author: Titone, J.

text:
    Margaret A. Sheehy et al., Appellants, v Big Flats Community Day, Inc., et al., Defendants, and American Legion Ernest Skinner Memorial Post 1612, Respondent.
    Argued April 25, 1989;
    decided June 6, 1989

      POINTS OF COUNSEL

      James B. Reed for appellants.
    I. American Legion’s unlawful conduct violated the statutory duty of care owed to plaintiffs pursuant to Penal Law § 260.20 (4), and as such, was negligent as a matter of law. (Stambach v Pierce, 136 AD2d 329; Dashinsky v Santjer, 32 AD2d 382; CPC Intl. v McKesson Corp., 70 NY2d 268; Bums Jackson Miller Summit & Spitzer v Lindner, 59 NY2d 314; Dynarski v U-Crest Fire Dist., 112 Misc 2d 344; Montgomery v Orr, 130 Misc 2d 807.) II. The Trial Judge abused his discretion when he invaded the province of the jury to determine the factual question of whether plaintiff’s injuries occurred in "an area over which the defendant Legion could have reasonably exercised supervision and control”. (Wanger v Zeh, 45 Misc 2d 93, 26 AD2d 729; Moskowitz v Garlock, 23 AD2d 943; Phillips v Kantor & Co., 31 NY2d 307; Powers v Niagara Mohawk Power Corp., 129 AD2d 37; Allen v County of Westchester, 109 AD2d 475, 66 NY2d 915; Schirmer v Yost, 60 AD2d 789; Wright v Sunset Recreation, 91 AD2d 701.) III. New York should reject the "zone of control” rule in cases involving minors who are negligently and unlawfully provided with alcohol by an adult. (D’Amico v Christie, 71 NY2d 76.) IV. New York should recognize a common-law negligence cause of action in favor of minor injured as a consequence of being negligently provided with alcohol by an adult host.

      William S. Yaus and Patricia M. Curtin for respondent.
    I. Penal Law § 260.20 (4) does not allow a minor plaintiff to recover for injuries resulting from her own intoxication. (Powers v Niagara Mohawk Power Corp., 129 AD2d 37; Reuter v Elobo Enters., 120 AD2d 722; Vadasy v Feigel’s Tavern, 88 Misc 2d 614, 55 AD2d 1011, 42 NY2d 805; Santoro v Di Marco, 65 Misc 2d 817, 80 Misc 2d 296; CPC Intl. v McKesson Corp., 70 NY2d 268; Burns Jackson Miller Summit & Spitzer v Lindner, 59 NY2d 314; Stoganovic v Dinolfo, 92 AD2d 729; Touche Ross & Co. v Redington, 442 US 560; Montauk-Caribbean Airways v Hope, 784 F2d 91; County of Monroe v State of New York, 123 AD2d 141.) II. Appellant has no common-law negligence cause of action since the accident occurred beyond the area where respondent American Legion could have reasonably exercised supervision and control. (Allen v County of Westchester, 109 AD2d 475, 66 NY2d 915; D’Amico v Christie, 71 NY2d 76; Delamater v Kimmerle, 104 AD2d 242; Wright v Sunset Recreation, 91 AD2d 701; Schirmer v Yost, 60 AD2d 789; Paul v Hogan, 56 AD2d 723.) III. Appellant cannot now raise issues not presented to the courts below; moreover, there is no merit to appellant’s theory that foreseeability alone affords a basis for recovery. (Mastronardi v Mitchell, 109 AD2d 825; Abacus Real Estate Fin. Co. v P.A.R. Constr. & Maintenance Corp., 115 AD2d 576; D’Amico v Christie, 71 NY2d 76; Powers v Niagara Mohawk Power Corp., 129 AD2d 37; Delamater v Kimmerle, 104 AD2d 242.)
   OPINION OF THE COURT

Titone, J.

Penal Law § 260.20 (4), which makes it a crime for anyone but a parent or guardian to furnish alcoholic beverages to a person who is under the legal purchase age, does not give rise to an implied private right of action in favor of such a person who has been injured as a result of his or her own consumption of alcohol. Accordingly, since recovery under traditional common-law tort principles is also precluded on this record, this minor plaintiffs complaint against the party that furnished her with alcohol was properly dismissed.

On the evening of June 24, 1983, plaintiff Margaret Sheehy, who was then 17 years old, attended the "Big Flats Community Days” celebration, an outdoor event that was sponsored by defendant Big Flats Community Days, Inc. (Big Flats). According to the allegations in her complaint, Sheehy was served several beers in a beer tent operated by defendant American Legion Ernest Skinner Memorial Post 1612 (American Legion). Sheehy claimed that she had not been asked for proof of her age before she was admitted to the tent or served. At the time of the incident the legal age for purchasing alcoholic beverages in New York was 19 (Alcoholic Beverage Control Law § 65 [former (1)], as amended by L 1982, ch 159, §D. '

An affidavit submitted by one of Sheehy’s witnesses alleged that she entered the American Legion beer tent for the second time just before midnight and was served additional beers, although she was staggering and was visibly intoxicated. She then crossed the highway and entered the bar operated by defendant Driscoll’s Tavern, Inc. (Driscoll’s), where she was served another alcoholic beverage. When Sheehy attempted to cross the highway and return to the grounds of the "Community Days” celebration, she was struck by an automobile and severely injured.

Sheehy commenced the present action against Big Flats, American Legion and Driscoll’s, claiming that their conduct in serving her alcoholic beverages in violation of law was the proximate cause of the accident. Defendant American Legion, the only defendant involved in this appeal, denied the factual allegations in Sheehy’s complaint, alleging instead that plaintiff had been asked for proof of her age before having been served and that she had displayed a false driver’s license. Defendant also claimed that Sheehy had immediately been told to leave the beer tent after she was recognized by someone who knew her true age.

In response to American Legion’s motion for summary judgment, Supreme Court dismissed Sheehy’s asserted causes of action against that defendant. Viewing the complaint’s allegations and the supporting submissions in the light most favorable to Sheehy, the court nevertheless concluded that neither her common-law claim nor the claim based upon a violation of Penal Law § 260.20 (4) was legally maintainable. The Appellate Division affirmed, holding that the existence of a recently enacted statute providing for civil liability in cases involving the provision of alcoholic beverages to individuals under the legal purchase age (General Obligations Law § 11-100) precluded any inference that the Legislature intended a judicially created right of recovery based upon the Penal Law provision (137 AD2d 160, 163-164). The court then granted Sheehy leave to appeal to this court, certifying the following question of law: "Did this court err as a matter of law in affirming the order of Supreme Court partially granting a motion by defendant American Legion * * * for summary judgment dismissing the complaint against it?”

The primary issue on this appeal, an issue on which there has been some disagreement among the Appellate Divisions (compare, 137 AD2d 160, supra, with Stambach v Pierce, 136 AD2d 329), is whether a private right of action for damages exists under Penal Law § 260.20 (4). At the time of Sheehy’s accident, that statute imposed criminal penalties on any person, other than a parent or guardian, who "gives or sells or causes to be given or sold any alcoholic beverage * * * to a child less than nineteen years old” (Penal Law § 260.20 [4], as amended L 1982, ch 159, § 4). Since the statute does not make express provision for civil damages, recovery under Penal Law § 260.20 (4) may be had only if a private right of action may fairly be implied.

Of central importance in this inquiry is the test set forth in Burns Jackson Miller Summit & Spitzer v Lindner (59 NY2d 314; see also, CPC Intl. v McKesson Corp., 70 NY2d 268). Under that test, the essential factors to be considered are: (1) whether the plaintiff is one of the class for whose particular benefit the statute was enacted; (2) whether recognition of a private right of action would promote the legislative purpose; and (3) whether creation of such a right would be consistent with the legislative scheme (CPC Intl. v McKesson Corp., supra, at 276-277; Burns Jackson Miller Summit & Spitzer v Lindner, supra, at 329-331). It was the third prong of this test that led to a rejection of a private right of action in CPC Intl. v McKesson Corp. (supra), one of the more recent applications of the Burns Jackson analysis. We reach the same result here.

In this case, there is no doubt that the first, and perhaps most easily satisfied, prong of the Burns Jackson test has been met. The statutory provision criminalizing the provision of alcoholic beverages to those under the legal purchase age (Penal Law § 260.20 [4]), which is located within the Penal Law article dealing with offenses against children and incompetents (Penal Law art 260), was unquestionably intended, at least in part, to protect such individuals from the health and safety dangers of alcohol consumption, dangers of which their limited experience provides little warning (see, People v Arriaga, 45 Misc 2d 399, 401; Governor’s Mem of Approval, 1985 McKinney’s Session Laws of NY, at 3288, quoted in Hechtman, 1985 Supplementary Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law § 260.20, 1989 Cum Ann Pocket Part, at 87; see also, People v Martell, 16 NY2d 245, 247). Plaintiff, who was under the legal purchase age at the time of her accident, was clearly within this category.

Similarly, it cannot be denied that recognition of a private right of action for civil damages would, as a general matter, advance the legislative purpose. In making the provision of alcohol to individuals under the legal purchase age a crime, the Legislature plainly intended to create a deterrent for those who might, intentionally or carelessly, engage in the proscribed conduct. Obviously, permitting civil damage suits for injuries arising from the same conduct would also further this deterrent goal.

These conclusions, however, do not end the inquiry. In addition to determining whether Sheehy was within the intended protected class and whether permitting her claim would advance the legislative goal, we must, "most importantly, [determine] the consistency of doing so with the purposes underlying the legislative scheme” (Burns Jackson Miller Summit & Spitzer v Lindner, supra, at 325 [emphasis supplied]). For, the Legislature has both the right and the authority to select the methods to be used in effectuating its goals, as well as to choose the goals themselves. Thus, regardless of its consistency with the basic legislative goal, a private right of action should not be judicially sanctioned if it is incompatible with the enforcement mechanism chosen by the Legislature or with some other aspect of the over-all statutory scheme (see, CPC Intl. v McKesson Corp., supra, at 276, 277).

In this case, in addition to establishing criminal penalties for the provision of alcoholic beverages to individuals under the legal purchase age, the Legislature has deliberately adopted a scheme for affording civil damages to those injured by the negligent or unlawful dispensation of alcohol. General Obligations Law § 11-101 (the Dram Shop Act), which applies only to commercial alcoholic beverage sales (D’Amico v Christie, 71 NY2d 76), expressly provides for a right of action by any person "injured in person, property, means of support, or otherwise by any intoxicated person” against the person who unlawfully sold or assisted in the procuring of the intoxicated person’s alcohol. However, this statute has been held not to authorize recovery in favor of the individual whose intoxication resulted from the unlawful sale (see, e.g., Mitchell v The Shoals, Inc., 19 NY2d 338, 340-341; Reuter v Flobo Enters., 120 AD2d 722; Allen v County of Westchester, 109 AD2d 475, appeal dismissed 66 NY2d 915; Matalavage v Sadler, 77 AD2d 39; Moyer v Lo Jim Cafe, 19 AD2d 523, affd 14 NY2d 792).

Even more to the point, General Obligations Law § 11-100, which was enacted in 1983, provides for recovery against a person who knowingly caused a young person’s intoxication by furnishing alcoholic beverages, with or without charge, "with knowledge or reasonable cause to believe that such person was [a person under the legal purchase age].” Significantly, in enacting this statute, which specifically addresses the problem of civil damages resulting from youthful alcoholic excesses, the Legislature authorized suit only by persons "injured in person, property, means of support, or otherwise, by [the intoxicated person]”, the same language as that used in General Obligations Law § 11-101. Since the Legislature must be presumed to have been aware of the long-standing judicial construction of that language as precluding recovery by the intoxicated person, it is reasonable to infer that the Legislature intended the same result in cases arising under section 11-100.

When this background is considered, it becomes apparent that a private right of action in favor of the intoxicated minor cannot fairly be implied from the prohibition contained in Penal Law § 260.20 (4). Where the Legislature has not been completely silent but has instead made express provision for civil remedy, albeit a narrower remedy than the plaintiff might wish, the courts should ordinarily not attempt to fashion a different remedy, with broader coverage, on the basis of a different statute, at least where, as here, the two statutes address the same wrong (see, CPC Intl. v McKesson Corp., supra, at 282-283 [applying Federal law]; Carpenter v City of Plattsburgh, 105 AD2d 295, 298-299, affd 66 NY2d 791; Drinkhouse v Parka Corp., 3 NY2d 82). Indeed, it would be anomalous to infer from its silence that the Legislature intended to permit a private right of recovery based upon the duty created by Penal Law § 260.20 (4) when that body has so recently adopted a specific statute on the same subject, which was clearly intended to exclude the class of injureds in which this plaintiff falls.

Manifestly, the Legislature has already considered the use of civil remedies to deter the sale of alcoholic beverages to those under the legal purchase age and has determined that the approach embodied in General Obligations Law § 11-100 is the most suitable. Recognizing a private right of action in favor of the intoxicated youth under Penal Law § 260.20 (4) would be inconsistent with the evident legislative purpose underlying the scheme embodied in General Obligations Law §§ 11-100 and 11-101: to utilize civil penalties as a deterrent while, at the same time, withholding reward from the individual who voluntarily became intoxicated for his or her own irresponsible conduct. We cannot, and will not, use Penal Law § 260.20 (4) as a predicate for overriding this legislative policy judgment (cf., D’Amico v Christie, supra, at 84).

Turning to Sheehy’s purported common-law claim, we conclude that it too is fatally flawed and was therefore properly dismissed. Rejecting any argument that a duty exists to protect a consumer of alcohol from the results of his or her own voluntary conduct, the courts of this State have consistently refused to recognize a common-law cause of action against providers of alcoholic beverages in favor of persons injured as a result of their own voluntary intoxication (e.g., Wellcome v Student Coop., 125 AD2d 393; Allen v County of Westchester, supra; Gabrielle v Craft, 75 AD2d 939; Paul v Hogan, 56 AD2d 723; Bizzell v N.E.F.S. Rest., 27 AD2d 554; Moyer v Lo Jim Cafe, supra; Scatorchia v Caputo, 263 App Div 304; Vadasy v Feigel’s Tavern, 88 Misc 2d 614, affd 55 AD2d 1011; see also, Reuter v Flobo Enters., 120 AD2d 722, supra). An exception to the general common-law rule that providers of alcoholic beverages have no duty to protect against the consequences of voluntary intoxication has been recognized in cases where a property owner has failed to protect others on the premises, or in other areas within the property owner’s control, from the misconduct of an intoxicated person, at least when the opportunity to supervise was present (see, D’Amico v Christie, supra, at 85 [and cases cited therein]). However, that exception has no application in a case such as this, which involves an attempt to recover by the person who voluntarily became intoxicated. Finally, while Sheehy now contends that a new exception to the common-law rule should be recognized when the person who became intoxicated was under the legal purchase age (see, Dynarski v U-Crest Fire Dist., 112 Misc 2d 344; see also, Allen v County of Westchester, supra, at 478), she did not make a similar argument in the court of first instance, and we therefore have no occasion to consider it now.

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

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

Order affirmed, etc.

      . Plaintiff Margaret Sheehy’s claims against Driscoll’s and Big Flats remain pending. Additionally, Sheehy’s mother’s Dram Shop Act claim (see, General Obligations Law § 11-101) against all three defendants remains pending, as do the potential cross claims arising from that cause of action.

        . Although the complaint did not directly refer to Penal Law § 260.20 (4), we agree with the courts below that Sheehy’s pleadings may fairly be read to encompass a claim for a private right of action resulting from a violation of that provision.

      . The statute has since been amended to reflect the change in the legal purchase age from 19 to 21 (L 1985, ch 274, § 5).


source: Caselaw Access Project

author: Chief Judge Wachtler.

license: Public Domain

text:
    Janice Birnbaum et al., Respondents, v State of New York, Appellant.
    (Claim No. 63695.)
    Argued May 3, 1989;
    decided June 8, 1989

      POINTS OF COUNSEL

      Robert Abrams, Attorney-General (Clifford A. Royael, O. Peter Sherwood and Peter H. Schiff of counsel), for appellant.
    I. The imposition of the receivership for Abbott Manor by the Supreme Court under Public Health Law §2810 did not constitute a temporary taking by the State. (United States v PeWee Coal Co., 341 US 114; United States v Mine Workers, 330 US 258; Penn Cent. Transp. Co. v New York City, 438 US 104; Keystone Bituminous Coal Assn. v DeBenedictis, 480 US 470; Block v Hirsch, 256 US 135; Kaiser Aetna v United States, 444 US 164; PruneYard Shopping Center v Robins, 447 US 74; Matter of Engelsher v Jacobs, 5 NY2d 370; Sunray Oil Co. v Federal Power Commn., 364 US 137; Matter of Kupersmith v Public Health Council, 101 AD2d 918, 63 NY2d 904.) II. Assuming, arguendo, that there was a taking, evidence in the prior Supreme Court proceeding does not establish fair compensation for such taking. (Matter of City of New York [Brookfield Refrig. Corp. — Zoloto], 58 NY2d 532.) III. Court of Claims Act §27 precluded an award of accountant’s and attorney’s fees in this case. (Terrace Hotel Co. v State of New York, 19 NY2d 526; Matter of Washington Post Co. v New York State Ins. Dept., 61 NY2d 557; Nelson v Hanna, 67 AD2d 820; Rozler v Franger, 61 AD2d 46, 46 NY2d 760; Pajak v Pajak, 56 NY2d 394; Keystone Assocs. v State of New York, 55 AD2d 85, 45 NY2d 894; City of Buffalo v Clement Co., 28 NY2d 241.)

      Percival D. Oviatt, Jr., and William G. Bauer for respondents.
    I. The court below correctly found that the State’s conduct constituted a de facto taking for which the estate was entitled to compensation. (United States v PeWee Coal Co., 341 US 114; Loretto v Teleprompter Manhattan CATV Corp., 458 US 419; Modjeska Sign Studios v Berle, 43 NY2d 468; Matter of Keystone Assocs. v Moerdler, 19 NY2d 78; Armstrong v United States, 364 US 40; French Investing Co. v City of New York, 39 NY2d 587; Penn Cent. Transp. Co. v New York City, 438 US 104.) II. The evidence before the Court of Claims justified its finding with respect to the fair value of the property. III. The State court had jurisdiction to determine it was the State’s responsibility to operate and maintain Abbott Manor and, having so found, the estate is consequently entitled to compensation for the State’s use of its property in carrying out such obligation. (Saso v State of New York, 20 Misc 2d 826; General Mut. Ins. Co. v Coyle, 207 Misc 362; Wikarski v State of New York, 91 AD2d 1174; Fehlhaber Corp. v State of New York, 69 AD2d 362; Zimmerman v State of New York, 116 Misc 2d 521; Maguire v Monaghan, 206 Misc 550, 285 App Div 926; Town of Ohio v People, 264 App Div 220; Bowen v State Bd. of Social Welfare, 55 AD2d 235; Delaware County Bd. of Supervisors v New York State Dept. of Health, 81 AD2d 968; City of Rome v State of New York, 25 AD2d 486.) IV. The notice of claim was timely filed in the Court of Claims. V. Claimants are entitled to attorney’s fees and other legal expenses under EDPL 702 (C). (Matter of Peasley v Flacke, 98 AD2d 915; Peasley v State of New York, 118 Misc 2d 827; Matter of Dodge v Mathews, 15 NY2d 515; Matter of Dodge v Tierney, 40 AD2d 936; New York State Urban Dev. Corp. v Goldfeld, 54 AD2d 1099; Terrace Hotel Co. v State of New York, 19 NY2d 526; Keystone Assocs. v State of New York, 55 AD2d 85, 45 NY2d 894.)
   OPINION OF THE COURT

Chief Judge Wachtler.

The question in this case is whether a "taking” of property occurs, giving rise to the obligation to pay fair compensation (NY Const, art I, §7; US Const 5th & 14th Amends), when the State requires a nursing home to remain open until reasonable alternative arrangements can be made for the continued care of the patients. We conclude that under the facts and circumstances presented here the State’s actions, preventing the precipitous closing of a nursing home in contravention of the regulations of the Department of Health, did not constitute a "taking” of property under the Federal or State Constitutions.

The facility in question, known as "Abbott Manor Nursing Home” and situated in Buffalo, New York, was operated by Bernard Birnbaum until his death on February 13, 1976. Shortly thereafter, the executors of Bernard’s estate, the respondents here, determined that the nursing home was currently unprofitable, primarily because the facility’s Medicaid reimbursement rate was insufficient to cover the actual cost of operation. Respondents pursued various avenues to attempt to rectify this situation. They sought an increase in the Medicaid reimbursement rate, arguing that without immediate corrective action the operation of the nursing home could not continue. Respondents also sought to either sell the facility, or obtain a receiver who would operate the nursing home and guarantee reimbursement of all operating expenses.

These efforts proved unavailing, and on September 3, 1976, respondents sent telegrams to the next of kin of the nursing home patients receiving Medicaid informing them that because the Department of Health refused to pay for medicine and medical care "we are unable to continue care”, and, "[accordingly, you are advised to make the necessary arrangements to have your relative removed no later than September 7, 1976 at 7:00 p.m.” The kin of the approximately 30% of patients cared for by means other than Medicaid received a somewhat fuller explanation.

The State, by order to show cause, immediately commenced an action in Supreme Court to enjoin respondents from closing the nursing home until the requirements of 10 NYCRR 401.3 (g) could be met. This section requires that the operator of a nursing home give 90 days’ notice, and obtain the approval of the Commissioner of Health, before closing a facility. The State also sought and obtained a temporary restraining order preventing the displacement of patients until the merits of the action were heard. Respondents opposed the granting of an injunction, and counterclaimed, seeking both the appointment of a receiver "pursuant to § 2810 of the Public Health Law of the State of New York”, and full reimbursement from the State for the costs of operating the nursing home.

Upon consideration of the merits, by order dated November 26, 1976, Supreme Court appointed two longtime employees of the nursing home as coreceivers to operate the facility. By further order dated December 29, 1976, Supreme Court determined that the State was responsible for the actual cost of care and treatment during the period of receivership. The numerous hearings and orders that followed are substantially recounted in People v Abbott Manor Nursing Home (70 AD2d 434, affd for reason stated below 52 NY2d 766) and need only be summarized here. On January 10, 1978 Supreme Court directed the receivers to issue a 90-day notice of closure due to the nursing home’s continued financial difficulty. The receivers, however, citing the shortage of alternative facilities that could care for the nursing home’s patients, moved in Supreme Court for an order continuing the receivership for one year. The State opposed the motion and argued that, if necessary, any extension should be for a more limited duration; respondents, however, did not oppose the extension of the receivership. On May 8, 1978, Supreme Court temporarily resolved the issue by terminating the appointment of the present receivers, and appointing the Commissioner of Health as receiver in their place, with the term of the new receivership to survive until further order of the court.

Following the issuance of the December 29, 1976 order providing them with the right to fully recover their operating costs, respondents’ attitude toward the prospect of closing the nursing home changed dramatically. Thus on December 20, 1978 respondents sought and received a temporary restraining order barring the State from removing any Medicaid patients from Abbott Manor, except voluntarily or in an emergency. Indeed, in support of this request respondents argued that closure was not in the "public interest” because of the lack of available alternative facilities for patients, and decried the affect of closure on patients who were "reluctant to leave” the "desirable” facility, where they have received "very satisfactory quality of medical care and services * * * during the period of their residence”. Nevertheless, the State was apparently successful in finding alternative means of care for the nursing homes patients, and after vacating the facility the Commissioner of Health moved in Supreme Court for an order terminating the receivership. This order was granted over the objection of respondents, and on September 14, 1979 the receivership was terminated, ceasing Abbott Manor’s operation as a nursing home.

Eventually, all issues concerning the propriety of the appointment of the various receivers and the award of full operating costs were consolidated in one appeal in the Appellate Division, Fourth Department. That court first held that although Public Health Law § 2810 did not specifically authorize the appointment of a receiver in the situation presented, the receivership appointments nevertheless were proper under the equitable powers of the court. The Appellate Division then determined, however, that the Court of Claims had sole jurisdiction regarding respondents’ claim that they were “entitled to be compensated for [the] actual costs for providing the services for the patients” during the receivership period, and, therefore, the court dismissed respondents’ claim for compensation (People v Abbott Manor Nursing Home, supra, at 436). This court affirmed on the opinion by Justice Witmer at the Appellate Division (People v Abbott Manor Nursing Home, 52 NY2d 766, supra).

Respondents then commenced the present action in the Court of Claims, alleging that the imposition of the receivership, which essentially required that respondents remain in business against their will, was a "taking” under the Federal and State Constitutions, for which fair compensation was now required. Respondents moved for summary judgment on this issue and the Court of Claims granted the motion, holding that the State’s actions were analogous to the wartime temporary seizure cases (see, e.g., United States v PeWee Coal Co., 341 US 114). The Appellate Division affirmed, without opinion. We now reverse.

I

The nursing home industry, without a doubt, “is subject to extensive State regulation pursuant to article 28 of [the Public Health Law] and title 10 of the Official Compilation of Codes, Rules and Regulation of the State of New York” (Matter of Sigety v Hynes, 38 NY2d 260, 268). The Legislature has long recognized that in the health care industry "duplication of facilities and * * * under-utilized services in one area contrast with long waiting lists for admission to facilities in other areas * * * resulting in] higher costs [and] * * * threatening] access to care and emergency services for many of our citizens” (L 1969, ch 957, legislative findings and purpose). In an effort to control costs and ensure adequate provision of nursing home facilities, under the Public Health Law a nursing home cannot be established or operated unless "there is a public need therefor” (Matter of Hamptons Hosp. & Med. Center v Moore, 52 NY2d 88, 93; see, Public Health Law § 2801-a [3]; § 2805). The rates charged for nursing home care are also strictly controlled (see, Public Health Law §§2807, 2808).

This regulatory scheme, designed to tailor supply closely to demand in an effort to contain health care costs, largely protects the nursing home operator from competition. It also results in a lack of excess nursing home facilities, which poses an obvious threat to the continuity of essential services if an operator closes a facility. In contemplation of this predicament, the Commissioner of the Department of Health promulgated section 401.3 (g) of title 10 of the NYCRR, which states that no nursing home "shall discontinue operation or surrender its operating certificate unless 90 days’ notice of its intention to do so is given to the commissioner [of health] and his written approval obtained.”

In the case now before us, although Abbott Manor was operating at a loss, the State refused to allow the closure of the facility by respondents before they complied with 10 NYCRR 401.3 (g). Respondents argue that this constituted a taking, because the State’s actions "place[d] a burden on [respondents] to continue the operation of the Home at a substantial loss for the benefit of patients, public, or the State of New York”.

To determine if a taking occurred here, indeed we must assess whether respondents were alone required to shoulder a public burden which, in fairness, should have been the responsibility of the public as a whole (see, e.g., Pennell v City of San Jose, 485 US 1, —, 108 S Ct 849, 856; French Investing Corp. v City of New York, 39 NY2d 587, 596-597). This analysis generally requires an ad hoc, factual inquiry using the increasingly familiar factors of the economic impact of the government’s action, its frustration of "reasonable investment-backed expectations”, and the action’s public purpose or "character” (see, e.g., Penn Cent. Transp. Co. v New York City, 438 US 104, 124; Kaiser Aetna v United States, 444 US 164, 175; Rochester Gas & Elec. Corp. v Public Serv. Commn., 71 NY2d 313, 324). Even if the economic impact upon an owner of property is minimal, however, and does not significantly affect investment-backed expectations, the Supreme Court of the United States has held that where a "permanent physical occupation” has occurred, the "character of the government action” may become determinative and establish the presence of a taking (Loretto v Teleprompter Manhattan CATV Corp., 458 US 419, 426). Nevertheless, compensation will not be required, even where governmental destruction of property is involved, if the government’s action was necessary to stop an illegal activity, or prevent an impending danger emanating directly from the use or condition of the property (see, e.g., Miller v Schoene, 276 US 272, 280; Keystone Bituminous Coal Assn. v DeBenedictis, 480 US 470, 490, 492, n 22).

While we have not previously analyzed how these factors should be applied, and whether a taking occurs, when a business is required to continue operations at a loss, the question is not novel; it has been recognized by the United States Supreme Court (see, e.g., Brooks-Scanlon Co. v Railroad Commn., 251 US 396; Regional Rail Reorganization Act Cases, 419 US 102, 122) and thoroughly considered in the Federal courts (see, e.g., Matter of Valuation Proceedings Under §§ 303 [c] & 306 of Regional Rail Reorganization Act, 439 F Supp 1351 [Friendly, J.]; Gibbons v United States, 660 F2d 1227; Lehigh & New England Ry. Co. v Interstate Commerce Commn., 540 F2d 71). This line of cases begins with BrooksScanlon Co. v Railroad Commn. (supra, at 399), where Justice Holmes, writing for the court, stated that under the Fifth Amendment a person "cannot be compelled to carry on even a branch of business at a loss, much less the whole business”. Modern cases have emphasized the narrowness of the "BrooksScanlon” rule, however, and the limitation of a person’s right to cease business operations consistently has been held not a per se taking where a pervasively regulated industry is involved, and there exists an administrative procedure requiring that permission be obtained from a regulatory agency before service to the public is terminated (see, e.g., Gibbons v United States, supra; Lehigh & New England Ry. Co. v Interstate Commerce Commn., supra; Continental Air Lines v Dole, 784 F2d 1245). Under these circumstances, the courts have concluded that a business "may be made to suffer interim reasonable losses, without compensation, for a reasonable period of time during which solutions accommodating the public and private interests can be devised” (National Wildlife Fedn. v Interstate Commerce Commn., 850 F2d 694, 708 [quoting Le-high & New England Ry. Co. v Interstate Commerce Commn., supra, at 837]).

We conclude, under these principles, that the application of 10 NYCRR 401.3 (g), to require that respondents continue providing nursing home services, did not immediately constitute a taking. Initially, it does appear that the State’s actions had some negative economic impact upon respondents, because Abbott Manor continued to run at a deficit during the receivership period. The extent of this impact in real terms is greatly lessened, however, when it is recognized that the losses incurred during this period were no greater than those suffered by the nursing home before the receivership began, and that the State’s action, in any event, did not deprive respondents of the opportunity to recover their investment by selling the nursing home. Furthermore, in light of the presence of the regulation specifically barring a nursing home from immediately discontinuing services, the State’s prevention of respondents’ attempt to close Abbott Manor did not, under any reasonable view, affect respondents’ "investment-backed expectations” (see, Rochester Gas & Elec. Corp. v Public Serv. Commn., supra, at 325). More troubling, however, is respondents’ contention that the action here was tantamount to a physical occupation of the property, so that the "nature of the government action” becomes dispositive and establishes a taking (see, Loretto v Teleprompter Manhattan CATV Corp., supra, at 426). Nevertheless, even accepting this characterization, respondents’ conclusion is not warranted.

"Long ago” stated the United States Supreme Court, "it was recognized that 'all property in this country is held under the implied obligation that the owner’s use of it shall not be injurious to the community’ ”, and that the State’s actions to enforce this obligation is not a taking (Keystone Bituminous Coal Assn. v DeBenedictis, supra at 491-492 [quoting Mugler v Kansas, 123 US 623, 665]). Respondents in this case possessed the exclusive right to operate a nursing home solely because the public interest, as assessed by the Legislature and the Department of Health, required exclusivity. This grant by the State, while benefiting respondents, also put them in the position to create an immediate scarcity of medical care if services were terminated abruptly. When the State confers an exclusive franchise upon an individual incidental to providing a public good, it need not subject itself to the uncontrolled discretion of the individual to instantaneously create a public emergency. Instead, we conclude that the State may enforce the obligation, embodied in a regulation, that there shall not be immediate termination of nursing home services, because that use of the property threatens an imminent injury to the public (see, Keystone Bituminous Coal Assn. v DeBenedictis, supra, at 491-492).

Consequently, we agree with the apparently unanimous view of the courts that have considered the question, that under these circumstances the application of a regulation requiring that a business not terminate services, used for a reasonable period of time so that an agency may devise solutions accommodating the public and private interests, is a valid regulation and does not constitute a taking of private property for public use (see, e.g., Lehigh & New England Ry. Co. v Interstate Commerce Commn., supra, at 82; Gibbons v United States, supra, at 1238; Continental Air Lines v Dole, supra, at 1251-1252; Matter of the Valuation Proceedings Under §§ 303 [c] & 306 of Regional Rail Reorganization Act, supra, at 1371; see also, Davidson v Commonwealth, 8 Mass App 541, 395 NE2d 1314, 1318 [the government’s assumption of the operation of a nursing home in response to a public emergency was a valid exercise of the police power, and not a taking]). Therefore, the application of 10 NYCRR 401.3 (g) here, which barred respondents’ closure of the nursing home at least until such time as they applied to the Commissioner of Health to do so, did not by itself constitute an immediate taking of respondents’ property.

This is not to say that the State could force respondents to operate their business at a substantial loss indefinitely; it has been stated that there does come a time, after government has had a reasonable period to explore alternative solutions, when the individual’s right to terminate a business venture becomes paramount (see, e.g., Matter of Valuation Proceedings Under §§ 303 [c] & 306 of Regional Rail Reorganization Act, supra, at 1371). However, while the matter is not without some difficulty, particularly due to the state of the record, we conclude that respondents are not entitled to recover based upon the State’s unreasonable delay in closing Abbott Manor.

The record shows that respondents first attempted to close the nursing home without compliance with 10 NYCRR 401.3 (g), were prevented from doing so by the State, and in the process a receiver was appointed for the facility. Soon after the appointment of a receiver, respondents obtained an order, which proved erroneous, entitling them to full reimbursement for the cost of operating Abbott Manor during the receivership period. There is nothing in the record reflecting that respondents desired to close the nursing home following the receipt of this order; in fact, likely due to their belief that compensation would be forthcoming, during this period respondents apparently desired that Abbott Manor remain open. In any event, the facility was operated for approximately three years following respondents’ initial attempt to close the nursing home, and the State’s preventative action.

Respondents do argue, however, that any application under 10 NYCRR 401.3 (g), which requires the Commissioner of Health’s approval for the closing of a facility, would have been futile, because there were no alternative facilities available to care for Abbott Manor’s patients; in fact, the Court of Claims accepted this contention. However, the fact remains that respondents’ never made an application to close the facility under 10 NYCRR 401.3 (g), which renders conjectural any conclusion on what would have occurred had a proper application been made. Moreover, on this record it appears that soon after respondents unlawfully attempted to close the nursing home their desire to close the facility ceased. Finally, and most importantly, respondents make no claim in this court that the State required the operation of the nursing home against respondents’ wishes beyond a reasonable time; instead, respondents’ arguments are limited to the contention that they had an absolute right to close Abbott Manor, and that the State’s initial intervention to keep the facility open constituted a taking. Consequently, under these circumstances we are unable to hold that the State’s delay in closing the nursing home at some point became a taking.

In light of our conclusion that no taking occurred here, either immediately upon the State’s prevention of the closing of Abbott Manor or at sometime thereafter, regardless of whether attorney’s fees could have been awarded to respondents had they recovered on their claim, no attorney’s fees may be recovered in this case.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the claim dismissed.

Judges Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur; Judge Simons taking no part.

Order reversed, etc.

      . At the time of the State’s application for an injunction the requirements now found in 10 NYCRR 401.3 (g) were found in identical form in 10 NYCRR 701.3 (f) and 401.3 (f).

        . The Court of Claims grant of summary judgment on this issue left other causes of action pending, and the State’s initial motion for leave to appeal was dismissed for nonfinality (63 NY2d 675), as was the State’s first direct appeal on constitutional grounds (68 NY2d 641). Thereafter, respondents moved in the Court of Claims for attorney’s and accountant’s fees. The Court of Claims awarded fees to respondents, and directed entry of a final judgment indicating that respondents had discontinued or abandoned all causes of action for which they had not been awarded summary judgment. The Appellate Division affirmed, without opinion. The State now appeals pursuant to leave granted by this court, bringing up for review both the prior nonfinal grant of summary judgment, and the later award of fees (CPLR 5602, 5501 [a]).


author: Bellacosa, J.

text:
    Sixto R. Benitez, Respondent, v New York City Board of Education et al., Appellants, et al., Defendant.
    Argued May 2, 1989;
    decided June 8, 1989

      POINTS OF COUNSEL

      Peter L. Zimroth, Corporation Counsel (Fay Leoussis and
      Leonard Koerner of counsel), for appellants.
    I. Although the Trial Judge correctly dismissed, as not actionable, plaintiff’s first two claims alleging negligence on the part of defendants Board of Education and Public Schools Athletic League for their determinations, made after hearings and reviews of extensive documentary evidence, to transfer the George Washington High School varsity football team from Division B to the more competitive Division A in 1982 and to keep GW in Division A in 1983 after they determined that GW was not mismatched with the other Division A teams, the Judge and the court below erred in sustaining plaintiff’s other two claims alleging negligence by the principal and the coach for playing a league-scheduled game in 1983 and for playing plaintiff in almost every play of the first half. (Matter of Eastern N. Y. Youth Soccer Assn. v New York State Pub. High School Athletic Assn., 67 NY2d 665; Matter of Caso v New York State Pub. High School Athletic Assn., 78 AD2d 41; Torres v Little Flower Children’s Servs., 64 NY2d 119, 474 US 864; Hoffman v Board of Educ., 49 NY2d 121; Donohue v Copiague Union Free School Dist., 47 NY2d 440; James v Board of Educ., 42 NY2d 357; Tango v Tulevech, 61 NY2d 34.) II. The third claim presented to the jury, alleging that the principal and coach were negligent in permitting GW to play in the league-scheduled game against JFK, because the teams were mismatched, should also have been dismissed because it is materially identical to the first two claims, which were properly dismissed. (Tepper v City of New Rochelle School Dist., 143 AD2d 133; Eiseman v State of New York, 70 NY2d 175.) III. Since the then 19-year-old plaintiff or plaintiff’s counsel conceded at trial that plaintiff was provided with proper equipment, was taught all the proper blocking techniques, was accustomed to playing in each play of every game, knew he was playing in a "tough” division, and that the coach was "highly qualified”, and since plaintiff, a "superb” athlete who never complained of being tired, was hurt while he was voluntarily participating in an extracurricular interscholastic football game, plaintiff failed to establish any duty of care which was breached on the part of the coach by playing him in almost every play during the first two 12-minute quarters. Therefore, the courts below should have dismissed the fourth claim presented to the jury which alleged that the coach was negligent in how he played plaintiff. (Turcotte v Fell, 68 NY2d 432; Passantino v Board of Educ., 52 AD2d 935, 41 NY2d 1022; Scaduto v State of New York, 86 AD2d 682, 56 NY2d 762; Fein v Board of Educ., 305 NY 611; Ostrowski v Board of Educ., 31 AD2d 571; Govel v Board of Educ., 267 App Div 621, 293 NY 928; Darrow v West Genesee Cent. School Dist., 41 AD2d 897; Cambareri v Board of Educ., 246 App Div 127, 283 NY 741; Verduce v Board of Higher Educ., 8 NY2d 928; Yarborough v City Univ. of N. Y., 137 Misc 2d 282.)

      Stephen C. Glosser and Robert G. Sullivan for respondent.
    I. Both the court below and the trial court properly sustained plaintiffs verdict vis-á-vis the "mismatch” theory and the "playing-plaintiff-while-tired” theory since, in both cases, the Board of Education (acting through GW’s principal or coach) unreasonably (and substantially) increased or enhanced the risk that plaintiff would actually be injured while playing football. (Scheemaker v State of New York, 70 NY2d 985; Friedman v State of New York, 67 NY2d 271; Smirlock Realty Corp. v Title Guar. Co., 63 NY2d 955; Negri v Stop & Shop, 65 NY2d 625; Ferrer v Harris, 55 NY2d 285; Caprara v Chrysler Corp., 52 NY2d 114; Alexander v Eldred, 63 NY2d 460; Blum v Fresh Grown Preserve Corp., 292 NY 241; Randolph v City of New York, 69 NY2d 844; National Bank v Systems Home Improvement, 69 AD2d 557, 50 NY2d 814.) II. The doctrine of assumption of risk does not warrant dismissal of the complaint. (Passantino v Board of Educ., 52 AD2d 935, 41 NY2d 1022; Arbegast v Board of Educ., 65 NY2d 161; McGee v Board of Educ., 16 AD2d 99, 12 NY2d 1100; Turcotte v Fell, 68 NY2d 432; Maddox v City of New York, 66 NY2d 270; Diderou v Pinecrest Dunes, 34 AD2d 672; Hornstein v State of New York, 30 AD2d 1012; Jenks v McGranaghan, 32 AD2d 989; Jackson v Livingston Country Club, 55 AD2d 1045; Arnold v Schmeiser, 34 AD2d 568.) III. The trial court erred in dismissing the two PSAL causes of action. (Cavello v Sherburne-Earlville Cent. School Dist., 110 AD2d 253, 67 NY2d 601; Savino v Board of Educ., 123 AD2d 314; Donohue v Copiague Union Free School Dist., 47 NY2d 440; Torres v Little Flower Children’s Servs., 64 NY2d 119, 474 US 864; Tango v Tulevech, 61 NY2d 34; Weiss v Fote, 7 NY2d 579.)

      Ronald R. Shaw for New York State Public High School Athletic Association, Inc., amicus curiae.

   OPINION OF THE COURT

Bellacosa, J.

In this personal injury action seeking damages arising from a paralyzing high school football injury, the jury returned a verdict for plaintiff Benitez on four separate theories of negligence against the New York City Board of Education (Board) and its Public Schools Athletic League (PSAL). The Trial Justice granted a postverdict motion rejecting two of the four negligence theories. In a split decision, the Appellate Division affirmed the judgment for Benitez in the sum of $878,330 and subsequently granted the Board and PSAL leave to appeal.

We reverse and dismiss the complaint because plaintiff adduced insufficient evidence that defendants breached any duty of reasonable care which can be said to have proximately caused his injuries. A board of education, its subordinate employees and interscholastic athletic organizations must exercise only reasonable care to protect student athletes in sports competitions from injuries arising out of unassumed, concealed, or unreasonably increased risks. The trial court incorrectly resolved the duty/causation issue and did so under an erroneous higher duty of care instruction.

Benitez was a 19-year-old senior star athlete at George Washington High School (GW) when he suffered a broken neck in 1983 during a varsity football game against another Division A team, John F. Kennedy High School (JFK). GW had been placed in Division A prior to the 1982 season by the Football Committee of the PSAL. The PSAL determined, pursuant to established guidelines, that GW was better suited for Division A competition than the less competitive Division B league where GW had been dominant the three previous seasons. GW exhausted its administrative appeals, arguing throughout that Division A competition was "potentially dangerous to the safety and welfare of the team” and that the players might "suffer serious injuries”. Before the start of the 1983 season, GW again sought to be assigned to Division B, citing among its grounds safety concerns and the injury toll suffered by the team during the 1982 season. Under PSAL administrative guidelines and because the injuries suffered by GW players were akin in number and degree with those of other Division A teams, this request for reassignment was also denied.

Following the 1983 denial, GW’s coach advised the school’s new principal to drop the football program but was told that such action would result in the barring of all GW athletic teams from interscholastic competition for the year. Prior to the 1983 GW-JFK game, the coach and the assistant principal in charge of physical education and health advised GW’s principal that the game was a mismatch and should not be played because of the high risk of injury. The coach testified as a witness for plaintiff that, despite the principal’s decision to play the season and the game, he viewed it as the coach’s responsibility to pull a team off the field in the face of unsafe competition. He felt at the time it was unsafe for his team to be playing JFK; he knew his players were fatigued; he did not have the personnel to rest Benitez; and he was aware that injuries are most likely to occur when players are tired. He did not unilaterally cancel the game because he feared it might cost him his job.

Plaintiff Benitez had received numerous college football scholarship offers before his injury. He testified that he played football voluntarily and that he was fully trained by a qualified coach, particularly with respect to proper blocking techniques. His injury occurred with 1 minute and 17 seconds left in the first half of the game while correctly executing a block during a kick-off return by his team. Prior to his injury, he engaged, as was customary for him, in the great majority of plays for his team’s offensive, defensive and special squads. Plaintiff conceded he was fatigued at the time of his injury but had not so informed his coach.

Benitez initiated this action against the Board, PSAL and City of New York alleging negligence in placing and retaining GW in Division A; allowing GW to play the JFK game in the face of an obvious mismatch; and allowing him to play virtually the entire first half of the game without adequate rest. Prior to submission of the case to the jury, the Trial Justice dismissed the case as against the City of New York. The court subsequently instructed the jury, over objection, that the defendants were obligated to exercise the same level of care "as a parent of ordinary prudence would exercise under the same circumstances”.

The jury verdict in Benitez’ favor apportioned 30% of the fault against him and 70% against the defendants. The Trial Justice granted, in part, a motion for a judgment notwithstanding the verdict and dismissed the causes relating to the placement and retention of GW in Division A, reasoning that these were discretionary determinations. Declining to direct a defendants’ verdict on the remaining negligence theories, the Trial Justice stated: "[c]ertainly, the jury had a right to indicate that from the facts that were given, that they acted negligently in permitting him to play; particularly, if the coach indicated that he was fatigued. And, if he was playing him in a manner knowing that he was fatigued, certainly the jury could find that he was negligent in doing that.”

In affirming, the Appellate Division majority reasoned that despite Benitez’ voluntary participation and assumption of the risks inherent in football, the coach knew it was unsafe for Benitez to be playing full time, while tired, in a mismatched game and that the failure to rest him substantially increased the likelihood of injury and was its proximate cause. Additionally, the risk of injury was said to have been unreasonably enhanced by the "indirect compulsion” (141 AD2d, at 459) of the teacher-student relationship and the student’s concern that he not jeopardize his college scholarship opportunities by removing himself from the game.

The dissenting Justice stated that the standard of care applicable to this situation was unsettled, but regardless of whether it was a "reasonable care” or a "prudent parent” standard, neither was breached in this case. Viewing fatigue and injury as risks inherent in football and assumed by plaintiff, the dissenters asserted that the assumption of risk defense was unrebutted. They rejected application of the "implied compulsion” theory as there was no evidence that the 19-year-old plaintiff was acting in other than a voluntary manner.

Leave was granted by the Appellate Division on a certified question which need not be answered, as the order appealed from finally determines the action. We reverse and dismiss the complaint.

The trial court erroneously instructed the jury that a school owes a student voluntarily competing in an interscholastic high school football game the more protective duty and standard of care of a prudent parent (compare, Pratt v Robinson, 39 NY2d 554; Lawes v Board of Educ., 16 NY2d 302, 305; Hoose v Drumm, 281 NY 54, 57-58). In the context of wholly voluntary participátion in intramural, interscholastic and other school-sponsored extracurricular athletic endeavors, we have required the exercise of the less demanding ordinary reasonable care standard (see, Scaduto v State of New York, 86 AD2d 682, 683, affd 56 NY2d 762; Govel v Board of Educ., 267 App Div 621, 624, affd 293 NY 928).

To be sure, application of the personal injury principles of duty, breach and proximate cause in the context of sports injuries almost invariably includes a discussion also of assumption of risk. The common Latin aphorism cited in the cases translates as follows: one who consents to an act does not suffer a compensable injury. As Judge Cardozo put it in the "Flopper” amusement ride case, "[o]ne who takes part in such a sport accepts the dangers that inhere in it so far as they are obvious and necessary, just as a fencer accepts the risk of a thrust by his antagonist or a spectator at a ball game the chance of contact with the ball” (Murphy v Steeplechase Amusement Co., 250 NY 479, 482; see, Akins v Glens Falls City School Dist., 53 NY2d 325, 329; see also, 1 Lee and Lindahl, Modern Tort Law § 9.01, at 237-238 [rev ed]; Restatement [Second] of Torts § 496A, comment b). As an integral part of athletic competitions, persons are generally held by their actual and implied consents to the risks of "injury-causing events which are known, apparent or reasonably foreseeable consequences of the participation” (Turcotte v Fell, 68 NY2d 432, 439; see, 2 Speiser, Krause, Gans, American Law of Torts § 9:43, at 1328). In this context, however, important legal distinctions are drawn between compulsory physical education courses and voluntary participation in interscholastic athletic activity (Passantino v Board of Educ., 52 AD2d 935, 937, read on dissenting opn 41 NY2d 1022), as well as between professional and amateur status (Maddox v City of New York, 66 NY2d 270, 278).

Assumption of risk in competitive athletics "is not an absolute defense but a measure of the defendant’s duty of care” (Turcotte v Fell, 68 NY2d 432, 439, supra; see, Arbegast v Board of Educ., 65 NY2d 161, 170). The policy underlying this tort rule is intended to facilitate free and vigorous participation in athletic activities. But even with professional athletes, it is "qualified to the extent that participants do not consent to acts which are reckless or intentional” (Turcotte v Fell, supra, at 439; see, 2 Speiser, Krause, Gans, American Law of Torts § 9:43, at 1328). Awareness of the risk assumed is "to be assessed against the background of the skill and experience of the particular plaintiff, and in that assessment a higher degree of awareness will be imputed to a professional than to one with less than professional experience in the particular sport” (Maddox v City of New York, 66 NY2d 270, 278, supra [citations omitted]; see, McGee v Board of Educ., 16 AD2d 99, 102, lv denied 13 NY2d 596; Prosser and Keeton, Torts § 68, at 487 [5th ed]). Manifestly, a high school athlete, even an outstanding one, does not assume all the risks of a professional sportsperson, but neither does a 19-year-old senior star football player and college scholarship prospect fall within the extra protected class of those warranting strict parental duties of supervision.

In Passantino v Board of Educ. (52 AD2d 935, 937, revd on dissenting opn 41 NY2d 1022, supra), this court accepted a distinction between the circumstances of a physical education course, where participation is compulsory, and purely voluntary activity in interscholastic sports. We dismissed the complaint in that case in circumstances remarkably parallel to this case, albeit in a different sport — baseball. Players who voluntarily join in extracurricular interscholastic sports assume the risks to which their roles expose them but not risks which are "unreasonably increased or concealed” (McGee v Board of Educ., 16 AD2d 99, 102, lv denied 13 NY2d 596, supra; compare, Govel v Board of Educ., 267 App Div 621, affd 293 NY 928, supra). The distinction has continued validity and usefulness in correctly deciding this and like cases.

We hold that a board of education, its employees, agents and organized athletic councils must exercise ordinary reasonable care to protect student athletes voluntarily involved in extracurricular sports from unassumed, concealed or unreasonably increased risks.

On the record before us, we conclude as a matter of law that there was no showing of inherent compulsion and that Benitez’ injury was not the consequence of a failed duty of care on the part of the defendants.

The theory of inherent compulsion provides that the defense of assumption of the risk is not a shield from liability, even where the injured party acted despite obvious and evident risks, when the element of voluntariness is overcome by the compulsion of a superior (see, Maddox v City of New York, 66 NY2d 270, 279, supra). Two factors are generally present to sustain a finding of liability on an inherent compulsion theory despite the injured party’s knowledge of the risk, "a direction by a superior to do the act” and "an economic compulsion or other circumstance which equally impels” compliance with the direction (Verduce v Board of Higher Educ., 9 AD2d 214, 219 [dissenting opn], revd on dissenting opn 8 NY2d 928; Broderick v Cauldwell-Wingate Co., 301 NY 182). Though the risk is foreseen, an assurance of safety generally implicit in the supervisor’s direction supplants the plaintiff’s assumption of the risk by requiring action despite prudent cautionary concerns (see, Verduce v Board of Higher Educ., supra, at 219; Zurich Gen. Acc. & Liab. Ins. Co. v Childs Co., 253 NY 324; see also, Prosser and Keeton, Torts § 68, at 490-492 [5th ed]).

The coach undeniably supervised plaintiff, who may have feared that if he did not play or if he asked to be rested his athletic standing or scholarship opportunities might be jeopardized. However, there was no evidence at all that plaintiff was concerned about an unreasonably heightened risk of competition or that his coach directed him to disregard a risk he would not have otherwise assumed anyhow. While plaintiff testified he was tired, he acknowledged that he was participating voluntarily, that he did not inform his coach of his fatigue, and that he was playing without complaint under the same conditions as he had for the previous season and one half. In sum, plaintiff Benitez failed to present any evidence that he had no choice but to follow the coach’s direction to play despite his concern over enhanced risk factors known by or communicated to the coach (Maddox v City of New. York, 66 NY2d 270, 279, supra).

Moreover, while issues of proximate cause are generally fact matters to be resolved by a jury, “where only one conclusion may be drawn from the established facts * * * the question of legal cause may be decided as a matter of law” (Derdiarian v Felix Contr. Co., 51 NY2d 308, 315; see also, Boltax v Joy Day Camp, 67 NY2d 617, 620). Fatigue and, unfortunately, injury are inherent in team competitive sports, especially football. Benitez was concededly an excellent athlete, properly equipped and well-trained. He was playing voluntarily in the same manner as he had for the previous year and one half against Division A competition and had not requested rest or complained. Within the breadth and scope of his consent and participation, plaintiff put himself at risk in the circumstances of this case for the injuries he ultimately suffered. On his own proof, he thus failed to meet the burden of showing some negligent act or inaction, referenced to the applicable duty of care owed to him by these defendants (see, Turcotte v Fell, 68 NY2d 432, supra; Passantino v Board of Educ., 52 AD2d 935, revd on dissenting opn 41 NY2d 1022, supra), which may be said to constitute "a substantial cause of the events which produced the injury” (Derdiarian v Felix Contr. Co., supra, at 315; see also, Nallan v Helmsley-Spear, Inc., 50 NY2d 507, 520). The injury in this case, in sum, was a luckless accident arising from the vigorous voluntary participation in competitive interscholastic athletics.

Accordingly, the order of the Appellate Division should be reversed and the complaint dismissed, with costs. The certified question should not be answered as unnecessary.

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

Order reversed, etc.


author: Per Curiam. Kaye, J.

text:
    The People of the State of New York, Appellant, v Robert Feldes, Respondent.
    Submitted May 2, 1989;
    decided June 13, 1989

      POINTS OF COUNSEL

      Stephen F. Lungen, District Attorney (Bonnie M. Mitzner of counsel), for appellant.
    I. Respondent’s conviction should be reinstated and the appeal perfected. (People v Greenbaum, 104 Misc 2d 1012.) II. The County Court erred in reversing respondent’s conviction. (People v Greenbaum, 104 Misc 2d 1012; People v Hinkley, 121 Misc 2d 990.)

      Emanuel Gellman for respondent.
    The County Court properly reversed respondent’s conviction. (People v Greenbaum, 104 Misc 2d 1012; People v Rokahr, 141 Misc 2d 117.)
   OPINION OF THE COURT

Per Curiam.

The issue presented by this appeal arises from a gap in the statutory scheme for appeals from local criminal court judgments when the proceedings have not been stenographically recorded. In such a case, the defendant files a notice of appeal, accompanied or followed by an affidavit of errors that sets forth the defendant’s allegations concerning the errors in the local court proceeding (CPL 460.10 [3] [a]). In theory, the local court then responds by filing within 10 days a return with the appellate court to which the appeal has been taken; the return sets forth or summarizes the facts relevant to the defendant’s claims (CPL 460.10 [3] [d]). In addition, should the local court fail to timely file a return or file one that is defective in some respect, provision is made for the defendant to move the appellate court for an order directing the lower court to file or amend its return (CPL 460.10 [3] [e]). Absent from the Criminal Procedure Law, however, is any provision for what is to be done should the local court fail to respond to this order. That is the bone of contention between the parties here.

Prior to trial in Town Justice Court, defendant unsuccessfully sought, over the People’s objection, to have the proceedings recorded. Following his trial, defendant was convicted of third degree assault. Defense counsel properly served a notice of appeal and an affidavit of errors. The Town Justice who had tried defendant meanwhile retired, and a return on defendant’s affidavit was made by his successor. The return was filed with the County Clerk’s office, but neither defendant nor the People were served with copies, although the statute requires that to be done (CPL 460.10 [3] [d]). Defendant, unaware that a return existed, moved for an order directing the filing of a return or for dismissal, and the County Court directed the Justice Court to file a return. No response was made.

Defendant then sought dismissal of the charges against him, for failure of the local court to satisfy the requirements of CPL 460.10 (3) (d). In his affirmation in support of the motion, defense counsel noted that he had by then examined the return filed with the County Clerk, but that in his view it was unresponsive to the errors alleged by defendant and therefore defective. The People opposed defendant’s motion for dismissal on the sole ground that CPL 460.10 did not provide for dismissal when no return had been filed. They argued that the appropriate remedy would be to direct an order specifically to the now-retired Town Justice who had tried the case to file a return, on pain of contempt. Neither party, in County Court or before us, in any way relied on the return that had been filed with the County Clerk’s office as compliance with the statutory mandate.

County Court held that "when a justice court fails to file a return, the allegations set forth in the affidavit of errors will be deemed admitted and the intermediate appellate court may decide the appeal on the merits as set forth in the affidavit of errors alone.” Following that procedure, County Court reversed defendant’s conviction and remanded the matter to Justice Court for further proceedings. We now affirm.

The People’s central contention on this appeal, is that County Court acted outside its power, because the Criminal Procedure Law does not authorize the course followed. Specifically, the People contend that it was an abuse of discretion to deem the allegations admitted before issuing yet another order informing the lower court of the consequences of continued failure to file a return (see, People v Hinkley, 121 Misc 2d 990; People v Greenbaum, 104 Misc 2d 1012).

We cannot accept the People’s theory that County Court was required to give the Town Justice warning that failure to comply with an order to file a return would result in admission of defendant’s allegations. The Criminal Procedure Law requires that a return be filed within 10 days of service of an affidavit of errors; it then provides for an order to issue in the instance — which should be rare — where the local court does not comply with its statutory obligation. That is sufficient. It is not incumbent upon an appellate court absent unusual circumstances not present here, to provide a further opportunity for the town trial court to fulfill its duty especially when the prosecutor has done nothing to advance the appeal. Whoever was at fault, it certainly was not the defendant, and he should not suffer because of this inaction on the part of State officials.

In the circumstances, we conclude that it was not an abuse of discretion for County Court to deem defendant’s allegations of error admitted. Having unsuccessfully sought to have the proceedings recorded, and then by two motions to secure compliance with the Criminal Procedure Law, defendant could have done nothing more to advance his appeal (contrast, People v Greenbaum, supra). In the absence of any statutory direction, County Court acted within its discretion in fashioning the remedy of deeming the allegations of error admitted. While generally a hearing should be provided, at which the People might present their legal arguments, here that step was unnecessary and the People did not seek that relief. Once defendant’s allegations were deemed admitted, reversal of the conviction and remand to the Town Justice Court followed because, as the lower court observed, on this record the admitted trial court errors could in no event have been deemed harmless.

Accordingly, the order of the County Court should be affirmed.

Kaye, J.

(dissenting). While County Court of course can fill the statutory gap by fashioning an appropriate remedy for failure to file a return on an affidavit of errors, here it abused its discretion by summarily overturning a conviction without first reviewing the return that had actually been filed, and without giving the People a chance to be heard. We respectfully dissent.

Defendant’s affidavit of errors, filed February 29, 1988, was in many respects so general and vague as virtually to defy response. Nonetheless, a return was filed on March 9, 1988, consisting of a certificate of conviction, the accusatory instrument, the Trial Justice’s lengthy handwritten notes of the trial testimony, and his decision. Notably, although the return was not properly served on defendant, by the end of June 1988 defendant was in fact fully aware of it. Indeed, defendant alluded to it in his second motion to dismiss and consequently, County Court was or should have been aware of its existence; the return was part of the court file and is part of the record on this appeal. To the extent response to defendant’s affidavit of errors was possible, the return was arguably responsive to defendant’s affidavit of errors despite his contrary claim.

In these circumstances, County Court should not have reversed defendant’s conviction without first examining the return to determine the merits of defendant’s claim that it was unresponsive to his allegations. As we have stated in a comparable situation not involving a Justice Court, it is only upon a showing that an adequate record for review is not available that a defendant is entitled to automatic reversal (People v Glass, 43 NY2d 283, 285). Here, defendant’s own motion papers disclosed the existence of a record; the showing required for automatic reversal was plainly not made. Moreover, contrary to the contention of the majority, it was not the obligation of the prosecutor to "advance” the defendant’s appeal (majority opn, at 664); it is for the defendant to demonstrate that the available record is inadequate. There is no basis for deviating from these principles, and imposing on the People the duty to secure the court’s performance because the Justice Court and not some other court is involved.

We further agree with the People that County Court should not have summarily reversed the conviction without giving the People a chance to be heard, and without then determining that the alleged errors required reversal. CPL 460.70 (2), the statute governing perfection of appeals from local criminal courts when the proceedings have not been transcribed, requires the defendant to file a notice of argument, and serve a copy on the People. While in this case it may well have been true that once the allegations of defendant’s affidavit were deemed admitted reversal was inevitable, the People still were entitled to make such legal arguments in opposition as they could muster, and it was error to deny them that opportunity.

The course chosen by County Court — automatically overturning a conviction — was wholly unwarranted.

Chief Judge Wachtler and Judges Titone, Hancock, Jr., and Bellacosa concur in Per Curiam opinion; Judge Kaye dissents and votes to reverse in a separate opinion in which Judges Simons and Alexander concur.

Order affirmed.


text:
    The People of the State of New York, Appellant, v Donald Giles, Respondent.
    Argued April 27, 1989;
    decided June 13, 1989

      POINTS OF COUNSEL

      Robert M. Morgenthau, District Attorney (Mary C. Farrington and Mark Dwyer of counsel), for appellant.
    By granting defendant’s motion to suppress on the basis of the evidence adduced at trial, the court below ignored two rules of law established by this court, abused its discretion as a matter of law, and ordered illegal corrective action. (People v Gonzalez, 55 NY2d 720, 456 US 1010; People v Millan, 69 NY2d 514; People v James, 67 NY2d 662; People v Wilkins, 65 NY2d 172; People v Dodt, 61 NY2d 408; People v Bronston, 68 NY2d 880; People v Havelka, 45 NY2d 636; People v Malinsky, 15 NY2d 86; People v Cofresi, 60 NY2d 728; People v Crandall, 69 NY2d 459.)

      Richard Joselson and Philip L. Weinstein for respondent.
    I. Because the decision of the court below to resolve the suppression issue based upon its review of the trial record was made in the interest of justice, no appeal from the order lies under CPL 450.90 (2) (a); further, because this court must assume the validity of this decision in assessing the propriety of the corrective action under CPL 450.90 (2) (b), the order of the court below must be affirmed. (People v Pauli, 70 NY2d 911; People v Lavender, 68 NY2d 995; People v Baker, 64 NY2d 1027; People v Chessman, 54 NY2d 1016; People v Dercole, 52 NY2d 956; People v Washington, 71 NY2d 916; People v Albro, 52 NY2d 619; People v Johnson, 47 NY2d 124; People v Carter, 63 NY2d 530; People v Kidd, 76 AD2d 665, 51 NY2d 882.) II. The decision of the court below to grant respondent’s suppression motion based upon the trial testimony of the three police officers involved in the stop and search was within the scope of its interest of justice power. (People v Giles, 137 AD2d 1; People v Davis, 94 AD2d 610; People v Kidd, 76 AD2d 665, 51 NY2d 882; People v Carter, 63 NY2d 530; People v Millan, 69 NY2d 514; People v James, 67 NY2d 662; People v Wilkins, 65 NY2d 172; People v Dodt, 61 NY2d 408; People v Gonzalez, 55 NY2d 720; People v Bronston, 68 NY2d 880.)
   OPINION OF THE COURT

Bellacosa, J.

At the outset of this People’s appeal, we address whether the determination below satisfies this court’s jurisdictional threshold that the decision was made on the law alone, or on the law and such facts which but for the determination of law would not have led to the Appellate Division’s reversal (CPL 450.90 [2] [a]). That court’s order recited the determination was "on the law and in the exercise of discretion”, but the opinion manifests that but for the purely legal determination of the intermediate appellate court’s power to grant the suppression motion on trial evidence alone, that court would not have reversed, without a hearing, the defendant’s conviction. Inasmuch as the order of the Appellate Division is appealable under the remedial amendment to CPL 450.90 (2) (a), a threshold determination consigned to us, we are able in this case to reverse, reinstate the judgment and remit for a hearing on the suppression motion.

Defendant was charged with criminal possession of a weapon and of a controlled substance, based on the seizure of contraband discovered after plain-clothes police officers stopped and searched the taxicab in which he and two others were passengers. Before trial, defendant made the customary motion to suppress all physical evidence, in which he challenged the legality of the stop and of the subsequent search of the vehicle. The motion was denied without a hearing on the ground that, under then-controlling case law, defendant lacked standing. A jury trial followed and defendant was convicted.

On appeal to the Appellate Division from the judgment of conviction bringing up for review the order denying suppression, defendant argued that he had standing for the suppression motion and that it should not have been denied without a hearing. The People conceded the point in light of this court’s intervening and controlling decision in People v Millan (69 NY2d 514), and they asked the Appellate Division to remit to the trial court to give the defendant his suppression hearing.

The Appellate Division acknowledged that under Millan (supra) defendant had acquired standing for a suppression motion and a hearing, but instead of withholding determination of the appeal and remitting to Supreme Court for that purpose as would be its "usual practice”, the court granted the suppression motion outright without any hearing by basing its determination on the trial evidence (137 AD2d 1, 4). It recited that it was exercising its "fact-finding power in the interest of justice and judicial economy.” The court then reversed the judgment of conviction and dismissed the indictment. A Judge of this court granted leave to appeal to the People to review the correctness of the Appellate Division’s determination.

The appealability of intermediate appellate court orders was, as reformulated in 1970, restricted to cases where the order of reversal or modification was based "on the law” alone (see, CPL former 450.90 [2] [a]; L 1970, ch 996; People v Coppa, 45 NY2d 244, 248-249). As a result, when the Appellate Division expressly reversed "on the law and the facts”, this court was unable to look beyond the recital in the order itself, requiring the appeal to be dismissed without review of any legal issue (People v Johnson, 47 NY2d 124; People v Sullivan, 29 NY2d 937, 938; but see, People v Mackell, 36 NY2d 964, 40 NY2d 59).

In 1976, then-Chief Judge Breitel importuned the Legislature to amend CPL 450.90 to expand our authority to address a question of law even if the intermediate court’s decretal clause recited what might superficially appear to be a barrier: "In the time-honored tradition for courts or their members to suggest legislative change when the cases before them seem to so require, it would appear to be eminently desirable to * * * restore to this court the power to review questions of law following a conviction for a crime, despite a recital that the reversal is also on the facts. Of course, such a revision would not and could not constitutionally confer upon this court the power to evaluate, under the guise of determining whether the intermediate appellate court has 'really’ made factual determinations, the weight of the evidence, a question of fact (NY Const, art VI, §3). Instead, under such a revision the court would review only questions of law. *, * * As the statute now reads, however, a mistaken order by a court, or an intended frustration of appellate review (a situation definitely not present in this case as a reading of the Appellate Division opinion demonstrates) is effective to bar salutary review despite the presence of real issues of law” (People v Mackell, 40 NY2d 59, 64-65 [Breitel, Ch. J., concurring], supra). Three years later, the Legislature responded (L 1979, ch 651). Most pertinently, the statute, as amended, allows this court to go behind the recitation in the decretal clause of the order and determine for itself whether a determinative legal question is present (People v Albro, 52 NY2d 619, 623-624). If a reversal or modification was predicated upon the application of a legal principle, the Court of Appeals was to be permitted for the first time to act on the determination of the intermediate appellate court on the law issue only and, if necessary, to remit for further consideration by the courts below (see, People v Washington, 71 NY2d 916).

The Appellate Division had a threshold legal question to resolve before issuing the plenary dismissal of the indictment in this case: did it have the power to rely upon later-developed trial evidence to retrospectively decide the merits of an unlitigated suppression motion? The court reasoned that it could do so and then, despite the People’s argument that they were entitled to one hearing opportunity, looked to the trial evidence "produced” by the prosecutor at trial, asserting that this efficient bypass nevertheless afforded the People "a full opportunity to be heard” (137 AD2d, at 5) on the suppression issue in satisfaction of the rule of People v Havelka (45 NY2d 636). Thus, only after making its predicate legal determination to act in this fashion at all, did the court then proceed to the second tier of its decision-making process — consideration and application of the trial evidence to arrive at a factual determination that suppression was warranted on the merits.

Exercising the authority uniquely reposed in us to determine our jurisdictional range in such instances, we acknowledge that the Appellate Division’s forthright opinion does effect a judicial economy, but it also unavoidably demonstrates that but for the resolution of the purely legal issue of its power under Havelka (supra), it would not have reached or reversed the defendant’s conviction by using the trial evidence retrospectively (see, People v Winkler, 74 NY2d 704 [decided today]). The Appellate Division reversal in this case thus fits within the remedial language and intent of amended CPL 450.90 (2) (a).

On the pure legal issue before us, then, we conclude that the Appellate Division took a misstep in directing reversal and dismissal without a suppression hearing being afforded at all. The precedential principle has become firm and plain that the People are also entitled to a hearing when a court makes an error of law which functionally deprives the People of their one opportunity to put in their case in the relevant procedural variations these cases can take (see, e.g., People v Crandall, 69 NY2d 459; People v Dodt, 61 NY2d 408; People v Payton, 51 NY2d 169; People v Havelka, 45 NY2d 636, supra; People v Green, 33 NY2d 496; People v Malinsky, 15 NY2d 86). The rationale for the rule is that, in fairness, "the People should not be deprived of one full opportunity to present evidence of the dispositive issue involved at the suppression hearing. If an error of law is committed by the hearing court which directly causes the People to fail to offer potentially critical evidence a rehearing should be ordered so that evidence may be presented” (People v Havelka, 45 NY2d 636, 643, supra).

In this case, the suppression court applied then-valid preMillan law and denied defendant’s motion without a hearing (compare, People v Wesley, 73 NY2d 351, 360-362). It was this ruling by the hearing court and not a failure of proof by the People that resulted in evidence of the legality of the stop and search remaining undeveloped — evidence perhaps not strategically useful to be advanced at trial or even inadmissible as irrelevant or prejudicial at trial before a jury (see, People v Dodt, 61 NY2d 408, 417, supra; People v Payton, 51 NY2d 169, 177, supra). It should not be foreclosed forever. Thus, in these circumstances, the People should not be penalized by use against them of a possibly truncated evidentiary submission at trial, and they should be entitled to the one evidentiary suppression hearing which should then form the basis for the decision on the merits of the issues relevant in that procedural context.

The Appellate Division’s shortcut under these circumstances cannot be sustained as an authorized remedy for the concededly erroneous suppression ruling at the trial level (compare, the instant case, with People v Douglass, 60 NY2d 194, 205; and Matter of Holtzman v Goldman, 71 NY2d 564, 570 [both dealing with lack of trial court authority to bypass for efficiency reasons procedural safeguards of the People]). In sum, without the hearing, neither the Appellate Division nor this court can know or decide what evidence may have been available for the suppression hearing yet withheld as unnecessary at trial (People v Millan, 69 NY2d 514, 518, supra; People v James, 67 NY2d 662, 664; People v Gonzalez, 55 NY2d 720, 721-722, cert denied 456 US 1010).

Accordingly, the order of the Appellate Division should be reversed, the judgment of conviction reinstated and the case remitted to the Appellate Division to remit to Supreme Court for a hearing on defendant’s motion to suppress.

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

Order reversed, judgment reinstated, and case remitted to the Appellate Division, First Department, for further proceedings in accordance with the opinion herein.