author: Meyer, J.

text:
    The People of the State of New York, Respondent, v Erick Jackson, Also Known as Eric Knight, Appellant.
    Argued April 30, 1985;
    decided June 11, 1985

      POINTS OF COUNSEL

      William E. Hellerstein for appellant.
    I. Introduction into evidence of the admissions obtained from appellant by Harmon and Gary violated appellant’s rights under the 4th and 14th Amendments and the NY Constitution, article I, § 12 because (a) they were the product of a seizure of his person without probable cause and (b) the prosecution, as a matter of law, failed to sustain its burden of proving that appellant consented to be taken from his jail cell to the District Attorney’s office for interrogation. (Dunaway v New York, 442 US 200; People v Misuis, 47 NY2d 979; Brown v Illinois, 422 US 590; People v Elwell, 50 NY2d 231; People v Landy, 59 NY2d 369; People v Rodriguez, 52 NY2d 483; People v Brown, 40 NY2d 183; People v Coffey, 12 NY2d 443, 376 US 916; Cooper v Morin, 49 NY2d 69; Mincey v Arizona, 437 US 385.) II. The prosecution failed, as a matter of law, to prove appellant’s guilt beyond a reasonable doubt because (a) it was not clearly established that appellant’s statements to Harmon and Gary pertained to the Waldbaum fire and (b) the conflict between the prosecution’s own two arson experts as to the origin of the fire deprived the jury of any rational basis for a guilty verdict. (People v Carter, 63 NY2d 530; People v Stewart, 40 NY2d 692; People v Reed, 40 NY2d 204; People v Ledwon, 153 NY 10; People v Scarborough, 49 NY2d 364; People v Kennedy, 47 NY2d 196; People v Wooden, 58 AD2d 554,45 NY2d 734.) III. It was an abuse of discretion and a denial of due process to deny, without a hearing, appellant’s motion to set aside the verdict which alleged that new evidence would demonstrate that Julio Cruz had lied when he testified that appellant had admitted to him his involvement in the Waldbaum fire. (People v Crimmins, 38 NY2d 407.)

      Elizabeth Holtzman, District Attorney (Michael Gore and Barbara D. Underwood of counsel), for respondent.
    I. The interview of defendant, who was lawfully in custody on unrelated charges was not the product of an unlawful seizure of his person, both because he was already in lawful custody, and because he consented to be transported and interviewed. (People v King, 61 NY2d 969; People v Krom, 61 NY2d 187; People v Clarke, 60 NY2d 568; People v Gonzalez, 39 NY2d 122; People v Whitehurst, 25 NY2d 389; Schneckloth v Bustamonte, 412 US 218; People v

      Prochilo, 41 NY2d 759; People v Yukl, 25 NY2d 585; People v Watson, 96 AD2d 1066; People v Munro, 86 AD2d 683.) II. Defendant’s confession to having set this fire, taken with the rest of the evidence, established his guilt beyond a reasonable doubt. (People v Gruttola, 43 NY2d 116; People v La Borde, 76 AD 2d 869; People v Phillips, 75 AD2d 735; People v Murray, 40 NY2d 327; People v Conroy, 287 NY 201; People v Contes, 60 NY2d 620.) III. The jury’s rejection of King’s conclusions and their acceptance of Dugan’s was based on the evidence, and conflict between them did not undermine the verdict. (People v Wofford, 46 NY2d 962; People v Horton, 308 NY 1; People v Baldi, 76 AD2d 259, 54 NY2d 137; People v Buthy, 38 AD2d 10; People v Wood, 12 NY2d 69; Kosberg v Washington Hosp. Center, 394 F2d 947; Cherry-Burrell Co. v Thatcher, 107 F2d 65; People v Reed, 40 NY2d 204; People v Ledwon, 153 NY 10.) IV. The denial of the motion to set aside the verdict was proper. (People v Salemi, 309 NY 208; People v Wagner, 51 AD2d 186; People v Crimmins, 38 NY2d 407; People v Hazelton, 58 AD2d 945.)
   OPINION OF THE COURT

Meyer, J.

Even though expert witnesses presented by the People state contradictory opinions, guilt beyond a reasonable doubt may exist if the jury may reasonably so conclude from the other evidence presented and the opinion of one of the experts. Defendant’s guilt beyond a reasonable doubt of the felony murders of firemen who died while fighting a fire set by him was, therefore, established sufficiently to sustain the jury’s verdict. That being so and the other issues raised by defendant being either without merit or beyond our review, the order of the Appellate Division should be affirmed.

I

On August 2, 1978, six firemen died in the performance of their duties as the result of the collapse of the roof of a Waldbaum’s Supermarket in Brooklyn. In March 1979, Harold Harmon, the detective investigating the fire, received information from Julio Cruz that defendant had discussed the Waldbaum’s fire with him in October 1978, when defendant and Cruz were incarcerated at Hikers Island, and had admitted that he did it and had been paid for it. On the basis of that information, Detective Harmon took defendant to the Brooklyn District Attorney’s office for questioning, pursuant to a so-called Damiani order.

Three statements were taken from defendant during that questioning, two on May 7, 1979 and the third on May 9th. In them defendant discussed the Waldbaum’s fire and admitted having gone to the roof of the store before daybreak with two other persons none of whom were ever inside the store, punched holes in the roof, stuffed paper in the holes, poured “lighter fluid”* in the holes and ignited them. He also discussed similarly setting a fire at a Royal Farms Dairy store in Coney Island.

At a suppression hearing defendant raised issues of probable cause, of whether he consented to the May 7th interview (no Damiani order for that date having been produced) and of voluntariness. The hearing Judge found that defendant had consented, that there was probable cause and that the statements were voluntarily given.

The evidence at trial was that the fire was not discovered until about 8:30 a.m., at which time flames were seen on the mezzanine of the store between the men’s room and the compresser room just below the ceiling, about five feet off the floor. Firemen who went to the roof under assignment to vent the roof by cutting holes in it testified to there being holes in the roof but were unable to specify whether they had been made by other firemen.

The supervising fire marshal testified that the fire had been started with an accelerant at four different points within the store, one on a temporary truss in the rear of the men’s room, the other three at points beneath the stairs leading to the mezzanine. He conceded that there was such a thing as a drop fire, but testified that in his opinion the Waldbaum’s fire was not a drop fire, but, rather, had burned upward from the points of origin.

An arson division detective, also called by the People, who had visited the scene for only 10 minutes, testified from examination of the file and the numerous photographs in it. He concluded from photographs of the mezzanine and the cockloft (the area above the ceiling and below the roof) that the fire was a drop fire which burned through the flooring of the cockloft, and from the photographs of the area beneath the mezzanine stairs, that the fire had not originated there. The People also presented Cruz, who testified to defendant’s statement to him, and Detective Harmon and Michael Gary, the Assistant District Attorney who took the May 7th and 9th statements, all three of which were admitted in evidence, as well as firemen who fought the fire and Waldbaum’s employees.

At the close of the People’s case, defendant moved to dismiss on the ground that the People had failed to make a prima facie case. The Trial Judge ruled that despite the inconsistency between the two experts produced by the People reconciliation of their testimony was for the jury. Defendant having rested without introducing evidence, the case went to the jury after a defense summation urging them to disregard the testimony of the arson detective and under instruction from the court that the testimony of experts is subject to the same rules of reliability and credibility as other witnesses. The jury found defendant guilty of six counts of felony murder and one count of second degree arson.

Defendant then moved to set aside the verdict for insufficiency of the evidence to establish his guilt beyond a reasonable doubt and on the ground of newly discovered evidence that Cruz, who was 17 at the time of defendant’s alleged statement to him, could not, under Correction Law §§ 485 and 500-c, have been lodged in the same Hikers Island building as was defendant or eaten together in the same facility with defendant, who was then over 21. The Trial Judge denied the motion, ruling as to the sufficiency of the evidence that the jury had the right to decide which of the experts it would believe and that the expert testimony of the arson detective, together with the admission to Cruz and statements to Gary and the other evidence, was sufficient to meet the guilt beyond a reasonable doubt test and, as to the newly discovered evidence, that Cruz’s age was available during trial and thus was not newly discovered. The Appellate Division affirmed, without opinion.

Before us defendant argues (1) that it was an abuse of discretion to deny the ilewly discovered evidence portion of his posttrial motion because he was not chargeable with knowledge that the meeting Cruz testified to was precluded by law, (2) that his statements were inadmissible because the product of seizure of his person without probable cause and because, as a matter of law, his consent had not been established, and (3) that his guilt was not established beyond a reasonable doubt. We conclude that the first contention is without merit and the second is not reviewable by us,* * and, therefore, discuss only the third.

II

The claimed insufficiency of the evidence to meet the reasonable doubt standard is based not only upon the conflict between the two prosecution experts but also on the suggestion that defendant’s statements did not clearly refer to the Waldbaum’s fire as distinct from the Royal Farms Dairy fire or a third fire, of which defendant admitted knowledge. The latter contention need not long detain us, for the transcripts of defendant’s statements were in evidence and available to the jury. Although some of the admissions in them are unclear, they contained incriminatory admissions which the jury could find relate specifically to the Waldbaum’s fire.

To sustain his argument that the conflicting testimony of the People’s experts cannot constitute proof beyond a reasonable doubt, defendant invokes the rule of People v Stewart (40 NY2d 692); People v Reed (40 NY2d 204); and People v Ledwon (153 NY 10), recently reiterated by us in People v Foster (64 NY2d 1144), that the testimony of a single witness which is involved in hopeless contradiction cannot establish guilt beyond a reasonable doubt, and points to several Pennsylvania cases reasoning similarly with respect to conflict between experts presented by the party who bears the burden of proof. The People counter that the resolution of conflict between opposing experts is generally a matter for the jury and that it should make no more difference that both experts were prosecution witnesses than it would have had the People advised defendant of the fire marshal’s opinion and defendant then called the fire marshal as a defense witness.

It is, of course, true that evidence is to be evaluated on the basis of its content and reliability rather than by whom it was introduced (see, People v Kirkpatrick, 32 NY2d 17, 21; People v Farina, 290 NY 272, 274; People v Corbisiero, 290 NY 191; Pitler, New York Criminal Practice Under the CPL § 12.38). But the difference between the single witness situations dealt with by the Foster, Stewart, Reed and Ledwon cases (supra), relied on by defendant, and that of the present case is more fundamental and relates rather to the meaning of reasonable doubt.

A classic statement with respect to the relative functions of judge and jury respecting reasonable doubt is that of Justice Prettyman of the District of Columbia Court of Appeals in Curley v United States (81 DC App 389, 392-393, 160 F2d 229, 232-233, cert denied 331 US 837, reh denied 331 US 869):

“The functions of the jury include the determination of the credibility of witnesses, the weighing of the evidence, and the drawing of justifiable inferences of fact from proven facts. It is the function of the judge to deny the jury any opportunity to operate beyond its province. The jury may not be permitted to conjecture merely, or to conclude upon pure speculation or from passion, prejudice or sympathy. The critical point in this boundary is the existence or non-existence of a reasonable doubt as to guilt. If the evidence is such that reasonable jurymen must necessarily have such a doubt, the judge must require acquittal, because no other result is permissible within the fixed bounds of jury consideration. But if a reasonable mind might fairly have a reasonable doubt or might fairly not have one, the case is for the jury, and the decision is for the jurors to make. The law recognizes that the scope of a reasonable mind is broad. Its conclusion is not always a point certain, but, upon given evidence, may be one of a number of conclusions. Both innocence and guilt beyond a reasonable doubt may lie fairly within the limits of reasonable conclusion from given facts. The judge’s function is exhausted when he determines that the evidence does or does not permit the conclusion of guilt beyond reasonable doubt within the fair operation of a reasonable mind.

“The true rule, therefore, is that a trial judge, in passing upon a motion for directed verdict of acquittal, must determine whether upon the evidence, giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact, a reasonable mind might fairly conclude guilt beyond a reasonable doubt. If he concludes that upon the evidence there must be such a doubt in a reasonable mind, he must grant the motion; or, to state it another way, if there is no evidence upon which a reasonable mind might fairly conclude guilt beyond reasonable doubt, the motion must be granted. If he concludes that either of the two results, a reasonable doubt or no reasonable doubt, is fairly possible, he must let the jury decide the matter. In a given case, particularly one of circumstantial evidence, that determination may depend upon the difference between pure speculation and legitimate inference from proven facts. The task of the judge in such case is not easy, for the rule of reason is frequently difficult to apply, but we know of no way to avoid that difficulty.”

When all of the evidence of guilt comes from a single prosecution witness who gives irreconcilable testimony pointing both to guilt and innocence, the jury is left without basis, other than impermissible speculation, for its determination of either (People v Stewart, 40 NY2d, at p 699, supra). That two or more witnesses give conflicting testimony, however, simply creates a credibility question for the jury (id.), to be determined by them in the context of the entire body of evidence before them. There may conceivably be situations in which two witnesses who, despite equal opportunity to observe and ability to describe, give diametrically opposed factual testimony and the other evidence in the case is so conjectural as not to rise to the level of proof beyond a reasonable doubt, no matter which version of the conflict between the two witnesses is accepted. Seldom, if ever, can that be the case, however, with respect to conflicting evidence given by expert witnesses, for expert opinion is predicated upon facts observed by the expert and testified to before the jury or assumed by the expert and established by the testimony of others, and in most cases each expert will have testified concerning his or her qualifications in the field to which the opinion given relates. There will, therefore, be a factual matrix against which the jury decides which opinion it deems acceptable and which, together with the accepted opinion, will, in all but the most unusual case, provide the basis upon which a rational trier of fact can conclude that guilt has been established beyond a reasonable doubt (cf. Matter of Anthony M., 63 NY2d 270).

Such is the situation of the present case. Defendant’s three statements to the authorities place him on the roof, making holes in it which were stuffed with paper and upon which an accelerant was then poured and lighted, and his admission to Cruz confirms his participation in setting the fire. Although corroboration of those statements was required (CPL 60.50), it need only be of circumstances “ ‘calculated to suggest the commission of crime, and for the explanation of which the confession furnishes the key’ ” (People v Murray, 40 NY2d 327, 332). Here the evidence presents no question concerning the fact that the fire occurred and was deliberately set. The conflict between the experts concerned whether it began on the roof and dropped into the mezzanine where it was first seen, or was set under the staircase to the mezzanine and traveled up. Testimony of Waldbaum employees who saw nothing untoward when they used the staircase shortly before discovery of the fire and who first observed flames some five feet above the mezzanine floor, and of firemen who used the staircase to reach the mezzanine without observing fire, provided a sufficient basis for the jury to conclude that the fire began on the roof as defendant stated and dropped down as the arson detective testified, in his expert opinion, it did. That the fire was not discovered until about 8:30 a.m., whereas defendant’s statement fixed his activity as “dawn,” “before daybreak,” and that defendant identified a turpentine can found after the fire inside the supermarket beneath the mezzanine staircase as “the can or similar to it” in which the “lighter fluid” about which he spoke had been contained, do not push this case over the line between “pure speculation and legitimate inference from proven facts” (Curley v United States, supra, at p 233). In light of the evidence that to reach the men’s room wall where it was first sighted the fire had to burn through the roof, which in part consisted of a second rain roof above the roof, and the cockloft flooring and onto the trusses above the men’s room, the time lapse between “dawn,” “about daybreak”* ** and about 8:30 a.m. is not so great as to render purely speculative the conclusion that the fire in the men’s room was the result of the fire set by defendant. And as to the turpentine can, the jury could find that defendant’s statement simply identified the type of can, rather than the particular can of the accelerant used, when he spoke of “the can or similar to it.”

For the foregoing reasons, the order of the Appellate Division should be affirmed.

Chief Judge Wachtler and Judges Jasen, Simons, Kaye and Alexander concur; Judge Titone taking no part.

Order affirmed.

      . The reference is to an order of Supreme Court, Kings County, issued March 10, 1972, establishing the procedure whereby, on the basis of a letter written by the District Attorney to the Warden of the Rikers Island House of Detention and consented to by the inmate, custody of the inmate is delivered to the police department for the purpose of interview by the District Attorney and return the same day to Rikers Island.

      . He later identified a 32-ounce turpentine can as the type of container for the fluid.

      .  The facts concerning Cruz’s age and where he was housed were readily available prior to trial and defendant is, indeed, chargeable with knowledge of the law (see, People v Shapiro, 4 NY2d 597, 600; People v Powell, 63 NY 88; 1 Wharton’s Criminal Law § 77 [14th ed]).

      .  Defendant being incarcerated for another crime, admissibility of his statements turns not on probable cause but on consent (cf. People v Whitaker, 64 NY2d 347, 352), and the evidence of consent was sufficient, notwithstanding the missing Damiani order, to sustain the finding of the hearing Judge which, after affirmance by the Appellate Division, is beyond our review (People v King, 61 NY2d 969, 971; People v Krom, 61 NY2d 187, 196).

      . Mudano v Philadelphia R. T. Co. (289 Pa 51,137 A 104); see, Commonwealth v Gonzales 463 Pa 597, 345 A2d 691). Other courts have held to the contrary (see, e.g., Kosberg v Washington Hosp. Center, 394 F2d 947; Diggs v Lail, 201 Va 871,114 SE2d 743). See generally, 2 Jones, Evidence § 14.31, at 672 (6th ed); Ann , 53 ALR2d 1229.

      . Although made in the context of a trial order of dismissal, the Curley statement is equally applicable to a motion for judgment notwithstanding the verdict and to review of the ruling on such a motion (see, Jackson v Virginia, 443 US 307, 318, n 11, and 319 [“the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt”] [emphasis in original]).

      . That the falsus in uno instruction (CJI [NY] 7.06; 1 PJI2d 1:22) permits the jury to accept so much of a witness’s testimony as it believes true and reject such part as it deems false speaks to the weighing of the witness’s testimony against not only his own inconsistent statements but also the other evidence in the case. It is not inconsistent, therefore, with the conception that when the only evidence of guilt comes from a self-contradicting witness, the reasonable doubt standard has not been met.

      . 1 CJI (NY) 7.13, with respect to conflicting expert opinion, advises the jury that: “Of course, in resolving any conflict that may exist in the testimony of the expert witnesses, you should carefully weigh the opinion of one expert against that of another. In doing so, you should consider the relative qualifications and credibility of the expert witnesses, the reasons given for their individual opinions, and, especially, the facts and other circumstances upon which their opinions were based.”

      . Defendant’s brief notes that the United States Naval Observatory Almanac states that sunrise occurred at 5:53 a.m. on August 2,1978. Although we can take judicial notice of that fact, it was not a fact before the jury.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    In the Matter of Ronald L. Fabrizio, a Justice of the New Windsor Town Court, Petitioner. State Commission on Judicial Conduct, Respondent.
    Argued May 28, 1985;
    decided June 13, 1985
    POINTS OF COUNSEL

      John J. Hayden for petitioner.
    I. Petitioner was deprived of due process of law when respondent made a removal determination based on a standard which was unconstitutional. (In re Gault, 387 US 1; Matter of Storar, 52 NY2d 363; Addington v Texas, 441 US 418; Ross v Food Specialties, 6 NY2d 336; Amend v Hurley, 293 NY 587; Porter v Commercial Cas. Ins. Co., 292 NY 176; Santosky v Kramer, 455 US 745; Woodby v Immigration Serv., 385 US 276.) II. The number of charges against Judge Fabrizio — eight in all — should not be used as the basis to determine the sanction to be imposed by the court, and Judge Fabrizio should be given a censure, the same sanction which was imposed upon other members of the Orange County judicial system. (Matter of Kuehnel v State Commn. on Judicial Conduct, 49 NY2d 465; Matter of Bolte, 97 App Div 551; Matter of Owen, 47 NY2d [jjj]; Matter of Byrne, 47 NY2d [jjj]; Matter of Lahey, 45 NY2d [y].) III. The layman Judge should not be removed as the misconduct either deemed proven by this court, or admitted by the Judge, was not truly egregious. (Matter of Steinberg, 51 NY2d 74; Matter of Owen, NY2d [jjj]; Friedman v State of New York, 24 NY2d 528.) IVj. Petitioner should not be subjected to any discipline — whether by way of admonishment, censure or suspension — because his testimony before the Commission differed from the testimony of the administrator’s witnesses before the Commission. V. The finding that petitioner used racial epithets while acting in his official capacity was not proven by clear and convincing evidence, accordingly that charge of judicial misconduct should not be sustained by the Court of Appeals. VI. Assuming arguendo that racial epithets were used out of court and out of the presence of minority defendants, nevertheless the sanction of removal should not be applied. (Matter of Cerbone, 61 NY2d 93.) VII. The remaining charges were not proven by clear and convincing evidence or by a fair preponderance of the evidence, and accordingly, the court should not accept the determination of the Commission.

      Alan W. Friedberg, Gerald Stern and Jean M. Savanyu for respondent.
    I. Petitioner’s conduct violated established ethical standards and warrants removal from office. (People v Davis, 43 NY2d 17; Matter of Byrne, 47 NY2d [b]; Matter of Kuehnel v State Commn. on Judicial Conduct, 45 NY2d [y]; Matter of Bulger v State Commn. on Judicial Conduct, 48 NY2d 32; Matter of Dixon v State Commn. on Judicial Conduct, 47 NY2d 523; Matter of Reedy, 64 NY2d 299; Matter of Jones, 47 NY2d [mmm]; Matter of Filipowicz, 54 AD2d 348; Matter of Agresta, 64 NY2d 327.) II. The standard of proof employed by the Commission is in accord with constitutional standards. (Matter of Vaccaro, 42 NY2d [a]; Matter of Richter, 42 NY2d [aa]; Matter of MacDowell, 57 AD2d 169; Matter of Filipowicz, 54 AD2d 348; Matter of Capoccia, 59 NY2d 549; Steadman v SEC, 450 US 91; Walters v McLucas, 597 F2d 1230, 444 US 932; Alsbury v United States Postal Serv., 530 F2d 852, 429 US 828; Polcover v Secretary of Treasury, 477 F2d 1223, 414 US 1001; Santosky v Kramer, 455 US 745.)
   OPINION OF THE COURT

Per Curiam.

The credible testimony establishes that petitioner, in the relatively short period that he has served as a Town Justice, engaged in numerous instances of egregious misconduct, including the seeking of special consideration for two defendants in other courts, using racial slurs, altering transcripts, advising bis court reporter to change stenographic notes that had been subpoenaed by the Commission on Judicial Conduct, and sitting on a small claims casé in which the defendant was his dentist for 10 years without disclosing the relationship or offering to disqualify himself. In addition, petitioner attempted to impede the Commission’s investigative efforts throughout by falsifying evidence and intimidating witnesses.

Petitioner’s actions violated numerous sections of the Rules Governing Judicial Conduct (22 NYCRR 100.1,100.2,100.3 [a], [c]), the Code of Judicial Conduct (Canons 1,2,3 [A], [C]) and the Special Rules Concerning Court Decorum promulgated by the Appellate Division, Second Department (22 NYCRR 700.5 [a], [e]). Contrary to petitioner’s assertion, the fact that he is a nonlawyer is not a factor in mitigation. The Code of Judicial Conduct applies to “[a]nyone, whether or not a lawyer, who is an officer of a judicial system performing judicial functions” (Compliance With Code of Judicial Conduct, McKinney’s Cons Laws of NY, Book 29, Appendix, p 539) and the Rules Governing Judicial Conduct should be similarly construed to further the objective of maintaining the “independent and honorable judiciary” which is “indispensible to justice in our society” (22 NYCRR 100.1).

In short, petitioner has clearly abused the power of his office in a manner that has brought disrepute to the judiciary and damaged public confidence in the integrity of his court. This breach of public trust calls for the sanction of removal from office (see, Matter of McGee v State Commn. on Judicial Conduct, 59 NY2d 870).

Accordingly, the determined sanction of removal should be accepted, without costs.

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

Determined sanction accepted, without costs, and Ronald L. Fabrizio is removed from his office of Justice of the New Windsor Town Court, Orange County.

       Designated pursuant to NY Constitution, article VI, § 2.


text:
    In the Matter of William W. Seiffert, a Judge of the Nassau County District Court, Petitioner. State Commission on Judicial Conduct, Respondent.
    Argued May 28, 1985;
    decided June 13, 1985
    POINTS OF COUNSEL

      Frank A. Gulotta for petitioner.
    I. The “preponderance” standard of proof applicable in a judicial disciplinary proceeding is constitutionally invalid. (Addington v Texas, 441 US 418; Santosky v Kramer, 455 US 745; Little v Streater, 452 US 1; Woodby v Immigration Serv., 385 US 276; Chaunt v United States, 364 US 350; Simcuski v Saeli, 44 NY2d 442; Matter of Love, 46 NY2d 784; Backer Mgt. Corp. v Acme Quilting Co., 46 NY2d 211; Huggins v Castle Estates, 36 NY2d 427; Matter of Cerbone, 61 NY2d 93.) II. The Commission’s determination of judicial misconduct as to each charge was erroneous as a matter of law. (Matter of Spector v State Commn. on Judicial Conduct, 47 NY2d 462; Berger v United States, 255 US 22.) III. The sanction of removal imposed by the Commission was unduly harsh and excessive. (Friedman v State of New York, 24 NY2d 528; Matter

      of Richter, 42 NY2d [aa]; Matter of Kelso, 61 NY2d 82; Matter of Sardino v State Commn. on Judicial Conduct, 58 NY2d 286; Matter of Bulger v State Commn. on Judicial Conduct, 48 NY2d 32.) IV. The combination of adjudicative and investigative functions in the Commission violated petitioner’s right to due process. (Withrow v Larken, 421 US 35; Matter of Lowcher v New York City Teachers’ Retirement Sys., 54 NY2d 373; Sharkey v Thurston, 268 NY 123.)

      Robert Tembeckjian, Gerald Stern and Alan W. Friedberg for respondent.
    I. Petitioner’s conduct violated established ethical standards and warrants removal from office. (Matter of Byrne, 47 NY2d [b]; Matter of Kuehnel v State Commn. on Judicial Conduct, 45 NY2d [y]; Matter of Dier, 48 NY2d 874; Matter of Dixon v State Commn. on Judicial Conduct, 47 NY2d 523; Matter of La Carrubba, 49 NY2d [p].) II. Petitioner’s attack on the Commission’s procedures is totally lacking in merit. (Matter of Vaccaro, 42 NY2d [a]; Matter of Richter, 42 NY2d [aa]; Matter of MacDowell, 57 AD2d 169; Matter of Filipowicz, 54 AD2d 348; Matter of Capoccia, 59 NY2d 549; Santosky v Kramer, 455 US 745; Addington v Texas, 441 US 418; Woodby v Immigration Serv., 385 US 276; Chaunt v United States, 364 US 350; Matter of Friess v New York State Commn. on Judicial Conduct, 91 AD2d 554.) III. Petitioner’s request for reconsideration was properly denied by the Commission. (Matter of Shilling, 51 NY2d 397.)
   OPINION OF THE COURT

Per Curiam.

We accept the determination of the State Commission on Judicial Conduct that petitioner, a Judge of the District Court of Nassau County, be removed from office. The record fully supports the Commission’s findings of fact and conclusions of law. As fairly summarized by the Commission:

“[Petitioner] intervened on three occasions in matters not before him to seek special consideration for defendants with whom he had personal relationships.

“In two cases, he went to extraordinary lengths to pressure prosecutors to agree to charge reductions not available to other defendants, in one case on behalf of his stepson and in the second on behalf of an acquaintance who had done [petitioner] a favor that he had promised to return. [Petitioner] acted as an adversary in these matters, proposing dispositions to the prosecutors, persisting when they refused his suggestions and exhibiting impatience when they refused to yield.

* * *

“In the Lucey matter, [petitioner’s] misconduct was exacerbated by the fact that he reached out to another part of the court to bring the case béfore him and, after bargaining on behalf of the defendant, disposed of the matter himself.”

This egregious conduct violated sections 100.1, 100.2 and 100.3 (a) (2) of the Rules Governing Judicial Conduct (22 NYCRR) and Canons 1, 2 and 3 [A] of the Code of Judicial Conduct and warrants petitioner’s removal.

We reject petitioner’s contention that the standard of proof in this proceeding should be “clear and convincing evidence” rather than the “preponderance of the evidence” standard adopted by the Commission (see, 22 NYCRR 7000.6 [i]). In Santosky v Kramer (455 US 745, 756), relied upon by petitioner, the Supreme Court cited a variety of situations where it had mandated the “clear and convincing” standard in government-initiated proceedings that threatened the individual with “ ‘a significant deprivation of liberty’ or ‘stigma’.” The nature of the individual interest threatened, however, is not the only consideration in deciding whether, in a particular type of proceeding, due process requires the use of the higher standard. The decision must be based upon a fair allocation between the State and the individual of the risk of an erroneous determination in the proceeding (see, Santosky v Kramer, supra, p 761). This, in turn, requires a weighing of the interests involved. “The individual should not be asked to share equally with society the risk of error when the possible injury to the individual is significantly greater than any possible harm to the state.” (Addington v Texas, 441 US 418, 427, quoted in Santosky v Kramer, supra, p 768.)

In approving the preponderance standard in attorney disciplinary proceedings, we pointed out that the privilege to practice law is not a personal or liberty interest, but “is more nearly to be classified as a property interest, as to which the higher standard of proof has not been required.” (Matter of Capoccia, 59 NY2d 549, 553.) So, too, is the right of a judge to continue in office more akin to a property, rather than a personal or liberty, interest. Moreover, even though removal from office is more serious than a “mere loss of money”, since it inflicts a “stigma” (Addington v Texas, supra, pp 424,426), the interest of the State and of the public in a competent judiciary is superior to the interest of the individual Judge to continue in office. We have held that in a disbarment proceeding, the “concern for the protection of the public interest far outweighs any interest the convicted attorney has in continuing to earn a livelihood in his chosen profession.” (Matter of Mitchell, 40 NY2d 153, 156.) Concern for the protection of the public interest weighs no less heavily in the present proceeding.

Accordingly, the determined sanction should be accepted, without costs, and the application for review of the December 18, 1984 order of the Commission denied.

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

Determined sanction accepted, without costs, and William W. Seiffert is removed from his office of Judge of the District Court, Nassau County. Application for review of the December 18,1984 order of the Commission denied.

       Designated pursuant to NY Constitution, article VI, § 2.


author: Jasen, J.

text:
    The People of the State of New York, Appellant, v Essex Ray, Respondent.
    Argued March 18, 1985;
    decided May 7, 1985
    POINTS OF COUNSEL

      Robert M. Morgenthau, District Attorney (Priscilla Ryan and Robert M. Pitler of counsel), for appellant.
    A private store detective is not required to give a suspected shoplifter Miranda warnings when the police are not involved either before or during questioning. (People v Jones, 47 NY2d 528; Miranda v Arizona, 384 US 436; Malloy v Hogan, 378 US 1; Burdeau v McDowell, 256 US 465; People Gleeson, 36 NY2d 462; People v

      Horman, 22 NY2d 378, 393 US 1057; People v Esposito, 37 NY2d 156; People v Adler, 50 NY2d 730,449 US 1014; Jacques v Sears, Roebuck & Co., 30 NY2d 466.)

      Mariann Sullivan and William E. Hellerstein for respondent.
    I. CPL 450.90 (2) (a) precludes this court from reviewing a decision of the Appellate Term where that court has made new factual findings upon which its ruling is predicated. (People v Warren, 97 AD2d 486, 61 NY2d 886; People v Hogya, 80 AD2d 621, 56 NY2d 602; People v Bay, 76 AD2d 592, 54 NY2d 808; People v Butler, 90 AD2d 797, 58 NY2d 1056; People v Rivera, 78 AD2d 327, 54 NY2d 1021; People v Amill, 88 AD2d 918, 58 NY2d 967; People v Saglimbeni, 95 AD2d 141, 62 NY2d 798.) II. The court below properly concluded that, when there exists a course of conduct in which a large department store’s employees apprehend shoplifting suspects and secure signed admissions from them, in custody, without Miranda warnings, and then turn the suspects over to special patrolmen, who are governmental agents, for arrest “processing”, those admissions must be suppressed. (People v Jones, 47 NY2d 528; Miranda v Arizona, 384 US 436; Gambino v United States, 275 US 310; Evans v Newton, 382 US 296; Sharrock v Dell Buick-Cadillac, 45 NY2d 152; People v Bowers, 77 Misc 2d 697; Griffin v Maryland, 378 US 130; Williams v United States, 341 US 97; Labor Bd. v Jones & Laughlin Co., 331 US 416; Smith v Brookshire Bros., 519 F2d 93, 424 US 915.)
   OPINION OF THE COURT

Jasen, J.

The issue presented on this appeal is whether a private store detective is required to administer Miranda warnings to a shoplifting suspect where a special police officer, also a store employee, is present upon store premises, but does not participate in the apprehension or questioning of the suspect.

On July 16,1981, at approximately 5:55 p.m., defendant Essex Ray wa,s observed standing by a shelf display of Evan Picone shirts in the men’s furnishing department of Bloomingdale’s Department Store in Manhattan. His actions were witnessed by a plainclothes store detective, Vincent Galea, who was employed by Bloomingdale’s. Galea was suspicious of Essex Ray because he recognized defendant as having been previously apprehended in Bloomingdale’s and had seen defendant in the store earlier that day. After standing by the shirt display for one or two minutes, defendant looked to his left and to his right, and seized seven Evan Picone shirts from the shelves. Defendant then left that section of the store with the designer shirts in one hand and a plastic shopping bag in the other hand. He walked directly to the service desk, where store employees handled customer refunds and merchandise returns, and got in line behind five or six people. Galea got in line behind defendant, and was asked by defendant whether he worked at Bloomingdale’s, to which Galea responded “no”. Defendant then put the seven designer shirts in his shopping bag. Galea thereupon displayed his store security badge, informed defendant that he was a store detective employed by Bloomingdale’s, and asked: “Do you want to come with me to the office, please?” Defendant accompanied Galea willingly-

When they reached a security office, which was a windowless room measuring five by seven feet, Galea lightly patted defendant down to see if he had weapons, and filled out four forms, to wit: two cards reflecting defendant’s general background, including name, age, birth date and address; a “criminal trespass sheet” which gave notice to defendant that if he returned to the store in the future, he could be arrested for criminal trespass; and, a “circumstances sheet” which set forth the reasons why defendant had been taken to the security room. Defendant was not free to leave during the period of questioning, and Galea did not administer Miranda warnings to defendant at any time. Defendant at no time complained about his health, asked to make a telephone call, or requested food. Galea wrote upon the “circumstances sheet”: “I concealed seven Evan Picone shirts totalling $175 in my shopping bag without paying for said merchandise”. After reading the circumstances aloud, and permitting defendant to review the written statement for one or two minutes, Galea told defendant to initial the statement to verify that what he wrote was true and to sign the bottom of the paper. Defendant initialed and signed the paper as requested, and Galea then signed his own name on the line designated “witness”.

Galea took the papers to his supervisor, the assistant security manager, Susan Rauch. Rauch informed Galea that defendant would be prosecuted, and Galea left. Rauch was the person who made the decision as to whether Bloomingdale’s would prosecute, and her approval was necessary whether the apprehension was made by a store detective, such as Galea, or a special police officer. Following the determination by Rauch that defendant would be prosecuted, Galea delivered his paper work to Special Police Officer Julia Bryant, an employee of Bloomingdale’s. Officer Bryant, who was licensed as a special officer by the Police Commissioner of the City of New York, was the only special police officer on duty in Bloomingdale’s that evening. Officer Bryant administered to defendant his Miranda warnings and took defendant to central booking. The treatment of defendant was in accordance with store custom that the store detectives do not generally administer Miranda warnings and that if a decision were made by the store to prosecute, the store detectives would turn the case over to a special police officer for further proceedings.

On July 17, 1981, defendant was charged with petit larceny (Penal Law § 155.25) and criminal possession of stolen property in the third degree (Penal Law § 165.40). Prior to trial, defendant moved to suppress the inculpatory statement that he had signed in which he admitted to Galea that he had concealed in his shopping bag seven Evan Picone shirts valued at $175 without paying for them. Defense counsel argued, inter alia, that defendant’s statement should be suppressed because the involvement of the special police officer in the arrest mandated that defendant be advised of his Miranda rights. The People contended that as a private security guard acting solely on behalf of his private employer, store detective Galea was not required to administer Miranda warnings before questioning defendant.

On November 23,1981, following argument by counsel, Criminal Court of the City of New York, New York County, denied the motion to suppress defendant’s statement. The court found that no police officer or special police officer participated in the apprehension or questioning of defendant, nor did any such officer participate in making the decision to prosecute defendant. Concluding that the store detective had acted in a purely private capacity, and not as an agent for the State, the court held that Galea was not required to advise defendant of his Miranda rights, and that defendant’s inculpatory statement was voluntary. A jury trial was held on November 25, 1981 and defendant was found guilty on that date of both charges.

Appellate Term, First Department, in express reliance upon the factual findings at the Huntley hearing, reversed defendant’s conviction. Appellate Term held that the detention and interrogation of defendant by a private store detective employed by Bloomingdale’s and the subsequent formal arrest by a special police officer also employed by Bloomingdale’s “appears to represent a course of conduct calculated to circumvent defendant’s constitutional rights and as such cannot be countenanced.” The appeal is before us pursuant to CPL 450.90 (2) (a). For the reasons that follow, the order of Appellate Term should be reversed.

The 5th Amendment privilege against compulsory self-incrimination, which the Miranda warnings are designed to protect, has never been held to apply where a private store detective questions a person without any participation by the government. The avowed purpose of Miranda was to secure the privilege against self-incrimination from encroachment by governmental action. (Miranda v Arizona, 384 US 436, 445.) In the absence of active governmental participation in a private investigation, no Miranda warnings need be administered. Private, conduct, however, may become so pervaded by governmental involvement that it loses its character as such and invokes the full panoply of constitutional protections. (People v Jones, 47 NY2d 528; People v Esposito, 37 NY2d 156, 160; People v Adler, 50 NY2d 730, 737; Corngold v United States, 367 F2d 1.) Relevant indicia of State involvement, which may transform private conduct into State action, include: a clear connection between the police and the private investigation (People v Horman, 22 NY2d 378, 380); completion of the private act at the instigation of the police (People v Esposito, supra); close supervision of the private conduct by the police (People v Esposito, supra); and a private act undertaken on behalf of the police to further a police objective (People v Adler, supra).

We do not agree with Appellate Term that Bloomingdale’s course of conduct in employing a special police officer on the premises to process any arrest ordered as a result of the private investigation conducted by employees of the store constituted governmental involvement requiring observance of the full panoply of constitutional protections.

In our view, there was insufficient state involvement in the private shoplifting investigation at issue to create a police-dominated custodial atmosphere and, thus, the store detective was under no duty to administer Miranda warnings to defendant. The mere presence of a special police officer upon the store premises does not establish state action. The private surveillance, apprehension and questioning of defendant was in no way instigated by the special police officer or undertaken upon the official behest of a law enforcement agency. The impetus for the shoplifting investigation was an internal store policy to prevent property loss. Defendant was neither identified as a suspect by the police nor questioned in the furtherance of a police-designated objective. The decision to prosecute defendant rested solely in private hands, further evidencing that private objectives were primarily served by the investigation, as well as the lack of government supervision or control over the inquiry. (See, Note, Merchants’ Responses to Shoplifting: An Empirical Study, 28 Stan L Rev 589, 604-605.) In view of the absence of active governmental involvement in identifying, apprehending or questioning defendant, the investigation was private in character and not subject to Miranda safeguards. To hold that the conduct of the private store detective was governed by Miranda would be an extravagant expansion of the intended scope of that decision, and would constitute an unnecessary and unauthorized interference with the right of a merchant to protect his property by lawful means. (See, Watts v Indiana, 338 US 49, 61 [Jackson, J., concurring in part and dissenting in part].)

Critically important to our inquiry is a determination as to the moment of the entry of the police into the private shoplifting investigation. It is conceded that the special police officer, although an employee of Bloomingdale’s, was contacted by a private employee of the store only subsequent to the apprehension and questioning of defendant. It was not until after defendant had signed the inculpatory statement, and the decision to prosecute defendant had been made by the store’s assistant security manager, that the special police officer even became aware of the private investigation pending against defendant. For state action to exist, it must be demonstrated that official participation in the investigation at issue preceded, or occurred contemporaneously with, the signing cjr utterance of an inculpatory statement. For example, when police officers have actively participated in defendant’s apprehension, exerted official power to restrain defendant, escorted defendant to the site of interrogation, and awaited the outcome of the privately conducted interrogation in close proximity to the place of questioning, a custodial atmosphere of the nature Miranda was designed to alleviate has been created. (See, People v Jones, 47 NY2d 528, supra.) Under circumstances where police participation precedes or occurs contemporaneously with the private elicitation of inculpatory evidence, so as to create a coercive, custodial environment with the reasonable potential of infringing defendant’s privilege against compulsory incrimination, the Miranda safeguards must be observed. Inasmuch as police participation in the instant case did not occur until after the inculpatory statement was signed, there was no threat of official coercion or compulsion, and the private store detective was under no duty to administer Miranda warnings. Thus, any store policy reflecting a practice of turning defendant over to authorities after investigation and the decision to prosecute have privately been made is constitutionally immaterial and, in reality, simply consistent with the customary procedures involved in all citizens’ arrests. (See, People v Adler, 50 NY2d 730, 737, supra.)

Accordingly, the order of Appellate Term should be reversed, and the case remitted to Appellate Term for consideration of the facts.

Chief Judge Wachtler and Judges Meyer, Simons, Kaye and Alexander concur.

Order reversed, etc.


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    Robert J. Malley et al., Respondents, v Joseph R. Hanna et al., Appellants.
    Argued March 19, 1985;
    decided May 9, 1985
    POINTS OF COUNSEL

      John W. Crowe for appellants.
    I. Plaintiffs lack standing to enforce the restriction. (Graham v Beermunder, 93 AD2d 254; Huggins v Castle Estates, 36 NY2d 427; Korn v Campbell, 192 NY 490; Lauber v Martin, 37 AD2d 754; State Bank of Albany v Amak Enters., 77 Misc 2d 340; Eck v Aggressive Indus. Corp., 78 AD2d 646; Lewis v Spies, 43 AD2d 714; Bristol v Woodward, 251 NY 275; Davidson v Dunham, 159 App Div 207.) II. Assuming arguendo that the homes fall within the ambit of the restriction, RPAPL 1951 prohibits issuance of a permanent injunction. III. The semidetached homes do not violate the restriction. (Buffalo Academy of Sacred Heart v Boehm Bros., 267 NY 242; Graham v Beermunder, 93 AD2d 254.)

      Donald W. O’Brien, Jr., for respondents.
    I. The covenant is enforceable by plaintiffs. (Goodfarb v Freedman, 76 AD2d 565; Whalen v Union Bag & Paper Co., 208 NY 1; Syracuse Supply Co. v Railway Express Agency, 45 Misc 2d 1000; Cheseboro v Moers, 233 NY 75; Vogeler v Alwyn Improvement Corp., 247 NY 131; Bull v Burton, 227 NY 101; Booth v Knipe, 225 NY 390; Wolff v Green, 199 Misc 758; Buffalo Academy of Sacred Heart v Boehm Bros., 267 NY 242; Oak Lane Realty v Trinity Evangelical Lutheran Church, 13 Misc 2d 708, 7 AD2d 1007, 7 NY2d 984.) II. The courts below correctly dismissed defendants’ counterclaim under RPAPL 1951. (Board of Educ. v Doe, 88 AD2d 108; Uvanni v CMB Bldrs., 41 AD2d 1019; Estate of Canale v Binghamton Amusement Co., 37 NY2d 875; Matter of Infant D., 34 NY2d 806; Rudman v Cowles Communications, 30 NY2d 1; Simon v Electrospace Corp., 28 NY2d 136; Orange & Rockland Utils. v Philwold Estates, 52 NY2d 253; Grossbaum v Dil-Hill Realty Corp., 58 AD2d 593; Clintwood Manor v Adams, 29 AD2d 278; Greene v Foremost Locations, 7 AD2d 780.) III. The proposed structures violate the restrictive covenant. (Baumert v Malkin, 235 NY 115; Marsch v Adams, 171 Misc 414; Isaacs v Schmuck, 245 NY 77; Bullock v Steinmil Realty, 1 Misc 2d 46.)
   OPINION OF THE COURT

Jasen, J.

Plaintiffs brought this action to enforce a restrictive covenant in defendants’ chain of title which prohibits the construction of two-family dwellings.

The trial court traced each of the parties’ properties to an original owner, Brown Brothers Company, and found that the restrictive covenant in defendants’ chain of title was clearly intended to limit residential construction to single-family dwellings. Nevertheless, the court dismissed the complaint on the ground that plaintiffs had failed to demonstrate the existence of a “general plan of development” as evidenced by a “uniform (or nearly uniform) scheme of restrictions contained in the deeds from the common grantor.” The Appellate Division reversed and granted relief to plaintiffs, finding not only that the restrictive covenant on defendants’ property was intended to bar construction of the proposed dwellings, but also that the restrictive covenant was imposed by the original grantor as part of a common scheme or plan, as evidenced by the virtually identical restrictions contained in each party’s respective chain of title. We now affirm for the following reasons.

Browncroft Extension, a residential neighborhood in both the City of Rochester and the Town of Brighton in Monroe County, was originally assembled by Brown Brothers Company. The parties in this action each acquired their properties through independent chains of title from that original grantor. We need only consider defendants’ and plaintiff Halley’s chains of title to decide this appeal.

Defendants’ parcel derives directly from a deed conveyed by Brown Brothers in 1916 in which nine lots, including defendants’ four, were transferred to Browncroft Realty Corporation. The conveyance was subject to the following restrictions: “Each lot in the [Browncroft] tract * * * shall be used for residence purposes only and no double house, Boston flat or apartment house, shall ever be built upon any lot in said tract.” Subsequently, the property was conveyed in part several times, including in 1983 when four lots were purchased by defendants. Each conveyance, including the transfer to defendants, explicitly provided that title was taken subject to the covenants of record and specifically referred to the Browncroft Extension.

Plaintiff Halley’s property, consisting of one lot located three lots east of defendants’ parcel, was originally conveyed by Brown Brothers in 1929. This conveyance to Charles and Eleanore Carman provided the following conditions: “The lot hereby conveyed shall be used for the usual and ordinary purposes of a residence or dwelling and not otherwise. No double house, Boston flat or apartment house shall ever be erected thereon”.

The property was transferred again the same year and, thereafter, in 1958, it was purchased by plaintiff Halley. Each conveyance was explicitly made subject to the covenants of record and specifically referred to the Browncroft Extension.

In order to establish the privity requisite to enforce a restrictive covenant, a party need only show that his property derives from the original grantor who imposed the covenant and whose property was benefited thereby, and concomitantly, that the party to be burdened derives his property from the original grantee who took the property subject to the restrictive covenant. (See, Orange & Rockland Utils. v Philwold Estates, 52 NY2d 253, 263; Nicholson v 300 Broadway Realty Corp., 7 NY2d 240, 245; Neponsit Prop. Owners’ Assn. v Emigrant Indus. Sav. Bank, 278 NY 248, 261.) This “vertical privity” arises wherever the party seeking to enforce the covenant has derived his title through a continuous lawful succession from the original grantor. (See, 5 Powell, The Law of Real Property H 673 [2] [c], at 60-64; Clark, Real Covenants and Other Interests Which “Run With Land”, at 111-137 [2d ed 1947]; 4A Warrens’ Weed, NY Real Property, Restrictive Covenants § 3.05, at 28-29 [4th ed].)

Here, the undisputed facts establish the requisite vertical privity. Plaintiff Malley derives title to his property from Brown Brothers. The latter emburdened the property conveyed to defendants’ predecessor by subjecting the conveyance to the restrictive covenant in question, and this covenant, in turn, accrued to the benefit of the property retained by Brown Brothers, including that lot ultimately obtained by Malley. Additionally, the succession of conveyances from Brown Brothers to Malley was continuous and lawful. Nothing in the record indicates otherwise. Likewise, the succession of conveyances to defendants was continuous and lawful, and each transfer was subject to the covenant in question originally imposed by Brown Brothers upon defendants’ predecessor in title. Vertical privity requires nothing more.

Finally, contrary to defendants’ contention, plaintiff Malley’s right to enforce the restrictive covenant does not depend upon his demonstrating a common plan or scheme. Indeed, once the requisite vertical privity has been established, the existence of a plan or scheme need not be determined. Rather, it is sufficient that the surrounding circumstances manifest the original grant- or’s intent that the covenant run with the land. (Vogeler v Alwyn Improvement Corp., 247 NY 131, 136-137; see, Orange & Rockland Utils. v Philwold Estates, supra, at pp 262-263; Bristol v Woodward, 251 NY 275, 284; Booth v Knipe, 225 NY 390, 396; Who May Enforce Restrictive Covenant or Agreement as to Use of Real Property, Ann., 51 ALR3d 556,568-569,580-582; Powell, supra, at 1Í 673 [2] [b]; 4A Warrens’ Weed, supra, Restrictive Covenants § 19.08.)

Here, the nature of the covenant as one running with the land is clearly revealed by the following: the language of the covenant in defendants’ chain of title speaks in terms of perpetuity — i.e., “no double house * * * shall ever be built” (see, Powell, supra, at f 673 [2] [b]; Restatement of Property § 531 comment d; cf. Booth v Knipe, supra, at p 395); the land originally retained — i.e., including that now owned by Malley — necessarily benefited from the covenant (see, Orange & Rockland Utils. v Philwold Estates, supra, at p 262; Post v Weil, 115 NY 361; Powell, supra, at H 673 [2] [b]); every conveyance and other relevant instrument of Brown Brothers, the original grantor, included in the record contains an identical or similar covenant; and, indeed, every conveyance in each of the parties’ chain of title contains the same either explicitly or by unmistakable reference. There is no requirement to establish that, in addition to the foregoing, there existed a common scheme or plan covering every deed from the original grantor of the originally entitled Browncroft Extension.

We have considered defendants’ other arguments and find them to be without merit.

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

Chief Judge Wachtler and Judges Meyer, Simons, Kaye and Alexander concur.

Order affirmed, with costs.


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    In the Matter of Scott, Sardano & Pomeranz, Appellant-Respondent, v Records Access Officer of City of Syracuse et al., Respondents-Appellants.
    Argued April 23, 1985;
    decided June 4, 1985

      POINTS OF COUNSEL

      Anthony N. Mammone and Roger Scott for appellant-respondent.
    I. The law firm is entitled to unimpeded disclosure under the Freedom of Information Law (FOIL). (Matter of von Wiegen, 63 NY2d 163; Erzhoznik v City of Jacksonville, 422 US 205; Central Hudson Gas & Elec. Corp. v Public Serv. Commn., 447 US 557; Bates v State Bar of Ariz., 433 US 350; Virginia Pharmacy Bd. v Virginia Consumer Council, 425 US 748; Ohralik v Ohio State Bar Assn., 436 US 447; Matter of New York Veteran Police Assn. v New York City Police Dept., 92 AD2d 772; Associated Press v United States, 326 US 1.) II. Public Officers Law § 66-a is not a limitation to disclosure under FOIL. (Matter of von Wiegen, 63 NY2d 163; Matter of Egan, 205 NY 147; Matter of Blandford v McClellan, 173 Misc 15; Matter of Werfel v Fitzgerald, 23 AD2d 306; Matter of New York Post Corp. v Leibowitz, 2 NY2d 677; Holton v Board of Supervisors, 245 App Div 144; Matter of Romanchuk v County of Westchester, 42 AD2d 783, 34 NY2d 906; Matter of Stenstrom v Harnett, 131 Misc 75, affd sub nom. People ex rel. Stenstrom v Harnett, 224 App Div 127, 249 NY 606; Hale v City of New York, 251 App Div 826.) III. Public policy concerns dictate that the disclosure in the present case should be without restriction. (Virginia Pharmacy Bd. v Virginia Consumer Council, 425 US 748; Central Hudson Gas & Elec. Corp. v Public Serv. Commn., 447 US 557; Matter of von Wiegen, 63 NY2d 163; Bates v State Bar of Ariz., 433 US 350.)

      David M. Garber, Corporation Counsel (Robert J. Jenkins of counsel), for respondents-appellants.
    I. The Scott law firm is not entitled to access under Public Officers Law § 66-a, and therefore, the petition should be dismissed in its entirety. (Yungworth v City of New York, 92 Misc 2d 1087; Matter of Wessberg v Beckmann, 21 Misc 2d 382; Matter of Romanchuk v County of Westchester, 42 AD2d 783, 34 NY2d 906; Kruger v County of Nassau, 53 Misc 2d 166; Matter of Van Allen v McCleary, 27 Misc 2d 81; Matter of Dillon v Cahn, 79 Misc 2d 300; Matter of Blandford v McClellan, 173 Misc 15; Matter of Stenstrom v Harnett, 131 Misc 75, affd sub nom. People ex rel. Stenstrom v Harnett, 224 App Div 127, 249 NY 606; Matter of Steger v Farrell, 35 Misc 2d 614; Rozler v Franger, 61 AD2d 46, 46 NY2d 760.) II. Under the Freedom of Information Law, the police department may deny the Scott law firm’s demand for wholesale access. (Matter of Person-Wolinsky Assoc. v Nyquist, 84 Misc 2d 930; Matter of Goodstein v Shaw, 119 Misc 2d 400; Matter of Nicholas, 117 Misc 2d 630; Wine Hobby USA v United States Internal Revenue Serv., 502 F2d 133; HMG Mktg. Assoc. v

      Freeman, 523 F Supp 11; Ohralik v Ohio State Bar Assn., 436 US 447.) III. Assuming, arguendo, that disclosure is proper, the Scott law firm is not entitled to an award of attorneys’ fees. IV. Appellant’s constitutional argument should not be considered. (Wein v Levitt, 42 NY2d 300; Matter of Corning v Donohue, 29 NY2d 209.)
   OPINION OF THE COURT

Jasen, J.

Petitioner, a law firm whose practice includes personal injury litigation, sought access to motor vehicle accident reports maintained by respondent police department. When its several demands went unanswered, petitioner brought an article 78 proceeding in the nature of mandamus to compel access to the reports pursuant to the Freedom of Information Law (Public Officers Law art 6). Respondents moved to dismiss the petition on the grounds that, inter alia, petitioner had failed to demonstrate that it possessed the requisite interest under Public Officers Law § 66-a to justify access to the reports. In opposition to the respondents’ motion, petitioner stated that it wished to inspect the accident reports in order “to obtain information crucial to the prosecution (or defense) of negligence actions * * * to notify parties involved of their rights under the insurance laws (no-fault) * * * [and] to advise victims that legal services are available to them.”

Special Term denied the motion and ordered respondents to serve an answer. Thereafter, the court dismissed each of respondents’ defenses and granted the petition in all respects — except for petitioner’s request for attorneys’ fees which was denied — finding that petitioner’s intended use of the reports constituted sufficient interest therein to satisfy the statutory requirements and that access would not constitute an unwarranted invasion of the privacy of the persons named in the reports. The Appellate Division modified the judgment of Special Term, holding that, while petitioner was entitled to access, the privacy interests of the accident victims required that their names and addresses be deleted from the I reports made available for inspection. The parties cross-appealed to this court. We now affirm.

As this court has previously explained, under the Freedom of Information Law all records of governmental agencies are presumptively available for public inspection and copying, without regard to the status, need, good faith or purpose of the applicant requesting access. (Matter of Farbman & Sons v New York City Health & Hosps. Corp., 62 NY2d 75, 79-80.) In order to insure the maximum public access to government records, full disclosure is compelled unless the agency can demonstrate that the requested records fall within one of eight categories of exemptions which, moreover, are to be narrowly interpreted. (Public Officers Law § 87 [2]; Matter of Farbman & Sons v New York City Health & Hosps. Corp., supra; Matter of Washington Post Co. v New York State Ins. Dept., 61 NY2d 557, 566-567; Matter of Westchester Rockland Newspapers v Kimball, 50 NY2d 575, 580; Matter of Fink v Lefkowitz, 47 NY2d 567, 571.)

Hence, contrary to respondents’ contention, petitioner’s entitlement to the requested accident reports is not contingent upon the showing of some cognizable interest other than that inhering in being a member of the public. (Cf. Matter of John P. v Whalen, 54 NY2d 89, 99.) Public Officers Law § 66-a does not require a different result. Enacted more than 30 years prior to the Freedom of Information Law, section 66-a was intended to open police records of accidents to public inspection — not to impose additional restrictions to access — by explicitly permitting examination by all persons “having an interest therein”. (See generally, Legislative Bill Jacket, L 1941, ch 839; 7th Ann Report of NY Judicial Council, 1941, at 45-46.) The Freedom of Information Law, as originally enacted (L 1974, ch 578) and later amended (L 1977, ch 933), liberalized public access to government records by obviating the application’s showing of an “interest therein” as otherwise might be required by section 66-a. Consequently, an evaluation of petitioner’s purposes for seeking disclosure is irrelevant in deciding whether it is entitled thereto.

Moreover, the interest requirement of section 66-a cannot fairly be deemed an exception to the disclosure provisions of the Freedom of Information Law. The eight categories of exceptions enumerated in Public Officers Law § 87 (2) include one for those “records or portions thereof that * * * are specifically exempted from disclosure by state or federal statute”. (§ 87 [2] [a].) While section 66-a standing alone, prior to enactment of the Freedom of Information Law, did require disclosure of accident reports only to those applicants having an “interest therein”, and, by inference, did not mandate access where the requisite interest was not shown, it cannot be said that this latter equivocal implication, especially when narrowly construed, constitutes the kind of specific statutory exemption permitting a denial of access under the Freedom of Information Law. (Cf. Matter of Farbman & Sons vNew York City Health & Hosps. Corp., supra, at pp 80-81; Matter of Washington Post Co. v New York State Ins. Dept., supra, at pp 566-567.)

Nevertheless, petitioner’s entitlement to access does not necessarily entitle it to the reports in their entirety. Indeed, portions of the reports made available to petitioner should be expunged to protect the privacy of the accident victims. (Cf. Matter of Washington Post Co. v New York State Ins. Dept., supra, at p 567; Matter of Fink v Lefkowitz, supra, at p 571.) As one of the eight categories of exceptions, the Freedom of Information Law exempts from disclosure “records or portions thereof that * * * if disclosed would constitute an unwarranted invasion of personal privacy under the provisions of subdivision two of section eighty-nine of this article”. (Public Officers Law § 87 [2] [b] [emphasis added].) In turn, section 89 (2) precludes, inter alia, as such an “unwarranted invasion”, the release of names and addresses to be used for commercial purposes. It permits, however, disclosure of the records involved where those identifying details are deleted. (§ 89 [2] [a], [b] [iii]; [c] [i].)

In view of petitioner’s stated intention — i.e., direct mail solicitation of accident victims — the application of these privacy-protective provisions cannot be gainsaid. Consequently, as the Appellate Division correctly held, while the accident reports cannot be withheld from petitioner, the names and addresses of the victims must be deleted before the reports are made available.

Accordingly, the order of the Appellate Division should be affirmed, without costs.

Chief Judge Wachtler and Judges Meyer, Simons, Kaye and Alexander concur; Judge Titone taking no part.

Order affirmed, without costs.

      . Of the eight categories of exemptions enumerated in public Officers Law § 87 (2), the two which are relevant to this appeal provide as follows:
      “2. Each agency shall, in accordance with its published rules, make available for public inspection and copying all records, except that such agency may deny access to records or portions thereof that:
      “(a) are specifically exempted from disclosure by state or federal statute;
      “(b) if disclosed would constitute an unwarranted invasion of personal privacy under the provisions of subdivision two of section eighty-nine of this article”.

      . Public Officers Law § 66-a relied upon by respondents provides: “Notwithstanding any inconsistent provisions of law, general, special or local, or any limitation contained in the provision of any city charter, all reports and records of any accident, kept or maintained by the state police or by the police department or force of any county, city, town, village or other district of the state, shall be open to the inspection of any person having an interest therein, or of such person’s attorney or agent, even though the state or a municipal corporation or other subdivision thereof may have been involved in the accident; except that the authorities having custody of such reports or records may prescribe reasonable rules and regulations in regard to the time and manner of such inspection, and may withhold from inspection any reports or records the disclosure of which would interfere with the investigation or prosecution by such authorities of a crime involved in or connected with the accident.” (Emphasis added.)

      . Public Officers Law § 89 (2) specifically provides for the protection of personal privacy within the general disclosure scheme of the Freedom of Information Law as follows:
      “2. (a) The committee on public access to records may promulgate guidelines regarding deletion of identifying details or withholding of records otherwise available under this article to prevent unwarranted invasions of personal privacy. In the absence of such guidelines, an agency may delete identifying details when it makes records available.
      “(b) An unwarranted invasion of personal privacy includes, but shall not be limited to:
      “i. disclosure of employment, medical or credit histories or personal references of applicants for employment;
      “ii. disclosure of items involving the medical or personal records of a client or patient in a medical facility;
      “iii. sale or release of lists of names and addresses if such lists would be used for commercial or fund-raising purposes;
      “iv. disclosure of information of a personal nature when disclosure would result in economic or personal hardship to the subject party and such information is not relevant to the work of the agency requesting or maintaining it; or “v. disclosure of information of a personal nature reported in confidence to an agency and not relevant to the ordinary work of such agency.
      “(c) Unless otherwise provided by this article, disclosure shall not be construed to constitute an unwarranted invasion of personal privacy pursuant to paragraphs (a) and (b) of this subdivision:
      “i. when identifying details are deleted;
      “ii. when the person to whom a record pertains consents in writing to disclosure;
      “iii. when upon presenting reasonable proof of identity, a person seeks access to records pertaining to him.” (See also, § 89 [2-a].)


author: Chief Judge Wachtler. Alexander, J.

text:
    In the Matter of Totem Taxi, Inc., Appellant, v New York State Human Rights Appeal Board, Respondent.
    Argued February 12, 1985;
    decided June 6, 1985
    POINTS OF COUNSEL

      William Gray for appellant.
    I. The administrative tribunal was incorrect when it determined that a violation of Executive Law § 296 (2) (a) had occurred when one of Totem Taxi’s cab drivers used a racial epithet during an argument with a passenger in the light of the uncontradicted testimony that the driver was disciplined and transportation was immediately provided by another of petitioner’s cabs. II. It was improper for the administrative tribunal to award damages to the complainants when they showed no actual damages and testified that they continued to use petitioner’s service after an incident involving racial name calling by both sides. (Matter of State Div. of Human Rights v Luppino, 35 AD2d 107, 29 NY2d 558; Matter of Maskal v State of New York, Executive Dept., Div. of Human Rights, 36 AD2d 46; Batavia Lodge No. 196, Loyal Order of Moose v New York State Div. of Human Rights, 35 NY2d 143; Cullen v Nassau County Civ. Serv. Commn., 53 NY2d 492.) III. The administrative tribunal was incorrect in holding petitioner liable for the conduct of a driver who acted outside of the scope of his employment during a private argument, contrary to his employer’s interests and stated policies and who was disciplined for such behavior. (State Div. of Human Rights v Henderson, 49 AD2d 1026; State Div. of Human Rights v General Motors Corp., 78 AD2d 1006, affd sub nom. Matter of General Motors Corp. v State Human Rights Appeal Bd., 54 NY2d 905; Matter of State Univ. of N. Y. v State Human Rights Appeal Bd., 81 AD2d 688, 55 NY2d 896; Corne v Bausch & Lomb, 390 F Supp 161; Howard v National Cash Register Co., 388 F Supp 603; Johnson v Glick, 481 F2d 1028; Hart v Sullivan, 84 AD2d 865, 55 NY2d 1011; Monell v New York City Dept. of Social Servs., 436 US 658; Smith v County of Livingston, 69 AD2d 993.) IV. The substantial delays beyond the statutory time tables set in Executive Law § 297 which were unexplained by the Division of Human Rights deprived it of jurisdiction and require that the complaints be dismissed. (Matter of Sarkisian Bros. v State Div. of Human Rights, 48 NY2d 816; Board of Educ. v State Div. of Human Rights, 53 AD2d 1043,42 NY2d 862; State Div. of Human Rights v Bethlehem Steel Corp., 86 AD2d 977.)

      Sara Toll East and Roberto Albertorio for respondent.
    I. The court below correctly confirmed the Division’s finding that the Human Rights Law was violated when a Totem Taxi driver was abusive to complainants because of their race and color. (Matter of Imperial Diner v State Human Rights Appeal Bd., 52 NY2d 72.) II. The court below correctly found that Totem Taxi is responsible for the malicious conduct of its driver which caused four passengers mental anguish. (Hudson Tr. Lines v State Human Rights Appeal Bd., 47 NY2d 971; Batavia Lodge No. 196, Loyal Order of Moose v New York State Div. of Human Rights, 35 NY2d 143; Matter of Avis-High Bennett Rent-A-Car v State Human Rights Appeal Bd., 40 AD2d 992; State Div. of Human Rights v Henderson, 49 AD2d 1026; Matter of General

      Motors Corp. v State Human Rights Appeal Bd., 54 NY2d 905; Matter of State Univ. of N. Y. v State Human Rights Appeal Bd., 81 AD2d 688; Hart v Sullivan, 84 AD2d 865, 55 NY2d 1011; Corne v Bausch & Lomb, 390 F Supp 161; Anderson v Fidelity & Cas. Co., 228 NY 475; Stewart v Brooklyn & Crosstown R.R. Co., 90 NY 588; Dwinelle v New York Cent. & Hudson R. R. Co., 120 NY 117.) III. The court below correctly found that because complainants suffered mental anguish, humiliation and emotional trauma as the direct result of the driver’s misconduct, the award of compensatory damages was proper. (Batavia Lodge No. 196, Loyal Order of Moose v New York State Div. of Human Rights, 35 NY2d 143; 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176; Cullen v Nassau County Civ. Serv. Commn., 53 NY2d 492; Albermarle Paper Co. v Moody, 422 US 405; Catalina Beach Club v State Div. of Human Rights, 95 AD2d 766.) IV. The statutory time limits do not shelter Totem because Totem has not been injured, but denial of a remedy to complainants would violate the 14th Amendment. (Logan v Zimmerman Brush Co., 455 US 422.)
   OPINION OF THE COURT

Chief Judge Wachtler.

The question on this appeal is whether an employer can be held liable in damages pursuant to the State Human Rights Law (Executive Law § 296) for the discriminatory act of an employee when there has been no showing that the employer approved of, or acquiesced in, the employee’s act. The employer who was held liable below has appealed by leave of this court.

On January 5,1980 four black women, who had been visiting a relative at St. Joseph’s Hospital in Elmira, called Totem Taxi for a cab to take them home. When the women entered the cab, operated by one of Totem’s employees, one of the women told the driver she wanted to go to College Avenue. Another asked him to stop at DeWitt Avenue. At this point the driver said in a belligerent and nasty tone: “Do you people know where you want to go? * * * Why don’t you make up your minds”. One of the passengers said: “We don’t have to take this type of harassment” and left the cab followed by the others. When they had exited the cab the driver said: “You bunch of niggers make me sick”. One of the women replied: “You whities make me sick”. The driver then got out of the cab, approached that woman and threatened to knock her teeth down her throat. The women returned to the hospital and again called Totem, the only cab service in the city, and requested another cab which took them home without incident.

It was found by the hearing officer to be the policy of Totem Taxi to treat all persons with decency and courtesy regardless of color or religion. When the president of the corporation learned of this incident he apologized “profusely” to the complaining passenger and suspended the driver for several months.

Each of the passengers later filed a complaint with the State Division of Human Rights claiming that she had been subjected to an unlawful discriminatory practice relating to a public accommodation in violation of this State’s Human Rights Law (Executive Law art 15). After a hearing the charge was sustained. It was found that the taxi cab driver was guilty of discriminatory acts and that the company was responsible. The hearing officer stated that the “inability [of the employer] to have absolute control over the actions of all of his drivers” together with the immediate apology and suspension of the offending driver “must be considered” but only in mitigation of damages. Totem was held liable for the driver’s insulting behavior because it “had an employer-employee relationship with [the driver] and had the duty of hiring drivers who would not discriminate”. The hearing officer held that each of the complainants had suffered compensable damages in the amount of $500. This was reduced to $250 because of the “mitigating circumstances”.

The employer appealed the Division’s order to the Human Rights Appeal Board. The four members of the Board were evenly divided on the question as to whether the employer could be held liable under the statute solely on the basis of respondeat superior. Because the Board was unable to obtain a majority vote it determined that the Division’s order remained in effect.

The employer then commenced this proceeding seeking judicial review (Executive Law § 298) raising a number of issues, all of which were rejected by the Appellate Division. With respect to the employer’s liability for the racial slurs of its driver, the court found that damages were justified by petitioner’s status as a common carrier. The court stated: “Significantly, the Court of Appeals recently held in Hudson Tr. Lines v State Human Rights Appeal Bd. (47 NY2d 971) that a bus company was liable for the unlawful discriminatory acts of its bus driver even in the absence of proof showing knowledge or acquiescence on the company’s part.” (98 AD2d 923, 924.)

On this appeal petitioner notes that in a number of recent decisions, affirmed by this court, it has been held that an employer is not liable under the State Human Rights Law for the discriminatory acts of an employee, unless the employer had knowledge of or acquiesced in the discriminatory conduct (Hart v Sullivan, 55 NY2d 1011, affg 84 AD2d 865; Matter of State Univ. of N. Y. v State Human Rights Appeal Bd,., 55 NY2d 896, affg 81 AD2d 688; Matter of General Motors Corp. v State Human Rights Appeal Bd., 54 NY2d 905, affg 78 AD2d 1006). Because in this case the agency did not demonstrate that the employer approved of, or acquiesced in, the employee’s act, the petitioner urges that the Division’s determination cannot be sustained.

The Division contends that these cases are distinguishable because they all dealt with the employer’s responsibility for the discriminatory acts of one employee against another (Executive Law § 296 [1]) and not with discrimination by employees against members of the public in connection with the use of public accommodations (Executive Law § 296 [2]). In the latter type of case it is urged that a different and more demanding rule is applicable.

First, the Division argues that the law is settled that the statute imposes strict liability on the employer for all discriminatory acts of its employees in connection with public accommodations. The Division relies on our decisions in Hudson Tr. Lines v State Human Rights Appeal Bd. (47 NY2d 971) and Batavia Lodge No. 196, Loyal Order of Moose v New York State Div. of Human Rights (35 NY2d 143), noting that in each of those cases, involving public accommodations, the employer was held liable even though there was no showing that the employer had knowledge of or acquiesced in the employee’s discriminatory act. In those cases, however, no issue was raised concerning the employer’s liability for the acts of the employee (see also, 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176 [dealing with discrimination in housing, Executive Law § 296 (5)]). When in subsequent cases the issue has been raised, in the context of employment discrimination, this court has uniformly held that the employer cannot be found to have violated the statute solely because of an employee’s discriminatory act; in order to hold the employer responsible the agency must demonstrate that the employer approved of, or acquiesced in, the employee’s conduct (Hart v Sullivan, supra; Matter of State Univ. of N. Y. v State Human Rights Appeal Bd., supra; Matter of General Motors Corp. v State Human Rights Appeals Bd., supra).

Secondly, the Division argues that this rule should not be extended to discrimination involving public accommodations, but that a rule of strict employer liability should apply by analogy and extension of common-law concepts relating to common carriers, innkeepers, and the like. However, we are dealing here with an independent statutory remedy which is not governed by common-law principles (Batavia Lodge No. 196, Loyal Order of Moose v New York State Div. of Human Rights, supra). Although our prior decisions defining the scope of an employer’s liability under the statute happened to involve employment discrimination, there is no indication that the Legislature intended to impose greater liability on the employer when the employee’s act relates to public accommodations.

Unlawful discriminatory practices are defined in Executive Law § 296. Subdivision 1 of that statute prohibits discrimination in employment and, by its terms, applies only to “an employer or licensing agency”. Subdivision 2 of the statute prohibits discrimination in “any place of public accommodation”, which broadly encompasses public services and conveniences (Matter of United States Power Squadrons v State Human Rights Appeal Bd., 59 NY2d 401,410) and specifically includes “all public conveyances operated on land or water or in the air” (Executive Law § 292 [9]). By its terms, subdivision 2 applies to “any person, being the owner, lessee, proprietor, manager, superintendent, agent or employee of any place of public accommodation”. Neither subdivision provides that a person who employs one who commits a discriminatory act is also guilty of a violation irrespective of fault. If there is any ambiguity in the statute with respect to employer liability for employees’ acts it is not to be found in the subdivision dealing with public accommodations. That subdivision separately identifies the owner or proprietor and the employee as persons independently subject to the statute and expressly imposes liability only on the person who actually commits the discriminatory act. Thus the employer cannot be held liable for an employee’s discriminatory act unless the employer became a party to it by encouraging, condoning, or approving it.

In this case there is no evidence that the employer was guilty in that regard. On the contrary the evidence shows, and the hearing officer found as a fact, that the employer had adopted an antidiscrimination policy before this isolated incident occurred, and when the president of the company learned of it he immediately apologized and suspended the offending driver. Although an employer may be liable for a single act of discrimination to which the employer is a party (Matter of Imperial Diner v State Div. of Human Rights, 52 NY2d 72), it cannot be rationally concluded under the present statute that an employer has been guilty of discrimination whenever any employee at any level commits, out of personal pique, a disapproved and unanticipated discriminatory act.

Finally we note that we are all in agreement that this is a most lamentable incident. The passengers were subjected to ill-mannered abuse, which is not only embarrassing and demeaning to them but to all civilized persons who hear of it, including apparently the owner of the taxi cab in which it occurred. It is the kind of conduct which the Human Rights Law condemns and seeks to eliminate. It may be, as suggested by the concurring opinion, that this can best be accomplished by holding the employer responsible without any showing of fault, or by presuming him guilty until he proves his innocence, a burden arguably met in this case. The question, however, as to whether such measures are needed to insure the basic fairness which the Human Rights Law is designed to encourage involves policy decisions solely within the province of the Legislature.

Accordingly, the order of the Appellate Division should be reversed, the petition granted, and the determinations of the State Human Rights Division and the State Human Rights Appeal Board annulled.

Alexander, J.

(concurring). I believe the court’s holding today is an unwarranted extension of its prior holdings regarding the liability of an employer for the discriminatory acts of an employee. Nevertheless, I am constrained, in the face of those prior holdings and the absence of a legislative response thereto, to concur in the result reached. I urge the court however, to reexamine the rule enunciated in these holdings and today’s extension thereof. Additionally, I invite the Legislature’s attention to the fact that the rule severely limits the availability of the New York State Human Rights Law to the citizens of our State as a means of redressing discrimination, both in the work place and in places of public accommodation.

The court today reaffirms the rule previously enunciated in cases involving employment discrimination that an “employer cannot be found to have violated the statute [Executive Law § 296] solely because of an employee’s * * * discriminatory act; in order to hold the employer responsible the agency must demonstrate that the employer approved of, or acquiesced in, the employee’s conduct” (majority opn, at p 304). The majority now extends this rule to common carriers and places of public accommodations, resort or amusement identified in Executive Law § 296 (2), and holds that they similarly cannot be held liable for the discriminatory acts of a manager, superintendent, agent or employee unless it is demonstrated that the owner, lessee or proprietor approved of or acquiesced in the discriminatory conduct of the manager, superintendent, agent or employee. Thus, the right of a victim of such discrimination to obtain redress, henceforth, for the indignation, harm and debasement resulting from the discriminatory conduct of an individual manager, superintendent, agent or employee effectively will be restricted to proceeding against the specific, identified actor, for rare will be the case where the victim will even know about the condonation of or acquiescence in such conduct by the owner, lessee or proprietor. There is nothing in the legislative history of this statute that warrants such a curtailment of the right of redress nor does the plain language of the statute require it.

It is the clear public policy of this State to combat discrimination in the work place and in places of public accommodation, resort or amusement, and to seek its eradication in all of its varied forms. To achieve that result, “the statute is to be ‘construed liberally for the accomplishment of the purposes thereof’ [Executive Law § 300]” (300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 183).

While there may be some justification for requiring that there be employer “awareness of and acquiescence in discriminatory acts” by one employee against another in order for the employer to be answerable for such discrimination in the work place (but see, Horn v Duke Homes, 755 F2d 599 [7th Cir 1985]; Vinson v Taylor, 753 F2d 141 [DC Cir 1985]; see also, Note, Sexual Harassment Claims of Abusive Work Environment Under Title VII, 87 Harv L Rev 1449 [1984]), there is no justification for exempting a common carrier employer or the owner of a place of public accommodation, resort or amusement from responsibility for discriminatory acts visited upon the public by its employee simply because of the inability to establish employer awareness of or acquiescence in such discriminatory conduct.

We have not extended such an exemption in previous cases. In Hudson Tr. Lines v State Human Rights Appeal Bd. (47 NY2d 971) we affirmed the Commission’s determination holding the employer liable1 for the employee’s conscious discriminatory conduct even though the record “showed that the driver’s orders for the [complainants] to go to the end of the line were inconsistent with company policy and included a refusal to transport them at all” (Hudson Tr. Lines, supra, at p 973). Similarly, in 300 Gramatan Ave. Assoc. (45 NY2d 176, supra), we reinstated a Human Rights Appeal Board determination that the owner of the apartment building was guilty of unlawful discrimination where it was clear that the “discriminatory acts” at issue were those of the superintendent and the managing agent. In Batavia Lodge No. 196, Loyal Order of Moose v New York State Div. of Human Rights (35 NY2d 143), we upheld a Division determination finding the Lodge guilty of unlawful discrimination based solely upon evidence of its bartender-employee’s action in denying service to the complainants.

The court’s ruling today that the subdivision dealing with public accommodations “expressly imposes liability only on the person who actually commits the discriminatory act” (majority opn, at p 305) is, in my view, a strained interpretation of the statute and clearly does not further the legislative purpose of eliminating discrimination in our State. On the contrary, it creates an enormous loophole in the statute and opens the door to circumvention of the statute by employers, owners, lessees and proprietors through the simple expedient of looking the other way.

The legislative intent and public policy would be better served by a rule that places the burden upon the employer to affirmatively demonstrate that all reasonable steps had been taken to insure against discriminatory conduct by its employees, failing which, its liability would be established.

Such a rule, whether based on a risk-allocation theory that the employer rather than the innocent victim of discrimination should be made to bear the costs of the discrimination by its employees as a required cost of doing business, since the employer is a more efficient cost avoider than the injured plaintiff, or upon a public policy determination that discrimination can best be eradicated by enforcing a strict liability rule that insures compensation for victims and creates an incentive for the employer to take the strongest possible affirmative measures to prevent the hiring and retention of employees who engage in discriminatory acts, would better serve the goal of eradicating discrimination in our State.

Judges Jasen, Simons and Kaye concur with Chief Judge Wachtler; Judge Alexander concurs in a separate opinion in which Judge Meyer concurs; Judge Titone taking no part.

Order reversed, with costs, petition granted and determinations of the State Division of Human Rights and the State Human Rights Appeals Board annulled.