author: Chief Judge Cooke. Fuchsberg, J.

text:
    Gerald Robinson, Respondent, v Reed-Prentice Division of Package Machinery Company, Appellant and Third-Party Plaintiff. Plastic Jewel Parts Company, Inc., Third-Party Defendant-Appellant.
    Argued January 8, 1980;
    decided February 14, 1980

      POINTS OF COUNSEL

      William F. McNulty, Walter A. Donnelly and Anthony J. McNulty for appellant and third-party plaintiff.
    I. The complaint herein should have been dismissed at the close of the evidence on the ground that plaintiff failed to establish a prima facie case against Reed-Prentice either on the theory of negligence or on the theory of strict products liability. (Bergen v I.L.G.W.U. Houses, 38 AD2d 933; Micallef v Miehle Co., Div. of Miehle-Goss Dexter, 39 NY2d 376; Gasper v Ford Motor Co., 13 NY2d 104; Borshowsky v Altman & Co., 280 App Div 599, 306 NY 798; Mancino v 1951 5th Ave. Corp., 20 AD2d 771, 16 NY2d 527; Behm v Seaman, 45 AD2d 673; Codling v Paglia, 32 NY2d 330.) II. Even though it be assumed, arguendo, that the proof may have raised issues of fact for the jury respecting the liability of Reed-Prentice in this case, the charge of the Trial Justice finds no support in any reported case decided either in New York or in any other American jurisdiction under facts in any way comparable to the novel facts presented in the case at bar. (Campo v Scofield, 301 NY 468; Codling v Paglia, 32 NY2d 330; Victorson v Bock Laundry Mach. Co., 37 NY2d 395; Fogal v Genesee Hosp., 41 AD2d 468; Halloran v Virginia Chems., 41 NY2d 386; Resenzweig v Aristo Truck Renting Corp., 34 AD2d 542; Cascia v Maze Woodenware Co., 29 AD2d 964; Fernandez v Chios Shipping Co., 542 F2d 145; Hagans v Oliver Mach. Co., 576 F2d 97; Hanlon v Cyril Bath Co., 541 F2d 343.) III. Other errors at least mandating a new trial of this action were committed by the Trial Justice. (Winnick v New York State Elec. & Gas Corp., 38 AD2d 623, 32 NY2d 624; Codling v Paglia, 32 NY2d 330; Ashe v Niagara Mach. & Tool Works, 60 AD2d 616; Kasper v Buffalo Bills of Western N. Y., 42 AD2d 87; Gilliard v Long Is. R. R. Co., 45 NY2d 996.)

      Steven B. Prystowsky for third-party defendant-appellant.
    I. The manufacturer of a product is not liable to any person injured under the theory of strict liability in tort if, after the product leaves the manufacturer’s control, there is a subsequent modification which substantially alters the product. Further, assuming, arguendo, there was a design defect in the product, a manufacturer is not liable to anyone injured under general principles of negligence if knowledge of the design defect was brought home to the purchaser and the purchaser was in a better position to correct the design defect but failed to do so. (Micallef v Miehle Co., Div. of Miehle-Goss Dexter, 39 NY2d 376; Biss v Tenneco, 64 AD2d 204, 46 NY2d'711; Ashe v Niagara Mach. & Tool Works, 60 AD2d 616; McLaughlin v Mine Safety Appliances Co., 11 NY2d 62; Bolm v Triumph Corp., 33 NY2d 151; Cousins v Instrument Flyers, 58 AD2d 336, 44 NY2d. 698; Bergen v I.L.G.W.U. Houses, 38 AD2d 933; Hardy v Hull Corp., 446 F2d 34; Young v Aeroil Prods., 248 F2d 185; Speyer, Inc. v Humble Oil & Refining Co., 403 F2d 766.) II. The Trial Judge’s instructions to the jury were confusing and contradictory, requiring a new trial in the interest of justice. (Bolm v Triumph Corp., 58 AD2d 1014; Micallef v Miehle Co., Div. of Miehle-Goss Dexter, 39 NY2d 376; Culver v Gloo, 27 AD2d 698; Boerio v Haiss Motor Trucking Co., 7 AD2d 228; Arroyo v Judena Taxi, 20 AD2d 888; Smith v Gray, 19 App Div 262, 162 NY 643; Meyers v Grand Union Co., 26 AD2d 646; Green v Downs, 27 NY2d 205; France v Shannon, 36 AD2d 651.)

      Richard E. Shandell for respondent.
    I. Defendant was properly held legally responsible for plaintiffs injuries. (Codling v Paglia, 32 NY2d 330; Micallef v Miehle Co., Div. of Miehle-Goss Dexter, 39 NY2d 376; Merced v Auto Pak Co., 533 F2d 71; Tucci v Bossert, 53 AD2d 291; Parks v Simpson Timber Co., 388 US 459; Thomas v American Cystoscope Makers, 414 F Supp 255; Mazzi v Greenlee Tool Co., 320 F2d 821; McPherson v Buick Motor Co., 217 NY 382; Palsgraf v Long Is. R. R. Co., 248 NY 339; Grant v Knepper, 245 NY 158.) II. Defendants’ breach of duty was a proximate cause of plaintiff’s injuries. (Bolm v Triumph Corp., 33 NY2d 151.) III. Contributory negligence, if any, of the infant plaintiff was an issue properly left to the jury. (Wartels v County Asphalt, 29 NY2d 372; Rossman v La Grega, 28 NY2d 300; McDonald v Central School Dist. No. 3 of Towns of Romulus, Varick & Fayette, 289 NY 800; Broderick v Cauldwall- Wingate Co., 301 NY 182; Merced v Auto Pak Co., 533 F2d 71; Boerio v Haiss Motor Trucking Co., 7 AD2d 228; Kaplan v 48th Ave. Corp., 267 App Div 272.) IV. The letter of Reed-Prentice expressing its refusal to make any attempt to improve the safety of its machine was admissible into evidence. (Micallef v Miehle Co., Div. of Miehle-Goss Dexter, 39 NY2d 376.) V. The statement of Marone was properly submitted to the jury. (Spampinato v A. B. C. Cons. Corp., 35 NY2d 283; Kasper v Buffalo Bills of Western N. Y., 42 AD2d 87; Letendre v Hartford Acc. & Ind. Co., 21 NY2d 518; McPherson v Buick Motor Co., 217 NY 382.) VI. The trial court properly set forth the issues to the jury in its charge. (Arroyo v Judena Taxi, 20 AD2d 888; Anchor Motor Frgt. v Shapiro, 56 AD2d 573; Green v Downs, 27 NY2d 205.) VII. The trial court’s charge on contributory negligence was wholly proper. (Kalish v Krieger, 35 NY2d 864.)
   OPINION OF THE COURT

Chief Judge Cooke.

We hold that a manufacturer of a product may not be cast in damages, either on a strict products liability or negligence cause of action, where, after the product leaves the possession and control of the manufacturer, there is a subsequent modification which substantially alters the product and is the proximate cause of plaintiffs injuries.

Plaintiff Gerald Robinson, then 17, was employed as a plastic molding machine operator by third-party defendant Plastic Jewel Parts Co. A recent arrival to New York from South Carolina where he had been an itinerant farm worker, Robinson had been employed by Plastic Jewel for approximately three weeks. On October 15, 1971, plaintiff suffered severe injuries when his hand was caught between the molds of a plastic molding machine manufactured by defendant Reed-Prentice and sold to Plastic Jewel in 1965, some six and one-half years prior to the accident.

Plaintiff commenced this action against Reed-Prentice which impleaded third-party defendant Plastic Jewel. At the close of proof, causes of action in strict products liability and negligence in the design and manufacture of the machine were submitted to the jury. A sizeable general verdict was returned in favor of plaintiff, the jury apportioning 40% of the liability against Reed-Prentice, the remainder against Plastic Jewel. On appeal, the Appellate Division reversed and ordered a new trial limited to the issue of damages unless plaintiff stipulated to a reduced verdict. Plaintiff so stipulated and the judgment, as amended and reduced, was affirmed. This court then granted Reed-Prentice and Plastic Jewel leave to appeal (CPLR 5602, subd [a], par 1, cl [ii]). We now reverse.

The plastic injection molding machine is designed to melt pelletized plastic inside a heating chamber. From the heating chamber, the liquefied plastic is forced into the mold area by means of a plunger. The mold area itself is composed of two rectangular platens on which the plastic molds are attached. One of the platens moves horizontally to open and close the mold; the other remains stationary. When the operating cycle is begun, hydraulic pressure causes the movable platen to be brought up against the stationary platen, thus forming a completed mold into which the heated plastic is pumped. After the plastic is cured, the movable platen returns to its original position, thereby permitting the operator to manually remove the finished product from its mold.

To protect the operator from the mold area, Reed-Prentice equipped the machine with a safety gate mounted on rollers and connecting interlocks in conformity with the State Industrial Code (12 NYCRR 19.34). Completely covering the mold area, the metal safety gate contained a Plexiglas window allowing the operator to monitor the molding process. Since the gate shielded the mold area, access to the platens was impossible while the machine was operating. Only when the molding sequence was completed could the operator roll the safety gate to the open position, allowing him to reach into the mold area to remove the finished product. The interlocks were connected to electrical switches which activated the hydraulic pump. When the safety gate was closed, the interlocks complete a circuit that activates the hydraulic pump, thereby causing the movable platen to close upon its stationary counterpart. When the safety gate was opened, however, this essential circuit would not be completed and hence the machine would not be activated.

After the machine was delivered by Reed-Prentice, Plastic Jewel discovered that its design did not comport with its production requirements. Plastic Jewel purchased the machine in order to mold beads directly onto a nylon cord. The cord was stored in spools at the back of the machine and fed through the mold where the beads were molded around it. After each molding cycle, the beads were pulled out of the mold and the nylon cord was reset in the mold for the next cycle. To allow the beads to be molded on a continuous line, Plastic Jewel determined that it was necessary to cut a hole of approximately 6 by 14 inches in the Plexiglas portion of the safety gate. The machine, as designed, contracted for and delivered, made no provision for such an aperture. At the end of each cycle, the now corded beads would be pulled through the opening in the gate, the nylon cord would be restrung, and the next cycle would be started by opening and then closing the safety gate without breaking the continuous line of beads. While modification of the safety gate served Plastic Jewel’s production needs, it also destroyed the practical utility of the safety features incorporated into the design of the machine for it permitted access into the molding area while the interlocking circuits were completed. Although the record is unclear on this point, plaintiff’s hand somehow went through the opening cut into the safety gate and was drawn into the molding area while the interlocks were engaged. The machine went through the molding cycle, causing plaintiff serious injury.

The record contains evidence that Reed-Prentice knew, or should have known, the particular safety gate designed for the machine made it impossible to manufacture beads on strings. During the period immediately prior to the purchase of the machine, Reed-Prentice representatives visited the Plastic Jewel plant and observed two identical machines with holes cut in the Plexiglas portion of their safety gates. At that meeting, Plastic Jewel’s plant manager discussed the problem with a Reed-Prentice salesman and asked whether a safety gate compatible with its product needs could be designed. Moreover, a letter sent by Reed-Prentice to Plastic Jewel establishes that the manufacturer knew precisely what its customer was doing to the safety gate and refused to modify its design. However, the letter pointed out that the purchaser had "completely flaunted the safeties built into this machine by removing part of the safety window”, and that it had not "held up your end of the purchase when you use the machine differently from its design” and the manufacturer stated "[a]s concerns changes, we will make none in our safety setup or design of safety gates”. At trial, plaintiffs expert indicated that there were two modifications to the safety gate which could have been made that would have made it possible to mold beads on a string without rendering the machine unreasonably dangerous. Neither of these modifications were made, or even contemplated, by Reed-Prentice.

Defendants maintain that a manufacturer may not be held to answer in damages where the purchaser of its product deliberately destroys the functional utility of that product’s safety features and, as a result of that intentional act, a third party is injured. Once a product which is not defective is injected into the stream of commerce, they argue, the responsibility of the manufacturer is at an end. Thus, having delivered to Plastic Jewel a plastic injection molding machine which was free from defect and in conformity with State promulgated safety regulations, Reed-Prentice fully discharged any legal duty it may have owed to Plastic Jewel and its employees. Plaintiff asserts that a manufacturer’s duty is tempered by principles of foreseeability. Thus, if a manufacturer knows or has reason to know that its product would be used in an unreasonably dangerous manner, for example by cutting a hole in a legally required safety guard, it may not evade responsibility by simply maintaining that the product was safe at the time of sale.

A cause of action in strict products liability lies where a manufacturer places on the market a product which has a defect that causes injury (Codling v Paglia, 32 NY2d 330, 342). As the law has developed thus far, a defect in a product may consist of one of three elements: mistake in manufacturing (Victorson v Bock Laundry Mach. Co., 37 NY2d 395; Codling v Paglia, supra), improper design (Micallef v Miehle Co., Div. of Miehle-Goss Dexter, 39 NY2d 376; Bolm v Triumph Corp., 33 NY2d 151), or by the inadequacy or absence of warnings for the use of the product (Torrogrossa v Towmotor Co., 44 NY2d 709). Plaintiff maintains that the safety gate of the molding machine was improperly designed for its intended purpose.

Where a product presents an unreasonable risk of harm, notwithstanding that it was meticulously made according to detailed plans and specifications, it is said to be defectively designed. This rule, however, is tempered by the realization that some products, for example knives, must by their very nature be dangerous in order to be functional. Thus, a defectively designed product is one which, at the time it leaves the seller’s hands, is in a condition not reasonably contemplated by the ultimate consumer and is unreasonably dangerous for its intended use; that is one whose utility does not outweigh the danger inherent in its introduction into the stream of commerce (Restatement, Torts 2d, § 402A). Design defects, then, unlike manufacturing defects, involve products made in the precise manner intended by the manufacturer (2 Frumer & Friedman, Products Liability, § 16A [4] [f] [iv]). Since no product may be completely accident proof, the ultimate question in determining whether an article is defectively designed involves a balancing of the likelihood of harm against the burden of taking precaution against that harm (Micallef v Miehle Co., supra, p 386; 2 Harper and James, Torts, § 28.4).

But no manufacturer may be automatically held liable for all accidents caused or occasioned by the use of its product (see Wade, A Conspectus of Manufacturers’ Liability for Products, 10 Ind L Rev 755, 768). While the manufacturer is under a nondelegable duty to design and produce a product that is not defective, that responsibility is gauged as of the time the product leaves the manufacturer’s hands (Restatement, Torts 2d, § 402A, Comments g, p; Hanlon v Cyril Bath Co., 541 F2d 343, 345; Santiago v Package Mach. Co., 123 111 App 2d 305, 312; Temple v Wean United, 50 Ohio St 2d 317, 322-323). Substantial modifications of a product from its original condition by a third party which render a safe product defective are not the responsibility of the manufacturer (Keet v Service Mach. Co., 472 F2d 138, 140; Hardy v Hull Corp., 446 F2d 34, 35-36; Coleman v Verson Allsteel Press Co., 64 111 App 3d 974; Ariz Rev Stat Ann, § 12-683, subd 2; RI Gen Laws, § 9-1-32; Proposed Uniform Product Liability Act, § 112, subd [D], 44 Fed Reg 62737).

At the time Reed-Prentice sold the molding machine, it was not defective. Had the machine been left intact, the safety gate and connecting interlocks would have rendered this tragic industrial accident an impossibility. On closer analysis, then, plaintiff does not seek to premise liability on any defect in the design or manufacture of the machine but on the independent, and presumably foreseeable, act of Plastic Jewel in destroying the functional utility of the safety gate. Principles of foreseeability, however, are inapposite where a third party affirmatively abuses a product by consciously bypassing built-in safety features. While it may be foreseeable that an employer will abuse a product to meet its own self-imposed production needs, responsibility for that willful choice may not fall on the manufacturer. Absent any showing that there was some defect in the design of the safety gate at the time the machine left the practical control of Reed-Prentice (and there has been none here), Reed-Prentice may not be cast in damages for strict products liability.

Nor does the record disclose any basis for a finding of negligence on the part of Reed-Prentice in the design of the machine. Well settled it is that a manufacturer is under a duty to use reasonable care in designing his product when "used in the manner for which the product was intended * * * as well as an unintended yet reasonably foreseeable use” (Micallef v Miehle, supra, pp 385-386). Many products may safely and reasonably be used for purposes other than the one for which they were specifically designed. For example, the manufacturer of a screwdriver must foresee that a consumer will use his product to pry open the lid of a can and is thus under a corresponding duty to design the shank of the product with sufficient strength to accomplish that task. In such a situation, the manufacturer is in a superior position to anticipate the reasonable use to which his product may be put and is obliged to assure that no harm will befall those who use the product in such a manner. It is the manufacturer who must bear the responsibility if its purposeful design choice presents an unreasonable danger to users. A cause of action in negligence will lie where it can be shown that a manufacturer was responsible for a defect that caused injury, and that the manufacturer could have foreseen the injury. Control of the instrumentality at the time of the accident in such a case is irrelevant since the defect arose while the product was in the possession of the manufacturer.

The manufacturer’s duty, however, does not extend to designing a product that is impossible to abuse or one whose safety features may not be circumvented. A manufacturer need not incorporate safety features into its product so as to guarantee that no harm will come to every user no matter how careless or even reckless (cf. Aetna Ins. Co. v Loveland Gas & Elec. Co., 369 F2d 648; Drazen v Otis Elevator Co., 96 RI 114). Nor must he trace his product through every link in the chain of distribution to insure that users will not adapt the product to suit their own unique purposes. The duty of a manufacturer, therefore, is not an open-ended one. It extends to the design and manufacture of a finished product which is safe at the time of sale. Material alterations at the hands of a third party which work a substantial change in the condition in which the product was sold by destroying the functional utility of a key safety feature, however foreseeable that modification may have been, are not within the ambit of a manufacturer’s responsibility. Acceptance of plaintiff’s concept of duty would expand the scope of a manufacturer’s duty beyond all reasonable bounds and would be tantamount to imposing absolute liability on manufacturers for all product-related injuries (see Henderson, Judicial Review of Manufacturers’ Conscious Design Choices: The Limits of Adjudication, 73 Col L Rev 1531).

Unfortunately, as this case bears out, it may often be that an injured party, because of the exclusivity of workers’ compensation, is barred from commencing an action against the one who exposes him to unreasonable peril by affirmatively rendering a safe product dangerous. However, that an employee may have no remedy in tort against his employer gives the courts no license to thrust upon a third-party manufacturer a duty to insure that its product will not be abused or that its safety features will be callously altered by a purchaser (cf. McLaughlin v Mine Safety Appliances Co., 11 NY2d 62, 71-72). Where the product is marketed in a condition safe for the purposes for which it is intended or could reasonably be intended, the manufacturer has satisfied its duty.

Accordingly, the judgment appealed from and the order of the Appellate Division brought up for review should be reversed, with costs, and the complaint and third-party complaint dismissed.

Fuchsberg, J.

(dissenting). The majority opinion appears to proceed on the assumption that the plaintiffs suit was based essentially on a strict products liability theory alone and, unwilling to carry the promise of Codling and Micaleff to its logical fruition, would deny plaintiff a recovery on that theory. Doing so, however, it ignores the fact that the "first cause of action” — the one pleaded first and charged first— rested on traditional common-law negligence theories, two of which at least were firmly supported by the proof and could well serve as solid foundations for the jury’s verdict.

Indeed, the proof was overwhelming that, to the knowledge of Reed-Prentice, the safety device on the machine it was selling to Plastic Jewel would be rendered completely ineffective before the machine was ever put to use. For, as sold, there was no way in which it could turn out Plastic Jewel’s product unless the hazardous hole was cut into the safety gate.

This was not the first such machine Plastic Jewel had purchased from Reed-Prentice. It was the fourth. Each of the first three had been altered in the identical fashion. Before the purchase of the fateful one, Reed-Prentice’s representative had visited the Plastic Jewel plant, where he observed the machines operating, each with the gaping hole in plain sight. In fact, the contract of sale was negotiated in Plastic Jewel’s factory in full view of the altered, earlier-purchased machines. Conclusively on this point, in a letter to Plastic Jewel, Reed-Prentice had made admissions that the majority recognizes "establishes that the manufacturer knew precisely what its customer was doing to the safety gate”. But that did not inhibit it from making the sale, at its price of $28,000 per machine.

Moreover, pathos was added by proof that Plastic Jewel had made frequent but unavailing entreaties of the manufacturer and its sales and service personnel seeking some modification of the machine that would eliminate the need for piercing the safety gate. As expert testimony revealed, the machine could easily have been made safe for the anticipated use by either of at least two simple modifications. One, at a cost of only $200, would be the installation of "dual hand controls”, which would cause the machine to stop unless both of the operator’s hands were safely occupied pressing buttons spaced widely apart. The second, at a cost of $400 to $500, would, by conversion of the horizontal gate to a vertical one, allow for the extrusion of the product without a dangerously wide aperture.

This array of facts proved the allegations that Reed-Prentice had been negligent "in selling and distributing a machine which [it] knew or should have known to be dangerous, defective and unsafe” as well as "in failing to affix proper and adequate warnings of the dangers”. The law of negligence therefore required no extension to permit a finding of liability: "[t]he risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation” is right on target (Palsgraf v Long Is. R. R. Co., 248 NY 338, 344). Put another way, "[t]he parameters of the manufacturer’s duties may be said to be whatever is foreseeable by application of due care” (Rheingold, Expanding Liability of the Product Supplier: A Primer, 2 Hofstra L Rev 521, 538).

Under these standards, it cannot be gainsaid that the risk of injury in this case was substantial and even omnipresent as long as the safety gates were known to have been rendered useless. The injury that occurred was then surely foreseeable, and, indeed, was precisely that which the safety gate itself was to have anticipated. That the accident would result in part from the purchaser’s misuse was but a factor to be weighed in ascertaining whether the harm was foreseeable and, hence, whether, given its resources and expertise, the manufacturer acted in a reasonably prudent fashion (see Finnegan v Havir Mfg. Corp., 60 NJ 413, 423; Thompson v Package Mach. Co., 22 Cal App 3d 188, 196; Byrnes v Economic Mach. Co., 41 Mich App 192; Noel, Manufacturer’s Negligence of Design or Directions for Use of a Product, 42 Tenn L Rev 11, 50, 64).

So stated, the manufacturer’s conduct may be considered culpable on either of the two negligence theories proposed by plaintiff:

The first theory sounds in "negligent entrustment”. Liability on this basis is cast upon one who places in another’s hands an instrumentality capable of doing serious harm if misused while knowing or having strong reason to believe that it will be misused to the detriment of others (Restatement, Torts 2d, § 302B, Comment e [E]; see § 390, Comment b; cf. Hogan v Comae Sales, 245 App Div 216, 218-219, affd 271 NY 562; Faller v A. Drive Auto Leasing System, 47 AD2d 530). The principle is hardly new. The situation that typically furnishes its classic illustration is that in which the defendant gives a loaded gun to a young boy who negligently points it at the plaintiff and discharges it (Dixon v Bell, 5 M & S 198 [1816]). Closer to the case today and relying on this same theory is Fredericks v General Motors Corp. (48 Mich App 580), which held that a manufacturer could be liable for injuries suffered by an employee of a small tool and die shop when the manufacturer had reason to know in advance of its entrustment of a die set to the plaintiff’s employer that the latter would use it in an unsafe manner.

In each of these instances the duty of reasonable care is breached when one passively permits a danger to be created by supplying the product to a probably negligent user; the negligence or misuse by the user is considered to be but a foreseeable intervening cause of the injury (see 2 Harper and James, Torts, § 28.2, p 1539; Prosser, Torts [4th ed], § 44, pp 272-275). By the same reasoning, then, Reed-Prentice may properly be held liable in negligence for conveying the molding machine to Plastic Jewel; the rationale applies more forcefully, in fact, because Reed-Prentice had the strongest reason to know of its customer’s intended misuse of the machine (see Smith v Hobart Mfg. Co., 302 F2d 570, 573-575; Anderson v Bushong Pontiac Co., 404 Pa 382).

The second theory propounded by plaintiff is that Reed-Prentice was negligent in failing to warn foreseeable users of the machine such as the plaintiff of the danger posed by the aperture in the safety gate. The underlying premise for liability has been stated as follows: "[0]ne who supplies a chattel for another to use for any purpose is subject to liability for physical harm caused by his failure to exercise reasonable care to give those whom he may expect to use the chattel any information as to the character and condition of the chattel which he possesses, and which he should recognize as necessary to enable them to realize the danger of using it” (Restatement, Torts 2d, § 388, Comment b; see 37 ATLA LJ 107, esp pp 113-116).

Certainly, Plastic Jewel’s misuse of the safety gate does nothing to diminish Reed-Prentice’s responsibility. Because the misuse was an open and notorious one, the manufacturer knew when it sold the machine that it could not be used for the purchaser’s purpose unless it was modified. Furthermore, it knew exactly how the machine had to be used by employees of Plastic Jewel. For this reason, it does not matter that Plastic Jewel’s misuse may have been in violation of State law (see Suchomajcz v Hummel Chem. Co., 524 F2d 19 [liability imposed on manufacturer of a component part for injuries sustained by remote users under the theory of negligent failure to warn where it supplied chemicals to fabricator of firecracker assembly kits which it knew were being sold in violation of Federal injunction]).

Nor, under the circumstances, could Reed-Prentice rest on the assumption that Plastic Jewel would convey adequate warnings to the users of the machine (see Shell Oil Co. v Gutierrez, 119 Ariz 426; First Nat. Bank v Nor-Am Agrie. Prods., 88 NM 74; Dougherty v Hooker Chem Corp., 540 F2d 174). The employer’s consistent choice of expediency over safety having already been made crystal clear, it would have been pure pollyanna to presume that the necessary safety information would filter down to those who had to work on the machine (see Restatement, Torts 2d, § 388, Comment n; 2 Harper and James, Torts, § 28.7, pp 1548-1549; cf. Bexiga v Havir Mfg. Corp., 60 NJ 402, 410-411).

Cognizant of both the danger and the continued necessity for Plastic Jewel to cut through the safety gate, and given the long-standing and on-going service relationship between manufacturer and purchaser, it turns logic and common sense upside down to say that Reed-Prentice was absolved of any duty to warn employees of the danger to which they were exposed. Nor was Reed-Prentice to be relieved of its duty to use reasonable care in bringing home the danger to users simply because the danger might appear to be an obvious one. Users of such a machine may well be unappreciative of the risk, thinking perhaps, as plaintiff’s expert attested, that the mere presence of a safety gate, even one altered to create a hole, was adequate protection, or that there were other safety devices to prevent hands from getting caught in the machine. Surely the exact nature of the risk and its more subtle aspects, including the possibility of the user’s being drawn into the machine, could well remain unperceived to the inexperienced 17-year-old plaintiff. Precisely because of such considerations, the perception of the danger by the user has generally been thought to be a jury question (Micallef v Miehle Co., Div. of Miehle-Goss Dexter, 39 NY2d 376; Bolm v Triumph Corp., 33 NY2d 151; Codling v Paglia, 32 NY2d 330; Meyer v Gehl Co., 36 NY2d 760, 763 [dissenting opn]; Merced v Auto Pak Co., 533 F2d 71; Noel, Manufacturer’s Negligence of Design or Directions for Use of a Product, 42 Tenn L Rev 11, 58, 64). The issue was therefore properly submitted at trial.

In sum, to premise liability on either a theory of negligent entrustment or negligent failure to warn is not to depart from recognized principles. And, contrary to the alarums sounded by the defendant and third-party defendant, the application of these precepts to the case here certainly cannot be said to forebode a limitless expansion of a manufacturer’s liability for product-related injuries. While, admittedly, a manufacturer is under no obligation to design "a product that is impossible to abuse or one whose safety features may not be circumvented” (pp 480-481), to uphold a jury finding that the manufacturer was negligent in the case before us would herald no such absurdly burdensome standard. Rather, liability may be reasonably circumscribed within the ambit of foreseeability, and the attachment of liability is even clearer in this instance because the manufacturer not only could have foreseen the misuse of its product but actually knew of its occurrence.

Under these circumstances, the majority’s dismissal of the complaint simply cannot be justified by that calculus for legal responsibility long professed by this court. For, "’a balancing of the likelihood of the harm, and the gravity of the harm if it happens, against the burden of the precaution which would be effective to avoid the harm’” would lead, inexorably in my opinion, to a finding of negligence (Micallef v Miehle Co., supra, p 386, quoting 2 Harper and James, Torts, § 28.4; United States v Carroll Towing Co., 159 F2d 169, 173 [Hand, J.]).

Because I conclude that the jury’s verdict was supportable on at least the negligence grounds that were submitted to it, at the very least, upon the court’s reversal of the order of the Appellate Division, a new trial should be ordered (see Clark v Board of Educ., 304 NY 488, 490; Phillipson v Ninno, 233 NY 223, 226).

Judges Jasen, Gabeielli, Jones, Wachtler and Meyer concur with Chief Judge Cooke; Judge Fuchsberg dissents and votes to affirm in a separate opinion.

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

      . The test of the manufacturer’s liability is whether the use to which the product was put was the intended one or one which by the exercise of due care was reasonably foreseeable. The anticipatable uses, therefore, will dictate the standards of safety to which the product must conform. This suggests that when the manufacturer has actual notice that the product is to be used for a specific purpose somewhat different from its general use, the manufacturer may be held responsible for taking particular safety precautions appropriate for the product’s known use, a matter the further exploration of which, in light of the determination reached by the majority, I leave for another day.

      . Epitomizing the court’s instruction in this regard was the exception taken by the defendant’s counsel to the charge that the defendant might be found negligent, if the jury were to find that "the defendant sold the machine, reasonably certain to be dangerous if put to its intended use or could be modified so as to become dangerous, and the defendant knew it”.

      . The court’s charge accurately reflected these principles: "even if the defendant complied with the [State] regulations [concerning the safety gate] completely, you may still find the defendant negligent if you find that one, it knew or had reason to anticipate that the plaintiff’s employer would modify or alter the machine to increase one of the risks of harm which the safety device was designed to prevent, and did not give adequate warning of the dangers of such alteration or did not otherwise prevent, if it could reasonably have done so, such alterations from being made after the machine left its factory and its hand.”


source: Caselaw Access Project

author: Fuchsberg, J.

license: Public Domain

text:
    In the Matter of Luz Caraballo et al., Petitioners, and Elease Jackson, Appellant, v Community School Board District 3 et al., Respondents.
    Argued February 5, 1980;
    decided March 27, 1980

      POINTS OF COUNSEL

      Everett E. Lewis, Leonard Greenwald and Thomas M. Kennedy for appellant.
    I. Section 2590-f of the Education Law confers upon the community superintendents the same power to grant tenure which the Chancellor possessed on February 16, 1970. (Matter of Malpica-Orsini, 36 NY2d 568; Matter of Theurer [Trustees of Columbia Univ. in City of N. Y.—Ross], 59 AD2d 196.) II. The clear and unambiguous language of subdivision 6 of section 2573 supports appellant’s demand for a permanent certificate of appointment. (Matter of Roosevelt Raceway v Monaghan, 9 NY2d 293; Laurence Constr. Corp. v State of New York, 293 NY 634; City of Syracuse v Hueber, 52 AD2d 341; Matter of American Can Co. v State Tax Comm., 37 AD2d 649; Direen Operating Corp. v State Tax Comm., 46 AD2d 191; Zachary v Macy & Co., 39 AD2d 116; Matter of

      Ocean Hill-Brownsville Governing Bd. v Board of Educ., 30 AD2d 447; Davis v State of New York, 54 AD2d 126; Matter of Theurer [Trustees of Columbia Univ. in City of N. Y.—Ross], 59 AD2d 196.) III. The judicial and practical construction of subdivision 6 of section 2573 further supports appellant’s claim. (Matter of Monan v Board of Educ., 280 App Div 14; Matter of Lezette v Board of Educ., 35 NY2d 272; Matter of Cohoes City School Dist. v Cohoes Teachers Assn., 40 NY2d 774; Matter of Tischler v Board of Educ., 37 AD2d 261; Matter of Ward v Nyquist, 43 NY2d 57; Matter of Chauvel v Nyquist, 43 NY2d 48.) IV. Special Term erred by failing to order a hearing into the triable issues raised by appellant Jackson. (Matter of Nodine v Board of Trustees of Vil. of Baldwinsville, 44 AD2d 764.)

      Allen G. Schwartz, Corporation Counsel (Gary R. Tarnoff, Jane H. Hovde and L. Kevin Sheridan of counsel), for respondents.
    I. Under subdivision 6 of section 2573 of the Education Law, the ultimate authority to grant tenure to a pedagogical employee of a community board is vested in the community board. (Matter of Cohoes City School Dist. v Cohoes Teachers Assn., 40 NY2d 774; Matter of Tischler v Board of Educ., 37 AD2d 261; Matter of McMaster v Owens, 275 App Div 506; Matter of Holm v Board of Educ., 141 Misc 194, 234 App Div 816; Matter of Lezette v Board of Educ., 35 NY2d 272; Matter of Anderson v Board of Educ., 88 NY2d 897; Matter of Brown v Board of Educ., 42 AD2d 702; Matter of Duncan v Nyquist, 43 AD2d 630.) II. No triable issue of fact was raised by petitioner Elease Jackson. (Matter of O’Brien v Commissioner of Educ. of State of N. Y., 3 AD2d 321, 4 NY2d 140; Matter of Franklin v State Liq. Auth., 17 AD2d 1027.)
   OPINION OF THE COURT

Fuchsberg, J.

On this appeal we are called upon to resolve one of the questions produced by the tensions that have accompanied the decentralization of the 900-school public education system in New York City. Specifically, was a community school district’s board of education empowered to refuse issuance of a permanent certificate of appointment to a principal recommended for tenure by the district’s superintendent of schools? The answer is that, under the applicable statutes and the circumstances of this case, it was not.

Petitioner Elease Jackson has served continuously as the principal of P.S. 113 in Manhattan since 1972. The allegations that her professional performance has consistently rated above average and that she has successfully implemented a long list of innovative programs at her school are undenied. With the enactment of the supervisory tenure law (Education Law, § 2573, subd 1, par [b]), Ms. Jackson and other similarly situated supervisory school personnel could qualify for permanent appointment. She thereupon served her requisite three-year probationary term and, when this period expired, the community superintendent of schools, to whom she would be answerable directly in carrying out her duties on a day-to-day basis, issued a written report recommending to the board that she be granted tenure. However, the nine-member board, after pursuing its own investigative process, held a public meeting at which it voted to the contrary, as it now puts it "solely on her qualifications and the needs of her school”. The courts below have sustained the community board’s authority to overrule the superintendent. For the reasons which follow, we believe there should be a reversal.

In the main, subdivision 6 of section 2573 of the Education Law, which, having been enacted back in 1935, long predates the statute by which eligibility for tenure was extended to principals, controls this case. Its clear-cut provisions are best described in haec verba. Straightforwardly, it says that in cities "having a population of four hundred thousand or more” (i.e., New York City and Buffalo), "at the expiration of the probationary term of any persons appointed for such term, the superintendent of schools shall make a written report to the board of education recommending for permanent appointment those persons who have been found satisfactory and such board of education shall immediately thereafter issue to such persons permanent certificates of appointment”. Moreover, section 2573, though at the time it originally was adopted could only have contemplated a city-wide school board and a city-wide superintendent, was made expressly applicable to the present parties by the 1969 decentralization law (L 1969, ch 330). For, as part of the changeover from what had been a highly centralized system, it transferred, in terms as broad-sweeping as they are unequivocal, to each newly designated community superintendent "the same powers and duties with respect to the schools and programs under the jurisdiction of his community board as the superintendent of schools of the city district of the city of New York had on the effective date of this [law]” (Education Law, § 2590-f, subd 1, par a).

Returning to section 2573, it is not surprising, in view of the plain and unmistakable language of that statute, that the community school board in its brief to us does not quarrel with the clarity of its words. Rather, it in effect argues that, since the power of the superintendent is only to "recommend” tenure, the statute’s unqualified mandate that the board "shall immediately thereafter issue” the recommended certificate cannot mean what it says. It thus claims that, in juxtaposition, the two clauses present an inherent ambiguity calling for judicial resolution.

But there is neither ambiguity nor inconsistency. Since the statute can boast the virtue of having confined itself to language of ordinary meaning, there is certainly no need to resort to lexicographical authorities. And there is no per se rule against placing — whether by appropriate administrative delegation or, as here, by legislative fiat — power to make a substantive determination in one official or official body and that of formally pronouncing the result in another (cf. Corkum v Bartlett, 46 NY2d 424, 430). The clauses are thus readily reconciled (cf. Matter of Terry, 218 NY 218, 222).

Moreover, the essentially ministerial nature of the board’s function in the grant of tenure under the statute may not be bootstrapped into a right of review simply because the board undertakes on its own to investigate the recommendees and to vote on their suitability. The confines of its power to act are carefully circumscribed, and mandatory at that. The direction that, when the community superintendent makes favorable tenure recommendations, the board "shall immediately thereafter issue * * * permanent certificates of appointment”, whether to the ordinary ear or to a more trained perception, inescapably denotes a duty to comply (see, e.g., 1 A Sutherland, Statutory Construction [4th ed, 1972], pp 497, 499; McKinney’s Cons Laws of NY, Book 1, Statutes, § 177).

Of course, when a statute, though clear as clear can be on its face, makes no sense, we are not bound to mechanical subservience to its ill-chosen legislative language. But that cannot be said to be the situation here. Like it or not, be it a statute whose wisdom we might applaud or decry, we cannot say it does not represent a permissible and rational employment of legislative power (see Town of Huntington v Park Shore Country Day Camp of Dix Hills, 47 NY2d 61, 68).

Plans for decentralization and development of a community public school system for New York City were long and hotly debated, in and out of the legislative halls, before they came to fruition. Subject to the State Commissioner of Education’s ultimate responsibility for the execution of educational policies (Education Law, § 305, subd 1), the city’s public schools until then were managed by an all-powerful central board and superintendent; local boards, such as they were, were under their dominion. The devolution of all this authority and its allocation obviously were vital matters. All the more was this so since the demand for community controlled schools was regarded by some as a precursor for even more comprehensive community control, whose wider goals obviously could overshadow educational ones (see Kirp, Community Control, Public Policy and the Limits of Law, 68 Mich L Rev 1355, 1360). Needless to say, this could — and did — make for compromises among competing contentions, not the least of which bore on the degree to which educational control was to be vested in the community at large as represented by the board. In this context, it is not for the courts, but was for the Legislature, to say whether the decisive responsibility for passing on the permanent retention of an educator was to reside in the professional judgment of a superintendent trained to this task or in an elected board which, as some students of the problem have highlighted, perhaps because it would tend to be more directly accountable to the community, might weight its determination on considerations of policy in addition to those of pedagogic merit (see Urban School Decentralization: The Problem of the One and the Many, 5 Col J L & Soc Probs, No. 1, 137, 156).

Furthermore, a pattern for amending subdivision 6 of section 2573, had the Legislature desired to do so, was readily available. For the tenure-related provisions of the Education Law applicable to cities with fewer than 125,000 inhabitants expressly contemplate school board review, requiring a "majority vote” of the board and relying on permissive language (see Education Law, § 2509, subd 2; see, also, § 3013, subd 2 [repealed L 1978, ch 358, § 3]; cf. § 2509, subd 1; § 2573, subd 1, par [a]; § 3012, subd 1; § 3013, subd 1 [repealed L 1978, ch 358, § 3]; § 3014, subd 1 [requiring majority vote of the board for dismissal of probationary teachers]). Other tenure statutes without exception eschew the mandatory language of subdivision 6 of section 2573 of the Education Law (see Education Law, § 3012, subd 2; § 3014, subd 2; see, also, § 3031).

Finally, while, as respondents point out, the Commissioner of Education has had occasion to interpret subdivision 6 of section 2573 to bestow discretion on a city school board to deny tenure to a teacher who has won the superintendent’s recommendation (Matter of Solominski, 5 Ed Dept Rep 120), an administrative pronouncement is not to be slavishly followed when it "runs counter to the clear wording of a statutory provision” (Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451, 459). Notably, the commissioner’s opinion cited neither judicial nor administrative nor legislative authority for its deduction.

Accordingly, the order should be reversed and the petition granted.

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

Order reversed, with costs, and the petition granted.

      . Ms. Jackson’s termination by reason of her denial of tenure has been stayed pending, first, her appeal to the Appellate Division and, thereafter, the one now before this court.

      . The principal has raised questions of a discriminatory motive on the part of the board, an allegation with which, in view of our disposition of the case, we have no occasion to treat.

      . In this connection, we note that section 2590-f does not condition its applicability on whether the superintendent’s power was also derived from the city board of education, as respondent here, irrelevantly we think, maintains, or whether it was only from the express language of subdivision 6 of section 2573.

      . (See, generally, Matter of Ocean Hill-Brownsville Governing Bd. v Board of Educ., 23 NY2d 483, esp 488.)

      . Matter of Cohoes City School Dist. v Cohoes Teachers Assn. (40 NY2d 774) involved a school district that was within the embrace of section 2509 of the Education Law.


author: Chief Judge Cooke.

text:
    In the Matter of James J. Gunning, Appellant, v Michael J. Codd, as Police Commissioner of the Police Department of the City of New York, and as Executive Chairman of the Board of Trustees of the Police Pension Fund, Article II, et al., Respondents.
    Argued February 7, 1980;
    decided March 25, 1980

      POINTS OF COUNSEL

      Ira Leitel, Joseph Fallek and Carol Mellor for appellant.
    I. A public office becomes vacant by operation of law at the time of entry of a judgment of conviction. (Blaufus v People, 69 NY 107; People v Marendi, 213 NY 600; People v Fabian, 192 NY 443; Glucksman v State of New York, 40 AD2d 1058, 32 NY2d 736; Railway Mail Assn. v Corsi, 293 NY 315, 326 US 88; Matter of Toro v Malcolm, 44 NY2d 146; Matter of Barash, 20 NY2d 154; Matter of Mitchell, 40 NY2d 153; Towley v King Arthur Rings, 40 NY2d 129.) II. The police commissioner did not have the authority pursuant to section 434a-14.0 of the Administrative Code to dismiss appellant prior to either entry of judgment of conviction or an administrative hearing. (Gorman v City of New York, 280 App Div 39, 304 NY 865.)

      Allen G. Schwartz, Corporation Counsel (Carolyn E. Demarest and L. Kevin Sheridan of counsel), for respondents.
    I. The Public Officers Law requires the automatic vacatur of office upon the entry of a plea of guilty of a felony or a verdict of guilty or a violation of the oath of office. Petitioner’s office was vacated effective April 27, 1977. (Matter of Toro v Malcolm, 44 NY2d 146; Matter of Obergfell [Cheshire], 239 NY 48; Matter of Pauley v Noeppel, 1 Misc 2d 928; People v Marendi, 213 NY 600; People v Fabian, 192 NY 443; Blaufus v People, 69 NY 107; Thaler v State of New York, 79 Misc 2d 621; Matter of Delehanty [Goubeaud], 202 Misc 40, 280 App Div 542, 304 NY 727.) II. Section 434a-14.0 of the Administrative Code authorized the police commissioner to dismiss petitioner following the jury verdict.
   OPINION OF THE COURT

Chief Judge Cooke.

Section 30 (subd 1, par e) of the Public Officers Law provides that a public office shall become vacant upon the officeholder’s conviction of a felony. The question posed by this appeal concerns the operative definition of the word "conviction” as used in the statute.

On April 27, 1977, petitioner, a veteran police officer, was found guilty by a jury of official misconduct, a class A misdemeanor (Penal Law, § 195.00), and bribe receiving in the second degree, a class D felony (Penal Law, § 200.10). Entry of judgment on the verdict was delayed at that time for the purpose of preparing the necessary presentence investigation (CPL 390.20) and to allow petitioner an opportunity to seek postverdict relief (CPL art 330). The following day, petitioner filed an application for service retirement benefits, intending to retire on May 27, 1977, prior to the adjourned date of the criminal proceeding.

On May 24, 1977, petitioner was served with an order of dismissal from city service by the police commissioner. That order, declared effective the date of the jury verdict, was stated to be pursuant to the "authority vested in the Police Commissioner, pursuant to * * * Section 30 of the Public Officers Law to dismiss a member of the Police Department convicted of a crime by a court of competent jurisdiction.” Because the order of dismissal preceded the projected effective date of his retirement, petitioner’s retirement application was never processed (see Administrative Code of City of New York, § B18-40.0; Matter of Glazer v Board of Trustees of Police Pension Fund, 66 AD2d 759, 760, affd 48 NY2d 790).

Petitioner then commenced this article 78 proceeding, claiming that a "conviction”, as employed in section 30 of the Public Officers Law, requires the entry of a judgment of conviction upon sentencing before a public office is vacated. Special Term dismissed the petition, holding that petitioner’s office became vacant upon rendition of the jury verdict. A divided Appellate Division affirmed (65 AD2d 415). There should be an affirmance. Whatever may have been the rule previously, the CPL now provides that a conviction occurs upon a verdict of guilty (CPL 1.20, subd 13) and no sound reason exists to differentiate between a conviction for purposes of criminal law and the Public Officers Law.

The former Code of Criminal Procedure contained no definition of "conviction”. Accordingly, courts gave the term a chameleon-like quality, designed to meet what were perceived to be the equities of diverse cases before them. For example, a statute which rendered a person convicted of perjury incompetent to appear as a witness was held to be inoperative "until the judgment of the court had pronounced sentence upon him” (Blaufus v People, 69 NY 107, 109). When construing a provision excluding those convicted of bribery or of any infamous crime from exercising their franchise, it was held that a person, against whom sentence had been suspended after verdict, had not been “convicted” (People v Fabian, 192 NY 443, 449-450). This rule, however, was made dependent upon the consequences attendant to the conviction (compare Matter of Robinson v Board of Regents, 4 AD2d 359, mot for lv to app den 3 NY2d 708 [“convicted”, as used in section 6514 of the Education Law, means finding of guilt and entry of judgment thereon, irrespective of whether sentence is imposed]).

What emerges from these and similar cases, therefore, is the hoary principle that, “where pains, penalties, fines, forfeitures and disqualifications follow upon conviction, then 'conviction’ means the sentence or judgment of the court entered upon the finding of the jury and proved by the record” (People v Fabian, 126 App Div 89, 98 [dissenting opn], revd 192 NY 443, supra). Thus, in Matter of Keogh v Wagner (20 AD2d 380, 385, affd 15 NY2d 569), it was held that the vacatur occasioned by section 30 (subd 1, par e) of the Public Officers Law must be preceded by not only an adjudication of guilt, whether by plea or verdict, but an entered judgment of conviction as well. This vacatur, however, is absolute upon conviction: subsequent events, such as a stay of the execution of judgment or even reversal of the conviction upon appeal, do not affect the vacatur (Matter of Toro v Malcolm, 44 NY2d 146, 150; Matter of Obergfell [Cheshire], 239 NY 48, 50; Matter of Breslin v Leary, 35 AD2d 794, 795).

However amorphous the term “conviction” may have been under prior law, any confusion was laid to rest with the enactment of the CPL in 1971. As noted, a “conviction” now occurs upon “the entry of a plea of guilty to, or a verdict of guilty upon, an accusatory instrument other than a felony complaint, or to one or more counts of such instrument” (CPL 1.20, subd 13).

Notwithstanding the all-embracing scope of this definition, petitioner maintains that it has no application to the Public Officers Law. It is incongruous, however, to hold that a conviction for purposes of the criminal law does not amount to a conviction under some other statute. By its plain terms, the provisions of the CPL apply to “All matters of criminal procedure” (CPL 1.10, subd 1, par [b]). A term more inextricably related to criminal procedure than the definition of "conviction” is most difficult to imagine. And, while the Public Officers Law is a civil statute, the operation of section 30 (subd 1, par e) is triggered only upon a criminal adjudication resulting in a conviction. What constitutes a conviction, then, must necessarily be determined by the law governing criminal proceedings.

To await vacatur of a public office until judgment is entered, moreover, would unconscionably reward those who, despite having breached the public trust, may purposefully delay sentencing and thwart public policy. The command of section 30 of the Public Officers Law is clear and absolute: upon an officeholder’s conviction of a felony, that office becomes vacant by operation of law (Matter of Toro v Malcolm, supra, at pp 149-150). Once the jury determined, beyond a reasonable doubt, that petitioner committed a felony, public policy demands that his position be vacated immediately. That the conviction may ultimately be reversed by an appellate tribunal does not defeat the operation of section 30 (see Matter of Toro v Malcolm, supra). By the same token, to permit a public officer, found guilty by a jury of his peers, to remain in office pending sentencing and thereby afford him the opportunity to obtain a lifetime pension would circumvent the clearly defined purpose of section 30 of the Public Officers Law. Such a result simply cannot be tolerated.

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

Judges Jasen, Gabrielli, Jones and Meyer concur with Chief Judge Cooke; Judges Wachtler and Fuchsberg dissent and vote to reverse for reasons stated in the dissenting in part opinion by Mr. Justice Leonard H. Sandler at the Appellate Division (65 AD2d 419-423; see, also, Matter of Cunningham v Nadjari, 39 NY2d 314, 317).

Order affirmed.

       In view of the broad applicability of the CPL to "All matters of criminal procedure” (CPL 1.10, subd 1, par [b]) and the lack of any limiting language therein, petitioner’s attempt to restrict the reach of CPL 1.20 (subd 13) to criminal proceedings must be rejected.


text:
    Raymond Hall, Appellant, v Michael Potoker et al., as Justice of the Supreme Court of the State of New York, Kings County, et al., Respondents.
    Argued January 11, 1980;
    decided March 25, 1980

      POINTS OF COUNSEL

      Steven G. Asin, Leon B. Polsky, Ivar Goldart, Barbara Salken and Pamela R. Winnick for appellant.
    The record does not support the conclusion of the court below that there was a manifest necessity for the Trial Judge to declare a mistrial. (People v Michael, 48 NY2d 1; Arizona v Washington, 434 US 497; People v Kelly, 9 NY2d 697; Matter of Girard v Rossi, 40 AD2d 13; Lee v United States, 432 US 23; United States v Dinitz, 424 US 600; United States v Jorn, 400 US 470.)

      Eugene Gold, District Attorney (Joel M. Goldberg of counsel), respondent pro se.

    The trial court properly determined that a continuance was justified and then properly declared a mistrial after defense counsel stated that the continuance would deprive appellant of a fair trial. (Wade v Hunter, 335 US 907; People v Michael, 48 NY2d 1; United States v Perez, 9 Wheat [22 US] 579; Illinois v Somerville, 410 US 458; People v De Rosa, 42 NY2d 872; People v Singleton, 41 NY2d 402; People v Foy, 32 NY2d 473; People v Jackson, 111 NY 362; United States v Haldeman, 559 F2d 31, 431 US 933.)

      Robert Abrams, Attorney-General (Patricia C. Armstrong and Shirley Adelson Siegel of counsel), for Michael Potoker and another, respondents.
    The court below did not err in finding that there was a "manifest necessity” for the declaration of a mistrial. (People v Michael, 48 NY2d 1; Matter of Nolan v Court of Gen. Sessions of County of N. Y., 11 NY2d 114; Arizona v Washington, 434 US 497; United States v Perez, 9 Wheat [22 US] 579; Illinois v Somerville, 410 US 458; United States v Jorn, 400 US 470; Matter of Napoli v Supreme Ct. of State of N. Y., 40 AD2d 159, 33 NY2d 980, 417 US 947; Dunkerley v Hogan, 579 F2d 141, 439 US 1090; Downum v United States, 372 US 734.)
   OPINION OF THE COURT

Chief Judge Cooke.

The issue here is whether double jeopardy bars retrial of a criminal defendant where, due to the unexpected hospitalization of a prosecution witness, a mistrial had been declared over defense objection. A unanimous Appellate Division held that the retrial was permissible. For reasons which follow, there should be an affirmance.

Petitioner, Raymond Hall, was indicted by a Kings County Grand Jury for criminal sale of a controlled substance to an undercover police officer. Trial commenced on April 23, 1979 in Kings County Supreme Court. Five days earlier, the prosecutor had been advised by the officer that he would be available to testify on Wednesday, April 25, and the two agreed to meet on Tuesday, April 24, to discuss the case. At the April 24 court session, a jury was selected and opening statements were made. Upon returning to his office that evening, the prosecutor learned, for the first time, that the officer had suffered a cut finger while effecting an arrest during the weekend. The prosecutor then phoned the witness, who related that his hand had become severely infected and he was to visit his physician on Wednesday, the next day.

The court and defense counsel were alerted to the problem by the prosecutor on Wednesday morning. Expressing the hope that the officer would be available to testify on Thursday, the trial assistant began to present his case. During the latter part of Wednesday afternoon, however, the prosecution was informed that the infection was not responding to treatment, resulting in hospitalization of the undercover officer. At the opening of court on Thursday, the prosecutor announced that, according to his information, the witness had been hospitalized for a minimum of one week and, if complications developed, an additional two-week hospital stay might be required. Therefore, the prosecutor applied for a continuance. Defense counsel immediately requested and was granted a hearing to determine the extent of the illness.

At the hearing, the treating physician testified that since the infection had not responded to oral antibiotics, the witness had been hospitalized for intravenous administration of antibi- otics. The doctor stated that it was too early to gauge the effectiveness of the treatment, but even if it was successful the officer would remain in the hospital until at least Tuesday, May 1. The doctor testified that it would be detrimental to the witness’ health to require attendance in court in his present condition, and that a recuperation period would be required following hospitalization. When pressed for greater specificity as to availability, the doctor indicated that even if treatment went well the officer would not be able to testify prior to the week of May 7, and stressed the impossibility of exact prediction.

On the morning of Friday, April 27, the court denied a continuance and directed the prosecutor to proceed. Then, on Monday morning, the trial assistant informed the court that he had spoken to the doctor, and that the officer was to be discharged from the hospital on May 2. The doctor had stated that the witness would not be available to testify until May 10 or May 11 at the earliest, but cautioned that this estimate was dependent upon the officer’s response to therapy. Acting on this information, the prosecutor applied for a continuance until May 14, which the court initially granted. Later, the decision was rescinded to allow defense counsel time to research and consider the issue.

Defense counsel appeared on Tuesday and opposed continuance, arguing that because of its effect on the jury, a lengthy adjournment would impair defendant’s right to a fair trial. Counsel also urged that the unverified and unsworn report from the prosecutor as to the witness’ medical condition was insufficient to justify a delay and requested a new medical hearing. In view of defendant’s position, the court denied the motion for a continuance, but, over defense objections, declared a mistrial, sua sponte. Defendant then commenced this article 78 proceeding, in the nature of prohibition seeking to restrain his impending retrial. The Appellate Division unanimously dismissed the petition on the ground that declaration of a mistrial was manifestly necessary and that retrial would therefore not violate double jeopardy.

The double jeopardy clauses of our State and Federal Constitutions have traditionally been read to limit the instances in which a mistrial can be declared without a criminal defendant’s consent (e.g., Arizona v Washington, 434 US 497, 505; United States v Perez, 9 Wheat [22 US] 579, 580; Matter of Nolan v Court of Gen. Sessions of County of N. Y., 11 NY2d 114, 119). This is so because, under our constitutional scheme, a defendant possesses a "' "valued right to have his trial completed by a particular tribunal” ’ ” (Illinois v Somerville, 410 US 458, 466; Wade v Hunter, 336 US 684, 689). Weighed against this right, of course, is "the public’s interest in fair trials designed to end in just judgments” (Wade v Hunter, supra, at p 689). In accommodating the uneasy tension between these conflicting considerations, courts have settled upon a formula for determining when a mistrial may be declared over defense objections. According to classic formulation, retrial is not barred where there was "a manifest necessity for [a mistrial], or the ends of public justice would otherwise be defeated” (United States v Perez, supra, at p 580).

Of necessity, the decision whether to abort a criminal trial must rest, in the first instance, in the sound discretion of the trial court (e.g., People v Michael, 48 NY2d 1, 9, supra; Matter of Napoli v Supreme Ct. of State of N. Y., 33 NY2d 980, affg on opn below 40 AD2d 159). And, when the Trial Judge has properly explored the appropriate alternatives, and there is a sufficient basis in the record for a mistrial, an appellate court will be hesitant to interfere with the exercise of this discretion (e.g., Matter of Napoli v Supreme Ct. of State of N. Y., supra). Especially is this so when the mistrial involves an assessment of the impact of certain events upon a jury, such as a deadlock or the uttering of prejudicial comments (Arizona v Washington, 434 US, at pp 509-510, supra). On the other hand, where the mistrial is premised upon a claimed unavailability of crucial prosecution evidence, the validity of that claim is subjected to "the strictest scrutiny” (Arizona v Washington, supra, at p 508; compare Downum v United States, 372 US 734, with Wade v Hunter, 336 US 684, supra), since a prosecutor is not entitled to a mistrial merely to gain " 'a more favorable opportunity to convict’ ” (Arizona v Washington, supra, at pp 508-509, n 25, quoting Downum v United States, supra, at p 736).

Here, the unavailability of a critical witness resulted from an unforeseeable contingency not within the control of the People. When the trial began, the prosecutor believed that his witness would be available to testify as scheduled. Indeed, the prosecutor had no knowledge of the injury until after a jury had been impaneled and opening statements completed. He quickly alerted the court and defense counsel of the possible problem, even though it then seemed that the officer’s testimony would not be delayed. When the prosecutor learned of the severity of the officer’s condition, he again promptly conveyed this information to the court and opposing counsel, and co-operated in attempting to resolve the difficulty. Finally, the debilitating nature of the medical problem was independently verified by the testimony of the attending physician. In these circumstances, it is impossible to conclude that the unavailability of the crucial evidence was due to the misconduct of the prosecutor, or that the prosecutor had any reason to anticipate the witness’ hospitalization prior to the commencement of trial (see Arizona v Washington, supra, at p 508, n 24).

The only remaining question, then, is whether the trial court abused its discretion in declaring a mistrial. It is obvious that the court was confronted with a difficult situation. The trial simply could not proceed as scheduled, and it was uncertain when the witness would be physically able to testify. One possible alternative would be a continuance, which the Judge considered and was willing to grant. But defense counsel strenuously urged that a lengthy continuance would jeopardize the rights of her client. Solicitous of the defendant’s rights, the Trial Judge decided that a continuance was not a viable option. At that point, the only realistic alternative was termination of trial. Indeed, neither at the time of the mistrial nor on this appeal has counsel identified other appropriate courses of action, other than a new hearing on the officer’s medical condition or a short continuance and a reassessment of the officer’s progress. Either of these suggestions would have been appropriate only if there were some basis for doubting the seriousness of the witness’ disability. However, the doctor’s testimony at the medical hearing and the doctor’s progress report, communicated to the court through the Assistant District Attorney, stood unimpeached and unrefuted.

Nor was the court obliged to hale the doctor into court merely to repeat information relayed via the prosecutor. Although the information was technically hearsay, a trial court considering the exigencies of a potential mistrial situation cannot be bound by the strict rules of evidence applicable at formal proceedings (cf. Healy v Rennert, 9 NY2d 202, 209). In such a situation a court must be free to act upon the information at hand, so long as it is reliable. Thus, since the trial court adequately explored the available alternatives and based its decision upon valid considerations, we cannot conclude there was an abuse of discretion.

For these reasons, the judgment of the Appellate Division should be affirmed, with costs.

Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Judgment affirmed.

      . The extraordinary remedy of prohibition has traditionally been available to bar a retrial which would violate double jeopardy (e.g., People v Michael, 48 NY2d 1, 7; Matter of Nolan v Court of Gen. Sessions of County of N. Y., 11 NY2d 114, supra). Thus, it is proper to assess the merits of petitioner’s double jeopardy claim in this proceeding.

      . Of course, the court could have overruled defendant’s objections and granted a continuance, in which case defendant could have raised his objections on appeal if a judgment of conviction ensued. This was not the path taken and accordingly we intimate no opinion on the propriety of the length of continuance requested by the prosecution.


author: Wachtler, J.

text:
    Lazarow, Rettig & Sundel, Plaintiff, v Castle Capital Corporation et al., Defendants. Castle Capital Corporation, Defendant and Third-Party Plaintiff-Respondent, v Pioneer Petroleum, Inc., et al., Third-Party Defendants, and Fidelity Bank, N. A., et al., Third-Party Defendants-Appellants. (And Another Action.)
    Argued February 12, 1980;
    decided March 27, 1980

      POINTS OF COUNSEL

      John S. Martin, Jr., and Stacey J. Moritz for third-party defendants-appellants.
    I. The National Bank Act’s mandate that national banks be sued only in the county in which they are located precludes New York courts from exercising jurisdiction over an Oklahoma national bank in this action. (Mercantile Nat. Bank v Langdeau, 371 US 555; Radzanower v Touche Ross & Co., 426 US 148; National Bank v Associates of Obstetrics, 425 US 460; Swiss Israel Trade Bank v Mobley, 319 F Supp 374; Southeast Guar. Trust Co. v Rodman & Renshaw, 358 F Supp 1001; Atlantic Quality Constr. Corp. v First Pa. Bank, N. A., 440 F Supp 213; Odette v Shearson, Hammill & Co., 394 F Supp 946; Jones v Kreminski, 404 F Supp 667; Super Valu Stores v Western Film Serv. Corp., 416 F Supp 662.) II. Section 94 of title 12 of the United States Code applies to a national bank sued in its capacity as executor of an estate. (Tuthill v May Int. Co., 55 Misc 2d 542, 31 AD2d 721; Charlotte Nat. Bank v Morgan, 132 US 141.)

      Jeffrey P. Meyer and Matthew Gluck for defendant third-party plaintiff-respondent.
    I. The venue provision of the National Bank Act is not applicable to third-party actions. (Jones v Kreminski, 404 F Supp 667; Odette v Shearson, Hammill & Co., 394 F Supp 946; Matter of Falstaff Brewing Corp. Antitrust Litigation, 434 F Supp 1225; Matter of New York City Municipal Securities Litigation, 572 F2d 49; Matter of Investors Funding Corp. of N. Y. Securities Litigation, 437 F Supp 1199; Matter of Pittsburgh & Lake Erie R. R. Co. Securities & Antitrust Litigation, 374 F Supp 1404; Matter of Great Western Ranches Litigation, 369 F Supp 1406; Tcherepnin v Franz, 439 F Supp 1340; First Nat. Bank of Minneapolis v White, 420 F Supp 1331.) II. In view of the inapplicability of section 94 of title 12 of the United States Code to this action, it is irrelevant whether that statute applies to a national bank sued in its capacity as executor of an estate. (Charlotte Nat. Bank v Morgan, 132 US 141.)
   OPINION OF THE COURT

Wachtler, J.

The question on this appeal is whether section 94 of title 12 of the United States Code, which permits actions and proceedings to be brought against national banks only in courts of the county or district in which they are located, mandates dismissal of a third-party action against such a bank where it is brought in a jurisdiction other than specified by the statute.

Lazarow, Rettig & Sundel (Lazarow) is a New York City law firm. Through Castle Capital Corp. (Castle) as broker Lazarow purchased an interest in a limited partnership organized around an oil and gas drilling venture in Oklahoma. That investment was part of a sophisticated tax shelter scheme intended to benefit Lazarow clients. The success of the tax shelter plan depended on obtaining a special financing known as a "Carved Out Production Payment” (COPP) loan.

Fidelity Bank, N. A., of Oklahoma City, Oklahoma, through its president Grady D. Harris, now deceased, is alleged to have agreed to make the COPP loan. Castle guaranteed an agreement under which Lazarow’s investment was to be bought back if the required COPP loan was not obtained.

After the Internal Revenue Service disallowed the expected tax deductions on the ground that the transaction was a sham, Lazarow sued Capital in New York on its buy-back guarantee. Capital then filed a third-party complaint against Fidelity and the estate of Grady D. Harris, for which Fidelity is executor, alleging conspiracy to defraud. This appeal relates to that third-party action.

Section 94 of title 12 of the United States Code, part of the National Bank Act, provides as follows: "Actions and proceedings against any association under this chapter may be had in any district or Territorial court of the United States held within the district in which such association may be established, or in any State, county or municipal court in the county or city in which said association is located having jurisdiction in similar cases.”

On motion of Fidelity the trial court dismissed the third-party complaint against it and the estate of Grady D. Harris, on the ground that, by virtue of section 94 of title 12 of the United States Code, it lacked subject matter jurisdiction.

The Appellate Division modified, concluding, in part, that section 94 of title 12 of the United States Code did not preclude the New York courts from maintaining jurisdiction over Fidelity and the Harris estate in the context of a third-party action. Fidelity and the Harris estate now appeal on a question certified to this court by the Appellate Division: "Was the order of this Court properly made to the extent it modified the order of Special Term entered on December 28, 1977 and thereupon denied the motions of Fidelity Bank, N.A. and Estate of Grady D. Harris that those parties had made on the ground of lack of jurisdiction over them under the National Bank Act, 12 U.S.C. § 94?”

The rule that a national bank may only be sued in the district or county in which it is established was "prescribed for the convenience of those institutions, and to prevent interruption in their business that might result from their books being sent to distant counties in obedience to process from state courts” (Charlotte Nat. Bank v Morgan, 132 US 141, 145).

The reasons which prompted the rule may have passed but the rigor of its application has not. Indeed, as was observed by the United States Supreme Court: "All of the cases in this Court which have touched upon the issue here are in accord with our conclusion that national banks may be sued only in those state courts in the county where the banks are located” (Mercantile Nat. Bank v Langdeau, 371 US 555, 561). The rule "must be given [its] mandatory reading,” (id., at p 562; see, also, Radzanower v Touche Ross & Co., 426 US 148, 153; National Bank v Associates of Obstetrics, 425 US 460, 462).

Over the years the United States Supreme Court has allowed only two types of exceptions to the general statutory rule: actions which are purely "local” (i.e., in rem actions, Casey v Adams, 102 US 66, 67), and those in which the bank has either consented to be sued (National Bank v Associates of Obstetrics, supra), or has waived the privilege by a failure to assert it (Charlotte Nat. Bank v Morgan, 132 US 141, supra).

On this appeal those seeking to sue the bank in this State do not rely on those exceptions and contend: (1) that section 94 of title 12 of the United States Code is merely a venue statute, rather than jurisdictional, (2) that no Supreme Court case has applied this "antiquated” statute to a third-party action and hence the question presented here remains open, and (3) that precedent, legislative intent, the principle of ancillary venue "and common sense” require that its application be limited to direct actions.

To be sure there are cogent reasons to refuse to apply section 94 of title 12 of the United States Code to third-party actions. We are persuaded, however, that this case is governed by the sweeping language of the United States Supreme Court in Langdeau (supra), which indicates that the mandatory character of the statute may not be blunted by judicially created exceptions. Writing for a unanimous court, Mr. Justice White stated that: "The phrase 'suits . . . may be had’ was, in every respect, appropriate language for the purpose of specifying the precise courts in which Congress consented to have national banks subject to suit and we believe Congress intended that in those courts alone could a national bank be sued against its will.” (371 US 555, 560.) Of course, the mere fact that this proceeding is brought as a third party rather than a direct action is not sufficient to deprive the bank of its statutory privilege: the change of form does not vary the burden of defense.

Our conclusion in this regard is reinforced by the Supreme Court’s decision in Radzanower v Touche Ross & Co. (supra), which held that even the broad jurisdictional provision in the later enacted Securities Exchange Act of 1934 would not strip a national bank of the shelter specifically conferred by Congress in the National Bank Act. If the Securities Exchange Act of 1934 does not imply an exception to or repeal of section 94 of title 12 of the United States Code, clearly the mere rule of practice governing third-party complaints does not (see Swiss Israel Trade Bank v Mobley, 319 F Supp 374, 375; Super Valu Stores v Western Film Serv. Corp., 416 F Supp 662). Although the result may be inconvenient to the parties and to the courts which are compelled to hear a case more than once to do complete justice, this is a matter for legislative consideration by Congress and should not be the subject of judicial intrusion (Mercantile Nat. Bank v Langdeau, supra, at p 563).

For these reasons we hold that a national bank may not be sued against its will in a third-party action, even one brought in good faith, except as provided by section 94 of title 12 of the United States Code. The motion to dismiss, therefore, should have been granted.

As section 94 of title 12 of the United States Code controls even when a national bank is sued in its capacity as a fiduciary (see Roberts v Boshamer, 78 Civ 2540; Kader v First Nat. Bank of Fort Myers, 387 F Supp 535, 538-539; Rome v Eltra Corp., 297 F Supp 314, 316-317) dismissal was also proper as to the estate of Grady D. Harris.

The order of the Appellate Division should be reversed, with costs, and the question certified answered in the negative.

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

Order reversed, with costs, and the motion to dismiss the third-party action granted. Question certified answered in the negative.

       (See Jones v Kreminski, 404 F Supp 667 [the policies served by the statute are not advanced by applying it to a defendant who does not choose where he is sued]; Odette

        v Shearson, Hammill & Co., 394 F Supp 946 [application of the statute to a third-party action would be counter to the policy expressed in rule 14 of the Federal Rules of Civil Procedure that the rights of all persons concerned in a controversy should be adjudicated in a single proceeding]; see, also, Matter of Falstaff Brewing Corp. Antitrust Litigation, 434 F Supp 1225, 1229; and First Nat. Bank of Minneapolis v White, 420 F Supp 1331, reading Radzanower (supra), narrowly, and the American Law Institute Study of the Division of Jurisdiction Between State and Federal Courts, pp 412-413 [1969], which labeled the restrictive venue provisions of section 94 of title 12 of the United States Code "impossible to defend”.)