text:
    The People of the State of New York, Respondent, v Allen Evans, Appellant.
    Argued October 3, 1977;
    decided November 21, 1977

      POINTS OF COUNSEL

      Henrietta M. Wolfgang and Nathaniel A. Barrell for appellant.
    I. The admission of evidence resulting from the warrant-less body search of defendant was prejudicial and reversible error. (Harris v United States, 331 US 145; People v Loria, 10 NY2d 368; Katz v United States, 389 US 347; Chambers v

      Maroney, 399 US 42; People v Cantor, 36 NY2d 106; Terry v Ohio, 392 US 1; People v De Bour, 40 NY2d 210; People v Bowles, 29 AD2d 996; Cupp v Murphy, 412 US 291; People v Crimmins, 36 NY2d 230.) II. It was error to allow testimony concerning defendant’s prior imprisonment. (People v Dunn, 26 AD2d 381; People v Monahan, 21 AD2d 76; People v Crimmins, 36 NY2d 230; People v Sandoval, 34 NY2d 371.)

      Edward C. Cosgrove, District Attorney (John J. DeFranks and Judith Blake Manzella of counsel), for respondent.
    I. The search of defendant, based upon probable cause to believe that he was in possession of heroin, was reasonable and proper. II. The search of defendant, incident to an arrest, was proper. III. No error occurred through admission of testimony of a statement made by defendant. (People v Sandoval, 34 NY2d 371.)
   OPINION OF THE COURT

Wachtler, J.

This case involves the elemental question of whether or not the existence of probable cause to arrest justifies a full search where the arrest was not made until one month after the search. Stated differently, the issue before us is whether a warrantless search of the defendant’s person may be conducted solely on the basis of such probable cause. We hold that without a contemporaneous arrest such a warrantless search is violative of constitutional rights.

On October 4, 1974 Deputy Sheriff John Scirri was working as an undercover narcotics agent for the Erie County Sheriff’s Department. At approximately 7:30 p.m. on that evening he was driving his automobile in search of his informant. When he came to the corner of Broadway and Mortimer he noticed a man later identified as the defendant. According to his testimony at trial, Officer Scirri stopped his car at the curb and asked the defendant whether he had seen the informant, "Jack the Ripper” by name. After responding in the negative, the defendant asked the policeman if he was "looking”, meaning looking to buy narcotics. Officer Scirri indicated that he was interested, whereupon the defendant entered the car and asked the officer how many he wanted. Deputy Scirri countered by asking how many he had. The defendant stated that he had as many as Officer Scirri wanted. When the policeman asked for two, the defendant pulled two bags from a tinfoil containing bags of heroin. Deputy Scirri testified that he paid $30 which the defendant placed in his right , pants pocket. In response to a question the defendant stated he was called "George” and alighted from the car. The entire meeting lasted approximately five minutes.

The police officer drove away and contacted his superior by radio, arranging to meet in a nearby parking lot. A few minutes later Officer Scirri met with Sergeant Guadagno and the undercover officer presented his buy which a field test established to be heroin. At this meeting Deputy Scirri discussed the purchase with Sergeant Guadagno and described "George” as a dark complected male, approximately 28 years old, who was about six-one, had a large build with a round face and a short bush hair style. He also informed the sergeant that "George” was wearing a light brown fur coat reaching below the knees with black pants and black suit underneath.

Sergeant Guadagno testified that after this meeting he proceeded in his patrol car to the vicinity of the buy in search of "George”. At Broadway and Jefferson, the sergeant spotted a man who fit the general description given by Deputy Scirri. After a cursory check of the street revealed no one else fitting that description, Sergeant Guadagno slowly turned the corner and followed behind the defendant along the curb lane as he walked up Broadway toward Mortimer. When Evans reached the corner he turned completely around with his arms outstretched. At this point Sergeant Guadagno emerged from the patrol car, identified himself and ordered the defendant to put his hands on the hood of the car which he did. Sergeant Guadagno then conducted a pat down frisk. Finding no weapons, the policeman asked for identification and told the defendant to empty his pockets on the hood. The defendant had no identification but stated that his name was Linsay Evans and gave his date of birth. Sergeant Guadagno further testified that when the defendant emptied his personal possessions on the hood the "first thing to come out of his right pocket was three ten dollar bills.” The sergeant completely searched the defendant at this point and found neither heroin nor the tinfoil that Officer Scirri had described. After a warrant check proved negative the defendant was permitted to continue on his way.

At trial, defense counsel objected to Sergeant Guadagno’s testimony relating to the search of the defendant and the three $10 bills taken from his pocket. The Trial Judge overruled the objections stating that Sergeant Guadagno had reasonable cause to search the defendant for contraband in view of the testimony that the defendant had taken the two glassine envelopes sold to Deputy Scirri from another envelope.

In further testimony Sergeant Guadagno indicated that about one month after the street encounter Allen Evans was arrested and charged with the sale and possession of heroin. The trial culminated in the jury finding the defendant guilty of selling heroin.

Among the issues raised on appeal was the illegality of Sergeant Guadagno’s search. The People argued that the search was valid as incident to arrest. The Appellate Division, by a divided court, affirmed. The majority held that the street search of the defendant was justified by the existence of probable cause to seize and search for the possession of narcotics. They believed that the postponement of the intrusion of formal arrest for a month in order to conceal the true identity of the undercover officer was a reasonable police practice which constitutionally justified the search. While we cannot and do not take issue with the laudable objective of protecting the safety of undercover agents, we cannot accept the conclusion reached below and reverse.

Recently, our court has had occasion to consider in great depth the many facets of police-citizen encounters. (E.g., People v Cantor, 36 NY2d 106; People v Ingle, 36 NY2d 413; People v De Bour, 40 NY2d 210; People v Stewart, 41 NY2d 65.) In these decisions we have articulated a carefully demarcated body of law explaining the varying predicates necessary to justify police intrustions ranging from the right to arrest to the right to stop and frisk, to the common-law power to inquire, to the. authority to approach and request information. The common thread throughout these opinions is that for a police intrusion to be permissible it must be predicated on constitutionally cognizable factors. In most of these cases the permissible scope of intrusion was justified substantially by the need to ensure the personal safety of the policemen involved.

Applying these principles to the case at bar, we note that, given the level of knowledge here, Sergeant Guadagno was justified in frisking the defendant when he encountered him on the street. Having reasonably assured his safety, however, it does not follow that the existence of probable cause to arrest justified a full search. We believe that at this point the defendant’s indefeasible right to personal security outweighs any State interest in conducting what amounted to an exploratory search of his person.

It is true that Sergeant Guadagno could have arrested the defendant Evans (CPL 140.10; United States v Watson, 423 US 411) and, in the course of subjecting him to the physical dominion of the State, he could have searched him incidental to the arrest. (People v Chiagles, 237 NY 193; Chimel v California, 395 US 752; Weeks v United States, 232 US 383). The justifications for a search incident to arrest are obvious and derive from the necessity to ensure the safety of the officer and to deprive the arrestee of any potential means of escape or of the ability to destroy evidence of a crime. But the simple fact that he did not arrest the defendant prevents the justifications from coming into being.

To adopt the proposition that the search was valid because there was probable cause to arrest puts the cart before the horse. An arrest is an essential requisite to a search incident, otherwise once probable cause existed a potential arrestee would be fair game for any intrusions the police deem appropriate for however long they allow him to remain at large. While it has been consistently held that there is no constitutional right to be arrested (United States v Lovasco, 431 US 783; United States v Marion, 404 US 307; Hoffa v United States, 385 US 293, 310), the police may not utilize the existence of probable cause as a trump card to justify warrantless personal searches. Unless and until a person is arrested, a full body search without a warrant or exceptional circumstances is constitutionally unreasonable.

The People contend that the instant search is justifiable by virtue of the overriding interest the State has in preserving the undercover status of the buyer. Although we believe that it may be a legitimate police practice to postpone arrests in narcotics cases so that the undercover officer may pursue his work, it is a dangerous non sequitur to conclude that constitutional rights should be diminished as a result. The State cannot have it both ways, they must choose. Here the police made a deliberate choice that the cover was more important than the immediate arrest of the defendant and they must be bound by that choice.

We reiterate that an essential requisite to a search incident to arrest is that the arrest be lawful and the search be contemporaneous with the arrest. Just as Chimel (supra), stands for the principle that there must be unity of place to justify an incidental search, our holding today requires that the validity of a search incident to arrest depends also on unity of time.

It may be said that the search and arrest must constitute a single res gestae. The fact that the search precedes the formal arrest is irrelevant as long as the search and arrest are nearly simultaneous so as to constitute one event. As Justice Warren noted in Peters v New York, decided with Sibron v New York (392 US 40, 67) although the formal arrest followed the search, "for purposes of constitutional justification”, the arrest was effected when the policeman took the burglar, Peters, into custody on the stairwell (emphasis added). At that poiht, the necessity of protecting the safety of the officer and preventing potential escape or destruction of evidence became a constitutionally cognizable concern, thereby legitimatizing the search.

A fair reading of the cases cited by the majority below supports our holding. In all of those cases the search and arrest occurred almost simultaneously so that they may be viewed as a single transaction. In United States v Riggs (474 F2d 699, cert den 414 US 820), the search of the defendant was upheld where the formal arrest was made several minutes later when the white powder she was carrying proved, on chemical analysis, to be heroin. The Eighth Circuit in United States v Skinner (412 F2d 98, cert den 396 US 967), sustained as incident to arrest a search predicated on probable cause where the officer did not actually inform the defendant that he was under arrest until he found bullets on his person. Where the arrest and search occur contemporaneously search incident to arrest reasoning will prevail. In contrast, where the arrest and search are distinct occurrences, as here, the search will be declared invalid.

Nor does the holding of Cupp v Murphy (412 US 291), compel a different result. There, the defendant voluntarily appeared at the police station for questioning concerning the strangulation death of his wife and was subjected to a very limited search by virtue of scraping particles of dried blood from under his fingernails. Although the defendant was not arrested for another month, the United States Supreme Court found the search constitutionally permissible. The determinative factor was the "highly evanescent” nature of the evidence (412 US, p 296). The conclusory statement that heroin is an easily destroyed commodity should not be determinative. For the Cupp rationale to apply, the intrusion must be limited and the evidence must be in imminent danger of physical dissipation (see, also, Schmerber v California, 384 US 757). Under those circumstances, the perishable nature of the object sought might be validly considered an exigent circumstance. That reasoning is inapposite in the instant case.

As we held in People v Crimmins (36 NY2d 230, 237), any error of constitutional magnitude requires reversal unless it can be said beyond a reasonable doubt that the error did not contribute to the conviction. We conclude that the admission of Sergeant Guadagno’s testimony relating the discovery of three $10 bills constitutes reversible error. This evidence corroborated Deputy Scirri’s testimony in two important respects and was relied on by the People in summation. Consequently, the judgment of conviction should be reversed and the matter remanded.

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

Order reversed and a new trial ordered.


source: Caselaw Access Project

author: Wachtler, J.

license: Public Domain

text:
    In the Matter of Anthony N. Bianca, Respondent, v Louis J. Frank, as Commissioner of Police of Nassau County, et al., Appellants.
    Argued October 13, 1977;
    decided November 22, 1977

      POINTS OF COUNSEL

      William Gitelman, County Attorney (William S. Norden and Natale C. Tedone of counsel), for appellants.
    Petitioner’s attorney who represented petitioner at the disciplinary proceeding is not required to be served with a copy of the determination of the Police Commissioner of Nassau County, dated February 27, 1975, which dismissed petitioner from the Police Department of Nassau County, in order for the 30-day Statute of Limitations, made and provided for, to commence. (People v Wooley, 40 NY2d 699; Matter of Mastrosimone v Frank, 51 AD2d 727; Matter of Griffiths v Frank, 51 AD2d 725; Smith v Ayer, 101 US 320; Link v Wabash R.R. Co., 370 US 626; Matter of Hammer v Suffolk County Dept, of Labor, 51 AD2d 549; Matter of Cornwall v Baxter, 46 Misc 2d 769, 23 AD2d 815; Matter of Abramson v Commissioner of Educ. of State of N. Y, 1 AD2d 366; Matter of Queensborough Community Coll, of City of Univ. of N. Y. v State Human Rights Appeal Bd., 49 AD2d 766, 41 NY2d 926.)

      Martin S. Rothman and Eric Gewurz for respondent.
    I. Time within which to commence the article 78 proceeding never began to run because petitioner’s counsel who represented him at the disciplinary hearing-trial was never served with the determination sought to be reviewed. Thus, the article 78 proceeding (which was commenced more than 30 days but within four months of the service of said determination upon petitioner) was timely brought. (Matter of Hammer v Suffolk County Dept, of Labor, 51 AD2d 549; People v Wooley, 40 NY2d 699; Berry v Donner-Hanna Colee Corp., 42 AD2d 404, 34 NY2d 893; State Div. of Human Rights v Shenango, 55 AD2d 852; Good v Daland, 119 NY 153; Matter of Bianca v Frank, 55 AD2d 642; Matter of Mastrosimone v Frank, 51 AD2d 727; Matter of Griffiths v Frank, 51 AD2d 725; Matter of Cornwall v Baxter, 46 Misc 2d 769, 23 AD2d 815; Matter of Abramson v Commissioner of Educ. of State of N. Y, 1 AD2d 366; Matter of Loon Lake Estates v Adirondack Park Agency, 83 Misc 2d 686, 85 Misc 2d 929.) II. Section 8-13.0 (subd d) of the Nassau County Administrative Code must be read and construed as it was promulgated. The word "granted” is unambiguous and its meaning is clear. Said statute must be construed as written, and as such it is unconstitutional. It violates the due process clauses of both the United States Constitution and the New York State Constitution. (People ex rel. Burby v Howland, 155 NY 270; People ex rel. Broderick v Morton, 156 NY 136; Matter of Malpica-Orsini, 36 NY2d 568; Matter of Young v Gerosa, 11 AD2d 67; Cline v Frink Daily Co., 274 US 445, Matter of Hardecker v Board of Educ., 180 Misc 1008, 266 App Div 980, 292 NY 584; Matter of Metropolitan Life Ins. Co. v Boland, 281 NY 357; Vulcan Rail & Constr. Co. v County of Westchester, 250 App Div 212; Meltzer v Koenigsberg, 302 NY 523; People v Briggs, 193 NY 457.) III. The section is unconstitutional because it is vague, indefinite and ambiguous. So rife with ambiguity and uncertainty is section 8-13.0 (subd d) that nowhere does it refer to an article 78 proceeding, nor to any judicial proceeding. The word "petition” is neither defined nor described. The section should not be used as a statutory sword to dismiss the proceeding herein. (Matter of Proverb v Niesley, 32 AD2d 657, 26 NY2d 875;
      People v Firth, 3 NY2d 472; People v Briggs, 193 NY 457; Grayned v City of Rockford, 408 US 104; Connally v General Constr. Co., 269 US 385; Trio Distr. Corp. v City of Albany, 2 NY2d 690; Matter of Murray v City of New York, 30 NY2d 113; Bender v New York City Health & Hosps. Corp., 38 NY2d 662; Board of Educ. v Levitt, 42 AD2d 372.) IV. Even the Nassau County Attorney was confused by the section. So obscure, vague and confusing is the section at bar, that in Cullinan v Frank (46 AD2d 738) the Nassau County Attorney represented to the court below that a police officer has four months within which to commence an article 78 proceeding to review an order of dismissal from the Nassau police force. (Matter of Cullinan v Frank, 46 AD2d 738.) V. Section 26-4.0 of the Nassau County Administrative Code provides, that, "no existing right or remedy of any character shall be lost or impaired or affected by reason of any provision of this act”. Thus, section 8-13.0 (subd d) of the code should not be deemed to limit, impair nor affect the right of petitioner to commence an article 78 proceeding within four months of proper service of the determination to be reviewed. (People ex rel. Mason v McClave, 99 NY 83; People v Dethloif, 259 App Div 480, 283 NY 309; People ex rel. Pierce v Howe, 218 App Div 273; Matter of Castaways Motel v Schuyler, 24 NY2d 120, 25 NY2d 891, 25 NY2d 692; Board of Educ. v Levitt, 42 AD2d 372.) VI. The section in question unconstitutionally infringes upon the inherent power of the courts to control their calendars, and to adjudicate litigation within a reasonable time in a reasonable manner. (Kagen v Kagen, 21 NY2d 532; Plachte v Bancroft, 3 AD2d 437; Riglander v Star Co., 98 App Div 101, 181 NY 531.) VII. The section herein violates the equal protection clauses of the Fourteenth Amendment of the United States Constitution, and section 11 of article 1 of the New York State Constitution. (Matter of Wimmer v Kirwan, 51 AD2d 635; Shapiro v Thompson, 394 US 618; Dunn v Blumstein, 405 US 330; Kramer v Union School Dist., 395 US 621; Southern Ry. Co. v Greene, 216 US 400; Royster Guano Co. v Virginia, 253 US 412; Louisville Gas Co. v Coleman, 277 US 32; Matter of Madole v Barnes, 20 NY2d 169; Allied Stores of Ohio v Bowers, 358 US 522; Aerated Prods. Co. of Buffalo v Godfrey, 290 NY 92.) VIII. There was no final administrative determination which was ripe for judicial review, because the Nassau County Police Department failed to follow the procedure set forth in section 8-13.0 (subd c, par 2) of the Nassau County Administrative Code which dictates, inter alia, that a member of the police force may be dismissed only after, "such member shall have had an opportunity to be publicly heard and examined before the commissioner.” Having failed to strictly comply with the said provision, the determination never became final. Moreover, contra to section 8-13.0 (subd b), a deputy inspector rather than a captain sat as the hearing officer. (Matter of Benedict v LaGuardia, 252 App Div 540, 277 NY 674; Weeks v Coe, 36 App Div 339; Anthony v Schofield, 265 App Div 423.) IX. Having failed to inform petitioner of his right to bring an article 78 proceeding, and having failed to inform him of the short Statute of Limitations, appellants should be estopped from interposing the defense of the Statute of Limitations. (Robinson v City of New York, 24 AD2d 260; Quintero v Long Is. R. R, 55 Misc 2d 813, 31 AD2d 844.) X. Under the facts at bar, and in view of all of the equities, the court should apply CPLR 2004 and should rule that the proceeding was timely commenced.
   OPINION OF THE COURT

Wachtler, J.

Petitioner, a Nassau County patrolman, was charged with multiple violations of the rules and regulations of the Nassau County Police Department. On February 7, 1975, accompanied by counsel, he attended a disciplinary hearing and, based on the determination and recommendation after the hearing, petitioner was served with a notice advising him of his dismissal from the force. It is conceded that petitioner’s counsel was never served with the notice of disposition.

On June 3, 1975, approximately 90 days after petitioner was served with the notice of his dismissal, he commenced an article 78 proceeding to annul the determination and seek reinstatement. Special Term dismissed the proceeding on the ground that it was time-barred pursuant to subdivision d of section 8-13.0 of the Nassau County Administrative Code (L 1939, ch 272, as amd by L 1948, ch 436) in that it was not commenced within 30 days from the service upon the petitioner of the determination sought to be reviewed. The Appellate Division modified the order of Supreme Court and, in effect, reinstated the petition holding that the 30-day Statute of Limitations had not commenced since the attorney for the petitioner at the disciplinary hearing was not served with the determination of the Police Commissioner.

The sole issue before us is whether petitioner’s attorney, who represented petitioner at the disciplinary proceeding, is required to be served with a copy of the determination of the Police Commissioner in order for the 30-day Statute of Limitations provided for in subdivision d of section 8-13.0 of the Nassau County Administrative Code to commence. The section provides: "A petition to review a determination by the commissioner to fine, suspend, dismiss or otherwise discipline a member of the police force shall not be granted after the expiration of thirty days from the service of a notice of such determination upon the member of the force so fined, suspended, dismissed or otherwise disciplined.”

The appellants argue that since this section explicitly states that the 30 days is to commence "from the service of a notice of such determination upon the member”, no requirement to serve the member’s attorney may be implied or imposed as a prerequisite for the running of the time limitation.

This argument contravenes basic procedural dictates and the fundamental policy considerations which require that once counsel has appeared in a matter a Statute of Limitations or time requirement cannot begin to run unless that counsel is served with the determination or the order or judgment sought to be reviewed (Matter of Hammer v Suffolk County Dept of Labor, 51 AD2d 549).

Indeed, once a party chooses to be represented by counsel in an action or proceeding, whether administrative or judicial, the attorney is deemed to act as his agent in all respects relevant to the proceeding. Thus any documents, particularly those purporting to have legal effect on the proceeding, should be served on the attorney the party has chosen to handle the matter on his behalf. This is not simply a matter of courtesy and fairness; it is the traditional and accepted practice which has been all but universally codified (see, e.g., CPLR 2103, subd [b]; 7506, subd [d]; Executive Law, § 168; Administrative Procedure Act, § 307).

Of course a legislative enactment could specifically exclude the necessity of serving counsel, but any intention to depart from the standard practice must be clearly established and stated in unmistakable terms. Short of that any general requirement that notice must be served upon the party, or as in this case "upon the member of the force” must be read in the accepted sense to require, at least, that notice be served upon the attorney the party has chosen to represent him.

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

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

Order affirmed, without costs, because of excessive length of respondent’s brief.


author: Jones, J.

text:
    The People of the State of New York, Respondent, v Hilbert Huntley, Also Known as Charles Huntley, Appellant.
    Argued September 9, 1977;
    decided November 22, 1977

      POINTS OF COUNSEL

      Susan A. Powers and William E. Hellerstein for appellant.
    I. The exhaustive exploratory search of appellant’s sublet apartment, conducted by six parole officers and based on an unreasonable suspicion that he was lapsing into criminal ways, violated appellant’s Fourth Amendment rights. (People v Santos, 31 AD2d 508, 25 NY2d 976, 397 US 969; People v Randazzo, 15 NY2d 526, 381 US 953; United States ex rel. Santos v New York State Bd. of Parole, 441 F2d 1216; United States ex rel. Randazzo v Follette, 418 F2d 1319; Morrissey v Brewer, 408 US 471; People ex rel. Menechino v Warden, Green Haven State Prison, 27 NY2d 376; United States v Lewis, 274 F Supp 184; People v Hunt, 38 AD2d 756; Chimel v California, 395 US 752.) II. A court reporter’s facial expressions manifesting disbelief in appellant’s innocence during the trial—observed by five jurors and prejudicing at least one— deprived appellant of a fair trial. (Parker v Gladden, 385 US 363; Stone v United States, 113 F2d 70.) III. Any inculpatory statements appellant made were involuntary because they were the product of a Hobson’s choice compelling him either to remain silent and risk parole revocation or to respond to the parole officers and incriminate himself in the instant criminal proceeding. (People v Santos, 82 Misc 2d 184; Miranda v Arizona, 384 US 436; Simmons v United States, 390 US 377; Melson v Sard, 402 F2d 653; People v Hingerton, 74 Misc 2d 1063; Lefkowitz v Turley, 414 US 70; Garrity v New Jersey, 385 US 493; People v Rodriguez, 48 AD2d 691.) IV. The court should have examined the parole records and notes on appellant’s case—prepared by the principal witnesses against him—before denying appellant’s request for them as Brady and Rosario material. (Brady v Maryland, 373 US 83; Davis v Alaska, 415 US 308; Morrissey v Brewer, 408 US 471; People v Rosario, 9 NY2d 286; People v Consolazio, 40 NY2d 446.)

      Mario Merola, District Attorney (Thomas Geller and Gail L. Geisinger of counsel), for respondent.
    I. Defendant’s guilt was established beyond a reasonable doubt. (People v Becker, 215 NY 126; People v Seidenshner, 210 NY 341; People v Taylor, 138 NY 398; People v Tait, 234 App Div 433). II. The court properly denied defendant’s motions to suppress. (Matter of Cummings v Regan, 76 Misc 2d 137; Morrissey v Brewer, 408 US 471; People v Santos, 31 AD2d 508, 25 NY2d 976, 397 US 969; People v Santos, 82 Misc 2d 184; People v Randazzo, 15 NY2d 526, 381 US 953; People ex rel. Natoli v Lewis, 287 NY 478; Anderson v Cora.ll, 263 US 193; United States ex rel. Randazzo v Follette, 282 F Supp 10, 418 F2d 1319; United States ex rel. Santos v New York State Bd. of Parole, 441 F2d 1216; Latta v Fitzharris, 521 F2d 246.) III. The court properly quashed defendant’s subpoenas duces tecum for parole records. (People v Lewis, 43 AD2d 989; Matter of Mailler [Louty], 11 Misc 2d 146; Matter of Jordon v Loos, 204 Misc 814, 283 App Div 983; People v Bennett, 75 Misc 2d 1040; People v McCain, 42 AD2d 866; People v Norman, 76 Misc 2d 644; People v Brown, 70 Misc 2d 224; People v Coleman, 75 Misc 2d 1090; People v Fraiser, 75 Misc 2d 756; People v Torres, 77 Misc 2d 13.) IV. Defendant was not deprived of his right to an impartial jury and to confront witnesses against him. (Stein v New York, 346 US 156; McDonald v Pless, 238 US 264; Hyde v United States, 225 US 347; Mattox v United States, 146 US 140; People v De Lucia, 20 NY2d 275; People v Sprague, 217 NY 373; People v Leonti, 262 NY 256; People v Harding, 44 AD2d 800; People v Johnson, 79 Misc 2d 880; People v Sher, 24 NY2d 454.)

      David Rudenstine for the New York Civil Liberties Union, amicus curiae. The new realism about parole supervision compels granting to parolees substantial Fourth Amendment rights.

      Louis J. Lefkowitz, Attorney-General (Samuel A. Hirshowitz and Carl Saks of counsel), in response to the amicus curiae brief of the Civil Liberties Union.
    I. There is no constitutional prohibition against New York State assigning counseling and law enforcement tasks to parole officers charged with supervision of parolees. (People v Randazzo, 37 Misc 2d 80, 20 AD2d 850, 381 US 953;. Olsen v Nebraska, 313 US 236; Matter of Ahern v South Buffalo Ry. Co., 303 NY 545.) II. The amicus’ challenge to 7 NYCRR 1915.10 (4) (c) has no foundation in law. (People.ex rel. Rainone v Murphy, 1 NY2d 367; People ex rel. Natoli v Lewis, 287 NY 478; People v Adams, 36 AD2d 784; Jones v Cunningham, 371 US 236; Morrissey v Brewer, 408 US 471; Bricker v Michigan Parole Bd., 405 F Supp 1340; Latta v Fitzharris, 521 F2d 246, 423 US 897; United States ex rel. Santos v New York State Bd. of Parole, 441 F2d 1216, 404 US 1025; People v Santos, 31 AD2d 508, 25 NY2d 976, 25 NY2d 704, 397 US 969.)
   OPINION OF THE COURT

Jones, J.

We hold that a parolee’s constitutional right to be secure against unreasonable searches and seizures is not violated when his apartment is searched, without a search warrant, by his parole officer if the latter’s conduct is rationally and reasonably related to the performance of his duty as a parole officer.

Defendant was paroled on May 10, 1971 while serving a prison sentence for robbery. At the time of the incident here in question he had been directed by Edward O’Neill, his parole officer, to report weekly on Tuesdays. Defendant had telephoned on Tuesday, November 28, 1972. When he came in to see his parole officer the following day he was reminded that he was required to report again on Tuesday, December 5. Defendant failed to report on the 5th and again on December 12 and did not otherwise communicate with his parole officer. On December 13 Officer O’Neill informed his senior officer of defendant’s failures to report, and as a result of their conversation the senior officer issued a parole violation warrant. Defendant’s former parole officer, Edwin Donnelly, also participated in this conversation and reported that defendant had previously lied about his employment status, that he had received welfare without asking permission, and that his attitude toward parole was not what the parole officers thought it should be.

After reviewing defendant’s folder, on December 15, 1972 Officer O’Neill with five other parole officers went to defendant’s residence. Two officers remained outside the apartment building, one watching the back windows, another at the front door and side windows. The others went to defendant’s ground floor apartment. Officer O’Neill knocked on the door which was promptly opened by defendant who admitted the officers. Defendant was taken into custody, searched and handcuffed, and his apartment was then searched. Officer O’Neill testified that prior to the issuance of the parole violation warrant he had had no knowledge or information as to any connection of defendant with narcotics which might have been a violation of his parole. The officer was, however, suspicious that there might be a gun in defendant’s apartment because of the history of weapons in his record. The search revealed .38 caliber bullets near the front door, but no gun was ever found. The searching officers found a hypodermic needle and syringe, 144 glassine envelopes subsequently proved to contain heroin, 49 tinfoil wrappers found to contain cocaine, and an assortment of pills. The police were called and defendant was taken to the precinct station.

Supreme Court denied a motion to suppress the evidence seized from defendant’s apartment and in a jury trial defendant was convicted of criminal possession of dangerous drugs. His conviction was upheld at the Appellate Division and he appeals to our court by permission of a Justice of that court. We affirm.

The principal contention advanced for reversal is that the thorough, exploratory search of his apartment without a search warrant constituted a violation of defendant’s constitutional rights.

We start with the base proposition that the constitutional prohibition against searches and seizures is addressed only to searches and seizures which are unreasonable (US Const, 4th Arndt; NY Const, art I, § 12). Then we immediately agree with defendant that in consequence of his acquiring status as a parolee, he did not surrender his constitutional rights against unreasonable searches and seizures (cf. Morrissey v Brewer, 408 US 471).

Proceeding on that predicate we nonetheless observe that in any evaluation of the reasonableness of a particular search or seizure the fact of defendant’s status as a parolee is always relevant and may be critical; what may be unreasonable with respect to an individual who is not on parole may be reasonable with respect to one who is (United States ex rel. Santos v New York State Bd. of Parole, 441 F2d 1216, 1218). Approached from another perspective, conduct which may be unreasonable with respect to a parolee if undertaken by a police officer may be reasonable if taken by the parolee’s own parole officer (cf. United States v Consuelo-Gonzales, 521 F2d 259, 266; United States ex rel. Santos v New York State Bd. of Parole, 441 F2d 1216, 1219, supra). In general the standard by which the reasonableness of a search or seizure with respect to a parolee by a police officer is to be measured would be the familiar requirement of a showing of probable cause. (Even under that test, however, the fact of parole status may well be significant in individual cases.)

Where, however, as here, the search and seizure is undertaken by the parolee’s own parole officer, in our view whether the action was unreasonable and thus prohibited by constitutional proscription must turn on whether the conduct of the parole officer was rationally and reasonably related to the performance of the parole officer’s duty. It would not be enough necessarily that there was some rational connection; the particular conduct must also have been substantially related to the performance of duty in the particular circumstances.

Applying these principles to the present case we have no difficulty in upholding the search of defendant’s apartment and the consequent seizure of drugs and drug paraphernalia. We note that the parole officer’s duty has two, sometimes potentially inconsistent aspects: he has an obligation to «detect and to prevent parole violations for the protection of the public from the commission of further crimes; he also has a responsibility to the parolee to prevent violations of parole and to assist him to a proper reintegration into his community. Thus, the parole officer’s responsibility to the parolee might be expected in some instances to warrant procedures which would not be reasonable if the officer were acting to discharge his obligation to the public only. Clearly he does not have a carte blanche, however, to intrude on the private life and affairs of the parolee.

In this case, even prior to his failures to report, defendant had not had an unblemished parole record; his unreliability had been demonstrated. Then, there followed the two failures to report to his parole officer—violations of the most fundamental obligation of the parolee. And these failures followed an explicit reminder of the duty to report given but a week prior to the first failure to report. Additionally the failures to report were complete; no telephone calls had been made or messages left. In these circumstances the issuance of the warrant to detain defendant personally was not only reasonable but probably mandatory. Then, on arriving at defendant’s apartment in the early afternoon, finding him there and observing no physical disability or other hindrance to his reporting, the parole officer’s conduct in searching the apartment for a possible explanation of his otherwise unexplained failure to report was permissible. To the knowledge of his parole officers, this parolee had been convicted of robbery; he had quit his employment without informing his parole officer and was unemployed; he had lied about his employment status and had accepted welfare payments without obtaining permission. In short, defendant had demonstrated that he was thoroughly unreliable. Nor do we conclude that what would thus otherwise have been a permissible search and seizure became impermissible because defendant’s parole officer had enlisted the participation of his fellow officers, particularly in view of the absence of any basis even for surmise as to why defendant had failed to maintain contact with his parole officer, and with no predictable limitation on what the parole officer might expect to encounter. It is also significant that there was no evidence that the searching parole officers were seeking contraband or evidence in aid of prosecution for criminal activity.

Finally, we observe that the standard authorization signed by defendant as parolee for searches of his person, residence or property does not affect the determination we make. That authorization is not to be taken as an unrestricted consent to any and all searches whatsoever or as a blanket waiver of all constitutional rights to be secure from unreasonable searches and seizures. In our analysis, it merely parallels, by way of confirmation, the right of the parole officer which we uphold—namely, the right to conduct searches rationally and substantially related to tjie performance of his duty. Because parole is a matter of legislative grace and not of constitutional right does not mean that unconstitutional conditions may be attached when it is granted.

We have examined defendant’s other contentions and conclude that they are without merit. Recognizing the reluctance of our courts to probe and explore the inner workings of jury deliberations and especially to undo jury verdicts, we find no error in the trial court’s rejection, after a hearing and on articulated findings of fact and conclusions of law, of defendant’s postverdict motion under CPL 330.30 (subd 2) to set aside the verdict on the ground that he had been deprived of a fair trial in consequence of facial expressions of the court stenographer assertedly manifesting her disbelief in defendant’s innocence. With reference to the refusal of the trial court to suppress defendant’s oral statements made to Officer O’Neill at the time he was taken into custody and his apartment searched, we are confronted with an affirmed factual finding that they were voluntary, and we see no basis as a matter of law for disturbing this finding. Nor in the circumstances of this case was it error to quash defendant’s sweeping subpoena duces tecum requesting parole and medical records.

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

Chief Judge Breitel and Judges Jasen, Gabrielli, Wachtler, Fuchsberg and Cooke concur.

Order affirmed.


author: Jones, J. Gabrielli, J. (dissenting).

text:
    In the Matter of the Arbitration between American Insurance Company, Respondent, and Philip Messinger et al., Respondents. Aetna Casualty and Surety Company, Appellant.
    Argued September 1, 1977;
    decided November 22, 1977

      POINTS OF COUNSEL

      Joseph D. Ahearn and J. Robert Morris for appellant.
    I. Based upon the factors set forth in Schwartz v Public Administrator (24 NY2d 65) the prior arbitration hearing held pursuant to the intercompany agreement, wherein American, as subrogee, was awarded property damage in the sum of $1,201.12 against Aetna was legally insufficient to serve as the predicate of collateral estoppel, and the granting of summary judgment to American. (Falk v Goodman, 7 NY2d 87; Weiss v Garfield, 21 AD2d 156; Schneider v Miecznikowski, 16 AD2d 177; Schwartz v Public Administrator of County of Bronx, 24 NY2d 65; Fernandez v London Records, 34 AD2d 634; Albero v State of New York, 26 NY2d 630; Randolph v Nurse, 49 AD2d 354; Rochester Coca-Cola Bottling Corp. v Rios, 68 Misc 2d 520; New York Post Corp. v Kelley, 296 NY 178.) II. This court should grant Aetna summary judgment in its favor against American. As a matter of law, the prior arbitration proceeding cannot serve as the basis for American’s reliance upon collateral estoppel. (Wiseman v Knaus, 24 AD2d 869; Peoples Sav. Bank of Yonkers, N. Y. v County Dollar Corp., 43 AD2d 327, 35 NY2d 836.)

      Howard Lester and Patrick A. Lyons for American Insurance Company, respondent.
    Respondent-appellant Aetna had a full and fair opportunity to litigate the validity of its disclaimer. Its conscious and deliberate failure and neglect to avail itself of the full procedures available to it in the trade company arbitration does not constitute a legal basis for setting aside the decision of the court below. (Schwartz v Public Administrator of County of Bronx, 24 NY2d 65.)

      William F. Larkin for Committee on Insurance Arbitration,
      amicus curiae.

    I. The Nationwide Inter-Company Arbitration Agreement decision does not pre-empt Aetna’s claim of disclaimer. (Matter of American Silk Mills Corp. [Delaware] [Meinhard-Commercial Corp.], 35 AD2d 197, 38 AD2d 695, 31 NY2d 777; Rembrandt Inds. v Hodges Int., 38 NY2d 502; Schwartz v Public Administrator of County of Bronx, 24 NY2d 65; Read v Sacco, 49 AD2d 471; Matter of Colton v Berman, 21 NY2d 322.) II. The affirmance of the order on appeal would needlessly destroy an efficient system of arbitration without purpose. (Matter of Siegel v 141 Bowery Corp., 51 AD2d 209; Putnam v Otsego Mut. Fire Ins. Co., 41 AD2d 981, 45 AD2d 556; Town of Geneva v Purification Sciences, 49 AD2d 1004; Matter of Steigerwald, 2 Misc 2d 389; Mihalcho v Massachusetts Fire & Mar. Ins. Co., 229 App Div 813; Brown v Schneider, 32 AD2d 712.)
   OPINION OF THE COURT

Jones, J.

We hold that the determination made in a property damage arbitration proceeding between two insurance carriers disallowing the disclaimer of coverage by one of them is binding in a controversy between the same carriers in a subsequent personal injury action arising out of the same accident.

The relevant facts for the purposes of this appeal are not disputed. On May 31, 1972 Mr. and Mrs. Messinger were injured when the automobile owned and driven by him in which she was a passenger was struck in the rear by a vehicle owned by Gerald Zook and driven by Thomas Nobles. The Messingers commenced an action against Zook and Nobles to recover for personal injuries. On August 10, 1973 Aetna Casualty and Surety Company, insurer for Zook, disclaimed on the grounds of late notice and lack of co-operation.

On August 1, 1973 American Insurance Company, carrier for the Messingers, pursuant to the Nationwide Inter-Company Arbitration Agreement, requested arbitration of its claim for subrogation with respect to the payment of $4,704.51 which it had made to its insured on account of property damage to the Messinger automobile incurred in the May 31 accident. Aetna objected to the arbitration on the ground that its insured had not complied with the cooperation provision of its policy. The arbitration proceeded to award on January 11, 1974 in which the three-member panel rejected the disclaimer and assessed damages against Aetna in the amount of $1,201.12.

On June 13, 1974 the Messingers made a demand for uninsured motorist arbitration against their insurer, American, based on Aetna’s asserted disclaimer of coverage. On September 10, 1974 Special Term granted American’s motion to stay the Messinger arbitration pending trial in the personal injury action of the preliminary issue as to the merit of Aetna’s disclaimer.

American then moved in the personal injury action to strike Aetna’s disclaimer and for summary judgment directing Aetna to afford coverage to Zook. American based its motion on the ground that the determination with respect to the disclaimer issue in the January 11, 1974 arbitration award relative to the subrogation claim—in favor of American and adverse to Aetna—was binding in the personal injury action. Special Term granted American’s motion, struck the asserted disclaimer and directed Aetna to defend on behalf of its insured Zook. Special Term also treated American’s motion as an application to confirm the award in the property damage arbitration and confirmed the award which had originally held Aetna’s disclaimer invalid. The Appellate Division unanimously affirmed and granted leave to appeal to our court. In our turn we now affirm the dispositions below.

In an unusual development, in our court respondent American, which had prevailed in both courts below, has now joined with appellant Aetna to urge that the order of the Appellate Division be reversed (with support in an amicus curiae brief filed on behalf of the Committee on Insurance Arbitration). It is asserted that to hold that the determination in the property damage subrogation claim arbitration proceeding is binding in the subsequent personal injury action will be to endanger the entire intercompany arbitration system on which the insurance industry relies so heavily for efficient disposition of internal controversies. In a joint supplemental brief, the two insurance company litigants state: "The inter-company arbitration proceedings, such as the one in the present case, are now firmly embedded in the insurance industry in New York State. These proceedings were intended by the industry to provide an informal procedure whereby disputes which concerned the insurance industry solely could be resolved by carriers pursuant to the procedures voluntarily established by the industry. As a result of such proceedings, the insurance industry, therefore, was able to resolve disputes which otherwise would have been forced into the court system with a resultant increase in court congestion coupled with substantial increase in the cost of disposing of minor claims. These proceedings, as intended by the industry and as applied by the carriers who were signatories to the agreement, have long had the salutary effect of alleviating court congestion in New York State. The inter-company arbitration determinations have handled in an expeditious and informal manner disputes existing between carriers, with no recourse had to the courts. An affirmance herein would mean that the utilization of inter-company arbitration panels would be potentially decreased materially (and the litigation in connection therewith forced upon the courts).”

Fundamental to our consideration of the present appeal is recognition that in general the doctrines of claim preclusion and issue preclusion between the same parties (more familiarly referred to as res judicata or direct estoppel) apply as well to awards in arbitration as they do to adjudications in judicial proceedings (Rembrandt Inds. v Hodges Int., 38 NY2d 502; New York Lbr. & Wood Working Co v Schneider, 119 NY 475; Wiberly v Matthews, 91 NY 648; 23 Carmody-Wait 2d, NY Prac, Arbitration, § 141:151, p 80).

Next we observe that the question presented must be resolved under principles of issue preclusion between the same parties. That is to say, the question now before us is the effect to be accorded the determination with respect to a particular issue made in a proceeding between two parties when the same issue is raised in a subsequent proceeding between the same two parties. This is not an instance of issue preclusion in subsequent litigation between different parties, in which the question would be the effect to be accorded a prior determination when the same issue arises in a subsequent proceeding to which one of the former litigants is a party but where the adversaries in the second proceeding are not the same as those in the first proceeding. Therefore our decisions in Schwartz v Public Administrator of County of Bronx (24 NY2d 65) and B. R. DeWitt, Inc. v Hall (19 NY2d 141) are not on point. In each of those cases the question was whether one of two parties to the trial of the personal injury aspect of an automobile accident which was first litigated would later be bound by, i.e., precluded from relitigating, a determination therein adverse to it when the same issue was raised in a subsequent action for property damage brought against one of the prior litigants but involving different adversaries. No case has been brought to our attention in which our court has applied the Schwartz analysis and principles to situations of issue preclusion between the same parties, and we do not do so now.

We turn then to the several contentions urged by the parties as grounds for reversal of the determinations below that in the present personal injury action Aetna is bound by the rejection in the property damage arbitration of its right to disclaim and thus is precluded from relitigating that issue. For the purposes of our analysis and disposition these contentions can be grouped in four categories. The first relates to assertions of error committed in the arbitration proceeding. Thus, it is stated that under the express terms of the Nationwide Inter-Company Arbitration Agreement, arbitration of a controversy thereunder "must be deferred until all companion claims or suits not subject to arbitration have been disposed of by settlement or otherwise, except that all parties to the arbitration may agree to waive deferment”. In this instance it is obvious that the personal injury claims had not been disposed of and thus the statement in American’s demand for arbitration that no companion claims or suits were pending was wholly inaccurate. It is asserted that inasmuch as the parties proceeded to arbitration under a mutual mistake of fact and there was no waiver of deferment, the arbitration award was invalid and should not be given any effect for present purposes. The response is clear. Whether or not there is merit to the contentions that it was error to have proceeded to arbitration or that there was no valid agreement to arbitrate, such issues present questions which either must be raised as threshold questions under CPLR 7503 (subd [b]) or are for the arbitrator in the arbitration proceeding. (Matter of Aaacon Auto Transp. [State Farm Mut. Auto. Ins. Co.], 41 NY2d 951, 951-952; Pearl St. Dev. Corp. v Conduit & Foundation Corp., 41 NY2d 167, 170-171; Aetna Life & Cas. Co. v Stekardis, 34 NY2d 182, 185-186.) Errors in the arbitration proceeding, whether of fact or law, are beyond the scope of judicial review and clearly may not now be raised in this subsequent judicial proceeding. (Matter of Wolff & Munier [Diesel Constr. Co.], 36 NY2d 750, 752; Matter of Raisler Corp. [New York City Housing Auth.], 32 NY2d 274, 279.)

Next, our attention is drawn to what it is argued are the several substantial infirmities and deficiencies in the arbitration proceeding, very much along the lines of a Schwartz analysis. Thus it is pointed out that the arbitration proceeding was a summary, pro forma proceeding at best. The two companies merely sent the arbitrators their files; there was no hearing and no oral testimony or other documentary proof; there was no oral argument and no briefs were filed. The award itself was brief, almost cursory. To these contentions the response is twofold. First, the voluntary choice of the arbitration forum necessarily imports acceptance of the more summary, informal and less structured procedures which characterize arbitration as compared with judicial litigation. Second, to the extent that this particular arbitration was even more informal and casual than most, there is nothing to suggest that this was not the consequence of the voluntary election by two insurance companies to proceed as they did. They must be held to have waived any procedural rights which they might otherwise have had and to have accepted the arbitration proceeding as they chose to conduct it. (Cf. CPLR 7506, subd [f].) Even under Schwartz the requirement is only that there have been a "full and fair opportunity to contest the decision now said to be controlling” (24 NY2d 65, 71; emphasis supplied), not that there have in fact been a full and fair contest.

In another Schwartz-type argument it is asserted that Aetna had no real incentive to press a vigorous disclaimer defense in the property damage litigation. Our attention is drawn to the relative disparity in amount between the property damage and the personal injury claims. The suggestion is that because Aetna may not have really tried in the first arbitration it should not be bound by the resulting award. This, too, is an unpersuasive and unattractive argument in a situation of issue preclusion between the same parties. We cannot visualize acceptance, for instance, of the conceptually parallel argument that a party against whom partial summary judgment has been granted in one action should be relieved of its consequences in a second action between the same parties because, lacking incentive in the first action, that party put up only a halfhearted defense and submitted nothing but its file and an incomplete or even sloppy affidavit in opposition to the motion. The consequences of issue preclusion between the same parties are not to be vitiated by lack of enthusiasm or effort on the part of the loser. (But cf. Restatement, Judgments 2d, § 68.1, subd [e], par [iii].)

On still another tack the parties jointly assert that there is no affirmative evidence to prove that they ever intended that the award in arbitration should have an estoppel effect in any subsequent litigation between them. By like token and more significant, however, there is no evidence to establish that they manifested an intention, let alone agreed, that there be no such consequence. The doctrines of claim preclusion and issue preclusion do not depend on any manifested or presumed intention of the parties; they rest on the desirability in the public interest of judicial repose and of the orderly termination of controversy. "The common-law doctrine of res judicata, designed to bar relitigation of adjudicated issues, is the law’s recognition of the fact that it is to the interest of the State that there should be an end to litigation” (Israel v Wood Dolson Co., 1 NY2d 116, 118; Matter of New York State Labor Relations Bd. v Holland Laundry, 294 NY 480, 493-494; see 9 Carmody-Wait 2d, NY Prac, Judgments, § 63:197, p 198). We do not say that an understanding to limit estoppel consequences, if established by the evidence, preferably unequivocal, may not serve to restrict or modify what would otherwise be the applicable rule. It will not suffice, however, to urge by way of afterthought that the parties never intended a subsequently binding effect. In this instance there was here no tender of any proof of an intention not to be bound, and evidence of intention to be bound has never been a prerequisite to the application of issue or claim preclusion.

In reaching the decision we do, we acknowledge our awareness of the earnest and sincere apprehension on the part of both insurance companies and of the amicus that an affirmance will disrupt an effective and widespread system of arbitration under the Nationwide Inter-Company Arbitration Agreement and throw back a multitude of relatively small claims on our already crowded court calendars. We suggest that if this is a real risk, and we have no reason to doubt that it is, the remedy is available and practicable. We have noted elsewhere that voluntary arbitration is grounded in the agreement of the parties (County of Sullivan v Edward L. Nezelek, Inc., 42 NY2d 123, 128). The longer term solution, consistent with the principles both of arbitration law and of claim and issue preclusion, is to insert an appropriate provision in the master arbitration contract that awards made thereunder shall be for the purposes of the dispute submitted only and shall have no carry-over effect. In the shorter run, pending the execution of such an amendment to the master agreement, appropriate clauses of similar limitation may be included in all future submissions under the present arbitration agreement, and postaward limiting agreements may be executed with respect to outstanding awards. The classic method for limiting the scope and effect of agreements to arbitrate, as we so frequently both caution and hold, is for the parties themselves to include the desired limitations in their own arbitration agreements or submissions (e.g., Stanley & Son v Trustees of Hackley School, 42 NY2d 436, 438-439).

One final, general observation is pertinent. It has been suggested that in the range of procedures for dispute-resolution, there is a place for a very informal, quick means for reaching a decision when one or perhaps both contestants are prepared, or even desire, to make an abbreviated submission with little or no real contest. The argument is made that opportunity for such summary dispositions should not be inhibited by automatically according a binding estoppel effect to the first determination when the same issue later arises in a second controversy. It is said that Schwartz reflects a judicial awareness that in circumstances arising exclusively in the setting of judicial proceedings it is not always fair to hold a litigant to a prior adverse determination and that the principles enunciated in that case provide the possibility of avoidance of such estoppel when manifest fairness calls for it. In circumstances involving arbitration, however, the parties themselves can formulate their own contractual restrictions on carry-over estoppel effect. They cannot, of course, impose similar limitations which would impair or diminish the rights of third persons. In this sense there is a real difference between situations of issue preclusion between the same parties and issue preclusion between different parties.

For the reasons stated, the order of the Appellate Division should be affirmed, without costs.

Gabrielli, J. (dissenting).

I respectfully dissent from the majority decision. Respondent-appellant Aetna Casualty and Surety Co. appeals from an order of the Appellate Division, First Department, which affirmed a judgment of Supreme Court, New York County. The order appealed from strikes Aetna’s allegation of disclaimer of coverage, and orders Aetna to appear and defend in an action for personal injuries instituted by American’s insureds, the Messingers, against Aetna’s insured, Zook.

To place the present controversy in proper perspective, it is important to here note, and indeed to emphasize, that this personal injury action, arising from an automobile collision, was instituted by the insured owners and the operator of one vehicle against the insured owner of another vehicle involved in the accident; and that this action was begun prior to the commencement of an arbitration proceeding, involving only a property damage claim, which was strictly between the two insurers; and that the insureds were not only not parties to this subsequent arbitration, but that they in no way participated, directly or indirectly, in that proceeding. In fact, there is no evidence that they were even aware of its existence.

The facts, although complex, are undisputed. On May 31, 1972, the Messingers were involved in an automobile accident with a car owned by Zook; soon thereafter, they commenced an action against Zook to recover for personal injuries. Aetna, Zook’s insurance company, was not notified of the action until April 23, 1973, and on August 10, 1973, Aetna disclaimed on the grounds of late notice and lack of cooperation. In the interim, American had paid their insureds, the Messingers, $4,704.51 for property damage to their automobile, and on August 1, 1973 had requested arbitration against Aetna seeking to recover this sum as subrogee. The arbitration request was made and the arbitration conducted pursuant to the Nationwide Inter-Company Arbitration Agreement. Aetna objected to arbitration on September 26, 1973, on the ground that its insured had not complied with the co-operation provisions of the policy.

It should be noted that this arbitration was between the insurers only, and none of the insureds were considered to be in any way interested in the outcome. The arbitration itself was a very simple process; the two companies merely sent the arbitrators their files. These files are not in the record, and it appears that they are not in fact retained after the arbitration. Thus, there is apparently no way of determining» what material was before the arbitrators. It is important to note that there was no hearing. On January 11, 1974, the panel rendered a decision, stating simply: "Questions of coverage considered. Applicant sustained burden of proof against [Aetna] in amount of $1,201.12”.

On June 13, 1974, the Messingers made a demand against American for uninsured motorist arbitration with respect to their personal injury claims because of the August 10, 1973 disclaimer by Aetna. American successfully sought a stay of arbitration in order to challenge the disclaimer, and subsequently obtained a judgment striking the disclaimer by virtue of the collateral estoppel effect of the arbitration decision. This appeal is taken from the Appellate Division’s affirmance of that judgment, by leave of that court.

Although it is certainly not dispositive, it should be noted that neither party now seeks affirmance. Apparently influenced by the allegedly destructive impact of an affirmance upon the complex system of arbitration utilized by the insurance industry, both insurance companies and the Committee on Insurance Arbitration now urge reversal.

Preliminarily, I take issue with the majority’s attempt to avoid application of the principles enunciated by this court in Schwartz v Public Administrator of County of Bronx (24 NY2d 65), by limiting the discussion in Schwartz to situations wherein the parties to both actions are not the same. The unfortunate result of today’s decision will be to disturb the uniform theory of res judicata and collateral estoppel which we perfected in that case. It should be noted that whether one uses the traditional terminology or the new nomenclature utilized in the tentative drafts of the Restatement, Judgments (2d), the concepts remain unchanged. Traditionally, collateral estoppel has been considered as merely one category of res judicata, a type of partial res judicata. It is distinguished from full res judicata, not on the basis of the parties involved in the respective actions, but on the basis of the nature of the two actions. Res judicata is applicable to bar a subsequent action when a prior suit on the same cause of action has been finally determined on the merits: if the plaintiff has fully recovered, he is precluded from commencing another action by the doctrine of merger; if the defendant has prevailed on the merits, the plaintiff is precluded from commencing another suit by the doctrine of bar. Collateral estoppel, or partial res judicata, precludes relitigation in subsequent actions of questions actually litigated and determined in a prior suit, even if that prior suit was based on a different cause of action. Direct estoppel, in. contradistinction, is applicable to prevent relitigation of previously determined questions in situations where the prior judgment itself was not on the merits. **§The effect of the new Restatement is simply to recast these familiar concepts in a new terminology. Thus, section 45 distinguishes between bar and merger on the one hand (claim preclusion or res judicata), and issue preclusion (collateral estoppel) on the other. Direct estoppel has apparently been subsumed within the concept of issue preclusion. In the present case, it is clear that we are faced with what has traditionally been considered a question of collateral estoppel, and what may now be termed a question of issue preclusion: that is, the effect, in a personal injury action between two insureds, of a determination in a prior property damage arbitration proceeding between their respective insurers, that a disclaimer of coverage is ineffective.

In refusing to apply the Schwartz criteria on the ground that in that case the parties to the two actions were not both the same whereas in the present case they are, the court misstates the significance of Schwartz. There, we were not concerned with developing a new classification of res judicata or collateral estoppel applicable only in cases where someone not a party to a prior action attempts to preclude relitigation of an issue already determined in that prior action; rather, we were simply extending the normal principles of res judicata and collateral estoppel to such situations. Thus, our discussion of the criteria for applying res judicata or collateral estoppel was not limited to the Schwartz fact pattern, but was, to the contrary, an exposition of basic principles. Indeed, we declared therein that the effect of our decision would be that "New York law will have arrived at a modern and stable statement of the law of res judicata” (Schwartz, supra, p 69).

Today’s decision, in contrast, heralds the disruption of that system. It apparently holds that the analysis and principles used in determining whether collateral estoppel is applicable will vary depending on whether the parties to the two actions are the same. This is an abrupt departure from precedent, which, until today, betokened an increasing reliance solely on the question whether the party against whom the estoppel is sought to be used has had "a full and fair opportunity to contest” the prior decision (see Schwartz, supra, p 71; B. R. DeWitt, Inc. v Hall, 19 NY2d 141, 145-146; Good Health Dairy Prods. Corp. v Emery, 275 NY 14, 18; Liberty Mut. Ins. Co. v Colon & Co., 260 NY 305, 312). This is not to say, of course, that the identities of and relationships between the parties are not to be considered in determining whether the application of issue preclusion is appropriate. As I will discuss below, these are very important factors in that determination; nonetheless, they are not dispositive, but are only some among many factors. Above all, although the result of this determination may in certain cases vary as a result of the relationship between the parties, the analysis and principles to be utilized in arriving at that result certainly should not so vary. Therefore, in the hope that today’s, decision is but a temporary aberration, and that the court will soon return to the stable system we have developed in prior cases, I will discuss the present case within the framework of a uniform theory of collateral estoppel or issue preclusion.

As I mentioned above, the seminal New York decision concerning collateral estoppel is Schwartz v Public Administrator of County of Bronx (24 NY2d 65, supra). There, this court held that a prior judgment in favor of a passenger against the drivers of two colliding automobiles gave rise to an estoppel which could be used by one driver to bar an action against him brought by the other. To reach this result, we specifically adopted "the full and fair opportunity test in applying the doctrine of collateral estoppel” (id., p 71). That test was described as follows (p 72): "A decision whether or not the plaintiff drivers had a full and fair opportunity to establish their nonnegligence in the prior action requires an exploration of the various elements which make up the realities of litigation. A comprehensive list of the various factors which should enter into a determination whether a party has had his day in court would include such considerations as the size of the claim, the forum of the prior litigation, the use of initiative, the extent of the litigation, the competence and experience of counsel, the availability of new evidence, indications of a compromise verdict, differences in the applicable law and foreseeability of future litigation”.

In the present case, the courts below held that Schwartz mandates application of collateral estoppel. I disagree. This is not to say that collateral estoppel is not normally applicable to arbitrations. The Schwartz rationale, however, comprehends a flexible approach to collateral estoppel, a balancing of the various factors enumerated above to determine whether the doctrine should be applied in a particular situation. In making this determination, moreover, it is necessary to consider the purpose of collateral estoppel—the prevention of repetitive litigation. "[C]are must be taken to restrict collateral estoppel to those situations in which the advantages to be derived from preventing relitigation will not be outweighed by the injustice that may result by foreclosing attack on prior determinations” (Developments in the Law-Res Judicata, 65 Harv L Rev 818, 840). Indeed, as we stated in Schwartz, "[n]o one would contend that the doctrine of collateral estoppel should be applied rigidly” (Schwartz, supra, p 73).

Analysis of the present case in light of the Schwartz criteria leads to the conclusion that this is not such a situation as to warrant an estoppel. The first consideration is the size of the claims in the two proceedings. In this case, the prior arbitration concerned a property damage claim of under $5,000, whereas the personal injury action may subject the insurer to a much greater liability. In reaching our decision in Schwartz, we carefully noted that the prior action there "did not involve claims for property damage amounting to but a few hundred dollars so that there would be no assurance that there was a vigorous fight on the issue of liability” (Schwartz, supra, p 72). It appears that the present case is in fact that which was distinguished in Schwartz. Indeed, this is further indicated by consideration of another Schwartz factor, the possibility that the prior judgment was a compromise. The insurance arbitration scheme in the present case has all the earmarks of a plan aimed at achieving just such a compromise. This is exemplified by the award itself; instead of the $4,704.51 requested by American, and which it had presumably already paid to its insured, the arbitrators awarded the apparently arbitrary figure of $1,202.12.

The arbitration proceeding involved no hearing, no calling of witnesses (none of the insureds participated nor did they have notice of the hearing), no briefs, no argument by representatives of either side; rather, it constituted merely a perusal of the files of the two companies, files not in the record, and files which apparently are not maintained after the arbitration. The award itself is vague—it consists of the bald statement that "questions of coverage [were] considered” and the award of an amount which appears to have been drawn out of a magician’s hat.

More significantly, it seems evident that it was not the intent of the parties to the arbitration agreement that it be given any collateral estoppel or res judicata effect other than with respect to the property damage award itself. The agreement is limited to property damage claims of under $5,000; by specific contract provision it is not to be utilized until all related claims or controversies are settled; again by contract, it does not involve the interests of the insurqds at all, and they are not even parties to the arbitration. In view of these provisions, it appears clear that neither party intended any estoppel effect. Rather, every effort was made to ensure that no opportunity for an estoppel would arise. Indeed, the property damage claim in the present case was actually submitted to the arbitrator erroneously: both insurance companies were under the mistaken belief that no other claim existed. American, the company which instituted the arbitration and which now seeks to give it collateral estoppel effect, incorrectly declared in its application for arbitration that no companion claims or other suits were pending. Certainly, the insured cannot be affected or bound by any error on their part. I shudder to think of possible collusion. There exists, moreover, another arbitration agreement specifically designed to provide a specialized forum for deciding whether a disclaimer is effective as between two insurance companies—the New York Uninsured Motorist Arbitration Agreement.

In interpreting an arbitration agreement, as in interpreting any contract, a court seeks to determine the intent of the parties as of the time they entered into the agreement. I believe this contract was carefully constructed so as to avoid the possibility of any unexpected collateral estoppel effect. Although the testimony of the parties as to what their intent was is not conclusive, it should nonetheless be considered if the intent is not clear from the face of the agreement. Here, I think the intent is clear. Even if the agreement is considered to be somewhat ambiguous, we have before us the statements of both parties and of the Committee on Insurance Arbitration, the body charged with interpreting and administering the agreement. All agree that the intent was to prevent estoppel from attaching. Under these circumstances, I do not think it would in any way limit Schwartz were we to find that no estoppel attached.

Indeed, to apply estoppel here does not further the purposes of the doctrine. Rather than preventing relitigation of issues already decided and the concomitant waste of both judicial effort and the time and money of the litigants, the effect of applying collateral estoppel here is to disrupt an effective and complex system of arbitration and thereby place upon the courts the additional burden of deciding innumerable disputes concerning small claims which are presently resolved via arbitration. Clearly, no insurance company will submit even a minor property damage claim to arbitration if it must fear that the results of that arbitration may return to haunt it in a subsequent personal injury action involving substantially higher amounts. We are here dealing with a system which provides a means of settling small disputes expeditiously and inexpensively. I see no reason to chance destroying the effectiveness of this system. It should be noted that a reversal here would not undermine in any way the res judicata effect to be afforded arbitral awards, nor would it limit the collateral estoppel effect of an arbitration conducted under an agreement which does not clearly indicate an intent that no estoppel attach. Thus, I believe reversal is appropriate under these circumstances.

Conspicuously absent in the present appeal, and, indeed, in most of this dispute, are the parties around whom it revolves —the insureds. Since the majority has affirmed, all insureds will in effect win in this case: Aetna will be unable to disclaim, Zook is insured, and the Messingers need not fear the possibility of being limited to their uninsured motorist benefits. If we had reversed, Aetna would have had an opportunity to litigate fully the question of the effectiveness of its disclaimer by traditional evidentiary means in an appropriate forum. If the disclaimer were then invalidated, the result would have been the same as it now is; if, however, the disclaimer were determined to be effective, Zook would not be insured and the Messingers would effectively be limited to their uninsured motorist coverage, which may be as little as $10,000 (see Insurance Law, § 167, subd 2-a). It is obvious that the interests of the insureds and their insurers are inextricably entangled in this situation. They are at one and the same time united in some aspects and adverse with respect to others. Although we have soundly rejected the doctrine of mutuality of estoppel, characterizing it as "a dead letter” (B. R. DeWitt, Inc. v Hall, 19 NY2d 141, 147, supra), this does not mean that we can simply ignore the complex relationship between the various parties in this case. What would have been the result had the arbitrators upheld the disclaimer? What will be the result if American seeks to give collateral estoppel effect not to the implicit finding that the disclaimer was ineffective, but rather to the equally implicit finding that Aetna’s insured was responsible for the accident? This is not the typical arbitration, in which the parties to the arbitration are the real and sole parties in interest. It is rather an attempt to settle between the insurers, the question of which company shall bear the burden of paying relatively minor property damage claims. It is an attempt to quickly resolve those minor claims of which it could truly be said that it is more important to all concerned that they be soon resolved than that they be correctly resolved. To give such a determination a collateral estoppel effect in subsequent litigation of much greater import to the parties is to give it an effect and a significance never intended by the parties, and one which may substantially impair the effectiveness of a complex arbitration agreement encompassing some 600 insurance companies.

Accordingly, the order of the Appellate Division should be reversed, without costs.

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

Order affirmed.

      . The Committee on Insurance Arbitration describes itself as "the governing body authorized by over six hundred signatory insurance companies throughout the United States and its possessions to administer, set policy for and resolve questions of jurisdiction as to the several inter-company arbitration facilities conducted under its auspices. In addition to the Nationwide Inter-Company Arbitration Agreement involved in this appeal, the Committee operates twenty-two other arbitration forums.”

      . The terms "res judicata” and "direct” and "collateral estoppel” have been used with varying meanings in different contexts. It is thought that both analysis and exposition will be advanced by recourse to the terminology adopted by the Restatement, Judgments (2d). Thus, by "claim preclusion” it is intended to refer to situations in which one of the parties to a prior action or proceeding is foreclosed in a second action or proceeding between the same parties from relitigating a claim or cause of action (not infrequently involving several discrete issues) which was the subject matter of the prior action or proceeding (op. tit., §§ 41-61.2). "Issue preclusion” refers to discrete issues of fact or law rather than to claims or causes of action, and may arise in either of two situations:—where the parties are the same and one is barred from relitigating an issue which was adjudicated in the prior action or proceeding between them (op. tit., § 68); or where the parties are not the same but nonetheless one of the parties to the subsequent action or proceedings is foreclosed in the second from relitigating an issue which was determined in the first action or proceeding (op. tit., § 88). The case now before us presents an instance of issue preclusion between the same parties. That is, American and Aetna were adversaries in the arbitration proceeding involving the property damage claim in which one issue was Aetna’s right to disclaim coverage. In the present, second action, in which Aetna and American are likewise adversaries but the claim is for personal injuries rather than for property damage, American seeks to preclude Aetna from relitigating the same issue—Aetna’s right to disclaim coverage.

      . In response to the concern expressed in the dissent for the interests of the insureds, we note that the Messingers (the only insureds whose economic interest may be involved) participated in the initial stages of the present litigation, but chose not to participate in the appeal in our court. Presumably they found the disposition at Special Term (affirmed at the Appellate Division and now by us) acceptable, perhaps preferring to look to the coverage afforded Zook by Aetna rather than to uninsured motorist coverage under their own policy. On the other hand had Aetna’s right to disclaim been upheld in the original property damage subrogation arbitration, there is no reason to assume that the Messingers would later have been bound thereby, since they were not parties to the arbitration proceeding and had no opportunity to litigate the issue.

       Restatement of Judgments, § 45, Comments c, d; § 68. See Developments in the Law—Res Judicata, 65 Harv L Rev 818, 820, n 1; Rosenberg, Collateral Estoppel in New York, 44 St John’s L Rev 165, 166; 9 Carmody-Wait 2d, NY Prac, Judgments, § 63:196, n 18; cf. Hinchey v Sellers, 7 NY2d 287, 293-294; Commissioners of State Ins. Fund v Low, 3 NY2d 590, 595-596.


author: Jasen, J.

text:
    Alfred Kahn, Respondent, v Miriam Kahn, Appellant.
    Argued October 4, 1977;
    decided November 22, 1977

      POINTS OF COUNSEL

      Richard H. Wels and Allan H. Carlin for appellant.
    I. A tenancy by the entirety may only be dissolved by death, divorce or consent. Since the parties hereto are alive and are still married, and there has been no consent, the action of the court below directing the sale of the property held by the entirety was erroneous and invalid and must be reversed. (Bertles v Nunan, 92 NY 152; Stelz v Shreck, 128 NY 263; Hiles v Fisher, 144 NY 306; Matter of Klatzl, 216 NY 83; Matter of Lyon, 233 NY 208; Huber v Huber, 26 Misc 2d 539; Anello v Anello, 22 AD2d 694; Ackerman v Ackerman, 45 AD2d 856; Ripp v Ripp, 38 AD2d 65, 32 NY2d 755.) II. The action of the court below modifying the findings and judgment of the trial court by reducing the award for prior support and necessaries from $30,188 to $15,000 without stating any reason therefor, and without setting forth new findings of fact with the same particularity as was employed by the trial court, failed to meet the requirements of CPLR 5612 (subd a) and 5712 (subd c), and was an abuse of discretion, and so must be reversed. (Fischer v Pan Amer. World Airways, 16 NY2d 725.) III. The record establishes that the court below erred in concluding that the trial court had counted twice funds which had been transferred from joint savings accounts to a checking account.

      Peter E. Bronstein and Eli H. Bronstein for respondent.
    I. Where a family cannot afford to maintain a jointly owned former marital residence, section 234 of the Domestic Relations Law permits the matrimonial court to direct a sale, notwithstanding that no other matrimonial relief is awarded. (Ripp v Ripp, 38 AD2d 65; Caplan v Caplan, 38 AD2d 572; Field v Field, 50 Misc 2d 732; Pearson v Pearson, 34 AD2d 797; Zahler v Zahler, 28 AD2d 925; Wages v Wages, 38 AD2d 968; Gleason v Gleason, 26 NY2d 28; Brownstein v Brown-

      stein, 25 AD2d 205; Watkins v Watkins, 19 AD2d 872.) II. The courts below modification of the award of necessaries did not require further findings of fact. (Phoenix Mut. Life Ins. Co. v Conway, 11 NY2d 367; Rover v Rover, 29 NY2d 408; People ex rel. Scarpetta v Spence-Chapin Adoption Serv., 28 NY2d 185; Holland v Blake, 31 NY2d 734.) III. Appellant is not entitled to a portion of respondent’s checking account because said account was never joint property.
   OPINION OF THE COURT

Jasen, J.

Appellant wife and respondent husband have been married since 1949. Respondent brought the present action for divorce on the ground of cruel and inhuman treatment. Appellant counterclaimed for a separation, for a share of jointly held bank accounts, and for payment of necessaries, support and counsel fees. During trial, the counterclaim for a separation was withdrawn.

Special Term dismissed respondent’s complaint and awarded appellant: (1) sole and exclusive possession of the marital home; (2) her interest in the jointly held bank accounts—an amount determined to be $22,058.89; and (3) payment for support and necessaries accruing from separation until the date of trial—a sum determined to be $30,188.

On appeal, the Appellate Division, although affirming the dismissal of respondent’s complaint, ordered that the marital premises be sold and the proceeds from the sale be divided according to the parties’ respective equities in the property. It also modified the judgment rendered by Special Term by reducing appellant’s share of the jointly held bank accounts by $3,374.43 and by reducing the award for necessaries and support to $15,000.

The principal issue presented on this appeal is whether, in a matrimonial action, a court may order the sale of real property held by the parties as tenants by the entirety, even though the marital relationship has not been legally altered.

At common law husband and wife were incapable of holding property as joint tenants or tenants in common. (Barber v Harris, 15 Wend 615, 617.) In contemplation of the law, husband and wife were but one person. (Matter of Klatzl, 216 NY 83, 85.) Thus, a conveyance to them by name was a conveyance to only one person. (Stelz v Shreck, 128 NY 263, 266; 15 NY Jur, Domestic Relations, § 145.) Because of the marital relationship they were said to be seized of the estate in its entirety: each being seized of the whole rather than of any undivided portion. (Bertles v Nunan, 92 NY 152, 156; Stelz v Shreck, 128 NY, at p 266, supra; Hiles v Fisher, 144 NY 306, 312; 15 NY Jur, Domestic Relations, § 145.) At death, the survivor took the estate not because of a right of survivor-ship, but because the survivor remained seized of the whole. (Bertles v Nunan, 92 NY, at p 156, supra; Jackson v McConnell, 19 Wend 175, 178; Stelz v Shreck, 128 NY, at p 266, supra.)

The common law soon recognized that in addition to death a legal dissolution of the unity of husband and wife would necessarily affect the continuing validity of a tenancy by the entirety. In holding that an absolute divorce terminates a tenancy by the entirety, Judge Peckham observed: "When the idea upon which the creation of an estate by the entirety depends is considered, it seems to me much the more logical as well as plausible view to say that as the estate is founded upon the unity of husband and wife, and it never would exist in the first place but for such unity; anything that terminates the legal fiction of the unity of two separate persons ought to have an effect upon the estate whose creation depended upon such unity.” (Stelz v Shreck, 128 NY, at p 267, supra.)

Upon termination of a tenancy by the entirety through divorce, the parties become tenants in common. (Stelz v Shreck, 128 NY, at p 267, supra; see, generally, 15 NY Jur, Domestic Relations, § 169; 41 Am Jur 2d, Husband and Wife, § 106.) Since an annulment also alters the legal relationship between husband and wife, it has also been held to result in a conversion of a tenancy by the entirety into a tenancy in common. (Matter of Kutick, 33 Misc 2d 580; 15 NY Jur, Domestic Relations, § 169.) Where, however, husband and wife separate without the aid of a judicial decree, they remain one legal person; and, therefore, they continue to own property acquired as tenants by the entirety just as they did prior to their separation. (See O’Connor v McMahon, 54 Hun 66, 70; 168 ALR 260.)

In 1962 our Legislature enacted section 234 of the Domestic Relations Law which provides in pertinent part: "In any action for divorce, for a separation, for an annulment or to declare the nullity of a void marriage, the court may (1) determine any question as to the title to property arising between the parties, and (2) make such direction, between the parties, concerning the possession of property, as in the court’s discretion justice requires having regard to the circumstances of the case and of the respective parties.” (L 1962, ch 313, § 10, as amd by L 1963, ch 685, § 5.)

Section 234 of the Domestic Relations Law was derived from section 1164-a of the Civil Practice Act (L 1953, ch 698). Unlike the present section, section 1164-a applied only in an action for a separation and made no reference to title questions. Its sole purpose was to allow a court to decide in the marital action the right of possession of real property held by the husband and wife as tenants by the entirety. Recognizing that a judgment of separation does not dissolve the marriage and terminate a tenancy by the entirety, the Legislature sought to prevent any injustice which might arise as a result of a spouse’s continued rights as a tenant by the entirety notwithstanding a judicial decree of separation. For example, a tenant by the entirety may sell, mortgage or lease his interest in the property without consent of the other tenant. The Legislature feared the obvious harm which could be caused by a vindictive spouse who transferred or encumbered his interest in the property in an attempt to harass the other spouse. (See 1953 Report of NY Law Rev Comm, pp 485-486.)

In addition to the prevention of harm by a vindictive spouse, section 1164-a was also enacted to overcome a procedural hurdle. Prior to this section, no authority existed to permit a court to adjudicate a real property right in a marital action. Section 1164-a was enacted to provide the specific statutory authority authorizing such an adjudication. (See 1953 Report of NY Law Rev Comm, pp 485-486.)

In 1962, the provisions of section 1164-a were transferred from the Civil Practice Act to the Domestic Relations Law. (L 1962, ch 313, § 10, as amd by L 1963, ch 685, § 5.) Contemporaneous with this transfer, the Legislature amended section 234 to permit a court in an action for divorce, annulment or declaration of the nullity of a void marriage, as well as in an action for a separation, to make a direction concerning possession of property and to determine any question of title to property arising between the parties. The principle reason for this amendment was to "make it unnecessary to bring a separate action or proceeding to determine questions relating to who has title to the property.” (Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 14, Domestic Relations, § 234, p 123 [1964].)

Although section 234 empowers a court to make a direction concerning possession of property, "as in the court’s discretion justice requires having regard to the circumstances of the case and of the respective parties”, the legislative history makes clear that the court may exercise its discretion only with regard to questions of possession. "[T]he determination of title questions [is] to be controlled by principles of property law.” (1963 Report of Joint Legislative Committee on Matrimonial and Family Laws, NY Legis Doc, No. 34, 1963, pp 84-85; Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 14, Domestic Relations, § 234, p 125 [1964]; 18 CarmodyWait 2d, NY Prac, Absolute Divorce, § 114:173, pp 640-641.)

Thus, the legislative history surrounding section 234 indicates clearly that the Legislature did not intend to alter existing substantive property law principles in enacting this section. Its essential purpose was procedural: to permit a court in a marital action to resolve disputes involving possession and title to property arising as an incident to the marital action.

In the case before us, the trial court dismissed respondent’s cause of action for a divorce. Although appellant counterclaimed for a separation, she withdrew her claim during the trial. Since the parties have not separated in conformance with a judicial decree, the marriage relationship has not been altered; the parties remain husband and wife in contemplation of the law. Consequently, under existing principles of property law, the tenancy by the entirety in which the parties own their marital home has not been terminated.

Ripp v Ripp (32 NY2d 755, affg 38 AD2d 65) is not to the contrary. There, the Appellate Division held that a divorce decree which awarded exclusive possession of the marital home to one of the parties constituted a bar, absent a modification of the decree, to a subsequent action for partition of the marital home owned by the parties as tenants by the entirety. The court recognized that to allow an action for partition would frustrate the legislative purpose behind the enactment of section 234—i.e., to allow the marital court to determine in that action who should be awarded exclusive possession of the marital home. (38 AD2d, at p 67, supra.)

Plaintiff directs the court’s attention to a number of decisions which he contends support the Appellate Division’s order compelling the sale of the marital premises. (See, e.g., Caplan v Caplan, 38 AD2d 572; Pearson v Pearson, 34 AD2d 797, mot for lv to app den 27 NY2d 486.) In each of these cases, however, a separation was granted to one of the parties. Although a separation decree does not dissolve the marriage, it can be argued that such a decree does legally alter the marital relationship and, thus, terminates a tenancy by the entirety enabling a court to order the sale of a home now owned by the parties as tenants in common.

Prior to the order of the Appellate Division in the present case, only two courts have ordered the sale of a marital home owned by the parties as tenants by the entirety, notwithstanding the absence of a judicial decree which, at the very least, altered the marital relationship by granting one of the parties a separation. (See Wages v Wages, 38 AD2d 968; Field v Field, 50 Misc 2d 732.) Absent such a decree, however, we believe that a tenancy by the entirety is not terminated. Since section 234 was intended only as a procedural device to permit a court in a marital action to determine questions of possession and title arising within that action, and was not intended to alter existing substantive property law principles, we hold that unless a court alters the legal relationship of husband and wife by granting a divorce, an annulment, a separation or by declaring a void marriage a nullity, it has no authority to order the sale of a marital home owned by the parties as tenants by the entirety.

Appellant also alleges that the Appellate Division erred in reducing the award for necessaries and support granted by the trial court to $15,000. The basis of the alleged error lies in the fact that although the Appellate Division stated that its modification was on the law and the facts, it did not set forth any new findings of fact. Instead, the Appellate Division stated only that "[u]nder the circumstances of this case, the award for prior support and necessaries should be reduced to $15,000.” (55 AD2d 638, 639.)

Whenever the Appellate Division modifies a trial court determination stating that its modification is on the law and the facts, it must specify the findings of fact modified and set forth any new findings of fact that it makes with the same particularity as did the trial court. (CPLR 5712, subd [c], par 2.) However, it need not do so where its modification is based upon an exercise of discretion. Here, the Appellate Division did consider the facts as found by the trial court, but elected to modify and set forth a new ultimate finding of fact—viz., that appellant was entitled to $15,000 rather than $30,188 for support and necessaries. Since the Appellate Division modified the award "upon the circumstances of this case”, it must be said that it did so in its discretion. For this reason, findings of fact upon which the ultimate award was calculated were not necessarily modified and need not have been specifically referred to by the Appellate Division. Because it is clear that the Appellate Division did consider the facts found by the trial court, but modified the ultimate award in its discretion, there is no need to reverse and remit to the Appellate Division to make new findings of fact.

Finally, appellant also contends that the Appellate Division erred in reducing her share of the jointly held bank accounts by $3,374.43. With this contention we are in agreement. At the time of the parties’ separation, they maintained a number of jointly held accounts in various banks. In reducing appellant’s share of these accounts, the Appellate Division erroneously concluded that the funds deposited in a checking account in Chemical Bank had been counted twice by the trial court in determining appellant’s share.

Respondent testified that contemporaneous with the parties’ separation in August of 1973, he closed a joint checking account which the parties maintained at First National City Bank. Prior to the formal closing of the account, however, respondent transferred the contents of the account he opened in his own name in First National City Bank. Dissatisfied with First National City’s service, respondent opened an account in his own name at Chemical Bank and transferred these same funds to that account.

It is these funds which the Appellate Division concluded had been counted twice by the trial court in determining appellant’s share of the parties’ joint accounts. We cannot agree with this conclusion. Nothing in the record would indicate that the funds formerly located in the account in First National City were included in the trial court’s calculations. In fact, the trial court specifically listed each account which it included as an account jointly held by the parties at the date of their separation; the First National City account is absent from this list. Consequently, when the trial court included in its calculations the funds deposited in the account opened by respondent in Chemical Bank, it took into consideration for the first, and only time, the funds deposited in that account.

Accordingly, the order of the Appellate Division should be reversed in so much as it directed that the marital premises be sold and reduced appellant’s share of the joint bank accounts by $3,374.43, and as so modified, is affirmed, with costs.

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

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