text:
    [675 NE2d 836, 653 NYS2d 82]
    In the Matter of Christopher P. Gershel, Appellant, v Harry Porr III, as City Manager of City of Newburgh, Respondent.
    Argued November 14, 1996;
    decided December 19, 1996

      POINTS OF COUNSEL

      Sussman, Bergstein, Wotorson and Whateley, Goshen (Michael H. Sussman and Stephen Bergstein of counsel), for appellant.

      Hitsman, Hoffman & O’Reilly, Elmsford (Kelly A. O’Neill and John F. O’Reilly of counsel), for respondent.
   OPINION OF THE COURT

Ciparick, J.

The issue on appeal is whether petitioner satisfied the requirements of New York’s commencement-by-filing system in this special proceeding. Because petitioner withdrew the originally filed order to show cause and thereafter served a notice of petition on respondent without filing a new set of initiatory papers and paying an additional filing fee, we hold that petitioner never properly commenced the special proceeding and the attempted service was a nullity.

On May 9, 1994, petitioner, Police Chief of Newburgh, was charged with misconduct by respondent, City Manager of New-burgh, based on allegations that petitioner used the City’s telephone and cellular phone for private calls without authorization and without thereafter paying for the calls. Petitioner was suspended from his job without pay pending an administrative hearing, and, as a result of scheduling problems, a hearing on the charges was adjourned several times. Under Civil Service Law § 75, the period of petitioner’s suspension without pay could not exceed 30 days, or until June 8, 1994. The City thereafter restored petitioner to the payroll effective June 30, 1994 — not June 8th — withholding petitioner’s wages for the three-week period of June 8th to June 30th as a setoff for money allegedly owed to it by petitioner for prior unauthorized absences.

Petitioner subsequently instituted a CPLR article 78 proceeding on July 12, 1994, by filing an order to show cause and verified petition with the Clerk of Orange County Supreme Court, seeking compensation for the disputed three-week period. On July 21, 1994, respondent moved to dismiss the order to show cause and petition for lack of personal jurisdiction pursuant to CPLR 3211 (a) (8), asserting that service was not made on an authorized person. On July 27, 1994, Supreme Court ordered a traverse hearing to determine if service had been properly made. At the calendar call of August 19, 1994, the date of the scheduled traverse hearing, counsel for petitioner declined to go forward with the hearing, stating that he would withdraw the order to show cause and re-serve the petition on respondent. The court marked the order to show cause "dismissed.” That same day, petitioner recast the order to show cause as a notice of petition and served it along with the petition on respondent, the papers bearing the same index number as the originally filed order to show cause.

On September 6, 1994, respondent again moved to dismiss for lack of jurisdiction, this time based on petitioner’s noncompliance with the filing requirements of CPLR 304 and 306-a by failing to purchase a new index number in conjunction with the notice of petition and petition served on August 19th. Supreme Court denied respondent’s motion to dismiss, concluding:

"[PJetitioner’s attorney informed the court that he did not intend to proceed, was withdrawing the order to show cause, but would re[-]serve the papers, and the order to show cause (but not the proceeding) was marked 'dismissed.’ Petitioner has now re[-]served a notice of petition and petition using the index number originally assigned. Since petitioner’s time to serve process has not expired, the procedure followed is proper, and the motion is denied.”

Thereafter, respondent answered the petition and petitioner submitted a reply. Supreme Court ultimately entered judgment in petitioner’s favor.

On appeal from Supreme Court’s judgment, the Appellate Division reversed and dismissed the proceeding. The Appellate Division held that:

"the petitioner withdrew his initial order to show cause, and thus the proceeding was at that point effectively dismissed. * * * Because the petitioner failed to comply with the filing and fee requirements of CPLR 304 prior to serving the notice and petition on his second attempt to commence a CPLR article 78 proceeding, the instant proceeding was never actually commenced * * * and the court erred in denying the appellant’s motion to dismiss.” (226 AD2d 636, 637 [citations omitted].)

This Court granted petitioner’s motion for leave to appeal and we now affirm.

In 1992, the Legislature converted New York civil practice in the Supreme and County Courts from a commencement-by-service to a commencement-by-filing system (L 1992, ch 216). Thus, in Supreme and County Court practice, the Legislature made the payment of a filing fee and the filing of initiatory papers the acts that commence an action or a special proceeding (see, CPLR 304, 306-a; see generally, Matter of Spodek v New York State Commr. of Taxation & Fin., 85 NY2d 760, 763). Under the new filing system, service of process without first paying the filing fee and filing the initiatory papers is a nullity, the action or proceeding never having been properly commenced (see generally, Siegel, NY St L Dig No. 390, at 2-3 [June 1992]). The filing system does confer a significant benefit on petitioners and plaintiffs by making the simple task of filing the act that marks "interposition” of the claim for Statute of Limitations purposes (see, CPLR 203 [c] [1]), with a follow-up grace period within which to effect service. Thus, in a special proceeding with a Statute of Limitations of four months or less, such as.a CPLR article 78 proceeding (see, CPLR 217), the petitioner, after the initial filing, has until 15 days after the expiration of the Statute of Limitations to effect service and file proof of service with the court (see, CPLR 306-b [a]; cf., id. [in an action, plaintiff has 120 days from the initial filing to effect service and file proof of service]).

By the same token, an action or special proceeding, which has been technically commenced upon filing, remains inchoate until follow-up service is effected and proof of service filed; failure to take the necessary follow-up steps in the time provided will result in the action being automatically "deemed dismissed” (CPLR 306-b [a]). Although the "deemed dismissed” is without prejudice, it can work harsh results when the Statute of Limitations has expired in the interim. In recognition of this procedural trap, the Legislature built a safety valve into the filing system to protect a party whose action or proceeding is dismissed for failure to file proof of service or failure to effect proper service. When such a dismissal occurs, the statute affords the petitioner in a special proceeding 15 days from the dismissal date — notwithstanding the interim expiration of the Statute of Limitations — in which to start over by purchasing another index number, refiling the initiatory papers, and effecting service of those papers on respondent (see, CPLR 306-b [b]; cf., id. [in an action, plaintiff has 120 days from deemed dismissed date to commence new action and effect service]; see generally, Alexander, Supp Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C306-b:2, C306-b:3, 1996 Pocket Part, at 84-86).

In this case, petitioner initially attempted to commence a special proceeding by paying a filing fee, securing an index number, filing with the court an executed order to show cause together with a petition, and attempting to serve these papers on respondent. Up to this point, petitioner had complied with the dictates of the commencement-by-filing formula, and if petitioner’s service had been proper and proof of service timely filed, the filing requirements would have been met. However, rather than contest respondent’s motion to dismiss for improper service, petitioner voluntarily withdrew the order to show cause and then served the petition on respondent along with a newly drawn, never-filed notice of petition. Petitioner contends that because the statutory period to file proof of service had not yet expired, he was justified in re-serving the petition without recommencing. Petitioner’s argument is unavailing.

The procedure to commence a special proceeding, and its statutorily prescribed sequence, is manifest from the terms of the commencement-by-filing statute: the petitioner must first purchase an index number and file with the court a notice of petition or order to show cause along with a petition, then effect service of the filed papers on respondent, and finally file proof of service with the court within the statutory period (see, CPLR 304, 306-a, 306-b [a]). Basic to this statutory procedure is the rule that the papers served must conform in all important respects to the papers filed (see, Siegel’s Prac Rev No. 19, at 2 [May 1994]; Shivers v International Serv. Sys., 220 AD2d 357 [service of summons and complaint on defendant added to caption after filing is ineffective]).

In this case, once petitioner withdrew the order to show cause and Supreme Court marked it "dismissed,” the first proceeding was effectively abandoned because there was then no viable order to show cause or notice of petition in the file. Supreme Court was thereafter without authority to retain "jurisdiction” over a proceeding in which jurisdiction over respondent had not been established and the crucial initiatory paper abandoned. At that point, petitioner could not, and in fact did not, simply re-serve the papers already on file. Instead, petitioner served a newly drawn notice of petition along with the previously served petition — together comprising a new set of initiatory papers — without first satisfying the filing requirements.

By withdrawing the order to show cause rather than obtaining from the court a new return date and date by which service would be made of the filed order to show cause and petition, petitioner made the decision to start anew. Along with this decision came the obligation again to comply fully with the statutory filing requirements, that is, to file the notice of petition and the petition, pay the filing fee, secure an index number, effect service, and file proof of service within the prescribed period. Since petitioner did not take these steps, the new proceeding was never properly commenced and the attempted service was a nullity (see, Matter of Vetrone v Mackin, 216 AD2d 839, 841 [filing of jurisdictionally defective notice of petition followed by service of corrected notice of petition is ineffective in absence of additional filing and payment of filing fee]).

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

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith and Levine concur.

Order affirmed, with costs.


source: Caselaw Access Project

author: Ciparick, J.

license: Public Domain

text:
    [675 NE2d 840, 653 NYS2d 86]
    Castle Oil Corporation et al., Respondents, v City of New York, Appellant.
    Argued November 19, 1996;
    decided December 20, 1996

      POINTS OF COUNSEL

      Paul A. Crotty, Corporation Counsel of New York City (Frances J. Henn and Edward F. X. Hart of counsel), for appellant.

      Proskauer Rose Goetz & Mendelsohn LLP, New York City (Stephen P. Kramer, Abraham Gutwein and Elise A. Yablonski of counsel), for respondents.
   OPINION OF THE COURT

Ciparick, J.

Pursuant to State enabling legislation authorizing the City of New York to amend its general corporation tax to conform to provisions of the State Tax Law, the City amended its general corporation tax to prohibit deductions for payment of State petroleum tax. The issue on appeal is whether the City’s disallowance of this deduction is enforceable despite the subsequent repeal of the predicate State Tax Law provision supporting its enactment. We conclude that, under the terms of the enabling act, the City is no longer authorized to prohibit the deduction of payment of the petroleum tax.

I.

New York City’s general corporation tax, which is based on the net income of corporations doing business in the City, has a relatively recent history. Before 1966, the City imposed a tax on the gross receipts of corporations doing business within its borders. This tax was thought to produce unfair results because it was not tied to a company’s profitability, prompting City leaders to ask the State Legislature for the authority to impose a tax based on net income, rather than gross receipts. By a 1966 enabling act, the State Legislature granted the City the authority to enact local legislation imposing a net income tax on businesses in a form "substantially” following a Model Local Law appended to the enabling act (L 1966, ch 772). This Model Local Law was patterned after the State franchise tax of article 9-A (see generally, 5 Comeau, Heckelman & Helm, New York Tax Analysis § 142.21, at XI-205).

The following year, the enabling act was amended to give the City the added authority to amend its corporation tax "for the purpose of conforming” it to article 9-A of the State Tax Law, as then in effect or as it might thereafter be amended:

"The terms of such local law or local laws shall be, substantially, as follows [in the Model Local Law] except that any such local law may be amended for the purpose of conforming it with similar provisions of article[ ] nine-A * * * of the tax law as presently in effect or as they may be amended” (L 1966, ch 772, § 1, as amended by L 1967, ch 699, §1).

This amendment was intended to provide a procedure that would apply if the State Legislature were to amend article 9-A. The City would then be authorized to enact a local law paralleling the new State law provision without the need for separate State enabling legislation (see, Mem of Budget Div, Bill Jacket, L 1967, ch 699 [amendment "will permit continuing conformity of the City tax provisions with * * * State tax statutes, without separate State enabling legislation each time there is a change in State law”]). Pursuant to the delegated taxing power, the City Council passed Local Law No. 21 of 1966, which established a general corporation tax that was based on the net. income of corporations doing business in New York City (codified as Administrative Code of City of NY § R462.0 et seq., replaced by § 11-602 et seq.).

The next statutory development relevant to this appeal occurred in 1983, when the State Legislature enacted a petroleum tax, set forth in article 13-A of the Tax Law, which was based on the gross receipts of petroleum companies (L 1983, ch 400, § 8). At the same time, the Legislature amended article 9-A to prohibit the deduction of the newly enacted article 13-A petroleum tax in calculating net income for article 9-A franchise tax purposes (L 1983, ch 400, § 5, amending Tax Law § 208 [9] [b] [4]). Following the lead of the State Legislature, the New York City Council amended its general corporation tax by Local Law No. 3 of 1986 to impose a parallel provision prohibiting the deduction of the article 13-A petroleum tax in calculating net income for purposes of the City tax (see, Local Law No. 3 of 1986, codified as Administrative Code § 11-602 [8] [b] [3], replacing § R46-2.0 [8] [b] [3]; see generally, Report of Finance Comm, reprinted in 1986 New York City Legis Ann, at 4 ["This bill would conform the city’s general and financial corporation taxes with their state counterparts to the extent of disallowing Article 13-A tax deductions”]).

In 1990, the State Legislature restructured the article 13-A petroleum tax in an effort to increase revenues. Previously a gross receipts tax, the petroleum tax was converted to an excise tax computed on a cents-per-gallon basis (L 1990, ch 190, § 216, codified as Tax Law § 301-a). As part of this legislative restructuring of the petroleum tax, and in order to soften the anticipated fiscal blow to petroleum companies, the Legislature repealed, effective June 1, 1990, the provision of article 9-A that had prohibited the deduction of article 13-A petroleum taxes in calculating article 9-A franchise tax liability (L 1990, ch 190, §§ 212, 385 [q] [2] [repealing relevant portion of Tax Law § 208 (9) (b) (4)]). The net result of this amendment is that taxpayers are now permitted to deduct article 13-A petroleum taxes when calculating net income for purposes of the article 9-A franchise tax.

The corresponding provision of the City’s general corporation tax, which prohibits taxpayers from deducting article 13-A taxes when calculating net income (Administrative Code § 11-602 [8] [b] [3]), has not been similarly amended. According to that section, therefore, taxpayers are not permitted to deduct article 13-A taxes when calculating City tax liability.

Plaintiffs, petroleum companies that are subject to the State franchise and petroleum taxes and the City’s general corporation tax, instituted this declaratory judgment action seeking a declaration that section 11-602 (8) (b) (3) of the Administrative Code of the City of New York is unconstitutional insofar as it prohibits deduction of the petroleum tax. After both parties moved for summary judgment on the issue of the provision’s constitutionality, Supreme Court granted summary judgment to plaintiffs and declared section 11-602 (8) (b) (3), to the extent that it purports to prohibit deduction of article 13-A taxes, unconstitutional as of June 1, 1990. The Appellate Division affirmed, concluding that section 11-602 (8) (b) (3) "lack[s] either a constitutional or a statutory basis upon which to ground its own disallowance, despite its original validity” (Castle Oil Corp. v City of New York, 216 AD2d 60, 62). This Court granted leave to appeal and, for the reasons that follow, we affirm.

II.

Under our form of State government, the exclusive power of taxation is lodged in the State Legislature (NY Const, art XVI, § 1). A corollary to this basic rule is that municipalities such as the City of New York have no inherent taxing power, but only that which is delegated by the State (accord, NY Const, art IX, § 2 [c] [8]). Moreover, the delegation of State taxing power to a municipality must be made in express terms by enabling legislation (see, NY. Const, art XVI, § 1; see also, County Sec. v Seacord, 278 NY 34, 37). Any tax imposed by the municipality "must be within the expressed limitations [of the enabling legislation] and, unless authorized, a tax so levied is constitutionally invalid” (Matter of United States Steel Corp. v Gerosa, 7 NY2d 454, 459 [citations omitted]; see, e.g., Matter of Carey Transp. v Perrotta, 34 AD2d 147, affd 29 NY2d 814; Matter of Brooklyn Union Gas Co. v McGoldrick, 270 App Div 186, affd sub nom. Matter of Brooklyn Union Gas Co. v Joseph, 298 NY 536).

Against this analytical backdrop, this case turns on a straightforward question of statutory interpretation: Does the enabling act require that New York City’s general corporation tax maintain continued conformity with the Model Local Law or article 9-A of the State Tax Law? The City argues that since Local Law No. 3 of 1986 (codified as Administrative Code § 11-602 [8] [b] [3]) was authorized when enacted, it remains enforceable notwithstanding the subsequent repeal of its predicate State law provision. Plaintiffs counter that section 11-602 (8) (b) (3) is unconstitutional insofar as it no longer conforms to any provision of the Model Local Law or article 9-A as amended in 1990.

We agree with plaintiffs and the courts below that the enabling act requires continuing conformity with either the Model Local Law or a provision of article 9-A. This conclusion follows from the plain language of the enabling act, which states that the City’s general corporation tax shall "substantially” follow the Model Local Law, but "may be amended for the purpose of conforming it with similar provisions of article[ ] 9-A [of the State Tax Law] * * * as presently in effect or as they may be amended” (L 1967, ch 699, § 1). Manifest in this statutory framework is the legislative intention that the City tax will always conform either to the Model Local Law or to the State Tax Law. Indeed, the whole purpose of the 1967 amendment to the enabling act was to facilitate the City in "conforming” its local corporation tax to subsequently adopted provisions of article 9-A (see, Mem of Budget Div, Bill Jacket, L 1967, ch 699 [amendment "will permit continuing conformity of the City tax provisions with * * * State tax statutes, without separate State enabling legislation each time there is a change in State law”] [emphasis added]).

For section 11-602 (8) (b) (3) to fall within the parameters of the enabling act, therefore, it must derive its authority from a provision of the Model Local Law or article 9-A of the State Tax Law. The Model Local Law, however, contains no provision prohibiting the deduction of article 13-A taxes, so section 11-602 (8) (b) (3) must find its authorization, if at all, in a provision of article 9-A. Such a provision existed in article 9-A from 1983 to 1990 when then Tax Law § 208 (9) (b) (4) prohibited the deduction of article 13-A taxes. However, once the State repealed that provision, the necessary State law predicate for the City’s prohibition of the deduction was eliminated (accord, Matter of Carey Transp. v Perrotta, 34 AD2d 147, 149, affd 29 NY2d 814, supra [where local tax was required to conform with State tax, local tax was void to the extent it purported to disallow exclusion recognized by State Tax Law]). The subsequent enforcement of section 11-602 (8) (b) (3) transgresses the fixed parameters and exceeds the authorization of the enabling act, and therefore violates article XVI, § 1 of the State Constitution.

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

Judges Simons, Bellacosa, Smith and Levine concur; Chief Judge Kaye and Judge Titone taking no part.

Order affirmed, with costs. .


author: Chief Judge Kaye.

text:
    [675 NE2d 1185, 653 NYS2d 233]
    In the Matter of Edgar King, Individually and as Supervisor of the Town of Northumberland, et al., Appellants, v Saratoga County Board of Supervisors, Respondent.
    Argued October 9, 1996;
    decided November 21, 1996

      POINTS OF COUNSEL

      Edward Lindner, Saratoga Springs, Laura Zeisel, New Paltz, and Ward, Sommer & Moore, LLC, Albany (Douglas H. Ward of counsel), for appellants.

      Bond, Schoeneck & King, LLP, Albany (Louis A. Alexander, Kevin M. Bernstein, John M. Freyer and Richard A. Reed of counsel), for respondent.
   OPINION OF THE COURT

Chief Judge Kaye.

After several years of State Environmental Quality Review Act (SEQRA) compliance measures by respondent (the Sara-toga County Board of Supervisors) in connection with establishing a County-wide landfill, appellants ask that respondent be returned to square one because of improper site selection. In the unique circumstances presented we, like the trial court and Appellate Division, refuse to order a redundant de novo environmental review.

Faced with imminent closure of 13 local municipal landfills, the County of Saratoga during the 1980’s began considering ways to address its solid waste disposal needs. Eventually, the County designated itself a "planning unit” pursuant to ECL 27-0107 and contracted with consulting engineers Smith & Ma-honey to develop a Solid Waste Management Plan/Generic Environmental Impact Statement.

The Draft Plan/GEIS, published in December 1989, provided a detailed evaluation of alternative approaches, recommended a County-wide landfill for the disposal of solid wastes that could not be used or recycled, and offered criteria for determining the most suitable site. After public hearings at three locations, comments were reviewed and incorporated, and in October 1990 respondent adopted and the Department of Environmental Conservation approved the Final Plan/GEIS.

Applying the criteria for the landfill siting process, in November the County issued an Interim Siting Study which identified three primary sites for further evaluation — two in the Town of Northumberland and one in the Town of Moreau. Preliminary field investigations were conducted at each site both to determine suitability for landfill development on the basis of hydrogeologic characteristics and to provide information for a preliminary evaluation of potential environmental impacts.

In February 1991, appellants commenced a CPLR article 78 proceeding seeking to annul DEC’s approval of the Plan/GEIS and its site selection methodology. Supreme Court dismissed the petition and the Appellate Division affirmed (Matter of Seymour v New York State Dept. of Envtl. Conservation, 184 AD2d 101 [Seymour i]).

Following the preliminary field investigations, respondent in March adopted Resolution No. 86 of 1991 designating Kobor Road in the Town of Northumberland as the "preferred primary site” for the proposed landfill. The Resolution authorized County employees and consultants to "prepare a full EAF [Environmental Assessment Form] for the Kobor Road Site and to undertake other investigations and activities as required to site, design, construct and operate a County-wide landfill at the Kobor Road Site.” In addition, the Resolution empowered the County Attorney to initiate eminent domain proceedings to further these ends. Appellants (the Town of Northumberland, its Supervisor and its Town Board) responded with an article 78 proceeding challenging the resolution on the ground that the County had selected its landfill site prior to SEQRA compliance.

While appellants’ petition was pending in Supreme Court, respondent designated itself "lead agency” for the proposed landfill project, approved a full EAF for the Kobor Road site, issued a positive declaration and authorized Smith & Mahoney to prepare a Draft Environmental Impact Statement. The DEIS described the characteristics of the proposed Kobor Road landfill, the history of the project, existing alternatives to a landfill and the environmental impacts associated with the project. The DEIS additionally summarized the previous siting study, and provided the results of the required endangered species evaluation and archeological and traffic studies.

In February 1992, Supreme Court dismissed appellants’ article 78 petition, concluding that Resolution No. 86, which labeled Kobor Road as a "preferred site,” was not an "action” of the type contemplated by SEQRA. During the pendency of the Appellate Division appeal, in August 1992 respondent filed a Notice of Completion of Draft Environmental Impact Statement and Notice of SEQRA Hearings. A month later, respondent adopted Resolution No. 168 acknowledging completion of the DEIS and noting the dates for SEQRA public hearings and the time period for public comments. Respondent then circulated the DEIS, the Notice and a draft Part 360 permit application throughout the County, inviting public participation in the review process.

In February 1993, respondent approved the Final Environmental Impact Statement for the site, which included responses to the comments of more than 60 individuals, agencies and organizations, and authorized the filing of the FEIS and the Notice of Completion.

The following month, respondent completed the environmental review process by adopting Resolution No. 38, which approved the County’s SEQRA Findings Statement, and Resolution No. 39, directing Smith & Mahoney to submit to the DEC a Part 360 application (6 NYCRR part 360) to construct and operate the proposed County-wide landfill at the Kobor Road site.

In May 1993, the Appellate Division, with one Justice dissenting, held that respondent had proceeded with the landfill site selection and authorized concrete action prior to SEQRA compliance. The court annulled Resolution No. 86 of 1991 and declared "any such actions taken under the authorizations provided by that resolution * * * null and void” (Matter of Seymour v County of Saratoga, 190 AD2d 276, 281 [Seymour II]).

By the time of the decision, however, respondent had already completed its FEIS, issued its required SEQRA Findings Statement, and submitted its permit application for construction and operation of the landfill site. Rather than commence a de novo environmental review, respondent in June 1993 adopted Resolution No. 103 confirming and ratifying its SEQRA review of the Kobor Road site and moved in the Appellate Division to declare the Seymour II decision moot. That motion was summarily rejected (App Div, 3d Dept, July 23, 1993).

Appellants thereafter brought a third article 78 proceeding — the present case — this time challenging the validity of the FEIS and the SEQRA Findings Statement as well as seeking de novo environmental review. Also at about this time the County received notice from the DEC that its permit application had been accepted as complete.

In January 1994, Supreme Court annulled the Board’s vote on Resolution No. 38 and deferred resolution of appellants’ remaining claims pending further action by respondent. Supreme Court determined that Board members had not been provided with copies of the SEQRA Findings Statement prior to their vote and the vote taken on the SEQRA Findings Statement was therefore defective. Thereafter, Supreme Court granted respondent’s motion for reconsideration and held that any defect in respondent’s adoption of the SEQRA Findings Statement had been cured by respondent’s adoption of Resolution No. 103. The court also rejected appellants’ claims regarding the sufficiency of the FEIS.

On respondent’s appeal, the Appellate Division unanimously affirmed. The court concluded that respondent’s completion of the SEQRA review, together with passage of Resolution No. 103 cured the earlier identified deficiencies and de novo review was both unwarranted and redundant (Matter of King v Saratoga County Bd. of Supervisors, 223 AD2d 894). The court additionally rejected claims that respondent had failed to take a "hard look” at the environmental impacts of the landfill project and that the FEIS was in some way deficient.

Although respondent now attempts to relitigate the issue, the Appellate Division held in Seymour II that respondent violated SEQRA by undertaking an "action” before preparing and filing an EIS, and we are bound by that determination as law of the case. Instead, the issue before us is what remedy follows. Appellants urge that the only correct course is to order de novo environmental review. In the circumstances presented, we disagree.

More than 20 years ago the Legislature enacted SEQRA, and by so doing formally recognized that environmental concerns should take their proper place alongside economic interests in the land use decision-making processes of State and local agencies {see, ECL 8-0103 [7]; 6 NYCRR 617.1 [d]). To insure that this laudable goal would be accomplished, the Legislature created an elaborate procedural framework requiring parties to consider the environmental ramifications of their actions "[a]s early as possible” (ECL 8-0109 [4]) and to "the fullest extent possible” (ECL 8-0103 [6]). The mandate that agencies implement SEQRA’s procedural mechanisms to the "fullest extent possible” reflects the Legislature’s view that the substance of SEQRA cannot be achieved without its procedure, and that departures from SEQRA’s procedural mechanisms thwart the purposes of the statute. Thus it is clear that strict, not substantial, compliance is required.

Nor is strict compliance with SEQRA a meaningless hurdle. Rather, the requirement of strict compliance and attendant spectre of de novo environmental review insure that agencies will err on the side of meticulous care in their environmental review. Anything less than strict compliance, moreover, offers an incentive to cut corners and then cure defects only after protracted litigation, all at the ultimate expense of the environment.

Starting 15 years ago in Matter of Tri-County Taxpayers Assn. v Town Bd. (55 NY2d 41), this Court underscored the importance of strict SEQRA compliance. We concluded that the Town had violated SEQRA by failing to prepare an EIS before adopting resolutions to establish a local sewer district and submitting these resolutions to the voters of the proposed district, and we ordered that the resolutions and special election be annulled. The Court refused to allow the Town simply to comply with SEQRA before proceeding with the project, noting that "the initiatory action by the town board might well have been practically determinative” and to allow a vote without the benefit of a balanced EIS "would clearly frustrate the objectives of SEQRA” (55 NY2d at 46-47).

Later, in Chinese Staff & Workers Assn. v City of New York (68 NY2d 359), we annulled a special permit to construct a high-rise luxury condominium in the Chinatown section of New York City because the lead agencies had conducted a deficient environmental review and had failed to prepare an EIS before the permit had been granted. Again, we rejected the suggestion of the lead agencies that the problems could be obviated by issuance of an "amended negative declaration,” finding that cure of a SEQRA violation has "no support in the carefully drafted procedures of the statute and would effectively allow the municipality to comply with SEQRA * * * only as an afterthought following a successful challenge to their prior action” (68 NY2d at 369).

Shortly thereafter, in Matter of E.F.S. Ventures Corp. v Foster (71 NY2d 359), involving construction of an oceanside resort without benefit of comprehensive environmental review, we observed that the State had made protection of the environment one of its foremost policy concerns, and thus "our statute, unlike many others, imposes substantive duties on the agencies of government to protect the quality of the environment for the benefit of all the people of the State” (71 NY2d at 364-365, 371). In allowing the local Planning Board to impose substantial new conditions on the development of the resort because of the SEQRA violations, we emphasized that if the statutory environmental review requirements of SEQRA are not met, "the governmental action is void and, in a real sense, unauthorized” (id., at 371).

In at least three respects, the matter before us is materially different from Tri-County, Chinese Staff and E.F.S. Ventures.

First, both procedurally and substantively respondent here has actually performed each of the required steps in the SEQRA review process.

Procedurally, respondent developed a Plan/GEIS and took substantial steps to involve interested members of the public (see, 6 NYCRR 360-15.10, 360-15.9). Relying on the siting criteria established in the Plan/GEIS, respondents conducted an Interim Siting Study and eventually adopted Resolution No. 86 specifying Kobor Road as the "preferred primary site.” Respondent then declared itself "lead” agency (see, ECL 8-0111 [6]), prepared an EAF (see, 6 NYCRR 617.2 [m]; 617.5 [b]) and evaluated the landfill site in light of the statutory criteria outlined in 6 NYCRR 617.11. Based on this evaluation, respondent made a preliminary determination that the proposed project would have a significant effect on the environment (see, 6 NYCRR 617.6 [g]; 617.10 [b]) and prepared a draft EIS (see, ECL 8-0109 [2], [4]). After allowing a period for public comment, respondent prepared a final EIS and circulated the document in the same manner as the draft EIS (see, ECL 8-0109 [4], [5], [6]; 6 NYCRR 617.10 [d], [g]). Lastly, respondent made explicit findings that it had fulfilled the requirements of SEQRA and that any adverse environmental impacts discovered during the EIS process would be minimized or avoided to the maximum extent possible (see, ECL 8-0109 [8]; 6 NYCRR 617.9 [c]).

Substantively, respondent engaged in the informed and systematic balancing analysis the statute requires. At each stage, respondent sought and considered other points of view and itself evaluated the environmental consequences of the proposed landfill. Unlike Tri-County, where we recognized that an agency’s compliance with SEQRA after-the-fact could be an empty exercise rubber-stamping a decision already made, here respondent completed its review before making an actual formal commitment to construction and operation of a landfill at the Kobor Road site. In the end, contrary to appellants’ contention, respondent "identified the relevant areas of environmental concern, took a 'hard look’ at them, and made a 'reasoned elaboration’ of the basis for its determination” (Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400, 417 [citations omitted]).

Second, the case before us is materially different because each step in the SEQRA review process was undertaken and completed at a time when respondent had a "green light” to proceed as it did. Supreme Court had dismissed appellants’ first article 78 proceeding and the Appellate Division affirmed, and Supreme Court had dismissed appellants’ second petition. More than a year elapsed before the Appellate Division decision in Seymour II, during which time respondent fulfilled its responsibility to review actions "[a]s early as possible” in the decisional process for purposes of determining whether an EIS will be necessary (ECL 8-0109 [4]). Respondent completed the DEIS process, approved the FEIS, issued its SEQRA Findings Statement and submitted a permit application (which the DEC later approved) before the Appellate Division decision in May 1993.

Finally and relatedly, while the Appellate Division determined that Resolution No. 86 of 1991 was an "action” triggering the need for an EIS, it is significant that neither in Seymour II nor in the present case did that court itself order de novo environmental review. Respondent constructs an elaborate argument that, in Seymour II, the Appellate Division meant only to invalidate certain "actions” such as obtaining permits, hiring contractors to build the landfill and initiating eminent domain proceedings — none of which took place before respondent completed its SEQRA review. Whether or not this is technically so, we agree with the conclusion unanimously reached by the Appellate Division that "de novo environmental review is not only unwarranted but, at this stage, would be entirely redundant” (223 AD2d at 896).

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

Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur.

Order affirmed, with costs.

       Appellants’ other challenges to the sufficiency of the SEQRA review are also without merit. At no time did respondent improperly delegate its lead-agency decision-making responsibility to its consultants. Moreover, the Plan/ GEIS was incorporated into the DEIS in accordance with SEQRA (see, 6 NYCRR 617.14 [b], [h]) and appellants thus received sufficient notice of respondent’s reliance on the Plan/GEIS to prepare the DEIS.


author: Titone, J. Bellacosa, J.

text:
    [675 NE2d 1189, 653 NYS2d 237]
    In the Matter of Jeanine Pirro, District Attorney of Westchester County, Appellant, v Daniel A. Angiolillo, as County Court Judge, Westchester County, et al., Respondents.
    Argued October 17, 1996;
    decided December 18, 1996

      POINTS OF COUNSEL

      Jeanine Pirro, District Attorney of Westchester County, White Plains (Richard Longworth Hecht and Richard E. Weill of counsel), appellant pro se. Respondent Angiolillo acted in excess of his authority in changing a commenced, lawful sentence of imprisonment.

      Dennis C. Vacco, Attorney-General, New York City (Carolyn

      Cairns Olson, Thomas D. Hughes and Michael Belohlavek of counsel), for Daniel A. Angiolillo, respondent.

      Marilyn J. Slaaten, County Attorney of Westchester County, White Plains (Annette G. Hasapidis-Marshall and Stacey Dolgin-Kmetz of counsel), for Rocco Pozzi, respondent.
   OPINION OF THE COURT

Titone, J.

Authorized by Penal Law § 60.01 (2) (d), a "split sentence” is one consisting of a term of imprisonment, intermittent or definite, combined with a term of probation or conditional discharge. The issue presented in this case is whether a definite sentence that was imposed in conjunction with a term of probation is a condition of or is subsumed within the probationary part of the sentence so that it can be modified, reduced or even eliminated pursuant to the discretionary authority conferred by CPL 410.20. Having reviewed the statutory language and relevant legislative history, we conclude that the imprisonment part of a split sentence is a penalty that exists separate and apart from the probationary term and that, accordingly, it may not be altered once its service has begun.

The criminal prosecution underlying this proceeding was initiated against respondent Bryan Cohen on April 29, 1994. Cohen was charged in a felony complaint with having stolen some $5,742 from one of his insurance clients. According to the People, Cohen’s wife also had a role in the thefts although she was not formally charged. Cohen was also believed to have stolen over $57,000 from two other clients.

After two days of plea negotiations, Cohen consented to waive indictment and to be prosecuted instead on a superior court information charging him with third degree grand larceny. In exchange for his plea of guilty to the reduced larceny charge, Cohen was promised a sentence consisting of four weekends of intermittent incarceration and five years’ probation, provided that he met his obligation to make full restitution. If that obligation was not satisfied, it was understood that Cohen would be sentenced to a maximum of six months’ incarceration and five years’ probation. As an additional term of the plea agreement, the People promised not to prosecute Cohen’s wife. Cohen failed to make the required restitution payments before the scheduled sentencing date. As a result, respondent County Court Judge sentenced him to a six-month term of "shock” incarceration to be served concurrently with a five-year probationary term.

Three weeks after Cohen began serving his sentence, he moved for a "modif[ication of] the terms and conditions of [his] probation.” Citing personal difficulties, Cohen sought a reduction in the previously imposed term of incarceration to either time served or weekend incarceration. After Cohen’s motion was made, the Westchester County Department of Probation separately petitioned the sentencing court to "modify” the conditions of Cohen’s probationary term by substituting a period of home confinement with electronic monitoring for the previously imposed term of incarceration.

Having been served with notice of Cohen’s motion, the People appeared to oppose the motion, arguing primarily that CPL 430.10 prohibited the court from changing a lawful sentence of imprisonment once service of the sentence has commenced. Respondent Judge rejected the People’s arguments and, relying on CPL 410.20, ordered that Cohen be released from jail, substituting for the jail term a six-month period of home confinement with electronic monitoring.

Following the issuance of this order, the Westchester County District Attorney took a direct appeal, purportedly under CPL 450.30 (3). She also brought the present collateral CPLR article 78 proceeding seeking a judicial directive prohibiting the enforcement of the Judge’s order. In support of both her appeal and her petition, the District Attorney argued that the Judge had exceeded his authority by using CPL 410.20, the procedural mechanism for modifying conditions of probation, as a predicate for eliminating the incarceration portion of Cohen’s sentence.

The Appellate Division rejected petitioner’s argument, holding that prohibition was unavailable because the District Attorney had "failed to demonstrate a clear legal right to the relief sought” (222 AD2d 438). At the same time, the Court dismissed the People’s direct appeal from the order issued in the criminal case on the ground that "the People do not possess the right to appeal from an order lawfully modifying a condition of probation pursuant to CPL 410.20” (People v Cohen, 222 AD2d 447, 448, citing CPL 450.20, 450.30 [2], [3]). In so ruling, the Court stated its view on the merits, opining that the incarceration portion of a "split sentence” is a "condition of’ the term of probation and, as such, may subsequently be modified by the sentencing court (People v Cohen, supra, at 448). This Court subsequently granted the District Attorney leave to appeal from the dismissal of her article 78 petition.

As a threshold matter, we hold that an article 78 proceeding seeking relief in the nature of a writ of prohibition was the appropriate procedural vehicle for the assertion of petitioner’s claim. While a proceeding for prohibition relief is unavailable to review an error of law, "however egregious and however unreviewable” (Matter of State of New York v King, 36 NY2d 59, 62), that remedy "is available * * * 'to prevent a court from exceeding its authorized powers in a proceeding over which it has jurisdiction’ ” as well as to challenge the court’s subject matter jurisdiction over the proceeding as a whole (Matter of Holtzman v Goldman, 71 NY2d 564, 569, quoting La Rocca v Lane, 37 NY2d 575, 578-579). Since petitioner’s contention was that the Judge was without the power to alter Cohen’s term of incarceration, her choice of a CPLR 7801 proceeding to test the merits of her position was the correct one. It remains for us to consider the separate question of whether under the circumstances the extraordinary writ of prohibition lies. In that regard, the question of whether petitioner has established a clear legal right to that relief is critical (see, e.g., Matter of Holtzman v Goldman, supra, at 569).

Resolution of this question requires an inquiry into the relationship between the term of incarceration and the probationary term that are imposed as part of a split sentence pursuant to Penal Law § 60.01 (2) (d). As a general principle, once its service has begun, a sentence of continuous incarceration cannot be interrupted or modified except as specifically authorized by law (CPL 430.10). In contrast, a sentence of probation or intermittent incarceration is revocable and may be modified at any time before its expiration (Penal Law § 60.01 [2]; § 85.05; see, CPL 410.70 [5]). Under CPL 410.20 (1), "[t]he court may modify or enlarge the conditions of a sentence of probation” without notice to the People, although the defendant must be notified and be personally present if the modification is adverse to him.

Respondents contend that the incarceration portion of a "split sentence” is really nothing more than a condition of probation and that, consequently, it may be reduced or even eliminated pursuant to this provision, without notice to the People, if the court deems such a modification appropriate. As authority for this position, respondents rely almost exclusively on a 1978 amendment to Penal Law § 60.01 (2) (d) (see, L 1978, ch 274). That amendment added the following italicized language:

"In any case where the court imposes a sentence of imprisonment * * * not in excess of six months for a felony * * * it may also impose a sentence of probation * * * provided that the term of probation * * * together with the term of imprisonment shall not exceed the term of probation * * * authorized by [Penal Law article 65]. The sentence of imprisonment shall be a condition of and run concurrently with the sentence of probation” (Penal Law § 60.01 [2] [d]).

Although a literal and out-of-context reading of the added sentence might support the view that the "sentence of imprisonment” is "a condition of’ the "sentence of probation,” a closer analysis of the amendment’s history and of the statutory scheme as a whole makes clear that the incarceration portion of a split sentence was never intended to be subordinate to the probation portion, nor was it intended to be modifiable in the same way that the terms of the probationary sentence are. "The letter of a statute is not to be slavishly followed when it leads away from the true intent and purpose of the Legislature” (McKinney’s Cons Laws of NY, Book 1, Statutes § 111, at 226-227).

Initially, the language of the statute as a whole belies respondents’ proposed interpretation. The first sentence of the statute states that the court "may also impose a sentence of probation” "[i]n any case where the court imposes a sentence of imprisonment” (emphasis supplied), thereby suggesting that in split sentencing decisions the term of incarceration was intended to be the fixed or core element and the probationary sentence was intended to be the flexible variable. Given this hierarchy, treating the sentence of imprisonment as a modifiable condition of probation "puts the 'cart before the horse’ ” (see, Antinore v Genessee County Local Conditional Release Commn., 146 Misc 2d 520, 521).

Even more importantly, the legislative history of the 1978 amendment to Penal Law § 60.01 (2) (d) evinces no legislative intent to alter the existing sentencing hierarchy through the addition of the language on which respondents now rely. The imposition of a "split sentence” consisting of both incarceration and probation was first authorized in 1974 with the enactment of Penal Law § 60.01 (2) (d) (L 1974, ch 835). The purpose of the original provision was apparently to furnish a new and more flexible tool for penalizing persons "for whom extensive jail terms are deemed unnecessary” but who would benefit from a "short period of incarceration before being put on probation” (see, Hechtman, 1974 Supp Practice Commentary, McKinney’s Cons Laws of NY, Book 39 [1967 ed], Penal Law § 60.01, 1974-1975 Pocket Part, at 85).

After several years of experience with the split sentence option, the Legislature found it necessary to revisit the area by enacting an amendment that would "permit * * * a person to be sentenced to probation and imprisonment concurrently” (Executive Mem in Support, Bill Jacket, L 1978, ch 274). The specific impetus behind the amendment was a problem that had apparently emerged as a result of the use of intermittent or weekend imprisonment in conjunction with a sentence of probation. According to the Memorandum in Support of the 1978 amendment, a recent "restrictive” court decision held that "the period of probation d[id] not begin until after the last weekend in jail,” and, as a consequence of this decision, the weekend inmate was at liberty without any supervision at all during the week (see, id.). The 1978 amendment was deemed necessary to make clear that the courts had the authority "to sentence an individual to serve both jail and probation at the same time” (id.).

The meaning of the additional directive that "[t]he sentence of imprisonment shall be a condition of * * * probation” remains obscure. It seems likely that the intention was to make successful service a condition precedent for, rather than a condition of, the sentence of probation. In any event, it is evident that the 1978 amendment, with its narrow remedial goal, was never intended to effect the dramatic change in the relationship between the jail term and the probationary sentence that respondents’ interpretation would accomplish. As one court observed, the statute "permits a sentence of probation to be added to a sentence of imprisonment * * *. The sentence of imprisonment stands on its own feet [and there is] nothing in the law that would permit this sentence to be revoked” (Antinore v Genessee County Local Conditional Release Commn., supra, at 521).

In view of this principle, it is apparent that the Judge exceeded his statutory powers when he vacated the unserved portion of respondent Cohen’s jail sentence and substituted a term of home confinement with electronic monitoring. Inasmuch as the jail sentence was separate from and independent of the probationary term, CPL 410.20 did not furnish authority to vacate the former and the Judge was bound by the no-modification rule of CPL 430.10.

Since petitioner has established both that the Judge exceeded his "authorized powers” and that she has a "clear legal right” (see, Matter of Holtzman v Goldman, 71 NY2d 564, 569, supra), it remains for us to determine whether the discretionary factors that have previously been considered in prohibition proceedings are present in this case (see generally, id., at 569; Matter of Rush v Mordue, 68 NY2d 348, 354). These factors include the gravity of the harm that would result from the act to be prohibited and whether that harm can be adequately corrected through an appeal or other proceedings at law or in equity (Matter of Rush v Mordue, supra, at 354).

Here, it is apparent that petitioner has no adequate remedy at law for her grievance (see, Matter of State of New York v King, supra, at 62; Matter of Dondi v Jones, 40 NY2d 8, 14; cf., Matter of Holtzman v Goldman, supra, at 570). As the Appellate Division correctly determined, there is no statutory predicate for a direct appeal by the People from an order purportedly entered pursuant to CPL 410.20. CPL 450.30 (3), the provision petitioner cited as the predicate for the People’s direct appeal in People v Cohen, is available only where the trial court has vacated a sentence for legal invalidity (see, CPL 450.30 [2], [3]). It has no application where, as here, a concededly legal sentence has been altered on purely discretionary grounds.

The other important consideration is the harm that would flow from the enforcement of. the Judge’s unauthorized order. In this case, the harm would be substantial and would, in fact, implicate the public interest. Although respondent Cohen, assisted by his wife, was allegedly guilty of stealing more than $63,000 from his insurance clients, the People relinquished their right to prosecute his wife and refrained from prosecuting Cohen himself for any crime more serious than third degree larceny with the specific expectation that Cohen would either make restitution or serve six months in jail. The People’s agreement to that plea bargain represented a determination by the District Attorney that the ends of justice would be best served by trading the possibility of a harsher penalty for the certainty of a specific jail term (see, People v Farrar, 52 NY2d 302, 307). The discretion to make that determination was conferred on the District Attorney by the Legislature as a matter of policy and in recognition of "the prosecutor’s independent role and interest” in the outcome of the prosecution (id., at 307; see, CPL 220.10 [3], [4]). If the enforcement of the Judge’s unauthorized order is not prohibited, the People would lose the core benefit of their bargain and, even more seriously, their legislatively mandated role in the plea bargaining process would be circumvented. We note that the procedural posture in which the matter has arisen precludes the People from withdrawing their consent to the plea (cf., People v Farrar, supra, at 307-308).

These considerations provide persuasive justification for granting the "extraordinary remedy” of a writ of prohibition to prevent enforcement of the Judge’s order substituting a period of home confinement with electronic monitoring for the original sentence of six months’ jail time. By denying petitioner that relief on the grounds that the order was authorized and that, in any event, prohibition did not lie, the Court below committed reversible error.

Accordingly, the judgment of the Appellate Division should be reversed, without costs, the petition granted and respondent Angiolillo prohibited from enforcing the subject order of the County Court entered in People v Cohen.

Bellacosa, J.

(dissenting). I conclude that an affirmance of the Appellate Division’s judgment denying prohibition is in order and, thus, respectfully dissent.

At the threshold, the exceptional writ of prohibition should not be granted, even assuming the writ does lie, which I contend it does not. The People’s "clear” entitlement to its issuance is at least arguable, because the case turns on a subtle statutory interpretation of continuing trial court authority. That analysis alone ought to be enough to sustain the prudential result of the intermediate appellate court, which ordinarily allows trial and sentencing courts a reasonable discretionary range to deal with this particular category of condition of probation as part of a sentence. To restrict that flexible authority, by approbation of the intercepting weapon of prohibition, dependent as it is on the highest notions of jurisdiction to act, is not warranted or necessary in this case. Entitlement to the extraordinary writ requires a petitioner to satisfy a dual high hurdle of showing lack of jurisdiction over an entire proceeding and a clear right to the writ itself. I respectfully submit that the prosecution has fulfilled neither prong of its burden in this case.

The collateral and irregular procedural modality, granted in the first instance by this Court, interrupts and supersedes ordinary, direct-line process. Applied here, it seriously weakens the definitive rationale and guidance of Matter of State of New York v King (36 NY2d 59) by its emphasis on the necessity in law for an error-correcting "remedy” for the prosecutor’s "grievance” (majority opn, at 359). In King, then-Chief Judge Breitel, writing for a unanimous Court, concluded that prohibition did not lie to preempt an egregious, prejudicial and unreviewable error of law involving a trial court grant of excessive peremptory challenges in a criminal action (id., at 61-62). This Court further observed in King that the excesses of jurisdiction and power in criminal actions which justify "the abrupt intervention of prohibition * * * always invoke, as for example in the instance of double jeopardy, an unlawful use or abuse of the entire action or proceeding” (id., at 64 [emphasis added]; see also, Matter of Holtzman v Goldman, 71 NY2d 564, 570 [allowing prohibition because the trial court’s error "affected the entire proceeding in the most conclusive manner; it terminated the case”]). No such extension or pervasive abuse of power affecting the entirety of a criminal proceeding occurred here. Rather, the trial court attempted to continue to exercise discretion within its statutorily delegated powers concerning part of a split sentence.

This Court also cautioned in King (supra) that an "unsound and novel extension of the extraordinary ancient remed[y] of prohibition * * * might be a credit to man’s ingenuity but a disabling discredit to the jurisprudence” (id., at 65 [emphasis added]). The utilization in this case now specifically extends the availability of prohibition for the first time to parts of the sentencing phase of a criminal proceeding and generally into the field of authorized trial court supervision of conditions of probation. This additionally and precedentially strengthens the procedural hand of one party (the prosecutor), not only over defendants but especially over neutral Magistrates, who should equally oversee both contending parties before courts.

To be sure, this Court has restricted the authority of trial courts in sentencing contexts (see, People ex rel. Sedotto v Jackson, 307 NY 291; People v Vasquez, 88 NY2d 561, 580-581; People v Rodney E., 77 NY2d 672), but it has not done so by prohibition that encroaches upon a trial court’s monitoring and modification of a sentence intertwined with an arguable condition of probation. In Matter of Kisloff v Covington (73 NY2d 445), for instance, this Court concluded that courts lack inherent power to vacate an illegally imposed plea and sentence once the criminal proceeding has terminated by the entry of judgment (id.., at 452). The Court there granted prohibition based on the "circumstances” of that case (id., at 449). That general proposition is significantly distinguishable from the controlling nature and particular factors of the instant case. Here, the dispute is not generally or essentially about power or the lack of power and its source. Rather, it is more specifically about whether a trial court has continuing supervision of a sentence, where the nuanced pivot of determination is whether the modified part of the sentence is a true condition of probation. The extension of the extraordinary writ of prohibition to this slice of the sentencing function and the particular sentence in this case represents an incrementalism irreconcilably away from this Court’s governing precedents and principles concerning prohibition. That transforms the writ into a quite ordinary procedural tool and tactical weapon.

I agree without question that prohibition should be available to curtail judicial arrogation of power when the Legislature has "clearly” delimited the jurisdictional reach of courts as to the proceeding itself and when the remedy is "clearly” warranted. Just as surely, in my view, however, the writ should not be allowed to collaterally intercept and interrupt parts of proceedings, which are regular and literally authorized on their face. This is especially so when courts are simply going about the day-to-day interpretation and application of statutorily prescribed authority that the prosecutor checkmates by claiming the trial court is acting ultra vires. Indeed, the majority’s nuanced reliance on context and history would seem to belie the clear entitlement prerequisite. The straightforward analysis respectfully proffered by this dissenting viewpoint does not beg the somewhat tautological jurisdiction question always inherently complicating a prohibition question. Lastly, our New York State Supreme Court’s handling of Antinore v Genesee County Local Conditional Release Commn. (146 Misc 2d 520), relied upon significantly by the majority, is plainly distinguishable and in no event binding on this Court.

The invocation of prohibition in this case, in the final analysis, entangles the writ and the matter in a purely statutory interpretation exercise. The root tension between the contenders for power — the prosecutor and the court — boils down to a defensible statutory interpretation of concededly delegated trial court authority and supervision over a defendant with an arguable condition of probation imposed on him. On the merits, the final judgment here ultimately limits sentencing Judges and places defendants within the combined power of the prosecution and corrections authorities, out of the reach of neutral Magistrates trying diligently to implement and manage split sentence modalities and appropriate alternatives to incarceration measures. If policy matters were relevant to the precise disposition of the issue in this kind of case, I would cogently press that point. Ironically, the majority, instead, enters the policy calculations by weighing society’s and victims’ interests, which neither I nor anyone else would gainsay. It even grants hierarchal primacy to the prosecutor over the trial courts’ general supervision of plea negotiation outcomes as they flow from the pros, cons and factors of a particular plea negotiation context. The flaw of this part of the majority’s analysis is that policy factors should have no place in anyone’s side of this purely prohibition-writ case.

Chief Judge Kaye and Judges Simons, Smith, Levine and Ciparick concur with Judge Titone; Judge Bbllacosa dissents and votes to affirm in a separate opinion.

Judgment reversed, etc.

      . The court’s ruling was made before this Court held in People v McNair (87 NY2d 772) that confinement with electronic monitoring was not a legally permissible condition of probation under the existing statutory scheme.

      . Petitioner brought the proceeding against Cohen, Judge Angiolillo and Rocco Pozzi, the Commissioner of the Westchester County Probation Department. She served all three of the named party respondents, but only the latter two appeared.

      . Leave to appeal from the Appellate Division order dismissing her direct appeal from Judge Angiolillo’s order was denied (88 NY2d 934).

      . To the extent that the dissent rests on the tacit assumption that the District Attorney’s petition involves only legal error, its rationale is irreconcilable with this Court’s consistent treatment of sentencing dispositions outside the statutory prescriptions as flaws rising to the level of jurisdictional defects (see, e.g., People v David, 65 NY2d 809; People v Morse, 62 NY2d 205, 214, n 2; People v Fuller, 57 NY2d 152, 156). To the extent that the dissent rests on the premise that this case involves "the day-to-day interpretation and application of statutorily prescribed authority” (dissenting opn, at 362), its analysis begs the very question petitioner proffers, i.e., whether authority for the Judge’s order can be found in the statute.

      . Respondent Pozzi also cited a 1984 amendment (L 1984, ch 548), which, he asserted, added new language to Penal Law § 60.01 (2) (d). In fact, the cited enactment amended several other subdivisions of Penal Law § 60.01 (see, subd [3] [a], [e] and subd [4]), but did not directly or indirectly affect the language or meaning of subdivision (2) (d).

      , The "restrictive” court decision was not identified in the Memorandum in Support, but one commentator has speculated that an unreported Westchester County case, People v Larkin, was the one that the Legislature had in mind (Hechtman, 1978 Supp Practice Commentaries, McKinney’s Cons Laws of NY, Book 39 [1975 ed], Penal Law § 60.01,1987 Supp Pamph, at 90).


author: Titone, J.

text:
    [675 NE2d 1199, 653 NYS2d 247]
    Charles R. Funk, Appellant, v Mark Barry et al., Respondents.
    Argued November 14, 1996;
    decided December 19, 1996

      POINTS OF COUNSEL

      Bruce F. Freeman, Pittsford, and Bonn A. BiPasquale for appellant. The interpretation of 22 NYCRR 202.48 by the Court below violated fundamental rules of construction and is therefore erroneous.

      Osborn, Reed, Burke & Tobin, LLP, Rochester (Frank G. Montemalo of counsel), for respondents.
   OPINION OF THE COURT

Titone, J.

The question presented for our review is whether the 60-day time limit for the submission of proposed judgments for signature contained in 22 NYCRR 202.48 applies where the court’s decision contains no direction to submit or settle the order. "We resolve a conflict among the Appellate Division Departments and conclude that the 60-day period applies only where the court explicitly directs that the proposed judgment or order be settled or submitted for signature. Accordingly, the order of the Appellate Division should be reversed.

Following a bench trial, Supreme Court found in favor of plaintiff in the amount of $5,000 on his cause of action for conversion, with interest to be computed from a specified date. The court did not direct any party to settle or submit the judgment for signature.

Eleven months after the court’s verdict, plaintiffs attorney submitted a proposed judgment for entry. Defendant objected on the ground that the proposal was untimely. Plaintiff then moved for an order permitting entry of the judgment. Defendants cross-moved for an order dismissing the action as abandoned pursuant to 22 NYCRR 202.48, which contains a 60-day time limit for "submission of orders, judgments and decrees for signature.” The court granted plaintiffs motion and denied defendants’ cross motion.

The Appellate Division reversed and dismissed the action. The Court acknowledged a split in authority among the Appellate Division Departments, but followed its own holding in Hickson v Gardner (134 AD2d 930), which provides that the 60-day time limit of section 202.48 applies even where no direction to submit or settle an order or judgment is contained in the court’s decision. Noting that delay will only be excused for good cause (see, 22 NYCRR 202.48 [b]) and that plaintiff failed to show good cause for the 11-month delay in submitting a proposed judgment, the court dismissed the action as abandoned. This Court granted plaintiffs motion for leave to appeal, and we now reverse and reinstate the order of Supreme Court.

Section 202.48 of the Uniform Rules for the New York State Trial Courts (22 NYCRR 202.48) speaks to the period within which a proposed order or judgment reflecting the disposition of a motion or matter must be drawn by a party. That section provides that "[p]roposed orders or judgments, with proof of service on all parties where the order is directed to be settled or submitted on notice, must be submitted for signature, unless otherwise directed by the court, within 60 days after the signing and filing of the decision directing that the order be settled or submitted” (22 NYCRR 202.48 [a] [emphasis supplied]). Failure to submit the order or judgment as directed within that timeframe constitutes an abandonment of the motion or action unless good cause for the delay is shown (id., 202.48 [b]).

Plaintiffs rely on precedent emanating from the First and Second Departments which holds generally that the 60-day time limit is not triggered unless the Judge’s decision directs that the judgment be submitted for the court’s signature (see, Donovan v DiPietro, 195 AD2d 589 [2d Dept]; Helfant v Sobkowski, 174 AD2d 340 [1st Dept]). Defendants cite contrary precedent of the Fourth Department which holds that the 60-day rule is applicable even where there is no direction to submit or settle the order and where "all that is required is for the clerk to enter judgment based upon the court’s minutes” (Hickson v Gardner, 134 AD2d 930, 931, supra). We are persuaded by the language and purpose of the rule that the interpretation advanced by plaintiff is correct.

By its plain terms, section 202.48 (a) speaks to the circumstances where the court’s decision expressly directs a party to submit or settle an order or judgment. When a decision ends with the directive to "submit order,” the court is generally directing the prevailing party to "draw[ ] the order and present! ] it to the judge * * * who looks it over to make sure it reflects the decision properly, and then signs or initials it” (Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C2220:4, at 170). This procedure typically calls for no notice to the opponent (id.).

A directive to "settle,” by contrast, "is reserved for more complicated dispositions, such as orders involving restraints or contemplating a set of follow-up procedures” (id.). Because the decision ordinarily entails more complicated relief, the instruction contemplates notice to the opponent so that both parties may either agree on a draft or prepare counter proposals to be settled before the court (id.; see, 22 NYCRR 202.48 [c]; see also Siegel, NY Prac § 250, at 376-377 [2d ed]). The common element in both directives is that further drafting and judicial approval of the judgment or order is contemplated (see generally, Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C2220:3, C2220:4, at 166-171; CPLR 5016, at 642; see also, Legislative Studies and Reports, subd [c], McKinney’s Cons Laws of NY, Book 7B, CPLR 5016, at 644).

However, where no drafting by the parties is necessary because the matter involves an uncomplicated disposition or simple judgment for a sum of money which speaks for itself, or where "the court or clerk draws the order,” no direction to submit or settle will be utilized (Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C2220:4, at 170; see also, Siegel, NY Prac § 250, at 376 [2d ed]; CPLR 5016 [b]). In such cases, the order or judgment may then simply be "entered by the clerk without prior submission to the court” pursuant to CPLR 5016 (Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 5016, at 642).

That section 202.48 is silent with respect to decisions that do not contain a submit or settle directive is not surprising, given that the rule serves primarily to address delays in judicial dispositions occasioned by a party’s failure to comply with a court’s directive to draw and submit a proposed order or judgment (see, Donovan v DiPietro, 195 AD2d 589, 590, supra). Thus, the 60-day rule logically applies only where further court involvement in the drafting process is contemplated before entry. Additionally, by its language, the 60-day time limitation does not purport to govern the flow of the entry process, which is a ministerial recording function that is separate and distinct from the procedure of obtaining the court’s signature on a proposed judgment (see, Helfant v Sobkowski, 174 AD2d 340, 341, supra; see also, Siegel, NY Prac, op. cit., 1996 Pocket Part, § 250, at 49). Significantly, the Legislature has chosen not to place a time restriction on the completion of entry (see, CPLR 5016).

In this case, the court rendered a verdict for the plaintiff on his conversion action in the amount of $5,000 plus interest to run from a specified date. As is typical in cases involving simple judgments for a sum of money, the court did not direct that any party "settle” or "submit” a proposed judgment for signature, and the 60-day rule was not triggered. Rather, the clerk was able to enter judgment from the transcript of the court’s decision (see, CPLR 5016 [c]), which clearly set forth the amount of the judgment, and the action was not deemed "abandoned” because entry was not completed within 60 days of the court’s decision.

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

Chief Judge Kaye and Judges Simons, Smith, Levine and Ciparick concur; Judge Bellacosa taking no part.

Order reversed, etc.

       As a practical matter, there is little incentive to enact a specific time period within which a party must complete the entry process. First, "[flailure by the prevailing party to expeditiously submit a judgment for entry carries its own sanctions, including the inability to execute on the judgment (CPLR 5230) and the indefinite extension of the losing party’s time in which to take an appeal (CPLR 5513 [a])” (Helfant v Sobkowski, 174 AD2d 340, 341, supra; see also, Siegel, NY Prac § 250, at 377-378; § 418, at 637-638 [2d ed]). Additionally, a losing party who feels aggrieved by the prevailing party’s failure to seek entry may have the judgment entered and need not wait for the prevailing party to act (see, Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 5016, at 642). Finally, because the entry function generally involves action by the clerk with no further judicial oversight, there is little concern that delayed entry will tie up judicial resources.


author: Bellacosa, J.

text:
    [675 NE2d 1202, 653 NYS2d 250]
    Board of Education for the City School District of the City of Buffalo, Respondent, v Buffalo Teachers Federation, Inc., Appellant.
    Argued October 10, 1996;
    decided December 19, 1996

      POINTS OF COUNSEL

      Bredhoff & Kaiser, P.L.L.C. (Robert H. Chanin and Andrew D. Roth, of the District of Columbia Bar, admitted pro hac vice, of counsel), and Robert W. Klingensmith, Jr., Buffalo, for appellant.

      Hodgson, Russ, Andrews, Woods & Goodyear, LLP, Buffalo (Karl W. Kristoff, Benjamin M. Zuffranieri, Jr., and Jeffrey F. Swiatek of counsel), for respondent.

      Nancy E. Hoffman, Albany, and Jerome Lefkowitz for Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL-CIO, amicus curiae.

      James R. Sandner, New York City, J. Christopher Meagher and Melinda G. Gordon for New York State United Teachers, amicus curiae.

      Furlong and Delmonte, P. C., Williamsville (Adrianne E. Stella of counsel), for Buffalo Council of Supervisors and Administrators, amicus curiae.

      Jay Worona, Albany, and Kate Gaffney for New York State School Boards Association, Inc., amicus curiae.

   OPINION OF THE COURT

Bellacosa, J.

Defendant Buffalo Teachers Federation, Inc. (Union), appeals from an order of the Appellate Division. It affirmed a judgment of Supreme Court declaring that plaintiff, Board of Education for the City of Buffalo (Board), is not obligated to approve or fund the collective bargaining agreement reached by the parties in September 1990. At the center of this longstanding dispute are provisions in the Taylor Law (Civil Service Law § 201 [12]; § 204-a [1]), as applied to the negotiated salary provisions contained in the controverted agreement.

On or about September 1, 1990, negotiating teams for the Union and Buffalo School District reached a four-year agreement, which the Union membership ratified on September 3, 1990. Prior to the Superintendent’s execution of the proposed agreement, it was considered by the Board, which by a 5-4 vote then refused to give its approval on September 26, 1990. The Union filed an improper practice charge with the Public Employment Relations Board (PERB) in October 1990. The charge of failure to bargain in good faith stemmed from allegations that the School District’s chief negotiator sought from the outset to undermine the agreement and that this tactic led to the Board’s ultimate narrow rejection of the pact. On September 23, 1991, PERB sustained the impropér practice charge, and ordered "that the District execute, upon BTF’s demand, a document embodying the agreements reached by the parties” (24 PERB 3033, at 3068). PERB declined to order that the Board implement the agreement, however, on the ground that it lacked jurisdiction to direct that remedy.

The Board started a judicial proceeding to nullify the PERB determination, but the Appellate Division unanimously confirmed it (Matter of Board of Educ. v Buffalo Teachers Fedn., 191 AD2d 985 [1993], lv denied 82 NY2d 656). The Court "dismissed] the action for a declaratory judgment as premature,” noting that "[t]here is no evidence that [the Board] will not implement the provisions of the agreement upon execution” and declined to order such relief in light of the fact that "the record is not developed regarding the issue of legislative approval” (id., at 986).

Thereafter, on September 22, 1993, the Board passed a resolution that "the Superintendent of Schools shall execute on behalf of this District, upon BTF’s demand, a document embodying the agreements reached.” The Board also, nevertheless, resolved that "pursuant to Civil Service Law Section 204-a.l the Buffalo Teachers Federation be notified that by the adoption of this Resolution, this Board of Education does not legislatively approve the said agreements and will not implement the said agreements by providing the additional funds therefor.”

The Board then returned to court in the action now before us, seeking a declaration that it was under no obligation to legislatively approve of, or provide for, the funding necessary for the increased salaries under the executed 1990 agreement. The Union counterclaimed for a declaration that the Board was obligated to implement the agreement, as duly executed by the parties in accordance with the confirmed PERB directive, retroactive to July 1, 1990.

On cross motions for summary judgment, Supreme Court granted the Board’s motion and declared that the Board had no obligation to "legislatively approve or implement [the agreement] by funding;” it denied the Union’s cross motion and dismissed the counterclaim. The Union appealed and the Appellate Division affirmed (217 AD2d 366). The Court held that the prior PERB order requiring the District Superintendent to execute the agreement did not effect a legal waiver of the Board’s additionally reserved power to approve the agreement (id., at 373). The Court reasoned that although the Board cannot levy taxes, it does possess the authority to allocate funds and such power is legislative (id., at 374).

This Court granted the Union leave to appeal and we now reverse the order of the Appellate Division. We conclude that, in this case, the Buffalo Board has not established a right to an additional legislative approval role within the meaning of Civil Service Law § 201 (12) and § 204-a (1). The Board directed the execution of the 1990 agreement (after it litigated the PERB phase of the matter) and has not shown that it is required to perform any further legislative action. Thus, it possesses no residual statutory power to frustrate the fulfillment of the otherwise validly adopted agreement.

Resolution of this purely statutory construction controversy turns essentially on whether the Taylor Law prescribes a legal condition subsequent to an adopted contractual obligation related to salary provisions embodied within this agreement. Our analysis focuses on the interpretation of the 1969 amendments (L 1969, ch 24). Certain provisions of public sector collective bargaining agreements require legislative action for their implementation and are effective only when the appropriate legislative entity discretely votes to approve them. Notably, an "agreement” is defined as "the result of the exchange of mutual promises between the chief executive officer of a public employer and an employee organization which becomes a binding contract, for the period set forth therein, except as to any provisions therein which require approval by a legislative body, and as to those provisions, shall become binding when the appropriate legislative body gives its approval” (Civil Service Law § 201 [12] [emphasis added]). "[L]egislative body of the government” is defined as including a board of education (Civil Service Law § 201 [11]), and " 'chief executive officer’ in the case of school districts” is defined as the superintendent of schools (Civil Service Law § 201 [10]).

Pertinently, the Taylor Law requires that agreements between public employers and unions contain a clause stating in part that " 'any provision of this agreement requiring legislative action to permit its implementation by amendment of law or by providing the additional funds therefor, shall not become effective until the appropriate legislative body has given approval’ ” (Civil Service Law § 204-a [1] [emphasis added]). The agreement in this case contains this statutorily mandated clause and also includes a provision, not independently relied on by the Board here, that it was "subject to formal adoption by the Board at a meeting of the Board to be held as soon as possible.”

The enactment history behind the 1969 Taylor Law amendments indicates that the approval mechanism was added to "obviate confusion as to the effect of an agreement between an employer and employee organization by making clear (through a change in the definition of 'agreement’ and by requiring notice to all employees) that legislative action is needed before the agreement becomes effective as to those provisions requiring legislative approval such as, for example, the appropriation of funds for salaries” (Mem of Senate Rules Committee, 1969 McKinney’s Session Laws of NY, at 2365 [emphasis added]). The Legislature’s aim has been plainly undermined in this case, as confusion has long lingered over the question whether the Board has identified a legally supportable basis for its claim that the salary provisions of this 1990 collective bargaining agreement — whose four-year term ironically already ended two years ago — require explicit, additional, postpact approval to gain efficacy.

The Board contends — to the satisfaction of the courts below— that the allocation of salary levels and salaries of its . teachers is inherently and always legislative in nature. The Union, on the other hand, contends that in allocating funds for teacher salaries, this fiscally dependent Board is exercising an executive rather than legislative power. We believe this controversy may be resolved on pure statutory interpretation grounds without choosing between the contentions of the parties on the larger classification ground. The Buffalo Board’s delegated and discrete range of authority with respect to this matter was exhausted after it explicitly directed due execution of the agreed-upon collectively bargained pact.

The Board, nevertheless, specifically argues that the compensation features of the 1990 agreement are subject to an explicit, additional statutory approval step, which it seeks to characterize as purely legislative, simply because they involve the expenditure of additional salary amounts. This doctrinaire labelling exercise cannot override plainly expressed law governing the binding effect of the Superintendent’s Board-authorized execution of the agreement. Such an approach does not withstand particularized analysis and does not facilitate the proper resolution of this case.

The Board concedes that its authority to expend education funds flows directly from the Legislature’s delegation. The power the Board enjoys over its budget is that of spending and allocating money, not one of appropriation. That unique power is possessed solely by the Common Council of the City of Buffalo.

The Board’s theory for the postpact "re-approval” step, taken to its logical limits, would encumber all contracts bearing any varying budgetary impact terms with specific, formal, follow-up steps, even when the Board has otherwise generally accepted by operation of law and specifically directed the execution of the particular collective bargaining agreement, as occurred here.

In our view, Civil Service Law § 201 (12) and § 204-a (1) neither require nor contemplate such legal disingenuity or superfluity. We are satisfied that the Taylor Law does not by its terms "vary or extend the instances in which legislative approval is necessary and does not create a necessity for action by a legislative body where it does not otherwise exist” (Creedon Police Benevolent Assn. v City of Utica, 44 AD2d 890 [emphasis added]). Because the Board has not identified any further legislative action that it must perform under the pertinent statutes with respect to the salary provisions of the agreement — the only argument it attempts to make here — further approval by it is not needed for implementation of this agreement.

Notably, one of the described inducements for enactment of the Taylor Law was to ameliorate the potentiality or tendency of public employers to impose unilateral conditions upon public employees. The evident arbitrariness of such uneven bargaining positions was sufficient to "give rise to employee reactions which impair the quality of service rendered and otherwise infringe upon the public interests” (Governor’s Committee on Public Employee Relations, Final Report [Taylor Committee Report], Mar. 31, 1966, reprinted in 1966 Public Papers of Governor Rockefeller, at 889-890).

We are, therefore, unpersuaded by the Board’s interpretation of Civil Service Law § 201 (12) that would give this public employer Board a bait-and-switch escape hatch from negotiated, agreed-upon contract terms. Teachers, as in this case, following their ratification of the contract, were bound to all the contracted terms, including "give backs” and good-faith disclosure of their entire negotiating position on all terms and conditions of their employment. The Board’s statutory construction would create a "sandbag” disincentive against employee organizations agreeing "to be bound for several years by compensation provisions of a collective bargaining agreement that did not also bind the employer” (Association of Surrogates & Supreme Ct. Reporters v State of New York, 78 NY2d 143, 155). To allow this Board a unilateral and inherently contradictory avoidance of its "closed, initialed and executed deal” would leave these teachers at the mercy of a profoundly flawed and unfair collective bargaining procedure. The Legislature could not have intended this, and we conclude it did not. Such a tilted field of management-labor relations would plainly conflict with the pervasive policy and other explicit terms of the Taylor Law that are designed to secure amicable, negotiated, long-term agreements.

Further support for our ultimate resolution of this case may be garnered from an examination of the past practices of these parties. Courts may inform their judgments by reference to a course of dealing which places employees on notice of the need for further legislative action (see, Association of Surrogates & Supreme Ct. Reporters v State of New York, supra, at 155). In this case, the Board does not dispute or challenge that its customary practice has been to formally adopt labor contracts in a unitary action. Indeed, despite some generalized assertions, the Board acknowledges with pertinent specificity that it has never before taken or claimed a postpact "legislative approval” power as to discrete contractual provisions containing additional funding components. Thus, the Board’s past practices — providing such notice and predictability as may be properly and usefully derived therefrom — indicate that it did not assert or exercise an additional role as to contractual salary provisions of the type at issue here as subject to Civil Service Law § 204-a (1) — before this procedurally intractable controversy. To be sure, Association of Surrogates & Supreme Ct. Reporters v State of New York (supra), is distinguishable in certain other respects, but its rationale is apt and compelling with respect to the additional-step requirement urged by the Board under the statute at issue.

In sum, PERB held that it did not have the authority to make the Board either adopt or legislatively approve the agreement. PERB did, however, direct within its clear authority pursuant to the terms of Civil Service Law § 201 (12) and § 205 (5) (d) the execution of the agreement which had already been reached by the parties (Matter of Board of Educ. v Buffalo Teachers Fedn., 191 AD2d 985, lv denied 82 NY2d 656, supra). Thus, under these circumstances, the Board’s direction to the Superintendent to execute the agreement must have legal meaning and be given cognizable and appropriate effect.

We have considered all the other arguments of the parties and conclude that they either need not be addressed for the disposition of this case or lack merit.

Accordingly, the order of the Appellate Division should be reversed, with costs, plaintiff’s motion for summary judgment denied, defendant’s cross motion for summary judgment granted and judgment granted declaring that the Board of Education for the City School District of Buffalo is required to implement the September 1, 1990, agreement retroactive to July 1, 1990.

Chief Judge Kaye and Judges Simons, Titone, Smith, Levine and Ciparick concur.

Order reversed, etc. •