author: Meyer, J. Jasen, J.

text:
    The People of the State of New York, Appellant, v Steve J. Elwell, Respondent.
    Argued March 19, 1980;
    decided May 6, 1980

      POINTS OF COUNSEL

      D. Bruce Crew, III, District Attorney (Kevin M. O’Shea of counsel), for appellant.
    The search and seizure in the case at bar was reasonable and did not violate defendant’s constitutional rights. (Carroll v United States, 267 US 132; People v Singleteary, 35 NY2d 528; People v Kreichman, 37 NY2d 693; Katz v United States, 389 US 347; Coolidge v New Hampshire, 403 US 443; Chambers v Maroney, 399 US 42; Cardwell v Lewis, 417 US 583; Brinegar v United States, 338 US 160; Draper v United States, 358 US 307; Jones v United States, 362 US 257.)

      Thomas E. Reilly for respondent.
    I. The stop, search and seizure are unlawful here and violated defendant’s rights to be free from unreasonable searches and seizures as guaranteed by the Fourth Amendment through the Fourteenth Amendment of the Constitution of the United States and section 12 of article I of the Constitution of the State of New York. (People v Verrecchio, 23 NY2d 489; Aguilar v Texas, 378 US 108; People v Hendricks, 25 NY2d 129; People v Carter, 56 AD2d 948; People v Di Polito, 61 Misc 2d 65; People v Cerrato, 24 NY2d 1; Irby v United States, 314 F2d 251; People v Montague, 19 NY2d 121; People v Rogers, 22 AD2d 902, 15 NY2d 422; People v Mancinelli, 50 Misc 2d 952.) II. There were no “exigent circumstances” so as to justify the failure to obtain a search warrant. (People v Vaccaro, 39 NY2d 468; People v Lypka, 42 AD2d 414; McDonald v United States, 335 US 451; People v Gleeson, 44 AD2d 252; Terry v Ohio, 392 US 1.) III. Articles seized pursuant to an unlawful and unreasonable stop, search and seizure must be suppressed and cannot be introduced in evidence against defendants, Smith and Elwell.
   OPINION OF THE COURT

Meyer, J.

The core issue on this appeal is whether a warrantless search is permissible on the basis of information supplied without any indication of how the informant acquired his knowledge when the police have been able to confirm by their own inquiry and observation details supplied by the informant which are personal in nature and not in any way suggestive of criminal activity. In the jargon of criminal law practitioners, we deal with the Spinelli -Draper aspects of the second ("basis of knowledge”) prong 4of the Aguilar test. The Trial Judge denied suppression of the gun seized as a result of the search, after which defendant pleaded guilty and then appealed the denial of his suppression motion (GPL 710.70, subd 2). The Appellate Division, by a divided court, reversed. The majority concluded on the basis of our decisions in People v West (44 NY2d 656), People v Wirchansky (41 NY2d 130), and People v Hanlon (36 NY2d 549) that, as a matter of law, probable cause had not been demonstrated since the observations by the police were as consistent with innocent behavior as with criminal conduct. The dissenters reasoned, on the basis of Spinelli and Draper, that the latter fact was not dispositive when the corroborated noncriminal facts set "the information apart from the category of rumor” and "supplied the police with an ample basis for crediting the information.” (66 AD2d, at pp 176, 177.)

We affirm the Appellate Division’s holding that for police ' observation to constitute the verification that will establish probable cause and permit a warrantless search or arrest predicated upon data from an informer who has not revealed the basis for his knowledge, it is not enough that a number, even a large number, of details of noncriminal activity supplied by the informer be confirmed. Probable cause for such an arrest or search will have been demonstrated only when there has been confirmation of sufficient details suggestive of or directly related to the criminal activity informed about to make reasonable the conclusion that the informer has not simply passed along rumor, or is not involved (whether purposefully or as a dupe) in an effort to "frame” the person informed against. To the extent that Spinelli and Draper may be read as imposing a less stringent test under the Federal Constitution, we decline to construe the parallel provision of our State Constitution similarly and adopt the rule set forth above as a matter of State constitutional law.

The context in which the issue arises is a telephone call received on February 18, 1977 at 11 p.m. by Charles Hancock, an investigator in narcotic matters employed by the City of Elmira, from a person with whom he had previously dealt and who had provided him with information which Hancock had been able to verify as reliable. The informant advised Hancock that Steve Elwell and Joanne Smith were in possession of a .25 caliber automatic pistol, were operating a red Le Mans bearing New York registration 915 DWY with a CB antenna on the back, that the car was in the vicinity of Lincoln Street and that Elwell and Smith would be leaving the area at any time. The informant did not say how he knew or obtained the information he gave Hancock.

Shortly thereafter Hancock, together with a New York State police investigator, drove down Lincoln Street until they found the described car. A license check showed the vehicle to be registered to Joanne Smith. Not long thereafter a woman drove the Le Mans out of the driveway in which it was parked. The investigators followed her to a grocery store and then back to the Lincoln Street driveway. Sometime later the same woman, now accompanied by a man, entered the vehicle and drove away, the man driving. A short distance away the car was stopped, the occupants were identified as Steve Elwell and Joanne Smith and advised that the investigators had information that Elwell had a loaded firearm in his possession. A search of Elwell’s person was negative but on looking under the front seat the investigators found a loaded .25 caliber Colt automatic. The gun was not in plain view although as the State investigator approached the car he was able to see on the back seat a shoe box on top of which were some targets used for target practice.

It would be an act of supererogation to repeat the history, so fully reviewed in Mr. Justice Douglas’ dissent in Draper v United States (supra, at p 314), of the oppressive practices which led to the adoption of the Fourth Amendment. Suffice it to note that the purpose of the amendment, as well as of the corresponding State constitutional provision, is protection of innocent and guilty alike from search or arrest based upon suspicion or upon common rumor and report rather than upon proof of reasonable grounds for believing a crime to have been committed, either through direct evidence or through reasonable inferences from suspicious acts. The reason as so succinctly put by Professors Hogan and Snee in their article entitled The McNabb-Mallory Rule: Its Rise, Rationale and Rescue (47 Geo LJ 1, 22) is that: "Arrest on mere suspicion collides violently with the basic human right of liberty. It can be tolerated only in a society which is willing to concede to its government powers which history and experience teach are the inevitable accoutrements of tyranny.”

Out of this deep concern for individual liberty have evolved the concepts that the standards for assessment of the existence of probable cause are at least as stringent for a warrant-less search or arrest as are those applied when reviewing the materials presented to a Magistrate as the basis for his issuance of a warrant (Whiteley v Warden, 401 US 560, 566) and that though the issuance of a warrant or the making of a warrantless search or arrest may be based upon hearsay information the Magistrate or officer must be informed of the underlying circumstances from which the informant concluded that there was criminal activity and which establish the informant’s reliability (Aguilar v Texas, 378 US 108). The purpose for requiring that the hearsay informant be of known reliability and that the source of his knowledge be revealed is to assure that action infringing upon a person’s liberty not be taken without "reasonably trustworthy information [of facts and circumstances] sufficient in themselves to warrant a man of reasonable caution in the belief’ that an offense has been committed (Carroll v United States, 267 US 132, 162; Beck v Ohio, 379 US 89, 96; see CPL 140.10, subd 1, par [b]).

The central thought, therefore, is that there be evidence suggestive of criminal activity of a quality, though hearsay, reasonably to be acted upon. The possibility that the informant’s guile, gregariousness or gullibility may cause him to pass on unreliable or even deliberately false information mandates Aguilar’s "reliability” and "basis of knowledge” tests, and requires that when either is not met the search or arrest be invalidated unless the quality of the information can be otherwise established.

Reliability of the informant as distinct from his information can be established either by the arresting, or warrant-seeking, officer attesting to past instances of reliability or by the personal observation by the police of sufficient details corroborative of the informant’s data to indicate that he knew whereof he spoke. Reliability of the informant, therefore, can be corroborated by details concerning dress, mannerisms, route or conveyance to be used by the subject of the information, which in themselves are wholly unsuggestive of crime.

That the informant has demonstrated general reliability in the past is, however, no index of the reliability of specific information he passes on; he may have received it from a totally unreliable source. There being no presumption that the informant speaks with personal knowledge (Giordenello v United States, 357 US 480, 486; People v West, 44 NY2d 656, 657, supra; People v Hendricks, 25 NY2d 129, 137), the basis of knowledge test is, therefore, intended to weed out, as not of sufficient quality, data received by the informant from others who have not themselves observed facts suggestive of criminal activity. It follows that when the basis of the informant’s knowledge is not given, personal police observation corroborative of data received from the informant should be regarded as sufficient only when the police observe facts suggestive of criminal activity. Otherwise privacy and liberty may be invaded by a warrantless search or arrest based solely on the quality of the informant and not at all on the quality of the information, i.e., its suggestiveness of criminal activity.

With few exceptions our decisions, while not fully articulating the basis for so doing, have followed that reasoning. Thus in People v West (44 NY2d 656, supra), we reversed and dismissed the indictment where arrest was made on information which did not reveal the informant’s source and police surveillance disclosed only that defendant had a conversation with a third person in front of his home and was present at the Rensselaer train station, but no observation that "served to corroborate the informant’s statement that defendant was trafficking in drugs” (id., at p 658). Likewise in People v Wirchansky (41 NY2d 130, supra) we reversed and granted a motion to suppress material obtained pursuant to a search warrant, where the informant stated that "gambling paraphernalia commonly associated with a bookmaking and policy scheme, are being left in a common hallway of 8-10 School St. mainly [sic] a mailbox, which is picked up by Stephen Wirchansky each day” but did not state how the information was obtained and all that the police observed was Wirchansky’s entry on four consecutive days into the hallway of 8-10 School Street where he remained for but a few minutes. Writing for the court, Judge Cooke, as he then was, stated the question as "whether these observations indicate criminal activities on the part of defendant” (id., at p 133), a question answered by holding that "the police observations must do more than merely bolster the informant’s tip, since the police themselves must provide the underlying circumstances from which the Magistrate can determine whether they are justified in concluding that illegal activity is taking place” and that "[sjince the observed activities are susceptible of an interpretation of innocent activity, the informant’s tip and the defendant’s reputation should not be allowed to elevate these activities to the level of probable cause” (id., at pp 135-136). Like holdings are to be found in People v Brown (24 NY2d 421, 424); People v Verrecchio (23 NY2d 489; cf. People v Seney, 34 NY2d 817); People v Horowitz (21 NY2d 55).

Confusion concerning whether an informant’s tip together with police observation of noncriminal activity can constitute probable cause arises from Draper v United States (358 US 307) and cases in the Supreme Court and this court applying its rule. In Draper general reliability (i.e., of the informant) was established by the narcotics agent’s testimony that he had always found information given by the informant to be accurate and reliable. The information given was that Draper had recently taken up residence at a stated address in Denver and was selling narcotics to addicts, that he had gone to Chicago by train to obtain three ounces of heroin and would be returning on the morning of either September 8 or 9 also by train, that he would be carrying a tan zipper bag and habitually "walked real fast.” It included a detailed description of Draper and the clothing he would be wearing. The Supreme Court opinion does not indicate whether the basis of the informant’s knowledge was given and discussed only whether hearsay could be considered in determining probable cause and whether, if so, the information received established probable cause. It answered both questions in the affirmative, concluding as to probable cause that when the agent on September 9 saw a person of the same physical attributes and wearing the precise clothing described by the informant alight from an incoming Chicago train and start to walk at a fast pace to the exit, he had verified every part of the information except the criminal activity (whether he had in fact obtained the heroin) and, therefore, had reasonable grounds to believe that Draper did in fact have heroin with him and to arrest him.

Whatever doubts may have existed concerning Draper’s holding were laid to rest in Spinelli v United States (393 US 410). In that case the Supreme Court held that Aguilar’s basis of knowledge requirement was not met either by the informer’s statement as to how he received his information or by FBI surveillance which showed only that Spinelli, said by the informant to have been running a bookmaking operation, used the telephones specified by the informant. Contrasting Spinelli’s facts with those of Draper, the court concluded that from the observations made in Draper "[i]t was then apparent that the informant had not been fabricating his report out of whole cloth; since the report was of the sort which in common experience may be recognized as having been obtained in a reliable way, it was perfectly clear that probable cause had been established” (393 US, at pp 417-418). The difference between the two situations appears to be in degree; in Draper the data given was so specific as to make it reasonable to conclude that it was obtained by personal contact (observation, conversation, or both) with defendant by the informant or the informant’s informant; in Spinelli it was equivocal and, therefore, insufficient.

There is, perhaps, more reason for applying Draper’s exception when the details, the specificity of which amounts to self-verification, relate to the crime itself, rather than to physical characteristics and intended movements as in Draper. People v Hanlon (36 NY2d 549, supra) furnishes an illustrative situation. Two appeals were involved there, one by Hanlon as to whom the informant stated that a large quantity of marihuana in block form was concealed in a kitchen closet and a small caliber chrome-plated pearl-handled derringer was hidden in a dresser drawer of Hanlon’s rear bedroom, and the second by Rosen and Fredericks as to whom the informant gave the police a complete and detailed description of the operation of an illegal football pool, including where the tickets were printed, how many per week were printed and distributed, the dates and times of pickups for distribution, the system used for transportation and distribution. During surveillance on several different nights known narcotics users were seen entering and leaving the Hanlon premises. Surveillance of Rosen’s print shop showed Fredericks, a known bookmaker whom the informant had identified as an operator, to be the principal distributor and confirmed in every detail the pattern of activity recounted by the informant. We upheld the search warrants in both cases; as to Hanlon without reference, other than recital of the fact, to the observation confirmatory of criminal activity (traffic of known narcotic users into and out of the premises); with respect to Rosen and Fredericks without any observations confirmatory of criminal activity other than Fredericks’ reputation (which is above noted is normally not enough). No differentiation between the two situations as to criminal as distinct from noncriminal detail was made.

We have applied or referred to Draper in a number of other cases. In People v Morales (42 NY2d 129, 135) and People v Hendricks (25 NY2d 129, 136, supra) we recognized its rule but held the data received not sufficiently detailed. In People v Hicks (38 NY2d 90, 92) and People v Castro (29 NY2d 324, 326-327) we cited Draper in upholding a warrant and an arrest based on actual observation, relying also in Castro on the specificity of noncriminal detail given by the informer. In People v Munger (24 NY2d 445, 452) we upheld the warrant despite the lack of detail in the informant’s tip about a narcotics plant, because defendant and three girls known to be his "plant” girls were observed entering the building, in which was located an apartment rented by yet another woman known to be a "plant” girl. In People v Stewart (41 NY2d 65, 69) and People v Malinsky (15 NY2d 86, 91) we upheld the arrest or warrant based on specificity of detail, though the only detail in Stewart was a physical description of defendant and his clothing and in Malinsky was that stolen goods were located in a particular building, outside of which the police the next day saw defendants and a large number of cartons.

To be noted from the foregoing review of the case law is the difficulty, if not impossibility, of reconciling the results of the decisions, some of which required observation of criminal activity while others have accepted observation of noncriminal activity without clearly differentiating one from the other. Bearing in mind the balance to be struck between the individual’s constitutional right to be free of official interference by way of search or arrest with society’s interest in preventing crime and apprehending criminals, the uneven application of the Draper rule, the ease with which details of personal description can become in the official’s mind a substitute for inquiry concerning the basis of the informant’s knowledge with consequent improper intrusion on individual liberty, the temptation under Draper to sustain an arrest or search by hindsight inclusion of observed physical characteristics or movements in the data said to have been received from the informant, and the greater possibility of danger to individual rights from a warrantless arrest or search than when a Magistrate has examined into the basis for a warrant, we conclude that the rule under our Constitution should be that a warrantless search or arrest will be sustained only when the police observe conduct suggestive of, or directly involving, the criminal activity about which an informant who did not indicate the basis for his knowledge has given information to the police, or when the information furnished about the criminal activity is so detailed as to make clear that it must have been based on personal observation of that activity (e.g., United States v Ventresca, 380 US 102, 104, 108-110; see People v Hanlon, 36 NY2d 549, 557, supra; People v Schnitzler, 18 NY2d 457, 460). A Magistrate in issuing a warrant may, however, act on the basis of observation confirmed noncriminal detail but should do so only when in his judicial opinion the noncriminal detail received from the informant is so explicit and extensive and so well confirmed by police observation as to warrant the inference that the informant or his source was speaking from personal observation.

In the instant case, nothing that the police observed suggested criminal activity in any way. They were, therefore, without authority to stop or to arrest defendant Elwell. Accordingly, the order of the Appellate Division should be affirmed.

Jasen, J.

(dissenting). While I completely agree with the majority’s conclusion that an informant’s tip may contain such detailed information of criminal activity as to be self-verifying, I simply cannot accept the majority’s sweeping holding that the basis of knowledge prong of the test enunciated in Aguilar v Texas (378 US 108) is incapable of satisfaction absent observations by police officers of behavior inconsistent with innocence where a reliable informant, by mere happenstance or otherwise, fails to indicate the basis for his knowledge, but, nevertheless, provides law enforcement officers with detailed information of a person’s activities and asserts that such person is engaging in specific illegal conduct —in this case, unlawful possession of a .25 caliber automatic pistol. The court today unnecessarily fractionates the time-tested and rational legal rule that the information revealed by an informant, whatever its nature, can be so detailed as to be self-verifying and that probable cause for a search, whether with or without a warrant, arises when independent observations by law enforcement officers confirm the comprehensive information supplied by a concededly reliable informant. (See, e.g., Spinelli v United States, 393 US 410, 416-418; Draper v United States, 358 US 307, 312-314; People v Hanlon, 36 NY2d 549, 557; People v Hendricks, 25 NY2d 129, 134; People v Schnitzler, 18 NY2d 457.)

As the majority candidly concedes, principles of Federal constitutional law, as articulated by the Supreme Court, would not require a finding that the People have failed to demonstrate probable cause for the warrantless search herein. In Spinelli v United States (393 US 410, supra), the Supreme Court elucidated the "basis of knowledge” test as set forth in its prior decision in Aguilar v Texas (378 US 108, supra). While finding that the informant’s tip was not sufficient to provide the basis for probable cause given the facts of that particular case, the court nevertheless expressly reaffirmed its position that the "basis of knowledge” prong would be satisfied if the information was of sufficient detail as to be self-verifying. (Spinelli v United States, 393 US, at pp 416-418, supra.)

Common sense dictates that this principle of law be followed, for it is abundantly clear that detailed information contained in the informant’s tip would diminish, if not totally negate, any possibility that the conclusion that a crime has been committed rests upon nothing more "than a casual rumor circulating in the underworld or an accusation based merely on an individual’s general reputation * * * [or] an offhand remark heard at a neighborhood bar.” (Id., at pp 416-417; see People v Wheatman, 29 NY2d 337, 345-346, cert den sub nom. Marcus v New York, 409 US 1027.) It must be stressed that the "basis of knowledge” prong addresses the trustworthiness of the information supplied (Aguilar v Texas, 378 US 108, 113-115, supra; People v Hanlon, 36 NY2d 549, 556, supra), and no more accurate gauge of trustworthiness exists than the extent of detail contained in a reliable informant’s tip and the degree to which that detail is translated into observable conduct.

It is noteworthy that the Supreme Court in Spinelli observed that "[t]he detail provided by the informant in Draper v. United States, 358 U. S. 307 (1959), provides a suitable benchmark.” (Spinelli v United States, 393 US, at p 416, supra.) In the Draper case, an informant, reliable in the past, conveyed to Federal narcotic agents that Draper had recently taken up residence in Denver and that he was peddling drugs to addicts. Further, the informant stated that Draper had traveled to Chicago the day before to secure three ounces of heroin and that he would be returning by train to Denver on either of the next two mornings. A detailed physical description of Draper and the clothes he would be wearing was given, and the informant also stated that he would be carrying a tan zipper bag and habitually "walked real fast”.

Acting upon the informant’s tip, law enforcement agents went to the Denver railway station the next morning and kept watch over the incoming trains from Chicago. However, no one matching the description given was observed. Repeating this process the subsequent morning, the officers saw a person, having the physical attributes and wearing the same clothing described by the informant, alight from an incoming Chicago train and commence walking to the exit at a fast pace. He was carrying a tan zipper bag in his right hand, the left being placed in his raincoat pocket. Seeing this person, the officers overtook, stopped, and arrested him. An ensuing search revealed two packets of heroin clutched in his hand in the raincoat, and a syringe in the zipper bag.

The Supreme Court, in addressing the issue whether the information provided the law enforcement agents was sufficient to demonstrate probable cause and reasonable grounds to believe that a crime had or was being committed, held that although the informant’s information was hearsay, it nevertheless constituted sufficient grounds to justify the warrantless arrest and search of Draper. Critical to the court’s determination were the factors that the information provided by the informant had been found accurate and reliable in the past and that the information contained in the tip, capable of verification, was so detailed as to be inherently trustworthy. The court further observed that the law enforcement agent "would have been derelict in his duties had he not pursued [the tip]” and that, "with every other bit of [the informant’s] information being thus personally verified [the officer], had 'reasonable grounds’ to believe that the remaining unverified bit of [the informant’s] information — that Draper would have the heroin with him — was likewise true.” (Draper v United States, 358 US 307, 313, supra.)

The Supreme Court in Spinelli, when reflecting upon the Draper case as it applied to the basis of knowledge requirement as delineated in Aguilar, concluded that although the informant in Draper had not revealed the way he had obtained his information, the basis of knowledge prong was nevertheless satisfied, inasmuch as "[i]t was then apparent that the informant had not been fabricating his report out of whole cloth.” (Spinelli v United States, 393 US, at p 417, supra.) The high degree of specificity contained in the informant’s tip, coupled with the capability of verification, were deemed the distinguishing factors.

For purposes of this case, an even more compelling conclusion can be drawn from this line of cases, to wit: that the failure of the informant to specify the source or basis of his information is not in-and-of itself fatal; rather, the basis of knowledge prong is capable of satisfaction when the information conveyed is so detailed as to be self-verifying. Further, probable cause is demonstrated for a search or arrest, whether with or without a warrant, when such detail is capable of independent confirmation by law enforcement officers, regardless of whether the behavior observed bespeaks criminal activity. As a reading of the Draper decision reveals, nothing observed by law enforcement agents was inconsistent with innocence.

Yet today, the majority, acting pursuant to perceived State constitutional principles, casts these rational rules of law onto the legal rubbish heap, while waiving as the banner of justification a person’s right to be free from search or arrest absent reasonable grounds for believing a crime to have been committed. While I certainly would not dispute the underlying purposes which led to the adoption of the Fourth Amendment and the parallel provision of our State Constitution (NY Const, art I, § 12) as so aptly articulated by Judge Meyer in the majority’s opinion, these purposes and the obligation of the courts to protect persons from search or arrest based upon mere suspicion, common rumor, or the like, should not be transformed into the justification for crushing effective law enforcement. When a reliable informant provides information which is so detailed as to be inherently trustworthy, the dangers perceived by the majority simply do not materialize.

Admittedly, our decisions in this area are not easily reconcilable. It is clear, however, that until today this court has never judicially endorsed the per se rule espoused by the majority (at p 241) "that a warrantless search or arrest will be sustained only when the police observe conduct suggestive of, or directly involving, the criminal activity about which an informant who did not indicate the basis for his knowledge has given information to the police”. (See, e.g., People v Stewart, 41 NY2d 65; People v Hanlon, 36 NY2d 549, supra; People v Castro, 29 NY2d 324, 327; People v Munger, 24 NY2d 445.) I do not believe such a rule is necessary or desirable for effective administration of criminal justice. Courts should be hesitant to establish hard-and-fast rules, for reliability and trustworthiness are not static concepts. Yet the majority, guided by the perceived need for a rigid rule of uniform application, has foreclosed the possibility of judicial approval of what must be deemed reasonable police conduct.

In this case, the information provided by the informant was detailed in nature and was verified by the officers’ independent observations. Possessing such information and having confirmed its veracity, the officers acted reasonably in stopping the automobile and searching both defendant’s person and the car’s interior. It is a pity that the majority feels compelled to strike down such reasonable and prudent law enforcement efforts undertaken for the protection of all members of our society. One can only wonder what more extensive information could have been included in the reliable informant’s tip to insure its inherent trustworthiness.

For these reasons, I would uphold the validity of the search and reverse the order of the Appellate Division.

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

Order affirmed.

      . (Spinelli v United States, 393 US 410.)

      . (Draper v United States, 358 US 307.)

      . Both lower courts found the first ("reliability”) prong met by the testimony at the suppression hearing.

      . (Aguilar v Texas, 378 US 108.)

      . The dissent noted further the applicability of the doctrine of Carroll v United States (267 US 132) to permit a warrantless search, defendant having been in a car when stopped. Since we conclude there was no probable cause we need not reach that question.

      . (US Const, 4th Amdt.)

      . (Art I, § 12.)

      . (Cooper v Morin, 49 NY2d 69, 79, and cases there cited.)

      . Presence of the targets would not sustain the arrest, they not portending criminal activity, and in any event not being observable until after defendant was stopped without probable cause (People v Smith, 42 NY2d 961; People v Allende, 39 NY2d 474).

      . To apply less stringent standards for reviewing the officer’s discretion-"would discourage resort to the procedures for obtaining a warrant” (Whiteley v Warden, supra, at p 566).

      . (See text infra, at pp 239-241.)

      . So, in the instant case, that Elwell had a prior conviction of which the officers apparently were aware does not save the situation (accord Spinelli v United States, 393 US 410, 414, 418).

      . Spinelli v United States (393 US 410, 416) confirms that the Draper informant "did not state the way in which he had obtained his information.”

      . Not discussed in the text are citations for propositions of law not germane to the present discussion (People v De Santis, 46 NY2d 82, 88; People v Feliciano, 32 NY2d 140, 142; People v Martin, 32 NY2d 123, 124; People v Coffey, 12 NY2d 443, 452; People v Loria, 10 NY2d 368, 373; and citations in dissenting opns: People v Brown, 40 NY2d 183, 191; People v Sutton, 32 NY2d 923, 929).

      . One differentiating factor recognized by the cases is the independence and expertise of the Magistrate who issues a warrant (see, e.g., People v Hanlon, 36 NY2d 549, 559, supra).

      . In Ventresca the charge was maintaining an illegal still. The affidavit, without stating who observed what, stated that the affiant and fellow investigators on two occasions smelled mash at 4 in the morning, on one of which the sound of a pump was heard, on the other of which metallic noises were heard; on four occasions observed 60-pound bags of sugar being carried in, and on two occasions empty tin cans being brought in; on several occasions saw apparently full five-gallon cans being loaded into a car at one place and unloaded from the car at another.

      . To the extent that any prior decision has not distinguished between detail concerning criminal and noncriminal activity in passing upon warrantless searches or arrests we decline to follow it.


source: Caselaw Access Project

author: Jasen, J.

license: Public Domain

text:
    Gerilyn Barr et al., Appellants, v County of Albany et al., Respondents, et al., Defendants. (Action No. 1.) Gerilyn Barr et al., Respondents, v County of Albany et al., Defendants, and Henry Bayer et al., Appellants. (Action No. 2.)
    Argued March 21, 1980;
    decided May 8, 1980

      POINTS OF COUNSEL

      Michael J. Cunningham for appellants in Action No. 1.
    I. The County of Albany is liable for the alleged acts of defendant deputies. (McMahon v Michaelian, 38 AD2d 60, 30 NY2d 507; Dixon v Seymour, 62 AD2d 444; Matter of Flaherty v Milliken, 193 NY 564; Commisso v Meeker, 8 NY2d 109; Perry v Custodi, 52 AD2d 1063; Matter of Grifenhagen v Ordway, 218 NY 451; Matter of O’Brien v Ordway, 218 NY 509; Isereau v Stone, 3 AD2d 243.) II. Although the Sheriff is not vicariously liable for acts of deputies performing criminal functions, he is liable for his own negligence in training and supervising the deputies. (Matter of Flaherty v Milliken, 193 NY 564; Matter of Grifenhagen v Ordway, 218 NY 451; Matter of O’Brien v Ordway, 218 NY 509; Isereau v Stone, 3 AD2d 243; Schnitzer v County of Erie, 8 Misc 2d 989.) III. Defendants’ motions for summary judgment were properly denied at Special Term. (Barrett v Jacobs, 255 NY 520; Glick & Dolleck v Tri-Pac Export Corp., 22 NY2d 439; Broughton v State of New York, 37 NY2d 451; Schnitzer v County of Erie, 8 Misc 2d 989.) IV. Either the county or the Sheriff should be responsible for conduct of a deputy in the performance of his duties. (Matter of Flaherty v Milliken, 193 NY 564; Matter of Connelly v Amico, 72 Misc 2d 644, 43 AD2d 1016.)

      Kenneth L. Golden for respondents in Action No. 1.
    I. The New York State Constitution mandates that the county shall be made responsible for the acts of the Sheriff. (Enstrom v City of New York, 258 App Div 672; Commisso v Meeker, 8 NY2d 109.) II. The constitutional provision immunizing the county from the acts of a Sheriff extends to a Deputy Sheriff acting in performance of his duty. (Cumming v Brown, 43 NY 514; Broschart v City of New York, 166 Misc 515, 255 App Div 776; Thomas v County of Ontario, 187 Misc 711; Snow v Harder, 43 AD2d 1003; Perry v Custodi, 52 AD2d 1063; Dixon v Seymour, 62 AD2d 444.) III. Local Law No. 3 of the Local Laws of Albany County of 1973 cannot alter the unequivocal mandate of article XIII (§ 13, subd [a]) of the New York State Constitution. (McMahon v Michaelian, 38 AD2d 60, 30 NY2d 507; Matter of County of Ulster v CSEA Unit of Ulster County Sheriffs Dept., Ulster County CSEA Ch., 37 AD2d 437; Sawyer v Town of Southport, 6 AD2d 553; Eckstein v Massachusetts Bonding & Ins. Co., 281 NY 435; Matter of Kelly v Sugarman, 12 NY2d 298.) IV. The Sheriff is not liable for the acts of deputies performing criminal functions of the office. (Mazzo v County of Monroe, 58 AD2d 1017; Matter of Flaherty v Milliken, 193 NY 564; Isereau v Stone, 3 AD2d 243; Matter of Grifenhagen v Ordway, 218 NY 451; Matter of O’Brien v Ordway, 218 NY 509.) V. Negligence is not an element of a cause of action for false arrest and imprisonment or malicious prosecution. (Broughton v State of New York, 37 NY2d 451; Schnitzer v County of Erie, 8 Misc 2d 989; Peresluha v City of New York, 60 AD2d 226.)

      Robert P. Roche for appellants in Action No. 2.
    I. The court below erred in denying summary judgment since there are only conclusory allegations and no issues of fact presented. (Douglas v State of New York, 269 App Div 521, 296 NY 530; Nastasi v State of New York, 275 App Div 524, 300 NY 473; Warner v State of New York, 297 NY 395; Ford v State of New York, 21 AD2d 437; Broughton v State of New York, 43 AD2d 389, 37 NY2d 451; Dixson v State of New York, 30 AD2d 626; Cimmino v State of New York, 29 AD2d 587; Clark v Nannery, 292 NY 105; Hendrick v Manhattan Beach Dev. Co., 181 App Div 111.) II. The arguments presented by plaintiffs to the court below do not provide substantial basis to deny a motion for summary judgment. (People v Glover, 52 Misc 2d 520; People v Jordan, 22 AD2d 81, 16 NY2d 755; People v Estrialgo, 37 Misc 2d 264.)

      Michael J. Cunningham for respondents in Action No. 2.
    I. The warrant relied upon by defendants, if valid, authorizes only a search and does not authorize any arrest. (Broughton v State of New York, 37 NY2d 451.) II. The search warrant relied upon by defendants is void on its face. (People v Rothen

      berg, 20 NY2d 35; People v Rainey, 14 NY2d 35; Aguilar v Texas, 378 US 108; People v Wirchansky, 41 NY2d 130; People v Hanlon, 36 NY2d 549; People v Castro, 29 NY2d 324; People v West, 44 NY2d 656.) III. The defense of "probable cause” was not raised by appellants’ motion at Special Term. IV. The existence of "probable cause” for the arrests in question is an issue of fact requiring plenary trial. (Broughton v State of New York, 37 NY2d 451; People v De Bour, 40 NY2d 210; People v Morales, 42 NY2d 129; People v Wharton, 46 NY2d 924.)

      Kenneth L. Golden for defendants in Action No. 2.
    I. Probable cause in making a warrantless arrest is a question of law for the courts. (People v Coffey, 12 NY2d 443; People v Fields, 50 AD2d 870.) II. A search warrant issued by a Magistrate of proper jurisdiction affords protection to those obligated to enforce it. (People v Hall, 63 Misc 2d 127; People v Alfinito, 16 NY2d 181; Fishbein v State of New York, 204 Misc 151, 282 App Div 600; Nastasi v State of New York, 275 App Div 524; Johnson v Comstock, 14 Hun 238; Zimmerman v City of New York, 52 Misc 2d 797; Schanbarger v Kellogg, 35 AD2d 902, 405 US 919; Carpenter v City of Rochester, 67 Misc 2d 832; Day v Bach, 87 NY 56; People v Brown, 40 NY2d 183.) III. The deputy officers were justified in detaining and arresting plaintiffs despite the absence of an arrest warrant. (Broughton v State of New York, 37 NY2d 451; People v Oden, 36 NY2d 382; People v Martin, 52 AD2d 988; People v Reisman, 29 NY2d 278.)
   OPINION OF THE COURT

Jasen, J.

Framed for our resolution on these appeals is the issue whether a warrant, authorizing the search of certain premises but not the arrest of persons found thereon, affords protection to those obligated to enforce it from liability for unlawful arrest and false imprisonment. Should the search warrant afford no such immunity, it becomes necessary to resolve the further issue whether a county can assume liability for the tortious acts of its Deputy Sheriffs. Also presented is the question whether the Sheriff can be held responsible in negligence for failure to train and instruct properly his deputies.

The facts underlying these appeals are not in dispute and may be simply stated. Plaintiffs were attending a private party at premises known as the "Ordway House” in the Town of Rensselaerville, Albany County, during the evening hours on August 14, 1977. At approximately 11:00 p.m., several deputies of the Albany County Sheriff’s Department, acting in concert with the New York State Police, participated in a "drug raid” pursuant to a warrant issued by a Town Justice authorizing a search of the premises.

The Deputy Sheriffs arrived at the scene in several vehicles and, by means of a prearranged signal, simultaneously converged on the premises and conducted a search. Virtually all of the some 50 persons in attendance, including plaintiffs herein, were arrested and charged with criminal possession of marihuana in the fifth degree. Most of these persons were then transported to a police substation where they were booked and fingerprinted.

Upon arraignment before the Town Justice who had issued the search warrant, all charges lodged against the plaintiffs were dismissed either upon the court’s own motion or upon motion of the District Attorney. Thereafter, plaintiffs commenced these actions to recover damages for unlawful arrest and false imprisonment, joining as defendants the County of Albany, the Sheriff of Albany County and the Deputy Sheriffs who participated in the raid and arrests.

Defendants County of Albany and the Sheriff of Albany County moved to dismiss the complaint as against them for failure to state a cause of action and for summary judgment on the merits. Special Term denied the motion, reasoning, as to the county, that the constitutional provision immunizing a county from responsibility for the acts of the Sheriff (NY Const, art XIII, § 13, subd [a]) does not extend to the acts of Deputy Sheriffs when the county, by local legislation, assumes responsibility for such acts. With respect to the Sheriff’s motion, Special Term ruled that "plaintiffs [should] have the opportunity to establish * * * that the sheriff was guilty of negligence in the appointment, training and supervision of his deputies.” (94 Misc 2d, at p 239.) Further, Special Term found that there existed issues of fact which required a plenary trial with respect to such allegation.

On appeal, a unanimous Appellate Division reversed, granted defendants’ motion and dismissed the complaints. In so doing, the court reasoned that the State Constitution insulates "counties from money damage suits based on either the civil or criminal misconduct of the Sheriff or his deputies” (69 AD2d, at p 915), even if there exists a local law which makes the county liable for the acts of Deputy Sheriffs. Further, the Appellate Division ruled that the Sheriff could not be held liable to plaintiffs inasmuch as "[njegligence is not an element of false arrest.” Plaintiffs appeal to this court, as of right (see CPLR 5601, subd [a]), from the order of the Appellate Division.

By separate motion, defendants Deputy Sheriffs of Albany County sought summary judgment, contending that the search warrant insulated them from liability for their allegedly tortious conduct. Special Term denied the motion, stating that the "warrant relied upon by the defendants, even if valid, authorized only a search and did not authorize an arrest. Therefore, it would not necessarily constitute a defense to the claim of the plaintiffs.” A divided Appellate Division affirmed, and defendants Deputy Sheriffs appeal to this court on a certified question.

For ease of analysis, we will treat initially the contention of defendants Deputy Sheriffs that the courts below improperly denied their motion for summary judgment, for the issue whether the County of Albany can be held responsible for the tortious acts of its Deputy Sheriffs will be rendered academic if this issue is resolved in favor of defendants Deputy Sheriffs. It should be remembered that inasmuch as we are concerned with a motion for summary judgment, the issue is not whether plaintiffs can ultimately establish liability, but, rather, whether there exists a substantial issue of fact in the case on the issue of liability which requires a plenary trial. (See, e.g., Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065; Rotuba Extruders v Ceppos, 46 NY2d 223, 231; see, generally, Siegel, New York Practice, § 278.) If such a question of fact is found to exist, our function is at an end, and we must affirm the dispositions below denying summary judgment to defendants Deputy Sheriffs.

In this case, a substantial question of fact does exist, and defendants’ contention that the search warrant issued by the Town Justice insulates them, as a matter of law, from liability must be rejected. The warrant authorized only the search of the premises, and did not empower the Deputy Sheriffs to arrest those persons found thereon. As this court observed in Broughton v State of New York (37 NY2d 451): "Whenever there has been an arrest and imprisonment without a warrant, the officer has acted extrajudicially and the presumption arises that such an arrest and imprisonment are unlawful * * * [W]here the arrest or imprisonment is extrajudicial, that is, without legal process or color of legal authority, it is not necessary to allege want of probable cause in a false imprisonment action * * * Indeed, the burden is on the defendant to prove the opposite.” (Id., at p 458 [citations omitted].)

Nor can we accept defendants Deputy Sheriffs’ contention that these well-settled principles of law are vitiated by the fact that they were acting pursuant to a search warrant. While it can be said that a search warrant sanctions the entrance by law enforcement officers upon private property to conduct a search within the confines of the warrant, it by no means lends judicial approval to the arrests of those persons found thereon. A search warrant and an arrest warrant serve distinct functions in the law (compare CPL art 690, with CPL art 120) and the protection accorded officers from civil liability for unlawful arrest and false imprisonment when making an arrest pursuant to an arrest warrant (see Smith v County of Nassau, 34 NY2d 18, 22-23; Ford v State of New York, 21 AD2d 437; cf. Warner v State of New York, 297 NY 395; see, generally, 22 NY Jur, False Imprisonment, §§ 51, 52) simply does not extend to a situation where, as here, the law enforcement officials made the arrests armed only with a search warrant. (Broughton v State of New York, 37 NY2d 451, supra.) In short, a search warrant does not authorize arrest, and the Deputy Sheriffs must be said to have acted extrajudicially.

In light of these principles, issues of fact exist as to whether the Deputy Sheriffs were justified in making the arrests, and, thus, defendants Deputy Sheriffs’ motion for summary judgment was properly denied.

Holding as we do that summary judgment was properly denied defendants Deputy Sheriffs, it becomes necessary to resolve the further issue whether Albany County can be held responsible for the tortious acts of its Deputy Sheriffs. Resolution of this issue involves the interworkings of the constitutional provision which provides that "the county shall never be made responsible for the acts of the sheriff’ (NY Const, art XIII, § 13, subd [a]) and Local Law No. 3 for the year 1973 of Albany County which states, in pertinent part, that "[a]ny act or omission of any employee of the county in the office of the sheriff, done or made in the performance of an official duty * * * shall be the act or omission of the county and the damages, if any, resulting therefrom shall be deemed the liability of the county.” Local Law No. 3 further provides that "[njothing contained in this section shall be deemed to render the county responsible or liable for the acts of the sheriff thereof where such responsibility or liability did not exist prior to the enactment hereof, nor relieve said sheriff from any liability to which he is lawfully subject.”

While it has been held that the constitutional provision immunizing a county from liability for acts of the Sheriff extends to acts of the Sheriffs deputies (see, e.g., Commisso v Meeker, 8 NY2d 109, 121; Perry v Custodi, 52 AD2d 1063; Snow v Harder, 43 AD2d 1003), we are confronted herein with an express willingness on the part of Albany County to assume responsibility for the acts of its Deputy Sheriffs. In our opinion, this express assumption of responsibility as reflected by Local Law No. 3, provides a critical distinction.

Support for the proposition that a county may assume responsibility for the tortious acts of its Deputy Sheriffs — as distinct from the tortious acts of the Sheriff himself — is found in our decision in McMahon v Michaelian (30 NY2d 507, affg on opn below 38 AD2d 60). In the McMahon case, although the issue presented therein was whether a county could place into the classified civil service officers and employees of the Sheriffs office, the court faced squarely the question whether a local law, indistinguishable from Local Law No. 3, ran counter to the constitutional prohibition. In ruling that it did not, it was reasoned that "[s]ection 345 of the [Westchester County Administrative] code strictly complies with section 13 of article XIII of the Constitution. Its first paragraph imposes liability upon the county for acts of the Sheriffs appointees committed in the discharge of their official duties and its second paragraph merely restates the constitutional direction that the county not be made responsible for the acts of the Sheriff. The assumption by Westchester County of liability for the acts of the employees of the Sheriff is not prohibited by the Constitution, which merely mandates that a county 'shall never be made responsible for the acts of the sheriff,’ for under the provisions of the code he still continues to be responsible for his acts.” (38 AD2d, at p 64.)

Thus, it is clear that a county may, by legislative enactment, assume responsibility for the tortious acts of its Deputy Sheriffs as distinguished from the acts of the Sheriff himself. Here, Albany County voluntarily assumed such responsibility and it was error for the court below to fail to give Local Law No. 3 effect.

Finally, we turn to the issue whether summary judgment was properly granted defendant Sheriff by the court below. In this regard, we would note that plaintiffs concede that a Sheriff cannot be held personally liable for the acts or omissions of his deputies while performing criminal justice functions, and that this principle precludes vicarious liability for the torts of a deputy. (See, e.g., Matter of Flaherty v Milliken, 193 NY 564, 569; Foyster v Tutuska, 25 AD2d 940; Isereau v Stone, 3 AD2d 243.) However, plaintiffs do contend that this rule of law "does not exonerate the sheriff from liability for his own acts or omissions.” With this general statement, we agree.

It has been held that a cause of action sounding in negligence is legally sustainable against a city when the injured party demonstrates that he was injured due to the negligent training and supervision of a law enforcement officer. (See Meistinsky v City of New York, 285 App Div 1153, affd 309 NY 998.) However, we are not concerned solely herein with the limited question whether plaintiffs have stated in their complaints a sufficient cause of action against defendant Sheriff, but, rather, we are faced with the separate issue on this motion for summary judgment whether plaintiffs have demonstrated, by means of evidentiary facts, that a plenary trial is required with respect to their allegations. We conclude that plaintiffs have failed to meet this burden and, thus, defendant Sheriff is entitled to summary judgment.

Plaintiffs’ papers in opposition to defendant Sheriff’s motion for summary judgment contained attorneys’ affidavits, which stated, in conclusory fashion, that a question of fact exists as to the issue whether defendant Sheriff should have supervised his deputies in such manner so as to prevent the allegedly tortious acts committed by the latter. No attempt was made to demonstrate how such direct supervision could have altered the consequences of the Deputy Sheriffs’ actions, nor do plaintiffs set forth any evidence that the Deputy Sheriffs lacked training in proper law enforcement techniques. Further, the transcripts of the examinations before trial of the Sheriff and his deputies do not cure these deficiencies.

The theory upon which plaintiffs predicated liability against defendant Sheriff was that the Sheriff’s lack of personal supervision of the search and ensuing arrests "makes him personally liable to these plaintiffs.” We cannot agree as there exists no duty for a Sheriff to be present at each and every instance his deputies are performing law enforcement functions. Under these circumstances, summary judgment was properly granted.

For the reasons stated, the order of the Appellate Division in Barr v County of Albany (Action No. 1) should be modified, with costs, in accordance with this opinion and, as so modified, affirmed. The order of the Appellate Division in Barr v County of Albany (Action No. 2) should be affirmed, with costs, and the question certified answered in the negative.

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

In Barr v County of Albany (Action No. 1): Order modified, with costs, etc.

In Barr v County of Albany (Action No. 2): Order affirmed, with costs, etc.

      . In this regard, we would note that defendants Deputy Sheriffs predicated their motion for summary judgment solely upon the legal argument that the search warrant provides them immunity from a civil suit for unlawful arrest and false imprisonment. The issue of independent probable cause for the arrests was not raised in their papers and, thus, plaintiffs were not put to the task of rebutting this legal theory in their papers in opposition.

      . In light of our disposition, it is unnecessary to address the issues raised by the parties as to the facial validity of the search warrant and the justification of the Deputy Sheriffs in acting pursuant thereto.

      . In our opinion, only plaintiffs Benson, Carter, Hoshtash, Murray, Patton, Pitfido and Soldner have alleged sufficiently in their complaints a cause of action against defendant for the failure to train and instruct properly his deputies. The remaining plaintiffs have clearly limited their complaints to a cause of action for unlawful arrest and false imprisonment. Of course, negligence is not an element of these tortious acts.


author: Chief Judge Cooke.

text:
    Independent Investor Protective League et al., Appellants, v Time, Inc., Respondent, et al., Defendants.
    Argued March 27, 1980;
    decided May 8, 1980

      POINTS OF COUNSEL

      I. Walton Bader for appellants.
    I. Whether a derivative action is brought in behalf of a corporation which subsequently dissolves or is brought in behalf of a corporation which had dissolved prior to the institution of the action is a distinction without a difference and the distinction made by the court below and Special Term is improper. Hence, the determination appealed from should be reversed. (Albert v

      Salzman, 41 AD2d 501; Marco v Sachs, 201 Misc 934; Platt Corp. v Platt, 21 AD2d 116, 15 NY2d 705; Holmes v Camp, 186 App Div 675, 227 NY 635; Matter of Maki v Estate of Ziehm, 55 AD2d 454.) II. If a representative action is available against the former officers and directors of a dissolved corporation for mismanagement causing diminution in value of the corporation’s stock it is likewise available against the corporate party dominating and controlling said officers and directors and the distinction between the liability of defendant Time, Inc., and the unserved individual defendants is likewise a distinction without a difference.

      Calvin R. House and Frederick A. O. Schwarz, Jr., for respondent.
    I. Appellants’ purported cause of action is a derivative one. (Kavanaugh v Commonwealth Trust Co. of N. Y., 181 NY 121; Niles v New York Cent. & Hudson Riv. R. R. Co., 176 NY 119; Fifty States Mgt. Corp. v Niagara Permanent Sav. & Loan Assn., 58 AD2d 177; Empleton v D’Elia Gemstones Corp., 46 AD2d 751.) II. When the action was commenced, appellants were not holders of shares entitled to bring a derivative action. (Miller v Miller, 256 App Div 846, 280 NY 716; Harris v Averick, 24 Misc 2d 1039; Hanna v Lyon, 179 NY 107; Amella v Consolidated Edison Co. of N. Y, 273 App Div 755, 297 NY 1031; Tanenbaum v Consolidated Edison Co. of N. Y, 273 App Div 755, 297 NY 1041; Albert v Salzman, 41 AD2d 501, 33 NY2d 520; Matter of Maki v Estate of Ziehm, 55 AD2d 454; Brennan v Barnes, 133 Misc 340.) III. The appraisal proceeding established by section 623 was the appropriate forum for the assertion of appellants’ claims. (Anderson v International Mins. & Chem. Corp., 295 NY 343; Matter of Tabulating Card Co. v Leidesdorf, 17 Misc 2d 573; Sandfield v Goldstein, 33 AD2d 376, 28 NY2d 794; Blumenthal v Roosevelt Hotel, 202 Misc 988.)
   OPINION OF THE COURT

Chief Judge Cooke.

It is determined here that a shareholder derivative action may be maintained even though commenced after the subject corporation has effected a dissolution and distributed its assets.

This derivative suit, brought in the name and on behalf of Sterling Communications, Inc., was commenced by plaintiffs against defendants, Time, Inc., and the officers and directors of Sterling. The thrust of the litigation is directed at the relationship of Time and Sterling. Beginning in 1965, Time made investments in Sterling and by 1973 Time played a dominant role in the corporation, owning approximately 80% of the stock and controlling Sterling’s management. A majority of Sterling’s directors are alleged to have been officers of Time.

On September 7, 1973, Sterling shareholders approved the sale of all corporate assets to Time, and authorized the dissolution of Sterling and distribution of its assets. These actions were accomplished almost immediately and the present action was commenced approximately six months later. According to the complaint, the officers and directors of Sterling, at the behest of Time, engaged in a course of deliberate mismanagement between 1970 and 1973 which depressed the value of Sterling stock, enabling Time to acquire Sterling at a price below its true value. The relief sought, on behalf of Sterling, is the difference between the 1970 value and the 1973 depressed value, approximately $15,000,000 as measured by the decline in the price of stock.

At Special Term, Time moved for summary judgment on the ground that plaintiffs lacked standing to sue. The motion was granted, with a finding that plaintiffs were not shareholders of Sterling at the time the suit was brought, and thus a derivative action would not lie under subdivision (b) of section 626 of the Business Corporation Law. A unanimous Appellate Division agreed, and stated "since Sterling had been dissolved prior to commencement of the action, plaintiffs lack necessary standing to proceed by or in the right of the corporation * * * [A]t the time suit was instituted, the corporate entity did not exist” (66 AD2d 391, 393). The order of the Appellate Division should be reversed.

The common law, as developed in England, held that causes of action in favor of or against a corporation abated upon dissolution (e.g., Shayne v Evening Post Pub. Co., 168 NY 70, 75-77). Whatever the origins of this rule, the New York courts long ago rejected it, and held that a cause of action accruing before dissolution may be interposed by or against the dissolved corporation (id.). A similar approach is now codified in the Business Corporation Law, which permits a dissolved corporation to "sue or be sued in all courts and participate in actions and proceedings” (Business Corporation Law, § 1006, subd [a], par [4]). And, the predecessor to the Business Corporation Law has been construed to allow a dissolved corporation to participate in a proceeding, even after distribution of assets (see Matter of Milton L. Ehrlich, Inc. [Unit Frame & Floor Corp.], 5 NY2d 275). Thus, a corporation continues to exist as a legal entity after dissolution in New York, at least for the purposes of actions and proceedings. Moving a step further, the question now arises as to whether a shareholder has standing to maintain an action on behalf of such a corporation.

Subdivision (b) of section 626 of the Business Corporation Law imposes upon the plaintiff in a derivative action a dual requirement as to the ownership of stock: "it shall be made to appear that the plaintiff is * * * [a shareholder] at the time of bringing the action and * * * at the time of the transaction of which he complains”. Ownership at the time of the alleged wrong, known as the contemporaneous ownership doctrine, originated in the Federal courts to preclude a shareholder from manufacturing diversity jurisdiction by transferring stock to a nonresident after a cause of action has accrued (see Hawes v Oakland, 104 US 450; Henn, Corporations [2d ed], § 362, p 766). Later, the rule was adopted by State courts and Legislatures "to prevent litigious persons from buying stock for the purpose of bringing suit as to alleged past mismanagement” (e.g., Myer v Myer, 271 App Div 465, 473, affd 296 NY 979; accord Henn, Corporations [2d ed], § 362, p 766). Because it seeks to foster public policy by inhibiting speculation in litigation, the contemporaneous ownership rule must, as a general matter, be rigorously enforced.

The requirement that ownership continue until commencement of the derivative action, on the other hand, is rooted in practical considerations. Although in a theoretical sense a derivative action is brought for the benefit of the corporation, "In a very real sense * * * the standing of the shareholder is based on the fact that * * * he is defending his own interests as well as those of the corporation” (Tenney v Rosenthal, 6 NY2d 204, 211; see, also, Sorin v Shahmoon Inds., 30 Misc 2d 429, 432). Where the plaintiff voluntarily disposes of the stock, his rights as a shareholder cease, and his interest in the litigation is terminated (Tenney v Rosenthal, supra, at p 211; Hanna v Lyon, 179 NY 107, 110-111). Being a stranger to the corporation, the former stockowner lacks standing to institute or continue the suit.

But when the corporation has dissolved, the shareholder’s interest does not abruptly end. At a minimum, the stockholder possesses a substantial interest in the distribution of corporate assets. And, even if dissolution and distribution of assets are accomplished contemporaneously, the shareholder’s stake in any cause of action existing in favor of the corporation remains quite real. From a purely analytical standpoint, then, a shareholder of a dissolved corporation has sufficient interest in a derivative action to satisfy the spirit of the rule requiring ownership at the commencement of the action.

This analysis is confirmed by section 1006 of the Business Corporation Law, which provides that "The dissolution of a corporation shall not affect any remedy available to * * * [its] shareholders for any right or claim existing * * * before such dissolution” (Business Corporation Law, § 1006, subd [b]). Under this statute, the rights and remedies of the shareholders existing prior to dissolution are viewed as if the dissolution never occurred. It follows that the corporate dissolution in itself cannot preclude a qualified plaintiff from being deemed a shareholder "at the time of bringing the [derivative] action” (Business Corporation Law, § 626, subd [b]).

The only obstacle raised by defendant to the maintenance of this derivative action was the alleged lack of standing of the plaintiff shareholders after dissolution. Since the dissolution, without more, did not deprive the shareholders of their derivative remedy, the action was improperly dismissed except as to those shareholders who availed themselves of their appraisal rights under subdivision (e) of section 623 of the Business Corporation Law. Accordingly, the order of the Appellate Division should be modified, with costs, and the motion of defendant Time, Inc., for dismissal of the complaint denied.

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

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

      . Section 626 allows a derivative action to be maintained "by a holder of shares or of voting trust certificates of the corporation or of a beneficial interest in such shares or certificates” (Business Corporation Law, § 626, subd [a]). For convenience, these persons will collectively be referred to as "shareholders” or "stockholders”, and the statutory requirements will be referred to as stock or share ownership.

      . In New York, nonjudicial dissolution may be completed prior to liquidation and distribution of assets (see Business Corporation Law, §§ 1001, 1005, 1006).


author: Wachtler, J. Gabrielli, J.

text:
    Fashion Page, Ltd., Respondent, v Zurich Insurance Company et al., Appellants, et al., Defendants.
    Argued February 6, 1980;
    decided April 29, 1980

      POINTS OF COUNSEL

      Lawrence F. Landgraff and Ira J. Greenhill for appellants.
    I. The holding of the court below is in direct conflict with longstanding legal precedents and raises a substantial question of public importance. (Taylor v Granite State Provident Assn., 136 NY 343; McDonald v Ames Supply Co., 27 AD2d 559, 22 NY2d 111; Ziembicki v Mott Improvement Corp., 18 AD2d 926; Isaf v Pennsylvania R. R. Co., 32 AD2d 578; Hotel Glenmore v American Eagle Fire Ins. Co., 280 App Div 445; Jacobs v Zurich Ins. Co., 53 AD2d 524; Commissioners of State Ins. Fund v Singer Sewing Mach. Co., 281 App Div 867; Dynamic Classics v Snyder Mfg. Co., 33 AD2d 742; Callan v Lillybelle, Ltd., 20 AD2d 877; Beck v North Packing & Provision Co., 159 App Div 418.) II. The authority as corporate agent for the service of process should not be implied by prior acts. (Jacobs v Zurich Ins. Co., 53 AD2d 524.) III. An agent must have powers involving the exercise of judgment and discretion for service of process to be valid. (Callan v Lillybelle, Ltd., 20 AD2d 877; Ziembicki v Mott Improvement Corp., 18 AD2d 926; Isaf v Pennsylvania R. R. Co., 32 AD2d 578; Dynamic Classics v Snyder Mfg. Co., 33 AD2d 742.) IV. Validity of service cannot be based upon any statement made by the person receiving the process. (Coler v Pittsburgh Bridge Co., 146 NY 281 Loeb v Star & Herald Co., 187 App Div 175; Vitolo v Bee Pub. Co., 66 App Div 582.) V. Ultimate receipt of process by a proper corporate employee does not validate service. (McDonald v Ames Supply Co., 22 NY2d 111; Commissioners of State Ins. Fund v Singer Sewing Mach. Co., 281 App Div 867; Beck v North Packing & Provision Co., 159 App Div 418; Levin v McGovern, 53 AD2d 1042; People v Eica Constr. Corp., 85 Misc 2d 1026.) VI. Personal jurisdiction over a corporation can only be obtained by service of process upon persons described in CPLR 311. VII. It is plaintiff-respondent’s burden to sustain service. (Saratoga Harness Racing Assn. v Moss, 26 AD2d 486, 20 NY2d 733.)

      James Sawyer for respondent.
    I. Delivery of the summons and complaint to Ann Robertson on December 13, 1976 constituted valid and effective service of process on Zurich Insuranee Company even if Ann Robertson was technically not a "managing” or "authorized” agent. (McDonald v Ames Supply Co., 22 NY2d 111; Sullivan Realty Organization v Syart Trading Corp., 68 AD2d 756; Green v Morningside Hgts. Housing Corp., 13 Misc 2d 124, 7 AD2d 708; Belofatto v Marsen Realty Corp., 62 Misc 2d 922; Willo-Peer Corp. v Bronx Riv. Soundview Community Corp., 77 Misc 2d 275; Slagen v Marwill, 78 Misc 2d 275; Nolan v Ohio Med. Prods., 75 Misc 2d 620; Erale v Edwards, 47 Misc 2d 213; Marcy v Woodin, 18 AD2d 944.) II. Ann Robertson was shown to be an "authorized agent” to accept service of process. (Ange v General Crushed Stone Co., 262 App Div 553; Coutain v Coutain, 76 Misc 2d 982; Olsen v Jacklowitz, 247 App Div 753; Soskin v Harbor Leasing Corp., 36 Misc 2d 1060; Sullivan Realty Organization v Syart Trading Corp., 68 AD2d 756.) III. Ann Robertson was a managing agent of defendant Zurich within the meaning of CPLR 311 (subd 1). (Tauza v Susquehanna Coal Co., 220 NY 259; Mastan v Desormeau Dairy-Vend Serv., 11 AD2d 860; Matter of Biddle Purch. Co. [Yung Hsing Trading Corp. of Tientsin, China], 238 App Div 264; McDonald v Ames Supply Co., 22 NY2d 111; Taylor v Granite State Provident Assn., 136 NY 343; Callan v Lillybelle, Ltd., 20 AD2d 877; Ziembicki v Mott Improvement Corp., 18 AD2d 926; Dynamic Classics v Snyder Mfg. Co., 33 AD2d 742; Oustecky v Farmingdale Lanes, 41 Misc 2d 979.) IV. Zurich should be estopped from denying validity of service. (Cicero Ind. Dev. Corp. v Roberts, 63 Misc 2d 565; Hover v Claverack Grange No. 934, 46 Misc 2d 113; Dupuis v Van Natten, 61 AD2d 293; Safrin v Friedman, 27 Misc 2d 687, 277 App Div 1138; Matter of Allstate Ins. Co. [Carrillo], 69 Misc 2d 350.) V. Miss Robertson’s statements to the process server at the time service was effected are competent to establish her authority to accept process, agency having been established by other evidence. (Coler v Pittsburgh Bridge Co., 146 NY 281; Loeb v Star & Herald Co., 187 App Div 175; Vitolo v Bee Pub. Co., 66 App Div 582; Perrine v Ransom Gas Mach. Co., 60 App Div 32; Mullen v Quinlan & Co., 195 NY 109; Belofatto v Marsen Realty Corp., 62 Misc 2d 922.)

      J. Bruce Byrne for Paragon Process Service Co., Inc., and another, defendants.
    The court below was correct in upholding service upon the Zurich Insurance Company. (Buckner v D & E Motors, 53 Misc 2d 382; Matter of Ware v Manhattan & Bronx Surface Tr. Operating Auth., 49 Misc 2d 704; Belofatto v Marsen Realty Corp., 62 Misc 2d 922; McDonald v Ames

      Supply Co., 22 NY2d 111; Ives v Darling, 210 App Div 521; Sullivan Realty Organization v Syart Trading Corp., 68 AD2d 756; Colbert v International Security Bur., 70 AD2d 945.)
   OPINION OF THE COURT

Wachtler, J.

The question in this case is whether a corporation was properly served pursuant to CPLR 311 (subd 1) when the process server delivered the summons to the vice-president’s secretary, who had been identified by the defendant’s receptionist and the secretary herself as a person authorized to accept service for the corporation. The Supreme Court held that under the circumstances the service was valid. The Appellate Division affirmed and granted the defendant leave to appeal to this court on a certified question as to the correctness of the Supreme Court’s determination.

The action is to recover on a fire insurance policy issued by the defendant, a foreign corporation authorized to do business in this State with offices at William Street in Manhattan. The complaint alleges that a building owned by the plaintiff and insured by the policy was destroyed in a fire on December 30, 1975. The plaintiff, allegedly, submitted a claim for over $225,000 which the defendant "failed or refused” to pay.

The action was commenced on December 13, 1976 by service of a summons and complaint at defendant’s office in Manhattan. On December 31, 1976 the defendant moved to dismiss on the ground that the person to whom the summons was delivered, Ann Robertson, was a secretary to the vice-president and not a managing agent or other person authorized to accept process on behalf of the corporation pursuant to CPLR 311 (subd 1).

At a hearing before a Special Referee, the process server testified that he went to the William Street address at approximately 12:45 on December 13, 1976. The building directory indicated that the defendant’s offices were located on the third floor. When he arrived at the defendant’s offices he went to the receptionist and stated: "I have a summons and complaint to serve on Zurich. Can you please tell me who I might see or who handles this.” The receptionist told him to proceed down a certain corridor and "see the girl sitting down there.” He did as directed and found Ann Robertson sitting at a desk. He told her that he had a summons and complaint to serve on Zurich. She asked to see the papers and, after looking them over, said "Okay, leave it with me * * * I’ll take it.” When he asked her if she was authorized "to accept this”, she stated "I can take it.”

It was conceded that the receptionist and Ann Robertson were employed by the defendant for many years at its New York office, where there were over 100 employees. The receptionist testified that she was responsibile for directing visitors to the proper person within the office. Ann Robertson stated that she was the executive secretary for Joseph Scanlon, who was a member of the board of directors and the vice-president in charge of the New York office. Although she was the only executive secretary at that office and apparently had some independent authority over certain "files” and correspondence, she said that she was not an officer or managing agent of the corporation and had not been expressly authorized to accept service on its behalf.

She admitted, however, that she had received the summons and complaint in this case and that she had informed Mr. Scanlon of this when he returned from lunch. At his direction she had forwarded the papers to the company’s legal department by interoffice mail. She also admitted that she had regularly done this without objection for at least five years, whenever Mr. Scanlon was not in his office. As a result, during that period about half of the summonses brought to his office had been accepted by her. Her testimony on these points was confirmed by Mr. Scanlon.

There was some dispute between the defendant’s witnesses and the process server concerning the statements made at the time of service. The Referee, however, accepted the process server’s "version of the facts as to the manner in which the summons was delivered.” He concluded that the process server had acted with diligence and had served the summons in a manner which was calculated to, and did, give the defendant fair notice, when he served the person identified by the defendant’s employees as the party authorized to accept service for the corporation. He also found that although Ann Robertson’s job title was that of an executive secretary, "the actual duties performed by her included those of being a managing or general agent for the service of process.” The Supreme Court confirmed the Referee’s report and denied the defendant’s motion to dismiss.

The Appellate Division affirmed concluding that under the circumstances Ann Robertson was "an 'agent authorized by appointment * * * to receive service’ ”. (69 AD2d 787.)

CPLR 311 (subd 1) provides that personal service upon a corporation, foreign or domestic, shall be made by delivering the summons "to an officer, director, managing or general agent, or cashier or assistant cashier or to any other agent authorized by appointment or by law to receive service”.

The defendant urges that Ann Robertson cannot be said to be a managing agent because she did not possess "general powers involving the exercise of judgment or discretion” (Taylor v Granite State Provident Assn., 136 NY 343, 346). It also argues that she cannot be considered an agent "by appointment”, because she was never expressly authorized to accept process for the corporation. Indeed the defendant claims that an agent "by appointment” must also be an agent "designated” for receipt of process pursuant to CPLR 318, which requires that the designation be in writing, acknowledged by the agent and filed with the county clerk.

The history and purpose of CPLR 311 (subd 1), indicates, however, that it should not be read in such a narrow and technical manner.

Over the years the Legislature has identified a large group of corporate personnel as agents for receipt of process. The summons may, of course, be served on any director or corporate officer, which includes the president, vice-president, secretary, assistant secretary, clerk of the corporation, treasurer, assistant treasurer or other persons "denominated by the corporation as officers” (1 Weinstein-Korn-Miller, NY Civ Prac, par 311.02). It may also be delivered to employees of lesser rank who, under a variety of titles, act as managing or general agents for the corporation (see, e.g., Barrett v American Tel. & Tel. Co., 138 NY 491; Tauza v Susquehanna Coal Co., 220 NY 259; cf. Coler v Pittsburgh Bridge Co., 146 NY 281, 283). The trend has been to enlarge rather than diminish the list of those who may accept process on behalf of the corporation. When the CPLR was adopted in 1963, the Legislature added to the list the "cashier or assistant cashier or * * * any other agent authorized by appointment or by law to receive service” (see 1 Weinstein-Korn-Miller, op. cit., par 311.02). The statute, of course, should be liberally construed (CPLR 104).

The purpose of CPLR 311 (subd 1) is to give the corporation notice of the commencement of the suit (Barrett v American Tel. & Tel. Co., supra; Tauza v Susquehanna Coal Co., supra). Delivery of the summons to the officials or employees designated by the Legislature fulfills the statutory aim since their "positions are such as to lead to a just presumption that notice to them will be notice to the * * * corporation” (Tauza v Susquehanna Coal Co., 220 NY 259, 269, supra [Cakdozo, J.]). The presumption is unnecessary when the summons is served on a person the corporation itself has selected to accept service on its behalf. The corporation is free to choose its own agent for receipt of process without regard to title or position.

A corporation may appoint an agent to accept service without observing the formalities necessary to "designate” an agent pursuant to CPLR 318. Designation is merely a type of appointment which might, under certain circumstances, offer special benefits to the corporation or principal. The practical effect of the designation "is to prevent the statute of limitations from tolling if the defendant should leave the state” (Siegel, New York Practice, § 73). A corporation or individual temporarily doing business in the State can file the designation and leave without fear of having to defend stale claims upon return. The procedure is less useful now that the departing defendant is generally subject to long-arm jurisdiction which alone prevents the tolling of the statute (see Siegel, ibid.). In any event the designation procedure is optional. It is not the only way of appointing an agent for receipt of process (see McLaughlin, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C318:l). Notably CPLR 311 (subd 1) does not require that this be done with any particular formality.

Thus a corporation may assign the task of accepting process and may establish procedures for insuring that the papers are directed to those ultimately responsible for defending its interests. A process server may, of course, always serve the corporate personnel specifically identified in the statute. The corporation however cannot escape the consequences of establishing alternative procedures which it may prefer. In such a case the process server cannot be expected to know the corporation’s internal practices. Reliance may be based on the corporate employees to identify the proper person to accept service. In such circumstances, if service is made in a manner which, objectively viewed, is calculated to give the corporation fair notice, the service should be sustained (cf. McDonald v Ames Supply Co., 22 NY2d 111; see, also, Belofatto v Marsen Realty Corp., 62 Misc 2d 922).

In evaluating whether service is to be sustained, the circumstances of the particular case must be weighed. Delivering the summons to a building receptionist, not employed by the defendant, without any inquiry as to whether she is a company employee, would not be sufficient. Such service cannot be upheld even though the receptionist may later deliver the summons to the proper party. "To sustain such service would encourage carelessness, or worse, thus increasing the risk of default by parties who in fact fail to receive the summons” (McDonald v Ames Supply Co., supra, p 116). Nor is it always reasonable, under all circumstances, for the process server to rely on claims of authority made by the defendant’s employees. For instance, a remark made by an employee, temporarily visiting the State, that he represents the corporation has been held insufficient to establish his authority to accept process on its behalf (Coler v Pittsburgh Bridge, Co., supra). But when the corporation is regularly doing business in the State, it generally cannot be heard to complain that the summons was delivered to the wrong person when the process server has gone to its offices, made proper inquiry of the defendant’s own employees, and delivered the summons according to their directions.

There may be cases in which the defendant’s employees improperly assumed authority to accept process which the process server, through past experience or present circumstances, should reasonably perceive. In this case, however, much like those cases involving apparent authority, there is ample evidence to support the determination that he acted reasonably in serving the summons as he did. Certainly it was reasonable for him to rely on the receptionist to direct him to the appropriate person once he had announced his purpose to serve the summons. The receptionist was in the defendant’s office presumably employed by the company to greet visitors and properly direct them. Indeed her apparent knowledge of the proper procedure was soon confirmed when the person to whom she referred the process server acknowledged authority to accept process on behalf of the corporation. It is hard to imagine that the receptionist and the person who took the summons would both be ignorant of the established or accepted procedure for handling process servers, particularly in view of the fact that they were employed by an insurance company which must be involved in litigation with some degree of regularity. If despite these circumstances the summons was in fact served on the wrong person, the fault lies with the defendant, and not with the process server who did all that he should be expected to do to see that it was properly delivered.

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

Gabrielli, J.

(concurring). I concur in result, since I agree that the Appellate Division did not err in concluding, upon the record before it, that Mrs. Robertson was impliedly appointed an agent for purpose of receiving service of process upon the corporation (CPLR 311, subd 1; cf. 318). Because an affirmance can be premised upon this well-established statutory ground in accord with traditional principles of law, it is inappropriate and unnecessary for the court to engage in an expansive discussion of principles of due diligence that have little or no application to this type of service of process.

I find the majority’s apparent emphasis upon the reasonableness of the process server’s behavior rather than upon his ultimate success in serving process upon a proper party disturbing. Delineation of the proper means of commencing an action by service of process is a matter for the Legislature, and should not be varied by the courts as long as the requisites of due process are fulfilled. In this State, service upon a corporation is, to a large extent, governed by CPLR 311 (subd 1) (see, also, Business Corporation Law, §§ 304, 306, 307), which in plain language requires that process actually be delivered to any one of several listed corporate representatives. Since actual delivery to the proper person is the criterion established by the statute, delivery to a corporate employee not listed in CPLR 311 (subd 1) will not normally provide personal jurisdiction over the defendant corporation (see McDonald v Ames Supply Co., 22 NY2d 111; Isaf v Pennsylvania R. R. Co., 32 AD2d 578; see, also, Ives v Darling, 210 App Div 521), regardless of the reasonableness of the process server’s endeavors.

It is, of course, true that actual delivery may be excused in certain extraordinary situations in which the process server is unable to hand the summons to the proper party because of an affirmative attempt to evade service (see, generally, Me- Donald v Ames Supply Co., 22 NY2d, at p 115, supra). Thus, a corporation which instructs its agents to attempt to prevent proper service by misleading a process server could not so readily subvert the "duty upon persons within the jurisdiction to submit to the service of process” (Gumperz v Hofmann, 245 App Div 622, 624, affd without opn 271 NY 544). Similarly, it may well be that a corporation is to be estopped from denying the propriety of service when performed in accord with the directions of a corporate agent possessed with actual or apparent authority to direct a visitor to the proper person. In all such cases, however, service is to be deemed complete because the lapse is caused by the improper behavior of the recipient, and not because the process server acts reasonably or with due diligence.

I cannot concur in the majority opinion because it appears to sustain service not as a result of actual delivery to the proper person, nor because of any attempt to evade service by the corporation or any other misconduct by a corporate agent which could sustain an estoppel against the corporation, but rather solely on the ground that the process server has acted reasonably. Such an analysis accords with neither precedent nor logic and will only have the unfortunate result of encouraging sloppy service and creating unnecessary litigation over the validity of that service. The primary responsibility for ensuring proper service is upon the plaintiff and his agent, the process server. CPLR 311 (subd 1) sets forth a means of service upon a corporation which is both simple and readily followed. The only question which should normally be involved in determining whether service was proper is whether the mandates of the statute were followed and the proper person served. If these conditions are not met, that failure will generally be the responsibility of the process server and will operate to the detriment of his principal, the plaintiff. I see no justification for beclouding this inquiry by making it turn upon the less than precise standard of reasonableness promulgated by the majority, for such can only encourage attempts to retroactively revive failed attempts at service by later claims that under the circumstances the process server acted reasonably. If the validity of service is to turn upon the diligence and good faith of the process server, rather than upon his success in serving process, such a change in the law should be accomplished by the Legislature, and not decreed by this court.

At any rate, in the instant case there exists no need to create or apply such an extraordinary ameliorative doctrine, for the record amply supports the determination made by the Appellate Division that Mrs. Robertson was at least impliedly appointed a corporate agent for receipt of process.

Chief Judge Cooke and Judges Jasen, Jones, Fuchsberg and Meyer concur with Judge Wachtler; Judge Gabrielli concurs in a separate opinion.

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