author: Simons, J. Meyer, J.

text:
    The People of the State of New York, Respondent, v Patrick Lawrence, Appellant.
    Argued November 20, 1984;
    decided December 27, 1984

      POINTS OF COUNSEL

      Barry Stendig and William E. Hellerstein for appellant.
    Appellant was denied his statutory right to a speedy trial under CPL 30.30 when 218 days, chargeable to the People, elapsed between his arraignment in Criminal Court and the People’s readiness for trial. (People v Vega, 80 AD2d 867; People v Bermudez, 84 Misc 2d 1071; People v Key, 45 NY2d 111; People v De Rosa, 42 NY2d 872; People v Consolazio, 40 NY2d 446; People v De Jesus, 42 NY2d 519; People v Jones, 81 AD2d 22; People v Patterson, 39 NY2d 288; People v Hamilton, 46 NY2d 932; People v Sturgis, 38 NY2d 625; People v Osgood, 52 NY2d 37.)

      Robert M. Morgenthau, District Attorney (Oscar Garcia-Rivera and Robert M. Pitler of counsel), for respondent.
    I. Defendant’s guilt was proven beyond a reasonable doubt. II. Defendant’s speedy trial rights were not violated. (People v Key, 45 NY2d 111; People v De Rosa, 42 NY2d 872; People v Rodriguez, 50 NY2d 553; People v Lopez, 28 NY2d 148; People v Selikoff, 35 NY2d 227; People v O’Brien, 56 NY2d 1009; People v Sturgis, 38 NY2d 625; People v Fuggazzatto, 62 NY2d 862; Sega v State of New York, 60 NY2d 183; People v Williams, 72 AD2d 950.)
   OPINION OF THE COURT

Simons, J.

Defendant has been convicted of attempted murder in the second degree, assault in the second degree and criminal possession of a weapon in the second degree. The charges arose out of a barroom incident during which defendant approached a seated patron without preface and grabbed him about the neck in a hammerlock. As he did so, he placed a revolver against the victim’s forehead and pulled the trigger. Fortunately, the victim deflected the gun while struggling to get free and the shot injured him only in one eye and one ear. Defendant fired two other shots before the gun emptied. One bullet lodged in the ceiling and the other struck the victim in the thigh.

Defendant has not challenged the finding of guilt on this appeal and the only issue before us is procedural, whether a defendant may, with the permission of the court, defer a motion to dismiss based upon speedy trial grounds until after entry of a guilty verdict. The question arises because when the Calendar Judge assigned this case to a trial part counsel announced that defendant wished to move to dismiss the indictment based upon denial of his statutory right to a speedy trial (CPL 30.30, subd 1, par [a]). The Calendar Judge deferred the motion and counsel submitted a written motion after the trial. The Judge hearing the motion at that time held the procedure proper but ruled against defendant on the merits of his claim. The Appellate Division affirmed the conviction, rejecting defendant’s speedy trial claim without comment, but remanded the matter for resentencing (97 AD2d 718). Defendant has been resentenced and the order of the Appellate Division is now before us for review.

The Criminal Procedure Law provides that a motion to dismiss an indictment based upon a claimed denial of the right to a speedy trial must be made prior to the commencement of trial or the entry of a plea of guilty (CPL 210.20, subd 1, par [g]; subd 2). An oral application is not sufficient (see People v Key, 45 NY2d 111, 116; People v De Rosa, 42 NY2d 872, 873). The motion must be made in writing and upon reasonable notice to the People (CPL 210.45, subd 1). Failure to follow the statutory procedure results in a waiver of the claim (People v Key, supra; People v De Rosa, supra; People v Adams, 38 NY2d 605; see, also, People v Selby, 53 AD2d 878, affd 43 NY2d 791). Concededly, defendant’s pretrial motion was not in writing. Indeed, without a transcript of the proceedings before the Calendar Judge, it is not clear whether counsel made an oral motion to dismiss at that time or merely stated his intentions. Because the motion was not timely and was not made in writing upon reasonable notice to the People, defendant waived his right to a dismissal on speedy trial grounds.

Defendant raises several points in opposition to a finding of waiver. First, he contends that the provisions of CPL 255.20 (subd 3) are applicable, thereby permitting the court to waive time requirements for certain motions. CPL 210.20 (subd 2) provides, however, that any motion except a motion based upon denial of the right to speedy trial should be made in the period specified in CPL 255.20 and, in the second sentence which does not refer to 255.20, that a speedy trial motion “must be made prior to the commencement of trial or entry of a plea of guilty.”

Under standard rules of construction, whenever there is a general and a particular provision in the same statute, the general does not overrule the particular but applies only where the particular provision is inapplicable (People v Mobil Oil Corp., 48 NY2d 192, 200; McKinney’s Cons Laws of NY, Book 1, Statutes, § 238). Inasmuch as the specific language of the statute directs that speedy trial motions must be made before commencement of trial or entry of a plea of guilty, neither the more general time provisions of 255.20 referred to in the first sentence of CPL 210.20 (subd 2) or the definitional section of CPL 255.10 should be read to expand the particular time provision for speedy trial motions.

Moreover, we find unpersuasive the contention in the dissent that the statute originally permitted the speedy trial motion to be made after the commencement of trial, and its view that no change was intended by the amendment (see dissenting opn, pp 209-210). When the Legislature amended the first sentence of CPL 210.20 (subd 2) to remove the time requirements for CPL 210.20 motions generally, it substituted a reference to CPL 255.20 and its discretionary provisions. When it amended the subdivision to delete the third sentence to remove the reference to the discretion of the court to entertain speedy trial motions after the commencement of trial, it did not add any similar reference to CPL 255.20 but left the statute in its present form. In the absence of any such reference, it may be assumed that the Legislature intended to distinguish speedy trial motions and that they intended that the motion should be made before trial commenced or a guilty plea was entered.

There is good reason for the distinction. The Legislature’s purpose in enacting CPL 255.20 was to regulate pretrial proceedings by requiring a single omnibus motion to be made promptly after arraignment and thus to avoid the proliferation experienced under prior procedure in which a defendant could bombard the courts and Judges with dilatory tactics continuing right up to the eve of trial (see 1972 Report of NY Judicial Conference Advisory Committee on the CPL, 1973 McKinney’s Session Laws of NY, pp 2076-2077). A 45-day period to make the motion was deemed reasonable and CPL 255.20 offered some flexibility for motions dependent on the outcome of prior motions or necessarily delayed for other good cause. Motions to dismiss on speedy trial grounds were exempt from the provisions of CPL 255.20, however, because it would be highly unusual that the statutory period of delay could elapse within 45 days of arraignment. Thus, although subdivision 2 expressly incorporated the 45-day time period and the flexibility of CPL 255.20 into the statute for all other motions, it did not do so for speedy trial motions. They may be made at any time before commencement of trial or entry of a plea of guilty.

Moreover there are several reasons why speedy trial motions, unlike other pretrial motions, should be made before commencement of trial. First, the unexcused period of delay, six months or 90 days as the case may be, from the date of the filing of an accusatory instrument until the District Attorney announces the indictment ready for trial, are facts of record fully known or knowable to the defendant before trial and it is difficult to conceive of anything that could change to improve or alter the validity of defendant’s claim after the District Attorney announces his readiness on the record. Second, most pretrial motions and many of those listed in CPL 210.20 relate to defects in the prior proceedings which may affect the validity of the indictment, bar the prosecution or, as in the case of discovery and suppression, influence the ultimate determination of guilt or innocence (CPL 210.20, subd 1; 255.10, subd 1). Thus, as in the illustrations cited by the dissent, there may be good reason to grant relief after trial has commenced, even up to the pronouncement of sentence. The issues involved in a speedy trial motion, however, do not implicate such questions and there is no reason to permit motions during or after trial to ensure that the verdict is not infirm. Third, it should be observed that a 30.30 motion is a matter of legislative grace. The statutory right to dismissal granted a defendant if the prosecutor is not ready for trial, unlike a constitutional claim for denial of a speedy trial, is based upon policy reasons and does not require consideration of prejudice to defendant (see Barker v Wingo, 407 US 514, 530; People v Taranovich, 37 NY2d 442, 445). If defendant is to avail himself of the benefits of CPL 30.30 then he should comply with the statutory requirements (see People v Sobotker, 61 NY2d 44). It makes little sense to squander the resources of the courts and the time and efforts of counsel, witnesses and jurors on a fool’s errand to determine guilt when the verdict may subsequently be vacated because of prosecutorial delay.

But even if we were to incorporate the provisions of CPL 255.20 and permit a court to entertain the motion for good cause at any time up to the imposition of sentence, we would necessarily find that the court abused its discretion as a matter of law in entertaining this motion (though it did not purport to exercise its discretion) because the record is devoid of any reason to grant defendant an extension of time to move. His counsel was well aware that he had grounds for the motion at least as early as October 9, 18 days before the case was sent to trial, and yet failed to submit it until after the trial. The only recognizable excuse for this failure was a one-day illness of defendant’s counsel on October 22. Manifestly, the motion could have been made before the commencement of trial and nothing in the record suggests any reason why it was not or why defendant should be excused for his failure to follow the explicit language of the statute as our decisions require (see People v Key, 45 NY2d 111, supra; People v De Rosa, 42 NY2d 872, supra). Unquestionably, he had an absolute right to make the motion on October 27, as the dissent notes. He also had the responsibility to make it and the court’s action in deferring the motion could not be characterized as “good cause” in any sense warranting an extension of counsel’s time to act under the provisions of CPL 255.20.

Defendant next contends that his rights have been preserved because the District Attorney failed to object to the Calendar Judge’s deferral of the motion until after trial on October 27. We disagree.

Generally, parties to litigation, even parties to a criminal prosecution, may adopt their own rules at trial by the simple expedient of failing to object to evidence offered or to except t;o instructions given the jury (see Matter of Brockway v Monroe, 59 NY2d 179,188; Martin v City of Cohoes, 37 NY2d 162; cf. Sega v State of New York, 60 NY2d 183, 190, n 2). Thus, there are decisions which have held the People bound by their failure to object to rulings of the court although the omission resulted in the imposition of a higher standard of proof upon them (see People v Malagon, 50 NY2d 954; People v Bell, 48 NY2d 913). Similarly, there are any number of statutory pretrial rights available to a criminal defendant which may be lost by inaction (e.g., the right to a preliminary hearing [CPL 180.10]; the right in some instances to testify before the Grand Jury [CPL 190.50, subd 5]; the right to move for discovery [CPL 240.30]; etc.). The burden rests on the parties to protect their own rights by asserting them at the time and in the manner that the Legislature prescribes. Thus, we attribute no significance in this case to the District Attorney’s failure to object on October 27 to the actions of the Calendar Judge. The statute places the initiative on the defendant to proceed as it directs and even if counsel did assert his claim orally before trial, there was no motion before the court or under consideration by it which called for opposition by the People. They objected when the written motion was submitted after the trial and that was sufficient. The requirements of the statute are based upon the strong public policy to further orderly trial procedures and preserve scarce trial resources. Neither the court nor the parties may restructure the statute to adopt a procedure that is more convenient for them at the moment by waiving its clear provisions (see People v Selikoff, 35 NY2d 227, 238, cert den 419 US 1122; People v Lopez, 28 NY2d 148, 152) or agreeing to preserve defendant’s rights (see People v O’Brien, 56 NY2d 1009; People v Di Raffaele, 55 NY2d 234)

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

Meyer, J.

(dissenting). Because, in my view, the majority’s restrictive reading of CPL 210.20 (subd 2) is clearly inconsistent with the intent of the Legislature, I respectfully dissent.

Article 255 deals with pretrial motions. CPL 255.10 (subd 1, par [a]) defines a pretrial motion “as used in this article” as “any motion by a defendant which seeks an order of the court: (a) dismissing an indictment pursuant to article 210”. CPL 210.20 (subd 1, par [g]) provides that “the superior court may, upon motion of the defendant, dismiss such indictment * * * upon the ground that: * * * (g) The defendant has been denied the right to a speedy trial”.

CPL 255.20 (subd 1) directs that, “Except as otherwise expressly provided by law * * * all pre-trial motions shall be served or filed within forty-five days after arraignment and before commencement of trial, or within such additional time as the court may fix upon application of the defendant made prior to entry of judgment.” The last clause of that sentence gives a superior court Judge the power to fix a time beyond 45 days and imposes no limitation on that power other than that defendant’s application be made prior to entry of judgment (i.e., imposition of séntence [CPL 1.20, subd 15]).

In addition to the discretion thus vested in the Trial Judge with respect to a pretrial motion, the second sentence of CPL 255.20 (subd 3) expressly provides that, “Any other pre-trial motion made after the forty-five day period may be summarily denied, but the court, in the interest of justice, and for good cause shown, may, in its discretion, at any time before sentence, entertain and dispose of the motion on the merits.” That provision unmistakably vests the Trial Judge with discretion “at any time before sentence, [to] entertain and dispose of the motion on the merits.” Here the affidavit of the Assistant District Attorney acknowledges that defendant’s counsel indicated on October 9, 1981 in the calendar part that he intended to file a 30.30 motion, and that on October 27, 1981, when the case was assigned to a trial part, “the calendar judge indicated that any 30.30 motion should be litigated after the trial, if necessary.” After trial, defendant’s counsel made a written motion pursuant to CPL 30.20 and 30.30 to dismiss for lack of a speedy trial. The Calendar Judge considered the application on the merits and denied it, and the Appellate Division affirmed.

The majority now affirms, not on the merits, but on the ground that the Calendar Judge had no authority to consider the merits. It does so on the basis of CPL 210.20 (subd 2), which provides that, “A motion pursuant to this section, except a motion pursuant to paragraph (g) of subdivision one, should be made within the period provided in section 255.20. A motion made pursuant to paragraph (g) of subdivision one must be made prior to the commencement of trial or entry of a plea of guilty.” It does so by reading the last sentence of that subdivision as an absolute time bar, notwithstanding that the reference to CPL 255.20 in the first sentence makes clear beyond peradventure that the Legislature was aware of both the provision for timely motions in CPL 255.20 (subd 1) and also of the discretion to consider untimely motions that is vested in the Trial Judge Icy both the first sentence of CPL 255.20 (subd 1) and the second sentence of CPL 255.20 (subd 3). But while the first sentence of CPL 210.20 (subd 2) expressly provides by law that a speedy trial motion need not be made within 45 days (because, of course, it cannot be), nothing in its second sentence or in the second sentence of CPL 255.20 (subd 3) or in the first sentence of CPL 255.20 (subd 1) indicates in any way that the discretion granted by the latter two provisions was not to apply to a speedy trial motion. The majority’s concern with which is the general and which specific is thus misguided, for that rule applies only where the two provisions are incompatible (People v McLaughlin, 93 Misc 2d 980,985-986; see Levine v Bornstein, 4 NY2d 241; People ex rel. Knoblauch v Warden, 216 NY 154, 156-157; McKinney’s Cons Laws of NY, Book 1, Statutes, §§ 97, 98, 238) and, as the foregoing discussion shows, there is no conflict between the authorization granted by CPL 255.20 (subd 3) to consider untimely motions and the reference in CPL 210.20 (subd 2) to CPL 255.20, which simply describes when a motion to dismiss on speedy trial grounds will be timely.

Indeed, the contrary is made indelibly clear when one tracks the language of CPL 210.20. Chapter 763 of the Laws of 1974 inserted article 255 into the Criminal Procedure Law. Prior to the adoption of that statute, CPL 210.20 (subd 2) contained three sentences. The first fixed the period of time for motions other than for dismissal on speedy trial grounds. The second (which read exactly as the present second sentence) provided that the latter motion “must be made prior to the commencement of trial or entry of a plea of guilty.” The third, however, in language almost identical with that of the second sentence of CPL 255.20 (subd 3) gave the Trial Judge discretion to entertain motions for dismissal on various grounds, including speedy trial violations, “at any time before sentence.” Only because! of the enactment of CPL 255‘.20 (subd 3) which consolidated in one provision the power to entertain all untimely “pretrial” motions was the third sentence of CPL 210.20 (subd 2) deleted, as was the analogous language in CPL 170.30 (subd 2) relating to motions to dismiss an information on grounds inclusive of denial of the right to a speedy trial, in CPL 240.30, relating to discovery, and in CPL 200.90, relating to bills of particulars.

Nor does the argument of the majority that posttrial consideration of a speedy trial motion squanders the resources of the court and involves all of the trial participants in a fool’s errand withstand analysis. A motion to dismiss on the ground that prosecution is barred by the Statute of Limitations (CPL 210.20, subd 1, par [f]) or in the interest of justice (id., par [i]) is subject to the same criticism; yet there can be no question that such a motion is a pretrial motion within the meaning of the second sentence of CPL 255.20 (subd 3). It is even more of a fool’s errand to permit, as CPL 210.20 (subd 1, par [b]), in combination with CPL 255.20 (subd 3), clearly does, the making after trial of a motion to dismiss on the ground that the evidence before the Grand Jury was not legally sufficient, when CPL 210.30 (subd. 6) makes appeal on such a ground impossible if there was legally sufficient trial evidence, and when the Trial Judge, if he dismisses after trial for insufficiency of the evidence before the Grand Jury has the power to direct resubmission of the matter to another Grand Jury (CPL 210.20, subd 4), thereby allowing the defendant to have another trial. Of course, such a scenario is unlikely, but it is possible under the statute, and that possibility demonstrates the fallacy in the majority’s interpretation of the statute.

Finally, the suggestion that the 30.30 motion is a matter of legislative grace, as to which, “unlike a constitutional claim for denial of a speedy trial” (majority opn, p 205), defendant must comply strictly with statutory requirements, is of no greater validity. CPL 210.20 (subd 2) makes no distinction between constitutional and statutory speedy trial motions. Either both may be made, in the Trial Judge’s discretion, at any time before sentence under CPL 255.20 (subd 3), or neither may be. And as is clear, from the wording of the statutes in question, from the absence of any legislative history to support the thesis of the majority and from the clear refutation of that thesis by the manner in which the changes made by chapter 763 of the Laws of 1974 were made, the Legislature did not intend what the majority now reads into CPL 210.20 (subd 2).

As an alternate reason for refusing to reach the merits, the majority states that in deferring the motion the Calendar Judge did not exercise discretion and that, in any event, her entertainment of the motion was an abuse of discretion as a matter of law because defendant had not demonstrated good cause. There being no other basis for deferral of the motion until after trial and no reason to believe that the Calendar Judge deliberately violated the statute, the necessary implication is that she acted in what she thought was the discretion vested in her by CPL 255.20 (subd 3) or CPL 210.20 (subd 2), or both. Moreover, under the second sentence of CPL 210.20 (subd 2), defendant had the absolute right to make his speedy trial motion on October 27, 1981, “prior to the commencement of trial.” Thus, the only possible abuse of discretion would be in the Judge’s acceptance of the written speedy trial motion after trial and ruling upon it on the merits. As to that, however, defendant’s counsel had good cause for the delay — the direction of the Calendar Judge that the motion “be litigated after the trial, if necessary”! Finally, even if we accept the majority’s premise that defendant’s counsel was obligated to show cause on October 27, there is nothing in the record to indicate the basis for the Calendar Judge’s direction to defer the motion until after trial. Whether she abused her discretion has never been raised or argued below. At the very least, therefore, we should remit for a hearing before holding that there was an abuse of discretion as a matter of law, for we have no way of knowing what basis defendant’s counsel advanced for requesting deferral of the motion until after trial.

In sum, the majority’s refusal to consider the merits of the speedy trial issue is without basis. Were the merits reached I would reverse, but this being a dissent, and the issue of importance to criminal procedure being the majority’s truncation of the power granted the superior court Judge by the Legislature, no useful purpose would be served by articulation of my reasons on the merits.

Chief Judge Cooke and Judges Jasen, Jones and Wachtler concur with Judge Simons; Judge Meyer dissents and votes to reverse in a separate opinion in which Judge Kaye concurs.

Order affirmed.

      . To be distinguished is the first sentence of the subdivision, which mandates that the Trial Judge consider appropriate pretrial motions if its conditions are met. Its language is: “Notwithstanding the provisions of subdivisions one and two hereof, the court must entertain and decide on its merits, at any time before the end of the trial, any appropriate pre-trial motion based upon grounds of which the defendant could not, with due diligence, have been previously aware, or which, for other good cause, could not reasonably have been raised within the period specified in subdivision one of this section or included within the single set of motion papers as required by subdivision two.”

      . The legislative history contains no such indication either (see 1972 Report of NY Judicial Conference Advisory Committee on the CPL, reprinted in 1973 McKinney’s Session Laws of NY, pp 2076-2077; 1973 Report of NY Judicial Conference Advisory Committee, reprinted in 1973 McKinney’s Session Laws of NY, pp 2080-2081; 1974 Report of NY Judicial Conference Advisory Committee, reprinted in 1974 McKinney’s Session Laws of NY, p 1828). Those Reports show that the Committee’s proposal was made because “[t]he proliferation of such motions, the possibility that different judges may be required to decide different motions in the same case, and the possibility that motions may be filed late for the purpose of delaying trial, all combine to create a situation needing a solution.” Nothing in the Reports suggests that it was intended to except speedy trial motions from the discretion granted by CPL 255.20 (subds 1, 3), nor is there anything in the legislative history of CPL 210.20 (subd 2) to suggest that its second sentence was intended to do more than fix the time within which a speedy trial motion would be timely. Moreover, as is developed below, the form of the amendment made by chapter 763 of the Laws of 1974 to CPL 210.20 clearly demonstrates the contrary.

      . The sentence read: “A motion made thereafter may be summarily denied, but the court, in the interest of justice and for good cause shown, may, in its discretion, encertain and dispose of the motion on the merits at any time before entry of a plea of guilty or commencement of trial if the motion is based ' upon a ground prescribed in paragraph (b) or (i) of subdivision one, or at any time before sentence if the motion is based upon any other ground.” Neither (b) nor (i) concern a speedy trial motion.


source: Caselaw Access Project

author: Chief Judge Cooke.

license: Public Domain

text:
    In the Matter of Action Electrical Contractors Co., Inc., Appellant, v Harrison J. Goldin, as Comptroller of the City of New York, et al., Respondents.
    Argued November 20,1984;
    decided December 27, 1984

      POINTS OF COUNSEL

      Alan M. Pollack, Irving Lampert and Andrew T. Heller for appellant.
    I. The City Comptroller’s construction of section 220 of the Labor Law that supplemental benefits may not be paid in cash or partly in cash and partly in benefits is contrary to and inconsistent with the legislative history and purposes of that statute. (Brang Co. v State Univ. Constr. Fund, 47 AD2d 178;
      Matter of Lancaster Dev. v Ross, 82 AD2d 1013; Uniformed Firefighters Assn. v Beekman, 52 NY2d 463; New York State Bankers Assn. v Albright, 38 NY2d 430; People v Ryan, 274 NY 149; Edenwald Contr. Co. v City of New York, 86 Misc 2d 711,47 AD2d 610; Matter of Gottlieb Contr. v Beame, 41 Misc 2d 1097; Gerzoff v Sweeney, 16 NY2d 206; Lafayette v Louisiana Power & Light Co., 435 US 389.) II. The City Comptroller’s arbitrary and capricious misconstruction of section 220 will result in a denial of due process and equal protection to appellant. III. The court below’s rejection of cash payments in lieu of partial supplements intended to protect the subject employees will actually result In the loss of their jobs.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Rosemarie Maldonado, Leonard Koerner, Judith A. Levitt and Caryn Hirshleifer of counsel), for Harrison J. Goldin, respondent.
    I. Petitioner’s failure to provide its employees with supplemental benefits in accordance with the prevailing practice in New York City constitutes a clear violation of section 220 of the Labor Law and a material breach of the public works contract. (Matter of Sky-way Roofing v County of Rensselaer, 103 Misc 2d 750, 79 AD2d 1078; Pilot Mechanical Corp. v Carroll, 94 Misc 2d 437; Matter of Gottlieb Contr. v Beame, 41 Misc 2d 1097; Matter of Lancaster Dev. v Ross, 82 AD2d 1013; Matter of Yerry v Goodsell, 4 AD2d 395; Matter of Gaston v Taylor, 274 NY 359; Matter of General Bldg. Contrs. v Board of Trustees, 42 AD2d 660; Meaott Constr. Corp. v Ross, 100 Misc 2d 767.) II. The Comptroller functions as a State official for purposes of the implementation and enforcement of section 220 of the Labor Law and is therefore not subject to antitrust restraints. (Duboff Elec. v Goldin, 689 F2d 387; Matter of Gottlieb Contr. v Beame, 41 Misc 2d 1097; Community Communications Co. v Boulder, 455 US 40; Lafayette v Louisiana Power & Light Co., 435 US 389; Parker v Brown, 317 US 341; Bates v State Bar of Ariz., 433 US 350; Lanza v Wagner, 11 NY2d 317.)

      Charles E. Williams, III, for New York City Housing Authority, respondent, precluded.

      Sanford E. Pollack and Stuart M. Kirschenbaum for Trustees, Local 363, I.B.T. Pension, Annuity and Welfare Funds, amicus curiae.

    The New York City Comptroller’s arbitrary construction of section 220 (subd 5, par b) of the Labor Law that supplemented employee benefits may not be paid in cash or partly in cash in lieu of another union’s benefits is manifestly contrary to the statute and requires reversal of the narrow 3-2 majority opinion below. (Walsh v Schlecht, 429 US 401; Sega v State of New York,
      60 NY2d 183; Matter of Petterson v Daystrom Corp., 17 NY2d 32; Matter of Dima Contr. Corp. v Goldin, 92 AD2d 460; Matter of Lancaster Dev. v Ross, 82 AD2d 1013; Wholesale Laundry Bd. of Trade v City of New York, 17 AD2d 327,12 NY2d 998; Consolidated Edison Co. v Town of Red Hook, 60 NY2d 99.)

      Nicholas R. Canizio for Local 363, International Brotherhood of Teamsters, amicus curiae.

    I. The City Comptroller’s interpretation of section 220 of the Labor Law as applied to appellant does not recognize the rights of appellant’s employees to self-organize under the National Labor Relations Act. (National Labor Relations Bd. v Local 3, Int. Brotherhood of Elec. Workers, 542 F2d 860; Bradley Co. v Union, 325 US 797.) II. The New York City Comptroller’s inconsistent construction of section 220 (subd 5, par b) of the Labor Law that supplemental benefits may not be paid partly in cash is contrary to the legislative intent of the statute and requires reversal. (Matter of New York Post Corp. v Leibowitz, 2 NY2d 677.)

      Robert H. Basso for Empire State Chapter of the Associated Builders and Contractors, Inc., amicus curiae.

    I. The Comptroller’s interpretation is inconsistent with State policy and cannot stand. (Wholesale Laundry Bd. of Trade v City of New York, 22 AD2d 762, 15 NY2d 604.) II. No violation exists because no specific plans were found prevailing. (Matter of Gottlieb Contr. v Beame, 41 Misc 2d 1097; Duboff Elec. v Goldin, 689 F2d 387; Matter of Duboff Elec. v Goldin, 95 AD2d 666.) III. The Comptroller failed to comply with the Administrative Procedure Act, Executive Law and New York Constitution. IV. Section 220 of the Labor Law is unconstitutional. (Campbell v City of New York, 244 NY 317; Long Is. R. R. Co. v Department of Labor, 256 NY 498; Meaott Constr. Corp. v Ross, 100 Misc 2d 767; People v Orange County Rd. Constr. Co., 175 NY 84; People v Trapp, 20 NY2d 613; Matter of Lakeland Water Dist. v Onondaga County Water Auth., 24 NY2d 400; Staten Is. Edison Corp. v Maltbie, 296 NY 374; Calderon v City of Buffalo, 61 AD2d 323; Packer Coll. Inst. v University of State of N. Y., 298 NY 184; Matter of Small v Moss, 279 NY 288.)

      Richard L. O’Hara and Leonard M. Ridini, Jr., for New York State, AFL-CIO, amicus curiae.

    Under section 220 (subd 5, par b) cash substitutes may not be paid in lieu of supplemental benefits. (Matter of Carr v New York State Bd. of Elections, 40 NY2d 556; Zaldin v Concord Hotel, 48 NY2d 107; Matter of Roosevelt Raceway v Monaghan, 9 NY2d 293; Matter of Erie County Agric. Soc. v Cluchey, 40 NY2d 194; Matter of Town of Smithtown v Moore, 11 NY2d 238; Patrolmen’s Benevolent Assn.

      v City of New York, 41 NY2d 205; Matter of Albano v Kirby, 36 NY2d 526; People v Cruz, 48 NY2d 419; Pilot Mechanical Corp. v Carroll, 94 Misc 2d 437; Matter of Skyway Roofing v County of Rensselaer, 103 Misc 2d 750, 79 AD2d 1078.)

      Steven I. Levin for the Joint Industry Board of the Electrical Industry, amicus curiae.

    The court below correctly affirmed the decision of the New York City Comptroller who, as the fiscal officer under section 220 of the Labor Law, issued an order and determination that Action willfully violated the law by failing to provide the prevailing supplements. (Matter of Lancaster Dev. v Ross, 82 AD2d 1013; Matter of Skyway Roofing v County of Rensselaer, 79 AD2d 1078, 53 NY2d 606: Pilot Mechanical Corp. v Carroll, 94 Misc 2d 437; Matter of Gaston v Taylor, 274 NY 359; Matter of Pell v Board of Educ., 34 NY2d 222.)
   OPINION OF THE COURT

Chief Judge Cooke.

This appeal is concerned with a contractor’s obligation to provide “supplements,” or fringe benefits, to employees engaged in public works projects. Under subdivision 3 of section 220 of the Labor Law, supplemental fringe benefits must be provided to such employees “in accordance with the prevailing practices in the same trade or occupation in the locality within the state” where the public work is located. This requirement will be fulfilled when employees are supplied with the cash equivalent of the cost of obtaining the prevailing benefits or by providing am equivalent benefits plan, or by a combination of benefits and cash equal to the cost of the prevailing benefits.

Respondent Comptroller of New York City, as the City’s fiscal officer, is empowered to determine the schedules of the “prevailing” supplements to be provided and wages to be paid to the different types of workers engaged in public construction projects by or on behalf of the City (see Labor Law, § 220, subd 3; subd 5, pair e). Respondent surveyed approximately 5,000 electrical workers in the New York City area in order to determine the prevailing supplemental benefits provided in the electrical contracting industry. Approximately 90% of the electrical workers surveyed citywide were found'to belong to one union local, Local 3 of the International Brotherhood of Electrical Workers. As a result of Local 3’s predominance in the trade, the supplemental benefits required by its collective bargaining agreement were considered by respondent to be the prevailing benefits that must be paid to all employees performing electrical work under public works contracts. Accordingly, respondent issued a schedule detailing the particular benefits provided under the Local 3 contract and the cost to an employer of providing each of these prevailing benefits per employee (see Labor Law, § 220, subd 3).

Petitioner Action Electrical Contractors Co., Inc., employed approximately 35 people and derived its revenues almost exclusively from public contracts. Through its membership in United Construction Contractors Association, which consists of 84 other contractors, petitioner had negotiated a collective bargaining agreement with Local 363 of the Allied and Industrial Trade Workers, International Brotherhood of Teamsters. Among other things, this contract required the employers to provide specified supplemental benefits by making contributions to a fund managed by Local 363.

In April 1980, petitioner was awarded two contracts with the New York City Housing Authority to perform electrical work at housing projects in Brooklyn. Two years later, respondent received a letter from a member of Local 3’s Joint Industry Board, forwarding a complaint from one of petitioner’s employees that he was paid less than the prevailing wage. After conducting an investigation, respondent charged petitioner with, among other things, failing to pay the prevailing rate of wages and failing to provide certain prevailing supplemental to some employees engaged in performing work under the Brooklyn housing contracts.

After a hearing, it was determined that petitioner had not provided its laborers and electricians with the prevailing supplemental benefits as set forth in respondent’s schedule or with an equivalent benefits plan. As to its laborers, petitioner was found to have omitted making any contributions on their behalf to a plan which would provide the types of benefits found prevailing for their type of work. Instead, petitioner had paid the laborers additional cash in an amount equal to the cost, listed on respondent’s schedule, of obtaining the required benefits. As to its electricians, petitioner was found to have provided some supplemental benefits through its contributions to Local 363’s plan, but these were less than the prevailing contributions required by Local 3’s contract. Petitioner sought to comply wiith respondent’s schedule of prevailing supplements by making cash payments to these workers for the difference in cost between the prevailing benefits and the benefits actually provided through Local 363.

The hearing officer rejected petitioner’s defenses that purely cash payments to the laborers could be an adequate substitute for benefits plans and that its total package of benefits for the electricians was essentially equivalent to the sum of the prevailing benefits supplied by Local 3. In the hearing officer’s view, petitioner had not met its burden of proving the equivalency of the similar types of benefits it offered because it failed to give sufficient details of its plans for comparison. Further, its benefits plan was deemed not equivalent to that of Local 3 because the latter provided superior coverage in some areas and an additional type of benefit. Petitioner’s cash payments in addition to benefits were not deemed to fulfill its obligation. Petitioner’s two violations were deemed willful because petitioner had ample notice of and was aware of its obligations. Damages were assessed for the difference in amounts petitioner actually contributed to Local 363’s funds and what its costs would have been under respondent’s schedule of prevailing benefits. This was offset entirely by the amount of cash it had paid to :its employees in lieu of benefits. In addition, a $1,500 penalty was assessed and petitioner was barred from bidding on public contracts for five years (see Labor Law, § 220-b, subds 2, 3, par b).

Respondent adopted the findings, report, and recommendation of the hearing officer. A divided Appellate Division confirmed respondent’s determination holding that it was supported by substantial evidence. On petitioner’s appeal, this court now reverses.

The principal issue here is whether an employer can fulfill iits duty to provide the prevailing supplements by paying cash directly to the employees in the amount of the cost of these benefits, rather than being limited to providing the supplements by contributions to an in-kind benefits package that is equivalent to the prevailing supplements plan.

Resolution of this quandary requires consideration of the pertinent statutory provisions. In pursuing this task, we are mindful of the deference generally given to administrative determinations if they are not irrational, unreasonable, nor inconsistent with the governing statute (see Matter of Trump-Equitable Fifth Ave. Co. v Gliedman, 57 NY2d 588, 597). When, however, interpreting a statute does not require any technical expertise, as in the present situation, the courts are not bound by the agency’s construction (see id.; Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451, 459).

As noted above, the Labor Law requires public works contractors to provide the locally prevailing supplements as determined by the fiscal officer (see Labor Law, § 220, subd 3). “Supplements” are defined as “all remuneration for employment paid in any medium other than cash, or reimbursement for expenses, or any payments which are not ‘wages’ within the meaning of the law, including, but not limited to, health, welfare, non-occupational disability, retirement, vacation benefits, holiday pay and life insurance.” (Labor Law, § 220, subd 5, par b.)

Superficially, the statute appears clear; an employer must provide supplements. In application, however, the statute’s ambiguity becomes obvious. It does not specify whether compliance is to be determined by consideration of the employer’s expenditures for benefits or by consideration of the qualitative nature of the actual benefits made available. For example, the definition of “supplements” refers to “payments * * * including * * * health, welfare, * * * vacation benefits, holiday pay” (Labor Law, § 220, subd 5, par b). Respondent is directed to determine “the amount of such supplement” found to be prevailing (see id., § 220, subd 5, par c). It is unclear whether such “payments” and “amounts” refers to the cost of obtaining or the value of the benefit purchased. Arguably, providing the cost of the benefit would suffice as respondent’s schedules list the cost per hour or day for each type of benefit. Of importance, however, is the fact that nothing in section 220 expressly prohibits an employer from providing the prevailing supplements either totally by payments in cash, partially in benefits and partially in cash, or totally in benefits by direct contribution to a benefits fund.

When, as in this case, there exists some doubt as to the meaning of a statutory provision, the legislative history may be examined for evidence of the Legislature’s intent (see Uniformed Firefighters Assn. v Beekman, 52 NY2d 463, 471). In 1956, the provision for “supplements” was added to section 220 (see L 1956, ch 750, § 1). Prior to the amendment, nonunion contractors were perceived by some to hold an unfair advantage through lower labor costs because the then-existing statute only required payment of the prevailing wage. These firms could submit lower bids than union contractors who had to pay lor costly fringe benefits. In order to “remedy this defect” by equalizing competition, Governor Harriman requested that the Labor Law be amended to include “ ‘fringe’ benefits — such as vacati on pay, various forms of insurance, and pensions — as an element in the wage rate” (Governor’s Ann Message to Legis, 1956 McKinney’s Session Laws of NY, p 1517). The amendment passed effectively required all types of contractors on public works to assume the cost of the prevailing fringe benefits in their locality. Most State officials concerned with the amendment supported it and viewed it as “designed to eliminate unfair competitive bidding on public work contracts * * * [by] [t]he inclusion of fringe benefits in the prevailing rate of wage” (Memorandum in Support of Bill by Commissioner of Labor, March 29,1956, p 1; see, also, Letter to Governor from Commissioner of Commerce, March 29, 1956; Memorandum in Support of Bill by Dept of Public Works, April 10, 1956; Governor’s Memorandum Approving Bill, Public Papers of Governor Harriman, pp 18, 418).

The available documentary background to this amendment reflects only a concern to equalize contractors’ minimum labor costs. This apparent purpose is fulfilled when a contractor pays in cash, totally or partially, the cost of prevailing supplemental benefits to his employees. The legislative history does not disclose any concern to protect workers from their possible failure to put their additional cash towards a benefits plan. Thus, this provision should not be interpreted to require that the employ er maintain or contribute directly to a benefits plan equivalent in kind to the prevailing one in order to comply with the statute. Supplements may be provided by cash payments equal to the cost of providing the prevailing supplements, a combination of cash and benefits, or by an equivalent benefits plan.

Respondent nevertheless argues that the statute requires a qualitative equivalency of the prevailing benefits, with no cash substitutes in any amount. In support of this, respondent relies upon the statutory language defining “supplements” as any “remuneration for employment paid in any medium other them cash” (Labor Law, § 220, subd 5, par b). However, this is but one of three disjunctive clauses. “Supplements” may also be “any payments which are not ‘wages’ ” such as life insurance, health, disability, or vacation benefits, or holiday pay. Obviously, cash may be involved in providing such fringe benefits, both in their cost and in their delivery to employees when a claim arises. Thus, respondent’s proposition is not supported by the statutory language.

Respondent evaluated petitioner’s compliance with the statute according to the erroneous standard that no cash payments could be made to employees as a means of providing the prevailing supplements. This was an arbitrary and irrational interpretation of the statute because its provides no such limitation. Therefore, respondent’s determination cannot be sustained (see Matter of Trump-Equitable Fifth Ave. Co. v Gliedman, 57 NY2d 588, 597, supra). It is unnecessary to remit the matter for any further proceeding with respect to respondent’s determination, however (cf. id., at p 595). Respondent’s own assessment of damages recognized that petitioner had paid the full cost of providing the prevailing supplements, in cash to its laborer employees and in benefits and cash to its electricians. Thus, there is no question that petitioner complied with section 220 of the Labor Law.

Accordingly, the judgment of the Appellate Division should be reversed, with costs, the determination of respondent Comptroller of the City of New York annulled, and the matter remitted to the Appellate Division for determination of the issue not passed upon by that court with respect to the New York City Housing Authority.

Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye concur.

Judgment reversed, with costs, determination of respondent Comptroller of the City of New York annulled, and matter remitted to the Appellate Division, First Department, for further proceedings in accordance with the opinion herein.

      . We note that there may be a question as to the jurisdiction of respondent over this matter concerning petitioner’s contracts with the New York Ci ty Housing Authority (see Labor Law, § 220, subd 5, par e). However, as the issue has not been raised by either party, it is not addressed by this court.

      . Section 220 (subd 5, par c) of the Labor Law provided, at that time, that the prevailing supplemental benefits would be those provided to the majority of the workers in the same trade or occupation. This section has been amended to provide that the prevailing practice “shall be the practice of providing supplements, as hereinbefore defined, as provided by virtue of collective bargaining agreements between bona fide labor organizations and employers of the private sector, performing public or private work provided that said employers employ a least thirty per centum of workers, laborers or mechanics in the same trade or occupation in the locality.” (L 1983, ch 447.)

      . The schedule provides: 1) Laborer: welfare fund-$1.80/hr.; pension fund-$.95/hr; annuity fund-$.90/hr. 2) Electrician: annuity fund-$4/day; additional security benefit fund-$5/day; pension and major medical fund-7.5% of the hourly wage; vacation and holiday fund-8.5% of hourly wage; dental fund-1.5% of the hourly wage; and full Social Security.


author: Kaye, J.

text:
    Carlton G. Hallock et al., Respondents, v State of New York et al., Defendants, and Power Authority of State of New York, Appellant.
    Argued November 14, 1984;
    decided December 27, 1984

      POINTS OF COUNSEL

      Charles M. Pratt, Stephen L. Baum and John Lamberski for appellant.
    I. The court below erred in determining that respondents’ attorney Quartararo did not have apparent authority. (Greene v Hellman, 51 NY2d 197; International Telemeter Corp. v Teleprompter Corp., 592 F2d 49; Owens v Lombardi, 41 AD2d 438; Di Russo v Grant, 28 AD2J 847; Fox v Wiener Laces, 105 Misc 2d 672; Matter of L’Hommedieu v Board of Regents, 276 App Div 287; Lazarus v Bowery Sav. Bank, 16 NY2d 793.) II. The court below erred in finding that Quartararo lacked actual authority to enter into the settlement. (Greene v Hellman, 51 NY2d 197; Di Russo v Grant, 28 AD2d 847; Continental Cas. Co. v Chrysler Constr. Co., 80 Misc 2d 552; Martinez v 348 East 104

      St. Corp., 60 Misc 2d 31; Matter of Hime Y., 54 NY2d 282; Spano v Perini Corp., 25 NY2d 11.) III. The court below erred in failing to find that respondents ratified the settlement and are estopped to deny its validity. (Rothschild v Title Guar. & Trust Co., 204 NY 458; Continental Cas. Co. v Chrysler Constr. Co., 80 Misc 2d 552; Boyd v Boyd, 252 NY 422; Electrolux Corp. v Val-Worth, Inc., 6 NY2d 556; Amend v Hurley, 293 NY 587; Spano v Perini Corp., 25 NY2d 11.) IV. The court below erred in finding that respondents were prejudiced by the trial court’s exclusion of portions of respondents’ depositions. (Tomaino v Tomaino, 68 AD2d 267; Amend v Hurley, 293 NY 587.) V. The court below abused its discretion by reversing the trial court based upon a new fact which it incorrectly found and facts which the trial court found were not persuasive enough to warrant a different result. (Matter of Frutiger, 29 NY2d 143; Campbell v Bussing, 274 App Div 893; Matter of Abramovich v Board of Educ., 46 NY2d 450, 444 US 845; Tiffany v Town of Oyster Bay, 234 NY 15; Levey v Babb, 39 Misc 2d 648.)

      William J. Schoonmaker, Walter L. Bellcourt and Linda S. Leary for respondents.
    I. The court below did not err in determining that respondents’ attorney Quartararo lacked authority to enter into the settlement. (Countryman v Breen, 241 App Div 392; Stein v Mostoff, 34 AD2d 655; Silver v Parkdale Bake Shop, 8 AD2d 607;Ricketts v Pennsylvania R. Co., 153 F2d 757; Greene v Hellman, 51 NY2d 197; Walsh v Hartford Fire Ins. Co., 73 NY 5; Matter of Dugan, 147 Misc 776; Wen Kroy Realty Co. v Public Nat. Bank & Trust Co., 260 NY 84; Barrett v Third Ave. R.R. Co., 45 NY 628; Owens v Lombardi, 41 AD2d 438.) II. The trial court committed reversible error in refusing to allow respondents’ attorney to read testimony given by Hallock and Phillips at examinations before trial after the Power Authority had first read parts of their testimony given at the same examination. (Leonard v Shayne, 21 AD2d 644; Nixon v Beacon Transp. Corp., 239 App Div 830; National Fire Ins. Co. v Shearman, 223 App Div 127; Gottfried v Gottfried, 197 Misc 562; Yeargans v Yeargans, 24 AD2d 280; Feldsberg v Nitschke, 66 AD2d 757,49 NY2d 636.) III. The court below correctly found no ratification of the stipulation by plaintiffs and that they should not be estopped from denying its validity. IV. The alleged stipulation of settlement entered into on April 22, 1975 should be set aside in the interests of justice. (Manufacturers & Traders Trust Co. v Cottrell, 71 AD2d 538; Bussing v Caligiuri, 65 AD2d 764; Central Val. Concrete Corp. v Montgomery Ward & Co., 34 AD2d 860; Matter of Frutiger, 29 NY2d 143; Monasebian v Du Bois, 30 AD2d 839; Teitelbaum Holdings v Gold, 48 NY2d 51; Russo v Russo, 17 AD2d 129; Kay v Tankel, 16 AD2d 96; Matter of Shapiro, 14 AD2d 898; Bruder v Schwartz, 260 App Div 1048.) V. The purported stipulation of settlement was not a final disposition of the case. (67 Wall St. Co. v Franklin Nat. Bank, 37 NY2d 245; Tougher Heating & Plumbing Co. v State of New York, 73 AD2d 732; Mazzella v American Home Constr. Co., 12 AD2d 910; Central Val. Concrete Corp. v Montgomery Ward & Co., 34 AD2d 860; Monasebian v Du Bois, 30 AD2d 839; Horodeckyi v Horodniak, 9 AD2d 732.) VI. Appellant’s point V is untenable.
   OPINION OF THE COURT

Kaye, J.

A stipulation of settlement made by counsel in open court may bind his clients even where it exceeds his actual authority.

Plaintiffs, Carlton Hallock and Seeley Phillips, in 1968 purchased a 67.7-acre tract of land in Schoharie County, about two miles from the proposed site of a dam to be built by the Power Authority of the State of New York (PASNY). Plaintiffs intended to sell sand and gravel from their land to PASNY for use in construction of the dam, but the State, on behalf of PASNY, in 1969 appropriated the entire tract in fee. Plaintiffs filed a claim for damages in the Court of Claims and commenced a declaratory judgment action in Supreme Court against defendants, PASNY and the State, to challenge their legal right to take by eminent domain a full fee interest rather than simply an easement, contending that only a small portion of the sand and gravel on the land was actually required for the dam. In Hallock v State of New York (32 NY2d 599), we held that this issue could not be resolved as a matter of law on the record then before us and remitted the case for trial.

Trial was to begin on April 22, 1975, preceded by a pretrial conference that morning. Court rules required that attorneys attending pretrial conferences have authority to enter into binding settlements on behalf of their clients (22 NYCRR 861.17). Plaintiffs were represented by Anthony Quarter aro, who had served as their counsel throughout the five-year life of the litigation and had engaged in prior settlement discussions with defendants. Defendants had offered to settle by reconveying the land to plaintiffs and allowing them to keep the advance they had received, but plaintiffs advised Quartararo that they did not like that offer and wanted the matter to go before the Judge.

Hallock was ill on April 22 and did not attend the pretriial conference. Phillips, however, was present with his long-time attorney, Henry Whitbeck, who had represented plaintiffs in their acquisition of the land. After discussion, counsel entered into a stipulation of settlement whereby Quartararo, for plaintiffs, agreed to accept reconveyance of the land and retention of the advance. The terms of the agreement were dictated into the record. The Trial Judge asked the attorneys for each side separately if they agreed to the settlement, and obtained their assents. He then observed that according to court rules the settlement “finalized the case,” and the ease was removed from the Trial Calendar. Throughout these proceedings, Phillips remained silent, as did Whitbeck; Hallock learned of the settlement later that day.

More than two months elapsed before plaintiffs voiced any objection. In mid-July 1975, Hallock expressed his dissatisfaction with the settlement, and plaintiffs thereafter moved to vacate the stipulation, relief which the trial court granted. The Appellate Division, however, ruled that a plenary action was required to set aside a stipulation of settlement (58 AD2d 67, app dsmd 43 NY2d 892), and the present lawsuit followed. After trial, the court directed specific performance of the settlement stipulation, finding that Phillips was bound by the stipulation in view of his presence at the conference, and that Hallock was also bound because he had conferred authority upon Quartararo to negotiate and settle the case and had ratified the settlement. The court concluded that good cause for relief from the stipulation had not been shown.

A divided Appellate Division reversed, the three-justice majority concluding that Quartararo had no authority to settle the case on the terms embodied in the stipulation, rendering the settlement a nullity, and restored plaintiffs’ actions to their respective calendars. The dissenting Justice found Phillips foreclosed from challenging the settlement because of his silence during the pretrial conference, and Hallock bound because he had clothed Quartararo with apparent, if not actual, authority to settle the case. We now reverse and reinstate the judgment of Supreme Court, Schoharie‘County, specifically enforcing the settlement agreement.

Stipulations of settlement are favored by the courts and not lightly cast aside (see Matter of Galasso, 35 NY2d 319, 321). This is all the more so in the case of “open court” stipulations (Matter of Dolgin Eldert Corp., 31 NY2d 1,10) within CPLR 2104, where strict enforcement not only serves the interest of efficient dispute resolution but also is essential to the management of court calendars and integrity of the litigation process. Only where there is cause sufficient to invalidate a contract, such as fraud, collusion, mistake or accident, will a party be relieved from the consequences of a stipulation made during litigation (Matter of Frutiger, 29 NY2d 143, 149-150). Neither court below found fraud, collusion, mistake or accident; nor can we conclude as a° matter of law that such a showing was made. What plaintiffs must then demonstrate in order to sustain their position is that their agent, Quartararo, was without authority of any sort to enter into the settlement, and therefore no contract ever came into being.

From the nature of the attorney-client relationship itself, an attorney derives authority to manage the conduct of litigation on behalf of a client, including the authority to make certain procedural or tactical decisions (see Code of Professional Responsibility, EC 7-7; Gorham v Gale, 7 Cow 739, 744; Gaillard v Smart, 6 Cow 385, 388). But that authority is hardly unbounded. Equally rooted in the law is the principle that, without a grant of authority from the client, an attorney cannot compromise or settle a claim (see Kellogg v Gilbert, 10 Johns 220; Jackson v Bartlett, 8 Johns 361), and settlements negotiated by attorneys without authority from their clients have not been binding (see Countryman v Breen, 241 App Div 392, affd 268 NY 643; Spisto v Thompson, 39 AD2d 598; Leslie v Van Vranken, 24 AD2d 658; Mazzella v American Home Constr. Co., 12 AD2d 910).

Quartararo unquestionably had authority from plaintiffs to conduct settlement negotiations with defendants as he had done with plaintiffs’ knowledge and assent during the weeks prior' to April 22, 1975. At most, on April 22 he exceeded the authority plaintiffs urge had been limited shortly before by their injunction to negotiate a better deal. The question raised by this appeal, then, is whether it should be plaintiffs, or defendants, who bear the responsibility for Quarter arc’s conduct in accepting the settlement they claim had been rejected. We conclude that plaintiffs must bear that responsibility, and are relegated to relief against their former attorney for any damages which his conduct may have caused them (see Fox v Wiener Laces, 105 Misc 2d 672, 676; Gaillard v Smart, 6 Cow 385, 388, supra; Jackson v Stewart, 6 Johns 34, 37).

Phillips cannot be heard to challenge the settlement. He was in court during the entire pretrial conference. At no time during negotiation of the settlement or dictation of the agreement into the record — or indeed during the more than two months that followed — did Phillips voice an objection. Phillips acquiesced in, consented to, and is bound by the settlement (see Owens v Lombardi, 41 AD2d 438, 440-441 [Simons, J.], mot for lv to app den 33 NY2d 515).

Hallock also is bound by the settlement. Even if Quartararo lacked actual authority because, according to plaintiffs, Quartararo accepted the very settlement his clients had instructed him to reject, still Quartararo had apparent authority to bind Hallock.

Essential to the creation of apparent authority are words or conduct of the principal, communicated to a third party, that give rise to the appearance and belief that the agent possesses authority to enter into a transaction. The agent cannot by his own acts imbue himself with apparent authority. “Rather, the existence of ‘apparent authority’ depends upon a factual showing that the third party relied upon the misrepresentation of the agent because of some misleading conduct on the part of the principal — not the agent.” (Ford v Unity Hosp., 32 NY2d 464, 473; see, also, Restatement, Agency 2d, § 27.) Moreover, a third party with whom the agent deals may rely on an appearance of authority only to the extent that such reliance is reasonable (see Wen Kroy Realty Co. v Public Nat. Bank & Trust Co., 260 NY 84, 92-93; Restatement, Agency 2d, § 8, Comment c; Conant, Objective Theory of Agency: Apparent Authority and the Estoppel of Apparent Ownership, 47 Neb L Rev 678, 681).

Here, as a matter of law, Hallock clothed Quartararo with apparent authority to enter into the settlement. Quartararo had represented plaintiffs through the litigation, engaged in prior settlement negotiations for them and, in furtherance of the authority which had been vested in him, appeared at'the final pretrial conference, his presence there constituting an implied representation by Hallock to defendants that Quartararo had authority to bind him to the settlement (22 NYCRR 861.17; see, also, Di Russo v Grant, 28 AD2d 847; Continental Cas. Co. v Chrysler Constr. Co., 80 Misc 2d 552, 554). The attendance of the coplaintiff, Phillips, further enforced that appearance. In the circumstances, it necessarily fell to Phillips or Quartararo himself to reveal any restrictions on the attorney’s authority to settle, and absent such disclosure defendants’ reliance on the appearance of authority was entirely reasonable.

Plaintiffs insist that apparent authority is an equitable doctrine, having its origins in the principle of estoppel (see Rothschild v Title Guar. & Trust Co., 204 NY 458,461), and that defendants must establish detrimental reliance before the settlement stipulation can be enforced. The discontinuance of lengthy litigation on the day of trial, in reliance on the adversary’s settlement stipulation — even for defendants, who often may prefer that judgment be deferred — coupled with plaintiffs’ silence for more than two months thereafter, is itself a change of position, if such a showing is indeed even required before the doctrine of apparent authority may be invoked. We need not inquire whether there was any actual loss of witnesses or evidence, for we recognize that, after five years, halting the machinery of litigation when a trial scheduled to begin that day is marked off the calendar constitutes detriment. Additionally, in the words of the dissenting Justice at the Appellate Division, to set aside this settlement stipulation “invites destruction of the process of open-court settlements, for every such settlement would be liable to subsequent rescission by the simple expedient of a litigant’s self-serving assertion, joined in by his attorney and previously uncommunicated to either the court or others involved in the settlement, that the litigant had limited bis attorney’s authority” (98 AD2d 856, 858-859).

Accordingly, the order of the Appellate Division should be reversed, with costs, and the judgment of Supreme Court, Schoharie County, reinstated.

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

Order reversed, etc.

      . This ruling predated our decision in Teitelbaum Holdings v Gold (48 NY2d 51), in which we held that a plenary action is not always required to contest a stipulation of settlement.

      . Justice Mahoney dissented in part, on the basis of evidentiary rulings which we do not reach, and would have remanded the matter to the Trial Judge with instructions to hold an evidentiary hearing testing counsel’s authorization to settle.

      . Quartararo’s firm was originally joined as a defendant, but was dropped from the action on consent.

      . Since we conclude that Quartararo had apparent authority to bind Hallock, we do not reach the alleged evidentiary error in excluding testimony bearing on the issue of Quartararo’s actual authority to bind Hallock, or the question whether the relationship between Hallock and Phillips was such that Phillips’ conduct would itself bind Hallock.

      . See Greene v Hellman, 51 NY2d 197, 204; Restatement, Agency 2d, § 8, Comment d; Seavey, Rationale of Agency, 29 Yale U 859, 873-876; Conant, Objective Theory of Agency: Apparent Authority and the Estoppel of Apparent Ownership, 47 Neb L Rev 678, 683-684; Cook, “Agency by Estoppel”, 5 Col L Rev 36.


author: Jasen, J.

text:
    In the Matter of New York State Inspection, Security and Law Enforcement Employees, District Council 82, AFSCME, AFL-CIO, et al., Appellants, v Mario M. Cuomo, as Governor and Chief Executive Officer of the State of New York, et al., Respondents.
    Argued November 14, 1984;
    decided December 18, 1984

      POINTS OF COUNSEL

      Mark T. Walsh, Jr., for appellants.
    I. Petitioners’ assertion of their specific statutory rights to a safe work environment as well as their other claims present justiciable controversies. The court below erred in dismissing the petition. (Klostermann v Cuomo, 61 NY2d 525; Flushing Nat. Bank v Municipal Assistance Corp., 40 NY2d 731; Rankin v Shanker, 23 NY2d 111; Jones v Beame, 45 NY2d 402; Board of Educ. v Nyquist, 57 NY2d 27; Bruno v Codd, 47 NY2d 582; Matter of Anderson v Krupsak, 40 NY2d 397; Baker v Carr, 369 US 186; New York Moratorium on Prison Constr. v New York State Dept. of Correctional Servs., 91 Misc 2d 674; Matter of Town of Yorktown v New York State Dept. of Mental Hygiene, 92 AD2d 897.) II. Petitioners have a right to a work environment “as free from hazards and risks to their safety as is practicable.” Closing the Long Island Correctional Facility (LICF) violates that right. Petitioners state a cause of action and are properly before this court seeking injunctive relief. (American Textile Mfrs. Inst. v Donovan, 452 US 490; American Smelting & Refining Co. v Occupational Safety & Health Review Comm., 501 F2d 504; Red Hook Cold Stor. Co. v Department of Labor, 295 NY 1; National Realty & Constr. Co. v Occupational Safety & Health Review Comm., 489 F2d 1257; Baroid Div. of NL Inds. v Occupational Safety & Health Review Comm., 660 F2d 439; Usery v Marquette Cement Mfg. Co., 568 F2d 902; Babcock & Wilcox Co. v Occupational Safety & Health Review Comm., 622 F2d 1160; General Dynamics Corp. v Occupational Safety & Health Review Comm., 599 F2d 453; Titanium Metals Corp. v Usery, 579 F2d 536.) III. The decision to close LICF rests upon other than a substantial basis or professional opinion and is arbitrary and capricious and an abuse of discretion. (Matter of Pell v Board of Educ., 34 NY2d 222; Goodman v State of New York, 37 AD2d 703.) IV. The Governor does not have authority to exercise management and control of the correctional facilities. That authority rests with the Commissioner of Correctional Services. The Governor does not have the authority to close or direct the closing of LICF. In purporting to do so, the Governor is acting in excess of his jurisdiction. (Gaynor v Rockefeller, 21 AD2d 92, 15 NY2d 120; Rapp v Carey, 44 NY2d 157; People v Tremaine, 252 NY 27; Matter of New York City School Bds. Assn. v Board of Educ., 39 NY2d 111; Matter of County of Oneida

      v Berle, 49 NY2d 515; Nydick v Suffolk County Legislature, 81 Misc 2d 786, 47 AD2d 241, 36 NY2d 951; Rebeor v Wilcox, 58 AD2d 186.) V. Commissioner Coughlin did not make an independent determination based upon a review of all the facts and circumstances, but instead made his determination solely to honor a commitment made by Governor Cuomo during his campaign. (Matter of Winkler v State Liq. Auth., 3 AD2d 1011, 4 NY2d 856; Matter of Board of Educ. v Ambach, 81 AD2d 691; Matter of Circus Disco v New York State Liq. Auth., 51 NY2d 24; Matter of Kelly v Monaghan, 9 AD2d 92.) VI. Respondents are equitably estopped from closing Long Island Correctional Facility. (Bender v New York City Health & Hosps. Corp., 38 NY2d 662; Eden v Board of Trustees, 49 AD2d 277; Matter of Moritz v Board of Educ., 60 AD2d 161; Matter of 1555 Boston Rd. Corp. v Finance Administrator, 61 AD2d 187; Franks v Bowman Transp. Co., 424 US 747; Humphrey v Moore, 375 US 335.) VII. Petitioners state a cause of action for violation of their contra ctual rights to safe working conditions and are properly before the courts asserting the same. (Port Chester Elec. Constr. Corp. v Atlas, 40 NY2d 652; Underwriters at Lloyd’s v Richards Frgt. Lines, 12 NY2d 334; Boryszewski v Brydges, 37 NY2d 361; Matter of Bradford Cent. School Dist. v Ambach, 56 NY2d 158; Matter of Morgenthau v Cooke, 56 NY2d 24; Matter of Douglaston Civic Assn. v Galvin, 36 NY2d 1; National Organization for Women v State Div. of Human Rights, 34 NY2d 416; Matter of Building Contrs. Assn. v Tully, 65 AD2d 199; Matter of National Elevator Ind. v State Tax Comm., 65 AD2d 304; Watergate II Apts. v Buffalo Sewer Auth., 46 NY2d 52.) VIII. The order of the court below which reversed the lower court’s grant of preliminary injunction should be reversed and the preliminary injunction should be reinstated. (Grant Co. v Srogi, 52 NY2d 496; Poling Transp. Corp. v A&P Tanker Corp., 84 AD2d 796; Albini v Solork Assoc., 37 AD2d 835; Tucker v Toia, 54 AD2d 322; Konishi v Por Kung Lin, 88 AD2d 905.)

      Robert Abrams, Attorney-General (Ann Horowitz, Robert Hermann and O. Peter Sherwood of counsel), for respondents.
    I. The decision to close LICF is nonjusticiable because it is committed to executive discretion and is part of the over-all plan for managing the State correctional system, and because petitioners can invoke no legislatively mandated program, the proper enforcement of which could result in the relief they seek. (Jones v Beame, 45 NY2d 402; Matter of Lorie C., 49 NY2d 161; James v Board of Educ., 42 NY2d 357; Abrams v New York City Tr. Auth., 39 NY2d 990; Klostermann v Cuomo, 61 NY2d 525.) II. The court below properly held that the claims in the nature of mandamus and prohibition, and the equitable estoppel claim, fail to state a cause of action. (Matter of Legal Aid Soc. v Scheinman, 53 NY2d 12; Matter of Marburg v Cole, 286 NY 202; Matter of Burr v Voorhis, 229 NY 382; Matter of Hamptons Hosp. & Med. Center v Moore, 52 NY2d 88; Matter of Vasquez v Town Bd. of Town of Waterford, 72 AD2d 883.) III. Special Term erred in granting a preliminary injunction because there was no showing that the necessary elements were met. (Graves v Lombardi, 42 AD2d 700; Russian Church of Our Lady of Kazan v Dunkel, 34 AD2d 799; Rohauer v Killian, 37 AD2d 547; Barricini, Inc. v Barricini Shoes, 1 AD2d 905; People v Cleague, 22 NY2d 363; People v Razezicz, 206 NY 249; Matter of Vasquez v Town Bd. of Town of Waterford, 72 AD2d 883.)

      . Section 27-a (subd 3, par a) of the Labor Law provides, in pertinent part, that every employer “shall * * * furnish to each of its employees, employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to its employees and which will provide reasonable and adequate protection to the lives, safety or health of its employees”.

   OPINION OF THE COURT

Jasen, J.

The statutory right to a safe workplace may not be enforced by means of a remedy at law which would require the judiciary to preempt the exercise of discretion by the executive branch of government.

In 1982, the Long Island Correctional Facility (LICF), situated on the grounds of the Pilgrim State Psychiatric Center, was opened as part of a plan to meet the immediate and long-term needs of the State correction system. The decision partially to convert the Pilgrim State Psychiatric Center to a medium security correctional facility was made by former Governor Carey, and was met with early opposition. (See Cohalan v Carey, 88 AD2d 77, app dsmd 57 NY2d 672.) In January 1984, in his annual message to the Legislature, Governor Cuomo announced that the LICF would be closed as a part of the over-all capital expansion plan of the New York State Department of Correctional Services (DOCS). In a subsequent press release, the Governor stated that the LICF would be closed on October 1, 1984, in view of the availability of 3,500 new prison spaces over the next year under the State’s prison expansion program and an analysis of prison population growth projections.

Thereupon, petitioners commenced this article 78 proceeding, seeking to enjoin the scheduled closing of the LICF. The proceeding was brought on behalf of two classes of correctional personnel: correction officers, sergeants, lieutenants and civilian employees of DOCS currently employed at LICF (Class I); and, individuals employed in similar capacities at the Sing Sing Correctional Facility and other facilities maintained and operated by DOCS (Class II). The gravamen of this proceeding is that the closing of the LICE would exacerbate the risk of serious bodily injury and death to persons employed at prison facilities, in violation of their statutory right to a safe workplace pursuant to section 27-a of the Labor Law.

Two motions were submitted to Special Term: petitioners’ motion for a preliminary injunction and respondents’ motion to dismiss the petition. Special Term granted petitioners’ motion for a preliminary injunction on June 5,1984, thus enjoining the scheduled closing of the LICE pending a determination on the merits. Respondents moved to dismiss the petition pursuant to CPLR 7804 (subd [f]) and CPLR 3211 (subd [a], pars 2, 7) upon the ground, inter alia, that the decision to close the LICE involves the exercise of executive discretion and therefore presents a nonjusticiable controversy. By order dated July 9, 1984, Special Term denied respondents’ motion to dismiss, finding that the claim advanced by petitioners under section 27-a of the Labor Law was justiciable by reason of this court’s recent decisions in Klostermann v Cuomo and Joanne S. v Carey (61 NY2d 525). Upon motion by respondents, the Appellate Division, Second Department, granted permission to appeal. In a decision dated September 21, 1984, the Appellate Division reversed both orders of Special Term, on the law, and entered an order dismissing the petition and vacating the preliminary injunction. We affirm for the following reasons.

The doctrine of justiciability, developed to identify appropriate occasions for the exercise of judicial authority, represents perhaps the most significant and least comprehended limitation upon the judicial power. (See Jackson, The Supreme Court in the American System of Government, p 11.) Justiciability is the generic term of art which encompasses discrete, subsidiary concepts including, inter alia, political questions, ripeness and advisory opinions. At the heart of the justification for the doctrine of justiciability lies the jurisprudential canon that the power of the judicial branch may only be exercised in a manner consistent with the “judicial function” (Matter of State Ind. Comm., 224 NY 13, 16 [Cardozo, J.]), upon the proper presentation of matters of a “Judiciary Nature” (2 Farrand, Records of Federal Convention of 1787 [1911], p 430). Recognizing that we have no more right to usurp the authority conferred upon a coordinate branch of government than to decline the exercise of jurisdiction which is granted, we turn to the critical inquiry presented by this appeal — whether petitioners’ claims are justiciable.

As a reflection of the pattern of government adopted by the State of New York, which includes by implication the separation of the executive, legislative andjudicial powers (Matter of LaGuardia v Smith, 288 NY 1, 5-6; Matter of Guden, 171 NY 529, 531), it is a fundamental principle of the organic law that each department of government should be free from interference, in the lawful discharge of duties expressly conferred, by either of the other branches (People ex rel. Burby v Howland, 155 NY 270, 282). With respect to the distribution of powers within our system of government, it has been said that no concept has been “more universally received and cherished as a vital principle of freedom”. (Dash v Van Kleeck, 7 Johns 477, 509 [Kent, Ch. J.].) Within our tripartite governmental framework, the Governor, as chief executive officer, has the responsibility to manage the operations of the divisions of the executive branch, including the Department of Correctional Services. (Saxton v Carey, 44 NY2d 545, 549.) The lawful acts of executive branch officials, performed in satisfaction of responsibilities conferred by law, involve questions of judgment, allocation of resources and ordering of priorities, which are generally not subject to judicial review. (Matter of Lorie C., 49 NY2d 161,171; Matter of Abrams v New York City Tr. Auth., 39 NY2d 990, 992; Jones v Beame, 45 NY2d 402, 408; James v Board of Educ., 42 NY2d 357, 368; Matter of Smiley, 36 NY2d 433,441.) This judicial deference to a coordinate, coequal branch of government includes one issue of justiciability generally denominated as the “political question” doctrine. (Jones u Beame, 45 NY2d 402, 408, supra; Benson Realty Corp. v Beame, 50 NY2d 994, 996, app dsmd 449 US 1119; Klostermann v Cuomo, 61 NY2d 525, 535, supra.)

By seeking to vindicate their legally protected interest in a safe workplace, petitioners call for a remedy which would embroil the judiciary in the management and operation of the State correction system. The primary responsibility for administering the system is vested in the Commissioner of Correctional Services (Correction Law, § 112), who is appointed by and holds office at the pleasure of the Governor. The responsibility for maintaining, establishing and closing any correctional facility operated by DOCS is expressly conferred upon the Commissioner of Correctional Services. (Correction Law, § 70, subd 3, par [a].) While it is within the power of the judiciary to declare the vested rights of a specifically protected class of individuals, in a fashion recognized by statute (Klostermann v Cuomo, 61 NY2d 525, supra), the manner by which the State addresses complex societal and governmental issues is a subject left to the discretion of the political branches of government (Klostermann v Cuomo, 61 NY2d 525, supra; Matter of Abrams v New York City Tr. Auth., 39 NY2d 990, 992, supra). Where, as here, policy matters have demonstrably and textually been committed to a coordinate, political branch of government, any consideration of such matters by a branch or body other than that in which the power expressly is reposed would, absent extraordinary or emergency circumstances (James v Board of Educ., 42 NY2d 357, 367, supra), constitute an ultra vires act.

Even if the relief sought by petitioners were not rendered nonjusticiable by reason of the controversy being a political question, consideration of the matter would, nevertheless, be barred by the doctrine of ripeness. On the facts presented, and in absence of the tender of evidence indicating the intended destination of the current inmate population of the LICE, it cannot be said that a realistic danger confronts the petitioners of either Class I or Class II. Under petitioners’ theory of the case, Class I, the current employees of the LICE, could only be exposed to an increased hazard if transferred to the same facilities to which the current inmates are to be sent. There has been no showing that the destinations of petitioners of Class I will parallel those of the current inmate population of the LICE. The risk to petitioners of Class II is similarly conditional. Class II would not be subjected to an increased risk of hazard if the process of attrition as applied to the LICE proved effective, if the creation of new prison spaces as the result of the over-all capital expansion plan was achieved, or if an adequate number of vacancies occurred at DOCS facilities other than the LICE. The claims set forth by petitioners are only supportable upon a theory of contingent justiciability — a standard which is contrary to the requirement of the Labor Law that a condition or practice may be enjoined only where “a danger exists which could reasonably be expected to cause death or serious physical harm immediately or before the imminence of such danger can be eliminated through the abatement procedures otherwise provided for” (Labor Law, §27-a, subd 7 [emphasis added]). Where the harm sought to be enjoined is contingent upon events which may not come to pass, the claim to enjoin the purported hazard is nonjusticiable as wholly speculative and abstract. (See New York Public Interest Research Group v Carey, 42 NY2d 527.)

We do not, by our decision today, suggest that petitioners’ claims seeking safe working conditions are strictly beyond the realm of judicial consideration. On the contrary, section 27-a (subd 7, par c) of the Labor Law establishes automatic standing for petitioners to enjoin working conditions which are hazardous, or present an imminent danger, in those instances where the Industrial Commissioner fails to seek relief upon notice of such condition. This remedy is essential to the protection of the basic right of all employees to work in an environment that is as free from hazards and risks to their safety as practicable. (Legislative Findings, L 1980, ch 729, § 1.) To warrant judicial intervention, the threat to petitioners’ legally protected interest in a safe workplace must be of sufficient immediacy and reality, and the remedy sought must not seek judicial action which would necessarily impinge upon the prerogative and authority of a coordinate branch of government. Under the circumstances of this case, the Appellate Division correctly dismissed the petition and vacated the preliminary injunction.* *

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

Chief Judge Cooke and Judges Jones, Wachtler, Meyer, Simons and Kaye concur.

Order affirmed, with costs.

      . Holding, as we do, that consideration of the matter is barred by the doctrine of ripeness, any further consideration would require this court, to render an advisory opinion, a practice not in accord with the settled policy in this State.

      . Since nonjusticiability, whether by reason of political question or non-ripeness, implicates the subject matter jurisdiction of the court, respondents properly predicated their motion to dismiss upon CPLR 3211 (subd [a], par 2). (Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, C3001:4.) CPLR 3211 (subd [a], par 2) is the proper vehicle to dismiss a nonripe controversy, even though the conceptual focus of the ripeness doctrine is upon the maturity of the claim asserted. (See Duke City Lbr. Co. v Butz, 539 F2d 220, 221, n 2, cert den 429 US 1039.)