author: Meyer, J. Chief Judge Cooke Gabrielli, J.

text:
    Regina Cooper et al., on Behalf of Themselves and All Others Similarly Situated, Appellants-Respondents, v Lucien A. Morin, Individually and in His Official Capacity as County Manager of the County of Monroe, et al., Respondents-Appellants.
    Argued October 11,1979;
    decided December 19, 1979

      POINTS OF COUNSEL

      David C. Leven and Ian C. De Waal for appellants-respondents.
    I. The due process clause requires that substantial restrictions and privations imposed upon pretrial detainees be justified by compelling necessity. (Anderson v Nosser, 438 F2d 183, 456 F2d 835, cert den sub nom. Nosser v Bradley, 409 US 848; Detainees of Brooklyn House of Detention for Men v Malcolm, 520 F2d 392; Tucker v Toia, 89 Misc 2d 116, 43 NY2d 1; Montgomery v Daniels, 38 NY2d 41; Shapiro v Thompson, 394 US 618.) II. Equal protection requires at a minimum that conditions of confinement for pretrial detainees be as humane as those afforded convicted felons in New York State. (Rhem v Malcolm, 371 F Supp 594, 507 F2d 333; Inmates of Suffolk County Jail v Eisenstadt, 360 F Supp 676, 494 F2d 1196, cert den sub nom. Hall v Inmates of Suffolk County Jail, 419 US 977.) III. Denial of contact visitation to pretrial detainees is unnecessary to either secure their presence at trial or to insure security. IV. Compelling necessity cannot justify the paucity of visiting time for presumably innocent individuals; visiting conditions are far more humane for convicted felons in New York. (O’Bryan v County of Saginaw, Mich., 446 F Supp 436.) V. Punishment given to jail inmates must be in proportion to the violation of the jail rule involved. (Wilkinson v Skinner, 34 NY2d 53; Wolff v McDonnell, 418 US 539; Furman v Georgia, 408 US 238; Allen v Nelson, 354 F Supp 505, 484 F2d 960; Wright v McMann, 321 F Supp 127, 460 F2d 126; Hardwick v Ault, 447 F Supp 116; Landman v Royster, 333 F Supp 621.) VI. The lower court erred in denying appellants attorneys fees under the Civil Rights Attorney’s Fees Awards Act of 1976 (US Code, tit 42, § 1988). (Albemarle Paper Co. v Moody, 422 US 405; Alyeska Pipeline Co. v Wilderness Soc., 421 US 240; Robinson v Hanrahan, 409 US 38; Goldberg v Kelly, 397 US 254; Mid-Hudson Legal Servs. v G & U, Inc., 578 F2d 34; Perez v Rodriguez Bou, 575 F2d 21; Brown v Culpepper, 559 F2d 274; Seals v Quarterly County Ct. of Madison County, Tenn., 562 F2d 390; Wharton v Knefel, 562 F2d 550; Beazer v New York City Tr. Auth., 558 F2d 97.)

      John D. Doyle, County Attorney (David Van Varick and Rae A. Clark, Jr., of counsel), for respondents-appellants.
    I. The legal rationale set forth by plaintiffs as a basis for determining the constitutional rights of pretrial detainees is erroneous. (Coffin v United States, 156 US 432; Campbell v McGruder, 580 F2d 521; Tyrrell v Taylor, 394 F Supp 9, affd sub nom. United States ex rel. Tyrrell v Speaker, 535 F2d 823; Hampton v Holmesburg Prison Officials, 546 F2d 1077; Pell v Procunier, 417 US 817; Jones v North Carolina Prisoners’ Union, 433 US 119; Procunier v Martinez, 416 US 396; Rhem v Malcolm, 371 F Supp 594, 507 F2d 333; Missouri v Lewis, 101 US 22; Baxstrom v Herold, 383 US 107.) II. There is no constitutional right to a contact visitation program. (Padgett v Stein, 406 F Supp 287; McCray v Sullivan, 509 F2d 1332; Oxendine v Williams, 509 F2d 1405; Royal v Clark, 447 F2d 501; Owens-El v Robinson, 442 F Supp 1368; Kelley v Johnson, 425 US 238; Dwen v Barry, 336 F Supp 487, 483 F2d 1126; Matter of Greenwald v Frank, 40 AD2d 717.) III. Visitation regulations of the Monroe County jail do not violate any constitutional rights of plaintiffs. IV. Disciplinary procedures within the Monroe County jail comply with all relevant constitutional mandates. (Wolff v McDonnell, 418 US 539; Baxter v Palmigiano, 425 US 308; Wilkinson v Skinner, 34 NY2d 53; Milburn v Fogg, 393 F Supp 1164.) V. The trial court properly exercised its discretion in denying attorneys fees. (Matter of Brazie v Chiavaroli, 53 AD2d 1057; Newman v Piggie Park Enterprises, 390 US 400.)

      Robert Abrams, Attorney-General (Shirley Adelson Siegel and John J. Warner, Jr., of counsel), amicus curiae.

    The right of persons incarcerated prior to trial to enjoy contact visitation with friends and loved ones is constitutionally guaranteed by the due process and equal protection clauses of the United States and New York State Constitutions. It cannot be denied on the basis of administrative cost, inconvenience or predictions that institutional security will be damaged. (Padgett v Stein, 406 F Supp 287; Rhem v Malcolm, 371 F Supp 594, 507 F2d 333; Detainees of Brooklyn House of Detention for Men v Malcolm, 421 F Supp 832; Ambrose v Malcolm, 440 F Supp 51; Forts v Malcolm, 426 F Supp 464; McNulty v Chinlund, 89 Misc 2d 713, 62 AD2d 682.)

      William E. Hellerstein, John Boston and Clay Hiles for Legal Aid Society, Prisoners’ Rights Project, amicus curiae.

    Pretrial detainees should be permitted to receive contact visits with family members and friends. (Rhem v Malcolm, 396 F Supp 1195, 527 F2d 1041; Detainees of Brooklyn House of Detention for Men v Malcolm, 421 F Supp 832; Sharrock v Dell Buick-Cadillac, 45 NY2d 152; People v Isaacson, 44 NY2d 511; People v Hobson, 39 NY2d 479; People v Witenski, 15 NY2d 392; Watson v Memphis, 373 US 526; Jackson v Bishop, 404 F2d 571; Procunier v Martinez, 416 US 396.)
   OPINION OF THE COURT

Meyer, J.

This appeal requires that we pass upon the rights of persons incarcerated pending trial of criminal charges against them; specifically, whether a pretrial detainee has a right to contact visitation with her family; whether, if so, such a visit may be limited to 10 minutes; whether the penalties imposed for infraction of rules for behavior of jail inmates must be related to particular offenses. A subsidiary issue is whether plaintiffs are entitled to attorneys fees. We hold that pretrial detainees are entitled to contact visits of reasonable duration as a matter of State, though not of Federal, constitutional right, but are not entitled to a revision of the jail system of discipline under either the Federal or the State Constitution, their rights in that respect being adequately protected by available review procedures. On the subsidiary issue, we hold that neither under the Civil Rights Attorney’s Fees Awards Act of 1976 (US Code, tit 42, § 1988) nor under CPLR 909 are plaintiffs entitled to attorneys fees.

The action has been granted class action status under CPLR article 9, the class being "all women inmates of the Monroe County Jail from February, 1974 until the resolution of this action”. The complaint alleges six causes of action under the Civil Rights- Act (US Code, tit 42, § 1983) for which are sought money judgments for the named individual plaintiffs as well as declaratory and injunctive relief for the class. Additionally it sets forth five other causes of action, based upon claimed violations of the Federal and State Constitutions, for injunctive and declaratory relief. The comprehensive and thoughtful opinion of Mr. Justice Edward O. Provenzano (91 Misc 2d 302) lists and passes upon some 21 separate categories of claimed constitutional rights. On plaintiffs’ appeal to the Appellate Division with respect to visitation, recreational opportunities, disciplinary proceedings and attorneys fees, that court modified to require adoption within a reasonable period of time of a program of contact visitation, but otherwise affirmed and remitted for further proceedings (64 AD2d 130). On the appeal to this court the question of recreational opportunities has not been argued, and is deemed abandoned.

The facts so far as necessary to determination of the issues remaining before us are not in dispute. The named plaintiffs are three pretrial detainees and three convicted and sentenced inmates of the Monroe County jail, and they represent as a class all women inmates since February, 1974. The jail occupies 55% of the space in the Monroe County Public Safety Building, which is a modern facility opened in 1971. It was originally intended that female inmates would occupy one half of the fourth floor of the new facility. However, subsequent events required the closing of the nearby county penitentiary, and in the fall of 1971, sentenced male prisoners transferred from that jail to the new facility occupied the fourth floor space.

Lacking room for the female inmates, the county contracted with the City of Rochester to convert and use existing "lockup facilities” on the third floor of the abutting city public safety building. Although the new female detention area did not meet the requirements of the regulations of the State Commission of Correction then in effect, the commission approved the use of the facility on a temporary basis. At the time of trial in 1976 that "temporary” operation had continued for over five years.

Of the women lodged in that facility, more than 90% were pretrial detainees; the rest were serving sentences upon conviction. Currently the women are limited to noncontact visits from family and friends.- Visiting hours are between 1:00 and 4:30 p.m. on Tuesday, Thursday and Sunday. While it appears from the stipulation of the parties that visits can be limited to 10 minutes, the trial court found that women inmates are permitted 15-minute visits and that they frequently ran longer. The facility’s three visiting booths separate the inmates from their visitors by a floor-to-ceiling steel barrier, in which there is a window about two feet by seven inches in size, through which the inmate and her visitor can see each other. Conversation can take place only by use of telephones. Thus, there is no physical contact whatsoever between the inmate and her loved ones or friends.

Direct contact visits are permitted at the Monroe County jail between inmates and attorneys, clergymen, parole and probation officers, drug counselors and persons involved in community projects at the jail. The evidence established also that in another correctional facility, run by the State, convicted female felons are permitted longer visits in an informal setting which allows for direct contact between the inmate and her family or friends. Indeed, the Monroe County prison officials agree that contact visits would be desirable, but state that they have not been implemented because they require additional security measures which would increase costs.

The evidence with respect to the challenge to the system of punishment for violation of jail rules is that jail rules proscribe a variety of acts ranging from disrespectful behavior to cursing, for the infraction of which an inmate can lose the right to recreation or exercise, be confined to an isolation cell for up to 7 days, be confined to her locked cell for 23 hours each day for up to 14 days, or be subject to lesser penalties. Plaintiffs argue that the present system permits random imposition of disparate penalties for similar conduct and ask that the court require that a system which relates the penalty to the offense be established.

The Appellate Division, in a decision written some nine months prior to the decision of the United States Supreme Court in Bell v Wolfish (441 US 520), held that the due process clause of the Fourteenth Amendment of the Federal Constitution requires that a system of contact visitation be instituted, but that the manner and duration of the visits is a matter wholly within the discretion of the prison officials, and as such, beyond the reach of judicial supervision. It also held that since the imposition of specific sanctions was subject to judicial review, the claim that the system of discipline did not "make the punishment fit the crime” was not of constitutional dimension. Finally, it held that the trial court did not abuse its discretion in denying an award of attorneys fees.

For the reasons hereafter set forth we conclude: (1) that (A) contact visitation is not required by either the due process or the equal protection clause of the Fourteenth Amendment to the Federal Constitution but (B) contact visitation of reasonable duration is required by the due process clause of the State Constitution; (2) that Monroe County’s system of jail discipline has not been shown to be constitutionally infirm, and (3) that plaintiffs are not entitled to attorneys fees under Federal statute because they have not prevailed on their Civil Rights Act claims nor are they so entitled under State law because in failing to award them attorneys fees the Trial Judge did not abuse the discretion granted him under CPLR 909.

I

A

In Wolñsh v Levi (573 F2d 118) the Court of Appeals for the Second Circuit held that the due process clause of the Fifth Amendment requires that pretrial detainees in Federal custody be allowed contact visitation, and proscribes certain other practices then in force at the Metropolitan Correctional Center in New York. Though the matter was appealed to the Supreme Court, the ruling as to contact visitation was not appealed, and that court noted (Bell v Wolfish, 441 US 520, 559, n 40, supra), that it expressed no opinion on that phase of the matter. Notwithstanding that it did not pass directly on contact visitation, it would seem from its analysis of the other issues in the case that its ruling will be that contact visitation between a pretrial detainee and his or her family or friends is not constitutionally required. In Bell the court considered challenges to: (1) the practice of double-bunking, (2) the "publisher only” rule, (3) body-cavity searches after contact visits, (4) the prohibition against receipt of packages, and (5) the practice of surprise searches of inmates’ cells. The Court of Appeals for the Second Circuit had held that since pretrial detainees had not been convicted, and therefore were presumed to be innocent, due process required that they be subjected only to those restrictions and privations which inhere in their confinement itself or which are justified by compelling necessities of jail administration.

Rejecting what it considered an intrusive standard of review, the Supreme Court focused instead on the various constitutional limitations on punishment in the criminal judicial process. The court agreed that the Eighth Amendment proscription against cruel and unusual punishment had no application to pretrial detainees, for they had yet to be convicted. It recognized that the due process clause of the Fifth Amendment proscribed punishment of pretrial detainees, but held that not all prison practices which go beyond the "compelling necessities of jail administration” constitute "punishment”.

Although the court suggested reference to the comprehensive test of what constitutes punishment which was enunciated in Kennedy v Mendoza-Martinez (372 US 144), it ultimately settled on a much less probing inquiry, which Mr. Justice Rehnquist explained as follows: "Absent a showing of an expressed intent to punish on the part of detention facility officials, that determination generally will turn on 'whether an alternative purpose to which [the restriction] may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned [to it]’. Kennedy v. Mendoza-Martinez, 372 U. S., at 168-169; see Fleming v. Nestor, supra [363 US 603], at 617. Thus, if a particular condition or restriction of pretrial detention is reasonably related to a legitimate governmental objective, it does not, without more, amount to 'punishment’ ” (441 US 520, 538-539, supra; brackets in original). Applying this test, the court upheld all of the practices against due process challenges on the ground that they were reasonably related to the legitimate objectives of pretrial detention and prison security.

Since the prohibition against contact visits is related to security concerns, which the search procedures outlined in Bell v Wolfish (supra) suggest will require expenditure for additional personnel if not also for rearrangement of the visiting areas, and since the evidence negates any intent to use denial of contact visitation as punishment, the prohibition must be held, as a matter of Federal due process, to be "reasonably related to a legitimate governmental objective”.

Nor does the Federal equal protection clause mandate that plaintiffs be granted contact visitation privileges. Even those courts that have held that the equal protection clause prevents treating pretrial detainees less favorably than convicted prisoners have applied the "rational basis” rather than the "strict scrutiny” test reserved for rights regarded as fundamental (see, e.g., Rhem v Malcolm, 371 F Supp 594, affd 507 F2d 333). Thus, all that need be shown as a matter of Federal constitutional law is that the differentiation made by the statute or regulation has some reasonable basis, not that there is any compelling necessity for it or that it is the least restrictive means possible (see Montgomery v Daniels, 38 NY2d 41, 59-61). That there are rational bases for differentiating between sentenced prisoners and persons detained while awaiting trial cannot be gainsaid. The much longer period of incarceration faced by the former and the fact that the locale of their imprisonment is usually, in the interests of security, in an isolated, rural setting distant from family and friends as distinct from persons awaiting trial whose detention is, generally, for a relatively short period and in facilities located in metropolitan areas near courts, but also near the detainees’ family and friends (see Cooper v Morin, 91 Misc 2d 302, 323) are two such bases.

It, thus, appears that neither as a matter of Federal due process nor Federal equal protection are plaintiffs entitled to an order requiring the allowance of contact visits.

B

That conclusion does not end the inquiry, however, for plaintiffs claim constitutional protection under the State as well as the Federal Constitution. While neither the Trial Judge nor the Appellate Division considered State constitutional claims, the complaint clearly presents them and they may, therefore, be reached by us.

We have not hesitated when we concluded that the Federal Constitution as interpreted by the Supreme Court fell short of adequate protection for our citizens to rely upon the principle that that document defines the minimum level of individual rights and leaves the States free to provide greater rights for its citizens through its Constitution, statutes or rule-making authority (Sharrock v Dell Buick-Cadillac, 45 NY2d 152, 159-161; People v Isaacson, 44 NY2d 511, 519-520; People v Hobson, 39 NY2d 479, 483-484; People v Arthur, 22 NY2d 325, 328-329; and see Howard, State Courts and Constitutional Rights in the Day of the Burger Court, 62 Va L Rev 873; Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv L Rev 489).

Section 6 of article I of our Constitution mandates that "No person shall be deprived life, liberty or property without due process of law”. As we have noted in Wilkinson v Skinner (34 NY2d 53, 58), "The requirements of due process are not static; they vary with the elements of the ambience in which they arise”. While we are in agreement with the Supreme Court’s holding in Bell v Wolfish (441 US 520, supra) that due process forbids the punishment of pretrial detainees because punishment can only be imposed after conviction, we cannot agree that the validity of the regimen imposed upon such persons during detention turns on no more than whether a regulation has a legitimate purpose other than punishment and is not excessive in relation to that purpose. So one-sided a concept of due process we regard as unacceptable. In our view what is required is a balancing of the harm to the individual resulting from the condition imposed against the benefit sought by the government through its enforcement.

The approach is not novel in relation to prison regulations. The Eighth Circuit Court of Appeals in Moore v Ciccone (459 F2d 574, 576) used it, holding that "when the claim is that a prison regulation infringes upon a constitutional right, 'a court must balance the asserted need for the regulation in furthering prison security or orderly administration against the claimed constitutional right and the degree to which it has been impaired’ ” (quoting Smith v Robbins, 328 F Supp 162, 164, affd 454 F2d 696), and the Supreme Court itself has adopted it in Pell v Procunier (417 US 817), in passing upon the First Amendment question whether newsmen need be given free access to convicted prisoners. It is, of course, the essence of the dissents in Bell v Wolfish (441 US 520, supra) and has been applied by the Supreme Court of Alaska in McGinnis v Stevens (543 P2d 1221 [Alaska]; see, also, Note, Conjugal Visitation Rights and the Appropriate Standard of Judicial Review for Prison Regulations, 73 Mich L Rev 398, 414-416; Note, Constitutional Limitations on the Conditions of Pretrial Detention, 79 Yale LJ 941, 950). Indeed, it is not without significance in view of the part that English practices play in our analysis of traditional concepts of due process to note that Blackstone wrote in 1765 (4 Blackstone Commentaries, p 300): "[T]his imprisonment, as has been said, is only for safe custody, and not for punishment: therefore, in this dubious interval between the commitment and trial, a prisoner ought to be used with the utmost humanity, and neither be loaded with needless fetters, or subject to other hardships than such as are absolutely requisite for the purpose of confinement only”.

On the detainee’s side of the balance is the fundamental right to marriage and family life on the one hand and to bear and rear children on the other, recognized in our decisions in People ex rel. Portnoy v Strasser (303 NY 539, 542) and Fearon v Treanor (272 NY 268, 272-273, app dsmd 301 US 667), and such Supreme Court decisions as Zablocki v Redhail (434 US 374, 383-387); Roe v Wade (410 US 113); Boddie v Connecticut (401 US 371); Griswold v Connecticut (381 US 479, 486, 496 [Justice Goldberg concurring]), and Skinner v Oklahoma (316 US 535, 541); (see, also, Note, Fundamental Right to Family Integrity and Its Role in New York Foster Care Adjudications, 44 Brooklyn L Rev 63). The detrimental effect upon spousal and parent-child relationships of the denial of contact, if not obvious, is attested to not only by expert testimony (see Rhem v Malcolm, 507 F2d 333, supra) and numerous books and articles (see McGowan & Blumenthal, Why Punish The Children: A Study of Children of Women Prisoners; Schwartz. & Weintraub, The Prisoner’s Wife: A Study in Crisis, 38 Fed Prob No. 4, 20; Zemans and Cavan, Marital Relationships of Prisoners, 49 J Grim L and Criminology 50; Simpson, Conjugal Visiting in United States Prisons, 10 Col Human Rights L Rev 643; Note, On Prisoners and Parenting: Preserving the Ties, 87 Yale LJ 1408; Karten, Mothers Behind Bars — What Happens To Their Children), but also by the prison officials of Monroe County who candidly admitted that contact visits would be beneficial and a more humane method of detention, which they have not provided simply because of budgetary limitations.

On the State’s side of the equation deterrence, retribution and rehabilitation play no part since we speak, by hypothesis, of persons as yet untried. The only legitimate purpose for pretrial detention then is to assure the presence of the detainee for trial. To this end the State may adopt security measures intended to frustrate possible attempts at escape or the passage of contraband from a visitor to a detainee, and in the adoption of such measures the expertise of professional administrators is entitled to respectful consideration. But when so fundamental a right as the maintenance by pretrial detainees of relationships with family and friends is involved the measure adopted must be both reasonable and necessary to the maintenance of security.

The imposition upon the detainee’s rights of the system of noncontact visitation outlined above when contact visitation is recognized by the authorities as the more desirable is clearly unreasonable unless sustained by a strong showing of necessity. Here we are told only that contact visitation would require additional expenditure for rearrangement of the facility and for added personnel to conduct required search procedures. But as we have previously noted “to exalt economic considerations over the rights of our citizens is nothing more than abdication of this court’s constitutional responsibility” (Sharrock v Dell Buick-Cadillac, 45 NY2d 152, 167, n 7, supra; see Brooklyn Union Gas Co. v New York State Human Rights Appeal Bd., 41 NY2d 84, 90; Note, Constitutional Limitations on the Conditions of Pretrial Detention, 79 Yale LJ 941, 955; Note, Conjugal Visitation Rights and the Appropriate Standard of Judicial Review for Prison Regulations, 73 Mich L Rev 398, 406-407).

We agree, therefore, as a matter of State constitutional law, with the Appellate Division’s requirement that a program of contact visitation for female detainees of the Monroe County jail must be instituted within a reasonable period of time. We disagree with its disposition only with respect to the length of the visitation period allowed. The stipulation of the parties tells us that visitation may be limited to 10 minutes, but the Trial Judge’s findings indicate that 15 minutes is usual and that visitation often runs longer. Limitations of space and time and the requirements of daily routine must, of course, be met, but so woefully short a period as 10 minutes will hardly be meaningful in most situations. The program as devised should, therefore, provide for visitation during a sufficient number of hours per week to allow for visitation of reasonable duration for each detainee desiring visitation. What is "reasonable duration” is, of course, a function of the space and hours allocated for visitation and the number of persons having visitors on a given day but the system should strive for visits of substantially longer than 10 minutes duration and should be flexible enough to permit extension of visits beyond the minimum period when circumstances permit.

II

Plaintiffs’ challenge to the disciplinary rules of the jail must, however, fail. Although the penalties for violations of prison regulations cannot be grossly disproportionate to the offense (see Hutto v Finney, 437 US 678), there has not been a sufficient showing that such is the case here. All that this record reveals is that in two instances severe penalties have been imposed where sentenced inmates had shown disrespect for, or disobedience of, prison personnel. Even if plaintiffs’ characterization of those instances be accepted, this does not establish a pattern of abuse which would warrant invalidation of a system of prison discipline. Of course, before a penalty is imposed, an inmate can obtain a hearing as to the offense (Wilkinson v Skinner, 34 NY2d 53, supra). Detainees are, thus, adequately protected from arbitrary action.

III

To the extent that plaintiffs’ fee claim rests upon the Civil Rights Attorney’s Fees Awards Act of 1976 (US Code, tit 42, § 1988) it cannot be sustained because, in consequence of our reading of Bell v Wolfish (441 US 520, supra), plaintiffs have not prevailed on any of their Civil Rights Act causes of action (see Mid-Hudson Legal Servs. v G & U, Inc., 578 F2d 34). That they have prevailed on their State constitutional claim in a declaratory judgment action maintained as a class action permitted the Trial Judge to award fees in his discretion and "if justice requires” allow recovery of the fee awarded from the opponent of the class (CPLR 909). We agree with the Appellate Division, however, that under the circumstances of this case it was not an abuse of discretion for him to conclude that justice did not so require (cf. Wilkinson v Skinner, 34 NY2d 53, 62, supra).

Accordingly, the order of the Appellate Division should be modified in accordance with this opinion and, as so modified, affirmed.

Chief Judge Cooke

(concurring). I concur in the result, and do so on State constitutional grounds (cf. Sharrock v Dell Buick-Cadillac, 45 NY2d 152, 159-161; see, also, People v Isaacson, 44 NY2d 511). In view of the construction afforded our State Constitution, it is unnecessary to resolve any issue of Federal constitutional law.

Gabrielli, J.

(dissenting). I am compelled to dissent. The majority has today adopted the position that restrictions on the liberties of pretrial detainees must meet the exacting standard of "compelling governmental necessity” in order to be sustained. Accordingly, the majority has held not only that there is a constitutionally protected right to "contact visits”, but also that such visits must be substantially longer than 10 minutes duration in order to pass constitutional muster. Since I can find no source for such "rights” in either the Federal or the State Constitution, I am unable to join in the conclusions reached by my colleagues.

Any analysis of the due process rights of pretrial detainees must begin with the Supreme Court’s decision in Bell v Wolfish (441 US 520). In that case, the Supreme Court held that the presumption of innocence, which inheres in the rights of citizenship, does not in itself give rise to any substantive right of the pretrial detainee to be "free from conditions of confinement that are not justified by compelling necessity” (441 US, supra, at p 532). This is so because the "presumption of innocence”, as it is popularly called, is merely a shorthand means of describing the fundamental principle that an individual cannot be punished under our American system of criminal jurisprudence unless the State comes forward with evidence sufficient to convince the trier of fact of his guilt (see Taylor v Kentucky, 436 US 478, 483-484). The presumption has no application, however, when an individual is deprived of liberty prior to trial and the State seeks to regulate the conditions of his confinement to accomplish State purposes unrelated to the individual’s ultimate punishment. Where such is the case, the Supreme Court has stated, the detainee has no right to have the prison regulation in question tested against the strict standard of "compelling necessity”. Instead, the Supreme Court has said, due process demands only that a particular restraint on a detainee’s liberty be reasonably related to a legitimate governmental goal, such as the government’s understandable objective of maintaining the security of its jail facilities (441 US, supra, at pp 535-539).

Recognizing that the prison regulations at issue here would meet this less exacting standard of review, the majority attempts to find a basis for applying a higher level of judicial scrutiny by invoking the due process clause of the State Constitution (NY Const, art I, § 6) as well as the "fundamental right to marriage and family life”. The majority notes that the rules of the Monroe County jail which proscribe "contact” visitation impair the detainees’ ability to maintain normal family relationships and, on the basis of this fact, concludes that the regulations must fall in the absence of a "compelling” justification.

The problem with the majority’s position is that it overlooks the simple fact that "[ljawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by * * * our penal system” (Price v Johnston, 334 US 266, 285; see Jones v North Carolina Prisoners’ Union, 433 US 119, 125; Wolff v McDonnell, 418 US 539, 555-556). Indeed, although individuals who are incarcerated do not forfeit all of their constitutional rights as citizens (see, e.g., Meachum v Fano, 427 US 215; Wolff v McDonnell, 418 US 539, supra; Pell v Procunier, 417 US 817; Cruz v Beto, 405 US 319), there are certain personal freedoms and conveniences that must be sacrificed as a necessary incident to the loss of liberty.

Chief among these are those freedoms and privileges that are derived from the guarantee of a "right of privacy” that is implicit in our Federal Constitution (see, e.g., Roe v Wade, 410 US 113; Boddie v Connecticut, 401 US 371; Griswold v Connecticut, 381 US 479). It goes without saying that when an individual is imprisoned, there is a drastic curtailment of his accustomed relationships with family and friends. His or her right to bear and raise children, for example, is dramatically impaired by the simple fact that he or she has been removed from the home and prevented from fulfilling the role of a parent. Similarly, confinement in an institution by its very nature results in an interruption of the normal marital relationship. To the extent that these restrictions impinge upon "fundamental” constitutional rights, they are justified in the case of the pretrial detainee by the compelling governmental interest in insuring his appearance at trial (see Stack v Boyle, 342 US 1, 4), as well as by the relatively short duration of his confinement. Once we accept the premise that an individual may be temporarily detained upon a finding of probable cause (see Gerstein v Pugh, 420 US 103, 114), it follows that the rights to privacy and family life, to the extent that they exist, must give way to the practical realities of his confinement.

Among these realities is the formidable task faced by those who are charged with the daily responsibility of maintaining discipline, order and security in facilities which house short-term detainees. Indeed, it has been noted that the problems inherent in maintaining security in a pretrial detention facility may very well be greater than those involved in operating a long-term correctional institution (see Bell v Wolfish, 441 US, supra, at p 546, n 28). In view of the complexity of the task faced by prison administrators, I deem it unwise for this court to attempt to enforce its views of "enlightened” penal policies by elevating them to the status of constitutional guarantees.

As we have observed on an earlier occasion, "[t]he role of the courts is not to put a stop to practices that are unwise, only to practices that are unconstitutional or illegal” (Wilkinson v Skinner, 34 NY2d 53, 62). Whatever Judges may think about the desirability of affording prisoners extended "contact” visitation privileges, we are not free to substitute our judgment for that of prison administrators in the absence of some impairment of a substantial constitutional right. Notwithstanding the majority’s efforts to locate such a right in the due process clause of our State Constitution (NY Const, art I, § 6), I remain unconvinced that the privilege of "contact” visitation rises to the level of constitutional significance. On the one hand, the majority states unequivocally that the rule prohibiting contact visits for pretrial detainees does not offend the due process clause of the United States Constitution. On the other hand, the majority has blithely concluded that the equivalent clause in our State Constitution, which employs identical language, somehow compels the opposite conclusion. In view of the identity in language and purpose of the two clauses, I can find no justification for using our State due process clause as a basis for creating a "constitutional” right solely because we are dissatisfied with the result reached in a particular Supreme Court decision under the Federal due process clause.

Since I am unable to find a source for the "rights” claimed here, either in the due process provisions of the State and Federal Constitutions or in the "fundamental right to marriage and family life”, I would vote to modify the order of the Appellate Division by reversing so much thereof as requires prison officials to institute a program of "contact” visits.

Judges Jones, Wachtler and Fuchsberg concur with Judge Meyer; Chief Judge Cooke concurs in result in a separate memorandum; Judge Gabrielli dissents and votes to modify in a dissenting opinion in which Judge Jasen concurs.

Order modified, with costs to plaintiffs, in accordance with the opinion herein and, as so modified, affirmed.

      . While some plaintiffs are not pretrial detainees, the briefs in this court, as in the courts below (see 64 AD2d 130, 132) have addressed the issues as though the class consisted only of pretrial detainees. This opinion is, therefore, limited to discussion of the rights of pretrial detainees.

      . "Double-bunking” is simply the practice of housing two inmates in a single cell.

      . The "publisher only” rule limits an inmate’s reception of books to those sent directly by the publisher. It is thought that this diminishes the possibility that books will be used to smuggle in weapons or other prohibited material.

      . In Mendoza-Martinez the court suggested consideration of the following factors for deciding whether a given measure is punitive (372 US, at pp 168-169): "Whether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as punishment, whether it comes into play only on a finding of scienter, whether its operation will promote the traditional aims of punishment— retribution and deterrence, whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned are all relevant to the inquiry, and may often point in differing directions.”

      . The Trial Judge suggested that the form of the action and the absence of the county as a party limited his consideration of State constitutional claims (91 Misc 2d 302, 361). As already noted the complaint seeks declaratory relief, but had it not CPLR 103 would have pérmitted the court to convert it to an action for declaratory judgment. And since Sheriff Lombard and Superintendent Stanwick are parties in both their individual and official capacities (91 Misc 2d 302, 309, supra), the absence of the county as a party does not prevent the granting of declaratory relief.
      The Appellate Division, finding Federal constitutional authority for its ruling that contact visitation was required, apparently concluded that it need not discuss the State issues.

      . We have not overlooked Mr. Justice Rehnquist’s repeated references to the fact that nearly all of the detainees involved in Bell are released with 60 days (441 US 520, 543, 555, n 35, 562). The answers are several. The stipulated facts here do not inform us how many detainees are held for more than 60 days, but do tell us that in 1974 22% or 1,374 persons were held more than 30 days and in 1975 15Vz% or 1,086 persons were held for more than 30 days. Thus, we deal with a substantial number of women being deprived of contact for an unreasonably long period. More important, the early stages of confinement of a pretrial detainee who is not a "regular” at the jail will be a time of greater stress and, therefore, greater need for contact visiting on the part of the detainee, and of shock and tension for children, who will, therefore, need the reassurance of contact visitation, not the disquieting, if not devastating experience of "visits” through an impenetrable barrier. The point is that the detainees and their familes are individuals whose cases must be individually considered. There may be reason in an individual case for not permitting contact for a short period, but any rule that fixes an arbitrary number of days during which contact visitation can be proscribed solely on the ground of administrative convenience is in our view arbitrary and, therefore, unconstitutional.


source: Caselaw Access Project

author: Gabrielli, J.

license: Public Domain

text:
    The People of the State of New York, Respondent, v Molly Levitan, Elsie Rutkowski, Also Known as Elsie Rutkowsky, and David Rutkowski, Also Known as David Rutkowsky, Appellants. The People of the State of New York, Respondent, v Molly Levitan, David Rutkowski, Also Known as David Rutkowsky, and Laurell Associates, Inc., Appellants.
    Argued November 21, 1979;
    decided January 8, 1980

      POINTS OF COUNSEL

      Carl Spitznagel for appellants.
    I. The facts do not constitute forgery. (People v Underhill, 142 NY 38; People v Cannarozzo, 62 AD2d 503.) II. The court at nisi prius misconstrued the forgery statute; the court below in its decision overlooked that misconstruction.

      Patrick Henry, District Attorney (Vincent A. Malito of counsel), for respondent.
    The facts, as stipulated, constitute forgery in the second degree under subdivisions 1 and 2 of section 170.10 of the Penal Law. (People v Underhill, 142 NY 38; People v Cannarozzo, 62 AD2d 503; People v Gagliardo, 82 Misc 2d 544; International Union Bank v National Sur. Co.,

      245 NY 368; Thurm v Schupper, 25 Misc 2d 198; People v Hacken, 56 Misc 2d 950; People v Praia, 47 Misc 2d 55; People v Gould, 41 Misc 2d 875; Ketchum v United States, 327 F Supp 768; Jolly v United States, 411 F2d 619.)
   OPINION OF THE COURT

Gabrielli, J.

Defendants appeal from an order of the Appellate Division which affirmed their convictions of several counts of forgery in the second degree. The issue presented on this appeal is whether the actions described below, which defendants admittedly engaged in, comprise the crime of forgery in the second degree. We hold that they do not.

Defendant Molly Levitan signed three documents purporting to be deeds transferring title of certain real property in Suffolk County to entities controlled by her codefendants. She signed her own name to each of the deeds, and no pretense was ever made that the signatory was anyone other than defendant Molly Levitan. She signed one of the deeds as an individual grantor, and the other two as an officer of the corporate grantors. No claim is made that she was not authorized to do so by the corporate grantors. Unfortunately, neither Molly Levitan nor the corporate grantors held title to the realty purportedly transferred by the deeds. The true owners of the property were and remain unknown, and the land was not on the tax assessment rolls of the town in which it is located. The defendants intended to and did record the deeds and thereby have the land placed upon the assessment rolls under the record ownership of entities controlled by them. It was defendants’ intent to cause these entities to then default in payment of taxes on the land, so that defendants could purchase the land at a tax sale. The question on this appeal is whether Molly Levitan "forged” the three deeds. For the reasons discussed below, we conclude that she did not. Although defendants may well have committed other crimes, their convictions for forgery in the second degree may not stand.

The crime of forgery in the second degree is defined in section 170.10 of the Penal Law which, insofar as is pertinent, provides as follows: "A person is guilty of forgery in the second degree when, with intent to defraud, deceive or injure another, he falsely makes, completes or alters a written instrument which is or purports to be, or which is calculated to become or to represent if completed * * * [a] deed * * * or an instrument * * * filed in * * * a public office”. Assuming that all other elements of the crime of forgery in the second degree are present in this case, defendants’ convictions may not stand for the simple reason that Molly Levitan did not falsely make, complete, or alter a written instrument, as those terms are defined for purposes of delineating the crime of forgery. Under our present Penal Law, as under prior statutes and the common law, a distinction must be drawn between an instrument which is falsely made, altered or completed, and an instrument which contains misrepresentations not relevant to the identity of the maker or drawer of the instrument (see People v Cannarozzo, 48 NY2d 687, affg for reasons stated at 62 AD2d 503; People v Underhill, 142 NY 38; People v Sangiovanni, 52 AD2d 930).

In essence, the crime of forgery involves the making, altering, or completing of an instrument by someone other than the ostensible maker or drawer or an agent of the ostensible maker or drawer. While it is true that in certain rare instances one may commit a forgery by signing one’s own name, this is so only where the signing is done in such a way as to deceive others into believing that the signer is in fact some third party (see People’s Trust Co. v Smith, 215 NY 488; International Union Bank v National Sur. Co., 245 NY 368). This was the rule under prior law, and it remains the law today. While the Legislature certainly could change this rule, since it may define a crime however it wishes absent some constitutional infirmity, examination of the present statutes indicates quite persuasively that the Legislature has not chosen to modify this particular aspect of the traditional definition of forgery.

As noted above, forgery in the second degree requires that there have been a false making, a false altering, or a false completing of an instrument (see Penal Law, § 170.10); and these terms are themselves specifically defined in section 170.00 of the Penal Law. Thus, "[a] person 'falsely makes’ a written instrument when he makes or draws a complete written instrument in its entirety, or an incomplete written instrument, which purports to be an authentic creation of its ostensible maker or drawer, but which is not such either because the ostensible maker or drawer is fictitious or because, if real, he did not authorize the making or drawing thereof’ (Penal Law, § 170.00, subd 4). To come within the ambit of this section, it is necessary that the actual maker or drawer be someone other than the ostensible maker or drawer and that the actual maker or drawer not have the authority to act for the ostensible maker or drawer. The section has no application where, as here, the ostensible drawer and the actual drawer are in fact one and the same person. Likewise, one may "falsely complete” an instrument only if one completes it "without the authority of anyone entitled to grant” such authority (Penal Law, § 170.00, subd 5). The term "anyone”, of course, refers to the ostensible drawer or maker or his agent. Thus, except possibly in extraordinary circumstances not here present, an instrument cannot be falsely completed by its ostensible drawer or maker or his agent. Similar limitations are found in the term "falsely alters”, since one may falsely alter an instrument only if one acts "without the authority of anyone entitled to grant it” (Penal Law, § 170.00, subd 6). Hence, in each case, there can be a forgery only if the actor is not the ostensible maker or drawer of the instrument and is not authorized by that person to either make, complete or alter the instrument.

Applying these principles to this case, it is evident that whatever crime may have been committed by thése defendants, it was not forgery. The deeds were in all cases signed by Molly Levitan using her own name, and this is not a case in which one may commit a forgery by signing one’s own name, since here there was no pretense that Molly Levitan was anyone other than herself. The People seek to avoid this result by arguing that the ostensible drawer of these deeds should be deemed to be not Molly Levitan, but the unknown true owner of the land. Were we to agree that the ostensible drawer was the true owner of the property, then it would follow that Molly Levitan falsely made these deeds since, as the actual drawer of the deeds, she admittedly did so without authorization from the true owner of the property. However, and it is all too evident, we cannot agree that the absent true owner should be considered the ostensible drawer of the deeds. Rather, Molly Levitan is both the actual drawer and the ostensible drawer, and thus did not forge the deeds.

The People’s argument is based on the fact that each deed contains a provision stating that the named grantor had title to the property. Hence, according to the People, the ostensible drawer of the deed should be deemed to be the true owner of the property rather than the person whose name appears upon the deed. With this, we disagree. The flaw in this argument, quite simply, is that it confuses the ostensible drawer with the person who could create a valid deed. Actually, the ostensible drawer is the person who, from the face of the instrument, would appear to be its drawer, and not the person who in fact has the power to create such an instrument. Each of the deeds involved in this case declared the named grantor to be the owner of the property. In each case, Molly Levitan, the actual drafter of the deeds and the person who signed her name to them, either was that named grantor or was authorized to sign on behalf of the named grantor. Thus, the ostensible drawer in each case was Molly Levitan, acting either on her own behalf or on behalf of the corporate grantors named in the deeds. The fact that the grantors named in the deeds were not the real owners of the property cannot change the fact that the ostensible drawer of the deed in each case was Molly Levitan. Since she was both the actual and the ostensible drawer of the deeds in question, there was no forgery. Although the deeds may have contained false information, they were not falsely made.

Accordingly, the order affirming defendants’ convictions should be reversed, and the indictments should be dismissed.

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

Order reversed, etc.


author: Jones, J. Meyer, J.

text:
    In the Matter of the Arbitration between Fresh Meadows Medical Associates, as Assignee of Janina Tokarz, Appellant, and Liberty Mutual Insurance Company, Respondent.
    Argued October 10, 1979;
    decided November 21, 1979

      POINTS OF COUNSEL

      Mardon R. Israel for appellant.
    I. The arbitrator under section 675 of the Insurance Law, was authorized to award Fresh Meadows’ attorney, one fee encompassing all the time spent for the whole hearing. II. The legislative policy and intent as to no-fault insurance is the protection of the consumer, and the statutory provision for "his attorney’s reasonable fee” should be construed in that light. (Montgomery v Daniels, 38 NY2d 41.) III. The arbitrator acted within a scope of arbitration. (Matter of Nassau Ins. Co. v Ebin, 81 Misc 2d 168; Matter of Green Bus Lines v Bailey, 80 Misc 2d 483, 50 AD2d 924; Musolino v American Consumer Ins. Co., 51 AD2d 1036; Matter of Walters [Government Employees Ins. Co.], 57 AD2d 843.) IV. The arbitrator’s award was in accord with the public policy of New York State. (Montgomery v Daniels, 38 NY2d 41.) V. The court below erred in vacating the award merely because it disagreed with the arbitrator’s determination of the law. (Rochester City School Dist. v Rochester

      Teachers Assn., 41 NY2d 578; Lentine v Fundaro, 29 NY2d 382; Matter of Burt Bldg. Materials Corp. [Local 1205 Int. Brotherhood of Teamsters], 18 NY2d 556; Matter of Granite Worsted Mills [Aaronson Cowen, Ltd.], 25 NY2d 451; Matter of Ganser [New York Tel. Co.], 41 AD2d 914, 34 NY2d 717; Matter of Board of Educ. v Harrison Assn. of Teachers, 46 AD2d 674; Pavilion Cent. School Dist. v Pavilion Faculty Assn., 51 AD2d 119.) VI. The court below erroneously vacated the arbitrator’s award by looking to facts not in question and thereby conceding that the arbitrator’s award was irrational. (Matter of Pell v Board of Educ., 34 NY2d 222; Matter of Graziani v Rohan, 10 AD2d 154, 8 NY2d 967.) VII. By any standards of judicial review, there is no justification to interfere with the arbitration process. (Mount St. Mary’s Hosp. of Niagara Falls v Catherwood, 26 NY2d 493; Lentine v Fundaro, 29 NY2d 382; Matter of Deepdale Gen. Hosp. v Government Employees Ins. Co., 60 AD2d 884.) VIII. An arbitrator’s award which was vacated for irrational determination of the law should be remitted to the arbitrator for determination of the factual issue. (Matter of Hennessey [Motor Vehicle Acc. Ind. Corp.], 26 AD2d 521.)
    A. Paul Goldblum for respondent.
    I. To the extent that the award compensated the attorney for time spent in establishing his statutory fees, it was not authorized by section 675 of the Insurance Law. (City of Buffalo v Clement Co., 28 NY2d 241; Citibank [N. Y. State] N. A. v Gaylor Constr. Co., 60 AD2d 667; Grimsey v Lawyer’s Tit. Ins. Corp., 31 NY2d 953; Doyle v Allstate Ins. Co., 1 NY2d 439; Flaks, Zaslow & Co. v Bank Computer Network Corp., 66 AD2d 363; Young v Toia, 66 AD2d 377; Parkside Mem. Chapel v Garlick Funeral Homes, 61 AD2d 1028; Matter of Country-Wide Ins. Co. [Barrios], 65 AD2d 539; Agostini v State of New York, 255 App Div 264; Perkins v Standard Oil Co. of Cal, 474 F2d 549, 412 US 940.) II. It is appellant rather than respondent who represents a threat to those interests which the Legislature intended to protect by section 675 of the Insurance Law. III. An award which exceeds the arbitrator’s statutory authority is not a mere error of law and it must be vacated. (Matter of Burt Bldg. Materials Corp. [Local 1205 Int. Brotherhood of Teamsters], 18 NY2d 556; Mount St. Mary’s Hosp. of Niagara Falls v Catherwood, 26 NY2d 493; Lentine v Fundaro, 29 NY2d 382; Matter of Ganser [New York Tel. Co.], 41 AD2d 914, 34 NY2d 717; Matter of Granite Worsted Mill [Aaronson Cowen, Ltd.],
      25 NY2d 451.) IV. The court below did not err when it stated that the finding at Special Term was not challenged.
   OPINION OF THE COURT

Jones, J.

In determining the entitlement of a claimant to his attorney’s reasonable fee incident to the resolution of his claim for first-party benefits in arbitration under section 675 of the Insurance Law, the arbitrator may take into account services rendered by the attorney in substantiating the claim for that fee.

Janina Tokarz was injured in an automobile accident that occurred on December 21, 1974. At the time she was a passenger in an automobile operated by Edward Adams who was insured under a liability policy issued by Liberty Mutual Insurance Company. Tokarz thereafter incurred a $70 bill for X-ray services rendered by Fresh Meadows Medical Associates. She assigned her claim for payment of this bill back to Fresh Meadows which presented the bill to the insurance carrier. When the carrier declined to make payment, Fresh Meadows submitted its claim to arbitration under section 675 of the Insurance Law and implementing regulations, demanding payment by the carrier of first-party benefits and associated attorney’s fees.

At a hearing before the arbitrator on July 13, 1977 counsel for the claimant, Fresh Meadows, submitted a memorandum of law and facts seeking payment of the $70 X-ray bill and attorney’s fees of $1,650. The arbitrator requested a responding memorandum from counsel for the insurance carrier and offered claimant’s attorney an opportunity to submit a reply memorandum. It appears that the original memorandum of claimant’s attorney was devoted both to substantiation of the claim for X-ray services and to support of the associated claim for attorney’s fees. The carrier’s submission contested both branches of the claim, addressing particular attention to the size of the claim for attorney’s fees. Claimant’s reply memorandum again related to the X-ray bill and contained a further justification for counsel fees and the reasonableness of the amount sought, now requesting a total allowance of $2,850, the additional $1,200 being for legal work "done in the reading of [the carrier’s] Brief, researching the Law contained therein and in my Reply Memorandum of Law, dictation of my Reply Memorandum of Law, revisions and corrections thereof’. The time devoted by the attorney was reported as a total of 19 hours, and the value of all legal services was computed at the rate of $150 per hour. On September 12, 1977 the arbitrator made an award directing the insurance carrier to pay the $70 X-ray bill and the sum of $2,850 "as and for a reasonable attorney’s fee”.

The insurance carrier moved pursuant to CPLR 7511 to vacate that part of the arbitration award that directed payment of attorney’s fees on the ground that "the Arbitrator exceeded his authority in making an improper award of counsel fees”. Special Term denied the motion and confirmed the award in all respects. The Appellate Division reversed, reducing the award of counsel fee to $1,650, the carrier having abandoned its challenge to so much of the award in the light of our decision in Matter of Country-Wide Ins. Co. (Barrios) (43 NY2d 685).

But a single issue is presented for our resolution — in awarding an attorney’s fee incident to the determination of a claim for first-party benefits, did the arbitrator have authority to include services rendered by the attorney in substantiating the claim for counsel fees? We hold that he did.

The relevant provision of section 675 as applicable to this case was found in subdivision 1: "the claimant shall also be entitled to recover his attorney’s reasonable fee if a valid claim or portion thereof was overdue and such claim was not paid before the attorney was retained.” The insurance carrier contends that the arbitrator had no authority under this section to direct payment of counsel fees for services rendered in justifying the claim for the attorney’s fee, that to the extent this arbitrator directed payment for such services he exceeded his authority and that the disposition at the Appellate Division should be upheld.

In enacting section 675 the Legislature reversed the traditional principle in our jurisprudence that each litigant is expected to bear the cost of his own attorney’s services (3 NY Jur, Attorney and Client, § 83, pp 482-483). In granting the arbitrator authority under the new so-called No-Fault Auto Insurance Law to make an award to the claimant for "his attorney’s reasonable fee” if the underlying claim for first-party benefits was valid in whole or in part and had not been paid before the attorney was retained, the precise extent of such authority was not otherwise delineated. It is not disputed that the arbitrator was given authority to award counsel fees for services rendered in proving entitlement to first-party benefits. There is no explicit address in the statute, however, by way either of inclusion or of exclusion to whether the authority extends to the category of services necessarily rendered by the attorney in substantiating his entitlement to an attorney’s fee — an issue sometimes referred to by use of the phrase, "a fee on a fee”. The statutory provision does not preclude allowance for such services. Nor did the regulations originally issued by the Superintendent of Insurance speak to this issue (see former 11 NYCRR 65.6 [g] [l]).

The carrier asserts that the authority exercised by the arbitrator in this instance in granting the supplemental layer of allowance is so contrary to normal jurisprudential principle that it may not be implied in the absence of express statutory provision. Claimant rejoins that the grant of any authority to make the carrier pay the fees of the claimant’s attorney represents an abrogation of the principle on which the carrier would rely, and argues persuasively that the intent of section 675 was, in cases in which an insurance carrier refused to pay a valid claim for first-party benefits and forced the claimant to retain an attorney to take his claim to arbitration, to indemnify the claimant against economic loss in exacting payment from the recalcitrant carrier. To achieve that objective the arbitrator must have authority to direct the carrier to pay all attorney’s fees; to the extent that any portion thereof were excluded, and thus left for payment by the client, the purpose of the statute would be frustrated.

We agree with claimant and hold that in exercising the authority conferred on him under section 675 to direct payment by insurance carriers of reasonable fees of claimant’s attorneys, the arbitrator in making his determination may include services rendered by the attorney in substantiating the claim for counsel fees, including efforts expended in addressing any legal issues which may be involved as well as time spent in assembling and presenting factual data to support the claim.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the judgment of Supreme Court confirming the award, reinstated.

Meyer, J.

(dissenting). My point of departure from the majority is in the concept that in using the words “his attorney’s reasonable fee” in section 675 of the Insurance Law, as it existed prior to December 1, 1977, the Legislature left open the question whether the award of fees for the recovery of fees was permitted.

Well settled is the proposition that attorneys’ fees are merely incidents of litigation and, therefore, not compensable, absent an express statutory or contractual provision therefor (Equitable Lbr. Corp. v IPA Land Dev. Corp., 38 NY2d 516; City of Buffalo v Clement Co., 28 NY2d 241; 1 Speiser, Attorneys’ Fees, § 13:1). The necessary corollary of that rule is that neither a statutory nor a contractual provision for the pay^ ment of counsel fees includes counsel fees in the suit to collect those fees, absent specific language to that effect or an insured who has been made by his carrier to defend its affirmative action (Mighty Midgets v Centennial Ins. Co., 47 NY2d 12; Grimsey v Lawyers Tit. Ins. Corp., 31 NY2d 953; Doyle v Allstate Ins. Co., 1 NY2d 439). As Mr. Justice Aron Steuer put it in relation to a contractual provision in Swiss Credit Bank v International Bank (23 Misc 2d 572, 573-574): "A general agreement for the payment of counsel fees does not generally include counsel fees in the suit to collect those fees (Doyle v. Allstate Ins. Co., 1 NY2d 439). Of course, it is possible to contract for such an allowance but, as it is an agreement contrary to what is usual, speciñc language would be needed to show such an agreement” (emphasis supplied). The Legislature must be presumed to have been aware of that rule (see 56 NY Jur 637, Statutes, § 176), and having failed to insert in the statute explicit language allowing collection of fees on fees, must be found to have intended not to allow such fees.

Since to the extent that he awarded fees on fees the arbitrator exceeded his power, his award was subject, as the Appellate Division held, to a motion to vacate pursuant to CPLR 7511 (subd [b], par 1, cl [iii]). Nor, especially since we deal here with compulsory rather than voluntary arbitration (see Mount St. Mary’s Hosp. of Niagara Falls v Catherwood, 26 NY2d 493), is appellant’s contention that what is involved is not a usurpation of power but a mere error of law sustainable.

Though the arbitration award was, therefore, properly vacatable, it was error for the Appellate Division simply to reduce the judgment entered on the award by $1,200. It is the arbitrator to whom is entrusted the task of fixing the attorney’s fee allowable for the issues initially arbitrable (Matter of Country-Wide Ins. Co. [Barrios], 43 NY2d 685, 686). Since there was nothing in the record before Special Term to warrant the conclusion that the entire $1,200 additional awarded by the arbitrator related solely to fees on fees, we are not foreclosed by the affirmance of its finding of fact that that sum was for a memorandum "to justify his [the attorney’s] demand for said attorney’s fee”. The disposition of the matter that the Appellate Division should have made, therefore, was to order a rehearing before the arbitrator pursuant to CPLR 7511 (subd [d]) (Matter of Weiss [Metalsalts Corp.], 15 AD2d 46, affd 11 NY2d 1042).

For the foregoing reasons, the Appellate Division’s order should be modified by striking the provision for reduction of the award and inserting in its place a provision vacating the award and remanding the matter to the arbitrator for a further hearing, and, as so modified, affirmed.

Chief Judge Cooke and Judges Gabrielli, Wachtler and Fuchsberg concur with Judge Jones; Judge Meyer dissents in part and votes to modify in a separate opinion in which Judge Jasen concurs.

Order reversed, with costs, and the judgment of Supreme Court, Queens County, reinstated.

      . Reference is made by both the insurance carrier and the claimant to the standard for judicial review of an award in compulsory arbitration as contrasted with the standard in voluntary arbitration (Mount St. Mary’s Hosp. of Niagara Falls v Catherwood, 26 NY2d 493). In our analysis this difference is of no significance in this case. The issue is the authority of the arbitrator to make an award for services rendered in substantiating the claim for the attorney’s fee. No contention is made by the insurance carrier that if the arbitrator had such authority there would be any ground for judicial disturbance of the award made by him.

      . When in Matter of Country-Wide Ins. Co. (Barrios) (43 NY2d 685, supra) our court indicated the breadth of the authority conferred on the arbitrator in determining the amount of the attorney’s fee, the Legislature amended subdivision 1 of section 675 to provide that the right of the claimant to recover his attorney’s reasonable fee would be "subject to limitations promulgated by the superintendent in regulations”. (L 1977, ch 892, § 13, eff Dec. 1, 1977.) The regulations thereafter issued by the superintendent pursuant to this amendment, while imposing limitations as to the amounts to be awarded for legal services, contain no prescription pertinent to the issue before us and certainly no proscription (11 NYCRR 65.16 [c] [7], 65.17 [k]). In any event neither the statutory amendment nor the regulations issued thereunder are applicable to the present case.

      . In view of this conclusion there is no necessity to consider whether some part of the additional services, on which the incremental allowance of $1,200 was predicated, was in fact related to the claim for payment of the X-ray bill.

      . In announcing our decision we note, as indicated (supra, n 2), that pursuant to legislative authority the Superintendent of Insurance has now issued regulations limiting the amount of fees which may be awarded by an arbitrator in a section 675 arbitration. To the extent that there may previously have been anxiety in some quarters that arbitrators were being accorded unbridled authority to fix unreasonably high legal fees, this anxiety should now be allayed.


author: Fuchsberg, J. Jones, J.

text:
    Bruce E. Gross, Respondent, v William Sweet, Doing Business as Stormville Parachute Center, et al., Appellants.
    Argued November 12, 1979;
    decided November 29, 1979

      POINTS OF COUNSEL

      Michael Davidoff and John S. McBride for appellants.
    The reversal of the decision of the court at Special Term wherein the court below reinstated the complaint of plaintiff-respondent and dismissed the affirmative defense of release was improper in that the release, which was freely entered into, satisfied the requirements of the laws of the State of New York which uphold the validity of such releases. (Van Dyke Prods. v Eastman Kodak Co., 12 NY2d 301; Ciofalo v Vic Tanney Gyms, 10 NY2d 294; Theroux v Kendenburg Racing Assn., 50 Misc 2d 97, 28 AD2d 960, 20 NY2d 648; Phibbs v Ray’s Chevrolet Corp., 45 AD2d 897; Solodar v Watkins Glen Grand Prix Corp., 36 AD2d 552; Church v Seneca County Agrie. Soc., 41 AD2d 787, 34 NY2d 571; Gervasi v Holland Raceway, 40 AD2d 574; Kotary v Spencer Speedway, 47 AD2d 127; Hertzog v Harrison Is. Shores, 21 AD2d 859; Bernstein v Seacliff Beach Club, 35 Misc 2d 153.)

      Philip Korn for respondent.
    I. The order of the court below reinstating plaintiff’s complaint and granting plaintiff’s motion to dismiss the affirmative defense of release, was correct as a matter of law. The language of the release executed by plaintiff did not clearly and unequivocably absolve defendants of liability for their acts of negligence. (Howard v Handler Bros. & Winell, 279 App Div 72, 303 NY 990; Boll v Sharp & Dohme, 281 App Div 568, 307 NY 646; Van Dyke Prods. v Eastman Kodak Co., 12 NY2d 301; Rappaport v Phil Gottlieb-Sattler, Inc., 280 App Div 424, 305 NY 594; Kaufman v American Youth Hostels, 5 NY2d 1016; Hertzog v Harrison Is. Shores, 21 AD2d 859; Ciofalo v Vic Tanney Gyms, 10 NY2d 294; Bradley Realty Corp. v State of New York, 54 AD2d 1104.) II. The "release” required to be signed by plaintiff as a condition before he would be accepted as a paying student in a training school is against public policy and void. (Boll v Sharp & Dohme, 281 App Div 568.) III. Existence of triable issues of fact being present here, summary judgment may not be granted as a matter of law. (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395.)
   OPINION OF THE COURT

Fuchsberg, J.

We hold that, in the circumstances of this case, a release signed by the plaintiff as a precondition for his enrollment in defendant’s parachute jumping course does not bar him from suing for personal injuries he allegedly incurred as a result of defendant’s negligence.

Plaintiff Bruce Gross, wishing to learn how to parachute, enrolled in the Stormville Parachute Center Training School, a facility owned and operated by the defendant William Sweet for the purpose of offering instruction in the sport. The ensuing events are essentially undisputed. As a prerequisite for admission into the course, Gross had to pay a fee and sign a form entitled "Responsibility Release”. He was then given the standard introductory lesson, which consisted of approximately one hour of on-land training, including oral instruction as well as several jumps off a two and a half foot table. Plaintiff then was equipped with a parachute and flown to an altitude of 2,800 feet for his first practice jump. Upon coming in contact with the ground on his descent, plaintiff suffered serious personal injuries.

The suit is grounded on negligence, breach of warranty and gross negligence. In the main, plaintiff claims that defendant failed to provide adequate training and safe equipment, violated certain rules and procedures promulgated by the Federal Aviation Administration governing the conduct of parachute jumping schools and failed to warn him sufficiently of the attendant dangers.

Defendant pleaded the release plaintiff had signed and moved for summary judgment, contending that the terms of the release exculpated the defendant from any liability. Plaintiff, in turn, cross-moved to strike this affirmative defense contending, primarily, that the terms of the release did not specifically bar a suit for personal injuries negligently caused by the defendant. He also urged that, as a matter of policy, the release should not be enforceable as between a student and his teacher, a relationship in which one of the parties holds himself out as qualified and responsible to provide training in a skill and the other party relies on this expertise, particularly in the context of an activity in which the degree of training necessary for safe participation is much greater than might be apparent to a novice. Alternatively, plaintiff argues that the release in any event does not excuse defendant’s violation of the Federal Aviation Administration’s regulations governing parachute jumping schools and student parachutists, one of which allegedly required that a medical certificate be furnished as a prerequisite to enrollment in a parachute jumping course. Defendant’s failure to request one, plaintiff asserts, bore critically on his situation because, despite his having informed defendant that several years earlier an orthopedic pin had been inserted in his leg, he was accepted as a student though, as the school must have known, landing in a parachute puts special stress on one’s legs.

However, Special Term granted defendant’s motion, denied plaintiff’s cross motion and dismissed the complaint. On plaintiff’s appeal from that order, a divided Appellate Division reversed, reinstated the complaint and granted plaintiff’s motion to dismiss the affirmative defense. The appeal is now before us on a certified question: "Was the order of this Court, which reinstated the complaint and granted plaintiff’s motion to dismiss the affirmative defense of release, correct as a matter of law?” Our answer is that it was.

We begin with the proposition, too well settled to invoke any dispute, that the law frowns upon contracts intended to exculpate a party from the consequences of his own negligence and though, with certain exceptions, they are enforceable, such agreements are subject to close judicial scrutiny (Van Dyke Prods. v Eastman Kodak Co., 12 NY2d 301, 304; 4 Williston, Contracts [3d Jaeger ed], § 602A, pp 326, 332). To the extent that agreements purport to grant exemption for liability for willful or grossly negligent acts they have been viewed as wholly void (see Restatement, Contracts, § 575; 15 Williston, Contracts [3d Jaeger ed], § 1750A, p 141; New York Cent R. R. Co. v Mohney, 252 US 152; cf. Ciofalo v Vic Tanney Gyms, 10 NY2d 294, 297). And so, here, so much of plaintiff’s complaint as contains allegations that defendant was grossly negligent, may not be barred by the release in any event. But we need not explore further this possibility for we conclude the complaint in its entirety withstands the exculpatory agreement.

Nor need we consider plaintiff’s request that we ignore the release on the grounds that the special relationship of the parties and the public interest involved forbids its enforcement. While we have, for example, had occasion to invalidate such provisions when they were contained in the contract between a passenger and a common carrier (Conklin v Canadian-Colonial Airways, 266 NY 244), or in a contract between a customer and a public utility under a duty to furnish telephone service (Emery v Rochester Tel. Corp., 156 Misc 562, affd 246 App Div 787) or when imposed by an employer as a condition of employment (Johnston v Fargo, 184 NY 379), the circumstances here do not fit within any of these relationships. And, though we note that a recent statute renders void agreements purporting to exempt from liability for negligence those engaged in a variety of businesses that serve the public (e.g., landlords [General Obligations Law, § 5-321]; caterers [§ 5-322]; building service or maintenance contractors [§ 5-323]; those who maintain garages or parking garages [§ 5-325]; or pools, gymnasiums or places of public amusement or recreation [§ 5-326]), defendant’s occupation does not fall within any of these classes either. We also decline, at this point, plaintiff’s invitation that we proceed further to consider what effect, if any, the alleged contravention of Federal regulations may have on the relationship of the parties or the public interest involved. Such questions need not be reached in view of our holding that the wording of the exculpatory agreement does not preclude plaintiff’s suit for negligence.

Not only does this stringent standard require that the drafter of such an agreement make its terms unambiguous, but it mandates that the terms be understandable as well. Thus, a provision that would exempt its drafter from any liability occasioned by his fault should not compel resort to a magnifying glass and lexicon. (Rappaport v Phil Gottlieb-Sattler, Inc., 280 App Div 424, affd 305 NY 594.) Of course, this does not imply that only simple or monosyllabic language can be used in such clauses. Rather, what the law demands is that such provisions be clear and coherent (cf. General Obligations Law, § 5-702).

By and large, if such is the intention of the parties, the fairest course is to provide explicitly that claims based on negligence are included (see Ciofalo v Vic Tanney Gyms, supra, p 296 [plaintiff "agreed to assume full responsibility for any injuries which might occur to her in or about defendant’s premises, 'including but without limitation, any claims for personal injuries resulting from or arising out of the negligence of the defendant”]). That does not mean that the word "negligence” must be employed for courts to give effect to an exculpatory agreement; however, words conveying a similar import must appear (see Theroux v Kedenburg Racing Assn., 50 Misc 2d 97, 99, affd 28 AD2d 960 [agreement provided for release of liability for any injury "regardless of how such injury * * * may arise, and regardless of who is at fault * * * and even if the loss is caused by the neglect or fault of’ the defendant]).

We are, of course, cognizant of the fact that the general rule of strict judicial construction has been somewhat liberalized in its application to exoneration clauses in indemnification agreements, which are usually "negotiated at arm’s length between * * * sophisticated business entities” and which can be viewed as merely "allocating the risk of liability to third parties between themselves, essentially through the employment of insurance” (Hogeland v Sibley, Lindsay & Curr Co., 42 NY2d 153, 158, 161; see Levine v Shell Oil Co., 28 NY2d 205, 212; Liff v Consolidated Edison Co. of N. Y., 23 NY2d 854). In such cases, the law, reflecting the economic realities, will recognize an agreement to relieve one party from the consequences of his negligence on the strength of a broadly worded clause framed in less precise language than would normally be required, though even then it must evince the "unmistakable intent of the parties” (Kurek v Port Chester Housing Auth., 18 NY2d 450, 456).

The case before us today obviously does not fit within this exception to the strict legal standard generally employed by the courts of this State under which exculpatory provisions drawn, in broad and sweeping language have not been given effect. For example, agreements to release from "any and all responsibility or liability of any nature whatsoever for any loss of property or personal injury occurring on this trip” (Kaufman v American Youth Hostels, 5 NY2d 1016, modifying 6 AD2d 223, 228, 229) or to "waive claim for any loss to personal property, or for any personal injury while a member of [a] club” (Hertzog v Harrison Is. Shores, 21 AD2d 859) have not barred claims based on negligence (see Bernstein v Seacliff Beach Club, 35 Misc 2d 153). Moreover, in Boll v Sharp & Dohme (281 App Div 568, affd 307 NY 646, supra), we held not sufficiently unambiguous a release form in which a blood donor was required to agree that defendants were not "in any way responsible for any consequences * * * resulting from the giving of such blood or from any of the tests, examinations or procedures incident thereto”, and further "release[d] and discharge[d] [defendants] from all claims and demands whatsoever * * * against them or any of them by reason of any matter relative or incident to such donation of blood”. (307 NY, p 647.) The donor was thus allowed to sue in negligence for injuries he sustained when, on the completion of the blood donation, he fainted and fell to the floor.

With all this as background, the language of the "Responsibility Release” in the case before us, must be viewed as no more explicit than that in Boll. In its entirety, it reads: "I, the undersigned, hereby, and by these covenants, do waive any and all claims that I, my heirs, and/or assignees may have against Nathaniel Sweet, the Stormville Parachute Center, the Jumpmaster and the Pilot who shall operate the aircraft when used for the purpose of parachute jumping for any personal injuries or property damage that I may sustain or which may arise out of my learning, practicing or actually jumping from an aircraft. I also assume full responsibility for any damage that I may do or cause while participating in this sport”.

Assuming that this language alerted the plaintiff to the dangers inherent in parachute jumping and that he entered into the sport with apprehension of the risks, it does not follow that he was aware of, much less intended to accept, any enhanced exposure to injury occasioned by the carelessness of the very persons on which he depended for his safety. Specifically, the release nowhere expresses any intention to exempt the defendant from liability for injury or property damages which may result from his failure to use due care either in his training methods or in his furnishing safe equipment. Thus, whether on a running reading or a careful analysis, the agreement could most reasonably be taken merely as driving home the fact that the defendant was not to bear any responsibility for injuries that ordinarily and inevitably would occur, without any fault of the defendant, to those who participate in such a physically demanding sport.

In short, instead of specifying to prospective students that they would have to abide any consequences attributable to the instructor’s own carelessness, the defendant seems to have preferred the use of opaque terminology rather than suffer the possibility of lower enrollment. But, while, with exceptions not pertinent to this case, the law grudgingly accepts the proposition that men may contract away their liability for negligently caused injuries, they may do so only on the condition that their intention be expressed clearly and in "unequivocal terms” (Van Dyke Prods, v Eastman Kodak Co., 12 NY2d 301, 305, supra).

Accordingly, the certified question is answered in the affirmative, and the order of the Appellate Division reversing the grant of summary judgment, reinstating the complaint and dismissing the defense based on the release should be affirmed.

Jones, J.

(dissenting). I have no quarrel with the position of the majority that the release executed by plaintiff on November 1, 1975 should not be given effect to bar recovery in the event he establishes that the injuries he suffered were caused by gross negligence on the part of either or both defendants. I do dissent, however, from the majority’s conclusion that the instrument is insufficient as a matter of law to relieve defendants from liability for fault short of gross misconduct on their part; this conclusion emasculates the instrument and is inconsistent with current law interpreting agreements exonerating a party from liability for his own negligence.

Despite the unlimited language of the release given by plaintiff, by which he explicitly waived "any and all claims [against the present defendants] for any personal injuries or property damage that I may sustain or which may arise out of my learning, practicing or actually jumping from an aircraft”, the majority concludes that the agreement does not exonerate defendants from liability for ordinary negligence on their part. This is said to follow because, although disclaiming a requirement that the particular word "negligence” be included in the release, the majority concludes (p 108) that the instrument does not contain "words conveying a similar import” which it states must be employed by the parties.

This result would have been congenial to the prior view of exoneration agreements under which, because the law looked with disfavor on attempts of a party to avoid liability for his own fault, there was insistence that from the agreement "it must be absolutely clear that such was the understanding of the parties” (Van Dyke Prods. v Eastman Kodak Co., 12 NY2d 301, 304). It fails, however, to take into account the change which was wrought by our discard of Thompson-Starrett Co. v Otis Elevator Co. (271 NY 36), which had been the fountainhead of the requirement that a contract to indemnify a person against his own negligence must express such intention in "unequivocal terms” (271 NY, p 41). It is significant for present purposes that, prior to its abandonment, the Thompson-Starrett rule was applied with equal vigor to both indemnification agreements and to releases.

The disposition of the present appeal by the majority is wholly consistent with Thompson-Starrett and its progeny; indeed its holding is predicated on Thompson-Starrett analysis (p 107). This court, however, has long since repudiated the principle of Thompson-Starrett. In Kurek v Port Chester Housing Auth. (18 NY2d 450) and in Liff v Consolidated Edison Co. of N. Y. (23 NY2d 854, affg 29 AD2d 665) we "made substantial inroads on the Thompson-Starrett rationale” (Levine v Shell Oil Co., 28 NY2d 205, 212), finding sufficiently unequivocal to create a right of indemnification against the indemnitee’s own negligence, agreements that would not have passed muster under our prior decisions. In Levine we expressly announced that the Thompson-Starrett rationale "is no longer a viable statement of the law”, cautioning that courts should be wary of construing such provisions "in such a manner that they become absolutely meaningless” (28 NY2d, p 212). Indeed, as we only recently said in Hogeland v Sibley, Lindsay & Curr Co. (42 NY2d 153, 158-159): "A lease or other contract * * * is no longer to be construed as not intending indemnification of a party for its own negligence unless that intention is set forth in specific and 'unequivocal terms’ (see Thompson-Starrett Co. v Otis Elevator Co., 271 NY 36, 41). Instead, in such cases we now look to the 'unmistakable intent of the parties’ rather than the semantic stereotypes with which an agreement may be phrased (Levine v Shell Oil Co., 28 NY2d 205, 212). It suffices that the agreement between the parties connotes an 'intention to indemnify [which] can be clearly implied from the language and purposes of the entire agreement.’ (Margolin v New York Life Ins. Co., 32 NY2d 149, 153.)” In light of these decisions, I cannot agree with the majority’s continued application of the Thompson-Starrett rule of strict judicial construction. Nor can I perceive any basis for their suggestion that Kurek and the cases that have followed it have only carved out an exception, into which they find the present release does not fall. Rather I accept at face value the unqualified language of the Levine decision that Thompson-Starrett "is no longer a viable statement of the law”. (28 NY2d, p 212.)

There is no reason to believe that the development of the law with respect to interpretation of agreements by which a party is relieved of liability for his own negligence is not equally applicable to agreements which take the form of release as well as to those providing indemnification. The principles involved — that contracts should not be so construed as to make them meaningless and that the intent of the parties is to be drawn from the entire instrument, not from the presence or absence of a particular talismanic word or term — are equally appropriate and, when applied to the case before us, lead inescapably to the conclusion that the instrument executed by this plaintiff prior to his undertaking instruction at the hands of defendants served to exonerate the latter from the ordinary negligence claims plaintiff presently asserts.

The activity on which plaintiff was. about to embark under the tutelage of defendants was a hazardous one at best, but virtually the only claims that he might have had against them should he sustain personal injuries or property damage would be claims resulting from fault or negligence of defendants. The majority reads the agreement "merely as driving home the fact that the defendant was not to bear any responsibility for injuries that ordinarily and inevitably would occur, without any fault of the defendant, to those who participate in such a physically demanding sport”, (p 110.) But of what significance or practical effect is such a release? It is difficult to conceive of any claim other than one predicated on negligence; personal injuries or property damage occasioned without negligence by one or both of the defendants would give rise to no cause of action at all. The release then, if construed as not including claims predicated on negligence, releases nothing and is meaningless and a nullity. A more broadly worded exoneration provision would be difficult to imagine; a requirement that there be included the word "negligence” or a description of the specific acts of misconduct pleaded in the complaint (as plaintiff would contend for) would be a reversion to the "semantic stereotypes”, which we have now abjured (Hogeland v Sibley, Lindsay & Curr Co., 42 NY2d 153, 159, supra). There is therefore no basis for limiting the effect of the release executed by this plaintiff; claims such as the present ones based on ordinary negligence appear to me to be precisely the claims intended by the parties to be included in the language "any and all claims * * * for any personal injuries or property damage that I may sustain or which may arise out of my learning, practicing or actually jumping from an aircraft”.

As the majority observes, the relationship between these parties is not such as to give rise to a public interest precluding enforcement of the release executed by plaintiff. Except as to the cause of action predicated on the alleged claim of gross negligence, I would therefore reverse the order of the Appellate Division, reinstate the affirmative defense of release pleaded by defendants, and grant summary judgment in favor of defendants dismissing the causes of action alleged in the complaint.

Chief Judge Cooke and Judges Gabrielli and Wachtler concur with Judge Fuchsberg; Judge Jones dissents and votes to reverse in a separate opinion in which Judges Jasen and Meyer concur.

Order affirmed, with costs. Question certified answered in the affirmative.

       Thus in Kaufman v American Youth Hostels (5 NY2d 1016) this court dismissed defendant’s affirmative defense of release, citing Thompson-Starrett, Walters v Rao Elec. Equip. Co. (289 NY 57), which had rejected a claim for indemnification, and Boll v Sharp & Dohme (307 NY 646), in which a defense of release had also been dismissed. (But see the dissenting opn of Beeitel, J., in Boll, 281 App Div 568, 572.) In Van Dyke Prods, v Eastman Kodak Co. (12 NY2d 301, supra), in which we found a written notice not sufficiently unequivocal to relieve the defendant of its own negligence, our determination was predicated on Thompson-Starrett Co. which was discussed and quoted. Again, in Ciofalo v Vic Tanney Gyms (10 NY2d 294), where we held a release sufficient to exonerate the defendant from its own negligence, we cited the Thompson-Starrett case as authority for the need for "express language to that effect” (10 NY2d, p 297).