tax provisions of the Administrative Code. Indeed, section 707 (c) does not purport to define guaranteed payments as payments for services or the use of capital. We agree with petitioner that the Federal provisions, rather than being definitional, are intended only to implement the "recapture rule” and prevent taxpayers from benefiting from differences in the tax rates between ordinary income and capital gains when the actual depreciation of an asset is less than the amount amortized.

We have examined respondent’s remaining contentions and conclude that they are without merit.

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

Judges Simons, Titone, Bellacosa and Ciparick concur; Chief Judge Kaye and Judge Levine taking no part.

Order affirmed, with costs.

      . Internal Revenue Code (26 USC) § 736 (a) (2) provides that payments made in liquidation of the interest of a retiring partner shall be considered "as a guaranteed payment described in section 707 (c) if the amount thereof is determined without regard to the income of the partnership.”

      . Section 707 (c) of the Internal Revenue Code states, "To the extent determined without regard to the income of the partnership, payments to a partner for services or the use of capital shall be considered as made to one who is not a member of the partnership, but only for the purposes of section 61 (a) (relating to gross income) and, subject to section 263, for purposes of section 162 (a) (relating to trade or business expenses).”

      . Pursuant to section 11-507 of the Administrative Code, unincorporated businesses may deduct items of loss directly connected with or incurred in the conduct of the business but may not deduct amounts paid to a partner "for services or for use of capital.” (§ 11-507 [3].)

      . Administrative Code § 11-501 (a) provides, in part, "Unless a different meaning is clearly required, any term used in this chapter shall have the same meaning as when used in a comparable context in [the Internal Revenue Code].”


author: Chief Judge Kaye.

text:
    [634 NE2d 179, 611 NYS2d 807]
    The People of the State of New York, Respondent, v Duval Irizarry, Appellant.
    Argued March 16, 1994;
    decided May 3, 1994

      POINTS OF COUNSEL

      Steven M. Statsinger, New York City, and Philip L. Weinstein for appellant.
    Appellant was denied due process when the Trial Judge, over objection, made public the guilty verdict reached by his codefendant’s jury, then released that jury with instructions that it could discuss the case, while appellant’s jury was still deliberating. (People v Ricardo B., 73 NY2d 228; People v Mahboubian, 74 NY2d 174; Bruton v United States, 391 US 123; United States v Riman, 558 F2d 1271, cert denied sub nom. Barber v United States, 434 US 984; United States v Sidman, 470 F2d 1158, 409 US 1127; People v O’Rama, 78 NY2d 270; People v DeRosario, 81 NY2d 801; People v Santana, 163 AD2d 495, 78 NY2d 1027; People v Coons, 75 NY2d 796; People v Torres, 72 NY2d 1007.)

      Charles J. Hynes, District Attorney of Kings County, Brooklyn (Annette G. Hasapidis-Marshall and Roseann B. MacKechnie of counsel), for respondent.
    Defendant suffered no due process violation when, during the joint trial in which he and his codefendant, Alberto Rosario, had consented to the use of dual juries, the trial court recorded the verdict of codefendant Rosario’s jury while defendant’s jury continued its deliberations. (People v Ricardo B., 73 NY2d 228; Beam v Paskett, 966 F2d 1563; United States v Gonzalez, 610 F Supp 568, affd sub nom. United States v Lebron-Gonzalez, 816 F2d 823, 484 US 843; Smith v DeRobertis, 758 F2d 1151, 474 US 838; United States v Lewis, 716 F2d 16, cert denied sub nom. Motlagh v United States, 464 US 996; United States v Hayes, 676 F2d 1359, 459 US 1040; United States v Sidman, 470 F2d 1158; United States v Rowan, 518 F2d 685, cert denied sub nom. Jackson v United States, 423 US 949; Byrne v Matczak, 254 F2d 525, 358 US 816.)
   OPINION OF THE COURT

Chief Judge Kaye.

Defendant-appellant and his codefendant Alberto Rosario consented to trial by dual juries, at which the trial court followed virtually all of the procedures described, and cautiously approved, in People v Ricardo B. (73 NY2d 228)— except sealing of the first jury’s verdict until the second verdict was returned. We reject defendant’s contention that this departure from Ricardo B. requires us to reverse defendant’s conviction.

The murder charges against defendant stemmed from the robbery of Blue Star Paper Products in Brooklyn, planned by defendant, codefendant Rosario, David Gomez and Jose Nazario, who was the People’s chief witness at trial, in retaliation for Nazario’s discharge from Blue Star after pulling a knife on a co-worker. In the course of the robbery, one of the men shot and killed Sheldon Wrubel, the store manager.

Defendant and Rosario consented to a single trial before two juries. The court fashioned a number of procedural safeguards to ensure that the two juries were segregated from each other throughout the trial. A single court officer was assigned to each jury, and remained with the jury whenever counsel and the Trial Judge were absent from the courtroom. The officers were instructed not to answer any questions, no matter how innocuous, from one jury concerning the members of the other jury.

The courtroom itself was selected in consultation with all counsel, and the parties agreed on how documents would be handled to avoid inadvertent exposure to the wrong jury. The court instructed the jury as to "the absolute prohibition” against one jury gaining knowledge of another jury’s activities, and to avoid any contact with each other until the verdicts were reached, a warning repeated more than 20 times during the course of the trial. The juries heard separate opening and closing statements, but heard together all witnesses except an investigating detective and the portion of Nazario’s testimony that related only to Rosario. They were instructed that proceedings conducted in their absence were of no concern to them. The juries were also instructed separately as to the particular charges and defenses for each defendant.

Rosario’s jury announced that it had reached a verdict after just 65 minutes of deliberations. Defendant asked that the Rosario verdict be "sealed” until his jury completed its deliberations, to avoid any risk that they might learn of the Rosario verdict. The court refused, reasoning that such a procedure would require the Rosario jury to remain in the courthouse until defendant’s jury reached a verdict, an imposition it believed to be unreasonable. Concluding that any risk could be adequately alleviated through careful supervision of defendant’s jury by court personnel, it took the Rosario jury’s verdict convicting him on all counts.

While the jurors were again cautioned not to speak to defendant’s jury, they were otherwise released and told they could speak about the case. The court officers were admonished not to reveal the fact of a verdict in the Rosario action to defendant’s jury. At noon the following day, defendant’s jury returned a verdict convicting him of felony murder, all four counts of robbery in the first degree, and manslaughter in the second degree. Defendant at no time alleged that the jury considering his case had been influenced improperly by the Rosario jury.

Failure to Seal the First Verdict

In People v Ricardo B. (73 NY2d 228, supra), we held that use of the dual jury was not inherently prejudicial, and endorsed its use, with reservations. We cautioned that the procedure should be used "sparingly” and that, when it is, "thorough precautions” be taken to protect the defendant’s due process rights (id., at 235). While taking note of the procedures employed by the trial court in Ricardo B., and finding them sufficient to protect the defendant’s due process rights, we did not indicate whether less stringent safeguards would render the procedure "inherently prejudicial.” We now answer that question in the negative.

Trial by dual juries is, at root, a modified form of severance, and we have previously held that their use is "to be evaluated under standards for reviewing severance motions generally” (Ricardo B., 73 NY2d, at 233), which require a showing of prejudice to entitle a defendant to relief (People v Mahboubian, 74 NY2d 174, 183). Recognizing that no prejudice was alleged or established below, defendant urges us to hold that the safeguards described in Ricardo B. constitute a "mode of proceedings prescribed by law” (People v Mehmedi, 69 NY2d 759). The suggested approach would require us to construe Ricardo B. as articulating the minimum constitutional standards for a dual-jury trial, such that any departure deprives a defendant of a fair trial and requires reversal without regard to actual prejudice (People v Crimmins, 36 NY2d 230, 238).

Defendant’s position is incompatible with our prior considerations of the particular error urged here: a postverdict allegation of improper influence on juror deliberations. Such a claim is generally asserted through a motion to set aside the verdict (CPL 330.30 [2]), and a defendant is entitled to a hearing on the issue upon assertion of facts indicating misconduct (People v Durling, 303 NY 382).

Absent a showing of prejudice to a substantial right, however, proof of juror misconduct does not entitle a defendant to a new trial (People v Ciaccio, 47 NY2d 431). As we reiterated in People v Clark (81 NY2d 913, 914), ” ’not every misstep by a juror rises to the inherently prejudicial level at which reversal is required automatically’ * * *. Each case must be examined on its unique facts to determine the nature of the misconduct and the likelihood that prejudice was engendered” (citing People v Brown, 48 NY2d 388, 394). In Clark, therefore, we concluded that absent a specific showing of improper influence, a jury verdict could not be impeached.

Where dual juries are employed, the same standards control. Alleged errors during the course of a dual-jury trial need not be scrutinized pursuant to a higher standard than would be applicable in a single-jury trial. Reversal is not required simply because the court failed to implement the most restrictive procedures applicable to dual juries. Although trial courts retain discretion to adopt more restrictive procedures, the measures employed in Ricardo B. remain guidelines rather than minimum constitutional requirements.

The particular error alleged in defendant’s case would not require reversal were this a single-jury case. Where complete severance has been granted, one codefendant generally is convicted prior to the other. That a jury may be aware another person has been convicted of participating in the alleged crime is not deemed inherently prejudicial in that context. Just as sealing of a verdict or a "gag order” is not constitutionally required when severed codefendants are successively tried, such protections are not invariably necessary to preserve the integrity of a dual-jury trial. A trial court may want to impose more restrictive procedures when circumstances, such as extensive publicity, suggest that a failure to seal the first verdict might lead to prejudice, and reversible error. Where the unwieldiness of the procedure (see, e.g., Hedlund v Sheldon, 173 Ariz 143, 840 P2d 1008) would outweigh its prophylactic effect, however, a trial court may properly decline to follow such procedures.

While defendant here requested that the court seal the first jury’s verdict, he never contended that its failure to do so resulted in any prejudice to him. His present assertions of prejudice are merely speculative. Defendant does not assert that his jury was aware of the fact of the Rosario verdict, let alone that it knew Rosario had been convicted.

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

Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur.

Order affirmed.

      . Both defendants were charged with felony murder and four counts of robbery in the first degree. Defendant was also charged with intentional murder, and the court submitted second degree manslaughter as a lesser included offense of that count. Defendant’s defense was mistaken identity; counsel had argued in summation that the statement attributed to defendant was a fabrication, as was Nazario’s testimony. Rosario’s defense was duress.

        . Although he requested that the first verdict be sealed, defendant did not move to set aside the verdict on the grounds that the failure to seal had in some way affected the jury deliberations (cf, CPL 330.30 [2]).