author: Alexander, J.

text:
    Paul F. Carmel, Appellant, v J. Robert Lunney et al., Doing Business as Lunney & Crocco, Esqs., Respondents and Third-Party Plaintiffs-Respondents, et al., Defendant. John W. Tabner et al., Third-Party Defendants-Respondents, et al., Third-Party Defendants.
    Argued June 1,1987;
    decided July 9, 1987

      POINTS OF COUNSEL

      Steven M. Gates and Robert M. Cohen for appellant.

      Thomas W. Hyland, James L. Fischer, Glen S. Feinberg and Nina Gangiano for respondents.

      Roger J. Cusick for John W. Tabner and others, third-party defendants-respondents.

      Timothy J. Mahar for Howard M. Daffner, third-party defendant-respondent.
   OPINION OF THE COURT

Alexander, J.

In this action for legal malpractice based upon the alleged breach of an attorney’s duty to advise his client of potential conflicts of interest and of the possible criminal consequences of incriminating testimony given during a Martin Act hearing, the undisturbed determination of the client’s guilt in the subsequent criminal prosecution precludes him, as a matter of law, from recovering for civil damages flowing from the allegedly negligent representation.

Plaintiff, Paul Carmel, worked as a licensed securities salesman with the brokerage firm of Fittin, Cunningham & Lauzon. Among the offerings of that firm was the investment service of Michael Starbuck, Inc. & Associates. From 1978 to 1980, plaintiff advised various Fittin clients to transfer their securities to the Starbuck operation, promising them guaranteed returns on their investments. In January 1980, the Starbuck enterprise came under investigation for violation of State and Federal securities regulations. Plaintiff and other employees and principals at Fittin were subpoenaed by the Attorney-General to testify at a hearing incident to a Martin Act (General Business Law art 23-A) investigation of Fittin’s role in the promotion and sale of interests in Starbuck. On Fittin’s recommendation, plaintiff retained defendant law firm, Lunney & Crocco, to represent him at the Martin Act hearing. Plaintiff claims he was unaware at the time that defendants had already appeared at hearings before the Securities and Exchange Commission on behalf of Fittin principals and coemployees on the Starbuck matter. Plaintiff alleges that defendants counseled him to appear at the Martin Act hearing and to inform the Attorney-General unreservedly about his activities at Fittin. Subsequently, a Grand Jury returned two indictments charging plaintiff with various Martin Act violations, grand larceny, scheming to defraud, and conspiracy.

Defendants never represented plaintiff after the Martin Act hearing. Following his indictment, plaintiff retained the firm of Tabner, Carlson, Farrell & Cholakis, third-party defendants herein, to defend him in the criminal prosecution. Ensuing plea negotiations resulted in plaintiff pleading guilty to a misdemeanor violation of the Martin Act (General Business Law § 352-c [1] [c]), in full satisfaction of the indictments. Plaintiff then brought this malpractice action against defendants for failing to advise him of the possible criminal implications of testimony given at a Martin Act hearing, of his privilege against self-incrimination, of the possibility of receiving immunity in exchange for cooperating with the Attorney-General in furnishing evidence against actual principals in the fraud scheme, and of potential conflicts of interest stemming from defendants’ having already represented other Fit-tin associates — all in breach of their fiduciary duty, their attorney-client relationship, and the retainer agreement. Plaintiff claims damages in the amount of $2 million resulting from the revocation of his license, his loss of reputation, and his having been called upon to answer civil suits lodged against him by certain of his clients for fraudulent and deceptive practices. He also claims to have been damaged by having to plead to a misdemeanor crime in order to avoid more serious felony charges for which he otherwise might never have been indicted.

Defendants moved for summary judgment contending that plaintiffs guilty plea — not any alleged attorney malpractice— constitutes the proximate cause, as a matter of law, of damages suffered. Supreme Court denied the motion, but the Appellate Division reversed, granted the motion, and dismissed plaintiffs complaint. We now affirm.

To state a cause of action for legal malpractice arising from negligent representation in a criminal proceeding, plaintiff must allege his innocence or a colorable claim of innocence of the underlying offense (see, Claudio v Heller, 119 Misc 2d 432), for so long as the determination of his guilt of that offense remains undisturbed, no cause of action will lie. Here, because plaintiffs conviction by plea of a misdemeanor violation of the Martin Act has not been successfully challenged, he can neither assert, nor establish, his innocence. He has thus failed to state a cause of action, and his claim was properly dismissed by the Appellate Division.

As the dissenter at the Appellate Division noted, New York has traditionally applied a "but for” approach to causation when evaluating legal malpractice claims (see, Servidone Constr. Corp. v Security Ins. Co., 64 NY2d 419, 425; Kerson Co. v Shayne, Dachs, Weiss, Kolbrenner, Levy & Levine, 45 NY2d 730, 732). The test is whether a proper "defense would have altered the result of the prior action” (Kerson Co. v Shayne, Dachs, Weiss, Kolbrenner, Levy & Levine, supra, at 732; see, Parksville Mobile Modular v Fabricant, 73 AD2d 595, appeal dismissed 49 NY2d 801). To be sure, a defendant in a criminal proceeding might be able to prove malpractice by establishing that but for the negligent representation he would, for example, have invoked his 5th Amendment rights, or succeeded in suppressing certain evidence conclusive of his guilt. But, because he cannot assert his innocence, public policy prevents maintenance of a malpractice action against his attorney. This is so because criminal prosecutions involve constitutional and procedural safeguards designed to maintain the integrity of the judicial system and to protect criminal defendants from overreaching governmental actions. These aspects of criminal proceedings make criminal malpractice cases unique, and policy considerations require different pleading and substantive rules (see, e.g., Kaus & Hallen, The Misguiding Hand of Counsel — Reflections on "Criminal Malpractice”, 21 UCLA L Rev 1191).

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

Chief Judge Wachtler and Judges Simons, Kaye, Titone, Hancock, Jr., and Bellacosa concur.

Order affirmed, with costs.

       The Appellate Division also dismissed the third-party complaint brought by defendants against Tabner, Carlson.


source: Caselaw Access Project

author: Kaye, J.

license: Public Domain

text:
    Jacob Eiseman, Individually and as Administrator of the Estate of Rhona Eiseman, Deceased, et al., Respondents, v State of New York, Appellant.
    Argued June 2, 1987;
    decided July 9, 1987

      POINTS OF COUNSEL

      Robert Abrams, Attorney-General (O. Peter Sherwood, Peter H. Schiff and Michael S. Buskus of counsel), for appellant.

      Richard P. Weisbeck, Jr., Carl A. Green and James T. Scime for respondents.

      Walter J. Relihan, Jr., for Cornell University and others, amici curiae.

      Eugene D. Gulland, Marjorie E. Powell and Sheldon Elliot Steinbach for the American Council on Education, amicus curiae.

   OPINION OF THE COURT

Kaye, J.

This appeal from a negligence award focuses on the duty of the State, when an ex-felon with a history of drug abuse and criminal conduct, upon release from prison, is accepted into a special State college program for the disadvantaged, and thereafter rapes and murders a fellow student. We conclude that the State’s alleged negligence involved no breach of duty owed to decedent, and the award to her estate must therefore be overturned.

Facts

Charged in three indictments with attempted murder, attempted assault, robbery, larceny, and criminal possession of weapons and drugs, on June 29, 1972, Larry Campbell — then 30 years old — pleaded guilty to criminal possession of dangerous drugs in the fourth degree in satisfaction of all the charges, and received a maximum prison sentence of six years. Campbell remained incarcerated at various correctional facilities until he was conditionally released on December 19, 1975 — the statutorily mandated release date, calculated by applying both his "good behavior time” (see, Correction Law § 803, former § 805 [renum § 212 by L 1970, ch 476, § 43, now Executive Law art 12-B]; Penal Law § 70.30 [4]; § 70.40 [1] [b]) and his "jail time”, or time served awaiting trial (see, Penal Law § 70.30 [3]). Although a longtime heroin addict with a string of arrests, pleas and periods of incarceration for stealing and drug-related crimes beginning a decade or more earlier, this was Campbell’s first extended prison confinement.

During his incarceration Campbell was at various times treated for mental disorders, and numerous psychiatric, psychological and parole evaluations were prepared. He was diagnosed as suffering from chronic schizophrenia, paranoid type, with a schizoid, impulsive/explosive personality, a high criminal potential, and a low rehabilitation potential; he was said to have a potential for killing, and was characterized as antisocial, temperamental, belligerent, unpredictable and disruptive, with a guarded prognosis. In his day-to-day prison life, Campbell apparently was comparatively well behaved. On a scale of 1 to 10 (1 being the best inmate), the Superintendent of the Auburn Correctional Facility — claimants’ witness —graded Campbell at 2V%. He described Campbell as annoyingly litigious, but observed that he had few disciplinary infractions, none of a "serious” nature, and that he had participated in prison programs and pursued educational opportunities. While at Clinton Correctional Facility, Campbell obtained a high school equivalency diploma, and while at Eastern Correctional Facility took college-level courses.

Anticipating release, on January 20, 1975, Campbell applied for admission to the SEEK (Search for Education, Elevation and Knowledge) program at the State University College at Buffalo (the College), to begin September 1975. His application revealed his then residence at Albion Correctional Facility as well as prior incarceration elsewhere, and it was supported by several recommendations.

SEEK, created by the Legislature approximately 20 years ago, is part of a State-wide program conducted by public and private colleges and universities, to offer the opportunity for higher education to disadvantaged high school graduates (see, Education Law § 6451 et seq.; see also, Mem of Senator Earl W. Brydges, 1970 NY Legis Ann, at 168-170). The statutory criteria for acceptance into the SEEK program are economic and educational — a high school diploma or its equivalent; the potential for completing a postsecondary program; and economic and educational disadvantage (Education Law § 6451 [1]). The SEEK director at the College testified that applications there were evaluated solely on these three statutory criteria, and not on an applicant’s prior criminal record or prior psychological history. Those admitted to the program were furnished tuition, room and board, and a stipend. Additionally, the statute provided for remedial courses and academic counseling.

As part of the acceptance package, the College sent Campbell a printed form entitled "Health Report and Physician’s Certificate”, a portion of it for completion by the prospective student and a portion by an examining physician. The purpose of this form was undisputedly to enable the College to offer follow-up care for its student, not as an admissions criterion. John P. Fernandez, a doctor at the Albion Correctional Facility, on May 12, 1975, completed the "Physical Examination” portion of the form. In response to the question, "Is there any evidence of any anxiety or other tension states or emotional instability?”, Dr. Fernandez wrote, "No”. In the portion of the form for the prospective student, the question, "Have you ever been under the care of a psychiatrist?”, was left unanswered. Campbell’s completed health report nowhere disclosed that he had been a heroin addict, or that he had a history of mental disorders, including several suicide attempts.

On July 22, 1975, Campbell left his temporary release job outside the prison, made an unauthorized trip into Buffalo, and was disciplined by the loss of "good time” and transfer from Albion (a low security facility) to Auburn Correctional Facility. While awaiting transfer, and after parole and early release had been denied, Campbell attempted suicide. He was sent to Fishkill Correctional Facility, from which he was admitted to Matteawan State Hospital for examination and treatment, and thereafter discharged back to the general prison population. From Fishkill, Campbell wrote to his SEEK counselor at the College, telling him of the suicide attempt and of his problems in prison. Campbell’s request for a leave of absence was granted by the College, and he was advised that he would be expected for the spring semester.

On December 19, 1975 Campbell was conditionally released from prison. There is no indication that at the time of his release Campbell was addicted to drugs or in need of any treatment; no psychiatric treatment or medication was specified, and no special conditions were added to the printed "Conditions of Parole”, which included supervision by a parole officer. During the spring semester, Campbell lived on campus and attended classes, and — despite an incident when he was visiting his mother in New York City during April 1976 — was seemingly making a satisfactory adjustment at the College. His parole officer, testifying for claimants, said he regarded Campbell as a "high risk” case, and therefore placed him under "intensive supervision,” meaning that he advised the SEEK liaison about Campbell, required biweekly visits and a curfew, worked closely with campus security, who the parole officer told to "let [him] know if Campbell sneezes”, and checked on him during on-campus visits one or more times a week. During the spring semester Campbell arranged to continue attending classes for the summer and to live with the son of his SEEK counselor, a fellow student.

At the College, Campbell befriended Rhona Eiseman, Thomas Tunney, Teresa Beynard — all fellow students — and Michael Schostick, a nonstudent. Eiseman, Tunney, Beynard and Schostick shared an off-campus apartment. On June 9, 1976, at the apartment, Campbell murdered Tunney, raped and murdered Eiseman, and inflicted serious injuries on Schostick. Eiseman’s estate and Schostick commenced suit claiming negligence on the part of the State in its release of Campbell, in failing to advise the College of his medical history, in admitting him to the College without appropriate inquiry, and in failing adequately to supervise him. The Court of Claims after trial dismissed Schostick’s claim, on the ground that neither a duty of care nor a chain of causation linked the State to his injuries, but it held the State liable for Eiseman’s death on two of the several theories propounded by claimants: that the State was negligent when its agent, the prison physician, failed to inform the College and its students of Campbell’s medical history, and that the College was negligent in admitting him or failing to restrict his activity in accordance with the risk he presented, both of which were a proximate cause of injury. The Appellate Division affirmed. This court denied Schostick’s motion for leave to appeal and, following a trial to assess damages, granted the State’s motion. We now reverse the award and dismiss the claim.

Discussion

At the outset, it is helpful in narrowing the discussion to summarize certain matters resolved below relating to Campbell’s release from prison and supervision while at liberty.

Although claimants initially cited Campbell’s release as an act of negligence by the State, in fact his release from prison was required by law and was not an act upon which the State could be found negligent. As the Appellate Division noted, "The trial court correctly found that Campbell’s release was statutorily mandated (Penal Law § 70.40 [1] [b]; Correction Law §§ 803, 805) and that the Department of Correctional Services was without authority to deny Campbell’s request for conditional release”. (109 AD2d 46, 57.) Indeed, claimants no longer dispute that Campbell was entitled to release on December 19, 1975.

Similarly determined against claimants by the trial court, and affirmed by the Appellate Division, are assertions that the State was negligent in failing to impose additional restrictions on Campbell’s release, or supervise him more closely, or revoke his release and return him to prison after evidences of violation of the conditions during April 1976. Setting the conditions of release was properly recognized as a discretionary function within the State’s absolute immunity, foreclosed from judicial review (see, Tarter v State of New York, 68 NY2d 511). "The acts of the corrections officials and parole supervisors in monitoring Campbell’s release involved the kinds of policy determinations which are of a discretionary or quasi-judicial nature and therefore insulated from liability”. (109 AD2d, at 57-58.) Moreover, as held below, even if immunity were for some reason inapplicable, the official actions in supervising Campbell and continuing his liberty had a rational basis and were nonnegligent; both lower courts were satisfied from the factual record that the State had acted reasonably in monitoring Campbell arid allowing him to remain at liberty. Indeed, both courts observed that supervision of Campbell went beyond "reasonable”: the trial court concluded that "even with benefit of hindsight there is no basis for a finding that [Campbell’s parole officer] should have performed other than he did”, and the Appellate Division observed "that he was supervised rather stringently.” (109 AD2d, at 57.) These affirmed factual findings have support in the record and are therefore beyond the scope of our review (Humphrey v State of New York, 60 NY2d 742, 743-744).

Claimants’ assertions of negligence with respect to Campbell’s release and supervision are now concentrated on one point: that Campbell’s parole officer violated a statutory duty to revoke his conditional release as a result of the April 1976 New York City incident, and that this failure constituted negligence as a matter of law. In the factual circumstances found below, however, we agree with the conclusion of the lower courts that no statutory or regulatory duty was violated, and that the judgments made — if not shielded by absolute immunity (see, Tarter v State of New York, 68 NY2d 511, supra) — were nonnegligent.

Thus, what remains for determination is whether the State should be held answerable civilly in damages to the estate of decedent for the vicious acts of an ex-convict, while lawfully at liberty, (1) because of the prison physician’s response to the health report, or (2) because of Campbell’s enrollment at the College. We conclude that neither is a basis for liability, and do not reach the issue of causation.

Liability for Acts or Omissions of the Prison Physician

Both lower courts concluded that the prison physician inaccurately completed Campbell’s health report — that in indicating there was no evidence of emotional instability he necessarily failed to examine Campbell’s medical records and misled the College regarding Campbell’s stability. With no citation of authority they held that the physician had thus breached a duty that ran to students of the College individually. In the judgment of the Appellate Division, if Campbell’s medical history had been disclosed in the medical report, there could be little doubt that the College would have rejected him.

The human desire that there should be some recovery for this tragedy is understandable, as is the commonsense expectation that a health report would solicit a responsible medical history that would reveal prior instability and addiction. But before proceeding into the uncharted waters of the legal consequences of a physician’s inaccurate responses to a health report — particularly the novel question whether his duty ran beyond the school, to students individually — it is necessary to consider whether there is any support in the record for the holding that by his responses the physician actually committed wrongdoing and misled the College.

Any finding of wrongdoing in the completion of the form must of course begin with scrutiny of the completed form upon which this holding hinges. Both courts specifically identified as wrongful the physician’s negative response to the question, "Is there any evidence of anxiety or other tension states or emotional instability?” The trial court additionally referred to his failure to describe Campbell’s medical history under "Personal History”, and to respond to the question regarding prior psychiatric care. Dr. Fernandez was not himself called to testify by either party. There is, moreover, no suggestion that he withheld information personally known to him from any prior relationship with Campbell, or indeed that he had any prior relationship with Campbell; liability was predicated on the conclusion that the report imposed an affirmative duty on the prison physician to investigate Campbell’s medical records.

The form was part of Campbell’s postadmission acceptance package. The first page, including the "Personal History”, asked "Have you ever been under the care of a Psychiatrist?” and "Do you have any drug, food or other allergies?” (emphasis added), obviously contemplating that responses would be made by the prospective student, not the physician. The second page, captioned "Physical Examination,” was principally devoted to physical findings upon an examination, such as the condition of the patient’s eyes, ears, glands, heart and lungs. It then asked, "Is this individual capable of unlimited physical activity (athletics, gym classes, swim?)”; "Is there any evidence of anxiety or other tension states or emotional instability?” (which, on the single line provided, the doctor answered "No”); "Do you recommend further investigation or treatment?” (left blank); and "If you wish any medical treatment carried out while the student is at College, please send separate detailed instructions to the College physician.” The page concluded with the date, signature, address and telephone number of the "Examining Physician,” and the following legend: "Examining Physician: Please detach along perforation and return this form to: Medical Director, State University College at Buffalo, 1300 Elmwood Avenue, Buffalo, New York 14222.”

Wholly apart from its plain and undisputed intendment, this particular form on its face asked the doctor for a report of a physical examination, not a certified medical history; it did not call upon the physician to search and convey the contents of the prison medical records. While the State asserts that such an inquiry would have impermissibly sought confidential information, citing Mental Hygiene Law § 33.13, the fact remains that this form did not even request such information. Thus, there is no support for the predicate conclusions that the physician responded inaccurately, that he had a duty in completing this form to investigate Campbell’s prison records, and that he misled the College.

Even assuming, however, that the physician’s response was incomplete or inaccurate by reason of his failure to set forth Campbell’s prior medical history, we disagree with the lower courts that the doctor’s duty extended to all students of the College individually.

Embedded in the law of this State is the proposition that a duty of reasonable care owed by the tort-feasor to the plaintiff is elemental to any recovery in negligence (see, e.g., Pulka v Edelman, 40 NY2d 781, 782; Palsgraf v Long Is. R. R. Co., 248 NY 339, 344). Foreseeability of injury does not determine the existence of duty (Strauss v Belle Realty Co., 65 NY2d 399, 402). Unlike foreseeability and causation, both generally factual issues to be resolved on a case-by-case basis by the fact finder, the duty owed by one member of society to another is a legal issue for the courts (De Angelis v Lutheran Med. Center, 58 NY2d 1053, 1055). "While moral and logical judgments are significant components of the analysis, we are also bound to consider the larger social consequences of our decisions and to tailor our notion of duty so that 'the legal consequences of wrongs [are limited] to a controllable degree’ ” (Waters v New York City Hous. Auth., 69 NY2d 225, 229, quoting Tobin v Grossman, 24 NY2d 609, 619; see also, Fazzolari v Portland School Dist. No. 1J, 303 Ore 1, 734 P2d 1326 [Linde, J.]). While the Appellate Division in a single sentence disposed of the issue ("Fernandez was under a duty to respond accurately to the questionnaire, a duty which extended to the college community” [109 AD2d, at 51]), we cannot agree that the physician completing a prospective college student’s report of a physical examination owed a duty to each member of the college community to search out and disclose a patient’s medical past.

Liability in negligence may of course rest on some form of written misrepresentation or nondisclosure on the part of defendant by which plaintiff or a third party is misled, resulting in injury or damage to plaintiff. The basis of liability is the fact that the misrepresentation or nondisclosure has led the person to whom it was made to forego action that might otherwise have been taken for the protection of the plaintiff (Prosser and Keeton, Torts § 33, at 207 [5th ed]). "Liability in such cases arises only where there is a duty * * * to give the correct information * * * There must be knowledge or its equivalent that the information is desired for a serious purpose; that he to whom it is given intends to rely and act upon it; that if false or erroneous he will because of it be injured in person or property. Finally, the relationship of the parties * * * must be such that * * * the one has the right to rely upon the other for information, and the other giving the information owes a duty to give it with care.” (International Prods. Co. v Erie R. R. Co., 244 NY 331, 338.) Applying these standards in commercial actions for the negligent preparation of financial reports, we have further required actual privity, or something approaching privity, such as conduct on the part of defendant linking defendant to plaintiff which evinces defendant’s understanding of plaintiff’s reliance (Credit Alliance Corp. v Andersen & Co., 65 NY2d 536, 550; see also, White v Guarente, 43 NY2d 356, 361; Ultramares Corp. v Touche, 255 NY 170, 182-185; Glanzer v Shepard, 233 NY 236, 238-239). We have limited the universe of permissible plaintiffs because a failure to do so would impose a duty of reasonable care enforceable by any member of an indeterminate class of persons, present and prospective, known and unknown, directly or indirectly injured by any negligence. "The hazards of a business conducted on these terms are so extreme as to enkindle doubt whether a flaw may not exist in the implication of a duty that exposes to these consequences.” (Ultramares Corp. v Touche, 255 NY 170, 179-180, supra.)

While hardly identical, the situation before us poses a similar underlying concern: that the physician reporting the results of a physical examination of a patient, for the benefit of his patient, not be held to limitless liability to an indeterminate class of persons conceivably injured by any negligence in that act. In completing this particular report, the physician plainly owed a duty of care to his patient and to persons he knew or reasonably should have known were relying on him for this service to his patient. The physician did not, however, undertake a duty to the community at large (see, White v Guarente, 43 NY2d 356, 361, supra; Palsgraf v Long Is. R. R. Co., 248 NY 339, 342, supra; see also, Knier v Albany Med. Center Hosp., 131 Misc 2d 414, 415). There is no evidence that Dr. Fernandez was aware or should have been aware that this form would be relied on by decedent or other students as his representation of Campbell’s medical history. Indeed, there is no indication that anyone other than Campbell and the College medical director was intended to receive the information or could have been expected to rely on it. Any duty the physician might have had to inform the College of Campbell’s medical history, in connection with offering him health care, thus did not extend to members of the College community individually (see, Strauss v Belle Realty Co., 65 NY2d 399, 403-404, supra; Moch Co. v Rensselaer Water Co., 247 NY 160, 168).

We therefore conclude that liability was erroneously imposed on the State for. the conduct of the prison physician in completing Campbell’s health report.

Liability for Acts or Omissions of the College

Independent of the physician’s conduct, the courts below also found the College liable to claimants.

The trial court, while acknowledging the limited scope of judicial review of college admissions decisions, concluded that liability should be predicated on the College’s failure to reject or restrict Campbell because of the unreasonable risk of harm and foreseeable danger he presented: "[the College’s] duty, simply put, was not to subject its students to an unreasonable risk of harm from the conduct of one such as Campbell whom it knew or should have known posed such a risk. See 2 Restatement (Second) of Torts, § 302B, supra. ” The Appellate Division found a breach of statutory duty to develop criteria for eligibility, concluding that if rational criteria had been established Campbell would not have been admitted. The Appellate Division, moreover, posited the College’s duty of heightened inquiry on the fact that this was "an experimental program for the admission of convicted felons” (109 AD2d, at 53, 55).

There is no basis for the conclusion first reached by the Appellate Division that the College breached a statutory duty when it accepted Campbell by simply applying the statutory standards, and without having formulated regulations establishing additional criteria for eligibility. We thus need not consider whether any duty to enact regulations, if it existed, would operate to permit recovery for damages for injury by one student to another.

Nor can we accept the conclusion below that, by participating in this special program, the College undertook either a duty of heightened inquiry in admissions, or a duty to restrict his activity on campus, for the protection of other students.

As noted earlier, the imposition of duty presents a question of law for the courts (see, Akins v Glens Falls City School Dist., 53 NY2d 325, 333; Pulka v Edelman, 40 NY2d 781, 782-784, supra), resting on policy considerations of whether plaintiff’s interests are entitled to legal protection against defendant’s conduct (Turcotte v Fell, 68 NY2d 432, 437; De Angelis v Lutheran Med. Center, 58 NY2d 1053, 1055, supra; see generally, Prosser and Keeton, Torts § 53 [5th ed]). While both lower courts soundly disavowed the imposition of liability on the basis of the doctrine of in loco parentis — concluding that colleges today in general have no legal duty to shield their students from the dangerous activity of other students (see, 109 AD2d, at 52-53; see also, Reidhaar, The Assault on the Citadel: Reflections on a Quarter Century of Change in the Relationships Between the Student and the University, 12 J Coll & Univ L Rev 343) — the question before us today, in essence, is whether such a duty should nonetheless be recognized when a college admits an ex-felon such as Campbell as part of a special program. As claimants recognize, we have not previously imposed such a duty, and we see no justification for doing so now.

SEEK is an established program for the disadvantaged generally, which may include persons who have completed prison terms — and thus by definition persons with a history of antisocial, even dangerous behavior — but it does not include incarcerated felons. When he began his studies at the College, Campbell was not an incarcerated felon; he had served his prescribed punishment and was entitled to release, on conditions that did not include any continuing care or treatment. The SEEK admissions director at the College determined that —apart from his educational and economic qualifications — he had the "potential for the successful completion of a post secondary program”. (Education Law § 6452 [1].) Consistent with his parole obligations, theoretically Campbell could have lived anywhere he chose, and otherwise enjoyed the rights of other citizens, including the right to be free of unfair discrimination by reason of prior arrests and imprisonment (see, e.g., Correction Law art 23-A [employment of former inmates]; Executive Law § 296 [15], [16]). His release and return to society at the age of 33 — presumably with a long life still ahead of him — were mandated by law as well as by public policy, which have as their objectives rehabilitating and reintegrating former inmates in the hope that they will spend their future years productively instead of returning to crime. To this end, the value of education — both as an escape from society’s underclass, and as a benefit to the public generally— is apparent (see, Correction Law § 136; 1969 McKinney’s Session Laws of NY, at 2579).

These policy considerations are pertinent to our determination that, as a matter of law, a heightened duty of inquiry should not have been imposed on the College. Such a duty would run counter to the legislative policy embodied by the SEEK program as well as the laws and policies promoting the reintegration of former convicts into society. But even more fundamentally, the underlying premise that, once released, Campbell by reason of his past presumptively posed a continuing, foreseeable risk of harm to the community is at odds with the laws and public policy regarding the release of prisoners. Consistent with conditions of parole, an individual returned to freedom can frequent places of public accommodation, secure employment, and if qualified become a student. On any other theory, former inmates cannot be returned to society without imposing on those who open doors to them the risk of absolute liability for their acts.

Nor did the College have a duty to restrict Campbell, as a student, even assuming it had a right to control his contacts with other students. Publicly branding him on campus as a former convict and former drug addict would have run up against the same laws and policies that prevented discriminating against him. Moreover, the fact that Campbell had a criminal record was apparently known on campus, even to Eiseman and Schostick. In actual fact, Campbell was diligently monitored, as both lower courts found; until his brutal explosion, there was no complaint regarding his campus behavior. No greater restriction is even suggested that might have avoided this off-campus tragedy. As the college and university amici cogently contend, imposing liability on the College for failing to screen out or detect potential danger signals in Campbell would hold the college to a higher duty than society’s experts in making such predictions — the correction and parole officers, who in the present case have been found to have acted without negligence.

Finally, it is apparent that there are profound social issues underlying this case. It therefore bears emphasis that the question before us for resolution is simply whether the College had a legal duty in the circumstances, that requires it to respond in damages for Campbell’s rape and murder of a fellow student; we do not consider whether a college might or even should investigate and supervise its students differently. Moreover, while hindsight has a peculiar clarity and wisdom, the fact remains that the contemporaneous, nonreviewable judgments by which the College’s actions must be evaluated were that Campbell, upon his release, needed no psychiatric care or other treatment, and further that he had a potential for success in college.

Accordingly, the judgment appealed from and order of the Appellate Division brought up for review should be reversed, with costs, and the claim dismissed.

Chief Judge Wachtler and Judges Simons, Alexander, Titoné and Bellacosa concur; Judge Hancock, Jr., taking no part.

Judgment appealed from and order of the Appellate Division brought up for review reversed, etc.

      . Penal Law § 70.40 (1) (b) in relevant part provides: "A person who is serving one or more than one indeterminate sentence of imprisonment shall, if he so requests, be conditionally released from the institution in which he is confined when the total good behavior time allowed to him, pursuant to the provisions of the correction law, is equal to the unserved portion of his maximum or aggregate maximum term.” Conditions upon conditional release are substantially the same as conditions imposed upon parole. Campbell requested conditional release, signed a form agreeing to "Conditions of Parole,” and was thus entitled to be released into the legal custody of the Board of Parole, with a maximum expiration date of December 19, 1977 for parole supervision.

      . There was substantial trial testimony reflecting the hard reality that inmates with long records of crime, schizophrenic behavior and drug abuse are, upon completion of their sentences, every day released into society, many only to be returned to prison and addiction. Campbell compared favorably to most other inmates, based on his apparent progress in prison.

      . Claimants urge that, as authority, we might premise liability on the Restatement (Second) of Torts § 302 B — that the College was liable because it had a duty not to subject its students to an unreasonable risk of harm from one whom it knew or should have known posed such a risk. As is made clear in the Restatement, however, this section presupposes the existence of a duty (see, Restatement [Second] of Torts § 302 B, comment a; § 302, comment a), and thus cannot supply the fundamental omission here. Similarly inapposite are cases where there is a special relationship with a student, and cases imposing liability for failure to maintain school premises (see, e.g., Miller v State of New York, 62 NY2d 506).


author: Titone, J.

text:
    In the Matter of Save the Pine Bush, Inc., et al., Appellants-Respondents, v City of Albany et al., Respondents-Appellants.
    Argued April 29, 1987;
    decided June 11, 1987

      POINTS OF COUNSEL

      Vincent J. McArdle, Jr., Corporation Counsel (Gary F. Stiglmeier of counsel), for City of Albany, respondent-appellant.

      Peter A. Lynch for Willard T. Anderson, respondent-appellant.

      Lewis B. Oliver, Jr., and Harriet B. Oliver for appellants-respondents.

      Gary H. Gutchess for The New York State Builders Association, Inc., amicus curiae.

   OPINION OF THE COURT

Titone, J.

The clash between the goals of environmental preservation and commercial development of the Pine Bush area of the City of Albany has given rise to this dispute. Plaintiffs-petitioners allege that violations of the State Environmental Quality Review Act (SEQRA) should render the City’s enactment of three ordinances which open the Pine Bush to commercial development invalid and that the first of the ordinances is vague and constitutes an overbroad delegation of authority. First, we hold that a proceeding alleging SEQRA violations in the enactment of legislation must be commenced within four months of the date of enactment of the ordinance. Thus, the SEQRA challenges to the first two ordinances are untimely. In addition, the cause of action alleging vagueness and an overbroad delegation of authority in the first ordinance, although timely, is not meritorious. We also hold, however, that when an action with potential adverse effects on the environment is part of an integrated project designed to balance conflicting environmental goals within a subsection of a municipality that is ecologically unique, the potential cumulative impact of other proposed or pending projects must be considered pursuant to SEQRA before the action may be approved. Without this consideration, approval of the third ordinance enacted by the City was arbitrary and capricious and must be declared null and void.

I.

The Pine Bush, partially within the City of Albany, contains the only remaining large pine barrens on inland sand dunes in the United States. Its unusual inland sand dune composition is the home of rare plant and animal species such as the endangered Karner Blue Butterfly (ECL 11-0535) which survives on the blue lupine, a plant indigenous only to the pine barren. The record establishes that the Pine Bush has a number of distinct environmental characteristics worthy of protecting.

Recognizing this need for preservation but also desiring to expand commercial development into the area, on March 5, 1984, the City of Albany Common Council approved the first ordinance challenged in this proceeding, which was "intended to define commercial development of the area of the City known as the Pine Bush by insuring that its ecological integrity is maintained” (ordinance Number 7.11.84 § 1). The ordinance amended the zoning provisions of the City by providing for a new C-PB Commercial-Pine Bush classification allowing "[s]ingle-story office buildings or otherwise conforming to the land contour as determined and approved by the appropriate Site Plan Review Agency” (ordinance Number 7.11.84 § 3). No particular land was set aside for possible development under the ordinance. The second challenged ordinance, approved on July 2, 1984, created the Pine Bush Site Plan Review District encompassing approximately 550 acres of undeveloped Pine Bush land and delineated a site plan review process with specific criteria to be used by the Site Plan Review Agency in passing upon applications for certain uses within the district. The final challenge is to Common Council’s approval of defendant-respondent Anderson’s application to change the zoning classification of 29.9 acres of undeveloped land within the Pine Bush to C-PB Commercial-Pine Bush enabling Anderson to construct a five-building, two-story office complex. The City approved the change following consideration of a final environmental impact statement and a determination that any adverse environmental effects had been minimized to the maximum extent practicable (6 NYCRR 617.9 [c]).

Plaintiffs-petitioners, a not-for-profit corporation whose purpose is to "promote the preservation of Albany’s unique and beautiful pine barrens”, several of the corporation’s officers, local homeowners’ associations and individual homeowners and taxpayers, commenced this combined declaratory judgment action and article 78 proceeding on March 5, 1985 alleging that various SEQRA violations in the enactment of the challenged ordinances rendered them illegal, that the zone change for Anderson’s property constituted spot zoning, and that the creation of C-PB Commercial-Pine Bush zone involved an improper delegation of authority to the Site Plan Review Board. Special Term granted all the relief requested and declared the ordinances null and void. With respect to the Anderson property in particular, the court held that Common Council’s failure to consider the cumulative impact of other pending developments in the Pine Bush when it reviewed Anderson’s Environmental Impact Statement (EIS) violated the provisions of SEQRA. Upon reargument, the court adhered to its original decision and declined to dismiss the first two causes of action on the ground that they were barred by the four-month Statute of Limitations (CPLR 217). Special Term concluded that the ordinances challenged were purely legislative acts and that the applicable Statute of Limitations was six years (CPLR 213 [1]).

The Appellate Division modified. The Third Department agreed that the City’s failure to address the cumulative environmental impact of pending projects in the Pine Bush was fatal to Anderson’s application. However, the court held that the applicable statutory period for challenging SEQRA violations was four months and, thus, held that the second cause of action concerning the creation of the Pine Bush Site Plan Review District was time-barred. The court held that the first cause of action challenging the C-PB Commercial-Pine Bush classification was timely because it had not been ripe for review until the classification was applied to a particular piece of land. Nonetheless, the court declined to reach the substantive challenge as unnecessary.

II.

In order to determine the Statute of Limitations applicable to a particular declaratory judgment action, the court must "examine the substance of that action to identify the relationship out of which the claim arises and the relief sought” (Solnick v Whalen, 49 NY2d 224, 229). If the court determines that the underlying dispute can be or could have been resolved through a form of action or proceeding for which a specific limitation period is statutorily provided, that limitation period governs the declaratory judgment action (Press v County of Monroe, 50 NY2d 695; Solnick v Whalen, supra, at 230; see, Koerner v State of New York, 62 NY2d 442, 446-447). Here, the question is whether the four-month Statute of Limitations period applicable to article 78 proceedings should be invoked.

The general rule is that an article 78 proceeding is unavailable to challenge the validity of a legislative act such as a zoning ordinance (Matter of Voelckers v Guelli, 58 NY2d 170, 176; Matter of Merced v Fisher, 38 NY2d 557, 559; Peekskill Suburbs v Morabito, 74 AD2d 843, affd 51 NY2d 941). However, when the challenge is directed not at the substance of the ordinance but at the procedures followed in its enactment, it is maintainable in an article 78 proceeding (Matter of Voelckers v Guelli, supra, at 177).

With the exception of the challenge to the first ordinance based upon vagueness and an overbroad delegation of authority, regardless of the form in which plaintiffs-petitioners have chosen to couch their action, their challenges to the three ordinances primarily involve the City’s failure to follow SEQRA. As such, those causes of action were maintainable in an article 78 proceeding and should have been commenced within four months (CPLR 217; Matter of Connell v Town Bd., 67 NY2d 896; Lai Chun Chan Jin v Board of Estimate, 101 AD2d 97, appeal dismissed 63 NY2d 675; Weinberg, Practice Commentary, McKinney’s Cons Laws of NY, Book 17 Vi, ECL C8-1019:6, at 79; see, Matter of Tri-County Taxpayers Assn. v Town Bd., 55 NY2d 41; Matter of Niagara Recycling v Town Bd., 83 AD2d 335 [Hancock, Jr., J.], affd 56 NY2d 859; Matter of Brew v Hess, 124 AD2d 962). Accordingly, we agree with the Appellate Division that the second cause of action challenging the creation of the Pine Bush Site Plan Review District was untimely.

By the same reasoning, contrary to the view of the Appellate Division, the action attacking the alleged SEQRA violations in the classification of C-PB Commercial-Pine Bush was not commenced in a timely manner. Common Council’s creation of this classification, with its concurrent announcement of a policy to commercially develop the Pine Bush in an ecologically sound manner, constituted an "action” within the meaning of SEQRA, in that it committed the City to future commercial development of the Pine Bush (6 NYCRR 617.2 [b] [2]). SEQRA review was required before any specific applications were needlessly studied at great expense to both the City and the developers (6 NYCRR 617.1 [c]; cf., Matter of Programming & Sys. v New York State Urban Dev. Corp., 61 NY2d 738). Inasmuch as consideration of possible detrimental effects of this action should have been given at the earliest possible time (ECL 8-0109 [4]; 6 NYCRR 617.1 [c]), the time to complain of SEQRA violations in the enactment of this ordinance was within four months of the date of the enactment.

III.

Plaintiffs/petitioners also raised a constitutional question based upon the claimed vagueness of the ordinance which created the classification C-PB Commercial-Pine Bush and its alleged overbroad delegation of authority to the Site Plan Review Agency. As this challenge could not be maintained in an article 78 proceeding (see, Press v County of Monroe, 50 NY2d 695, 702, supra), the four-month limitation period is inapplicable to this claim. On the merits, however, we hold that the ordinance is not vague and does not constitute an overbroad delegation of authority.

The ordinance creating the classification of C-PB Commercial-Pine Bush defined the principal commercial use allowed as "[s]ingle-story office buildings or otherwise conforming to the land contour as determined and approved by the appropriate Site Plan Review Agency.” Plaintiffs/petitioners contend that this language improperly conferred legislative power on the Site Plan Review Agency. However, "there is no constitutional prohibition against the delegation of power, with reasonable safeguards and standards” (Matter of Levine v Whalen, 39 NY2d 510, 515; Matter of City of Utica v Water Pollution Control Bd., 5 NY2d 164, 169). This ordinance merely added a classification to the list of possible classifications with which the Common Council could label a particular zone. The Site Plan Review Agency was powerless to act pursuant to this ordinance until the second ordinance, creating the Pine Bush Site Plan Review District, was enacted. In the second ordinance, Common Council enacted a specific framework of criteria to be considered by the Agency in passing upon an application. The criteria did not allow the unchecked discretion of the Site Plan Review Agency (see, Matter of Tandem Holding Corp. v Board of Zoning Appeals, 43 NY2d 801). On the contrary, the standards listed in the second ordinance, as well as the guideline in the first ordinance itself that the office buildings be single story or otherwise conform to the land contour, adequately bridle the discretion of the Agency. Therefore, taken in context with the sections of the entire zoning ordinance and recognizing that the Site Plan Review Agency’s discretion to allow office buildings higher than one story was limited by its examination of the land contour by the first ordinance, the first ordinance is neither vague nor an improper delegation of authority.

IV.

The next question is whether the City’s failure to consider in the EIS for Anderson’s project the cumulative impact of as many as 10 pending proposals covering 295.5 acres violated its obligations under SEQRA pursuant to 6 NYCRR 617.11 (a) (11) and (b) or 6 NYCRR 617.15 (a) (l). Defendants-respondents argue that analysis of cumulative impact is not mandatory when projects under consideration are separately owned. We disagree.

While the regulations provide that the agency may choose, in its discretion, not to examine the cumulative impact of separate applications within the same geographic area (6 NYCRR 617.15 [a] [1]), the applications involved in this case are not separate, but related, and, thus, are subjects for mandatory study under 6 NYCRR 617.11 (a) (11) and (b). In Chinese Staff & Workers Assn. v City of New York (68 NY2d 359), we held that the City of New York had failed to fulfill its City Environmental Quality Review (CEQR) obligations by neglecting to examine the cumulative impact that the seven luxury apartment buildings contained in the City’s plan for the Special Manhattan Bridge District would have on the displacement of low-income residents and on the character of the historic Chinatown district (id., at 367-368). We considered those projects related, thus requiring analysis of cumulative impact, not because of any commonality of ownership of the proposed buildings, but rather because they were all part of a plan designed to add to the City’s housing stock while preserving the scale and character of the Chinatown community (id., at 367). Although the holding in that case rested upon a provision of CEQR which is not applicable here, the corresponding SEQRA provision, 6 NYCRR 617.11 (b) (1), is virtually identical.

As in Chinese Staff, the project at issue in this case is only a part of a larger plan designed to resolve conflicting specific environmental concerns in a subsection of a municipality with special environmental significance (cf., Kleppe v Sierra Club, 427 US 390). Where a governmental body announces a policy to reach a balance between conflicting environmental goals— here, commercial development and maintenance of ecological integrity — in such a significant area, assessment of the cumulative impact of other proposed or pending developments is necessarily implicated in the achievement of the desired result. Since "SEQRA mandates a rather finely tuned and systematic balancing analysis in every instance” (Matter of Town of Henrietta v Department of Envtl. Conservation, 76 AD2d 215, 223), the City should have considered each of the factors listed in ECL 8-0109 and 6 NYCRR 617.11, identified any factor upon which the proposed action might have a significant effect and taken a "hard look” at it (Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400, 416-417). Thus, under the special circumstances which exist here, the City of Albany’s failure to consider the potential cumulative impact of other pending projects with the Anderson application upon the Pine Bush before granting the zoning change constituted a violation of its obligations pursuant to SEQRA. The determination to grant Anderson’s application for a zoning change to C-PB Commercial-Pine Bush was, therefore, arbitrary and capricious and the ordinance must be declared null and void (Chinese Staff & Workers Assn. v City of New York, supra, at 369; Matter of Tri-County Taxpayers Assn. v Town Bd., supra).

V.

We have examined the remaining contentions of plaintiffs-petitioners and find them to be without merit.

Accordingly, the order of the Appellate Division should be modified, without costs, by reinstating so much of the first cause of action as seeks a declaration that the ordinance is vague and constitutes an overbroad delegation of authority, and declaring that the ordinance is not invalid in these respects.

Chief Judge Wachtler and Judges Kaye, Alexander, Hancock, Jr., and Bellacosa concur; Judge Simons taking no part.

Order modified, without costs, in accordance with the opinion herein and, as so modified, affirmed.

      . Plaintiffs/petitioners argue essentially that the ordinance was invalid because of an overbroad grant of legislative power to the Site Plan Review Agency.

      . The criteria, contained in section 5 of the new article 7-A of the zoning ordinance, are as follows:
      "1. Location, arrangement, size, design and general site compatibility of buildings, lighting and signs.
      "2. Overall impact on the neighborhood including compatibility of design considerations.
      "3. Adequacy and arrangement of vehicular traffic access and circulation, including intersections, road widths, pavement surfaces, dividers and traffic controls.
      "4. The location and arrangement of off-street parking, delivery and loading areas.
      "5. Adequacy and arrangement of pedestrian traffic improvements and overall pedestrian convenience.
      "6. Adequacy of stormwater and drainage facilities.
      "7. Adequacy of water supply and sewage disposal connections.
      "8. Type and arrangement of trees, shrubs, fencing and any other improvements proposed as a visual and/or noise buffer between the subject parcel and adjoining lots.

        "9. Adequacy of fire lanes and other emergency zones.
      "10. Adequacy of exterior storage areas and their fencing or screening.
      "11. Special attention to the adequacy and impact of structures, roadways and landscaping in areas with susceptibility to ponding, flooding and/or erosion.”

      . 6 NYCRR 617.11 (a) includes the following in its list of indicia of significant effects on the environment: "(11) two or more related actions undertaken, funded or approved by an agency, no one of which has or would have a significant effect on the environment, but which cumulatively meet one or more of the criteria in this section.”
      6 NYCRR 617.11 (b) provides, in relevant part: "For the purpose of determining whether an action will cause one of the foregoing consequences, the action shall be deemed to include other simultaneous or subsequent actions which are * * * included in any long-range plan of which the action under consideration is a part”.
      6 NYCRR 617.15 (a) (1) states: "A programmatic or generic environmental impact statement may be used to assess the environmental effects of * * * a number of separate actions in a given geographic area which, if considered singly may have minor effects, but if considered together may have significant effects”.


author: Per Curiam.

text:
    In the Matter of Lee Vincent, a Justice of the Burke Town Court, Petitioner. State Commission on Judicial Conduct, Respondent.
    Argued June 1, 1987;
    decided June 30, 1987
    POINTS OF COUNSEL

      Glenn MacNeill and James P. Bessette for petitioner.

      Gerald Stern and Jean M. Savanyu for respondent.
   OPINION OF THE COURT

Per Curiam.

The record reflects and petitioner frankly admits that, from 1980 to 1984, petitioner grossly neglected his duties as Town Justice of Burke. During that period, he repeatedly failed to make timely deposits and remittals of court moneys to the State Comptroller and to dispose of his small caseload in a timely manner. Instead of taking measures to collect fines he had imposed upon guilty pleas, petitioner imposed unconditional discharges or dismissals in several cases after long periods of nonpayment. Petitioner does not contest the Commission’s determination of misconduct based upon his negligence in handling public moneys, maintaining court records and disposing of cases. He argues only against the sanction of removal.

Petitioner’s persistent failure to make timely deposits and remittals of court moneys to the State Comptroller warrants the sanction of removal (Matter of Rater, 69 NY2d 208, 209; Matter of Petrie v State Commn. on Judicial Conduct, 54 NY2d 807). While petitioner asserts various mitigating factors, his arbitrary dismissal and unconditional discharge of cases is an aggravating factor which erodes the public’s confidence and justifies the sanction of removal.

Accordingly, the determined sanction of the State Commission on Judicial Conduct should be accepted, without costs.

Chief Judge Wachtler and Judges Simons, Kaye, Titone, Hancock, Jr., and Bellacosa concur in Per Curiam opinion; Judge Alexander taking no part.

Determined sanction accepted, without costs, and Lee Vincent is removed from his office of Justice of the Burke Town Court, effective immediately.


text:
    In the Matter of Bertram R. Gelfand, as Surrogate, Bronx County, Petitioner. State Commission on Judicial Conduct, Respondent.
    Argued June 3,1987;
    decided July 2, 1987

      POINTS OF COUNSEL

      Roy L. Reardon, Morgan F. Kelly and Mary Elizabeth McGarry for petitioner.

      Robert H. Tembeckjian and Gerald Stem for respondent.
   OPINION OF THE COURT

Per Curiam.

Petitioner has served as Surrogate of Bronx County since January 1, 1973. It is uncontested that prior to the disclosure of the events that are the subject of this proceeding, he was a respected member of the judiciary of our State. The evidence before us indicates, however, that his removal from office is warranted because of his misconduct between August 3, 1985 and December 31, 1985 and his subsequent lack of candor with the State Commission on Judicial Conduct.

On June 20, 1986, at respondent’s behest, respondent’s administrator issued a formal complaint charging petitioner with eight separate acts of judicial misconduct during the period from August 3, 1985 to December 31, 1985. Each of the allegations involved acts by the Judge motivated by animus toward a former law assistant because of a personal and sexual relationship between them. Petitioner admitted that the relationship existed while the law assistant worked for him, but denied the material portions of the allegations of misconduct. The matter was referred for a hearing.

. The evidence showed that, for a period of several years, petitioner had engaged in an extramarital affair with one of his law assistants. In addition to sustaining all of the charges in the formal complaint and finding that petitioner lacked candor as to nearly all of the material facts in the proceeding, the Referee found that petitioner had misused his position throughout the entire course of the affair to prolong the relationship. The Commission determined that petitioner engaged in a course of misconduct throughout the duration of the relationship and lacked candor at the hearing and that the sanction of removal was appropriate. We review the determination upon petitioner’s request (Judiciary Law § 44 [7], [9]).

Upon full factual review of the evidence adduced before the Referee (NY Const, art VI, § 22 [d]; Judiciary Law § 44 [9]), we conclude that, during the period of August 3, 1985 to December 31, 1985, petitioner misused his position as Surrogate of Bronx County by making administrative and personnel decisions, taking official actions, and making implicit and explicit threats to court officials and others in order to prolong a sexual relationship with a law assistant and, later, to exact personal vengeance when she refused to continue their affair. On August 3, 1985, petitioner fired the law assistant based on events in their personal relationship. Shortly thereafter, he emptied her office desk and left the contents on the doorstep of her residence. At that time, petitioner made more than 60 telephone calls — leaving annoying and obscéne messages — but the law assistant apparently had resolved neither to return his calls nor to pursue the relationship. In a desperate effort to reach her, he falsely identified himself to a doorman as her attorney on one occasion and on another threatened to speak to her boyfriend’s parents if the boyfriend would not allow petitioner to speak to her. Petitioner confronted the boyfriend, accused him of "harboring” the law assistant and threatened to speak to his employer, the Bronx County District Attorney, to have him fired if he did not reveal the whereabouts of the law assistant. At the end of August or in early September 1985, petitioner called the Deputy Chief Administrative Judge and asked him to view unfavorably any application that the law assistant might submit for a position in the court system. Finally, in early December 1985, petitioner met with the law assistant’s new employer — her boyfriend’s father. The father was an attorney, a social acquaintance of petitioner and the husband of an employee in petitioner’s court. Petitioner remonstrated with the father because he had hired the law assistant without first consulting him. This highly improper conduct was compounded further by petitioner’s lack of candor during the course of these proceedings with respect to both the motivation underlying his actions just described, and many background incidents introduced by either petitioner or the Commission, including testimony that was evasive, incredible and false.

We conclude that this conduct constituted inexcusable violations of sections 100.1 and 100.2 of the Rules Governing Judicial Conduct (22 NYCRR) and Canons 1 and 2 of the Code of Judicial Conduct. Petitioner’s repeated misuse of his judicial powers and his subsequent failure to be candid in this proceeding were in conflict with the standards of integrity and propriety required of members of the judiciary, and inimical to his role as a Judge (Code of Judicial Conduct Canon 1; see, Matter of Myers, 67 NY2d 550, 554). By allowing his personal relationships to influence both his judgment and the administration of the court over which he presides he could not help but impair public confidence in his integrity and impartiality (Code of Judicial Conduct Canon 2; Matter of Sims, 61 NY2d 349, 359). The effectiveness of the judicial system is dependent upon the public’s trust and violations such as these which undermine that trust are so contrary to the ethical obligations required of Judges in conducting their personal and judicial duties that removal is essential (see, Matter of Aldrich v State Commn. on Judicial Conduct, 58 NY2d 279, 283; Matter of Shilling, 51 NY2d 397, 402; Matter of Kuehnel, 49 NY2d 465, 469).

We draw these conclusions, however, without regard to any misconduct that may have occurred prior to the time period described in the formal complaint served upon petitioner. While the Referee may have allowed relevant evidence of events predating the alleged misconduct in order to clarify or to provide background for the formal charges, the complaint did not charge petitioner with misconduct prior to August 1985. Accordingly, it was unnecessary and indeed improper for the Commission to include in its determination extensive findings of fact and legal conclusions based on uncharged incidents — often of a sensational nature — which preceded the dates covered by the complaint or to consider such conduct in its determination of sanction. Indeed, the Commission’s responsibility to safeguard the public’s trust in the judiciary by both shielding innocent Judges from unjust charges and exposing and disciplining those who have abused their office is not fulfilled where uncharged conduct forms the basis of its published determination. Due process requires that petitioner not be deprived in this proceeding of his interest in continuing as a Judge because of the uncharged misdeeds (Matter of Murray v Murphy, 24 NY2d 150, 157; see, Matter of Seiffert, 65 NY2d 278, 280). Because of our power to review the facts in cases involving judicial misconduct (NY Const, art VI, § 22 [d]; Judiciary Law § 44 [9]), however, a new hearing is unnecessary. We conclude that the acts that were described in the formal complaint and proven at the hearing constitute sufficient cause for removal.

For the foregoing reasons, the determined sanction of removal is accepted, without costs.

Judges Simons, Kaye, Alexander, Titone and Hancock, Jr., concur in Per Curiam opinion; Chief Judge Wachtler and Judge Bellacosa taking no part.

Determined sanction accepted, without costs, and Bertram R. Gelfand is removed from his office of Surrogate, Bronx County, effective immediately.

       The relevant portions of the complaint are as follows:
      "4. From August 3, 1985, through December 31, 1985, in connection with his personal relationship with I. G., a law assistant on his staff from March 1978 to May 1984 and from September 1984 to September 10, 1985, respondent engaged in a course of misconduct, to wit:
      "(a) on August 3, 1985, respondent told Ms. G. she was 'off the payroll’ as of August 2, 1985, a statement made for personal reasons, unrelated to her official duties;
      "(b) on August 3, 1985, respondent emptied Ms. G.’s office of her personal effects and delivered them in boxes to Ms. G.’s home for personal reasons, unrelated to her official duties;
      "(c) on or about August 3, 1985, to on or about September 17, 1985, respondent left obscene, annoying and otherwise offensive messages on Ms. G.’s telephone answering machine;
      "(d) on or about August 4, 1985, respondent, in attempting to see Ms. G. at an apartment building in Riverdale to discuss personal matters, falsely identified himself to the doorman of that building as 'M. L.’, who at the time was Ms. G.’s attorney;
      "(e) in August 1985, respondent demanded to meet with, and then confronted, S. K. about his relationship with Ms. G., told Mr. K. that he knew the Bronx County District Attorney, who was Mr. K.’s employer, and threatened to speak to the District Attorney about Mr. K.’s conduct;
      "(f) in August 1985, respondent left offensive messages on S. K.’s telephone answering machine, and in one such message respondent threatened to speak to Mr. K.’s mother, who then served as Deputy Public Administrator in Bronx County, or to Mr. K.’s father, to obtain S. K.’s permission for respondent to speak to Ms. G.;
      "(g) in or about late August or early September 1985, motivated by animus toward Ms. G. arising out of their personal relationship, respondent requested that New York State’s Deputy Chief Administrative Judge, Milton Williams, view unfavorably any application for employment in the courts that Ms. G. might submit; and
      "(h) in early December 1985, respondent met with E. K. and M. K., of the law firm of K. & K., and indicated his displeasure at their having employed Ms. G. as an associate of their firm without first consulting him.”


text:
    In the Matter of Bloomingdale Brothers, a Division of Federated Department Stores, Inc., Respondent, v Roderick G. W. Chu et al., Constituting the State Tax Commission of the Department of Taxation and Finance of the State of New York, Appellants.
    Argued May 28, 1987;
    decided July 2, 1987

      POINTS OF COUNSEL

      Robert Abrams, Attorney-General (Wayne L. Benjamin, O. Peter Sherwood and Peter H. Schiff of counsel), for appellants.

      Lois D. Thompson, Robert J. Levinsohn and John Woodward for respondent.
   OPINION OF THE COURT

Titone, J.

The question presented is whether a non-New York resident’s out-of-State purchase of a gift from a store, which also does business in New York, is a transaction subject to New York State sales tax solely because, at the customer’s request, the store arranges to have the gift delivered by common carrier, to the ultimate intended recipient in New York. We hold that in such circumstances, the transaction must be deemed to have occurred wholly outside New York State and that, consequently, the New York State sales tax is inapplicable.

According to the stipulated facts, petitioner owns a chain of retail stores which are situated both within and without the State of New York. On August 23, 1976, the Sales Tax Bureau of the Department of Taxation determined that various additional taxes were due and owing from petitioner in the amount of $583,301.12 plus $298,380.13 in penalty and interest charges. Following a prehearing conference held in connection with petitioner’s request for administrative review, the parties resolved most of their disputes, leaving the only remaining issue the taxability of sales made at petitioner’s outofrState stores to non-New York residents who directed the store to have the merchandise delivered by common carrier as gifts to New York residents.

The Sales Tax Bureau assessed petitioner’s tax liability for such transactions at $103,784.64 plus interest, and the determination was then reviewed administratively on the following stipulated facts: petitioner had not collected a use tax from the out-of-State purchasers; the purchasers had exercised control over the merchandise only at the out-of-State point of purchase; New York residents, the ultimate recipients of the merchandise, were bona fide donees and not purchasers; and no sales tax would have been imposed had the out-of-State purchasers themselves taken the merchandise from the store to a common carrier for delivery in New York. The State Tax Commission concluded that the assessment was a valid sales tax and petitioner commenced this article 78 proceeding to review that determination. The Appellate Division annulled the determination holding that the delivery of a gift to a New York resident, purchased out of State by a nonresident, did not constitute a "sale” within the meaning of the Tax Law. That court certified the following question: "Did this court err as a matter of law in annulling the determination, granting the petition and remitting the matter to respondents for further proceedings not inconsistent with this court’s decision?” We now affirm.

Tax Law § 1105 (a) imposes a sales tax of 4% upon "[t]he receipts from every retail sale of tangible personal property”. A "sale” is defined as "[a]ny transfer of title or possession or both, exchange or barter, rental, lease or license to use or consume, conditional or otherwise, in any manner or by any means whatsoever for a consideration, or any agreement therefor, including the rendering of any service, taxable under this article, for a consideration or any agreement therefor.” (Tax Law § 1101 [b] [5] [emphasis supplied].) Respondent urges that the act of delivering a gift to a New York resident by a common carrier engaged by petitioner constitutes a transfer of possession within New York, subjecting the transaction to sales tax.

It is true that delivery in New York has often been listed as a major factor indicating that a taxable New York sale has occurred (see, e.g., McGoldrick v Berwind-White Co., 309 US 33, 58; McGoldrick v Felt & Tarrant Co., 309 US 70; Matter of Schaefer Brewing Co. v Gerosa, 4 NY2d 423, appeal dismissed 358 US 282; Matter of Fifth Ave. Bldg. Co. v Joseph, 297 NY 278; Matter of Sears, Roebuck & Co. v Taylor, 279 NY 184). However, the ultimate destination of the goods is not necessarily the location of a particular sale (see, McLeod v Dilworth Co., 322 US 327). Delivery may occur before the merchandise reaches its final destination. Delivery, in the sense that physical custody is transferred, may take place several times during the course of a transaction, but it is only that delivery which transfers control of the merchandise for consideration which marks a taxable event (McGoldrick v Berwind-White Co., supra; McGoldrick v Felt & Tarrant Co., supra; Matter of Sears, Roebuck & Co. v Taylor, supra; but see, Matter of Fifth Ave. Bldg. Co. v Joseph, supra). .

The transactions in this case, taking place wholly within another State — from the time of contract to the delivery of the goods to a common carrier, at which time the sale was completed and the purchasers exercised control over the merchandise — are not subject to New York’s sales tax (McLeod v Dilworth Co., supra, at 330; Matter of Savemart, Inc. v State Tax Commn., 105 AD2d 1001, appeal dismissed 64 NY2d 1039, lv denied 65 NY2d 604). Indeed, in Matter of Gunther’s Sons v McGoldrick (279 NY 148), we held in a related context that the New York City sales tax did not apply where the sales contract required delivery by the seller, at his expense, to the nonresident purchaser’s address outside New York City. There, the transaction was not taxable because the purchaser exercised dominion over the property only after it left New York City (compare, Matter of Savemart, Inc. v State Tax Commn., supra). Similarly, the transactions at issue are not taxable as the purchasers’ only control over the property was exercised out of State when they directed petitioner to send the merchandise to New York donees after the sale was completed.

Most importantly, it cannot be ignored that the only New York nexus to these transactions is the location of the passive recipients of the gifts. These donees do not stand in the shoes of the purchasers as designees (cf., Matter of Savemart, Inc. v State Tax Commn., supra, at 1003) in their receipt or use of the merchandise. It would be an unprecedented stretch of the word "sale” to characterize this chain of events as beginning with the agreement to purchase and ending with the ultimate acceptance of a gift. The sale required consideration (Tax Law § 1101 [b] [5]) and that was given by the purchaser out of State. The recipients of the gifts within this State were wholly unconnected with the out-of-State exchange of consideration for transfer of title and possession to the purchaser. Therefore, the events at issue were comprised of two transactions: out-of-State sales, followed by gifts to New York donees. Neither transaction justifies imposition of New York’s sales tax.

Our decision in no way encourages tax avoidance, as respondent alleges. The parties have stipulated that had the out-of-State purchasers arranged for delivery of the gifts themselves, the transactions would not have been subject to tax. Respondent fails to demonstrate how the more trouble-free option of asking petitioner to make arrangements with a common carrier would constitute a tax avoidance scheme by a nonresident purchaser not generally liable to pay New York’s sales tax.

Moreover, this interpretation is consistent with the legislative scheme underlying New York’s use tax. In general, out-of-State purchases resulting in New York use of tangible personal property are subject to the use tax (Tax Law § 1110). This tax, which complements the sales tax, taxes uses which have not been and will not be the subject of sales tax (id.). Because the goods at issue were used in New York, but not sold in this State, it would be the use tax, not the sales tax, that would govern. However, the definition of "use” limits the scope of the tax to use by purchasers and, thus, excludes use by donees of gifts (Tax Law § 1101 [b] [7]). The Commission thus seeks to avoid the limitations on the use tax by levying the contested sales taxes. However, it would be inconsistent with the Legislature’s stated intent to tax use only by purchasers of out-of-State articles to allow the sales tax to cover these transactions.

Finally, we must ever be mindful that tax statutes of doubtful meaning are to be construed in favor of the taxpayer (Matter of American Cyanamid & Chem. Corp. v Joseph, 308 NY 259, 263; Dun & Bradstreet v City of New York, 276 NY 198, 204). Moreover, an administrative agency may not extend the meaning of statutory language to apply to situations not embraced within the statute (Matter of Trump-Equitable Fifth Ave. Co. v Gliedman, 57 NY2d 588, 595; see, Matter of Jones v Berman, 37 NY2d 42, 53).

In view of our disposition we do not reach petitioner’s other contentions.

Accordingly, the order of the Appellate Division should be affirmed and the certified question answered in the negative.

Chief Judge Wachtler and Judges Simons, Alexander, Hancock, Jr., and Bellacosa concur; Judge Kaye taking no part.

Order affirmed, with costs, and certified question answered in the negative.


text:
    In the Matter of Hansel L. McGee, Respondent, v Jeffrey R. Korman, Appellant, and Board of Elections of the City of New York, Respondent. (And a Related Proceeding.) Jeffrey R. Korman and Lee L. Holzman, Appellants. In the Matter of Jeffrey R. Korman and Lee L. Holzman, Appellants, v Alice Sachs et al., Constituting the Board of Elections of the City of New York, and Lorraine Backal, Respondents. (And Related Proceedings.) Lorraine Backal, Respondent.
    Argued August 26,1987;
    decided August 27, 1987

      POINTS OF COUNSEL

      Paul A. Victor for appellants.

      John Patrick Deveney for Hansel L. McGee, respondent.

      Kathryn E. Freed for Lorraine Backal, respondent.

      Robert Abrams, Attorney-General (Tarquin Jay Bromley, O. Peter Sherwood and Lawrence S. Kahn of counsel), in support of the constitutionality of New York State Election Law § 6-136.
   OPINION OF THE COURT

Per Curiam.

The Appellate Division, in appeals taken by contesting candidates, Lee L. Holzman, Hansel McGee and Lorraine Backal, and an objector, Jeffrey R. Korman, has declared Election Law § 6-136 (2) (b) unconstitutional, concluding that by requiring candidates for the same elective office in counties of substantially equivalent population to collect different numbers of signatures, the statute denied equal protection.

Holzman, Backal and McGee, all filed designating petitions for nomination as the Democratic candidate for the office of Surrogate of Bronx County in the September 15, 1987 Democratic primary election, the office having become vacant on July 2, 1987, by virtue of the removal of the sitting Surrogate. Cross challenges to the petitions were filed with the Board of Elections by the candidates and Korman. The Board invalidated the McGee petition because it contained fewer than the requisite 5,000 valid signatures of registered Democratic voters residing in Bronx County, and validated the Holzman and Backal petitions. Following these determinations, petitions and cross petitions to validate and invalidate the designating petitions on various grounds were filed in Supreme Court. McGee and Backal raised, among other things, a constitutional challenge to the 5,000-signature requirement of Election Law § 6-136 (2) (b), as being unduly burdensome in light of the shortened time period for collecting signatures following the recent removal of the sitting Surrogate, and thus unconstitutionally impeding access to the ballot. They argued that instead of the normal 37 days provided by the election calendar for the September primary (see, Election Law § 6-134 [6]; § 6-158 [1]), they were impermissibly afforded only 15 days.

Supreme Court rejected this constitutional argument. That court, as is relevant here, invalidated the Backal designating petition, finding that it contained fewer than the 5,000 valid signatures required under Election Law § 6-136 (2) (b). In a separate order, the court dismissed McGee’s petition to validate his designating petition, concluding that he had not secured the requisite number of valid signatures.

The only constitutional issue presented by either Backal or McGee before Supreme Court, or in related Federal court proceedings, and in respect to which notice was given to the Attorney-General (see, Executive Law § 71; CPLR 1012), was the contention that the 5,000-signature requirement, under the circumstances, unconstitutionally interfered with access to the ballot. Nonetheless, at the Appellate Division, Backal and McGee advanced an alternative constitutional argument. They maintained that the requirement of Election Law § 6-136 (2) (b) that a candidate for countywide office within the City of New York submit 5,000 signatures, while requiring a candidate for the identical office in a county of comparable population outside the City of New York to submit only 2,000 signatures, violates principles of equal protection and the one-person-one-vote rule (see, Gray v Sanders, 372 US 368, 381).

In separate orders, the Appellate Division declared Election Law § 6-136 (2) (b) invalid, reversed, on the law, the judgments of Supreme Court, and directed that the names of Backal and McGee be placed on the ballot for the September 15 Democratic primary election. The Appellate Division rejected the contention of Backal and McGee that the signature requirement unconstitutionally burdened them because of the shortened time period, and predicated its determination solely upon the equal protection issue raised for the first time in that court. The court took judicial notice of the fact that there are counties outside the City of New York which have populations exceeding that of Bronx County, where candidates for the office of Surrogate need file only 2,000 signatures, and found the challenged provision facially invalid in that it provides for geographically based disparate treatment of candidates for the same office in counties of substantially equivalent population. We now reverse.

Enactments of the Legislature — a coequal branch of government — may not casually be set aside by the judiciary. The applicable legal principles for finding invalidity are firmly embedded in the law: statutes are presumed constitutional; while the presumption is rebuttable, invalidity must be demonstrated beyond a reasonable doubt (Wiggins v Town of Somers, 4 NY2d 215, 218-219). Where a statute is challenged as irrational or arbitrary, a court may even hypothesize the motivations of the State Legislature to discern any conceivable legitimate objective promoted by the provision under attack (Maresca v Cuomo, 64 NY2d 242, 251). The drastic step of striking a statute as unconstitutional is to be taken only as a last resort (Wiggins v Town of Somers, 4 NY2d 215, supra).

A determination of invalidity — with ramifications beyond the parties and their immediate dispute — necessarily must be founded upon an adequate record, the parties having properly raised their contentions and presented their proof in the lower courts. Also important to the procedure for challenging the constitutionality of a State statute is notification to the Attorney-General (see, Executive Law § 71; CPLR 1012). This opportunity for participation by the State’s chief legal officer insures that all of the people of the State may be represented when the constitutionality of their laws is put in issue. Notice to the Attorney-General serves the additional function of ensuring the development of an adequate record upon which the court may base its determination.

Here, the equal protection ground upon which Backal and McGee ultimately prevailed was first advanced at the Appellate Division. Despite conflicting and qualified representations made before us on oral argument, the record reveals no earlier reference to this ground. To the contrary, it indicates that Backal and McGee were pressing an entirely different constitutional challenge — that the abbreviated period for collecting signatures denied them equal access to the ballot — and so advised the Attorney-General. There is no evidence that any notice was provided to the Attorney-General that the differing signature requirements based upon geographic location were being challenged as unconstitutional. Thus, the mechanism designed to afford a necessary opportunity to examine fully particular challenges to the constitutionality of statutes was not set in motion and not satisfied. As was demonstrated in this case, such failure not only ignores fundamental principles of separation of powers, but also adversely affects the judicial review process which requires a full presentation and record upon which constitutional determinations must be based.

We conclude, for the reasons stated by the lower courts, that respondents’ challenge based on the shortened signature period, advanced by them in support of affirmance, is without merit.

The orders of the Appellate Division should be reversed, and the judgments of Supreme Court reinstated.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur in Per Curiam opinion.

In Matter of McGee v Korman: Order reversed, without costs, and judgment of Supreme Court, Bronx County, dismissing the petition to validate the McGee designating petition reinstated.

In Matter of Korman v Sachs: Order reversed, without costs, and judgment of Supreme Court, Bronx County, granting the petition to invalidate the Backal designating petition reinstated.

       Election Law § 6-136 (2) (b) provides, in pertinent part:
      "2. All other petitions must be signed by not less than five per centum, as determined by the preceding enrollment, of the then enrolled voters of the party residing within the political unit in which the office or position is to be voted for, provided, however, that for the following public offices the number of signatures need not exceed the following limits * * *
      "(b) For any office to be filled by all the voters of any county or borough within the city of New York, five thousand signatures”.
      Paragraph (d) of the same section provides: "(d) For any office to be filled by all the voters of cities or counties, except the city of New York and counties therein, containing more than two hundred fifty thousand inhabitants according to the last preceding federal enumeration, two thousand signatures”.