text:
    [616 NE2d 842, 600 NYS2d 185]
    The People of the State of New York, Respondent, v Martin Galak, Appellant.
    Argued June 3, 1993;
    decided July 6, 1993

      POINTS OF COUNSEL

      Mahler & Harris, P. C., Kew Gardens (Stephen R. Mahler of counsel), for appellant.
    I. The probable cause necessary to justify a Belton search must relate to the attendant circumstances justifying the stop of the vehicle. (People v Blasich, 73 NY2d 673; People v Jaime, 171 AD2d 884; People v Acevedo, 167 AD2d 891; People v Rose, 159 AD2d 600; People v Dunlap, 163 AD2d 814; People v Belton, 55 NY2d 49; People v Torres, 74 NY2d 224; People v Evans, 43 NY2d 160; People v Earley, 76 AD2d 335.) II. A search warrant application must contain a specific statement concluding that there is reasonable cause to believe that the items sought will be found at the premises to be searched and sufficient facts to support that conclusion in order for a warrant authorizing such a search and seizure to properly issue. (People v Taylor, 73 NY2d 683.)

      Richard A. Brown, District Attorney of Queens County, Kew Gardens (Mitchell Silverman and Steven J. Chananie of counsel), for respondent.
    I. The police officers’ stop and warrantless search of defendant’s truck was based on probable cause and was thus permissible under the automobile exception to the warrant requirement. Accordingly, this case presents a mixed question of law and fact beyond the review powers of this Court. (Chambers v Maroney, 399 US 42; Carroll v United States, 267 US 132; People v Belton, 55 NY2d 49; Cady v Dombrowski, 413 US 433; Rakas v Illinois, 439 US 128; Dyke v Taylor Implement Co., 391 US 216; People v Blasich, 73 NY2d 673; United States v Ross, 456 US 798; Scher v United States, 305 US 251; People v Langen, 60 NY2d 170.) II. The search warrant application was sufficient under CPL 690 to support the issuance of a search warrant for defendant’s yard and garage. (People v Hanlon, 36 NY2d 549.)
   OPINION OF THE COURT

Simons, J.

Police stopped and arrested defendant while he was operating a white panel truck a few blocks from his residence in Queens and charged him with illegal possession of a vehicle identification number (VIN) plate and failure to have a proper license. Following the arrest, the police conducted a warrant-less search of the truck and found an assortment of stolen auto parts.

On this appeal, defendant asserts that evidence obtained from the truck should have been suppressed because there was an insufficient "nexus” between the circumstances of his arrest and the probable cause for the search. For the reasons that follow, we conclude that the police search was permissible under both the Federal and State Constitutions and therefore affirm the order of the Appellate Division.

At the suppression hearing, the arresting officers testified that the Auto Crime Division had begun an investigation of defendant several months earlier when an officer followed a trail of oil from the shell of a stolen vehicle to defendant’s home. Thereafter they maintained a surveillance of him, his vehicles and his residence and as a result discovered, among other things, that the license plates on defendant’s truck were from a Long Island car that had been stolen and stripped of its major components and that the truck’s VIN plate was from another vehicle.

In the hours preceding the arrest, police saw a dismantled vehicle in defendant’s garage and saw defendant loading fenders into the back of his truck. They waited until defendant’s truck pulled away from his home, followed it a few blocks and then, when they suspected that defendant had become aware they were following him, stopped the truck. Defendant was unable to produce a license. He did produce a registration but it indicated the vehicle was owned by the woman on Long Island whose car had been stolen. Defendant stated that the woman was a friend who had lent the truck to him, but police knew from their earlier investigation that she did not own a truck.

Defendant was arrested for illegal possession of a VIN plate and failure to have a valid license. Police then searched the truck and discovered an assortment of vehicle parts and an itemized price list for them. The officers also determined that the truck was stolen. Based in part on the evidence uncovered during the truck search, police obtained a search warrant for defendant’s residence and found additional incriminating evidence there.

Following Supreme Court’s denial of a motion to suppress the evidence obtained during the search of the truck, defendant pleaded guilty to several charges of criminal possession of stolen property and related offenses. The Appellate Division affirmed.

Defendant does not challenge the findings below that the police had both probable cause to arrest and probable cause to search. Instead he maintains that the People failed to establish the necessary "nexus” between the circumstances of the arrest and the probable cause justifying the search. Under defendant’s theory, the search of his truck was improper because the probable cause supporting it arose from acts allegedly committed at another time and place unrelated to the arrest. As defendant sees it, a search can be justified under the automobile exception only when the search is necessary to locate evidence related either to the crimes for which the arrest was made or for crimes of which they become aware during the stop. Because possessing an illegal VIN plate and driving without a license are not crimes for which evidence will be found inside the vehicle, defendant asserts the courts below erred in not granting suppression.

Under the Fourth Amendment of the United States Constitution, a search conducted without a warrant issued by an impartial Magistrate is per se unreasonable unless one of the established exceptions applies (California v Acevedo, 500 US —, —, 114 L Ed 2d 619, 634; Mincey v Arizona, 437 US 385, 390; Katz v United States, 389 US 347, 357). One such exception is the so-called "automobile exception”, under which State actors may search a vehicle without a warrant when they have probable cause to believe that evidence or contraband will be found there (California v Carney, 471 US 386, 390; Cady v Dombrowski, 413 US 433, 442; Carroll v United States, 267 US 132). Elimination of the warrant requirement in these cases has been justified both by the mobility of vehicles — and the concomitant likelihood that evidence or contraband will disappear if the search is delayed — and by the diminished expectation of privacy held by those who occupy motor vehicles (California v Carney, supra, at 392-393). Although the search may proceed without a warrant, it must still be supported by probable cause (id., at 394-395; Carroll v United States, supra, at 154). Inasmuch as the police had probable cause to search the truck, their doing so was permissible under the Fourth Amendment.

When applying our State Constitution we have held that the police must not only have probable cause to search the vehicle but that there must also be a nexus between the arrest and the probable cause to search (People v Blasich, 73 NY2d 673; People v Langen, 60 NY2d 170, 180-181, cert denied 465 US 1028; People v Belton, 55 NY2d 49; see, NY Const, art I, § 12). Though Langen characterized the nexus as a connection "between the probable cause to search and the crime for which the arrest is being made” (60 NY2d, at 181), we made clear in Blasich (supra, at 680) that the requirement of a connection is flexible. Specifically, we declined to hold in Blasich that the inquiry was to focus solely on the crimes for which a defendant was formally arrested. Instead, we held "the proper inquiry in assessing the propriety of a Belton search is simply whether the circumstances gave the officer probable cause to search the vehicle” (id., at 681; emphasis added).

Thus, contrary to defendant’s assertions, a Belton search can be justified on grounds other than those that initially prompted police to stop the vehicle. Indeed, in Belton itself, the vehicle was stopped for speeding, but the search was justified on the basis of probable cause to believe drugs were present (55 NY2d, at 55). The evidence providing the basis for that probable cause came to light only after the stop was made (id.; see also, People v Ellis, 62 NY2d 393).

Nor is there merit to defendant’s assertion that the probable cause must be based on circumstances occurring in the narrowly constricted time frame immediately before and during the automobile stop. In People v Blasich, for instance, defendant was seen driving suspiciously in an airport parking lot early one evening. A police officer stopped the vehicle but, satisfied with defendant’s answers, took no further action. Nearly an hour later, when a car was reported leaving the lot without paying, the officer suspected defendant and then verified that the car was the one he had stopped earlier. He subsequently found the car, with defendant behind the wheel, at a nearby service station. When the officer approached, he noticed tools on the floor commonly used to break into cars. The hearing court’s determination of probable cause was based not only on the presence of the tools but also on police observation of defendant’s earlier actions in the parking lot (73 NY2d, at 679-680) — events clearly outside the limited time frame that defendant believes should govern the nexus inquiry.

Indeed, the circumstances here closely parallel those in Blasieh. Earlier investigation by police had raised suspicions about defendant. Then during a legal stop of defendant’s vehicle, further evidence of crime became apparent. When questioned, defendant made inculpating statements about having borrowed the truck from the Long Island woman. As in Blasieh, this combination of evidence — derived both before and during the stop — provided not only probable cause to search but a sufficient nexus between the probable cause and the arrest.

This is not a case where a long-dormant investigation of crimes unrelated to the arrest is proposed as a justification for a warrantless search following the arrest. Surveillance of defendant for possible involvement in automobile theft and dismantling had been ongoing even on the day of the arrest. Both the stop and the formal charges were premised on the possession of an illegal VIN plate, a crime intimately related to automobile theft and dismantling. Evidence discovered during the stop contributed to the probable cause to search. In short, the relationship between the circumstances of the arrest and the probable cause to search was not only adequate but indisputable. Because both probable cause and the required nexus were present, the search of the truck did not exceed permissible bounds.

We have reviewed defendant’s claim that the application for a warrant to search defendant’s yard and garage was defective and find the procedure satisfied the statutory requirements (see, CPL 690.35; People v Hanlon, 36 NY2d 549).

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

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

Order affirmed.

       The automobile exception is to be distinguished from a search incident to arrest and the inventory search, neither of which is based on probable cause (see, e.g., People v Torres, 74 NY2d 224 [incident to arrest]; People v Galak [Galak I], 80 NY2d 715 [inventory search]).


source: Caselaw Access Project

author: Simons, J.

license: Public Domain

text:
    [616 NE2d 1095, 600 NYS2d 433]
    Robert C. Apfel et al., Appellants-Respondents, v Prudential-Bache Securities Inc., Respondent-Appellant.
    Argued April 27, 1993;
    decided July 8, 1993

      POINTS OF COUNSEL

      Geoffrey S. Stewart, of the District of Columbia Bar, admitted pro hoc vice, and Winthrop, Stimson, Putnam & Roberts, New York City (Philip LeB. Douglas of counsel), for appellants-respondents.
    I. The Court below erred in holding that an arm’s length commercial contract between sophisticated parties can be unenforceable for lack of consideration where the consideration in question is valuable intellectual property and where the buyer knew and extensively examined the consideration before making the decision to enter into the contract. (Spaulding v Benenati, 57 NY2d 418; Mencher v Weiss, 306 NY 1; Roffe v Weil, 161 AD2d 509; Weiner v McGraw-Hill, Inc., 57 NY2d 458; Holt v Feigenbaum, 52 NY2d 291; Hamer v Sidway, 124 NY 538; Gellert v Dick, 277 NY 123; Miller v Universal Pictures Co., 11 AD2d 47; Lehman v Dow Jones & Co., 783 F2d 285; Koret, Inc. v RJR Nabisco, 702 F Supp 412, 875 F2d 307.) II. The Court below did need to reach the issue of the novelty of plaintiffs’ invention because plaintiffs provided other valuable consideration to Bache in the sale agreement. (Weiner v McGraw-Hill, Inc., 57 NY2d 458; Holt v Feigenbaum, 52 NY2d 291; Hamer v Sidway, 124 NY 538.) III. Prudential-Bache Securities is barred from challenging the enforceability of the sale agreement. (Pavone v Aetna Cas. & Sur. Co., 91 Misc 2d 658; Goldner Trucking Corp. v Stoll Packing Corp., 24 Misc 2d 262; Gargiulo v Oppenheim, 95 AD2d 484, 63 NY2d 843; Matter of City of New York [Klondike Realty Corp.], 80 AD2d 611; McCormack v Lynn Imports, 114 Misc 2d 905; Propoco, Inc. v Birnbaum, 157 AD2d 774; Seiko Time Corp. v Video Assocs., 99 AD2d 941; Matter of Rothko, 43 NY2d 305; Bank Leumi Trust Co. v D’Evori Intl., 163 AD2d 26; McLean v Balkoski, 125 AD2d 234.) IV. The courts below erred in not striking Prudential-Bache’s defense of breach of contract. (Callanan v Keeseville, Ausable Chasm & Lake Champlain R. R. Co., 199 NY 268; Babylon Assocs. v County of Suffolk, 101 AD2d 207; Septembertide Publ. v Stein & Day, 884 F2d 675; Capelin Assocs. v Globe Mfg. Corp., 34 NY2d 338; American Sav. Bank v Imperato, 159 AD2d 444.) V. The Court below erred in affirming Special Term’s dismissal of plaintiffs’ claim that Prudential-Bache negligently abandoned the patent application. (Ellish v Airport Parking Co., 42 AD2d 174, 34 NY2d 882; Jays Creations v Hertz Corp., 42 AD2d 534; Castner v Insurance Co. of N. Am., 40 AD2d 1; Noworyta v Klippert, 122 AD2d 548; Singer Co. v Stott & Davis Motor Express, 79 AD2d 227; Maisel v Gruner & Jahr USA, 89 AD2d 503.) VI. The Court below erred in affirming Special Term’s dismissal of count 14. (Sachs v Cluett, Peabody & Co., 265 App Div 497, 291 NY 772; Matter of Sbarro Holding [Shian Tien Yuan], 111 Misc 2d 910, 91 AD2d 613; Mobil Oil Corp. v Rubenfeld, 72 Misc 2d 392.)

      Cahill Gordon & Reindel, New York City (Thomas J. Kavaler, Judith A. Archer and Richard C. Schoenstein of counsel), for respondent-appellant.
    I. As a matter of law, the sale agreement is unenforceable because Apfel and Lampros did not and could not own the "consideration” they purported to convey because "their ideas” were neither novel nor original. (Downey v General Foods Corp., 31 NY2d 56; Educational Sales Programs v Dreyfus Corp., 65 Misc 2d 412; Granoff v Merrill Lynch, 775 F Supp 621, 962 F2d 2; McGhan v Ebersol, 608 F Supp 277; Graham Prods. v National Broadcasting Co., 75 Misc 2d 334; Bram v Dannon Milk Prods., 33 AD2d 1010; Wilson v Bristol-Myers Co., 118 AD2d 50, 68 NY2d 610; Surplus Equip, v Xerox Corp., 120 AD2d 582, 68 NY2d 606;
      Oxenhandler v Dime Sav. Bank, 33 Misc 2d 626; Ferber v Sterndent Corp., 51 NY2d 782.) II. In the face of the uncontroverted evidence of prior use and the unrebutted opinion of defendant’s expert witness, plaintiffs have failed to show facts sufficient to require a trial on the issue of the existence of the consideration required by New York law. (Jill Real Estate v Smyles, 150 AD2d 640; Di Guglielmo v Peixoto, 134 AD2d 320; Mallad Constr. Corp. v County Fed. Sav. & Loan Assn., 32 NY2d 285; Hammond Oil Co. v Standard Oil Co., 259 NY 312; McGovern v City of New York, 234 NY 377.) III. Although correctly holding that an idea must be novel to constitute consideration, the Court below erred in failing to dismiss plaintiffs’ breach of contract claim because Prudential-Bache demonstrated, as a matter of law, that plaintiffs had failed to establish valid consideration. (Murray v National Broadcasting Co., 844 F2d 988; Lois Pitts Gershon PON/GGK v Tri-Honda Adv. Assn., 166 AD2d 357; Ring v Estee Lauder, Inc., 702 F Supp 76, 874 F2d 109.) IV. Prudential-Bache is not barred from challenging the existence of the sale agreement. (BWA Corp. v Alltrans Express U.S.A., 112 AD2d 850; State Bank of Albany v Fioravanti, 70 AD2d 1011, 51 NY2d 638; OPE Shipping v Allstate Ins. Co., 687 F2d 639, 460 US 1069; Continental Time Corp. v National Broadcasting Co., 70 AD2d 502, 49 NY2d 949.) V. The Court below erred in reinstating the quasi-contract claim because there can be no recovery for unjust enrichment in the absence of novelty. (Oxenhandler v Dime Sav. Bank, 33 Misc 2d 626; Educational Sales Programs v Dreyfus Corp., 65 Misc 2d 412; Seymore v Reader’s Digest Assn., 493 F Supp 257.)
   OPINION OF THE COURT

Simons, J.

Defendant, an investment bank, seeks to avoid an agreement to purchase plaintiffs’ idea for issuing and selling municipal bonds. Its principal contention is that plaintiffs had no property right in the idea because it was not novel and, therefore, consideration for the contract was lacking. For reasons which follow, we conclude that a showing of novelty is not required to validate the contract. The decisive question is whether the idea had value, not whether it was novel.

I

In 1982, plaintiffs, an investment banker and a lawyer, approached defendant’s predecessor with a proposal for issuing municipal securities through a system that eliminated paper certificates and allowed bonds to be sold, traded, and held exclusively by means of computerized "book entries”. Initially, the parties signed a confidentiality agreement that allowed defendant to review the techniques as detailed in a 99-page summary. Nearly a month of negotiations followed before the parties entered into a sale agreement under which plaintiffs conveyed their rights to the techniques and certain trade names and defendant agreed to pay a stipulated rate based on its use of the techniques for a term from October 1982 to January 1988. Under the provisions of the contract, defendant’s obligation to pay was to remain even if the techniques became public knowledge or standard practice in the industry and applications for patents and trademarks were denied. Plaintiffs asserted that they had not previously disclosed the techniques to anyone and they agreed to maintain them in confidence until they became public.

From 1982 until 1985, defendant implemented the contract, although the parties dispute whether amounts due were fully paid. Defendant actively encouraged bond issuers to use the computerized "book entry” system and, for at least the first year, was the sole underwriter in the industry employing such a system. However, in 1985, following a change in personnel, defendant refused to make any further payments. It maintained that the ideas conveyed by plaintiffs had been in the public domain at the time of the sale agreement and that what plaintiffs sold had never been theirs to sell. Defendant’s attempts to patent the techniques proved unsuccessful. By 1985, investment banks were increasingly using computerized systems, and by 1990 such systems were handling 60% of the dollar volume of all new issues of municipal securities.

Plaintiffs commenced this litigation seeking $45 million in compensatory and punitive damages. They asserted 17 causes of action based on theories of breach of contract, breach of a fiduciary duty, fraud, various torts arising from defendant’s failure to obtain patents, and unjust enrichment. Defendant’s answer interposed defenses and counterclaims for breach of contract, breach of warranty, waiver, fraud, estoppel, laches, mutual mistake, rescission, and a lack of consideration. Plaintiffs then moved for partial summary judgment, defendant cross-moved for summary judgment dismissing the complaint, and plaintiffs responded with a motion seeking dismissal of the affirmative defenses.

Supreme Court concluded that triable issues existed on the questions of whether defendant breached the contract by refusing to make payments and whether plaintiffs committed a breach by allegedly disclosing the techniques to another company. The court also found defendant had raised a triable issue on whether plaintiffs had partially waived their right to payment by forgoing certain claims to compensation. The remainder of the pleadings were found to be legally insufficient. Accordingly, the court dismissed all the causes of action except the first, which alleges breach of contract, and struck all defendant’s defenses and counterclaims except those relating to breach of contract and the partial defense of waiver. The Appellate Division modified the order by reinstating defendant’s claim that the sale agreement lacked consideration. It held that novelty was required before an idea could be valid consideration but concluded that the question was one of fact to be decided at trial. It also reinstated the cause of action for unjust enrichment, holding that the presence of an express contract did not foreclose recovery on a theory of quasi contract.

On this appeal, defendant’s principal contention is that no contract existed between the parties because the sale agreement lacked consideration. Underlying that argument is its assertion that an idea cannot be legally sufficient consideration unless it is novel. Defendant supports that proposition by its reading of such cases as Downey v General Foods Corp. (31 NY2d 56), Soule v Bon Ami Co. (201 App Div 794, affd 235 NY 609), and Murray v National Broadcasting Co. (844 F2d 988, cert denied 488 US 955). Plaintiffs insist that their system was indeed novel, but contend that, in any event, novelty is not required to validate the contract at issue here.

II

Defendant’s cross motion for summary judgment insofar as it sought to dismiss the first cause of action alleging breach of contract was properly denied. Additionally, plaintiffs’ motion to dismiss the lack of consideration defenses and counterclaims should be granted.

Under the traditional principles of contract law, the parties to a contract are free to make their bargain, even if the consideration exchanged is grossly unequal or of dubious value (see, Spaulding v Benenati, 57 NY2d 418; Hamer v Sidway, 124 NY 538; 3 Williston, Contracts § 7:21, at 390 [Lord 4th ed]; Restatement [Second] of Contracts § 74, comment e; § 79, comment c). Absent fraud or unconscionability, the adequacy of consideration is not a proper subject for judicial scrutiny (Spaulding v Benenati, supra, at 423). It is enough that something of "real value in the eye of the law” was exchanged (see, Mencher v Weiss, 306 NY 1, 8; see also, Weiner v McGraw-Hill, Inc., 57 NY2d 458, 464). The fact that the sellers may not have had a property right in what they sold does not, by itself, render the contract void for lack of consideration (see, Wahl v Barnum, 116 NY 87, 95 [relinquishment of disputed claim is valid consideration even though claim is in fact invalid]; Spaulding v Benenati, supra, at 423 ["expectancy that customers will return to the seller’s former location” is legally sufficient consideration]; see also, Restatement [Second] of Contracts § 74, comment e [contract for quitclaim deed valid, even though seller has no interest in the property]; 3 Williston, Contracts § 7:21, at 391 [Lord 4th ed]).

Manifestly, defendant received something of value here; its own conduct establishes that. After signing the confidentiality agreement, defendant thoroughly reviewed plaintiffs’ system before buying it. Having done so, it was in the best position to know whether the idea had value. It decided to enter into the sale agreement and aggressively market the system to potential bond issuers. For at least a year, it was the only underwriter to use plaintiffs’ "book entry” system for municipal bonds, and it handled millions of such bond transactions during that time. Having obtained full disclosure of the system, used it in advance of competitors, and received the associated benefits of precluding its disclosure to others, defendant can hardly claim now the idea had no value to its municipal securities business. Indeed, defendant acknowledges it made payments to plaintiffs under the sale agreement for more than two years, conduct that would belie any claim it might make that the idea was lacking in value or that it had actually been obtained from some other source before plaintiffs’ disclosure.

Thus, defendant has failed to demonstrate on this record that the contract was void or to raise a triable issue of fact on lack of consideration.

Ill

Defendant’s position rests on Downey v General Foods Corp. (31 NY2d 56, supra) and Soule v Bon Ami Co. (235 NY 609, affg 201 App Div 794, supra) and similar decisions. It contends those cases establish an exception to traditional principles of contract law and require that the idea must be novel before it can constitute valid consideration for a contract. While our cases have discussed novelty as an element of an idea seller’s claim, it is not a discrete supplemental requirement, but simply part of plaintiffs proof of either a proprietary interest in a claim based on a property theory or the validity of the consideration in a claim based on a contract theory (see generally, 3 Nimmer, Copyright, ch 16).

In Downey, plaintiff submitted an idea for an advertising campaign. A short time later, defendant General Foods mounted a campaign that was similar to the one plaintiff had suggested and plaintiff sought damages in a complaint alleging several theories for recovery (see, 37 AD2d 250). We ordered the dismissal of the complaint on two separate grounds: first, the lack of novelty and, second, defendant’s prior possession of the idea — i.e., its lack of novelty as to defendant (Downey, 31 NY2d, at 61-62). To the extent plaintiff’s causes of action were grounded on assertions of a property right, we found that they were untenable "if the elements of novelty and originality [were] absent, since the property right in an idea is based upon these two elements” (id., at 61). Second, we concluded that the defendant possessed plaintiff’s ideas prior to plaintiff’s disclosure. Thus, the ideas could have no value to defendant and could not supply consideration for any agreement between the parties (see, Ferber v Sterndent Corp., 51 NY2d 782).

In Soule v Bon Ami Co. plaintiff made an express contract with Bon Ami to disclose a way to increase profits. The idea consisted largely of a proposal to raise prices. The Appellate Division, in a frequently cited opinion, denied plaintiff any recovery, finding that the bargain lacked consideration because the idea was not novel. This Court affirmed but it did so on a different basis: it held that plaintiff had failed to show that profits resulted from the disclosure.

These decisions do not support defendant’s contention that novelty is required in all cases involving disclosure of ideas. Indeed, we have explicitly held that it is not (see, Keller v American Chain Co., 255 NY 94). Downey, Soule and cases in that line of decisions involve a distinct factual pattern: the buyer and seller contract for disclosure of the idea with payment based on use, but no separate postdisclosure contract for use of the idea has been made. Thus, they present the issue of whether the idea the buyer was using was, in fact, the seller’s.

Such transactions pose two problems for the courts. On the one hand, how can sellers prove that the buyer obtained the idea from them, and nowhere else, and that the buyer’s use of it thus constitutes misappropriation of property? Unlike tangible property, an idea lacks title and boundaries and cannot be rendered exclusive by the acts of the one who first thinks it. On the other hand, there is no equity in enforcing a seemingly valid contract when, in fact, it turns out upon disclosure that the buyer already possessed the idea. In such instances, the disclosure, though freely bargained for, is manifestly without value. A showing of novelty, at least novelty as to the buyer, addresses these two concerns. Novelty can then serve to establish both the attributes of ownership necessary for a property-based claim and the value of the consideration — the disclosure — necessary for contract-based claims.

There are no such concerns in a transaction such as the one before us. Defendant does not claim that it was aware of the idea before plaintiffs disclosed it but, rather, concedes that the idea came from them. When a seller’s claim arises from a contract to use an idea entered into after the disclosure of the idea, the question is not whether the buyer misappropriated property from the seller, but whether the idea had value to the buyer and thus constitutes valid consideration. In such a case, the buyer knows what he or she is buying and has agreed that the idea has value, and the Court will not ordinarily go behind that determination. The lack of novelty, in and of itself, does not demonstrate a lack of value (see, Keller v American Chain Co., 255 NY 94, supra). To the contrary, the buyer may reap benefits from such a contract in a number of ways — for instance, by not having to expend resources pursuing the idea through other channels or by having a profit-making idea implemented sooner rather than later. The law of contracts would have to be substantially rewritten were we to allow buyers of fully disclosed ideas to disregard their obligation to pay simply because an idea could have been obtained from some other source or in some other way.

IV

Having found that defendant’s counterclaims and defenses challenging the existence of a valid contract should be stricken, we further conclude that the Appellate Division erred in reinstating plaintiffs’ seventh cause of action, which alleged unjust enrichment on a quasi-contract theory. The transaction is controlled by the express agreement of the parties and their rights and liabilities are to be determined solely on theories of breach of contract and the partial defense of waiver (see, Miller v Schloss, 218 NY 400, 408-409).

V

We have reviewed the remaining contentions of the parties and find them without merit.

Accordingly, the order of the Appellate Division should be modified, without costs, in accordance with this opinion, and, as so modified, affirmed, and the certified question answered in the negative.

Chief Judge Kaye and Judges Titone, Hancock, Jr., and Bellacosa concur; Judge Smith taking no part.

Order modified, etc.


author: OPINION OF THE COURT Bellacosa, J.

text:
    [616 NE2d 1099, 600 NYS2d 437]
    The People of the State of New York, Respondent, v George Eiffel, Appellant.
    Argued June 2, 1993;
    decided July 9, 1993

      POINTS OF COUNSEL

      Susan L. Hendricks, New York City, Robert M. Baum and Michele Maxian for appellant.
    Defendant cannot be prosecuted for bail jumping in the first degree unless a class A or B felony was pending against him when the crime was completed, 30 days after the date he failed to appear in court. (People v Shurn, 71 AD2d 610, 50 NY2d 914; Matter of Bliss v Bliss, 66 NY2d 382; People v Davis, 168 Misc 511; People v Holcombe, 89 AD2d 644.)

      Richard A. Brown, District Attorney of Queens County, Kew Gardens (Merri Turk Lasky and Steven J. Chananie of counsel), for respondent.
    For defendant to be guilty of bail jumping, the underlying charges need only be pending on the date defendant disobeys the mandate of the court to appear; the subsequent 30-day statutory time period is merely a grace period within which defendant may voluntarily appear and excuse his prior failure to obey the court’s order. (People v Hedgeman, 70 NY2d 533; People v Ditta, 52 NY2d 657; People v Scalise, 115 Misc 2d 283; People v Shurn, 50 NY2d 914; People v Holcombe, 89 AD2d 644; People v Green, 168 AD2d 264; People v Shannon, 127 Misc 2d 1073, 127 AD2d 863, 69 NY2d 1009; People v Stuyvesant Ins. Co., 24 AD2d 989, 21 NY2d 907; United States v Williams, 932 F2d 1515; People v Continental Cas. Co., 301 NY 79.)
   OPINION OF THE COURT

Bellacosa, J.

Persons who are released on bail or upon their own recognizance in connection with a pending indictment charging a class A or class B felony, and who do not appear personally on the date required by a court order or voluntarily within 30 days thereafter, are guilty of bail jumping in the first degree (Penal Law § 215.57). On a grant of leave to appeal to defendant from an order reinstating an indictment for bail jumping in the first degree, we must decide whether that criminal charge may nevertheless be lodged against the nonappearing defendant, even though the predicate class A or class B felony is no longer pending at the end of the 30-day period.

Defendant was arrested and charged with first and third degree rape and second degree sexual abuse of another patient at Creedmore Psychiatric Hospital. The court informed him that he could be tried in absentia if he did not appear on the directed date and then released defendant on his own recognizance upon condition that he appear for the start of trial on May 11, 1989. When defendant failed to appear, the court held a hearing pursuant to People v Parker (57 NY2d 136), found that defendant’s absence was voluntary, and proceeded to trial without him. The charge of first degree rape, a class B felony, was dismissed by the court for insufficient evidence. The jury, however, convicted defendant of second degree sexual abuse, a class A misdemeanor, while acquitting him of the class E felony of third degree rape. Prior to his sentencing, also in absentia, to one year imprisonment, defendant was charged in a separate indictment with first degree bail jumping (Penal Law § 215.57), the matter here at issue.

He was later found, arrested and arraigned on the bail jumping charge. A motion was made on his behalf to reduce the bail jumping charge to the third degree only (Penal Law § 215.55). The trial court granted the motion, reasoning that an indictment containing a class A or B felony had to be pending not only on the date defendant failed to appear, but also at the end of the 30-day period in order to support a charge of first degree bail jumping.

The People appealed to the Appellate Division, which reversed and reinstated the first degree bail jumping charge. That Court concluded that "the statute does not require the continued pendency of a class A or B felony indictment for the 30-day period in order to sustain a charge of bail jumping in the first degree” (183 AD2d 845, 846). We agree and therefore affirm. /(

Plainly, Penal Law § 215.57 requires that a class A or class B felony indictment be "pending” against the defendant at some point in the criminal proceedings for the elements of bail jumping in the first degree to be satisfied. However, the statute requires interpretation as to whether the predicate crimes must remain pending until the conclusion of the 30-day period. To resolve that question, this Court should therefore look to the purpose and nature of that 30-day period and its relationship to the rest of the statute that defines that crime in order to gain an understanding of the proper interpretation and operation of the statute.

Defendant argues that the Legislature was not concerned with the prevention of de minimis delays of 30 days or less, since these are less likely to adversely affect the strength or viability of the prosecution’s case than are more lengthy delays. However, in People v Shurn (50 NY2d 914), this Court recognized that the 30-day period was more than a yardstick to measure excessive delay by absconding defendants. The majority viewed the "grace period” as important in reasonably limiting the scope of the offense, precisely because bail jumping under Penal Law § 215.57 is a "nonintent crime” (id., at 915). This allowance for short-term purging, by actions of the defendant, to avoid unwarranted ratcheting of criminal charges, makes sense in light of the legislative retention of the 30-day "grace period” when the willfulness requirement was removed from the statute in 1935. The original statute enacted in 1928 required that defendant’s failure to appear be done "wilfully”, and allowed defendant 30 days to appear or surrender (L 1928, ch 374). In 1935, the statute was amended to delete willfulness, but retained the 30-day period (L 1935, ch 275).

This Court’s reasoning in Shurn sheds some light on our search for the correct statutory interpretation in the fact pattern now before us. In that case, the "fortuitous event of [defendant’s] arrest” within the 30-day period was held not to foreclose defendant’s availment of the grace period to avoid a bail jumping first degree charge (50 NY2d 914, 915, supra). The distinguishing factual twist here is that the defendant did not appear in time; rather, the "fortuitous” timing of court processes allowed the underlying predicate charges to be resolved within 30 days. We conclude that the reasoning of Shurn buttresses our view that, in this case, the completion of the crime of bail jumping in the first degree should not depend on the calendaring and timing of the disposition of the predicate criminal charges.

This penal statute provides notice to defendants that serious additional sanctions may result from their failure to appear in court on a required date as ordered (Penal Law § 215.57). An incentive to appear as ordered by the court is spurred by a potential penalty to a defendant who chooses to abscond and remain at liberty, possibly frustrating a timely disposition of the charges or avoiding prosecution entirely. The incentive to appear as ordered is modulated by the three degrees of bail jumping, which vary depending on the degree of the offense charged at the time the defendant violates the court’s order (see, Donnino, Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law § 215.55, at 597). The statute is ultimately qualified with an opportunity afforded to a defendant to appear within 30 days which, in effect, allows for purging the earlier nonappearance.

This Court should not, by judicial construction, in these circumstances, alter the legislative calibration for bail jumping in the first degree. When a defendant fails to "appear personally” in court on a "required date” (Penal Law § 215.57), the defendant has unlawfully violated a court order. Defendants then have a 30-day grace period during which they may appear and "insulate” themselves from prosecution by a kind of condition subsequent, as it were (see, People v Scalise, 115 Misc 2d 283, 284). During this period, the statute focuses on defendant’s appearance before the court, not the status of the predicate charge (see, People v Shurn, 50 NY2d 914, supra; cf., People v Holcombe, 89 AD2d 644). If defendant has not appeared at the end of the 30-day period, the elements of the crime have been completed and satisfied, whether the predicate criminal charges are still pending or have been resolved, as occurred in this case. The criminal charge against this defendant for bail jumping in the first degree is available and was properly lodged.

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

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

Order affirmed.


author: Smith, J. Hancock, Jr., J.

text:
    [617 NE2d 1047, 600 NYS2d 931]
    The People of the State of New York, Respondent, v Vasil Lesiuk, Appellant.
    Argued June 2, 1993;
    decided July 8, 1993

      POINTS OF COUNSEL

      D.J. & J.A. Cirando, Syracuse (John A. Orando, Patrick J. Haber and Ivette C. Iza of counsel), for appellant.
    I. The Court below utilized the incorrect standard when the prosecution failed to produce the police informant who made the alleged drug buy and the informant’s subsequent statement, affidavit and testimony created a reasonable doubt under either standard. (People v Jenkins, 41 NY2d 307; United States v Bagley, 473 US 667; People v Vilardi, 76 NY2d 67; People v Brown, 84 AD2d 910.) II. The prearrest delay deprived appellant of due process of law. (People v Singer, 44 NY2d 241; People v Genett, 68 AD2d 81, 51 NY2d 991; People v Staley, 41 NY2d 789; People v Winfrey, 20 NY2d 138; People v Wilson, 8 NY2d 391; People v Lugo, 62 AD2d 1024; People v Townsend, 38 AD2d 569.) III. The trial court abused its discretion in excusing the sworn juror during trial. (People v Page, 72 NY2d 69; People v Thomas, 147 AD2d 598; People v Rosa, 138 AD2d 753, 72 NY2d 866; People v Washington, 131 AD2d 118, 72 NY2d 69; People v Pierce, 97 AD2d 904.)

      George M. Dentes, District Attorney of Tompkins County, Ithaca, for respondent.
    I. The Court below properly applied the "reasonable probability” standard, but whatever the standard, Harvey was so lacking in credibility that the judgment must be affirmed. (People v Jenkins, 41 NY2d 307; People v Prochilo, 41 NY2d 759; People v Yukl, 25 NY2d 585; People v Vilardi, 76 NY2d 67.) II. The affirmed finding of County Court that the preindictment delay was justified should not be disturbed. (People v Singer, 44 NY2d 241; People v Angrisani, 160 AD2d 713.) III. The trial court properly excused a juror who became unavailable because of a travel commitment. (People v Page, 72 NY2d 69; People v Maxwell, 156 AD2d 476; People v Thompson, 151 AD2d 626.)
   OPINION OF THE COURT

Smith, J.

On March 10, 1989, defendant was convicted, after a jury trial, of criminal sale of marihuana in the second degree. On June 7, 1989, following a probation violation hearing, County Court revoked defendant’s sentence of probation for a previous drug-related conviction, and imposed a sentence of imprisonment. On appeal from both judgments, the Appellate Division withheld decision and remitted the matter to County Court for a determination of whether defendant had established the required materiality of the testimony of a previously unavailable informant (161 AD2d 21). Upon remittal and after a hearing at which the informant testified, County Court denied defendant’s motion to set aside the verdict, and the Appellate Division affirmed (186 AD2d 296). Justice Yesawich, Jr. granted leave to appeal.

The primary issue before us is whether the Appellate Division applied the proper standard — "reasonable probability” that the outcome of the trial would have been different had the informant testified — in considering whether defendant established the required materiality of the testimony of the informant. For the reasons that follow, we conclude that the order of the Appellate Division should be affirmed.

Defendant’s conviction arose from his sale of marihuana, on December 4, 1986, at the Viking Lanes in the Town of Dryden, Tompkins County. The trial evidence demonstrated that, on that date, an undercover police officer observed defendant hand a brown bag containing marihuana to a confidential police informant, Charles Harvey, in exchange for $1,650. Because the undercover officer was also involved in a stolen property sting investigation in Tompkins County, and other members of the undercover officer’s narcotics unit were attempting to use Harvey to arrange another drug transaction involving defendant, the arrest of defendant was delayed until August 7, 1987.

County Court denied defendant’s motion to dismiss the indictment against him on the ground, among others, that the delay between the commission of the crime and his arrest deprived him of due process.

At the time of trial, the prosecution unsuccessfully attempted to locate Harvey. The prosecution presented evidence that the police contacted other informants, prosecutors in New Jersey, and Harvey’s former wife, attempted to serve a subpoena on Harvey six months before the trial began, and put out an all-points bulletin in order to locate Harvey.

The jury rendered a guilty verdict. Prior to sentencing, defendant moved to set aside the verdict on various grounds, including newly discovered evidence consisting of an affidavit from Harvey stating that defendant did not sell or give any marihuana to him, and that the undercover officer gave him the marihuana to take to defendant. County Court denied the motion, without a hearing, and imposed sentence. In addition, following a probation violation hearing for an unrelated conviction, County Court revoked a sentence of probation and sentenced defendant to a term of imprisonment.

The Appellate Division, with two Justices dissenting, withheld decision on the appeal from both judgments and remitted the matter to County Court (161 AD2d 21, supra). The majority directed County Court to weigh all the relevant circumstances, including the informant’s credibility, to determine in light of the entire trial record whether defendant established that "a reasonable probability [existed] that the outcome of the trial would have been different had the informant testified” (id., at 25). The dissent believed that "something less than 'reasonable probability’ is the appropriate standard of review” (id., at 27).

Upon remittal, County Court denied the motion to set aside the verdict, finding, among other things, that there were "no indicia of credibility” in the testimony of the informant, and that the informant is a career criminal "with ample motive to lie in order to right a wrong to Defendant, a long time acquaintance, whom he had previously deceived in order to serve his own self-interest.” The Appellate Division affirmed, with the same two Justices dissenting (186 AD2d 296, supra). The majority concluded that "there is no reasonable probability that the outcome of the trial would have been different had Harvey testified” (id., at 297). The majority also rejected defendant’s contention that the People failed to use good-faith efforts to produce Harvey at the time of trial (id.). The dissent relied on the reasons set forth in the dissent issued in the prior appeal (id., at 298).

On this appeal, defendant asserts that the majority at the Appellate Division erred in applying the "reasonable probability” standard in considering whether the testimony of the informant, had he been produced at trial, would have created a different result in the outcome of the case. Defendant argues that the majority erroneously applied a standard which finds constitutional error when the prosecutor fails to release exculpatory evidence, rather than the lesser standard which inquires whether "there was the slightest suggestion in the record that [the] testimony [of the informant] would to the slightest degree establish any of the facts influencing the issue of guilt or innocence of the defendant” (People v Jenkins, 41 NY2d 307, 313).

Jenkins controls this case. In Jenkins, the primary issue was the obligation of the People to produce at trial a confidential informant once in control of the police, who had become unavailable through no intention of the prosecutor, but through the otherwise excusable or justifiable act of the prosecutor. The confidential informant in Jenkins had moved to Florida, departing New York by means of a plane ticket provided by the Drug Enforcement Administration. We concluded that "where an unavailable informant is or has been under the employ or control of law enforcement authorities, the People have a duty to produce the informant or exert diligent efforts to effect the production of the informant for the defense” (id., at 309). The Court stated further that notwithstanding defendant’s right of confrontation, due process and fairness, "the People should not be penalized when [an] informant has, on his or her own initiative, effectively disappeared after relinquishment of government control” (id., at 310). Thus, the Court concluded that in order for a defendant to compel production of a confidential informant, or dismissal of the charges, the defendant "must meet a higher burden and demonstrate that the proposed testimony of the informant would tend to be exculpatory or would create a reasonable doubt as to the reliability of the prosecution’s case either through direct examination or impeachment” (id., at 310-311). It was in addressing the discussion of the facts by the dissenter and the dissenter’s conclusions that (1) the People were bound to know that the informant would be crucial to the defense, (2) the unavailability of the informant deprived the defendants of a fair trial, and (3) the People were responsible for the informant’s unavailability, that this Court stated that the dissent’s discussion "would be persuasive if * * * there was the slightest suggestion in the record that [the informant’s] testimony would to the slightest degree establish any of the facts influencing the issue of guilt or innocence of the defendants” (id., at 313).

We reaffirm our holding in that case and conclude that where, as here, a defendant seeks the dismissal of an indictment for failure of the prosecution to produce a witness unavailable through no intention of the prosecutors, the defendant "must meet a higher burden and demonstrate that the proposed testimony of the informant would tend to be exculpatory or would create a reasonable doubt as to the reliability of the prosecution’s case either through direct examination or impeachment” (id., at 310-311).

We cannot agree with defendant’s assertion that even if the court applied the proper standard, the subsequent statement, affidavit and testimony of the informant created a reasonable doubt as to the reliability of the prosecution’s case. Given its "peculiar advantages of having seen and heard the witnesses,” the determinations of County Court must be accorded great weight (People v Prochilo, 41 NY2d 759, 761). We will not disturb County Court’s conclusions that there were "no indicia of credibility” in the testimony of the informant.

Next, we consider defendant’s contention that the eight-month delay between the incident and his arrest deprived him of due process of law.

We have consistently held that " 'unreasonable delay in prosecuting a defendant constitutes a denial of due process of law’ ” (People v Singer, 44 NY2d 241, 253; People v Staley, 41 NY2d 789, 791; see also, NY Const, art I, § 6). An unjustifiable delay in commencing the prosecution may require dismissal even though no actual prejudice to the defendant is shown (People v Singer, 44 NY2d, at 253-254, supra). Where there has been a prolonged delay, we impose a burden on the prosecution to establish good cause (see, People v Singer, 44 NY2d, at 254, supra). We recognize that there is a need to investigate to discover the offender, to eliminate unfounded charges, and to gather sufficient evidence prior to the commencement of a prosecution (see, id.). Thus, we stated that "a determination made in good faith to defer commencement of the prosecution for further investigation or for other sufficient reasons, will not deprive the defendant of due process of law even though the delay may cause some prejudice to the defense” (id., at 254).

In this case, the undercover officer who had observed the transaction between defendant and the informant was also involved in a stolen property sting investigation in Tompkins County. Other members of the undercover officer’s narcotics unit were attempting to use the informant to arrange another drug transaction involving defendant. We conclude that under these circumstances, the delay in arresting defendant did not deprive him of due process of law.

Finally, defendant argues that the trial court abused its discretion in excusing a sworn juror during the trial. CPL 270.35 provides, in part, that "[i]f at any time after the trial jury has been sworn and before the rendition of its verdict, a juror is unable to continue serving by reason of illness or other incapacity, or for any other reason is unavailable for continued service * * *, the court must discharge such juror.” Construing CPL 270.35, we held a trial court must, prior to discharging or replacing a sworn juror based on continued unavailability, make a reasonably thorough inquiry and recitation on the record of the facts and reasons for invoking the statutory authorization (see, People v Page, 72 NY2d 69, 73).

Here, the trial court’s inquiry into the juror’s unavailability and recitation on the record of the facts and reasons for invoking the statutory authorization in discharging the juror complied with our mandate in People v Page (supra) and there was no abuse of discretion by the court in discharging the juror.

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

Hancock, Jr., J.

(dissenting). Charles Harvey, an eyewitness whom the People failed to produce at trial, would have testified at trial that defendant did not in fact sell him marihuana —the crime of which defendant now stands convicted. Harvey’s affidavit, submitted with defendant’s motion to set aside the verdict, stated that at the time of the alleged drug sale, defendant "did not sell me (or anyone else), or give me (or anyone else), any marijuana”, that Harvey had previously told the police that defendant would not have any marihuana, and that Harvey had told a State Police officer that "he would not like what I had to say if I testified”. The question in this case is thus whether in light of Harvey’s probable testimony, defendant is entitled to a new trial pursuant to this Court’s holding in People v Jenkins (41 NY2d 307). I believe that he is.

In Jenkins, this Court established two separate bases for a new trial when the People fail to produce a witness: when the witness’ testimony "is likely to have been favorable to some degree in tending to exculpate the defendant or, alternatively, * * * [when] the witness’ testimony could be impeached to a meaningful degree creating a doubt as to the reliability of the prosecutor’s case” (Jenkins, supra, at 311 [emphasis added]). There can be no doubt in the present case that Harvey’s testimony would tend to be exculpatory under the first of the two bases for a new trial. Indeed, no testimony could be more exculpatory than that of an eyewitness who would testify that defendant did not commit the acts comprising the crime for which he is to be tried.

The majority’s contrary result — that Harvey is incredible as a witness and thus that his testimony could not have "created a reasonable doubt as to the reliability of the prosecution’s case” (majority opn, at 490) — relies solely on the second of the two Jenkins bases and simply fails to address the first. That Harvey’s testimony may or may not raise a reasonable doubt as to the prosecution’s case under the second Jenkins standard can have no bearing on whether it tends to be exculpatory under the first.

Moreover, Harvey’s ultimate credibility as a witness and whether a jury would believe his testimony is not a proper consideration in applying the first of the Jenkins tests. While Harvey’s credibility may be relevant to ascertaining whether his testimony would raise a reasonable doubt about the People’s case, whether the testimony tends to be exculpatory turns solely on its substantive content and not on the believability of the witness. The question depends on the nature of the evidence, its content and the facts it tends to prove — not on the quality of the evidence or its potential for influencing the resolution of the factual issue. The weight or credibility of that testimony — whether, in fact, it does exculpate defendant —is a determination for the jury. Significantly, this Court has acknowledged in the analogous situation of the failure to produce Rosario material that the significance or value of the content of the missing material, cannot properly be evaluated by a Judge and is left to defendant and, ultimately, the jury (see, People v Novoa, 70 NY2d 490, 498-499; People v Perez, 65 NY2d 154, 160; People v Consolazio, 40 NY2d 446, 454). There is no reason to accord defendant’s compulsory process rights less protection in the present case than those afforded defendants’ due process rights in cases involving Rosario violations.

Accordingly, I would reverse the order of the Appellate Division and remit the matter for a new trial.

Chief Judge Kaye and Judges Titone and Bellacosa concur with Judge Smith; Judge Hancock, Jr., dissents and votes to reverse in another opinion in which Judge Simons concurs.

Order affirmed.


author: Titone, J.

text:
    [618 NE2d 82, 601 NYS2d 49]
    Charles Ross, Respondent-Appellant, v Curtis-Palmer Hydro-Electric Company et al., Defendants, and International Paper Company, Appellant-Respondent.
    Argued April 27, 1993;
    decided June 10, 1993

      POINTS OF COUNSEL

      Thuillez, Ford, Gold & Conolly, Albany (Michael J. Hutter of counsel), for appellant-respondent.
    I. The Court below erred in holding that Labor Law § 240 (1) imposes strict nondelegable tort liability for a back injury resulting from the performance of a job task in a contorted position while sitting on a platform that rested over a deep hole when it is claimed that the platform was improperly placed and constructed, even though the back injury is wholly unrelated to the hazard, i.e., a fall into the hole, which required the use of the platform in the first instance. (Bland v Manocherian, 66 NY2d 452; Zimmer v Chemung County Performing Arts, 65 NY2d 513, 1054; Rocovich v Consolidated Edison Co., 78 NY2d 509; Yaeger v New York Tel. Co., 148 AD2d 308; Staples v Town of Amherst, 146 AD2d 292; Gregory v General Elec. Co., 131 AD2d 967; DeHaen v Rockwood Sprinkler Co., 258 NY 350.) II. The Court below erred in holding that Labor Law § 200 imposes negligence liability on a general contractor for an injury that is sustained by an employee of the subcontractor that arises out of the subcontractor’s own work methods where there is no proof that the general contractor had supervisory control over the subcontractor’s work methods or notice of the claimed unsafe work method, but there is an agreement between the general contractor and the project’s owner concerning supervision of the work place. (Russin v Picciano & Son, 54 NY2d 311; Allen v Cloutier Constr. Corp., 44 NY2d 290; McLean v Studebaker Bros. Co., 221 NY 475; Yearke v Zarcone, 57 AD2d 457, 43 NY2d 643; Employers Mut. Liab. Ins. Co. v Di Cesare & Monaco Concrete Constr. Corp., 9 AD2d 379; Lombardi v Stout, 80 NY2d 290; Persichilli v Triborough Bridge & Tunnel

      Auth., 16 NY2d 136; Hess v Bernheimer & Schwartz Pilsener Brewing Co., 219 NY 415; Zucchelli v City Constr. Co., 4 NY2d 52; Gasper v Ford Motor Co., 13 NY2d 104, 893.)

      Rosenblum, Ronan, Kessler & Sorochan, Albany (George L. Sarachan of counsel), for respondent-appellant.
    I. The violation of a specific rule (12 NYCRR 23-1.25) of the Board of Standards and Appeals by defendant-respondent constitutes a violation of Labor Law § 241 (6). (Long v Forest-Fehlhaber, 55 NY2d 154; Zucchelli v City Constr. Co., 4 NY2d 52.) II. The required positioning of plaintiffs leg to avoid falling into the shaft created the injury-producing work position and demonstrates the inadequacy of the platform to protect him from the very danger that section 240 was designed to prevent. (Rocovich v Consolidated Edison Co., 78 NY2d 509; Ross v Curtis-Palmer Hydro-Elec. Co., 180 AD2d 385; Zimmer v Chemung County Performing Arts, 65 NY2d 513.) III. The fact that a section 240 device must protect a worker from the elevation risk which gave rise to the need for the device does not mean the Legislature intended that no other hazard created by the construction, operation or placement of the device is within the scope of the proper protection requirement of the statute. (Koenig v Patrick Constr. Corp., 298 NY 313; Brogan v International Bus. Machs. Corp., 157 AD2d 76; DaBolt v Bethlehem Steel Corp., 92 AD2d 70.) IV. Plaintiff had no opportunity to establish a section 200 claim. (Utica Sheet Metal Corp. v Schecter Corp., 25 AD2d 928; Pritchard v Walter Murray, Inc., 157 AD2d 1012.) V. Partial summary judgment should be granted to plaintiff on the section 240 claim.
   OPINION OF THE COURT

Titone, J.

Plaintiff, a welder, was allegedly injured in an industrial accident, which, he contends, was caused by the absence of an adequate and properly placed structure or device that would have enabled him safely to perform his work at the elevated job site. The issue presented on these cross appeals taken by the injured plaintiff and the general contractor hired to oversee the work is whether plaintiff, whose injury resulted from back strain rather than a fall, may recover in damages from the general contractor under Labor Law § 200 (1), § 240 (1) or § 241 (6). More specifically, these cross appeals require us to consider whether plaintiffs accident is within the class of hazards contemplated by Labor Law § 240 (1), whether the specific Industrial Code regulations on which plaintiff relies support a cause of action under Labor Law § 241 (6) and, if not, whether plaintiff’s submissions at this early stage of the litigation are sufficient to satisfy his burden under Labor Law § 200 (1) of showing defendants’ supervision or control over the injury-producing work. Under the circumstances of this case, we hold that plaintiff has no cause of action under sections 240 (1) and 241 (6) of the Labor Law, but that his submissions are sufficient to create triable questions of fact under section 200 (1).

Plaintiff was employed by Bechtel Corporation to perform certain welding tasks at a construction site owned by defendant Curtis-Palmer Hydro-Electric Co. and managed by defendant International Paper Co., the general contractor. Bechtel had been retained by International Paper to do a portion of the construction. According to plaintiff’s allegations, plaintiff was assigned the task of welding a 26- to 30-inch seam near the top of a shaft that was some 40 to 50 feet deep. A temporary platform was placed over the shaft to enable plaintiff to perform this task.

In order to complete his welding job without falling from his perch, plaintiff had to sit at the platform’s edge, extend one leg forward against the top edge of the shaft and stretch forward and down with his upper torso and head to reach the seam that needed welding. Although plaintiff had complained about having to work in this position and had asked his Bechtel supervisor to provide a ladder instead, he was told that he had to complete the welding job from the temporary platform because of time constraints. After working from the platform for some 2 Vi hours, plaintiff experienced difficulty and pain when he attempted to straighten his back. He was unable to stand up straight and was forced to crawl off the platform. Plaintiff was eventually referred to an orthopedic surgeon, but, despite subsequent back surgery, he remains disabled.

Plaintiff commenced the present action against International Paper, Curtis-Palmer and Saratoga Development Corp., Curtis-Palmer’s general partner, alleging causes of action under Labor Law § 200 (1), § 240 (1) and § 241 (6). Following limited discovery, defendant International Paper moved for summary judgment dismissing plaintiff’s three causes of action, and plaintiff cross-moved for partial summary judgment imposing liability under sections 240 (1) and 241 (6). The trial court granted all three defendants relief by dismissing the complaint against each of them in its entirety.

On plaintiffs appeal, however, a divided Appellate Division reinstated all of plaintiffs causes of action except the Labor Law § 241 (6) claim asserted against defendant International Paper. The majority concluded that, even under our recent holding in Rocovich v Consolidated Edison Co. (78 NY2d 509), plaintiff could assert a cause of action under Labor Law § 240 (1) because he had been exposed to an "elevation-related risk” arising from the inadequacy of the protective device with which he had been supplied (180 AD2d, at 390). As to plaintiffs Labor Law § 200 (1) claim, the Appellate Division held that International Paper’s contractual promise to manage and supervise the construction was sufficient to establish prima facie that that defendant may have exercised the requisite control or supervision of the work. Finally, the Court held that plaintiffs Labor Law § 241 (6) claim against defendant International Paper was not sustainable because his allegations were too general to support recovery under that provision. The Court subsequently granted plaintiff and defendant International Paper leave to appeal to this Court, certifying a dispositive question of law. We agree with the Appellate Division’s conclusion on plaintiffs Labor Law § 200 (1) and § 241 (6) causes of action, but we reject that Court’s determination on plaintiffs Labor Law § 240 (1) claim.

I. Liability Under Labor Law § 240 (1)

Labor Law § 240 (1), often called the "scaffold law,” provides that "[a]ll contractors and owners * * * shall furnish or erect, or cause to be furnished or erected * * * scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to [construction workers employed on the premises].” The purpose of this statute is to protect workers and to impose the responsibility for safety practices on those best situated to bear that responsibility (see, Zimmer v Chemung County Performing Arts, 65 NY2d 513, 520; 1969 NY Legis Ann, at 407). It is by now well established that the duty imposed by Labor Law § 240 (1) is nondelegable and that an owner or contractor who breaches that duty may be held liable in damages regardless of whether it has actually exercised supervision or control over the work (see, e.g., Haimes v New York Tel. Co., 46 NY2d 132, 136-137).

We recently had occasion to consider the nature of the occupational hazards to which Labor Law § 240 (1) was addressed. Noting that the statute " 'is to be construed as liberally as may be for the accomplishment of the purpose for which it was * * * framed’ ” (Koenig v Patrick Constr. Corp., 298 NY 313, 319, quoting Quigley v Thatcher, 207 NY 66, 68), we held in Rocovich v Consolidated Edison Co. (supra) that Labor Law § 240 (1) was aimed only at elevation-related hazards and that, accordingly, injuries resulting from other types of hazards are not compensable under that statute even if proximately caused by the absence of an adequate scaffold or other required safety device.

The injury sustained by the plaintiff in this case — severe and disabling back strain — is not the kind of harm that is typically associated with elevation-related hazards. Nonetheless, plaintiff contends that he should be permitted to recover under Labor Law § 240 (1) because his injury was "related to the effects of gravity” in that it was allegedly produced by plaintiff’s need to work in a contorted position in order to avoid falling down the deep shaft on which he was working.

The problem with plaintiff’s argument is that it misconstrues the import of our analysis in Rocovich. As we observed in that case, Labor Law § 240 (l)’s list of required safety devices (e.g., "scaffolding,” "hoists,” "braces,” "irons” and "stays”), all of which are used in connection with elevation differentials, evinces a clear legislative intent to provide "exceptional protection” for workers against the "special hazards” that arise when the work site either is itself elevated or is positioned below the level where "materials or load [are] hoisted or secured” (78 NY2d, at 514). The "special hazards” to which we referred in Rocovich, however, do not encompass any and all perils that may be connected in some tangential way with the effects of gravity. Rather, the "special hazards” referred to are limited to such specific gravity-related accidents as falling from a height or being struck by a falling object that was improperly hoisted or inadequately secured (see, DeHaen v Rockwood Sprinkler Co., 258 NY 350). In other words, Labor Law § 240 (1) was designed to prevent those types of accidents in which the scaffold, hoist, stay, ladder or other protective device proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person. The right of recovery afforded by the statute does not extend to other types of harm, even if the harm in question was caused by an inadequate, malfunctioning or defectively designed scaffold, stay or hoist.

The facts in this case provide a good illustration of the distinction. If plaintiff’s allegations are accurate, the platform with which plaintiff was provided could well be found deficient or even unsafe, since it was placed in a way that required its occupant to work in a strained and contorted position. Nevertheless, however unsafe the makeshift "scaffold” may have been in that respect, it cannot be said that the device did not serve the core objective of Labor Law § 240 (1) — preventing plaintiff from falling down the shaft. In that regard, the device did not malfunction and was not defective in its design. Thus, as was noted by the dissenter in the Court below, plaintiff’s injuries allegedly flowed from a deficiency in the device that was "wholly unrelated to the hazard which brought about its need in the first instance” (180 AD2d, at 394 [Mercure, J., dissenting in part]). Accordingly, contrary to the views of the Appellate Division majority, plaintiff cannot rely on Labor Law § 240 (1) as a basis for recovery.

II. Liability Under Labor Law § 241 (6)

As an alternative to the rights conferred by Labor Law § 240 (1), plaintiff relies on Labor Law § 241 (6), which requires owners and contractors to "provide reasonable and adequate protection and safety” for workers and to comply with the specific safety rules and regulations promulgated by the Commissioner of the Department of Labor. As is the duty imposed by Labor Law § 240 (1), the Labor Law § 241 (6) duty to comply with the Commissioner’s regulations is nondelegable (e.g., Long v Forest-Fehlhaber, 55 NY2d 154, 159; Allen v Cloutier Constr. Corp., 44 NY2d 290). Thus, to the extent that plaintiff has asserted a viable claim under Labor Law § 241 (6), he need not show that defendants exercised supervision or control over his worksite in order to establish his right of recovery. Nonetheless, in this case, plaintiff’s Labor Law § 241 (6) claim must fail because of the inadequacy of his allegations regarding the regulations defendants purportedly breached.

In support of his claim under section 241 (6), plaintiff relied exclusively on 12 NYCRR 23-1.25 (d), which requires that "[a]ll persons engaged in welding or flame-cutting * * * be provided where necessary with proper scaffolds installed and used in compliance with th[ese regulations].” Plaintiff does not contend that any particular regulatory requirement regarding the design, capacity or placement of scaffolds was violated. Rather, he contends only that the "scaffold” with which he was provided was not a "proper” one within the meaning of 12 NYCRR 23-1.25 (d), because it was not "of such kind and quality as a reasonable and prudent [person] experienced in construction * * * operations would require in order to provide safe working conditions.” Plaintiff derives this standard from 12 NYCRR 23-1.4 (a), which provides for its application whenever the regulations in the Industrial Code employ "such general terms as adequate, effective, equal, equivalent, firm, necessary, proper, safe, secure, substantial, sufficient, suitable and other similar terms * * * to describe [required] materials, devices, structures, methods and procedures” (emphasis in original). We conclude, however, that allegations such as plaintiff’s, which rely on claimed failures to measure up to such general regulatory criteria as "adequate,” "effective” and "proper,” are not sufficient to give rise to a triable claim for damages under Labor Law § 241 (6). Our conclusion in this regard is based on our understanding of Labor Law § 241’s over-all design, as well as its relationship with the other protective provisions of the Labor Law.

The general common-law principles governing landowners’ duty to provide a safe workplace may be found in Labor Law § 200 (1) (e.g., Lombardi v Stout, 80 NY2d 290, 294). In contrast, the "specific, positive commands” applicable to all contractors and owners are contained in Labor Law § 240 (1), which governs elevation-related safety measures, and in Labor Law § 241 (l)-(5), which delineate the safety requirements in the areas of flooring, elevators and hoisting apparatus (Allen v Cloutier Constr. Corp., supra, at 297; see, Zimmer v Chemung County Performing Arts, 65 NY2d 513, 522, supra; Long v Forest-Fehlhaber, supra, at 160). Labor Law § 241 (6) is, in a sense, a hybrid, since it reiterates the general common-law standard of care and then contemplates the establishment of specific detailed rules through the Labor Commissioner’s rule-making authority (Zimmer v Chemung County Performing Arts, supra, at 522; see, Haimes v New York Tel. Co., supra).

We have traditionally treated the provision that merely incorporates the general common-law standard (see, Labor Law § 200 [1]) differently from the provisions containing specific commands and standards (see, Labor Law § 240 [1]; § 241). The latter have been held to create duties that are nondelegable (see, e.g., Bland v Manocherian, 66 NY2d 452, 460), while the former do not (see, Lombardi v Stout, supra). We have also attached analytical significance to the distinction between the Labor Law provisions that are "self-executing” in the sense that they may be implemented "without regard to external considerations such as rules and regulations, contracts or custom and usage” (Labor Law § 240 [1]; § 241 [l]-[5]) and those whose terms "require reference to outside sources to determine the standard by which a defendant’s conduct must be measured” (Labor Law § 200 [1]; § 241 [6]) (see, Zimmer v Chemung County Performing Arts, supra, at 521-523; see also, Long v Forest-Fehlhaber, supra). Again, important legal consequences have been made to depend upon whether the statutory provision in question sets forth a specific requirement or standard of conduct or instead " 'does no more than broadly [require]’ that the work area ' "provide reasonable and adequate protection and safety” ’ ” (Bland v Manocherian, supra, at 460-461, quoting Long v Forest-Fehlhaber, supra, at 160).

The duty at issue here — the requirement that welders be provided with "adequate,” "proper” and "suitable” scaffolds (12 NYCRR 23-1.4 [a]; 23-1.25 [d]) — is one derived from a regulation promulgated under the Labor Law rather than from a provision of the Labor Law itself. Nonetheless, the distinction that our case law has consistently drawn between general and specific commands continues to have critical legal significance, where, as in this case, the injured plaintiff is seeking to hold the landowner and general contractor liable for an alleged breach of a nondelegable duty.

Like Labor Law § 200 (1) and the general standard set forth in the first sentence of Labor Law §241 (6), the regulatory command defendants are alleged to have breached in this instance is "but a reiteration of common-law standards” (Long v Forest-Fehlhaber, supra, at 160). The duty to provide materials and equipment "of such kind and quality as a reasonable and prudent [person] experienced in construction * * * operations would require in order to provide safe working conditions” (12 NYCRR 23-1.4 [a]) adds nothing to the general common-law rule requiring the provision of a safe workplace. It is not so much a "specific, positive command” (Allen v Cloutier Constr. Corp., supra, at 297) as a routine incorporation of the ordinary tort duty of care into the Commissioner’s regulations. As such, it cannot by itself be relied upon as the source of an owner’s or general contractor’s nondelegable duty to all workers assigned to perform construction chores on the premises.

Indeed, to permit plaintiff to use this broad, nonspecific regulatory standard as predicate for an action against a nonsupervising owner or general contractor under Labor Law § 241 (6) would seriously distort the scheme of liability for unsafe working conditions that has been developed in our case law. In the past, recovery for breach of the common-law duty of care, as embodied in Labor Law § 200 (1), could be had only if the injured employee could demonstrate that the named defendant had a direct hand, through either control or supervision, in the injury-producing work (e.g., Lombardi v Stout, supra, at 295; Persichilli v Triborough Bridge & Tunnel Auth., 16 NY2d 136, 145). If plaintiff’s argument were to succeed, however, injured workers could readily circumvent that requirement by pointing to the use of some "general term” such as "adequate,” "effective,” "proper,” "safe,” or "suitable,” in a relevant regulation within the Industrial Code. Given the Code’s liberal use of those terms, Labor Law § 200 (1) would be rendered all but superfluous in industrial-accident litigation. Such a result could not have been within the Legislature’s intention and was certainly not contemplated by our Court when we held that an owner or general contractor could be held liable for violations of rules promulgated pursuant to Labor Law § 241 (6) without regard to Labor Law § 200 (l)’s requirement of supervision or control over the work (see, Allen v Cloutier Constr. Corp., supra).

Accordingly, we hold that, for purposes of the nondelegable duty imposed by Labor Law § 241 (6) and the regulations promulgated thereunder, a distinction must be drawn between provisions of the Industrial Code mandating compliance with concrete specifications and those that establish general safety standards by invoking the "[g]eneral descriptive terms” set forth and defined in 12 NYCRR 23-1.4 (a). The former give rise to a nondelegable duty, while the latter do not. Since the regulation on which plaintiff relies falls into the latter category, he cannot benefit from the reduced burden of proof applicable to causes of action asserted under Labor Law § 241 (6).

III. Liability Under Labor Law § 200 (1)

Plaintiff’s third cause of action against defendants Curtis-Palmer and International Paper Co. is premised on a claimed breach of Labor Law § 200 (1), which codifies landowners’ and general contractors’ common-law duty to maintain a safe workplace. As noted above, where such a claim arises out of alleged defects or dangers arising from a subcontractor’s methods or materials, recovery against the owner or general contractor cannot be had unless it is shown that the party to be charged exercised some supervisory control over the operation (e.g., Lombardi v Stout, supra, at 295; Kappel v Fisher Bros., 6th Ave. Corp., 39 NY2d 1039, 1041). This rule is an outgrowth of the basic common-law principle that "an owner or general contractor [sh]ould not be held responsible for the negligent acts of others over whom [the owner or general contractor] had no direction or control” (Allen v Cloutier Constr. Corp., supra, at 299).

In this case, plaintiff’s claim appears to arise from an alleged defect in the "methods or materials” utilized by his employer, Bechtel. Nonetheless, at this stage in the proceeding, plaintiff’s submissions are sufficient to avoid summary dismissal of his Labor Law § 200 (1) claim because they suggest that he may be able to show that defendant International Paper, the general contractor, exercised the requisite degree of supervision and control over the portion of the work that led to his injury.

In response to the motion for summary judgment, plaintiff submitted a copy of the contract between Curtis-Palmer and International Paper in which International Paper undertook to "supervise” the construction work and, further, to comply with the legal standards governing the safety of all employees on the site, including those of its subcontractors. While these promises are not in themselves sufficient to justify holding International Paper liable for the alleged inadequacy of the scaffold with which plaintiff was supplied, they do furnish cause to believe that further discovery may lead to evidence that International Paper’s employees did exercise actual supervision or control over plaintiffs worksite (see, CPLR 3212 [f]). In this connection, it is noteworthy that plaintiff had not yet deposed defendants’ representatives when the motion for summary judgment suspended discovery. Further, the contract between International Paper and Bechtel, defendant’s employer, had not yet been produced when discovery was provisionally halted. Thus, any conclusion that plaintiff cannot produce evidence to justify submitting the question of International Paper’s control and/or supervision to a trier of fact is, manifestly, premature, despite International Paper’s submission of an affidavit by its Safety Superintendent disclaiming supervision of any of its subcontractors (see, Groves v Land’s End Horn. Co., 80 NY2d 978).

Indeed, dismissal of plaintiffs Labor Law § 200 (1) claim at this point would require us to assume that International Paper routinely and repeatedly breached its contractual obligations to Curtis-Palmer. In the absence of adequate discovery, we are not prepared to make such an assumption. Thus, we conclude that the Appellate Division did not err in reinstating plaintiffs Labor Law § 200 (1) cause of action against defendant International Paper._

Accordingly, the order of the Appellate Division should be modified, without costs, in accordance with this opinion and, as so modified, affirmed. The certified question should be answered in the affirmative.

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

Order modified, etc.

      . Although the trial court had characterized the defense motion for summary judgment as one made by all three defendants, the Appellate Division concluded that defendants Curtis-Palmer and Saratoga Development had not been parties to the motion and therefore had not been entitled to summary relief on any of plaintiffs claims (180 AD2d 385, 391).

      . The Appellate Division certified the following question: "Did this court err as a matter of law in modifying the order entered May 2, 1991 so as to grant summary judgment to defendant International Paper Company dismissing plaintiffs cause of action based upon Labor Law § 241 (6) and deny summary judgment to defendants in all other respects and, as so modified, affirming that order and in dismissing the appeal from the order entered August 5, 1991?” The August 5, 1991 order referred to denied a motion by plaintiff for reargument and/or renewal of the trial court’s prior order dismissing the complaint. On this appeal, plaintiff has made no separate argument addressed to the propriety of the Appellate Division’s decision with respect to this order.

        . Owners of one- and two-family dwellings who contract for but do not direct or control the work are exempt from the duty imposed by Labor Law §240(1).

      . The rules governing liability under Labor Law § 240 (1) and § 241 (6) differ in at least two material respects. Contributory and comparative negligence are valid defenses to claims asserted under the latter section, while section 240 (1) claims are not subject to those defenses (see, Long v Forest-Fehlhaber, supra). Furthermore, a breach of Labor Law § 240 (l)’s requirements leads to "absolute” liability, while a breach of a duty imposed by a regulation promulgated under Labor Law § 241 (6) is merely some evidence of negligence (see, Long v Forest-Fehlhaber, supra).

      . Labor Law § 200 (1) provides: "All places to which this chapter applies shall be so constructed, equipped, arranged, operated and conducted as to provide reasonable and adequate protection to the lives, health and safety of all persons employed therein or lawfully frequenting such places. All machinery, equipment, and devices in such places shall be so placed, operated, guarded, and lighted as to provide reasonable and adequate protection to all such persons.”

      . Since defendants Curtis-Palmer and Saratoga are not parties to this appeal, we do not consider the sufficiency of plaintiffs submissions with respect to their Labor Law § 200 (1) liability.