text:
    In the Matter of Vernita Nuey, an Attorney, Appellant. Departmental Disciplinary Committee for the First Judicial Department, Respondent.
    Argued March 26, 1984;
    decided April 3, 1984

      POINTS OF COUNSEL

      Saul Friedberg and Lennox S. Hinds for appellant.
    I. The order appealed from was beyond the power of the court below to make. II. The order appealed from violated appellant’s rights of due process. (Matter of Levy, 37 NY2d 279.)

      Allan S. Phillips and Michael A. Gentile for respondent.
    I. The court below has the power to suspend an attorney from practice based upon a determination of its disciplinary committee after hearing that charges of professional misconduct have been sustained. (Matter of Rotwein, 20 AD2d 428; Matter of Glassman, 19 AD2d 146; Matter of Schner, 5 AD2d 599; Matter of Mitchell, 40 NY2d 153.) II. The order of the court below did not violate appellant’s right of due process of law. (Matter of Cohen, 9 AD2d 436, 7 NY2d 488, cert granted sub nom. Cohen v Hurley, 363 US 810,8 NY2d 754,374 US 857,379 US 870; People v Speiser, 162 Misc 9.)
   OPINION OF THE COURT

Per Curiam.

Although the Appellate Divisions are vested with power and control over attorneys and counselors at law and may censure, suspend from practice, or remove from office lawyers guilty of professional misconduct or other specific acts of malfeasance, they have no authority under subdivision 2 of section 90 of the Judiciary Law to issue an order which purports to suspend an attorney pending determination of charges under consideration before a Departmental Disciplinary Committee.

In the case of the attorney before us, following a complaint by a former client to the Departmental Disciplinary Committee for the First Department, she appeared before counsel for the committee to answer questions on April 7, 1982. Thereafter, on June 3, 1982 she was served with a notice and statement of charges — one of improper conduct with respect to client’s funds and the other of giving false testimony to the committee’s counsel. After the attorney had filed an answer denying both charges, a hearing panel of the committee conducted extended hearings consuming almost a year and terminating on July 11, 1983. On the last day of the hearings the chairman of the panel announced to her that the charges had been sustained, issued an oral reprimand, and stated that the panel was going to recommend to the Appellate Division that she be disbarred. No further action had been taken, however, no formal findings had been prepared or adopted by the panel, and no application for the institution of disciplinary proceedings looking to disbarment had yet been made to the court when, on October 5,1983, counsel for the disciplinary committee successfully moved in the Appellate Division to suspend the attorney until the matter, then still pending before the committee, was completed.

A finding by the court that an attorney “is guilty” of professional misconduct or of one of the other statutorily specified acts is a prerequisite to interference with the attorney’s right to practice his or her profession. Without such an adjudication of guilt by it, made on the basis of evidence and exhibits, if any, produced at the panel hearings (which are not shown by the record to have been before the court in this instance), the action of the Appellate Division in granting the committee’s request was premature. The informal conclusion by a panel of the disciplinary committee with respect to wrongdoing was no substitute for the judicial determination required by the statute before the significant disciplinary measure invoked in this case could be imposed. In the normal progress of attorney disciplinary matters the court’s determination of guilt of the offending lawyer occurs only after the findings rendered by a panel or referee have been confirmed on motion on which the attorney has an opportunity to submit argument challenging the findings or in mitigation of the offense or offenses, or both.

The contention made by counsel for the committee in our court that a finding of misconduct by the Appellate Division in this instance may be presumed from the fact of the issuance of its order must be rejected in the absence of any reference thereto in the court’s order, the absence of any recital of the basis on which such a finding could have been made, and the explicit reference to the continuing pendency of the matter before the disciplinary committee.

For the reasons stated, the order of the Appellate Division should be reversed, without costs, the suspension vacated, and the motion of the Departmental Disciplinary Committee denied.

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

Order reversed, etc.

         Subdivision 2 of section 90 of the Judiciary Law provides in relevant part: “2. The supreme court shall have power and control over attorneys and counsellors-at-law and all persons practicing or assuming to practice law, and the appellate division of the supreme court in each department is authorized to censure, suspend from practice or remove from office any attorney and counsellor-at-law admitted to practice who is guilty of professional misconduct, malpractice, fraud, deceit, crime or misdemeanor, or any conduct prejudicial to the administration of justice”.


source: Caselaw Access Project

author: Kaye, J.

license: Public Domain

text:
    Editorial Photocolor Archives, Inc., et al., Respondents, v Granger Collection, Appellant.
    Argued March 27, 1984;
    decided May 3, 1984

      POINTS OF COUNSEL

      Lawrence N. Weiss for appellant.
    I. There are meritorious defenses to this action as a matter of law. (Doe v Greco, 62 AD2d 498; Camardo v Board of Educ., 50 AD2d 1073; Matter of Rivera v Blum, 98 Misc 2d 1002; Demisay v Whalen, 59 AD2d 444; Multi Media Entertainment v National Telefilm Assoc., 58 AD2d 785; Paliotto v Town of Islip, 22 AD2d 930, 16 NY2d 871; Schuchart & Assoc. v Solo Serve Corp., 540 F Supp 928; Harper & Row v Nation Enterprises, 501 F Supp 848; Orth-O-Vision v Home Box Off., 474 F Supp 672; International News Serv. v Associated Press, 248 US 215.) II. Plaintiffs did not make an adequate showing of irreparable injury. (McHenry v Jewett, 90 NY 58; Manicas v City of Buffalo, 39 Misc 2d 389; Kaplan v Okun, 15 AD2d 848; Smith v Goro, 66 Misc 2d 1011.)
    A. Rene Hollyer and Bruce Eben Pindyck for respondents.
    I. The court below was correct in holding that plaintiffs-respondents’ State law claims were not preempted by Federal copyright law and that the State courts had subject matter jurisdiction to hear said claims. (Metro

      politan Opera Assn. v Wagner-Nichols Recorder Corp., 199 Misc 786, 279 App Div 632; International News Serv. v Associated Press, 248 US 215; Flexitized, Inc. v National Flexitized Corp., 335 F2d 774, 380 US 913; Dior v Milton, 9 Misc 2d 425,2 AD2d 878; Bond Buyer v Dealers Digest Pub. Co., 25 AD2d 158; Roy Export Co. v Columbia Broadcasting System, 503 F Supp 1137, 672 F2d 1095; Werlin v Reader’s Digest Assn., 528 F Supp 451; DC Comics v Filmation Assoc., 486 F Supp 1273; Kewanee Oil Co. v Bicron Corp., 416 US 470; Goldstein v California, 412 US 546.) II. The court below was correct in affirming the trial court’s refusal to open defendant-appellant Granger’s default where defendant-appellant Granger failed to submit to the trial court either detailed affidavits or legal authorities supporting the merits of its position and, additionally, defendant-appellant’s excuse for the default was frivolous. (Ungar v Holmes Protection, 87 AD2d 589, 56 NY2d 856; Barasch v Micucci, 49 NY2d 594; Small v Applebaum, 79 AD2d 572.) III. The court below was correct in affirming the trial court’s refusal to open defendant-appellant Granger’s default because defendant-appellant Granger has made no showing that the preliminary injunction which was issued on said default has caused it any injury. IV. The court below was correct in affirming the trial court’s refusal to open defendant-appellant Granger’s default because plaintiffs-respondents made more than an adequate showing of irreparable injury. (Metropolitan Opera Assn. v Wagner-Nichols Recorder Corp., 199 Misc 786; Standard & Poor’s Corp. v Commodity Exch., 683 F2d 704.)
   OPINION OF THE COURT

Kaye, J.

A complaint founded upon alleged unlawful reproduction and sale or lease for reproduction of film transparencies and photographs, while couched as a common-law claim for unfair competition, interference with contractual relations and violation of section 368-d of the General Business Law, is essentially an action to enforce rights equivalent to rights under the Federal copyright laws (US Code, tit 17, § 106) over which, as to causes of action accruing after January 1, 1978, the State courts no longer have jurisdiction (US Code, tit 17, § 301; tit 28, § 1338). Accordingly, in this action, wherein a preliminary injunction was issued prohibiting such reproduction and sale or lease of reproduction rights, the order of the Appellate Division affirming the denial of defendant’s motion to vacate the preliminary injunction must be reversed and the preliminary injunction vacated.

Plaintiffs, Editorial Photocolor Archives, Inc. (EPA) and Scaía Instituto Fotográfico Editoriale (Scala), are in the business of maintaining archives of high-quality film transparencies and photographs, and leasing or licensing them for reproduction. In 1978, EPA and Scala entered into an agreement whereby Scala granted EPA “sole and exclusive right in North America to sell, lease, or license reproduction rights to all Scala photographs and transparencies.” Defendant, The Granger Collection (Granger), competes with plaintiffs.

After it came to EPA’s attention that several pictures in two recent publications, which appeared to have been taken from Scala transparencies, were credited by the publishers to defendant and not EPA, plaintiffs in April, 1982 commenced this action by service of summons, complaint and order to show cause for a preliminary injunction. When defendant failed to appear on the return date of the order to show cause, Special Term granted plaintiffs’ motion and issued the preliminary injunction. In July, 1982 defendant moved by order to show cause to vacate the preliminary injunction. Special Term denied defendant’s motion to vacate, and by order of June 30, 1983, the Appellate Division affirmed. Because the courts below lacked subject matter jurisdiction, that order should be reversed.

While plaintiffs characterize their complaint as asserting causes of action for common-law unfair competition, interference with contractual relations, and violation of New York’s antidilution law, a review of the complaint, the preliminary injunction, and its supporting papers leaves no doubt that the rights plaintiffs have asserted are the equivalent of rights concerning use and reproduction of property protected by the Federal copyright laws.

Plaintiffs’ first cause of action, purportedly for common-law unfair competition, alleges that defendant wrongfully held out to the public that it has the reproduction rights to certain Scala transparencies, wrongfully submitted such transparencies to publishers for reproduction and received reproduction fees, and wrongfully obtained credit for the pictures in those publications, all of which “constitute a willful, calculated, and unlawful appropriation of Plaintiffs’ property rights in the SCALA transparencies by Defendant Granger, which has damaged the Plaintiffs by depriving the Plaintiffs of reproduction fees and publishing credits in connection with the misappropriated SCALA transparencies”. The second cause of action, which plaintiffs contend is for wrongful interference with contractual relations, repeats the above averments and alleges that defendant’s acts “constitute an appropriation by Defendant Granger of Plaintiff EPA’s right to sell, lease, or license reproduction rights to all SCALA photographs and transparencies in North America”. The third cause of action alleges that defendant’s action “in pirating the SCALA transparencies and in wrongfully selling the reproduction rights thereto is in violation of Section 368-d of the New York General Business Law”. In an affidavit in connection with the preliminary injunction, plaintiffs’ counsel stated that “[T]he gravamen of the complaint in this action is based on Plaintiffs’ discovery that Defendant Granger has been wrongfully selling reproduction rights to Scala transparencies to various publications, has wrongfully been retaining licensing fees in connection with said Scala transparencies, and has been wrongfully claiming credits to said SCALA transparencies in said publications.” Finally, the preliminary injunction itself enjoined defendant “from in any manner appropriating, reproducing, leasing, licensing, selling, displaying, or otherwise using the * * * transparencies * * * created by and/or for SCALA” and “from holding out the Defendant and its film library as owner of the reproduction rights to the transparencies created by and/or for SCALA.”

Those rights asserted in plaintiffs’ complaint and sought to be protected by the preliminary injunction are equivalent to the exclusive rights of use and reproduction given by the copyright laws. The transparencies and photographs at issue are within the subject matter of copyright (US Code, tit 17, § 102, subd [a], par [5]) and the exclusive rights to display, reproduce, distribute, sell, rent or license such transparencies are within the general scope of copyright protection (US Code, tit 17, § 106, subds [1], [3], [5]).

Under these circumstances, Special Term had no jurisdiction to entertain plaintiffs’ action or to grant preliminary injunctive relief. The Copyright Act of 1976 (Pub L 94-553) worked a fundamental change in this Nation’s copyright laws. After the effective date of that act, all legal and equitable rights equivalent to copyrights are governed exclusively by that act. States may not, by statute or common law, provide equivalent rights, and State courts are divested of jurisdiction to consider claims to enforce those rights. Section 301 of the Copyright Act (US Code, tit 17, § 301) provides in pertinent part:

“§ 301. Preemption with respect to other laws

“(a) On and after January 1, 1978, all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106 in works of authorship that are fixed in a tangible medium of expression and come within the subject matter of copyright as specified by * * * sections 102 and 103, whether created before or after that date and whether published or unpublished, are governed exclusively by this title. Thereafter, no person is entitled to any such right or equivalent right in any such work under the common law or statutes of any State.

“(b) Nothing in this title annuls or limits any rights or remedies under the common law or statutes of any State with respect to —

“(1) subject matter that does not come within the subject matter of copyright as specified by sections 102 and 103, including works of authorship not fixed in any tangible medium of expression; or

“(2) any cause of action arising from undertakings commenced before January 1, 1978; or

“(3) activities violating legal or equitable rights that are not equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106.” Under the Judicial Code (US Code, tit 28, § 1338, subd [a]) the United States District Courts are granted jurisdiction “exclusive of the courts of the states in * * * copyright cases.” The courts of this State are, of course, bound by these provisions (US Const, art VI, § 2).

While subdivision (b) of section 301 of the Copyright Act provides for exceptions to the exclusivity of the Federal Copyright Act, nothing in plaintiffs’ claim falls within those provisions. It is not disputed that the transparencies and photographs at issue are within the subject matter of copyright, and that plaintiffs’ cause of action accrued after January 1, 1978. Furthermore, as shown above, it cannot be said that plaintiffs’ claims relate to rights that are not equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106. Plaintiffs could not, by miscasting their causes of action, secure the equivalent of copyright protection under guise of State law.

Here no basis for a claim of wrongful interference with contractual relations was shown. There are no averments that would give rise to a cause of action for violation of the antidilution provisions of section 368-d of the General Business Law. Plaintiffs’ only claims for “unfair competition” relate to defendant’s violation of plaintiffs’ alleged reproduction rights in the transparencies. That plaintiffs have chosen to enforce such rights to reproduce, display, sell, lease or license for reproduction, the transparencies in the form of causes of action for unfair competition, interference with contractual relations, or violation of section 368-d of the General Business Law (which may require additional elements not necessary to secure copyright protection) does not make the underlying rights sought to be enforced any less equivalent to copyright, or remove plaintiffs’ claims from the Federal pre-emptive scheme.

The fact that the preliminary injunction was issued, in effect upon defendant’s default, is of no consequence. A judgment or order issued without subject matter jurisdiction is void, and that defect may be raised at any time and may not be waived. (Lacks v Lacks, 41 NY2d 71, 75.)

Accordingly, the order of the Appellate Division should be reversed, with costs, and the preliminary injunction vacated.

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

Order reversed, with costs, and preliminary, injunction vacated. Question certified answered in the negative.


author: Chief Judge Cooke.

text:
    John Klostermann et al., Appellants, v Mario M. Cuomo, as Governor of the State of New York, et al., Respondents. Joanne S. et al., Appellants, v Hugh L. Carey, as Governor of the State of New York, et al., Respondents.
    Argued February 16, 1984;
    decided March 27, 1984

      POINTS OF COUNSEL

      Robert M. Hayes, Roger E. Podesta, Douglas Gross and Nicole A. Gordon for appellants in the first above-entitled action.
    I. The court below erred in holding that the claims of the nine individual appellants are not justiciable. (Sinhogar v Parry, 53 NY2d 424; Philipp v Carey, 517 F Supp 513; Halderman v Pennhurst State School & Hosp., 555 F Supp 1144; Woe v Mathews, 408 F Supp 419, affd sub nom. Woe v Weinberger, 526 F2d 40, cert den sub nom. Woe v Califano, 434 US 1048; Matter of Kesselbrenner v Anonymous, 33 NY2d 161; Besunder v Coughlin, 102 Misc 2d 41; Renelli v State Comr. of Mental Hygiene, 73 Misc 2d 261; Matter of Ellery C., 32 NY2d 588; Brown v State of New York, 84 AD2d 644; Matter of Lee v Smith, 43 NY2d 453.) II. The decision below that declaratory relief is not justiciable is in error. (New York Public Interest Research Group v Carey, 42 NY2d 527; Matter of Morgenthau v Erlbaum, 59 NY2d 143; Matter of County of Oneida v Berle, 49 NY2d 515; Group House of Port Washington v Board of Zoning &

      Appeals, 45 NY2d 266; Matter of Concord Realty Co. v City of New York, 30 NY2d 308; New York Foreign Trade Zone Operators v State Liq. Auth., 285 NY 272; Dun & Bradstreet v City of New York, 276 NY 198; Bloom v Mayor of City of N. Y., 35 AD2d 92, 28 NY2d 952; Clearview Gardens Fourth Corp. v Michael, 110 Misc 2d 1022; Board of Coop. Educational Servs. v Goldin, 38 AD2d 267.) III. The decision below holding the claim for class relief to be nonjusticiable is in error. (Eldredge v Koch, 118 Misc 2d 163; Wyatt v Aderholt, 503 F2d 1305; Halderman v Pennhurst State School & Hosp., 673 F2d 647; Halderman v Pennhurst State School & Hosp., 555 F Supp 1144.) IV. The decision below holding the Federal claims to be nonjusticiable is in conflict with the United States Constitution and decisions of this court and of the United States Supreme Court. (Testa v Katt, 330 US 386; General Oil Co. v Crain, 209 US 211; Teeval Co. v Stern, 301 NY 346, 340 US 876; Felder v Foster, 107 Misc 2d 782; Holt v City of Troy, 78 Misc 2d 9; Dice v Akron, Canton & Youngstown R. R. Co., 342 US 359; Miller v Apartments & Homes of N. J., 646 F2d 101; Carter v Romines, 560 F2d 395, 436 US 948; Boscarino v Nelson, 518 F2d 879.)

      Robert Abrams, Attorney-General (Howard L. Zwickel, Peter H. Schiff, Melvyn R. Leventhal and John Petrila of counsel), for respondents in the first above-entitled action.
    I. The lower courts’ determination that it would be inappropriate to grant the injunctive relief sought in the complaint should be affirmed. (People ex rel. Wooster v Maher, 141 NY 330; People ex rel. Lehmaier v Interurban St. Ry. Co., 177 NY 296; Matter of International Ry. Co. v Schwab, 203 App Div 878, 235 NY 562; Matter of Walsh v LaGuardia, 269 NY 437; Matter of Community Action Against Lead Poisoning v Lyons, 43 AD2d 201, 36 NY2d 686; Gaynor v Rockefeller, 15 NY2d 120; Matter of Kerness v Berle, 85 AD2d 695, 57 NY2d 1042; Matter of Abrams v New York City Tr. Auth., 39 NY2d 990; Jones v Beame, 45 NY2d 402.) II. The claims of the individual plaintiffs are not suitable for judicial resolution because the relief they seek would result in judicial oversight of an executive program. (Jones v Beame, 45 NY2d 402.) III. The lower courts properly declined to entertain plaintiffs’ request for declaratory relief once they determined that the related injunctive relief was beyond their competence. (Board of Educ. v Nyquist, 50 NY2d 889; Goldsmith v Goldsmith, 25 AD2d 515, 19 NY2d 710, 389 US 831; RAM v Blum, 103 Misc 2d 237, 77 AD2d 278; Board of Educ. v Ambach, 108 Misc 2d 632; Incorporated Vil. of Old Field v Introne, 104 Misc 2d 122; Rockland Light & Power Co. v City of New York, 289 NY 45.) IV. The lower courts properly dismissed the Federal claims once they declined to entertain the relief being sought. (Lacks v Lacks, 41 NY2d 71; Claflin v Houseman, 93 US 130; Douglas v New Haven R. R. Co., 279 US 377; Southern Ry. Co. v Mayfield, 340 US 1; Herb v Pitcairn, 324 US 117; Brown v Gerdes, 321 US 178; Mills v County of Monroe, 58 NY2d 307; Baker v Carr, 369 US 186; Gilligan v Morgan, 413 US 1; Lindsey v Normet, 405 US 56.)

      Joseph T. McLaughlin, Rachel Deming, Daniel Levin, Ronald N. Gottlieb, Marvin Bernstein, Peter Margulies and Mark O. Thelen for appellants in the "second above-entitled action.
    I. This court is the ultimate interpreter of New York law and has repeatedly emphasized its obligation to decide cases despite their possible impact on other branches of government. (Board of Educ. v Nyquist, 57 NY2d 27; Flushing Nat. Bank v Municipal Acceptance Corp., 40 NY2d 731; Marbury v Madison, 1 Cranch [5 US] 137; James v Board of Educ., 42 NY2d 357; Mullaney v Wilbur, 421 US 684; Cohens v Virginia, 6 Wheat [19 US] 264; Matter of Anderson v Krupsak, 40 NY2d 397; Boryszewski v Brydges, 37 NY2d 361.) II. This court’s decisions involving the rights of institutionalized individuals establish the justiciability of this action. (Matter of Kesselbrenner v Anonymous, 33 NY2d 161; Matter of Ellery C., 32 NY2d 588; Matter of Lavette M., 35 NY2d 136; Rouse v Cameron, 373 F2d 451; Bowen v State Bd. of Social Welfare, 45 NY2d 402; Board of Educ. v Nyquist, 57 NY2d 27; Matter of Orans, 17 NY2d 601; Matter of Anderson v Krupsak, 40 NY2d 397.) III. The unanimous view of other courts, State and Federal, establishes the justiciability of actions to secure the rights of the institutionalized mentally ill. (Welsch v Likins, 550 F2d 1122; Rouse v Cameron, 373 F2d 451; Dixon v Weinberger, 405 F Supp 974.) IV. If this court is powerless to hear this case, a wide range of important State constitutional and statutory rights of New York citizens will be rendered unenforceable. (Bowring v Godwin, 551 F2d 44; Welsch v Likins, 550 F2d 1122; Covington v Harris, 419 F2d 617.)

      Robert Abrams, Attorney-General (Arnold D. Fleischer, Peter H. Schiff, Melvyn R. Leventhal, Howard L. Zwickel, William J. Caplow and John Petrila of counsel), for respondents in the second above-entitled action.
    I. Plaintiffs’ claims under the State Mental Hygiene Law are not justiciable. (Bowen v State Bd. of Social Welfare, 45 NY2d 402; Baker v Carr, 369 US 186; Donohue v Copiague Union Free School Dist., 47 NY2d 440; James v Board of Educ., 42 NY2d 357; Matter of Kesselbrenner v Anonymous, 33 NY2d 161; Matter of Ellery C., 32 NY2d 588; Matter of Lavette M., 35 NY2d 136; Matter of Anderson v Krupsak, 40 NY2d 397; Board of Educ. v Nyquist, 57 NY2d 27; Matter of Orans, 17 NY2d 107.) II. This action is not rendered justiciable simply because the complaint contains alleged constitutional claims. (Baker v Carr, 369 US 186; James v Board of Educ., 42 NY2d 357; Jones v Beame, 45 NY2d 402; Rouse v Cameron, 373 F2d 451; Dixon v Weinberger, 405 F Supp 974; Pacific Tel. Co. v Oregon, 223 US 118; Gaynor v Rockefeller, 15 NY2d 120.) III. Neither plaintiffs’ claims under the Mental Hygiene Law nor their constitutional claims amount to a legally cognizable cause of action. (Youngberg v Romeo, 457 US 307; O’Connor v Donaldson, 422 US 563; Pennhurst State School v Halderman, 451 US 1; Garrity v Gallen, 522 F Supp 171; Lindsey v Normet, 405 US 56; Matter of Levy v City of New York, 38 NY2d 653, 429 US 805; Montgomery v Daniels, 38 NY2d 41.)
   OPINION OF THE COURT

Chief Judge Cooke.

The mentally ill, whether in a State institution or previously institutionalized and now homeless in New York City, are entitled to a declaration of their rights as against the State. Their claims do not present a nonjusticiable controversy merely because the activity contemplated on the State’s part may be complex and rife with the exercise of discretion. Rather, the judiciary is empowered to declare the individual rights in all such cases, even if the ultimate determination is that the individual has no rights. Moreover, if a statutory directive is mandatory, not precatory, it is within the courts’ competence to ascertain whether an administrative agency has satisfied the duty that has been imposed on it by the Legislature and, if it has not, to direct that the agency proceed forthwith to do so.

I

These two actions, each seeking declaratory relief and mandamus, were initiated by persons treated for mental illness in State institutions, claiming that their constitutional and statutory rights have been violated by the various defendants. The essence of their demands is that they are entitled to be released into the community under a program that will ensure continued treatment and adequate housing. The courts below unanimously dismissed each complaint on the ground that the controversies presented were nonjusticiable because their resolution would involve an excessive entanglement of the courts with the executive and legislative branches. This court now reverses. The background details of each action are briefly outlined, the facts being taken from the allegations in the complaints which, in reviewing these motions to dismiss, are taken as true (see Sanders v Winship, 57 NY2d 391, 394).

Klostermann v Cuomo

Plaintiffs are nine persons suing individually and on behalf of all others similarly situated. Each was treated in a State psychiatric hospital and discharged as part of the State’s policy to release patients to less restrictive, community-based residences. Each plaintiff became one of the homeless wandering the streets of New York City. Efforts to receive assistance from State and municipal agencies were unavailing or, at best, resulted in only minimal, periodic assistance.

Plaintiffs contend that they are entitled to appropriate residential placement, supervision, and care, including follow-ups to verify that their placement remains appropriate. They presented their claims in 11 causes of action. Citing the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution, plaintiffs asserted a violation of their rights to receive treatment, including transitional care and aftercare upon discharge, in the least restrictive environment and to personal security and freedom from harm. Plaintiffs also asserted a denial of equal protection under the law because others similarly situated, when released, have been provided with the services that plaintiffs have not received. Plaintiffs also pleaded that the State’s failure to provide the desired services violates various Federal statutes as well as a common-law duty to provide State hospital patients with reasonable care and to protect them from reasonably foreseeable harm.

The crux of plaintiffs’ complaint is an asserted right under State law to receive residential placement, supervision, and care upon release from a State institution. Their claims are grounded in the provisions of subdivisions (f) through (h) of section 29.15 of the Mental Hygiene Law, which prescribe certain acts that must be undertaken when a patient in a State psychiatric institution is to be discharged or conditionally released into the community. Summarized, the statute requires that a “written service plan” be prepared for each patient before his or her release. At a minimum, the plan must set forth what will be required by the patient upon discharge or conditional release, specifically recommend the type of residence in which the client should live, and list the services available at that residence as well as organizations and facilities in the area which are available to provide services in accordance with the identified needs of the patient. Lastly, the director of any department facility must create, implement, and monitor a program to ensure that a patient is living in an adequate facility and is receiving the services he or she needs.

Plaintiffs’ prayer for relief sought class certification and certain substantive remedies. They asked for a declaration that defendants have violated Federal and State law by their failure to comply with section 29.15 and by failing to provide treatment under the least restrictive conditions suitable to plaintiffs’ needs. Plaintiffs also asked for an order directing defendants “to develop and implement a plan with all due speed which will provide sufficient community-based residential facilities for plaintiffs and members of the class they represent.” Plaintiffs also requested damages.

Defendants did not answer but, instead, moved to dismiss on the grounds that the court lacked subject matter jurisdiction and the complaint failed to state a cause of action (CPLR 3211, subd [a], pars 2, 7). Their jurisdictional argument was founded on the position that treating the mentally ill essentially involves questions of allocating resources, matters that are within the competence of the executive and legislative branches and that should be guarded from judicial intervention.

Special Term granted the motion, holding that the controversy was nonjusticiable. It found that mandamus would be inappropriate because it would require the court to oversee a long series of continuous acts. The judge also noted that mandamus is particularly inappropriate when the relevant statutory duty involves the exercise of judgment and discretion. Having determined that no compulsory order could be issued because the matter was nonjusticiable, the court declined to consider the request for declaratory judgment because such relief would be futile in light of the unavailability of any further remedies to enforce any rights declared. The court summarily dismissed plaintiffs’ constitutional and Federal claims on the same ground of nonjusticiability.

On appeal, the Appellate Division affirmed for the reasons stated in the decision of Special Term. Leave to appeal was granted by this court.

Joanne S. v Carey

Plaintiffs in this action seek essentially the same relief as those in Klostermann, albeit from a different starting point. Suing individually and on behalf of all others similarly situated, plaintiffs are 11 patients hospitalized at Manhattan Psychiatric Hospital who have each been found ready to return to the community but have not been discharged or released because of the lack of adequate residential placements. At the time the complaint was drafted in August, 1982, the individual plaintiffs had been in this predicament for as long as a year.

In addition to class certification, plaintiffs sought declarations of their rights similar to those requested by the plaintiffs in Klostermann. They also sought orders directing defendants to release them into community treatment settings and, generally, to “develop and provide sufficient community treatment settings to provide needed shelter and aftercare to the remainder of the plaintiff class”.

Defendants, without answering, moved to dismiss the complaint for lack of subject matter jurisdiction and for failure to state a cause of action. Special Term summarily granted the motion, ruling that the matter was nonjusticiable and referring to Supreme Court’s decision in Klostermann. The Appellate Division unanimously affirmed, citing its own decision in Klostermann. This court granted leave to appeal.

II

On this appeal, the court is asked to consider whether the complaints present claims that lie within the judiciary’s power to review, i.e., whether the controversy is a justiciable one. It is concluded that the courts below erred in holding that they could not properly consider the issues raised by plaintiffs. It should be emphasized that, in reaching this conclusion, this court does not express any opinion as to the merits of plaintiffs’ causes of action. Their ultimate success on the substantive questions must await further proceedings.

Plaintiffs seek two remedies — declaratory judgment and mandamus. Defendants contend that no relief can be afforded to plaintiffs because fashioning any judgment would necessarily involve the allocation of resources and entangle the courts in the decision-making function of the executive and legislative branches. In making their argument, defendants fail to distinguish between a court’s imposition of its own policy determination upon its governmental partners and its mere declaration and enforcement of the individual’s rights that have already been conferred by the other branches of government.

The difficulty in determining what is “justiciable” arises in part from the nebulous quality of that concept. It is a far-reaching term that incorporates, among other things, political questions and mootness (see Jones v Beame, 45 NY2d 402, 408). “Even within a particular category of justiciability, as with political questions, the line separating the justiciable from the nonjusticiable has been subtle, and with the passage of time, it might be said, has even moved (see, e.g., Baker v Carr, 369 US 186, 208-237)” (id.).

The paramount concern is that the judiciary not undertake tasks that the other branches are better suited to perform. Acquiring data and applying expert advice to formulate broad programs cannot be economically done by the courts. This restraint is particularly important when the creation of a program entails selecting among competing and equally meritorious approaches so as to allocate scarce resources. Generally, the manner by which the State addresses complex societal and governmental issues is a subject left to the discretion of the legislative and executive branches of our tripartite system (see Matter of Abrams v New York City Tr. Auth., 39 NY2d 990, 992).

This approach was exemplified in the companion cases of Jones v Beame and Bowen v State Bd. of Social Welfare (45 NY2d 402, supra). Bowen involved a challenge by the City of Long Beach to the State’s policy of deinstitutionalizing the care of the mentally ill, the same program that is now at issue in the present appeals. This court ruled that the matter was not one properly presentable in a judicial forum, in part because the plaintiffs there sought to litigate the wisdom of the State’s policy, which involved the conflicting views of experts as to what constituted the better course of treatment — institutions or private settings in the community (id., at pp 407-408). In rejecting the suits, the court was careful to note that it was refusing only to become ensnarled in an attempt to weigh and select policies, but not to review the implementation of those policies on a case-by-case basis: “In short, resolution of the ultimate issues rests on policy, and reference to violations of applicable statutes is irrelevant except in recognizedseparately litigable matters brought to enforce them” (id., at p 409 [emphasis added]).

The instant cases raise the precise situation that was contemplated in Bowen. Plaintiffs are individuals who claim that they hold certain rights under the pertinent statutes and are seeking to enforce those rights. In effect, they assert that the Legislature has mandated certain programs and that the executive branch has failed to deliver the services. The appropriate forum to determine the respective rights and obligations of the parties is in the judicial branch.

Defendants contend that the controversy is nonjusticiable because any adjudication in support of plaintiffs will necessarily require the expenditure of funds and a concomitant allocation of resources. Defendants have set forth in affidavits all of their efforts to care for the psychiatric patients released from State hospitals, and argue that there simply is not enough money to provide the services that plaintiffs assert are due them. Although defendants’ attempts are commendable, they are irrelevant. “[T]he ‘[c]ontinuing failure to provide suitable and adequate treatment cannot be justified by lack of staff or facilities’ ” (Matter of Kesselbrenner v Anonymous, 33 NY2d 161, 168; accord Matter of Lavette M., 35 NY2d 136, 142; Matter of Ellery C., 32 NY2d 588, 591-592). This defense is particularly unconvincing when uttered in response to a claim that existing conditions violate an individual’s constitutional rights (see Frug, Judicial Power of the Purse, 126 U of Pa L Rev 715, 725, and n 71).

In sum, there is nothing inherent in plaintiffs’ attempts to seek a declaration and enforcement of their rights that renders the controversy nonjusticiable. They do not wish to controvert the wisdom of any program. Instead, they ask only that the program be effected in the manner that it was legislated.

Ill

As noted, plaintiffs have sought declaratory judgment and mandamus. Defendants contend that, even if the controversy is justiciable, these remedies are not available. The crux of defendants’ argument is that the courts cannot draft any coercive order or judgment to enforce plaintiffs’ rights, if any, so that mandamus is inappropriate and declaratory relief is meaningless because it could never be followed by an executory decree. This misapprehends the scope of mandamus and the nature of declaratory judgments.

Mandamus, of course, is an extraordinary remedy that, by definition, is available only in limited circumstances. Declaratory relief, on the other hand, “‘is a remedy sui generis and escapes both the substantive objections and procedural limitations of special writs and extraordinary remedies’ (Borchard, Declaratory Judgments, 1939, 9 Bklyn L Rev, at p 14)” (Matter of Morgenthau v Erlbaum, 59 NY2d 143, 147, cert den _ US _, 104 S Ct 486).

One aspect of the distinctive nature of an action for declaratory judgment is that not only is the ultimate decree noncoercive, but the rights declared need not be amenable to enforcement by an executory decree in a subsequent action. The belief that an executory order is required arises from the misconception that the judicial power is necessarily a coercive one. “The coercion or compulsion exerted by a judgment, while essential to its effectiveness, is not due to a coercive order to act or refrain, but to the very existence of the judgment, as a determination of legal rights. Many judgments are incapable of, and do not require, physical execution. They irrevocably, however, fix a legal relation or status placed in issue, and that is all that the judgment is expected to do. It is this determination which makes it res judicata” (Borchard, Declaratory Judgments [2d ed], p 12).

“While ordinarily a case or judicial controversy results in a judgment requiring award of process of execution to carry it into effect, such relief is not an indispensable adjunct to the exercise of the judicial function” (Fidelity Nat. Bank v Swope, 274 US 123,132). “[I]t is not necessary, in order to constitute a judicial judgment that there should be both a determination of the rights of the litigants and also power to issue formal execution to carry the judgment into effect, in the way that judgments for money or for the possession of land usually are enforced. A judgment is sometimes regarded as properly enforceable through the executive departments instead of through an award of execution by this Court, where the effect of the judgment is to establish the duty of the department to enforce it” (Old Colony Trust Co. v Commissioner of Internal Revenue, 279 US 716, 725).

The primary purpose of declaratory judgments is to adjudicate the parties’ rights before a “wrong” actually occurs in the hope that later litigation will be unnecessary (see Matter of Morgenthau v Erlbaum, 59 NY2d 143, 148, supra, and authorities cited there). The action, therefore, contemplates that the parties will voluntarily comply with the court’s order. It is anomalous to contend that such an action should not be permitted because it may be necessary at some future date to coerce one party who has refused to act in accordance with the judicial determination. Indeed, defendants’ argument in this regard is especially offensive in its implication that they will deem themselves free to disregard their judicially declared obligations should a court rule in favor of plaintiffs.

Thus, the ultimate availability of a coercive order to enforce adjudicated rights is not a prerequisite to a court’s entertaining an action for declaratory judgment. In any event, this objection is without merit because, in the present cases, if plaintiffs’ claims are borne out, a coercive order may be drafted by the courts.

Traditionally, “[m]andamus lies to compel the performance of a purely ministerial act where there is a clear legal right to the relief sought” (Matter of Legal Aid Soc. v Scheinman, 53 NY2d 12, 16). The long-established law is that “ 6[w]hile a mandamus is an appropriate remedy to enforce the performance of a ministerial duty, it is well settled that it will not be awarded to compel an act in respect to which the officer may exercise judgment or discretion’ ” (Matter of Gimprich v Board of Educ., 306 NY 401, 406, quoting People ex rel. Hammond v Leonard, 74 NY 443, 445; but cf. Scheinman, supra, at p 16, n 1).

Defendants argue that preparing written service plans and creating follow-up programs are activities replete with decisions involving the exercise of judgment or discretion. This is inarguably true. What must be distinguished, however, are those acts the exercise of which is discretionary from those acts which are mandatory but are executed through means that are discretionary. For example, the decision to prosecute a suit is a matter left to the public officer’s judgment and, therefore, cannot be compelled (see People ex rel. Hammond v Leonard, 74 NY 443, supra). In contrast, when a town council is directed by statute to designate up to four newspapers having the largest circulation for the purpose of receiving city advertising, the court can compel the council to execute its statutory duty, but it may not direct the particular papers to be named (see People ex rel. Francis v Common Council, 78 NY 33).

What has been somewhat lost from view is this function of mandamus to compel acts that officials are duty-bound to perform, regardless of whether they may exercise their discretion in doing so. “[T]he writ of mandamus * * * may also be addressed to subordinate judicial tribunals, to compel them to exercise their functions, but never to require them to decide in a particular manner * * * This principle applies to every case where the duty, performance of which is sought to be compelled, is in its nature judicial, or involves the exercise of judicial power or discretion, irrespective of the general character of the officer or body to which the writ is addressed. A subordinate body can be directed to act, but not how to act, in a manner as to which it has the right to exercise its judgment. The character of the duty, and not that of the body or officer, determines how far performance of the duty may be enforced by mandamus. Where a subordinate body is vested with power to determine a question of fact, the duty is judicial, and though it can be compelled by mandamus to determine the fact, it cannot be directed to decide in a particular way, however clearly it be made to appear what the decision ought to be.” (People ex rel. Francis v Common Council, supra, at p 39 [emphasis added].)

“The general principle [is] that mandamus will lie against an administrative officer only to compel him to perform a legal duty, and not to direct how he shall perform that duty” (People ex rel. Schau v McWilliams, 185 NY 92, 100). This rule was recently given effect in Matter of Gonkjur Assoc. v Abrams (57 NY2d 853, affg on opn below 82 AD2d 683, 688), when this court held that the Attorney-General could be directed to issue a letter stating that a co-operative apartment prospectus had been filed or was deficient, although the order could not direct the Attorney-General to approve the plan (accord Matter of Utica Cheese v Barber, 49 NY2d 1028 [Commissioner of Agriculture directed to hold hearing and render determination on milk dealer’s license application within 90 days]; Matter of Stuart & Stuart v State Liq. Auth., 29 AD2d 176 [agency can be compelled to decide license applications but not to grant the licenses]; see Matter of Thomas v Wells, 288 NY 155,157; Southern Leasing Co. v Ludwig, 217 NY 100, 105).

In conclusion, plaintiffs have properly petitioned the courts for a declaration of their rights, whether derived from the Federal or State Constitutions, statutes, or regulations. Moreover, to the extent that plaintiffs can establish that defendants are not satisfying nondiscretionary obligations to perform certain functions, they are entitled to orders directing defendants to discharge those duties. The activity that the courts must be careful to avoid is the fashioning of orders or judgments that go beyond any mandatory directives of existing statutes and regulations and intrude upon the policy-making and discretionary decisions that are reserved to the legislative and executive branches.

IV

Accordingly, in each case, the order of the Appellate Division should be reversed, with costs, and defendants’ motion to dismiss the complaint should be denied.

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

In each case: Order reversed, etc.

      . Subdivisions (f) through (h) of section 29.15 of the Mental Hygiene Law provide:
      “(f) The discharge or conditional release of all clients at developmental centers, patients at psychiatric centers or patients at psychiatric inpatient services subject to licensure by the office of mental health shall be in accordance with a written service plan prepared by staff familiar with the case history of the client or patient to be discharged or conditionally released and in cooperation with appropriate social services officials and directors of local governmental units. In causing such plan to be prepared, the director of the facility shall take steps to assure that the patient to be discharged or conditionally released is interviewed, provided an opportunity to actively participate in the development of such plan and advised of whatever services might be available to him through the mental health information service.
      “(g) A written service plan prepared pursuant to this section shall include, but shall not be limited to, the following:
      “1. a statement of the patient’s need, if any, for supervision, medication, aftercare services, and assistance in finding employment following discharge or conditional release, and
      “2. a specific recommendation of the type of residence in which the patient is to live and a listing of the services available to the patient in such residence.
      “3. A listing of organizations, facilities, including those of the department, and individuals who are available to provide services in accordance with the identified needs of the patient.

        “4. The notification of the appropriate school district and the committee on the handicapped regarding the proposed discharge or release of a patient under twenty-one years of age, consistent with all applicable federal and state laws relating to confidentiality of such information.
      “(h) It shall also be the responsibility of the director of any department facility from which a client or patient has been discharged or conditionally released, in collaboration, when appropriate, with appropriate social services officials and directors of local governmental units, to prepare, to cause to be implemented, and to monitor a comprehensive program designed:
      “1. to determine whether the residence in which such client or patient is living, is adequate and appropriate for the needs of such patient or client;
      “2. to verify that such patient or client is receiving the services specified in such patient’s or client’s written service plan; and
      “3. to recommend, and to take steps to assure the provision of, any additional services.”

      . Plaintiffs are also attempting to pursue their claims as class actions. This, conceivably, may create a situation similar to that in Bowen, requiring the court to consider broad policy matters rather than their application to individuals. Whether this difficulty will arise cannot now be determined as no class has been described and certified. Accordingly, this court expresses no opinion on the suitability of the present litigation to be pursued as a class action.
      Similarly, inasmuch as none of the lower courts ruled on defendants’ motions insofar as they seek dismissals on other grounds, this court does not express any opinion on those issues.

      . This court has recently reviewed the distinction between extraordinary writs and declaratory judgments in the context of requesting prohibition to review an interlocutory order in a criminal trial (Matter of Morgenthau v Erlbaum, 59 NY2d 143,147-149). Suffice it here to say that the discussion in Erlbaum is equally applicable to the present case.


text:
    In the Matter of Pan American World Airways, Inc., et al., Appellants, v New York State Human Rights Appeal Board, Respondent.
    Argued February 20, 1984;
    decided March 27, 1984

      POINTS OF COUNSEL

      James S. Frank and Michael R. Zeller for appellants.
    I. The Appeal Board was without jurisdiction to overturn the commissioner’s order of dismissal for reasons of administrative convenience. (Eastern Airlines v State Human Rights Appeal Bd., 66 AD2d 581; United Airlines v McMann, 434 US 192; Logan v Zimmerman Brush Co., 455 US 422.) II. The Commissioner of Human Rights’ consideration of the Secretary of Labor’s disposition of the Federal lawsuit is in keeping with the statutory framework and principles of comity. III. Assuming, arguendo, that the commissioner’s dismissal order was subject to review, the order was not arbitrary, capricious or an abuse of discretion and should, therefore, be sustained. (Goldsmith v New York Psychoanalytic Inst., 73 AD2d 16; State Div. of Human Rights v University of Rochester, 72 AD2d 941; State Div. of Human Rights v Greif Bros. Corp., 71 AD2d 832; State Div. of Human Rights v Columbia Univ., 39 NY2d 612, cert den sub nom. Gilinsky v Columbia Univ., 429 US 1096, 43 NY2d 715; Matter of CBS, Inc. v State Human Rights Appeal Bd., 76 AD2d 813, 54 NY2d 921; Merrill Lynch, Pierce, Fenner & Smith v State Div. of Human Rights, 48 AD2d 391; Putnam Community Hosp. v New York State Human Rights Appeal Bd., 63 AD2d 1017; State Off. of Drug Abuse Servs. v State Human Rights Appeal Bd,., 48 NY2d 276; State Div. of Human Rights v Kendall Corp., 53 AD2d 201; State Div. of Human Rights v Genesee Hosp., 50 NY2d 113.)

      Robert Abrams, Attorney-General (Lawrence S. Kahn, Peter H. Schiff and Rosemarie Rhodes of counsel), for respondent.
    I. The Appeal Board had jurisdiction to review the Division’s order dismissing the complaints on the ground of administrative convenience. (State Off. of Drug Abuse Servs. v State Human Rights Appeal Bd., 48 NY2d 276; Matter of New York State Div. for Youth v State

      Human Rights Appeal Bd., 83 AD2d 972; State Div. of Human Rights v Jarl Extrusions, 69 AD2d 1016; State Div. of Human Rights v Binghamton Press Co., 67 AD2d 231; New York Inst. of Technology v State Div. of Human Rights, 40 NY2d 316; Matter of Baer v Nyquist, 34 NY2d 291; Johnson v Robison, 415 US 361; WWHT, Inc. v F. C. C., 656 F2d 807; United States v Aquavella, 615 F2d 12; Staten Is. Edison Corp. v Maltbie, 296 NY 374.) II. The Division’s dismissal violated complainants’ right to an evidentiary hearing under the due process clause and Human Rights Law. (Dunlop v Pan Amer. World Airways, 672 F2d 1044; Pandis v Sikorsky Aircraft, 431 F Supp 793; Eastern Airlines v State Human Rights Appeal Bd., 66 AD2d 581; Goldberg v Kelly, 397 US 254; Donovan v University of Tex., 643 F2d 1201; Parklane Hosiery Co. v Shore, 439 US 322; Hansberry v Lee, 311 US 32; Gramatan Home Investors Corp. v Lopez, 46 NY2d 481; Matter of Sarkisian Bros. v State Div. of Human Rights, 48 NY2d 816; Union School Dist. v New York State Human Rights Appeal Bd., 35 NY2d 371.)
   OPINION OF THE COURT

Chief Judge Cooke.

Section 297 (subd 3, par c) of the Executive Law, provides that the State Division of Human Rights (Division) may dismiss a complaint for administrative convenience in its “unreviewable discretion.” This statute, however, does not serve to entirely divest respondent State Human Rights Appeal Board (Appeal Board) of jurisdiction to review such a decision. Rather, the Appeal Board is empowered to review the dismissal to determine whether it contravenes any statute, constitutional right or the Division’s own regulations and is, therefore “purely arbitrary.” In the instant matter, the Division’s decision was not purely arbitrary and thus, respondent exceeded its powers by reinstating the complaints.

Six of petitioner’s employees were discharged in March 1974. Five months later, they filed complaints with the Division, alleging that they were discharged because of their age, in violation of section 296 of the Executive Law. On May 30, 1975, the United States Secretary of Labor (Secretary) commenced a Federal action under the Age Discrimination in Employment Act of 1967 (ADEA) (US Code, tit 29, § 621 et seq.), alleging that petitioner had discriminated on the basis of age against employees between the ages of 40 and 65 who were terminated between July 1, 1970 and May 30,1975. This group included all six individuals who had filed complaints with the Division.

Petitioner moved to dismiss the State complaints on the ground that the State proceedings before the Division were “superseded” by the Federal action (US Code, tit 29, § 633, subd [a]). On August 25, 1975, the Division granted the motion to the extent of staying its own proceedings during the pendency of the Federal action. In August 1978, the Federal action was dismissed pursuant to a stipulation which provided that petitioner would pay the Secretary $900,000 to be distributed among the affected employees. The settlement, however, expressly provided that petitioner was not admitting any liability. The Secretary made an administrative determination, which the State complainants had no opportunity to contest, that only those workers born prior to 1914 were discriminated against on the basis of age. Accordingly, only one of the six State complainants received any proceeds from the $900,000 settlement.

In February 1979, the Division vacated its stay. However, in May 1980, on petitioner’s motion for reconsideration of said vacatur and for dismissal of the agency proceedings, the Division dismissed the complaints on the ground of administrative convenience (see Executive Law, § 297, subd 3, par c; 9 NYCRR 465.5 [d]). In taking this action, the Division noted the onerous burden on each side of resuming a prolonged hearing with voluminous records, after witnesses had dispersed and memories had likely faded. The Division credited the administrative determination by the Secretary and determined that the substantial interests of the complainants and New York State had been adequately served by the disposition of the Federal action.

An administrative appeal was taken. Respondent Appeal Board reversed the Division’s order and remanded the proceeding for a public hearing on the ground that the dismissal denied complainants due process by preventing them from pursuing “state remedies under the Human Rights Law.” Respondent found that the Division erred in dismissing the complaints because the complainants were not bound by disposition of the Federal action. The Appellate Division confirmed the order of the Appeal Board, without opinion.

On this appeal, petitioner contends that respondent was without jurisdiction to review an order of the Division which dismissed a complaint for administrative convenience because, under the Human Rights Law and the Division’s rules, a dismissal on this ground is an act of “unreviewable discretion” (see Executive Law, § 297, subd 3, par c; 9 NYCRR 465.5 [d] [1]). Respondent maintains that the statute authorizing the Division to make nonreviewable determinations does not deprive the Appeal Board of jurisdiction to determine whether the Division’s decision violated a party’s constitutional rights, was in excess of statutory authority, or was based upon an erroneous view of applicable law. This court now reverses.

Although, on its face, section 297 (subd 3, par c) of the Executive Law divests respondent of jurisdiction to review a dismissal for administrative convenience, analysis of the over-all statutory scheme indicates that a limited power of review is available. Under the Human Rights Law, respondent is authorized to hear appeals by any party “from all orders of the [Division]” (Executive Law, § 297-a, subd 6, par c), and to reverse, remand or affirm “any order” of the Division, within the confines of the limited scope of its review powers (see Executive Law, § 297-a, subd 7, pars a-e). However, respondent’s rules exclude from its review of all “orders of the commissioner”, those orders for dismissal on the ground of administrative convenience (see 9 NYCRR 550.3 [i]).

Despite this disavowal in its rules, respondent has the limited power to review such a dismissal to determine if it is purely arbitrary (cf. Matter of Baer v Nyquist, 34 NY2d 291, 298). A dismissal is purely arbitrary if it contravenes statutes, constitutional provisions, or countenances their contravention (id.; see Johnson v Robison, 415 US 361, 366-374), or violates the agency’s own regulations (see Matter of Rankin v Lavine, 41 NY2d 911, 912; Matter of Reyes v Dumpson, 40 NY2d 725, 729). As this court held in Matter of Baer v Nyquist (34 NY2d 291, supra), when construing a tenure statute that purportedly made the Commissioner of Education’s decisions, “ ‘final and conclusive, and not subject to * * * review in any place or court’ ”, if such statutes are interpreted to preclude any review whatsoever, “they are grants of power, almost arbitrary and unlimited”, which the law does not permit (id., at p 298). Some standards to guide such broad discretion are necessary if the statute is to be valid (see id.). Respondent, however, may not substitute its own judgment for that of the Division (see State Off. of Drug Abuse Servs. v State Human Rights Appeal Bd., 48 NY2d 276, 283-284; State Div. of Human Rights v Columbia Univ., 39 NY2d 612, 616, cert den sub nom. Gilinsky v Columbia Univ., 429 US 1096; Matter of CBS, Inc. v State Human Rights Appeal Bd., 76 AD2d 813, 814, affd 54 NY2d 921).

In this case, the propriety of the Division’s decision under its regulations or any statute has not been challenged. Moreover, complainants’ rights to due process were not violated by the Division’s dismissal of their claims prior to a full evidentiary hearing on the merits. The Human Rights Law provision that bases employer liability upon a finding of discrimination creates a constitutionally protected property interest (see Logan v Zimmerman Brush Co., 455 US 422, 428-433). Consequently, a claim under this statute may not be finally dismissed consistent with due process unless an opportunity is granted for a hearing appropriate to the nature of the case (id., at p 437).

Here, the Division’s dismissal for administrative convenience did not finally deprive complainants of their interests under the Human Rights Law. Generally, the remedies of administrative review through the Human Rights Division or judicial review are mutually exclusive (see Executive Law, § 297, subd 9; see, also, Emil v Dewey, 49 NY2d 968, 969). An exception is provided when a complaint is dismissed for administrative convenience: a suit may be brought as if a complaint had never been filed (Executive Law, § 297, subd 9; see Low v Gibbs & Hill, 92 AD2d 467, 468). Thus, complainants here could maintain the same type of action under the Human Rights Law in State court and receive a hearing on the merits in satisfaction of due process (see Logan v Zimmerman Brush Co., 455 US 422, 437, supra).

Respondent maintains that the dismissal was nevertheless final because, due to a stay of the agency proceedings, the Statute of Limitations for any State court action had expired prior to the dismissal. Respondent argues that complainants’ inability to obtain a hearing on the merits, through no fault of their own, violates due process. This is unpersuasive. After the dismissals, complainants could have filed suit in State court by availing themselves of the tolling provision for the Statute of Limitations under CPLR 204. Subdivision 9 of section 297 of the Executive Law provides a stay by prohibiting the commencement of suit when a complaint has been filed with the Division. Thus, upon the filing of such a complaint and during its pendency, the Statute of Limitations is tolled until the administrative proceeding is terminated (cf. Serravillo v New York City Tr. Auth., 51 AD2d 1027, affd 42 NY2d 918; Ellis Hosp. v Symonds, 96 Misc 2d 643).

Inasmuch as the dismissal was not purely arbitrary, the respondent’s reversal of the dismissal exceeded the scope of its review powers by substituting its judgment for that of the Division (see State Div. of Human Rights v Columbia Univ., 39 NY2d 612, 616, supra.).

Accordingly, the order of the Appellate Division should be reversed, with costs, and the order of the State Division of Human Rights dismissing the consolidated complaints reinstated.

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

Order reversed, etc.

       In Logan, the automatic dismissal of a complaint based upon the failure of the Illinois Human Rights Commission to schedule a fact-finding hearing within 120 days of the filing of the complaint, was found to violate due process because the dismissal finally deprived Logan of his property interest without affording him an opportunity to present his case (Logan v Zimmerman Brush Co., 455 US 422, 433-434). While Logan could have sought relief in State court by an independent tort action, that could not have provided him with the same remedies (id., at pp 436-437), nor could he obtain judicial review of the commissioner’s action {id.).


text:
    The People of the State of New York, Respondent, v Anthony King, Appellant.
    Argued February 15, 1984;
    decided March 29, 1984

      POINTS OF COUNSEL

      Susan Hofkin Salomon and William E. Hellerstein for appellant.
    I. The People’s proof was insufficient to establish appellant’s guilt of attempted burglary or attempted trespass; alternatively the proof established, at most, his guilt of attempted trespass. (People v Cruz, 48 NY2d 419; People v Tragni, 113 Misc 2d 852; People v Dlugash, 41 NY2d 725; People v Di Stephano, 38 NY2d 640; People v Rizzo, 246 NY 334; People v Moran, 123 NY 254; People v Sullivan, 173 NY 122; People v Wachowicz, 22 NY2d 369; People v Leichtweis, 59 AD2d 383; People v Cleague, 22 NY2d 363.) II. Appellant was denied due process by the prosecutor’s summation, which repeatedly insinuated that defense counsel believed his client guilty and was, therefore, playing games with the jury. (People v Tassiello, 300 NY 425; People v Steinhardt, 9 NY2d 267; Donnelly v DeChristoforo, 416 US 637; People v Robinson, 83 AD2d 887; People v Bussey, 62 AD2d 200; People v Galloway, 54 NY2d 396; People v Bailey, 58 NY2d 272; People v Trinidad, 59 NY2d 820; People v Ashwal, 39 NY2d 105; People v Crimmins, 36 NY2d 230.)

      Robert M. Morgenthau, District Attorney (Clara S. Licata and Amyjane Rettew of counsel), for respondent.
    I. The evidence was sufficient to establish defendant’s guilt of attempted burglary. (People v Tragni, 113 Misc 2d 852; People v Henderson, 41 NY2d 233; People v Broach, 72 AD2d 748; People v Brown, 48 NY2d 388; People v Harris, 84 AD2d 63, 57 NY2d 335; People v Moran, 123 NY 254; People v Gilligan, 42 NY2d 969; People v Kacer, 113 Misc 2d 338; McGary v People, 45 NY 153; People v O’Keefe, 80 AD2d 923.) II. The prosecutor’s summation was fair and did not deprive defendant of a fair trial. (People v Ashwal, 39 NY2d 105; People v Galloway, 54 NY2d 396; People v Marks, 6 NY2d 67; People v Robinson, 83 AD2d 887; People v Jones, 89 AD2d 875; People v Brosnan, 32 NY2d 254; People v Crimmins, 36 NY2d 230.)
   OPINION OF THE COURT

Chief Judge Cooke.

That element of a crime of burglary which requires that a person “enter * * * in a building” is met when the person or any part of his body intrudes within the building. Additionally, the recessed entry area of a store abutting the sidewalk, enclosed by display windows, a door, a roof and a security gate at the sidewalk line may be deemed part of a “building” under the Penal Law. Thus, evidence that defendant was found crouched beside a one-foot-square hole which had been cut in a metal gate extending across the front of a jewelry store, and pulling and pushing on the gate, is sufficient to establish attempted entry into a building for purposes of a conviction for attempted burglary in the third degree.

Two plain-clothes police officers sitting in an unmarked car observed defendant in front of a jewelry store on Fifth Avenue in New York City at approximately 4:30 a.m. on a Sunday. The store, which was well lit by street lamps and the lights in its display windows and vestibule, was guarded by a metal gate that covered the entire storefront where it abutted the sidewalk and prevented access to the front door and the display cases. The officers saw defendant crouched and making pulling and pushing motions on the gate while holding an unidentified object in his right hand. When defendant looked in the officers’ direction, he switched the object to his left hand and began running north on Fifth Avenue. The police gave chase and, after losing sight of defendant for a moment, apprehended him beside a construction site and handcuffed him. The officers did not see defendant dispose of any object during the chase. Upon returning to the jewelry store, the officers noticed that several metal bars from the gate were strewn inside the vestibule, leaving a hole approximately one-foot square. A search of defendant yielded a claw hammer inside a paper bag in defendant’s left coat pocket. The evidence at trial established that the metal bars had been detached by means of a cutting instrument, such as bolt cutters; however, a search of the entire area did not produce any such tool.

Similar to many storefronts, the doorway to the jewelry store is recessed about 15 feet from the sidewalk in a vestibule with a roof formed by the second floor of the building, and lined on both sides by glass display windows that extend out to and face the sidewalk. After business hours, the entrance to the vestibule is closed to pedestrians by the metal gate described above, which is designed to deter would be intruders while permitting passers-by to view the displays. The gate had been cut to the left of the center, about two feet distant from one of the display windows.

A jury convicted defendant of attempted burglary in the third degree and possession of burglar’s tools. The Appellate Division affirmed the judgment, without opinion.

Defendant makes two arguments that are founded on the factual predicate that he did not possess a tool for cutting the gate’s metal bars and widening the hole. Defendant urges that his conviction should be reversed because it was factually impossible for him to have introduced his entire body into the building area, which, he argues, is legally required for a burglary conviction. Thus, he contends that he could not have completed the crime of burglary. Alternatively, defendant asserts that the evidence was insufficient to establish attempted burglary because the vestibule is not a “building” within the meaning of the Penal Law, and he only hid the means to put his arm through the gate into the vestibule. Neither argument is persuasive. This court now affirms.

In order to commit “burglary in the third degree,” a person must “knowingly enter[ ] or remain[ ] unlawfully in a building with intent to commit a crime therein” (Penal Law, § 140.20). Although the Penal Law defines “enter or remain unlawfully” (see Penal Law, § 140.00, subd 5), it does not provide any insight into whether entry by the entire body is required.

At common law, “entry” for purposes of burglary was accomplished by insertion of any part of the body into the premises for the purpose of committing a felony (see People v Tragni, 113 Misc 2d 852, 856; Commonwealth v Lewis, 346 Mass 373, cert den 376 US 933; State v Pigques, 310 SW2d 942, 945 [Mo]; 3 Wharton’s Criminal Law [Torcia14th ed], § 332). Under the former Penal Law, the term “enter” was essentially a codification of the common-law definition (see Penal Law of 1909, § 400, subd 4). When the Legislature enacted the present statute, this definition was deleted. This does not mean, however, that the current amendment was meant to alter the entry element of burglary by requiring that the intruder must introduce his or her entire body inside the premises (see Hechtman, Practice Commentaries, McKinney’s Cons Law of NY, Book 39, Penal Law, art 140, p 15). The statute now focuses on the unlawful aspect of the entry, rather than on the entry itself: “A person ‘enters or remains unlawfully’ in or upon premises when he is not licensed or privileged to do so” (Penal Law, § 140.00, subd 5; see People v Tragni, 113 Misc 2d 852, 854, supra). In effect, the drafters eliminated any definition of “entry”, without any indication of intention to narrow its meaning.

The presumption is that no change from the rule of common law is intended, “unless the enactment is clear and explicit in that direction” (see People v Phyfe, 136 NY 554, 558). In the absence of such intent to change the common-law definition, there should not be a radical departure from the established definition. Indeed, if a statute uses a word which has a definite and well-known meaning at common law, it will be construed with the aid of common-law definitions, unless it clearly appeárs that it was not so intended (see Adamson v City of New York, 188 NY 255, 258). Further, if the terms of a statute are subject to two interpretations, that which most comports with the common law should be adopted (see People v Phyfe, 136 NY 554, 558-559, supra). Therefore, as there is no contrary indication from the Legislature, the entry requirement under the current Penal Law is met, at least when a person intrudes within a building, no matter how slightly, with any part of his or her body (see People v Tragni, 113 Misc 2d 852, 856, supra; State v Pigques, 310 SW2d 942, 945 [Mo], supra).

Defendant, here, was found in a position where he could have reached into the vestibule and stolen goods from a display window after smashing it with the hammer found in his pocket. That it may have been physically impossible for him to pass his body completely through the hole does not preclude a determination that a successful burglary was within his capability and thus, that a conviction for attempted burglary was warranted.

Defendant’s second contention that the vestibule is not a “building” within the meaning of the Penal Law is also without merit. The statute provides that, “in addition to its ordinary meaning, [a ‘building’] includes any structure * * * used for overnight lodging of persons, or used by persons for carrying on business therein * * *. Where a building consists of two or more units separately secured or occupied, each unit shall be deemed both a separate building in itself and a part of the main building” (Penal Law, § 140.00, subd 2). The existence of the security gate, which can be pulled down to completely enclose the vestibule from public access, albeit with a temporary fourth wall, makes the vestibule functionally indistinguishable from the space inside the display cases or the rest of the store. Consequently, this area is included within the statutory definition of a building (cf. McGary v People, 45 NY 153, 160-161; People v O’Keefe, 80 AD2d 923, 924).

Defendant’s other arguments have been considered and found to be without merit.

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

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

Order affirmed.


text:
    In the Matter of The Washington Post Company, Appellant, v New York State Insurance Department et al., Respondents, and Metropolitan Life Insurance Company et al., Intervenors-Respondents.
    Argued February 14, 1984;
    decided March 29, 1984

      POINTS OF COUNSEL

      Janet E. Milne, of the Maine and District of Columbia Bars, admitted pro hac vice, for appellant.
    I. The requested documents fall within the definition of “records” in the Freedom of Information Law. (Roth v Michelson, 55 NY2d 278; Patrolmen's Benevolent Assn. v City of New York, 41 NY2d 205; Matter of Erie County Agric. Soc. v Cluchey, 40 NY2d 194.) II. Treatment of the documents as “records” promotes the policy behind the Freedom of Information Law. (Matter of Westchester Rockland Newspapers v Kimball, 50 NY2d 575.) III. The content of the documents is not relevant to whether they are “records.” (Matter of Fink v Lefkowitz, 47 NY2d 567; Matter of Polansky v Regan, 81 AD2d 102.) IV. The circumstances surrounding the Department’s possession of the documents do not prevent them from being records. (Matter of Erie County Agric. Soc. v Cluchey, 40 NY2d 194; Matter of John P. v Whalen, 54 NY2d 89; Matter of Lawler, Matusky & Skelly Engrs. v Abrams, 111 Misc 2d 356; Matter of Belth v Insurance Dept., 95 Misc 2d 18; Church of Scientology v State of New York, 61 AD2d 942, 46 NY2d 906; Nassau-Suffolk Hosp. Council v Whalen, 89 Misc 2d 304.) V. Special Term’s decision should be reinstated and the case remanded for implementation of that decision. (Durham Inds. v Tomy Corp., 630 F2d 905; Scaggs Music v KND Corp., 491 F Supp 908; Matter of Fink v Lefkowitz, 47 NY2d 567; Church of Scientology v State of New York, 46 NY2d 906; Matter of Westchester Rockland Newspapers v Kimball, 50 NY2d 575; Matter of Polansky v Regan, 81 AD2d 102; Glantz v Scoppetta, 66 AD2d 716; Matter of Belth v Insurance Dept., 95 Misc 2d 18.)

      Robert Abrams, Attorney-General {Paul M. Glickman, Peter H. Schiff and Martin Minkowitz of counsel), for New York State Insurance Department and another, respondents.
    The order of the court below should be affirmed since requiring the Insurance Department to sift through the thousands of documents submitted by the life insurance companies to determine which of the documents were subject to exemptions would be extremely burdensome, time consuming and not intended by the Freedom of Information Law.

      John R. O’Hanlon, Robert A. Kirtland and John L. Ryan for New York Life Insurance Company, intervenor-respondent.
    I. New York Life’s minutes are not agency records subject to disclosure under the Freedom of Information Law. (Kissinger v Reporters Committee, 445 US 136; Wolfe v Department of Health & Human Serus., 539 F Supp 276, 711 F2d 1077.) II. The minutes are specifically exempted by the Insurance Law. (Matter of John P. v Whalen, 54 NY2d 89; Matter of Crane Co. v Anaconda Co., 39 NY2d 14; People ex rel. Venner v New York Life Ins. Co., 111 App Div 183.).

      William J. Toppeta and John L. Viola for Metropolitan Life Insurance Company, intervenor-respondent.
    I. Meeting minutes of private corporate boards of directors are not agency records publicly disclosable under the Freedom of Information Law. (Forsham v Harris, 445 US 169; Matter of Cohen v Cocoline Prods., 309 NY 119; Matter of Overland v Le Roy Foods, 304 NY 573; Matter of Hafter v Eagle Fish Co., 296 NY 808; Matter of Crane Co. v Anaconda Co., 39 NY2d 14; Matter of Steinway, 159 NY 250; Matter of Tate v Sonotone Corp., 272 App Div 103; Matter of Schulman v Dejonge & Co., 270 App Div 147.) II. Meeting minutes of private corporate boards of directors are exempt from public disclosure by State law. (Matter of John P. v Whalen, 54 NY2d 89; Matter of Gannett Co. v James, 86 AD2d 744; Matter of Jordan v Hammock, 86 AD2d 725; Matter of Herald Co. v School Dist. of City of Syracuse, 104 Misc 2d 1041; Doe v Greco, 62 AD2d 498; Matter of Cohen v Cocoline Prods., 309 NY 119; Matter of Steinway, 159 NY 250; Matter of Getman v Mohawk Val. Nursing Home, 44 AD2d 392; Matter of Schulman v Dejonge & Co., 270 App Div 147; Matter of Brentmore Estates v Hotel Barbizon, 263 App Div 389.) III. Meeting minutes of private corporate boards of directors are exempt from public disclosure by Federal copyright law. (Runge v Lee, 441 F2d 579, 404 US 887; Doran v Sunset House Distr. Corp., 197 F Supp 940, 304 F2d 251; Toksvig v Bruce Pub., Co., 181 F2d 664; Quinto v Legal Times of Washington, 506 F Supp 554; Meredith Corp. v Harper & Row, 413 F Supp 385; Triangle Pub. v

      New England Newspaper Pub. Co., 46 F Supp 198; Holdredge v Knight Pub. Corp., 214 F Supp 921; Estate of Hemingway v Random House, 49 Misc 2d 726, 53 Misc 2d 462, 29 AD2d 633, 23 NY2d 341; Rosemont Enterprises v Random House, 366 F2d 303, 385 US 1009; Universal City Studios v Sony Corp., 659 F2d 963; Association of Amer. Med. Colls. v Carey, 482 F Supp 1358.)

      Werner Weinstock and Norman L. Tolle for The Equitable Life Assurance Society of the United States, intervenor-respondent.
    I. The minutes of Equitable’s board of directors and investment and finance committees are not the type of records to which the public should be provided access under the Freedom of Information Law. (Matter of Westchester Rockland Newspapers v Mosczydlowski, 58 AD2d 234.) II. The Department has expressly assured Equitable that its minutes would be treated as confidential, and the Department is bound by this assurance on which Equitable relied. (NLRB v Sears, Roebuck & Co., 421 US 132; Nassau-Suffolk Hosp. Council v Whalen, 89 Misc 2d 304; Matter of Baumgarten v Koch, 97 Misc 2d 449; Chrysler Corp. v Brown, 441 US 281; Sterling Drug v Federal Trade Comm., 450 F2d 698; Washington Post Co. v United States Dept. of Health & Human Servs., 690 F2d 252; RCA Global Communications v Federal Communications Comm., 524 F Supp 579.) III. Equitable’s minutes never passed from its control to become property subject to the free disposition of the Department. (Goland v Central Intelligence Agency, 607 F2d 339; Federal Trade Comm. v Owens-Coming Fiberglass Corp., 626 F2d 966; Ryan v Department of Justice, 617 F2d 781.) IV. The public interest requires that Equitable’s minutes be exempt from disclosure under the Freedom of Information Law. (Matter of Lambert v Barsky, 91 Misc 2d 443; Matter of Baumgarten v Koch, 97 Misc 2d 449; Cirale v 80 Pine St. Corp., 35 NY2d 113; Matter of Doolan v Board of Coop. Educational Servs., 48 NY2d 341; Wunsch v City of Rochester, 108 Misc 2d 854.) V. The Department’s determination is entitled to the same deference as that given the opinion of the Committee on Public Access to Records. (Matter of John P. v Whalen, 54 NY2d 89.) VI. The Committee on Public Access to Records had no authority to render its advisory opinion.
      (Matter of John P. v Whalen, 54 NY2d 89.) VII. The release of Equitable’s minutes would cause substantial competitive harm. (National Parks Conservation Assn. v Kleppe, 547 F2d 673; Comstock Int. v Export-Import Bank, 464 F Supp 804; Gulf & Western Inds. v United States, 615 F2d 527; Union Oil Co. v Federal Power Comm., 542 F2d 1036; Pennzoil Co. v Federal Power Comm., 534 F2d 627; Continental Oil Co. v Federal Power Comm., 519 F2d 31, cert den sub nom. Superior Oil Co. v Federal Power Comm., 425 US 971.) VIII. Equitable’s minutes are trade secrets in their entirety and should be accorded privacy: therefore, the minutes are exempt under the Freedom of Information Law. (Union Oil Co. v Federal Power Comm., 542 F2d 1036; Spiselman v Rabinowitz, 270 App Div 548; Rural Housing Alliance v United States Dept. of Agric., 498 F2d 73.)

      Cornish F. Hitchcock, John Cary Sims and Alan B. Morrison for Freedom of Information Clearing House, amicus curiae.

    The requested documents are “records” subject to the Freedom of Information Law. (Matter of Miracle Mile Assoc. v Yudelson, 68 AD2d 176, 48 NY2d 706; Matter of Fink v Lefkowitz, 47 NY2d 567; Matter of Szikszay v Buelow, 107 Misc 2d 886; American Broadcasting Cos. v Siebert, 110 Misc 2d 744; Consumer Prod. Safety Comm. v GTE Sylvania, 447 US 102; Steadman v Securities & Exch. Comm., 450 US 91; Reiter v Sonotone Corp., 442 US 330; Matter of Westchester Rockland Newspapers v Kimball, 50 NY2d 575; Matter of John P. v Whalen, 54 NY2d 89; Matter of Short v Board of Managers, 57 NY2d 399.)
   OPINION OF THE COURT

Chief Judge Cooke.

The minutes of insurance company meetings that are given by the companies to the New York State Insurance Department for its examination constitute “records” within the meaning of the New York Freedom of Information Law (FOIL). Consequently, they are subject to public review under FOIL unless it is established that the documents are, in whole or in part, subject to a statutory exemption.

Under New York’s regulatory system, the affairs of domestic insurance companies are subject to examination by the respondent State Insurance Department (see Insurance Law, art 3 et seq.). To facilitate this review, the insurance companies are required to maintain certain books and records, including minutes of the corporate board of directors’ meetings; to provide respondent with access to these documents at reasonable hours; and to cooperate with respondent in facilitating such examinations (see Insurance Law, §§ 26-a, 28, 29). A long-standing practice, formalized by the use of circular letters since 1927, developed among insurance companies for the voluntary sending of copies of their minutes to the respondent’s offices, rather than requiring the respondent’s examiners to travel to each insurance company for inspections. Respondent promised to keep such records confidential.

In 1980, a reporter from petitioner, The Washington Post, filed a formal request under FOIL with respondent for access to the minutes of the meetings of the Boards of Directors or Trustees and certain finance committees of Metropolitan Life Insurance Company, New York Life Insurance Company, and The Equitable Life Assurance Society of the United States for the years 1978 through 1980. After initially refusing the request, respondent indicated that the records would be disclosed, except for those portions that might be deemed exempt under section 87 (subd 2, par [d]) of the Public Officers Law by respondent and the insurance companies after they had an opportunity to review the documents. Subsequently, the Department again reversed itself, denying all access on the grounds that the minutes were not “records” within the purview of FOIL or, alternatively, that they were exempt from that law’s disclosure requirements. In addition, respondent asserted that its grant of confidentiality precluded disclosure and best protected the interests of policyholders.

The Committee on Public Access to Records concluded, in an advisory opinion sought by petitioner, that a blanket denial of access to the minutes was improper because they were “records” under FOIL which should be disclosed to the extent that respondent, after a complete review, did not establish grounds for exemption. When respondent continued to refuse access, petitioner instituted this article 78 proceeding to compel disclosure of the documents. The three affected insurance companies were granted leave to intervene.

Special Term granted the petition, holding that the corporate board meeting minutes were “records” regardless of whether the submission of the documents was voluntary. It provided for in camera inspection of those portions which the intervenors or respondent wished to claim were subject to an exemption from the disclosure requirement of FOIL. Before the inspection was held, an appeal was taken.

The Appellate Division reversed, holding that the documents were not “records” as defined in FOIL because they did not aid any governmental decision-making. Rather, they were the private property of the intervenors, voluntarily put in the respondent’s “custody” for convenience under a promise of confidentiality. This court now reverses.

The statutorily stated policy behind FOIL is to promote “[t]he people’s right to know the process of governmental decision-making and to review the documents and statistics leading to determinations’’ (Public Officers Law, § 84). Consistent with this policy, the Legislature restructured FOIL in 1977 (L 1977, ch 933, § 1) to make the vast majority of requested documents presumptively discoverable as “records” under the very broad definition contained therein: “any information kept, held, filed, produced or reproduced by, with or for any agency or the state legislature, in any physical form whatsoever including, but not limited to, reports, statements, examinations, memoranda, opinions, folders, files, books, manuals, pamphlets, forms, papers, designs, drawings, maps, photo, letters, microfilms, computer tapes or discs, rules, regulations or codes” (Public Officers Law, § 86, subd 4; see Matter of Westchester Rockland Newspapers v Kimball, 50 NY2d 575, 580). FOIL is generally liberally construed and its exemptions narrowly interpreted so that the public is granted maximum access to the records of government (see Matter of Fink v Lefkowitz, 47 NY2d 567, 571). The task before this court now is to determine whether the requested minutes are within the scope of FOIL, and if so, whether they are subject to an exemption under the statute.

The requested minutes are “records” under the plain language of FOIL because they are “information kept, held, filed, produced * * * by, with or for an agency.” When the plain language of the statute is precise and unambiguous, it is determinative (see Roth v Michelson, 55 NY2d 278, 283; Patrolmen’s Benevolent Assn. v City of New York, 41 NY2d 205, 208). Additionally, inclusion of the documents requested here furthers the policy behind FOIL. The minutes are reviewed by respondent as part of its statutory duty to supervise and regulate the insurance industry for the protection of the interests of the people of this State (see Insurance Law, §§ 26-a, 27, 28, 55 et seq:, 196 et seq.). Respondent’s determination as to whether statutory violations have occurred and should be remedied are affected by its inspection of the minutes (see, e.g., Insurance Law, § 56, subd 4; § 57, subd 1; § 67, subd 3). Thus, the documents are relevant to a governmental decision-making process. Moreover, “[t]he statutory definition of ‘record’ makes nothing turn on the purpose for which a document was produced or the function to which it relates” (Matter of Westchester Rockland Newspapers v Kimball, 50 NY2d 575, 581, supra). As the expanding boundaries of government become “increasingly difficult to draw * * * there is bound to be considerable crossover between governmental and nongovernmental activities” (id., at p 581).

Respondent’s long-standing promise of confidentiality to the intervenors is irrelevant to whether the requested documents fit within the Legislature’s definition of “records” under FOIL. The definition does not exclude or make any reference to information labeled as “confidential” by the agency; confidentiality is relevant only when determining whether the record or a portion of it is exempt (see Matter of John P. v Whalen, 54 NY2d 89, 96; Matter of Fink v Lefkowitz, 47 NY2d 567, 571-572, supra; Church of Scientology v State of New York, 61 AD2d 942, 942-943, affd 46 NY2d 906; Matter of Belth v Insurance Dept., 95 Misc 2d 18, 19-20). Nor is it relevant that the documents originated outside the government (see Matter of John P. v Whalen, supra, at pp 92-93 [patient’s medical records obtained during investigation of doctor were “records”, although exempt]). Such a factor is not mentioned or implied in the statutory definition of records or in the statement of purpose (see Public Officers Law, §§ 84, 86, subd 4).

Once determined to be “records”, the minutes must be disclosed under FOIL unless respondent or the intervenors meet their burden of demonstrating that they fit within one of the statutory exemptions (see Matter of Westchester Rockland Newspapers v Kimball, 50 NY2d 575, 580, supra; Matter of Fink v Lefkowitz, 47 NY2d 567, 571, supra; Public Officers Law, § 87, subd 2; § 89, subd 4, par [b]). It is argued that the records should be exempted in their entirety because they are “specifically exempted from disclosure by state * * * statute” (Public Officers Law, § 87, subd 2, par [a]) or, alternatively, because they contain “trade secrets or are maintained for the regulation of commercial enterprise which if disclosed would cause substantial injury to the competitive position of the subject enterprise” (Public Officers Law, § 87, subd 2, par [d]).

Nothing in FOIL itself expressly calls for exemption of the minutes. Intervenors’ argument that the Insurance Law is a State statute that specifically imposes confidentiality is unpersuasive. The Insurance Law requires the intervenors to maintain certain records, including the minutes requested here, and to provide reasonable access to them for examination by the respondent and its examiners (see Insurance Law, §§ 26-a, 29). However, the Insurance Law does not include any references to confidentiality or prohibit access by others to these minutes. Similarly, that an insurance company may review and comment on an examination report by respondent before its release to the public (see Insurance Law, § 30) does not, without more, render the minutes confidential (cf. Matter of John P. v Whalen, 54 NY2d 89, 97, supra [clear legislative intent to preserve confidentiality of patients’ medical records gathered in agency investigation]). While an express statement is not necessary to establish an exemption under a State statute, there is a requirement of a clear legislative intent to establish and preserve confidentiality (see id., at pp 96-98) which is not met under the Insurance Law. Lastly, the intervenors’ reliance on a limited confidentiality accorded by common law (see Matter of Cohen v Cocoline Prods., 309 NY 119; Matter of Steinway, 159 NY 250) is misplaced (see Matter of Doolan v Board of Coop. Educational Serus., 48 NY2d 341, 347). FOIL expressly refers to statutory exemptions so that a common-law privilege is inapposite.

Intervenors’ claim, that the minutes should be exempted in their entirety as information maintained for its commercial enterprise which would injure its competitive position if disclosed, is also unpersuasive (see Public Officers Law, § 87, subd 2, par [d]). Intervenors urge that sensitive information about a company’s policy, financial management, investment strategy, and problems will be revealed, and thus ruin its competitive edge and be detrimental to the interests of the policyholders. This claim is presented in the form of conclusory pleading allegations and affidavits to the effect that every page of the minutes contains such sensitive information, all this without the benefit of evidentiary support. Consequently, the burden of proving that the records should be exempted in their entirety has not been met (see Church of Scientology v State of New York, 46 NY2d 906, 908, supra). That some portions of the records may be entitled to exemption does not warrant withholding the minutes completely (see Matter of Fink v Lefkowitz, 47 NY2d 567, 571, supra). If intervenors can establish that indeed disclosure will substantially injure their competitive positions, they will be entitled to an exemption. Whether and what portions should be protected can be ascertained at the in camera inspection that was ordered by Special Term (see id., at p 571).

Finally, it is noted that just as promises of confidentiality by the Department do not affect the status of documents as records, neither do they affect the applicability of any exemption. As originally enacted, FOIL contained an exemption for records “confidentially disclosed to an agency and compiled and maintained for the regulation of commercial enterprise, including trade secrets” (L 1974, ch 578; Public Officers Law, former § 88, subd 6, par b). When the statute was amended this provision was deleted. Thus, respondent had no authority to use its label of confidentiality to prevent disclosure of the minutes (cf. Washington Post Co. v United States Dept. of Health & Human Serus., 690 F2d 252, 263 [“(T)o allow the government to make documents exempt by the simple means of promising confidentiality would subvert FOIA’s disclosure mandate”]).

The intervenors’ other arguments have been considered and found to be without merit.

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

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

Order reversed, etc.