author: Per Curiam.

text:
    George L. Clark, Jr., Individually and as Chairman of the New York Republican State Committee, Appellant, v Mario M. Cuomo, as Governor of the State of New York, et al., Respondents.
    Argued September 12, 1984;
    decided September 13, 1984

      POINTS OF COUNSEL

      Thomas J. Spargo for appellant.
    I. It is not within the power and authority of the Governor to create a voter registration task force and to implement a voter registration program in State offices by way of executive order. (Rapp v Carey, 44 NY2d 157.) II. The function of voter registration must be carried out by a bipartisan board or commission. (Rapp v Carey, 44 NY2d 157.)

      Robert Abrams, Attorney-General {Robert Hermann, Peter H. Schiff, Richard Rifkin and John Q. Driscoll of counsel), for respondents.
    I. The preliminary injunction should not have been issued as the voter registration project does not violate the concept of bipartisan administration or the registration and election process. (Picotte Realty v Gallery of Homes, 66 AD2d 978; Matter of Armitage v Carey, 49 AD2d 496; Matter of Adams u Flanagan, 201 App Div 735, 234 NY 540.) II. Executive Order No. 43 is not a legislative act, and is within the authority of the Governor as chief executive of the State. (O'Brien v City of Saratoga Springs, 224 App Div 124; Matter of Di Brizzi [Proskauer], 303 NY 206; Gautier v Ditmar, 204 NY 20; Matter of New York State Employees Council 50 v Rockefeller, 55 Misc 2d 250; Rapp v Carey, 44 NY2d 157.) III. Respondent has failed to demonstrate irreparable injury to himself or any other class or person. (De Pina v De Pina, 31 AD2d 744.)

      Arthur Eisenberg, Julius Chambers, Joel Berger and Lani Guinier for the League of Women Voters of New York State and others, amici curiae.

    I. Executive Order No. 43 does not violate the bipartisan registration requirements of section 8 of article II of the New York Constitution. (Matter of Celler v Larkin, 71 Misc 2d 17; Matter of Adams v Flanagan, 201 App Div 735, 234 NY 540.) II. Executive Order No. 43 does not contravene the voter registration plan enacted by the New York Legislature; indeed, the executive order furthers both State and Federal legislative policy. (Matter of Siwek v Mahoney, 39 NY2d 159; Red Lion Broadcasting Co. v FCC, 395 US 367; United States v Mine Workers, 330 US 258; Fogarty v United States, 340 US 8.) III. Plaintiff has made no showing of irreparable injury and no showing that the balance of equities tip decidedly in plaintiff’s favor. (Margolies v Encounter, Inc., 45 AD2d 833; City of Yonkers v Dyl & Dyl Dev. Corp., 67 Misc 2d 704.)
   OPINION OF THE COURT

Per Curiam.

Inasmuch as on this record there is a failure of proof of irreparable injury to plaintiff, the Appellate Division did not commit error as a matter of law when it denied plaintiff’s application for a preliminary injunction.

This action was instituted for injunctive and declaratory relief, challenging the “State Program for Voter Registration” promulgated in the Governor’s Executive Order No. 43, dated July 9, 1984. In expedited proceedings, Special Term issued a preliminary injunction enjoining defendants from implementing the program; on appeal the Appellate Division reversed and denied plaintiff’s motion for such relief. That court thereupon granted plaintiff permission to appeal to our court on the certified question, “Did this court err as a matter of law in revérsing the order of Special Term and denying plaintiff’s motion for a preliminary injunction?”

As noted by the Appellate Division, one of the prerequisites for the issuance of a preliminary injunction is a showing of irreparable injury to the applicant if that relief is not granted. Even if we assume that any injury to plaintiff would be irreparable in the time-frame and circumstances of this case, on the record before us there is a failure of proof to show any such injury. Of course, the implementation of an informational and promotional program by the agencies of government which would lead to the voluntary registration of additional voters would not of itself result in injury to plaintiff. Legally cognizable injury might occur, however, if the implementation of the program were to be affected by discrimination, for example, as to geography, demographics or directly as to party enrollment, but there is before us no tender of proof as to any such discrimination nor does plaintiff assert any such claim. Although employment of duress or other improper method would also constitute such injury, again, no proof is tendered to support any such claim.

Nor, in support of his claim of irreparable injury, has plaintiff demonstrated on the present submission in support of his application for a preliminary injunction that the “Program for Voter Registraton” at issue here is more than a program to encourage registration or that it comes within the ambit of section 8 of article II of the Constitution or of section 5-210 (subd 6, par [a]) of the Election Law. Plaintiff cannot, therefore, advance theories of injury stemming from alleged denial of bipartisan participation under either of these provisions (see paragraphs 30 to 37 of his verified complaint) to sustain his entitlement to a preliminary injunction against this program.

Accordingly, the order of the Appellate Division should be affirmed, without costs, and the certified question answered in the negative.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye concur in Per Curiam opinion.

Order affirmed, etc.


source: Caselaw Access Project

author: Meyer, J.

license: Public Domain

text:
    In the Matter of Nassau BOCES Central Council of Teachers, by its President, Robert Drearer, on Behalf of Adult Education Instructors and All Others Similarly Situated, Appellant, v Board of Cooperative Educational Services of Nassau County et al., Respondents.
    Decided September 20, 1984

      APPEARANCES OF COUNSEL

      Stanley A. Immerman for appellant.

      Seymour H. Kligler for Board of Cooperative Educational Services of Nassau County, respondent.
   OPINION OF THE COURT

Meyer, J.

When the respondent in an article 78 proceeding challenges petitioner’s standing only, it is error to dismiss the petition on the merits prior to service of respondent’s answer. The mandate of CPLR 7804 (subd [f]) that, “If the motion is denied, the court shall permit respondent to answer, upon such terms as may be just” proscribes dismissal on the merits following such a motion, unless the facts are so fully presented in the papers of the respective parties that it is clear that no dispute as to the facts exists and no prejudice will result from the failure to require an answer (see, e.g., O’Hara v Del Bello, 47 NY2d 363). There having been no such development of the facts in the present case, Special Term erred in dismissing the petition on the merits prior to service of respondents’ answer. The order of the Appellate Division should, therefore, be reversed and the matter remitted to Special Term for further proceedings in accordance with this opinion.

Petitioner union represents the adult education instructors employed by respondent Board of Cooperative Educational Services of Nassau County (BOCES). The union, and its president, as class representative, brought this article 78 proceeding as a class action on behalf of all of the adult education instructors. The relief sought is a determination that the instructors are entitled to tenure and seniority rights under section 3014 of the Education Law and the Rules of the Board of Regents (8 NYCRR part 30). The petition alleges that such rights have not been waived.

Respondents moved to dismiss the petition on the ground that petitioner lacks standing because neither the union nor its president belong to the class of adult education instructors and because, according to respondents, neither has been injured by the denial of tenure and seniority rights. The motion papers also argued that class action status was improper because individual instructors had signed express waivers of tenure rights and, therefore, a case-by-case determination of the rights of the instructors was required. Petitioner’s answering papers asserted that a union has standing to represent its members and also objected to factual allegations made in the affidavit accompanying respondents’ motion on the ground that the affidavit was made by an attorney who lacked personal knowledge of the facts.

Without passing on either the standing or the class action issues, Special Term dismissed on the merits, ruling that petitioner had waived the tenure and seniority rights of the adult education instructors in its collective bargaining agreement with BOCES, a copy of which was annexed to the petition. Special Term relied on the explicit exclusion in the contract of the adult education instructors from contractual protections relating to probationary periods and seniority. Special Term’s order dismissing the petition was affirmed by the Appellate Division in a memorandum that cited cases upholding express waivers of tenure and seniority rights. The appeal is before us by our leave (62 NY2d 605).

Although, as respondents argue, an article 78 proceeding “on analysis closely correspond^] to an action if a motion for summary judgment could be made simultaneously with the commencement of the action” (8 Weinstein-Korn-Miller, NY Civ Prac, par 7801.03), it is also true that a motion for summary judgment is usually made only “after issue has been joined” (CPLR 3212, subd [a]) and that a motion to dismiss may be treated as a motion for summary judgment only when the parties have had the opportunity to “submit any evidence that could properly be considered on a motion for summary judgment” (CPLR 3211, subd [c]). Thus, notice that a motion to dismiss under CPLR 3211 will be treated as a motion for summary judgment is required prior to dismissal on the merits unless it is clear from the papers that no prejudice has resulted from omission of notice (Rich v Lefkovits, 56 NY2d 276, 283).

The more particularly is this so with respect to an article 78 proceeding, in light of the express direction of CPLR 7804 (subd [f]), quoted at the beginning of this opinion. It has, therefore, been held that the petition in such a proceeding should not be granted before the respondent has filed an answer (Edison Travel v American Airlines, 35 NY2d 801, affg 43 AD2d 164; Hawk Sales Co. v Dieteman, 42 AD2d 817, 818; Matter of Kesterson v City of Buffalo, 40 AD2d 575; see Subcontractors Trade Assn, v Koch, 62 NY2d 422; O'Hara v Del Bello, 47 NY2d 363, supra; Marlow v Kobliner, 78 AD2d 874; Matter of De Vito v Nyquist, 56 AD2d 159, 161, affd 43 NY2d 681).

Here, respondents’ motion papers disclaimed any attack on the merits, arguing instead that a case-by-case examination of the status of each adult education instructor would be required. To the limited extent that the facts were developed in the affidavit accompanying the motion, petitioner objected on the ground that the affidavit was not made by an officer of BOCES, but by an attorney who lacked personal knowledge (see Zuckerman v City of New York, 49 NY2d 557). Thus, the motion papers clearly did not establish that there were no triable issues of fact and the procedure dictated by CPLR 7804 (subd [f]) should have been followed. Although it was not improper for Special Term to decide the merits of the claim respecting the rights of the adult education instructors without first passing on the question of whether the union and its president had standing to complain about a violation of those rights (Jainchill v Citibank, 62 NY2d 739; Matter of Legal Aid Soc. v Scheinman, 53 NY2d 12; see People v Parker, 41 NY2d 21, 25), it should not have done so prior to answer.

Accordingly, the proceeding should be remitted to Special Term for further proceedings in accordance with this opinion.

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

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed, with costs, and matter remitted to Supreme Court, Nassau County, for further proceedings in accordance with the opinion herein.


author:
      Per Curiam.
     Jasen, J.

text:
    In the Matter of Robert P. Reeves, a Judge of the Family Court, Rensselaer County, Petitioner. State Commission on Judicial Conduct, Respondent.
    Argued September 12, 1984;
    decided October 11, 1984

      POINTS OF COUNSEL

      John Carter Rice and Robert Hardwick Bixby for petitioner.
    I. The record does not support respondent’s finding of misconduct. (Matter of Spector v State Comm, on Judicial Conduct, 47 NY2d 462; Matter of Pell v Board of Educ., 34 NY2d 222; Matter of Quinn v State Comm. on Judicial Conduct, 54 NY2d 386; Matter of Dixon v State Comm. on Judicial Conduct, 47 NY2d 523; Matter of Lonschein, 50 NY2d 569; Matter of Rogers v State Comm. on Judicial Conduct, 51 NY2d 224; Matter of Shilling, 51 NY2d 397.) II. The sanction of removal is excessive. (Matter of Cunningham, 57 NY2d 270; Matter of Steinberg, 51 NY2d 74; Matter of Murtagh v Maglio, 9 AD2d 515; Matter of Shilling, 51 NY2d 397; Matter of Sardino v State Comm. on Judicial Conduct, 58 NY2d 286.)

      Gerald Stern, Stephen F. Downs and Jean M. Savanyu for respondent.
    Petitioner’s conduct violated established ethical standards, is properly subject to discipline, and amply demonstrates his lack of fitness to serve as a Judge of the Family Court. (Matter of Campagna v Hill, 53 AD2d 1050; Matter of Silvestris v Silvestris, 24 AD2d 247; Matter of Rensselaer County Dept. of Social Servs. v Cossart, 38 AD2d 635; Matter of Sardino v State Comm. on Judicial Conduct, 58 NY2d 286; Matter of McGee v State Comm. on Judicial Conduct, 59 NY2d 870; Matter of Kane, 50 NY2d 360; Matter of Aldrich v State Comm. on Judicial Conduct, 58 NY2d 279; Matter of Shilling, 51 NY2d 397; Matter of Waltemade, 37 NY2d [a]; Matter of Kuehnel v State Comm, on Judicial Conduct, 49 NY2d 465.)
   OPINION OF THE COURT

Per Curiam.

Petitioner commenced this proceeding to review a determination of the State Commission on Judicial Conduct which concluded that he should be removed from office. He contends that the record does not support a finding of misconduct and that the sanction of removal is unduly severe. After reviewing the evidence before the Commission, we accept its findings and its determined sanction of removal.

Petitioner was elected a Judge of the Rensselaer County Family Court in 1977. In 1982 the Commission on Judicial Conduct filed the present complaint. It contained one charge with 20 counts, alleging that petitioner failed over a three-year period to properly perform his judicial duties and engaged in a course of conduct prejudicial to the administration of justice. Among the counts were charges that: petitioner directed a court clerk to falsify court reports filed with the Office of Court Administration; he failed to properly advise litigants of their rights; he failed to require litigants to submit sworn financial disclosure statements as required by law; he entered dispositional orders in cases in which the court lacked jurisdiction over the respondents; he initiated an improper ex parte communication concerning a pending case; he refused to allow an attorney to appear in his court; and he refused to work for two days because of an alleged shortage of staff.

Following hearings, the referee appointed to hear and report to the Commission found that none of the counts had been sustained. He concluded that although petitioner had “technically” violated sections of the Family Court Act, “the mistakes and improprieties were made either in good faith, or a misapprehension of the legal issue involved, poor judgment, or a lack of judicial experience.” The Administrator of the Commission then moved to disaffirm the referee’s findings of fact and conclusions of law, to adopt those proposed in his memorandum and for a finding of misconduct. By order dated October, 1983, the Commission found petitioner guilty of 9 of the 20 counts alleged in the complaint. In a separate determination dated April 9, 1984, a majority of the Commission concluded that petitioner’s misconduct warranted his removal from office.

Petitioner was charged with deliberately falsifying reports to the Office of Court Administration by directing a deputy clerk to cross off the list 60 cases which were pending after the deadline for disposition (see 22 NYCRR 4.1, 2502.1).

The evidence established that shortly after petitioner took office he was given a copy of the standards and goals of the Office of Court Administration (OCA) and advised of the necessity to keep records of pending cases and file reports concerning them. In October, 1978 Ms. Beeler, the deputy clerk of Family Court, advised petitioner that 25 to 40 cases were going over OCA deadlines. She explained the OCA requirements to him and the necessity for following them. Petitioner answered her with obscenities and said, in effect, that OCA was not going to tell him how to run his court. He told Ms. Beeler that he, not OCA, employed her. In January, 1979 she again advised petitioner of the deadline and that 60 cases which were over the deadline would have to be reported as pending. Petitioner again became angry and told her he would run the court as he saw fit. He instructed her to cross off the 60 oldest cases as if they had been disposed of, when in fact they had not, and to submit the list to OCA without them. At the hearing Ms. Beeler testified to those facts and admitted that she had falsified the report on petitioner’s directions.

Petitioner did not submit any evidence contradicting this testimony. When questioned about the falsification of court records at the hearing and asked if he ordered it, petitioner neither admitted nor denied the charge but responded, “I can’t recall why I would do such a thing.” The referee did not make a specific finding on the charge, stating only that it was “disputed”.

Petitioner now contends that the falsification charge is unsubstantiated and stems from personal conflicts with Ms. Beeler. Despite his contentions, Ms. Beeler’s testimony is credible and corroborated in part by the testimony of the chief clerk of the court who testified that he reminded petitioner of the OCA guidelines when he noticed that a case had passed a deadline, to which petitioner angrily responded that OCA was not going to tell him how to run his court. Having examined the relevant testimony on this point, we conclude that the Commission’s finding of deliberate falsification was correct (see, generally, Matter of Spector v State Comm. on Judicial Conduct, 47 NY2d 462, 465-466).

The Commission also charged that in several instances petitioner failed to advise parties of their rights. Specifically, the record shows that petitioner failed (in 34 cases) to advise litigants either of their right to counsel and to a hearing (Family Ct Act, § 433) or of their right to the assistance of counsel, to confer with counsel before proceeding and to have counsel assigned if they could not afford to retain counsel (Family Ct Act, § 262, subd [a]). In two paternity cases he failed to advise the respondents of their right to remain silent and to have a blood-grouping test (Family Ct Act, §§531, 532). Petitioner contends that the failure to advise, in most cases, involves matters that were settled. The “settlements”, however, came after legal proceedings had started and the right to counsel attached. The transcripts demonstrate that these dispositions took place after the court questioned the parties and obtained admissions from them. The only reasonable conclusion to be drawn in many of the cases is that the “settlements” were imposed on the parties by the court.

Petitioner contends that the failure to notify clients of their rights and purported violations of statutory procedure are “mistakes and errors of law” which can be corrected on appeal and which fall short of judicial misconduct. A repeated pattern of failing to advise litigants of their constitutional and statutory rights, however, is serious misconduct (Matter of Sardino v State Comm. on Judi cial Conduct, 58 NY2d 286; see, also, Matter of McGee v State Comm. on Judicial Conduct, 59 NY2d 870).

In Matter of Sardino, a City Court Judge was removed from office because of a pattern of misconduct, which included a repeated failure to inform the accused of the right to counsel or to make minimal inquiry as to whether they wished assigned counsel. Petitioner urges that Matter of Sardino is distinguishable in that, unlike Judge Sardino, he was not personally abusive to litigants or attorneys nor did he knowingly deprive defendants of their rights. The fact that petitioner did not use profanity in the courtroom or abuse litigants does not mitigate the serious damage caused by his vital omissions in cases involving child custody and support and determinations of paternity. Moreover, it is apparent from the record of other proceedings that petitioner knew how to properly advise litigants of their rights. His lapses may be the result of carelessness or laziness, but in any event indicate a serious disregard of the Judge’s proper role.

In addition to the deliberate falsification of public records and the failure to advise clients of their rights, the Commission also found that petitioner often disregarded important statutory procedures. Petitioner failed to require sworn financial disclosure statements from litigants in 28 cases and in seven cases he entered dispositional orders when the court lacked jurisdiction over the respondents. Even child custody cases were resolved against parents when the court lacked jurisdiction over them. In five cases involving petitions for orders of protection, petitioner entered default judgments based upon mail service in violation of the requirement of section 826 of the Family Court Act. After being informed that this practice violated statutory procedure, petitioner insisted at his hearing that provisions of the CPLR authorized mail service though none do. Finally, he disregarded a prior order and entered an order of filiation in the absence of the parties, a particularly egregious order since the mother was married to a man other than the putative father. Although these were errors of law, they cannot be excused on that basis. The errors were fundamental and the pattern of repeating them, coupled with an unwillingness to recognize their impropriety, indicate that petitioner poses a threat to the proper administration of justice (see Matter of Aldrich v State Comm. on Judicial Conduct, 58 NY2d 279; Matter of Shilling, 51 NY2d 397).

We also accept the Commission’s findings that petitioner engaged in an improper ex parte communication, refused to work on two days, refused to permit an attorney to appear before him and failed to conduct a hearing in a nonsupport case after entering a temporary order, although requested by counsel to do so several times.

In reviewing the sanction imposed, we must recognize that the purpose of judicial disciplinary proceedings is “not punishment but the imposition of sanctions where necessary to safeguard the Bench from unfit incumbents” (Matter of Waltemade, 37 NY2d [a], [lll]). Petitioner argues that the sanction of removal is excessive because his improper conduct was due to inexperience, court congestion, and a long-standing personal feud with the court staff and the other Family Court Judge in his county. While these factors may have adversely affected petitioner’s judicial performance they do not excuse his direction to deliberately falsify court records or his disregard of statutory procedures and of the rights of litigants appearing before him (see Matter of Sardino, supra; Matter of McGee, supra). Petitioner’s conduct is inconsistent with the fair and proper administration of justice and renders him unfit to remain in office.

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

Jasen, J.

(dissenting). Under the circumstances in this case, I believe, as did four members of the Commission and the Referee, Honorable J. Clarence Herlihy, designated by the Commission to hear and report on the charges filed, that petitioner should be censured for his conduct, rather than removed from office. Removal is an extreme sanction and should be imposed only in the event of truly egregious conduct. We have on other occasions indicated that removal should not be ordered for conduct that amounts simply to poor judgment, or even extremely poor judgment. (Matter of Cunningham, 57 NY2d 270, 275; Matter of Shilling, 51 NY2d 397, 403; Matter of Steinberg, 51 NY2d 74, 81.)

Judges Jones, Wachtler, Meyer, Simons and Kaye concur in Per Curiam opinion; Judge Jasen dissents and votes to reject the determined sanction of removal and impose the sanction of censure in an opinion in which Chief Judge Cooke concurs.

Determined sanction accepted, without costs, and Robert P. Reeves removed from the office of Judge of the Family Court, Rensselaer County.


author: Simons, J.

text:
    Robert Curiano et al., Appellants, v Joseph Suozzi et al., Respondents.
    Decided October 11, 1984

      APPEARANCES OF COUNSEL

      Robert E. Steinberg for appellant.

      Brian Michael Seltzer for respondent.
   OPINION OF THE COURT

Simons, J.

The question presented on this appeal is whether plaintiffs may recover damages from defendants in a cause of action for prima facie tort because defendants instituted a prior defamation action against them which is still pending and which plaintiffs allege is vexatious and without merit.

The suit arises from campaign literature published by a group of government officials, including plaintiffs, of the City of Glen Cove and Nassau County. The literature, which was intended to oppose the reelection of defendant Suozzi’s brother as Mayor, alleged that defendant Suozzi, a former Associate Justice of the Appellate Division, Second Department, had engaged in a speculative real estate purchase and profited from decisions made by his brother acting as Mayor while defendant was still sitting on the Bench. As a result of the accusations, defendant Suozzi, appearing by his own law firm, the other defendant in this action, instituted a libel action denominated Suozzi v Párente against several defendants, including the plaintiffs here.

Plaintiffs then brought this suit asserting two causes of action. In the first they alleged that defendants had defamed them in the Suozzi v Párente action by accusing them of libeling Suozzi. It was dismissed by Special Term and plaintiffs have not appealed from that determination. In the second cause of action plaintiffs contend that the purpose of the Suozzi v Párente action was not to remedy a wrong believed in good faith to have been committed but was brought “for the malicious and intentional purpose of harming defendants therein” and “to punish the plaintiffs for exercising their constitutional right to free speech and to participation in the public election process.” Plaintiffs also asserted that institution of the prior action violated a “duty owed plaintiffs to refrain from institution of a baseless legal proceeding” and “was further intended to cause the plaintiffs expense and to burden them with the defense of a protracted legal proceeding”, thereby damaging them.

Special Term denied defendants’ motion to dismiss the second cause of action. It found an action for prima facie tort sufficiently stated insofar as the complaint alleged “intentional infliction of economic harm by commencement of a lawsuit without legal excuse or justification”, citing this court’s decision in Board of Educ. v Farmingdale Classroom Teachers Assn. (38 NY2d 397). The Appellate Division, characterizing the cause of action as one sounding in abuse of process, reversed and granted defendants’ motion to dismiss (102 AD2d 759). The basis of its decision was plaintiffs’ failure to allege an improper use of process after it was issued and a wrongful interference with person or property under color of process, both of which it held were necessary to such an action.

There should be an affirmance. Taking plaintiffs’ allegations as true, as we must on a motion to dismiss (see Sanders v Winship, 57 NY2d 391, 394), the complaint does not state a cause of action for either abuse of process or prima facie tort.

Abuse of process has three essential elements: (1) regularly issued process, either civil or criminal, (2) an intent to do harm without excuse or justification, and (3) use of the process in a perverted manner to obtain a collateral objective (Board of Educ. v Farmingdale Classroom Teachers Assn., supra, at p 403). Relevant on this appeal are the first and last of these elements. First, the process used must involve “an unlawful interference with one’s person or property” Williams v Williams, 23 NY2d 592, 596). Insofar as the only process issued in the Suozzi v Párente action was a summons, the process necessary to obtain jurisdiction and begin the lawsuit, there was no unlawful interference with plaintiffs’ persons or property because the institution of a civil action by summons and complaint is not legally considered process capable of being abused (Hoppenstein v Zemek, 62 AD2d 979, 980; see Drago v Buonagurio, 61 AD2d 282, 285, revd on other grounds 46 NY2d 778; Osinoff v Muchnick, 53 AD2d 858, 859). Moreover, plaintiffs have not alleged the “ ‘gist of the action for abuse of process’ ”, which is “ ‘the improper use of process after it is issued’ ” (Williams v Williams, supra, at p 596; Dean v Kochendorfer, 237 NY 384, 390; Miller v Stern, 262 App Div 5, 8). They do not contend that the summons issued by defendants was improperly used after it was issued but only that defendants acted maliciously in bringing the action. A malicious motive alone, however, does not give rise to a cause of action for abuse of process (Hauser v Bartow, 273 NY 370, 374).

The claim that the complaint states a cause of action for prima facie tort was ruled on by Special Term but not addressed by the Appellate Division. Plaintiffs’ contention is that prima facie tort will lie against the defendants for instituting an allegedly baseless lawsuit.

Some years ago this court recognized the general principle that harm intentionally inflicted is prima facie actionable unless justified (see Advance Music Corp. v American Tobacco Co., 296 NY 79; American Guild of Musical Artists v Petrillo, 286 NY 226; Opera on Tour v Weber, 285 NY 348, cert den 314 US 615). That principle has developed into the specific cause of action of prima facie tort consisting of four elements: (1) intentional infliction of harm, (2) causing special damages, (3) without excuse or justification, (4) by an act or series of acts that would otherwise be lawful (Burns Jackson Miller Summit & Spitzer v Lindner, 59 NY2d 314, 332; ATI, Inc. v Ruder & Finn, 42 NY2d 454, 458). While prima facie tort may be pleaded in the alternative with a traditional tort, once a traditional tort is established the cause of action for prima facie tort disappears (Board of Educ. v Farmingdale Classroom Teachers Assn., 38 NY2d 397, 406, supra).

Plaintiffs’ complaint is insufficient to state a cause of action for prima facie tort insofar as it fails to plead special damages (see Howard v Block, 90 AD2d 455; Ginsberg v Ginsberg, 84 AD2d 573, 574) and that the sole motivation for the Suozzi v Párente action was “disinterested malevolence” (see Burns Jackson Miller Summit & Spitzer v Lindner, 59 NY2d 314, 333, supra; Reinforce, Inc. v Birney, 308 NY 164, 169; Beardsley v Kilmer, 236 NY 80, 90). We need not base our decision upon technical pleading grounds, however, for New York courts have consistently refused to allow retaliatory lawsuits based on prima facie tort predicated on the malicious institution of a prior civil action (see Drago v Buonagurio, 46 NY2d 778, revg 61 AD2d 282, supra; Howard v Block, supra; Ginsberg v Ginsberg, supra; Scully u Genesee Milk Producers’ Coop., 78 AD2d 982, app dsmd 52 NY2d 969; Belsky v Lowenthal, 62 AD2d 319, affd 47 NY2d 820; Knapp Engraving Co. v Keystone Photo Engraving Corp., 1 AD2d 170).

Plaintiffs instituted the present action in obvious retaliation for defendants’ libel suit. As a matter of policy, it would be unwise to allow it to continue for it would constitute a serious misuse of the cause of action for prima facie tort and could lead to inconsistent results, confusion of issues, and a waste of judicial resources. Prima facie tort is designed to provide a remedy for intentional and malicious actions that cause harm and for which no traditional tort provides a remedy. In this action, however, the gravamen of plaintiffs’ second cause of action is one sounding in malicious prosecution, the malicious institution of judicial proceedings without probable cause for doing so which finally ends in failure (see Burt v Smith, 181 NY 1, app dsmd 203 US 129; PJI 3:50). At the very least plaintiffs must await the completion of the Suozzi v Párente action and then bring an action for civil malicious prosecution at which time the merits of their arguments can be assessed properly. On the record before us, it appears unlikely that such an action would be successful because plaintiffs have not alleged an interference with their person or property, an element which is required when the underlying action is civil in nature (see Burt v Smith, supra).

But even assuming an action for malicious prosecution lies after the Suozzi v Parente case is completed, plaintiffs should not be allowed to plead prima facie tort in the alternative. It should not “become a ‘catch-all’ alternative for every cause of action which cannot stand on its legs” (Belsky v Lowenthal, 62 AD2d 319, 323, affd 47 NY2d 820, supra, quoted in Burns Jackson Miller Summit & Spitzer v Lindner, 59 NY2d, at p 333). By using it, plaintiffs seek to avoid the stringent requirements we have set for traditional torts, such as malicious prosecution, requirements which are necessary to effectuate the strong public policy of open access to the courts for all parties without fear of reprisal in the form of a retaliatory lawsuit. To permit plaintiffs’ action to continue under these circumstances would create a situation where litigation could conceivably continue ad infinitum with each party claiming that the opponent’s previous action was malicious and meritless.

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

Chief Judge Cooke and Judges Jasen, Jones, Wachtler and Kaye concur; Judge Meyer taking no part.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs.


author: Wachtler, J.

text:
    The People of the State of New York ex rel. Stephen D. Chakwin, Jr., on Behalf of William Ford, Appellant, v Warden, New York City Correctional Facility, Rikers Island, Respondent.
    Argued September 13, 1984;
    decided October 16, 1984

      POINTS OF COUNSEL

      Stephen D. Chakwin, Jr., for appellant.
    I. The People’s failure to provide the court with an adequate indictment for almost seven months prevented them from being ready for trial within the meaning of CPL 30.30 and should have resulted in appellant’s release under CPL 30.30 (subd 2). (Klopfer v North Carolina, 386 US 213; Barker u Wingo, 407 US 514; People v Taranovich, 37 NY2d 442; People v Sturgis, 38 NY2d 625; People ex rel. Barna u Malcolm, 85 AD2d 313; People v Hamilton, 46 NY2d 932; People v Friscia, 51 NY2d 845; People v Dean, 45 NY2d 651; People v Torres, 60 NY2d 119; People v Colon, 110 Misc 2d 917, 59 NY2d 921.) II. Habeas corpus is available to challenge the legality of a detention which is in violation of CPL 30.30 (subd 2). (People ex rel. Harrison v Greco, 38 NY2d 1025; People ex rel. McDonald v Warden, 34 NY2d 554; People ex rel. Barna v Malcolm, 85 AD2d 313; Hoff v State of New York, 279 NY 490.) III. Rights under CPL 30.30 (subd 2) may be asserted by habeas corpus. IV. The People were not ready for trial within the time specified by CPL 30.30 (subd 2). (People v Torres, 60 NY2d 119; People v Colon, 110 Misc 2d 917, 59 NY2d 921; People v Sturgis, 38 NY2d 625; People v Friscia, 51 NY2d 845.)

      Robert M. Morgenthau, District Attorney {Robert M. Pitler and Ronald G. Blum of counsel), for respondent.
    I. The petition for habeas corpus should be dismissed because CPL 30.30 (subd 2) affords petitioner no automatic right to release. (People ex rel. McDonald v Warden, 34 NY2d 554; People ex rel. Harrison v Greco, 38 NY2d 1025; People ex rel. Barna v Malcolm, 85 AD2d 313.) II. Throughout the proceedings below, the People had a legally sufficient accusatory instrument to bring petitioner to trial, and in any event, the People’s readiness for trial did not depend on the facial validity of the indictment. (People v Randall, 9 NY2d 413; People v Iannone, 45 NY2d 589; People v Weirich, 65 AD2d 932, 49 NY2d 1020; People v Hamilton, 46 NY2d 932; People v Dinkins, 76 AD2d 655; People v Connor, 63 NY2d 11; Goodman v Del-Sa-Co Foods, 15 NY2d 191.)
   OPINION OF THE COURT

Wachtler, J.

The relator has petitioned for a writ of habeas corpus based on his alleged unlawful detention in violation of CPL 30.30 (subd 2, par [a]), which sets forth one of the time limitations of the “speedy trial” statute. The questions on this appeal are whether a writ of habeas corpus may be used to claim a violation of CPL 30.30 (subd 2) and, if so, whether the relator’s detention is in violation of that provision. The trial court dismissed the writ, finding that the People were not in violation of any of the time limitations in CPL 30.30. The Appellate Division affirmed, without opinion, and the relator has appealed.

Relator William Ford was arrested in New York City on March 9, 1983. On March 10,1983 a felony complaint was filed with the Criminal Court charging him with burglary in the first degree and three criminal possession offenses. He was arraigned on the complaint on the following day. Being unable to post the bail fixed he remained and still remains in custody awaiting trial.

On March 25, 1983 an indictment was filed charging Ford with burglary in the second degree and two charges of criminal possession. He was arraigned on the indictment on April 8, 1983, and the case was adjourned for his omnibus motion. The trial court decided the omnibus motion on May 20, 1983.

On June 2, 1983, Ford moved to dismiss the indictment based on CPL 190.50 alleging that he had been denied the right to testify before the Grand Jury. Before a decision was rendered on this motion, Ford moved, on July 29,1983, to dismiss the first count of the indictment (the burglary count) as facially defective since it failed to allege that the unlawful entry into the dwelling was with the intent to commit a crime therein.

On August 12, 1983 the trial court denied the June 2 motion to dismiss the indictment. On August 16, 1983 the court, with the consent of the People, dismissed the first count of the indictment as facially defective, and granted the People’s application to resubmit the charges to a Grand Jury. A superseding indictment was voted on August 19, 1983, and Ford was arraigned on this indictment on September 30, 1983.

On October 4, 1983 Ford moved to dismiss the indictment pursuant to CPL 30.30 (subd 1), or, in the alternative to be released from custody pursuant to CPL 30.30 (subd 2). On November 22, 1983 the trial court orally denied his motion and the People then stated that they were ready for trial. The trial court’s written decision found that of the 207 days which had elapsed between the commencement of the criminal action against Ford and his filing the speedy trial motion on October 4, 1983, 128 days were excludable under CPL 30.30 (subd 4, par [a]) on account of pretrial motions made by Ford. Thus, the court found no violation of the six-month provision in CPL 30.30 (subd 1, par [a]) or the 90-day provision in CPL 30.30 (subd 2, par [a]).

Ford then petitioned for a writ of habeas corpus, seeking his release based on the 90-day limitation in CPL 30.30 (subd 2, par [a]). The writ was issued and then dismissed by the trial court which relied on its decision denying Ford’s motion based on CPL 30.30. The Appellate Division affirmed the dismissal of the writ.

The threshold question on this appeal is whether a writ of habeas corpus may be used to claim a violation of CPL 30.30 (subd 2). Under this portion of the speedy trial statute, if the People are not ready for trial within certain prescribed periods, a defendant who “has been committed to the custody of the sheriff * * * must be released on bail or on his own recognizance, upon such conditions as may be just and reasonable”. This court has held that habeas corpus “does not lie to determine whether the right to a speedy trial has been denied in a pending criminal action” (People ex rel. Harrison v Greco, 38 NY2d 1025 [denying motion for leave to appeal]; see People ex rel. McDonald v Warden, 34 NY2d 554). In each of these cases however the relator was seeking to dismiss the indictment pursuant to CPL 30.30 (subd 1) due to the People’s alleged failure to be ready for trial within the time periods prescribed by that portion of CPL 30.30. The rationale for denying habeas corpus relief in those cases where the relator relied on CPL 30.30 (subd 1) is that the speedy trial claim could be raised at the trial itself and on a direct appeal (People ex rel. McDonald v Warden, supra).

Where, as here, the relator seeks release pursuant to CPL 30.30 (subd 2) the rationale underlying the above-cited cases is not applicable. While a defendant may bring a pretrial motion to seek release based on a violation of CPL 30.30 (subd 2), he has no way to effectively appeal an adverse ruling. Obviously, once the defendant’s case is tried the legality of his pretrial detention is mooted and the relief guaranteed by CPL 30.30 (subd 2) would be academic on a direct appeal from a judgment of conviction. Thus, the present situation is one where “[departure from traditional orderly proceedings, such as appeal, should be permitted * * * by reason of practicality and necessity” (People ex rel. Keitt v McMann, 18 NY2d 257, 262).

The People also contend that habeas corpus relief should not lie here because a violation of CPL 30.30 (subd 2) does not lead to the “automatic release” of the defendant but instead gives the defendant only the right to be “released on bail or on his own recognizance, upon such conditions as may be just and reasonable”. While it is true that habeas corpus generally will lie only where the defendant would become entitled to his immediate release upon the writ being sustained (People ex rel. Kaplan v Commissioner of Correction, 60 NY2d 648), the plain meaning of CPL 30.30 (subd 2) is that a defendant’s showing of a violation of that section will result in the defendant’s release, either by a fixing of bail at an amount which the defendant can post or by a release of the defendant on his own recognizance. As the People concede, the words “upon such conditions as may be just and reasonable” do not give the trial court the right to maintain bail at an amount which the defendant is unable to meet.

Furthermore, even if CPL 30.30 (subd 2) were viewed in terms of requiring a “bail review”, habéas corpus would still be proper in light of our decisions allowing the use of that writ to challenge a wrongful denial of bail or excessive bail (see People ex rel. Rosenthal u Wolfson, 48 NY2d 230; People ex rel. Klein v Krueger, 25 NY2d 497).

The remaining issue on this appeal is whether the writ should have been sustained due to the period of time between the commencement of Ford’s “commitment to the custody of the sheriff” and the October 4, 1983 motion asserting the speedy trial violations. The trial court’s opinion states that a total of 128 days in this period were excludable under CPL 30.30 (subd 4, par [a]) on account of three pretrial motions made by Ford: 39 days for the omnibus motion to suppress; 71 days for the motion to dismiss the indictment based on CPL 190.50; and, 18 days for the motion to dismiss the indictment, or in the alternative for release, based on CPL 30.30.

A review of the actual days excluded in the trial court’s opinion on account of the three motions reveals that the trial court erroneously “double-counted” 14 days. The 71 days excluded on account of the CPL 190.50 motion ran from June 2, 1983 to August 12, 1983. The 18 days excluded on account of the CPL 30.30 motion ran from July 29, 1983 to August 16, 1983. The 14-day period from July 29, 1983 to August 12, 1983 was excluded twice and thus the 128 days excluded by the trial court must be reduced to 114 days.

Ford has conceded that a two-day period from August 17, 1983 to August 19, 1983 should also have been excluded, and thus the total number of excludable days under the reasoning of the trial court is 116. Subtracting this number from the total of 207 days leaves 91 days, and thus the People were not ready for trial within the 90-day period prescribed by CPL 30.30 (subd 2, par [a]). We need not reach the issue of whether the time for pretrial motions is properly excludable where there is a defect in the only felony count of the indictment since here there is a violation of CPL 30.30 (subd 2, par [a]) in either case.

Accordingly, the order of the Appellate Division should be reversed, the petition granted, and the case remitted to the Supreme Court, New York County, for the granting of relief to relator in accordance with this opinion.

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

Order reversed, without costs, petition granted and matter remitted to Supreme Court, New York County, for granting of relief to relator in accordance with the opinion herein.

       Though not discussed by either party, it appears from the record that the commencement of Ford’s custody as defined in CPL 30.30 (subd 2) may have actually been one day prior to the commencement of the criminal action against him, which would mean that the total number of days prior to the People being ready for trial was 208. We need not resolve the question because we have found a violation of CPL 30.30 (subd 2, par [a]) even if 207 were the proper total number of days.


author: Chief Judge Cooke.

text:
    In the Matter of the Claim of Berthlyn Duncan, Respondent, v New York State Developmental Center, Appellant. Workers’ Compensation Board, Appellant.
    Argued September 10, 1984;
    decided October 16, 1984

      POINTS OF COUNSEL

      Robert Abrams, Attorney-General {Theresa E. Wolinski, Peter H. Schiff, Carlin Meyer and Reed Brody of counsel), for Workers’ Compensation Board, appellant.
    The Workers’ Compensation Board’s determination that the State employer’s application of section 71 of the Civil Service Law did not violate section 120 of the Workers’ Compensation Law was reasonable and should not have been disturbed by the court below. (Matter of Axel v Duffy-Mott Co., 47 NY2d 1; Matter of Griffin v Eastman Kodak Co., 80 AD2d 689, 53 NY2d 1028, 55 NY2d 605; Matter of Lo Dolce v Regional Tr. Serv., 77 AD2d 697, 51 NY2d 706; Matter of Smith v Mallory Times Co., 97 AD2d 571; Matter of Murtaugh v Bankers Trust Co., 93 AD2d 928; Matter of Cormier v Champlain Val. Physicians Hosp. Med. Center, 96 AD2d 634, 97 AD2d 649; Matter of Howard v Wyman, 28 NY2d 434; Matter of Guardian Life Ins. Co. v Chapman, 302 NY 226; Ball v State of New York, 41 NY2d 617.)

      Robert J. Foody and Paul R. Kietzman for New York State Developmental Center, appellant.
    I. The record contains substantial evidence to support the Workers’ Compensation Board determination that the employer’s termination of claimant pursuant to section 71 of the Civil Service Law did not violate section 120 of the Workers’ Compensation Law and it should not have been reversed by the court below. (Matter of Sheppard-Pollack, Inc. v Tully, 64 AD2d 296; Matter of Economico v Village of Pelham, 50 NY2d 120; Southold Sav. Bank v Gilligan, 76 Misc 2d 30; Jaffe Plumbing & Heating Co. v Brooklyn Union Gas Co., 51 Misc 2d 1083, 29 AD2d 1051, 26 NY2d 851; Matter of Howard v Wyman, 28 NY2d 434; Matter of Axel v Duffy-Mott Co., 47 NY2d 1; Matter of Cormier v Champlain Val. Physicians Hosp. Med. Center, 96 AD2d 634, 97 AD2d 649; Matter of Lo Dolce v Regional Tr. Serv., 77 AD2d 697, 51 NY2d 706; Matter of Griffin v Eastman Kodak Co., 80 AD2d 689, 53 NY2d 1028.) II. If the judgment of the court below is affirmed, the damages assessed should be modified. (Matter of Economico v Village of Pelham, 50 NY2d 120; McCabe v Hoberman, 33 AD2d 547.)

      Robert Bergman for respondent.
    I. Section 120 of the Workers’ Compensation Law is enforceable against the. State of New York and its agencies. (People v Levine, 160 Misc 181; Matter of Lo Dolce v Regional Tr. Serv., 77 AD2d 697, 51 NY2d 706; Matter of Griffin v Eastman Kodak Co., 80 AD2d 689, 53 NY2d 1028, 55 NY2d 605; Matter of Ross

      v Town Bd. of Town of Ramapo, 78 AD2d 656; Matter of Cormier v Champlain Val. Physicians Hosp. Med. Center, 96 AD2d 634, 97 AD2d 649; Matter of Murtaugh v Bankers Trust Co., 93 AD2d 928; Matter of Broadacres Skilled Nursing Facility v Ingraham, 51 AD2d 243; Matter of Swalbach v State Liq. Auth., 7 NY2d 518; City of Schenectady v State Div. of Human Rights, 37 NY2d 421.) II. The action of the employer appellant in failing to timely reinstate and compensate its employee despite its own physician’s findings constitute discrimination under section 120 of the Workers’ Compensation Law. III. The decision of the Workers’ Compensation Board should concern itself solely with the Workers’ Compensation Law. (Matter of Faith for Today v Murdock, 11 AD2d 718, 9 NY2d 761; City of Schenectady v State Div. of Human Rights, 37 NY2d 421; Matter of Petrie, 215 NY 335; Matter of Post v Burger & Gohlke, 216 NY 544; Armstrong v Weiss, 168 Misc 653; Matter of Tate v Estate of Dickens, 276 App Div 94.)
   OPINION OF THE COURT

Chief Judge Cooke.

The Legislature has authorized the termination of employment of civil servants who are absent for a lengthy period as a result of a work-related injury. In the absence of any evidence of retaliatory intent, such an employee is not the victim of “discrimination” within the scope and meaning of the Workers’ Compensation Law’s proscription against discharging or otherwise taking detrimental action against injured employees. Thus, claimant here is not entitled to any relief.

Claimant was injured on February 2, 1976, while in the course of her employment at respondent New York State Developmental Center in Brooklyn. Pursuant to the regulations governing leaves of absence caused by occupational injury or disease (4 NYCRR 21.8), claimant was placed on full-pay leave for six months, and she used her leave accruals to continue full pay until September 22. At that time, claimant went on half-pay sick leave through November 3. Thereafter, she was on leave without pay while receiving workers’ compensation benefits through the State Insurance Fund.

On February 1,1977, claimant was notified that, pursuant to section 71 of the Civil Service Law, her employment was being terminated and that she could seek reinstatement through certification by a Civil Service doctor. On March 24, 1977, a State Insurance Fund doctor examined claimant and concluded that she was able to return to work. Consequently, her compensation payments were stopped. Claimant attempted to regain her old position, but a Civil Service doctor did not examine her until September 7, 1977. This physician determined that claimant was not fit to return to work. Claimant sought a reexamination, and on May 31, 1978, the same physician pronounced her physically capable of resuming her old position. When an opening occurred at the Developmental Center on September 22, claimant was reinstated and her leave credits restored.

After passing the Civil Service medical examination but before she was reinstated, on August 3, 1978, claimant filed a complaint with respondent Workers’ Compensation Board. She alleged that her employer had discriminated against her in violation of section 120 of the Workers’ Compensation Law, which proscribes “any employer or his duly authorized agent to discharge or in any other manner discriminate against an employee as to his employment because such employee has claimed or attempted to claim compensation from such employer, or because he has testified or is about to testify in a proceeding under this chapter”. The matter moved back and forth through the agency, with claimant’s basic charge of discrimination being sustained several times by administrative law judges and three-member panels of the Board. Ultimately, however, the full Board rescinded the earlier decisions and accepted the matter for review. The Board concluded that the employer had acted in accordance with section 71 of the Civil Service Law and was not guilty of violating the antidiscrimination provisions of section 120.

Claimant successfully appealed to the Appellate Division, which remanded the matter for determination of any benefits due to her. The Board then ruled that claimant should have been reinstated effective March 28, 1977, and awarded her back pay from that date until her actual return to work on September 22, 1978. The employer was also assessed the mandatory minimum penalty of $100 for violating section 120. On this appeal pursuant to CPLR 5601 (subd [d]), this court now reverses.

This proceeding’s focus is on the application of section 120. The law’s obvious purpose is to protect employees from retaliation for filing compensation claims or participating in claim proceedings (see Matter of Axel v Duffy-Mott Co., 47 NY2d 1, 5-6). More problematic is the scope of the statute’s proscription against an employer’s actions that result from work-related injuries.

Lower courts have adopted a broad interpretation that condemns any action triggered by the employee’s work-related injury regardless of whether it was a retaliatory tactic (see, e.g., Matter of Griffin v Eastman Kodak Co., 80 AD2d 689, mot for lv to app dsmd 53 NY2d 1028; Matter of Lo Dolce v Regional Tr. Serv., 77 AD2d 697, mot for lv to app den 51 NY2d 706). These decisions distort the meaning and purpose of section 120. The statute’s critical language is its injunction to employers not “to discharge or in any other manner discriminate against an employee as to his employment because such employee has claimed or attempted to claim compensation ***, or because he has testified or is about to testify * * *” (emphasis added). Clearly, there must be a causal nexus between the employee’s activities in obtaining compensation and the employer’s conduct against the employee. Moreover, the very meaning of “discrimination” requires that there be a distinction among groups. Thus, an employment practice that is applied evenhandedly to all employees represents a neutral policy that does not constitute discrimination, particularly if it is based on legitimate business concerns (see NLRB v Great Dane Trailers, 388 US 26, 32-34).

The preliminary inquiry, then, is whether civil servants who are injured on the job are treated detrimentally when compared to those who must take leaves of absence for non-work-related injuries. Section 73 of the Civil Service Law governs separations and reinstatements of employees who are disabled by other than an occupational disease or injury. The statute specifically provides that when such “an employee has been continuously absent from and unable to perform the duties of his position for one year or more * * *, his employment status may be terminated * * A comparison of sections 71 and 73 reveals a nearly identical treatment of all disabled civil servants, regardless of the source of the disease or injury. Indeed, to the extent that the two statutes differ, it appears that section 71 has provisions more beneficial to the employee.

An employer should be permitted to take reasonable steps to secure a steady, reliable, and adequate work force. In discussing section 73, this court has stated: “The absence of a public employee from his position for a prolonged period unduly impairs the efficiency of an office or agency. In many cases, the duties of the absent employee must be absorbed by the remaining staff because temporary replacements are difficult to obtain. Continued performance of the business of government necessitates that there be a point at which the disabled officer may be replaced.” (Matter of Economico v Village of Pelham, 50 NY2d 120, 126.) These concerns are not diminished by the circumstance that the employee was injured on the job, rather than off. To forbid absolutely any detrimental treatment of an injured worker would transform section 120 into a job security clause, which is contrary to the Legislature’s intent, as suggested by the recent amendment to the statute (see n 2, supra; see, also, Minkowitz, Practice Commentary, McKinney’s Cons Laws of NY, Book 64, Workers’ Compensation Law, § 120, 1983-1984 Pocket Part, pp 57-58).

In sum, section 120 of the Workers’ Compensation Law protects employees who seek to participate in that program. Section 71 of the Civil Service Law authorizes the termination of Civil Service workers who suffer occupational disease or injury. So long as the termination is not made in retaliation for the employee’s compensation claim or testimony, section 120 is not violated.

Accordingly, the determination appealed from and the order of the Appellate Division brought up for review should be reversed, without costs, and the decision of the Workers’ Compensation Board that the employer did not violate section 120 of the Workers’ Compensation Law should be reinstated.

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

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

      . Section 71 of the Civil Service Law provides:
      “§ 71. Reinstatement after separation for disability
      “Where an employee has been separated from the service by reason of a disability resulting from occupational injury or disease as defined in the workmen’s compensation law, he shall be entitled to a leave of absence for at least one year, unless his disability is of such a nature as to permanently incapacitate him for the performance of the duties of his position. Such employee may, within one year after the termination of such disability, make application to the civil service department or municipal commission having jurisdiction over the position last held by such employee for a medical examination to be conducted by a medical officer selected for that purpose by such department or commission. If, upon such medical examination, such medical officer shall certify that such person is physically and mentally fit to perform the duties of his former position, he shall be reinstated to his former position, if vacant, or to a vacancy in a similar position or a position in a lower grade in the same occupational field, or to a vacant position for which he was eligible for transfer. If no appropriate vacancy shall exist to which reinstatement may be made, or if the work load does not warrant the filling of such vacancy, the name of such person shall be placed upon a preferred list for his former position, and he shall be eligible for reinstatement from such preferred list for a period of four years. In the event that such person is reinstated to a position in a grade lower than that of his former position, his name shall be placed on the preferred eligible list for his former position or any similar position. This section shall not be deemed to modify or supersede any other provisions of law applicable to the re-employment of persons retired from the public service on account of disability.”
      The statute is implemented by 4 NYCRR 21.8 (a), which prescribes how the one-year period is to be calculated and authorizes extensions of that time.

      . In its entirety, section 120 of the Workers’ Compensation Law provides:
      “§ 120. Discrimination against employees who bring proceedings “It shall be unlawful for any employer or his duly authorized agent to discharge or in any other manner discriminate against an employee as to his employment because such employee has claimed or attempted to claim compensation from such employer, or because he has testified or is about to testify in a proceeding under this chapter and no other valid reason is shown to exist for such action by the employer. Any employer who violates this section shall be liable to a penalty of not less than one hundred dollars or more than five hundred dollars, as may be determined by the board. All such penalties shall be paid into the state treasury and be applicable to the expenses of administering this chapter. Such penalty shall be collected in like manner as an award of compensation. Any employee so discriminated against shall be restored to his employment and shall be compensated by his employer for any loss of wages arising out of such discrimination together with such fees or allowances for services rendered by an attorney or licensed representative as fixed by the board. Such fee or allowance shall be paid solely by the employer: provided, that if such employee shall cease to be qualified to perform the duties of his employment, he shall not be entitled to such restoration and compensation. The employer alone and not his carrier shall be liable for such penalties and payments. Any provision in an insurance policy undertaking to relieve the employer from the liability for such penalties and payments shall be void.”
      The final clause in the first sentence, referring to the absence of “other valid reason”, was added after claimant filed her complaint (see L 1983, ch 415, § 20, eff July 1,1983).

      . At this juncture, it should be noted that claimant’s contention that the Board had no power to interpret and apply section 71 of the Civil Service Law is not persuasive. To properly determine whether an employer has violated the proscriptions of section 120 of the Workers’ Compensation Law, the Board must consider all pertinent matters including, in this case, any statutory authority for the employer’s action.


text:
    In the Matter of the Guardianship of Star Leslie W., an Infant. Leake & Watts Children’s Home, Respondent; Mary W. S., Appellant.
    Argued September 4, 1984;
    decided October 18, 1984

      POINTS OF COUNSEL

      David J. Lansner for appellant.
    I. Petitioner did not establish by clear and convincing evidence that appellant had permanently neglected her child. (Matter of Malpica-Orsini, 36 NY2d 568; Matter of Anita “PP”, 65 AD2d 18; Matter of Karen L., 80 AD2d 681; Matter of Amos HH, 59 AD2d 795; Thorn v New York City Dept, of Social Servs., 523 F Supp 1193; Matter of Mehl, 114 Misc 2d 55; Matter of Mickey B., 65 AD2d 603; Matter of Sheila G., 61 NY2d 368; Matter of Ricky Ralph M., 56 NY2d 77; Matter of Star A., 55 NY2d 560.) II. The dispositional order terminating appellant’s parental rights should be reversed. (Matter of Norma Jean K., 81 AD2d 919; Matter of Wesley L., 72 AD2d 137, 49 NY2d 1047; Matter of Leon RR, 48 NY2d 117; Matter of Star A., 55 NY2d 560; Matter of Thomas TT., 67 AD2d 788; Matter of Sanjivini K., 47 NY2d 374.)

      Helen L. Buttenwieser and Ann S. Harrison for respondent.
    I. Respondent-appellant’s actions have clearly demonstrated her failure to plan for her child. (Matter of Melanie Ruth JJ, 76 AD2d 1008; Matter of Orlando F., 40 NY2d 103; Matter of John A A., 89 AD2d 738.) II. Star Leslie came into the custody of the Commissioner of Social Services on August 27, 1979 and is in his care to date.

      Wendy Sue Lauring, William E. Hellerstein and Lenore Gittis, Law Guardian, for Star Leslie W. I.
    The affirmed finding of permanent neglect is supported by the record. Appellant’s objections to that finding go to the weight of the evidence and are beyond this court’s power of review. (Aerated Prods. Co. v Godfrey, 290 NY 92; Lue v English, 58 AD2d 805, 44 NY2d 654; Matter of Infant D., 34 NY2d 806; Matter of Sheila G., 61 NY2d 368; Matter of Mickey B., 65 AD2d 603; Matter of Amos HH, 59 AD2d 795; Matter of

      Norma Jean K., 81 AD2d 919; Matter of Ray A.M., 37 NY2d 619.) II. The evidence established that the dispositional order freeing the child for adoption is in her best interests. (Matter of Orlando F., 40 NY2d 103; Santosky v Kramer, 455 US 745.)

      Frederick A. 0. Schwarz, Jr., Corporation Counsel (Fay Leoussis of counsel), for New York City Commissioner of Social Services.
   OPINION OF THE COURT

Simons, J.

This is an appeal from an order terminating respondent’s parental rights to her child, Star Leslie W., because of permanent neglect (Social Services Law, § 384-b, subd 4, par [d]; subd 7). To support that order the statute requires proof before Family Court that respondent failed to maintain contact with or plan for the future of her child for a period of one year after the child came into the custody of an authorized agency notwithstanding the agency’s diligent efforts to encourage and strengthen the parental relationship. Respondent contends that petitioner failed to establish neglect under the statute by clear and convincing evidence (see Santosky v Kramer, 455 US 745; Matter of Michael B., 58 NY2d 71) but more particularly she claims that the order should be reversed because the child was not in the custody of an authorized agency at the time the petition was filed and because the petition was not filed until several months after the one-year period of neglect found by the court. Family Court granted the petition and the Appellate Division affirmed by a divided court. We now affirm its order.

Respondent, a foster child herself, lived with her foster family from 1965 until 1977. She was 18 years old when she left.. On July 19, 1979 she gave birth to Star Leslie W. After attempting unsuccessfully to care for the baby for a week she took Star to the home of her former foster mother and left her there. Respondent’s foster parents were subsequently placed on foster parent status for Star in August so they could be paid, respondent signing a voluntary commitment of the child to the Commissioner of Social Services for that purpose. He subsequently transferred care to Leake & Watts Children’s Home which in turn transferred her to the foster parents. Star resided with them continuously until July, 1982, except for a period of one month in December-January, 1981-1982 when she lived with respondent. In July, 1982, after the foster mother became ill and was no longer able to care for Star, petitioner placed her in a preadoptive home. During the time the foster parents had Star, respondent was given unlimited visitation rights. She saw her child six times in 1979 and six times in 1980. The visits were either at the foster home or arranged by petitioner at. its clinic during examinations of the child. To the knowledge of petitioner, respondent did not see the child between October, 1980 and June, 1981.

During 1979 and 1980 respondent changed residences several times leaving her own apartment to live variously with her boyfriend, Robert, and her sister in The Bronx and then moving to Yonkers to live with another sister before returning to Robert. She was frequently out of contact with the petitioner for extended periods of time, moving without leaving a forwarding address and failing to notify it of the changes. Petitioner’s social worker testified that she could not locate respondent for a period of four months after April, 1980 and that respondent moved to Yonkers in October, 1980 and did not reappear until June, 1981. The social worker talked with respondent in November, 1980 and learned of her move to Yonkers but respondent would not tell the social worker how to contact her there.

In February, 1981 when petitioner could not locate respondent, it instituted a proceeding to terminate her parental rights based upon a one-year period of permanent neglect. Respondent apparently learned of this through her foster mother and appeared at the intake hearing in June, 1981. At respondent’s urging, the petition was withdrawn in October, 1981 and plans were made to deliver Star to her temporarily at her boyfriend’s apartment, where she was then living. On December 17, 1981, the transfer was completed but it ended on January 13, 1982 when respondent left the apartment and returned with the baby to her foster mother. Although respondent contended at trial that she left because there was no heat in the apartment, Family Court accepted contrary evidence and found that she left because her boyfriend had thrown her out of the apartment after a violent fight which necessitated a call to the police. Two days later respondent returned to the apartment with her foster parents to recover her clothes. She went upstairs and, during the two hours they waited, failed to come down. Star remained in the foster home, and respondent visited her there five times between January and July, 1982. Star is now five years of age. During her life she has resided with respondent only one week after her birth and for the period from December 17, 1981 until January 13, 1982.

In February, 1982 petitioner instituted this proceeding. The natural father was served by publication and failed to appear.

I

We have recently stated our strong determination that before terminating a parent’s rights the State must first attempt to reunite the parent with her child. Thus, the threshold inquiry by the court in any neglect proceeding must be whether the agency exercised diligent efforts to strengthen the parental relationship (Matter of Sheila G., 61 NY2d 368). Those efforts must include counseling, making suitable arrangements for visitation, providing assistance to the parents to resolve or ameliorate the problems preventing discharge of the child to their care and advising the parent at appropriate intervals of the child’s progress and development (Social Services Law, § 384-b, subd 7, par [f]; Matter of Sheila G., supra, at pp 384-386; Matter of Star A., 55 NY2d 560). These measures are not exclusive. The agency is free to attempt other reasonable and practical 'means to encourage and strengthen the family relationship.

Additionally, neglect may be found only after it is established that the parent has failed substantially and continuously or repeatedly to maintain contact with or plan for the future of the child although physically and financially able to do so (Social Services Law, § 384-b, subd 7, par [a]). The requirement is several: the parent must maintain contact with the child and also realistically plan for her future. A default in performing either may support a finding of permanent neglect (Matter of Orlando F., 40 NY2d 103, 110; Matter of Candie Lee W, 91 AD2d 1106; Matter of John AA., 89 AD2d 738). Insubstantial or infrequent contacts with the child are insufficient (Social Services Law, § 384-b, subd 7, par [b]) and the planning requirement contemplates that the parent shall take such steps as are necessary to provide a home that is adequate and stable, under the financial circumstances existing, within a reasonable period of time. Good faith alone is not enough: the plan must be realistic and feasible (Social Services Law, § 384-b, subd 7, par [c]).

After a fact-finding hearing, Family Court found that respondent had maintained contact with Star, notwithstanding respondent’s absences for extended periods. It found, however, that respondent had failed to plan for her child’s future, despite the agency’s diligent efforts, and it therefore granted the petition and permanently terminated respondent’s parental rights. After a dispositional hearing, it transferred custody to petitioner and the Commissioner of Social Services for adoption. At the Appellate Division, all the Judges agreed that respondent had failed to plan for the child. Two Judges dissented because they believed that petitioner had not made diligent efforts to reunite respondent with her child. Justice Asch also found procedural irregularities which in his judgment required reversal.

The evidence in the record supports Family Court’s finding of diligent efforts to assist respondent. At the time of the birth respondent lived in a small apartment by herself. Petitioner had no objection to the accommodations but respondent did not want to care for the baby there so petitioner’s social worker referred her to the Home’s housing office. Respondent went to the housing office where she was given referrals to investigate but she failed to follow through on them. Although it was clear that housing was respondent’s main problem, she failed to take any concrete steps to solve it. Apparently her only plan to establish a home for Star was to marry her boyfriend. In the meantime, she moved frequently, staying with him intermittently after 1979, and leaving twice for extended periods of time during which she failed to notify the agency of her change of address or how she could be reached. Nevertheless, petitioner’s staff counseled her as they could and it continued foster care in respondent’s own former foster home, a familiar setting, and encouraged her to visit often and participate in the child’s upbringing. It arranged for clinic visits for the child and informed the mother of them so she could be present to visit and check the baby’s progress.

Notwithstanding petitioner’s lack of success and its inability to maintain regular contact with respondent because of her moves, the agency agreed to withdraw the 1981 petition after she returned that summer and made renewed efforts to reunite mother and child by encouraging future visitation and by arranging for a trial period when the child would live with respondent and her boyfriend. It was planned that respondent would obtain public assistance for the child, find day care help and return to school. Hopefully she and her boyfriend would marry. After several visits to the apartment with Star to acquaint her with her mother and the surroundings, Star was transferred to respondent on December 17. The agency supervised the trial arrangement, visiting the apartment periodically, helping with the adjustment of the assistance budget and attempting to arrange day care for the child so that respondent could continue her schooling. It was only after this trial effort had failed, respondent had returned the baby to her foster parents and had failed to return to care for her that petitioner ceased its efforts and started this proceeding. It was not required to do more. The statute requires only reasonable efforts and this record is devoid of any commitment by respondent to plan for herself and her baby or to follow through on suggestions and efforts made by petitioner’s staff (see Matter of Orlando F., 40 NY2d 103, supra; Matter of Candle Lee W, 91 AD2d 1106, supra; Matter of John AA., 89 AD2d 738, supra). An agency which has tried diligently to reunite a mother with her child but which is confronted by an uncooperative or indifferent parent is deemed to have fulfilled its duty (see Matter of Sheila G., 61 NY2d 368, 385, supra).

Respondent contends further that the order may not stand because petitioner did not establish that the child was in the care of an authorized agency at the time the proceeding was commenced, as the statute requires (Social Services Law, § 384-b, subd 7, par [a]). She maintains that the agency is unable to prove either its right to care for the child or that neglect continued for one year after it legally received her. The argument is premised on two alternative grounds, first that the commitment document is not to be found in the record and second, that custody, even if lawfully acquired in 1979, was terminated by the delivery of Star to respondent December 17, 1981 and no new commitment was acquired after her return to the foster parents.

We find no merit to either contention. The petition identified the commitment and alleged that respondent had executed it on August 27, 1979, petitioner’s social worker testified to the execution without objection, and respondent’s counsel did not challenge the sufficiency of the evidence on this ground at the hearing. Having failed to raise the issue at that time, she may not do so now (see, generally, Cohen and Karger, Powers of the New York Court of Appeals [rev ed], § 162).

Nor was the custody of petitioner terminated by the delivery of the child t'o respondent in December, 1981. The transfer of care was temporary and made on a trial basis. Respondent does not contend otherwise. Indeed she testified that she understood that she was on “probation” when she received Star. On this appeal she urges only that there is no authority for such a trial transfer of a child to her mother. The statute, however, mandates diligent efforts, defining them as “reasonable attempts * * * to assist, develop and encourage a meaningful relationship between the parent and child” (Social Services Law, § 384-b, subd 7, par [f]). Four types of efforts are enumerated in the statute and petitioner engaged in each of them trying to strengthen respondent’s relationship with her child. For over two years it was unsuccessful. The statute also provides, however, that those specified measures are not exclusive, and there is no reason why, when it became apparent that respondent intended to remain with her boyfriend, and considering her obvious, if sporadic, interest in her child, petitioner could not reasonably assume “diligent efforts” permitted it to try this further alternative in an attempt to reunite the family. Such arrangements, carefully and deliberately made and agreed to, are well within an agency’s implied powers under the statute. Indeed, only a cynical interpretation of the law would attach to such good-faith efforts the peril of frustrating further termination proceedings if the experiment failed and neglect was apparent. Nor did the agency violate respondent’s rights when, as she claims in a related argument, it refused her oral request to return the child after she left her with her foster parents in January, 1982. The statute provides that the parent’s notice to the agency to return the child must be written (Social Services Law, § 384-a, subd 2, par [a]).

Finally, respondent objects to the determination at the fact-finding hearing because Family Court and the Appellate Division found neglect for the period January, 1980 to June, 1981, a period ending several months before this proceeding was instituted in February, 1982. Her contention is that the period of neglect must be the one-year period prior to the institution of proceedings. The short answer to that contention is that the Legislature has provided for termination if the parent is chargeable with conduct constituting neglect for a period of “one year following the date such child came into the care of an authorized agency” (Social Services Law, § 384-b, subd 7, par [a]). The statute contemplates a continuous period of one year at any time after the child’s placement (see Matter of Norma Jean K., 81 AD2d 919; Matter of Melanie Ruth JJ, 76 AD2d 1008; Matter of Jones, 59 Misc 2d 69; Gordon, Terminal Placements of Children and Permanent Termination of Parental Rights: The New York Permanent Neglect Statute, 46 St John’s L Rev 215, 233-234). That construction is consistent with the common-law rule of abandonment, which has been held to provide that a parent has no right to block the adoption of a child she has abandoned, notwithstanding a later change of heart (see People ex rel. Pickle v Pickle, 215 App Div 38, 44; Matter of Jones, 59 Misc 2d 69, supra). The permanent neglect statute was intended to supplement this rule (see NY Legis Ann, 1959, p 415). Moreover, the construction adopted is reasonable because delay beyond the one-year period of neglect may be required to permit careful consideration by the agency staff of the decision to terminate parental rights, or it may be deemed advisable by the agency to allow a further effort at reuniting the family. Whether the delay is justified or not, however, the agency should not be held strictly to a period either one year immediately following commitment to its care or one year immediately preceding the petition to establish neglect. It may not delay institution of proceedings indefinitely, but the delay occurred in this case because of petitioner’s effort to reunite the family after the one-year period and that conduct does not require reversal of the findings of permanent neglect.

That is not to say that the conduct of the parent after the one-year period of neglect should not be considered. At the fact-finding hearing the court is obliged to consider her conduct and commitment toward her child during the interim, if that conduct has substantially changed, as well as the efforts of the agency. An awareness of that judicial obligation, or at least a hope that respondent would improve, apparently motivated petitioner to withdraw the 1981 petition in this case and attempt a trial period of care to give respondent a second chance. That these efforts failed is not to be held against it here when the evidence in the record supports the finding of a continuous period of neglect exceeding one year, unredeemed by sufficient conduct by respondent giving the agency or the court confidence of future success in reuniting the family.

II

Respondent also challenges the direction made by the court at the conclusion of the dispositional hearing.

Unlike a fact-finding hearing which resolves the issue of permanent neglect and in which the best interests of the child play no part in the court’s determination, the court in the dispositional hearing must be concerned only with the best interests of the child. There is no presumption that those interests will be served best by return to the parent (Family Ct Act, §§ 623, 631). At the time of the dispositional hearing, respondent had married Robert and was expecting another child. Both husband and wife had been employed irregularly and were supporting themselves principally by public assistance. Petitioner produced two witnesses, an experienced caseworker who had worked with Star since birth and with respondent for several years when she was in foster care, and a psychiatrist who offered her professional opinion after examining respondent and the agency’s records. The reports of petitioner and the psychiatrist were also received. Psychological tests and psychiatric evaluation showed respondent suffered from chronic mental illness and was of borderline intelligence. Both petitioner’s witnesses concluded that based upon respondent’s past performance and her mental capacity, she was unable to accept the responsibility to care for Star, particularly with a second child due. Conversely, the evidence established that the preadoptive parents were happily married, both were steadily employed, and were the successful adoptive parents of a seven-year-old boy placed with them by petitioner four years earlier. Star had lived with her preadoptive family for six months at the time of the dispositional hearing, was well adjusted to them and doing well in school. This evidence supports the court’s factual finding that Star’s best interests required permanent termination of respondent’s rights and the transfer of custody and guardianship to petitioner and the Commissioner of Social Services to make her available for adoption.

Finally, we find no merit to respondent’s contention that the court improperly accepted written reports of petitioner’s witnesses in evidence at the dispositional hearing (see Matter of Leon RR, 48 NY2d 117). The only objection registered was to the psychiatrist’s addendum report delivered to respondent’s counsel a few hours before the psychiatrist testified. The original report had been prepared several weeks earlier and submitted to counsel for his examination then. It indicated that an addendum was forthcoming and the addendum report, when completed, contained no surprising changes in findings or diagnosis from the original. Counsel’s only objection at trial was that in view of the addendum he wished his own psychiatric evaluation of respondent. The court did not abuse its discretion as a matter of law in denying the application.

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

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

Order affirmed, with costs.

         The agency does not rely upon the provisions of section 384-b (subd 7, par [e]) of the Social Services Law which provides that an agency is not required to exercise diligent efforts when the parent has failed for a period of six months to keep the agency apprised of her location.