author: Chief Judge Kaye.

text:
    [678 NE2d 878, 656 NYS2d 192]
    The People of the State of New York, Respondent, v Martin Greenberg, Appellant.
    Argued February 5, 1997;
    decided March 25, 1997

      POINTS OF COUNSEL

      Speiser & Heinzmann, White Plains {Joseph C. Heinzmann, Jr., of counsel), for appellant.

      Robert M. Morgenthau, District Attorney of New York County, New York City {Judy C. Seiff and Paul Harnisch of counsel), for respondent.
   OPINION OF THE COURT

Chief Judge Kaye.

An offense committed on board a common carrier may be prosecuted in any county through which the carrier passed during the trip (CPL 20.40 [4] [f]). Does this statute allow defendant to be tried in New York County for offenses committed on a commuter train from Westchester to New York County, where it is undisputed that the offenses took place wholly in Westchester? We conclude that New York County was a proper place of trial.

In March 1993, defendant boarded a Metro-North commuter train to New York City in Westchester County. He displayed a weekly pass to the conductor, who, believing it looked suspicious, asked to see the pass again after collecting several other tickets. This time, defendant produced a valid one-way ticket. The conductor, however, asked again for the weekly pass. Defendant complied, and the conductor determined that the pass was a forgery. While still in Westchester County, the conductor seized the pass. Defendant was arrested when the train arrived in New York City.

Defendant was tried without a jury in New York County for criminal possession of a forged instrument in the third degree and theft of services. The parties stipulated during trial that defendant had displayed the forged train pass in Westchester County. At the close of the People’s direct case, defendant moved for a trial order of dismissal on the ground that the People had failed to prove that New York County was the proper venue for trial. The People countered that CPL 20.40 (4) (f) authorized prosecution in New York County. Reserving decision on defendant’s motion, Criminal Court found defendant guilty of the charged offenses.

The court subsequently granted defendant’s motion and set aside the verdict. Relying on People v Moore (46 NY2d 1), the court held that CPL 20.40 (4) (f) did not apply, because the county in which the crime was committed could be ascertained. The Appellate Term reversed, reinstated the verdict and remitted for sentencing. We now affirm.

Under our State Constitution and common law, a defendant has the right to be tried in the county where the crime was committed unless the Legislature has provided otherwise (see, NY Const, art I, § 2; People v Ribowsky, 77 NY2d 284, 291; People v Hetenyi, 277 App Div 310, 313, affd 301 NY 757). The burden is on the People to prove at trial either that the county of prosecution is where the crime was committed or that a statutory exception applies. The place of the crime and any other fact relevant to venue, moreover, are questions to be determined by the trier of fact (People v Ribowsky, 77 NY2d at 291-292; People v Moore, 46 NY2d 1, 6-7, supra). Venue is not an element of the offense, however, and need only be established by a preponderance of the evidence (see, People v Tullo, 34 NY2d 712, 714).

Initially, we reject the People’s contention that defendant waived any defect by failing to object to the county of prosecution prior to trial. To be sure, venue issues — which relate only to the proper place of trial, rather than to the power of the court to hear and determine the case — are waivable (see, People v McLaughlin, 80 NY2d 466). Failure to request a jury charge on venue thus amounts to waiver (see, People v Moore, 46 NY2d at 7; Preiser, Practice Commentaries, McKinney’s Cons Laws of NY, Book 11 A, CPL 20.40, at 106). Where, however, the appropriate charge is requested, it is improper for the trial court to refuse to submit the factual issue to the jury — even if the defendant does not contradict the People’s proof with respect to venue (see, People v Moore, 46 NY2d at 7).

Here, by pleading not guilty, defendant triggered the People’s burden of proving that prosecution in New York County was proper, and venue became a question for the trier of fact (see, id.; People v Hetenyi, 277 App Div at 313-314, supra). Since defendant was tried without a jury, it sufficed that he alerted the court at the close of the People’s direct case, prior to its deliberation, to the People’s alleged failure to establish that New York County was the appropriate venue. Indeed, it would be absurd to require defendant to have raised the venue issue, which relates to the People’s lack of proof at trial, prior to the commencement of trial.

The People’s reliance on the statutory provisions governing pretrial motion practice is misplaced. Under those provisions, motions to remove the action pursuant to CPL 170.15 or CPL 230.20 must be made before trial (see, CPL 255.10 [1] [e]; CPL 255.20 [1]). CPL 170.15 authorizes a change of venue in a non-felony case on the ground that disposition within a reasonable time is unlikely due to certain specified factors, such as disqualification of all the Judges of the local criminal court (see, CPL 170.15 [3] [a], [b]). CPL 230.20 (2) allows change of venue in cases prosecuted by indictment where there is "reasonable cause to believe that a fair and impartial trial cannot be had in such county.” These removal provisions are simply inapplicable to the instant case. Thus, defendant did not waive any defect in venue by failing to object before trial to prosecution in New York County.

Turning to the merits, it is undisputed that the offenses were committed in Westchester County, and the sole question is whether CPL 20.40 (4) (f) authorized prosecution in New York County. That section sets forth the "common carrier exception” to venue:

"An offense committed on board a railroad train, aircraft or omnibus operating as a common carrier may be prosecuted in any county through or over which such common carrier passed during the particular trip, or in any county in which such trip terminated or was scheduled to terminate.”

Since the train on which defendant was a passenger traveled through New York City and the trip also terminated there, the plain language of the statute would seem to allow trial in New York County.

Defendant, however, argues that People v Moore (46 NY2d 1, supra) limits the common carrier exception to situations where the location of the crime cannot be determined. Moore involved the application of paragraph (g) of CPL 20.40 (4). That section addresses venue for prosecuting an offense committed during a trip in a private vehicle and provides:

"An offense committed in a private vehicle during a trip thereof extending through more than one county may be prosecuted in any county through which such vehicle passed in the course of such trip.”

In Moore, the defendant drove from Brooklyn to Queens and back to Brooklyn, but the complainant specified that the alleged crimes took place in the car while it was parked in Queens County. This Court held that prosécution in Kings County was improper, concluding that paragraph (g) — the "private vehicle exception” — did not apply where the alleged crime occurred in an ascertainable location. In reaching this conclusion, the Court noted that the purpose of the private vehicle exception was to ensure a forum for prosecution in those cases where it was impossible to determine in what county an offense committed during an automobile trip actually occurred. Where the site of the crime could be identified, however, the statutory exception was unnecessary and, thus, inapplicable (see, 46 NY2d at 7-8).

Defendant now asks us to extend the same rationale to the common carrier exception. The purpose of the common carrier exception is also to overcome obstacles to prosecution in cases where the location of the offense cannot be precisely determined. Given the similarity between the language and purpose of the two subdivisions, defendant’s argument is not without merit.

Nevertheless, we decline to extend Moore’s restrictive reading of paragraph (g) to paragraph (f). Our unwillingness to expand the scope of Moore is largely due to the absence of any support for such a limitation in the plain, unambiguous language of section 20.40 (4) (f) itself.

There is, moreover, a notable distinction between the private vehicle exception and the common carrier exception. As the Court explained in Moore, the private vehicle exception was adopted in 1971 as part of the reformulation of the former Code of Criminal Procedure and "had no counterpart in prior law” (People v Moore, 46 NY2d at 7-8, supra). The common carrier exception, by contrast, has been in existence since 1877 (see, L 1877, ch 167, § 1), and its history indicates that the venue provision was meant to apply to all offenses committed during trips on common carriers, regardless of whether the precise site of the crime could be determined.

The 1877 predecessor to the common carrier exception applied only to offenses committed "in or on board of any railroad train or railroad car making any passage or trip on or over any railroad in this state, or in respect to any portion of the lading or freight of any such railroad train or railroad car” (L 1877, ch 167, § 1). Like CPL 20.40 (4) (f), the statute authorized prosecution "in any county through which, or any part of which, such railroad train or railroad car shall pass, or shall have passed, in the course of the same passage or trip, or in any county where such passage or trip shall terminate or would terminate if completed” (id.).

Significantly, the 1877 law further specified that indictment, trial, conviction and sentencing could take place "in any such county, in the same manner and with the like effect as in the county where the offense or crime was committed” (id. [emphasis added]) — thereby recognizing its application regardless of whether it was possible to identify the county of commission. This Court, moreover, applied the venue statute even where the location of the offense could be ascertained (see, e.g., People v Dowling, 84 NY 478 [allowing prosecution pursuant to the 1877 law in Schenectady County, notwithstanding the defendant’s argument that the offense took place in Albany County and could only be tried there]).

The substance of the 1877 "railroad exception” was incorporated into the Code of Criminal Procedure, where it was eventually amended to adapt to new modes of transportation (see, Code Grim Pro § 137 [amended L 1938, ch 170]). The current common carrier exception in the CPL simply "restates” the former Code provision (Commn Staff Comment to Proposed CPL 10.40 [4], now CPL 20.40 [4]). Consequently, there is no basis for concluding that the drafters of CPL 20.40 (4) (f) intended to depart from the historical meaning and application of the common carrier exception.

We therefore conclude that the common carrier exception should be applied in accordance with its plain language. Here, that language authorized prosecution of defendant in New York County.

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

Judges Titone, Bellacosa, Smith, Levine, Ciparick and Wesley concur.

Order affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    [678 NE2d 882, 656 NYS2d 196]
    The People of the State of New York, by Dennis C. Vacco, as Attorney-General of the State of New York, Respondent, v Alamo Rent A Car, Inc., Appellant. The People of the State of New York, by Dennis C. Vacco, as Attorney-General of the State of New York, Respondent, v Budget Rent A Car Corporation, Appellant. The People of the State of New York, by Dennis C. Vacco, as Attorney-General of the State of New York, Respondent, v Hertz Corporation, Appellant. The People of the State of New York, by Dennis C. Vacco, as Attorney-General of the State of New York, Respondent, v National Car Rental System, Inc., Appellant. The People of the State of New York, by Dennis C. Vacco, as Attorney-General of the State of New York, Respondent, v Avis Rent A Car System, Inc., Appellant. The People of the State of New York, by Dennis C. Vacco, as Attorney-General of the State of New York, Respondent, v Enterprise Rent A Car, Inc., Appellant. The People of the State of New York, by Dennis C. Vacco, as Attorney-General of the State of New York, Respondent, v Dollar Systems, Inc., Appellant. The People of the State of New York, by Dennis C. Vacco, as Attorney-General of the State of New York, Respondent, v Thrifty Car Rental, Inc., Appellant.
    Argued February 6, 1997;
    decided March 27, 1997

      POINTS OF COUNSEL

      Cravath Swaine & Moore, New York City (Paul C. Saunders and. Seth D. Gross of counsel), Saretsky Katz & Dranoff, P. C. (Alan G. Katz of counsel), LeBoeuf, Lamb, Greene & MacCrae (Taylor R. Briggs and Lorna McKenzie of counsel), Lankier Siffert & Wohl (John S. Siffert and Jennifer A. T Grace of counsel), Rivkin, Radler & Kremer, Uniondale (Kenneth A. Novikoff of counsel), and Constantine & Partners, New York City (Lloyd Constantine, Mitchell C. Shapiro and Leslie Spasser of counsel), for appellants.

      Dennis C. Vacco, Attorney-General, New York City (Thomas G. Conway, Barbara Gott Billet, Thomas Hughes, Shirley F. Sarna and Dina Piergrossi of counsel), for respondents.
   OPINION OF THE COURT

Chief Judge Kaye.

Directed at ending discrimination by car rental companies against young drivers, General Business Law § 391-g specifies that it is unlawful to refuse to rent motor vehicles to persons 18 or over solely on the basis of age "provided that insurance coverage for persons of such age is available.” Is the New York Automobile Insurance Plan (NYAIP) "available” insurance coverage within the meaning of the statute? We agree with the trial court and Appellate Division that claimed shortcomings in NYAIP’s coverage are of no consequence under General Business Law § 391-g, or can be accommodated in the rental rates, and that the Plan is indeed "available” insurance within the statute.

Appellants are car rental companies doing business in New York State who refuse to rent cars to drivers under the age of 25. Some only refuse to rent cars to drivers younger than 21. To the extent appellants refuse to rent to these young drivers, they potentially run afoul of General Business Law § 391-g ("Rental of motor vehicles; discrimination on the basis of age prohibited”)which states that:

"It shall be unlawful for any person, firm, partnership, association or corporation engaged in the business of renting motor vehicles to refuse to rent such vehicle to any person eighteen years of age or older solely on the basis of age provided that insurance coverage for persons of such age is available. Any actual extra cost for insurance related to the age of the person renting such motor vehicle may be passed on to such person.” (General Business Law § 391-g [1] [emphasis added].)

Before 1994, the Attorney-General did not seek to enforce this statute against appellants, because of the requirement that there be insurance "available” to cover the costs of renting to young drivers. With a higher incidence of accidents and therefore increased liability for this group, commercial carriers did not provide such coverage and therefore it appeared that no insurance was available.

NYAIP is the assigned risk plan approved by the Superintendent of Insurance for the equitable apportionment, among insurers licensed to insure motor vehicles in New York, of applicants who cannot obtain insurance coverage in the voluntary market (see, Insurance Law § 5301). Thus, rental companies otherwise unable to obtain insurance could do so through NYAIP. Under NYAIP, the available coverage includes (a) bodily injury liability coverage, up to $250,000 per person or $500,000 per accident; (b) third-party property damage liability coverage, up to $100,000; (c) personal injury protection or no-fault (including additional personal injury protection) up to $125,000 for first-party medical and rehabilitation costs as well as basic economic loss; and (d) uninsured motorist coverage, up to $250,000 per person and $500,000 per accident. Significantly, NYAIP does not provide coverage for physical damage to the vehicles. It also does not provide coverage based on a specific age group, but rather for individual vehicles, provided that those vehicles are registered in New York State.

On the theory that NYAIP was available insurance under General Business Law § 391-g, in 1994 the Attorney-General commenced this suit seeking a declaratory judgment, permanent injunctive relief prohibiting appellants from refusing to rent cars to persons between the ages of 18 and 25 solely on the basis of age, and penalties (see, General Business Law § 391-g [2] [permitting penalties of up to $500 for each violation]). Supreme Court granted a summary determination for the People, and the Appellate Division affirmed, certifying to us the question: "Was the order of the Supreme Court, as affirmed by this Court, properly made?” We now answer that question in the affirmative.

Appellants do not dispute that under NYAIP they can purchase insurance to cover their vehicles if they are willing to pay the premiums. Instead, their arguments are addressed to the sizable negative financial impact that use of NYAIP would have on them. They claim that in light of the higher frequency and greater severity of accidents involving young drivers, the Plan’s coverage limitations are too low. They also argue that NYAIP does not provide coverage for physical damage to vehicles, which will almost certainly rise with rentals to young drivers and would likely constitute the highest monetary loss for such rentals.

Appellants’ arguments are misplaced. The language of General Business Law § 391-g does not evince an intent to protect rental companies from these added costs, beyond allowing the companies to pass the cost of additional insurance on to the young renters. The only condition the statute places on its antidiscrimination provision is that insurance coverage must be available. Noticeably absent is a requirement that rental companies be fully insured for the risks of renting to young drivers. Nowhere does the statute require a specified minimum amount of insurance coverage. Although appellants would like to expand the meaning of "available” to include special protections for their business risk exposures, their position finds no support in the statute.

Urging that section 391-g is ambiguous, appellants point us to the legislative history, which also fails to support their arguments. The intent of the section was not to protect rental companies who comply with the statute — as appellants contend — but rather to prohibit rental companies from refusing to rent to persons over the age of 18 on the basis of age. As explained by the bill’s chief sponsors, "[i]n many circumstances, companies which rent motor vehicles refuse to rent to individuals between 18 and 21 years of age. This can result in severe hardship to competent drivers who are as safe and reliable as drivers over age 21” (Mem of Senator Joseph Pisani and Assemblyman Richard Gottfried, Bill Jacket, L 1977, ch 136; see also, Mem of Assemblyman Gottfried, Bill Jacket, L 1977, ch 136 [urging Governor to sign bill "thus entitling young adults to their full rights as competent citizens of this State”]; Mem of Senator Pisani, 1977 NY Legis Ann, at 113).

True, the statute and legislative history speak of allowing rental companies to pass along the increased cost of insurance {see, Mem of Senator Pisani and Assemblyman Gottfried, Bill Jacket, L 1977, ch 136; Report of New York County Lawyers’ Association, Bill Jacket, L 1977, ch 136 ["(t)his bill sufficiently protects the interests of (the rental company) by allowing the increased cost of insurance based on the renter’s age to be passed on to the renter”]). That is hardly indicative of a legislative intent to provide shelter for the rental companies from the kind of economic disadvantage they tender in the argument of this case. A more persuasive reading of this provision is to create a safe harbor for rental companies — that it is not discriminatory to charge young drivers more to offset higher insurance costs.

While appellants correctly point out that NYAIP does not provide insurance for physical damage to vehicles, they erroneously conclude that this lack of coverage prevents the Plan from being considered available insurance. The statute, however, does not require that available insurance include physical damage coverage. Even Vehicle and Traffic Law § 370, which sets the minimum insurance standards for vehicles in New York, does not require such coverage.

Finally, appellants’ contention that passing along the added insurance costs to the young renters would lead to prohibitively high rental costs is unsupported in the record. To the contrary, the record indicates that other rental companies doing business in New York regularly rent to young drivers with only a minimal surcharge. Moreover, the statute does not require that appellants use NYAIP — it requires only that insurance be available. The record reveals that seven of the eight appellants presently self-insure their vehicles, four of the seven currently renting to drivers between ages 21 and 25, presumably without NYAIP coverage and maintaining a profit. Appellants’ remaining contentions lack merit.

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

Judges Titone, Bellacosa, Smith, Levine, Ciparick and Wesley concur.

Order affirmed, etc.

      . We note that the minimum amount of insurance coverage required for cars in New York is $25,000 per individual and $50,000 per accident bodily injury liability coverage, as well as $10,000 property damage liability coverage (Vehicle and Traffic Law § 370 [1]). NYAIP provides coverage 10 times greater than these statutory mínimums.

      . As noted in the legislative history, rental companies are encouraged to take active steps to deny rentals based on individualized criteria such as a poor driving record (see, Mem of Senator Pisani and Assemblyman Gottfried, Bill Jacket, L 1977, ch 136). A resultant drop in accident rates not only would decrease the rental companies’ liability for injuries and damage to their vehicles but also would obviously be generally beneficial.


author: Smith, J.

text:
    [678 NE2d 1211, 656 NYS2d 599]
    In the Matter of Alice Claudio, Appellant, v Michael Dowling, as Commissioner of the New York State Department of Social Services, et al., Respondents. Elba Vera et al., Individually and on Behalf of all Other Persons Similarly Situated, Appellants, v Michael Dowling, as Commissioner of the New York State Department of Social Services, et al., Respondents.
    Argued January 6, 1997;
    decided February 18, 1997

      POINTS OF COUNSEL

      Eugene Prosnitz, Steven Godeski, Marshall Green, Ian F. Feldman, Bronx, Collin D. Bull and Joshua E. Goldfein, New York City, for appellants in the first above-entitled proceeding and second above-entitled action.

      Dennis C. Vacco, Attorney-General, New York City (Kathleen P. Murray, Barbara Billet, Thomas Donald Hughes and Darrell M. Joseph of counsel), for respondents in the first above-entitled proceeding and second above-entitled action.
   OPINION OF THE COURT

Smith, J.

The primary issue in these appeals is whether foster parents have standing to request a fair hearing from the State when the City denies or fails to act on a foster parent’s request for foster care maintenance payments at a particular rate and the children cared for no longer reside with the foster parents at the time the request for a fair hearing is made. We conclude that foster parents have standing to request a fair hearing under these circumstances.

Background

The Federal Adoption Assistance and Child Welfare Act (42 USC §§ 670-679) provides financial assistance to States that provide foster care and transitional independent living programs to certain eligible children (42 USC § 670). Such assistance is extended to "States which have submitted, and had approved by the Secretary, State plans under this part” (id.). By definition, such plans must include provisions for

"assuring that the child receives proper care and that services are provided to the parents, child, and foster parents in order to improve the conditions in the parents’ home, facilitate return of the child to his own home or the permanent placement of the child, and address the needs of the child while in foster care, including a discussion of the appropriateness of the services that have been provided to the child under the plan” (42 USC § 675 [1] [B]).

One of the requirements which must be satisfied by State plans in order for the State to qualify for Federal funds is the condition that the plan provide for foster care maintenance payments "with respect to a child” who meets certain criteria (42 USC §§672, 671 [a] [1]). Federal law also provides that foster care maintenance payments may be made "on behalf of a child” who is "in the foster family home of an individual, whether the payments therefor are made to such individual or to a public or nonprofit private child-placement or child-care agency” (42 USC § 672 [b] [1]).

New York State reimburses local social service districts, such as New York City, for expenditures on foster care programs with funds partially derived from Federal sources. Accordingly, the Social Services Law provides that after the "amount of federal funds, if any, properly received or to be received” for foster care services have been distributed to local districts, the State will pay varying portions of certain costs "after first deducting therefrom any federal funds properly received or to be received on account thereof’ (Social Services Law § 153 [1]).

The New York State Department of Social Services (State DSS) administers the reimbursement program in accordance with "Standards of Payment for Foster Care of Children” promulgated by the Department (see, 18 NYCRR part 427). These standards provide that, "State reimbursement must be made only on actual payments to certified or approved foster parents providing care for children in foster family boarding homes up to the maximum levels established by the department for normal, special and exceptional foster care services” (18 NYCRR 427.6 [b]).

State DSS has also promulgated regulations pertaining to "eligibility criteria for receipt cf federally reimbursable foster care maintenance payments” (18 NYCRR 426.1; see generally, 18 NYCRR part 426). Since Federal funds are available for expenditures on some, but not all, of the children in a State’s foster care system, State DSS regulations acknowledge that only certain payments for foster care services fall under the Federal Act (see, 18 NYCRR 426.3, 426.4).

While local service districts may set the rates paid to foster parents (subject to certain ceilings) for the provision of normal, special and exceptional levels of foster care, reimbursement for expenditures on such services may occur only after approval by State DSS (18 NYCRR 427.6 [c], [d], [e]). State DSS has established specific criteria relating to the eligibility of foster parents for such reimbursement rates and the classification of foster care services as special or exceptional (id.).

Matter of Claudio v Dowling

In September 1991, the New York City Department of Social Services (City DSS) placed three children adjudged abused or neglected pursuant to article 10 of the Family Court Act with appellant, a licensed foster care provider. Appellant received the standard, "normal” foster care reimbursement rate for these children.

Three weeks after the children were placed in her home and while the children were in her care, appellant requested foster care benefits at the higher rate of reimbursement available for special needs children. However, it was not until several months into the placement that two of the children were evaluated by a psychiatrist who found that one child was emotionally disturbed and that the other was learning disabled. Appellant received payment at the higher special needs rate for one child for a period of one month. All three children left appellant’s household on October 29, 1992 and reunited with their biological parents.

Since City DSS had not responded to her requests for reimbursement at the special needs rate and because of the special expenditures incurred in caring for these children, appellant continued to seek such reimbursement after the children were returned to their biological parents. Finally, on August 13, 1993, after failing to receive a response from the City, appellant requested a fair hearing from the State to review the adequacy of the foster care maintenance payments.

Vera v Dowling

On May 10, 1988, City DSS placed two children with appellant Vera, a licensed foster care provider. The children, who had been adjudged abused or neglected pursuant to article 10 of the Family Court Act, resided with the appellant for 21/2 years. Shortly after the placement, appellant observed behavioral problems and the children were referred for psychological evaluation. A psychologist determined that both children had serious emotional and behavioral problems. Appellant received the standard rate of reimbursement for the duration of the placement except for a four-month period when she received the special needs rate for one child.

On November 21, 1990, the children were removed from appellant’s home and returned to their biological parents. Thereafter, appellant learned of the higher reimbursement rate for care provided to special needs children and she requested the higher rate for the entire period the children were under her care. Appellant Vera requested a fair hearing to review the adequacy of the City’s payments on February 23, 1993.

City DSS placed five children who had been adjudged abused or neglected under article 10 of the Family Court Act with appellant Velez, a licensed foster care provider. Three of the children suffered from sickle cell anemia and severe asthma. Appellant received the special needs rate from June 15, 1989 to June 15, 1990 for one child because he entered foster care directly from a hospital (see, 18 NYCRR 427.6 [c] [6]). Appellant received the standard rate of reimbursement for the remaining children.

Two of the children left appellant’s care in the spring of 1989. A third child left in May 1991 and the two remaining children were removed from foster care on March 27, 1991. On February 23, 1993, appellant requested a fair hearing from the State to review the adequacy of the City’s payments for the level of care rendered to all five of these children.

Procedural History

Separate fair hearings were conducted for each appellant. In each case, the Commissioner of State DSS determined that since the children no longer resided with the foster parents at the time the fair hearing was requested, the agency was without jurisdiction to determine the adequacy of the reimbursement. Appellant Claudio brought a CPLR article 78 proceeding challenging the Commissioner’s disclaimer of jurisdiction. Supreme Court granted appellant’s petition to the extent of remanding the matter for an administrative hearing on the merits of appellant’s claim. Since the fact that the children no longer resided with appellant could not affect the character of the service provided, as the foster care services had already been rendered, the court held that appellant had standing to seek reimbursement at the higher special needs rate. The court also observed that Federal law entitled foster parents to administrative hearings in these circumstances.

Appellants Vera and Velez challenged the Commissioner’s determination in a class action lawsuit which sought a declaratory judgment under CPLR 3001. Supreme Court granted summary judgment to the respondents and dismissed the action on the ground that appellants lacked standing to seek review of the reimbursement rate once the children in their care had been removed.

On appeal, the Appellate Division, which considered the cases together, reversed in Claudio and affirmed in Vera. The Court concluded that "former foster parents” lack standing to seek review of foster care reimbursement rates once the children have been removed from their foster homes (222 AD2d 258, 259). The Appellate Division also concluded that Federal law required that foster parents be provided with a fair hearing only if the foster child resides in the foster care household at the time the request for a fair hearing is made. We granted appellants leave to appeal to this Court.

Appellants contend that foster parents have standing to seek a fair hearing on the adequacy of the City’s reimbursement for expenses incurred in providing foster care services, even if the child no longer resides in the foster care household. Respondents contend that the State lacks standing to review the adequacy of such reimbursements unless the child resides with the foster parent at the time a request for a fair hearing is made.

Analysis

Appellants’ contention that they have standing to request a fair hearing from the State under the circumstances here is supported by both Federal and State law.

The Federal aid program provides that a State must grant "an opportunity for a fair hearing before the State agency to any individual whose claim for benefits available pursuant to [the Federal Adoption Assistance and Child Welfare Act] is denied or is not acted upon with reasonable promptness” (42 USC § 671 [a] [12]). The plain meaning of this statute provides for fair hearings to foster parents who, like appellants, seek review of alleged underpayments of foster care benefits.

The Sixth Circuit Court of Appeals has held that the category of "any individual” in section 671 (a) (12) includes foster parents and that the benefits referred to in that section "include foster care maintenance payments to licensed foster parents” (Timmy S. v Stumbo, 916 F2d 312, 315). Although Timmy S. is instructive on the matter before us, we conduct our own analysis of the applicable statutory and regulatory schemes.

Under the Federal aid program, a State’s case plan, by definition, provides "services” to foster parents (42 USC § 675 [1] [B]). Such a plan must also provide for the payment of foster care maintenance payments with respect to certain children (42 USC § 671 [a] [1]; § 672). Because foster parents are beneficiaries of case plans, appellants fall within the category of "any individual.” As these disputes concern foster care maintenance payments, they arguably concern "benefits available” pursuant to the Federal Act. Moreover, nowhere does the statute limit the time in which such a hearing can be requested, and nowhere does the statute exclude foster parents, such as appellants, from the class of "individuals.”

The legislative history of the Act also indicates that Congress intended the mandatory Federal regulations pertaining to fair hearings in the Federal Aid to Families with Dependent Children program, which encompassed foster care payments under the previous statutory scheme, be applicable to the Act (HR Conf Rep No. 900, 96th Cong, 2d Sess, reprinted in 1980 US Code Cong & Admin News 1561, 1563, 1565). The regulations of the Federal Department of Health and Human Services, the agency charged with enforcement of the Act, further provide that "[a]n opportunity for a hearing shall be granted to any applicant who requests a hearing because his or her claim for financial assistance * * * is denied, or is not acted upon with reasonable promptness, and to any recipient who is aggrieved by any agency action” (45 CFR 205.10 [a] [5]; 1356.20 [a]; 1355.30 [p] [2]; see also, 205.10 [a] [2] [providing that "the State shall assure that the applicant or recipient is afforded all rights as specified in this section”]).

Finally, under Federal law, foster parents in appellants’ circumstances may be considered "recipients” entitled to a fair hearing. Since foster care payments always are made as reimbursements, the foster parent may logically be considered the recipient of "payments to cover the cost of* * * food, clothing, shelter, daily supervision, school supplies, a child’s personal incidentals [etc.]” (42 USC § 675 [4] [A]) and thus entitled to a fair , hearing.

The State’s reimbursement program additionally provides support for the conclusion that appellants have standing to seek a fair hearing on the payment issue here, that is, whether the foster parents received the proper rate of reimbursement for the level of care actually rendered to the children.

The State provides an applicant or recipient of "assistance, benefits or services” (18 NYCRR 358-3.1 [b]) with the right to a fair hearing "to challenge certain determinations or actions of a social services agency or such agency’s failure to act with reasonable promptness or within the time periods required” (18 NYCRR 358-3.1 [a]). Upon approval by the State, the City’s payments for special and exceptional foster care services "made on behalf of foster children” are eligible for reimbursement (18 NYCRR 427.6 [c], [d]). State regulations further provide that payments made by social services districts "for special or exceptional foster care services made to foster parents” who meet certain criteria are reimbursable (18 NYCRR 427.6 [e]). Additionally, "certified and approved foster care parents must be reimbursed for each such child to whom they provide foster care according to the standards established in Part 427 [of the Department of Social Services Regulations]” (18 NYCRR 443.3 [v]). Moreover, such reimbursements are limited to "actual payments to certified or approved foster parents” (18 NYCRR 427.6 [b]). Since the language of 18 NYCRR 443.3 (v) regarding reimbursement of foster parents is mandatory, the proper course under the statute is to reimburse foster parents according to the correct rate of benefits. Affording foster parents a fair hearing to review the correctness of their benefits furthers this important State policy.

It is evident from the foregoing that under the State’s regulatory scheme reimbursements to the City arise out of payments for foster care services rendered on behalf of a child. However, such payments are made to foster parents, and only for those services which have been actually rendered. Thus, foster parents may properly be considered applicants or recipients of assistance, benefits or services provided by a social services agency and, accordingly, are entitled to a fair hearing. It is irrational to require a child to be in the foster care boarding home at the moment that a fair hearing is requested.

Since no reimbursements to the foster parent, the City or the State may occur for expenditures on foster care services until such services have been actually provided to the child, any dispute over the proper rate of reimbursement inevitably occurs after such services have already been rendered. The State has recognized that "foster care rates are an important ingredient in enabling social services districts to place children in the least restrictive setting appropriate to the needs of the child and to attract a sufficient number of qualified foster parents to serve as placement resources for such children” (Local Commissioner’s Mem, 92 LCM-162 [Oct. 21, 1992]). To deny appellants standing to request a fair hearing with respect to the proper rate of reimbursement for foster care provided to children is at odds with these statutory and regulatory purposes. Finally, we note that in providing foster parents with the opportunity for a fair hearing, procedural matters relating to the administration of such hearings may be prescribed by statute or appropriate regulation.

Accordingly, the order of the Appellate Division in Matter of Claudio v Dowling should be reversed, with costs, and the order of the Supreme Court, New York County, reinstated. In Vera v Dowling, the order of the Appellate Division should be reversed, with costs, and the State defendants’ motion for summary judgment denied.

Chief Judge Kaye and Judges Titone, Bellacosa, Levine, Ciparick and Wesley concur.

In each case: Order reversed, etc.

      . Under Federal law, foster care maintenance payments are defined as, "payments to cover the cost of (and the cost of providing) food, clothing, shelter, daily supervision, school supplies, a child’s personal incidentals, liability insurance with respect to a child, and reasonable travel to the child’s home for visitation” (42 USC § 675 [4] [A]). New York State defines "foster care maintenance” as "federally reimbursable payments which, for children in foster care, cover the cost of’ the various items and services designated in the Federal statute (18 NYCRR 426.2 [c]).

      . Nothing in this opinion should be construed to limit the State’s ability to set reasonable time limits for applicants and recipients seeking a fair hearing.

      . Moreover, the State provides fair hearings to sponsors (18 NYCRR 358-3.1 [c]), relatives or friends (18 NYCRR 358-3.1 [d]), and spouses (18 NYCRR 358-3.1 [g]) in certain circumstances even though such persons are not technically applicants or recipients of assistance, benefits or services. Surely, the Legislature could not have intended these individuals, but not appellants, to have standing to seek fair hearings.


author: Titone, J.

text:
    [679 NE2d 616, 657 NYS2d 377]
    Richard Di Ponzio et al., Appellants, v Michael Riordan, Appellant, and United Refining Company of Pennsylvania, Doing Business as Kwik Fill, et al., Respondents.
    Argued February 12, 1997;
    decided March 20, 1997

      POINTS OF COUNSEL

      Norman A. Palmiere, Rochester, for Richard Di Ponzio and another, appellants.

      Volgenau & Bosse, Buffalo (Norman E. S. Greene of counsel), for United Refining Company of Pennsylvania, respondent.
   OPINION OF THE COURT

Titone, J.

Injured by another customer’s runaway car while he was on the premises of a self-service filling station, plaintiff sued the premises owner on the theory that it had a duty to ensure that all of its customers abided by regulations requiring their vehicle engines to be turned off during the operation of the gas pumps. We conclude, however, that defendant filling station owner had no duty to protect its customers from the unforeseeable occurrence that led to plaintiff’s injury and that, accordingly, the complaint against that defendant was properly dismissed.

Defendant United Refining Co. (URC) owns and operates a self-service filling station in Rochester. According to the complaint allegations and summary judgment submissions, the injury-producing accident occurred on defendant’s premises on April 15,1991. At about 1:00 p.m. on that date, plaintiff Richard Di Ponzio drove into defendant’s gas station, exited his car and began to fill his tank with fuel. At approximately the same time, defendant Michael Riordan drove his car into the gas station, stopped opposite plaintiff’s vehicle and, without turning off his engine, began pumping gas into his vehicle. Riordan stated during his deposition testimony that the pavement was relatively level and that he placed his console gearshift in the park position.

Riordan took about five minutes to pump gas into his car and then went inside the gas station’s storefront enclosure to pay the attendant for his fuel. He left his vehicle running because he had been experiencing problems with the carburetor and was afraid that he would not be able to restart the vehicle if he turned its ignition off. When he exited the store and began walking toward the car, he noticed that it was moving backward toward the rear of plaintiff’s vehicle, where plaintiff was still pumping gas. Riordan moved toward the vehicle, but he was unable to reach it in time to stop it from striking plaintiff. Plaintiff, who was pinned between the two cars, suffered a fractured leg.

Plaintiff and his spouse subsequently commenced the present personal injury action against Riordan and URC. Plaintiffs’ theory against defendant URC was that it had been negligent in failing to properly train its attendants and that its attendants had been negligent in failing to comply with URC rules requiring that customers be warned to turn off their engines while fueling their vehicles. In support of their claim, plaintiffs cited information obtained during discovery that URC attendants were not supposed to allow customers to pump gas while their engines were running and that the attendants had the ability to turn off a particular pump in the event that a customer refused to comply. They also relied on deposition testimony that on the day of the accident URC’s attendants had deliberately turned down the sound on an intercom system that would otherwise have enabled them both to hear the sound of Riordan’s engine and to admonish him to turn it off.

Following discovery, defendant URC moved for summary judgment dismissing the complaint on several grounds, including the lack of a cognizable legal duty, the lack of a proximate causal relationship between its alleged negligence, if any, and the accident and the unforeseeability of the accident. Supreme Court denied the motion, holding that URC, as the premises owner, had a duty to exercise reasonable care and that the questions of foreseeability and proximate cause should be resolved by the fact finder.

On URC’s appeal, the Appellate Division reversed and dismissed the complaint against URC. Two of the Justices concluded that URC should not be held liable because the accident was not foreseeable. A third Justice concurred on the separate ground that URC had no duty to protect its customers from "the unforeseeable risk that another patron’s car would suffer a mechanical malfunction or inexplicably jump into gear.” (224 AD2d 139, 147.) Additionally, the concurrer opined that any alleged negligence on URC’s part was not the proximate cause of the accident. The remaining two Appellate Division Justices dissented for the reasons set forth in the Supreme Court opinion. Plaintiffs then appealed to this Court pursuant to CPLR 5601 (a).

The threshold issue in this negligence action is whether defendant URC had a legally cognizable duty to prevent the accident in which plaintiff Di Ponzio was injured (see generally, Palka v Servicemaster Mgt. Servs. Corp., 83 NY2d 579, 584-585). It is beyond dispute that landowners and business proprietors have a duty to maintain their properties in reasonably safe condition (see, e.g., Kush v City of Buffalo, 59 NY2d 26; Basso v Miller, 40 NY2d 233). It is also clear that this duty may extend to controlling the conduct of third persons who frequent or use the property, at least under some circumstances (see, Pulka v Edelman, 40 NY2d 781, 783). The duty of a landowner or other tort defendant, however, is not limitless. It is an elementary tenet of New York law that "[t]he risk reasonably to be perceived defines the duty to be obeyed” (Palsgraf v Long Is. R. R. Co., 248 NY 339, 344).

The existence and scope of an alleged tortfeasor’s duty is, in the first instance, a legal question for determination by the court (see, Palka v Servicemaster Mgt. Servs. Corp., supra, at 585). In analyzing questions regarding the scope of an individual actor’s duty, the courts look to whether the relationship of the parties is such as to give rise to a duty of care (see, e.g., Waters v New York City Hous. Auth., 69 NY2d 225; Pulka v Edelman, supra, at 783), whether the plaintiff was within the zone of foreseeable harm (see, e.g., Palsgraf v Long Is. R. R. Co., supra) and whether the accident was within the reasonably foreseeable risks (see, e.g., Danielenko v Kinney Rent A Car, 57 NY2d 198). The nature of the inquiry depends, of course, on the particular facts and circumstances in which the duty question arises. The analysis is also driven by considerations of public policy. As we stated in Waters v New York City Hous. Auth. (supra, at 229), "[t]he common law of torts is, at its foundation, a means of apportioning risks and allocating the burden of loss.”

In this case, the focus of the inquiry is on the foreseeability of the risk. Foreseeability of risk is an essential element of a fault-based negligence cause of action because the community deems a person at fault only when the injury-producing occurrence is one that could have been anticipated (Prosser and Keeton, Torts § 31, at 169-170, and n 15 [5th ed]). Further, although virtually every untoward consequence can theoretically be foreseen "with the wisdom born of the event” (Greene v Sibley, Lindsay & Curr Co., 257 NY 190, 192), the law draws a line between remote possibilities and those that are reasonably foreseeable because "[n]o person can be expected to guard against harm from events which are * * * so unlikely to occur that the risk * * * would commonly be disregarded” (Prosser and Keeton, op. cit, § 31, at 170; see, e.g., Danielenko v Kinney Rent A Car, supra).

A related problem, also implicated here, is the need to analyze the relationship between the risk created by the actor’s conduct and the actual occurrence that caused the harm. It is often said that plaintiffs need not demonstrate the foreseeability of the precise manner in which the accident occurred or the precise type of harm produced in order to establish the foreseeability component of their tort claims (e.g., Palsgraf v Long Is. R. R. Co., 248 NY 339, 344, supra; Bahan v Green Bus Lines, 96 AD2d 876, affd on opn below 61 NY2d 922; see also, Derdiarian v Felix Contr. Corp., 51 NY2d 308). This principle is sometimes mistakenly cited to support an argument that a careless act should lead to liability even though the injury-producing accident itself occurred in an unexpected manner. Such arguments, however, are misguided to the extent that they fail to recognize the analytically important distinction between the concept of risk or hazard and the concept of harm.

The Restatement (Second) of Torts is useful in clarifying this often misconstrued principle. As is explained in section 281, comment e, conduct is considered negligent when it tends to subject another to an unreasonable risk of harm arising from one or more particular foreseeable hazards (Restatement [Second], of Torts § 281, at 6). When the person is harmed by an occurrence resulting from one of those hazards, the negligent actor may be held liable. In contrast, where the harm was caused by an occurrence that was not part of the risk or recognized hazard involved in the actor’s conduct, the actor is not liable (see, id., comment f). The following example taken directly from the Restatement provides a useful illustration of the point:

"A gives a loaded pistol to B, a boy of eight, to carry to C. In handing the pistol to C the boy drops it, injuring the bare foot of D, his comrade. The fall discharges the pistol, wounding C. A is subject to liability to C, but not to D” (id., comment f, illustration 3, at 7).

As this hypothetical fact pattern makes clear, where an individual breaches a legal duty and thereby causes an occurrence that is within the class of foreseeable hazards that the duty exists to prevent, the individual may be held liable, even though the harm may have been brought about in an unexpected way. On the other hand, no liability will result when the occurrence is not one that is normally associated with such hazards. Significantly, the kind and number of hazards encompassed within a particular duty depend on the nature of the duty (see, id., comment e).

The gist of plaintiffs’ claim is that defendant URC’s servants were negligent in failing to monitor its customers’ conduct and, more specifically, in failing to require Riordan to turn off his vehicle’s engine despite having had the means and obligation to do so. Assuming without deciding that URC had a duty to control its customer’s conduct in this manner (cf., Stone v Williams, 64 NY2d 639, 641, 642), the existence of such a duty would not aid plaintiff Di Ponzio’s case, since his injuries did not arise from the occurrence of any of the foreseeable hazards that the duty would exist to prevent.

When a vehicle’s engine is left running in an area where gasoline is being pumped, there is a natural and foreseeable risk of fire or explosion because of the highly flammable properties of the fuel. Indeed, the local ordinance plaintiffs cite as one source of support for the existence of a duty to direct gas station patrons to turn off their engines is, in fact, contained within the City of Rochester Fire Prevention Code, whose stated purpose is to safeguard against "the hazards of fire and explosions” {see, City of Rochester Fire Prevention Code § 54-l). It is this class of foreseeable hazards that defines the scope of the URC’s purported duty.

The occurrence that led to plaintiff’s injury was clearly outside of this limited class of hazards. Plaintiff was injured because the parking gear of another customer’s car inexplicably failed and the unattended vehicle, which had rested stationary on a level surface for more than five minutes, suddenly began to. move backwards, pinning plaintiff between its rear bumper and the bumper of his own car. Because this type of accident was not among the hazards that are naturally associated with leaving a car engine running during the operation of a gas pump, the alleged misconduct of URC’s employees does not give rise to liability in tort. Indeed, plaintiff’s position in this case is analogous to that of the child whose foot was injured by the plummeting pistol in the Restatement hypothetical. Moreover, while plaintiff’s accident may have been an indirect consequence of the station attendant’s failure to direct Riordan to turn off his engine, the accident was, at most, a remote possibility at the time the conduct in question occurred and thus was not a foreseeable consequence of the attendant’s inaction, even though the risk may now readily be perceived through hindsight (see, Prosser and Keeton, op. cit, § 31, at 170 ["It is not enough that everyone can see now that the risk was great, if it was not apparent when the conduct occurred”]). Accordingly, as a matter of law defendant URC had no cognizable legal duty to protect against the injury-producing occurrence and plaintiff’s cause of action based on URC’s own alleged negligence was properly dismissed.

We note our rejection of plaintiffs’ alternative argument that URC may be held vicariously liable for any negligence on the part of defendant Riordan. There was no master-servant or other similar relationship between URC and Riordan that would serve under existing law as a basis for holding the former responsible for the misconduct of the latter without regard to fault. Further, the element that is most often associated with the imposition of vicarious liability — i.e., legal or actual authority over the negligent actor — was absent and there is thus no persuasive reason to extend the doctrine of vicarious liability to these circumstances (see, Kavanaugh v Nussbaum, 71 NY2d 535). Hence, plaintiffs have no legal ground for asserting a claim against defendant URC.

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

Chief Judge Kaye and Judges Bellacosa, Smith, Levine and Ciparick concur; Judge Wesley taking no part.

Order affirmed, with costs.

      . Defendant Riordan also appealed, assertedly to preserve his cross claims.

      . The specific provision plaintiffs have cited is section 54-22 (Q) of the City of Rochester Fire Prevention Code. That section requires filling stations to post warning signs directing their customers not to smoke and to "[s]top motor[s] during fueling operation.” The other provision on which plaintiffs rely, Vehicle and Traffic Law § 1210 (a) (see, 1954 NY Legis Doc No. 36, at 106-107), is irrelevant to this controversy because it concerns the duty of a "person * * * in charge of a motor vehicle” rather than the duty of a filling station owner. Moreover, by its terms, the statute regulates conduct on public streets, not on private premises.


text:
    [679 NE2d 620, 657 NYS2d 381]
    The People of the State of New York, Appellant, v Richard Sigismundi, Respondent.
    Argued February 11, 1997;
    decided March 27, 1997

      POINTS OF COUNSEL

      Robert M. Morgenthau, District Attorney of New York County, New York City (Morrie I. Kleinbart and Mark Dwyer of counsel), for appellant.

      Garber & Rodi, New York City (Glenn A. Garber of counsel), for respondent.
   OPINION OF THE COURT

Titone, J.

Does the former version of CPL 30.30 (4) (c) require the People to exercise due diligence to locate an absent defendant when that defendant is incarcerated in a correctional facility within the State under an assumed name? We conclude that such diligence is not required when the facts and circumstances, including the accused’s use of one or more aliases, indicate an intention to avoid prosecution.

Defendant was arrested on September 4, 1993 and arraigned on September 5, 1993 under the name Richard Sigismundi. The NYSID report that was generated as a result of that arrest indicated that defendant had previously used several aliases. Having been released on his own recognizance, defendant was again arrested on September 17, 1993. This time, he gave his name as Richard Cali, one of the aliases that he had used in the past. Upon defendant’s second arrest, the law enforcement authorities obtained a different NYSID report that was maintained in the name of Richard Cali. This report did not include a record of the September 4th arrest. Following his second arrest, defendant remained incarcerated locally until he pleaded guilty and was sentenced to a 2-to-4-year term of imprisonment on March 23, 1994.

In the meantime, the charges arising out of the September 4th arrest remained pending. A Grand Jury issued an indictment on those charges on November 18, 1993 and, upon defendant’s failure to appear for arraignment on the indictment, a bench warrant for his arrest was issued on December 27, 1993. It was not until June 29, 1994 that a warrant coordinator from the District Attorney’s office discovered that defendant had mistakenly been given two different NYSID numbers. As a result of that discovery, the People were able to locate defendant. Defendant was finally returned on the December 27th bench warrant on July 21, 1994.

On September 27, 1994, defendant moved to dismiss the November 18, 1993 indictment on the ground that the People had not been ready for trial within the time required by CPL 30.30. The People opposed the motion, arguing that the dispositive period between December 27, 1993 (when the bench warrant was issued) and July 21, 1994 (when defendant was returned on the warrant) was excludable under CPL 30.30 (4) (former [c]) because "defendant’s location was unknown and he was attempting to avoid prosecution.”

Supreme Court rejected the People’s contention and dismissed the indictment for prosecutorial unreadiness, holding that the People could not claim that defendant’s whereabouts were unknown because he was incarcerated in local facilities for the entire duration of the critical period. On the People’s appeal, the Appellate Division affirmed the dismissal of the indictment, with two Justices dissenting. The majority agreed with the Supreme Court’s view that defendant was not at a location unknown to the People since he was "under the control of the authorities for at least six months while the bench warrant remained outstanding” (222 AD2d 382, 383). Relying on our decision in People v Bolden (81 NY2d 146), the majority concluded that the People had an obligation to exercise diligence in executing the December 27, 1993 bench warrant and, having failed to do so, they could not now claim the benefit of the exclusion afforded by CPL 30.30 (4) (former [c]). The dissent urged that the facts suggested an attempt to avoid prosecution on defendant’s part and that, consequently, the diligence requirement should not have been automatically applied. This People’s appeal, taken by permission of one of the Appellate Division dissenters, ensued. We agree with the rationale of the dissenters and, accordingly, we now reverse.

At the time of the decisions below, CPL 30.30 (4) (former [c]) permitted the People to exclude from the time in which they must become ready the period of delay between the issuance of a bench warrant and the defendant’s return on that warrant "where the defendant is absent or unavailable and has either escaped from custody or has previously been released on bail or on his own recognizance”. The quoted portion of the CPL 30.30 (4) (former [c]) exclusion is available even where there was no causal relationship between the defendant’s absence or unavailability and the People’s unreadiness. Critical to the operation of the exclusion is the statutory definition of the terms "absent” and "unavailable”:

"A defendant must be considered absent whenever his location is unknown and he is attempting to avoid apprehension or prosecution, or his location cannot be determined by due diligence. A defendant must be considered unavailable whenever his location is known but his presence for trial cannot be obtained by due diligence” {id. [emphasis supplied]).

It is the italicized language concerning "absent” defendants that is the focus of the present appeal.

In People v Bolden {supra), this Court held that in order to obtain an exclusion under the above-quoted provisions the People were required to exercise "due diligence” in executing a bench warrant against an allegedly "absent” defendant, since a defendant is not ordinarily "absent” under the statutory terms unless the People have demonstrated that they diligently tried to find him. However, we made clear in Bolden (id., at 155), as well as in our subsequent opinion in People v Luperon (85 NY2d 71, 80, n 3), that the diligence requirement is not applicable where the defendant is deemed "absent” because "his location is unknown and he is attempting to avoid apprehension or prosecution.” Like most of our CPL 30.30 analysis, that conclusion was premised directly on the language and structure of this statute, which, in relevant part, was drafted in the disjunctive and thus furnished discrete alternative methods for determining whether and when a defendant is "absent.”

The foregoing statements in Bolden and Luperon might have been sufficient to resolve the question presented in this case were it not for the fact that, as a practical matter, this defendant was not missing. Rather, he was at all relevant times within the custody and control of New York State’s law enforcement authorities. Under similar circumstances, several Appellate Division opinions have concluded that a showing of "due diligence” by the People cannot be excused, even where "the defendant employed the most extraordinary devices and elaborate strategies to avoid capture” (see, e.g., People v Ladson, 202 AD2d 212, 216 [Murphy, P. J., dissenting]; People v Barasso, 193 AD2d 448). These intermediate appellate court opinions proceed from the premise that the People cannot satisfy the statutory requirement that the defendant’s location be "unknown” when they, in fact, have the defendant in custody because once a defendant has been incarcerated, knowledge of that defendant’s whereabouts is imputed to the State and its agents (see, People v Barasso, supra; People v Davis, 184 AD2d 575, 577; see also, People v Knight, 163 AD2d 583, affg 140 Misc 2d 1075; People v Greenwaldt, 103 AD2d 933; but see, People v Rivera, 106 AD2d 278, 280). Thus, in these situations, the statutory provision for excluding the period when the defendant was attempting to avoid apprehension or prosecution is unavailable. The correctness of the foregoing analysis was raised in People v Ladson (85 NY2d 926), but this Court was unable to address it because the appellant’s arguments on the point there were unpreserved.

Faced squarely with the question for the first time, we hold that the People can establish a defendant’s "absence” under the former provisions of CPL 30.30 (4) (c) by showing only that the defendant’s whereabouts were actually unknown and that the defendant was attempting to avoid apprehension or prosecution. We decline to adopt a view of the statutory requirements that would impute knowledge of an incarcerated defendant’s location to the People and would thereby prevent them from invoking the exclusion for evasive defendants. To impute knowledge of a defendant’s whereabouts to the People in this narrow context would be to indirectly impose precisely the same "due diligence” requirement that the Legislature plainly intended to eschew when it established alternative criteria for proving a defendant’s absence (cf., People v Spruill, 47 NY2d 869, 871; People v McLaurin, 38 NY2d 123, 126). As the statutory language makes clear, a showing of "due diligence” is required only when the People cannot make the alternative showing that the defendant was attempting to avoid apprehension or prosecution.

We stress that our holding excusing the People from their "due diligence” responsibility in these circumstances is not inconsistent with our holdings in People v Bolden (supra) and People v Luperon (supra). Those holdings were predicated on our interpretation and application of a discrete aspect of the statute with a different underlying policy. It is evident from the structure of CPL 30.30 (4) (former [c]) that the Legislature intended to treat defendants who were simply missing differently from those who deliberately evade legal process and to afford less favorable treatment to the latter. A construction of the statute that dispenses with the diligence requirement in the latter class of cases is consistent with that policy choice.

The foregoing analysis leads to the conclusion that the Appellate Division order in this case must be reversed. The Court concluded that the People could not rely on the CPL 30.30 (4) (former [c]) exclusion solely because they had made no showing of diligent efforts to locate defendant. However, such a showing was unnecessary if, as the People specifically argued in response to defendant’s CPL 30.30 motion, that defendant had been attempting to avoid prosecution.

Inasmuch as the analyses utilized by the courts below rested on the lack of a showing of due diligence by the People, neither court had occasion to pass upon the critical factual question of whether defendant was, in fact, attempting to avoid prosecution when he was arrested for the second time. Significantly, the existing record reveals a number of circumstances that would support that inference. Included among these are the facts that defendant had used aliases in the past and that he used one of those aliases when he was arrested for the second time. Further, he gave different pedigree information on his second arrest, and his NYSID records suggested that he had given inconsistent pedigree information about himself in the past, possibly leading to the creation of two separate NYSID files. Thus, a remittal for a further factual inquiry on the CPL 30.30 motion is appropriate.

Accordingly, the order of the Appellate Division should be reversed, the indictment reinstated and the case remitted to Supreme Court for further proceedings in accordance with this opinion.

Chief Judge Kaye and Judges Bellacosa, Smith, Levine, Ciparick and Wesley concur.

Order reversed, etc.

       CPL 30.30 (4) (c) was recently amended (L 1996, ch 631). The correct application of the amended statute is not before us on the present appeal.


author: Levine, J.

text:
    [679 NE2d 624, 657 NYS2d 385]
    In the Matter of Primex International Corp., Formerly Known as Primex International Trading Corporation, Appellant, v Wal-Mart Stores, Inc., Respondent.
    Argued February 13, 1997;
    decided March 27, 1997

      POINTS OF COUNSEL

      Garfunkel, Wild & Travis, P. C., Great Neck (David A. Zarett, Roy W. Breitenbach, Joseph E. .Oliva and Steven J. Chananie of counsel), for appellant.

      Leader & Berkon, New York City (Joseph G. Colao and Glen

      Silverstein of counsel), for respondent.
   OPINION OF THE COURT

Levine, J.

In 1988, appellant Primex International Corporation was retained, on a transaction-by-transaction basis, by respondent Wal-Mart Stores, Incorporated as a buying agent for purchases of South American manufactured consumer goods. Two years later, Wal-Mart appointed Primex as its exclusive buying agent and, on February 6, 1990, the parties executed a three-year "Service Agreement” (the 1990 Agreement) which defined their rights and obligations, the services appellant was to provide and the commission structure governing each transaction it brokered during the term of the Agreement. The 1990 Agreement contained a New York choice of law provision and gave either party the right to terminate upon six months’ notice. It also included a broad arbitration clause which provided that:

"/a]ny and all disputes arising out of, under or in connection with this Agreement including, without limitation, the validity, interpretation, performance and breach thereof shall be settled by arbitration in New York City, New York, pursuant to the Rules of the American Arbitration Association in force at the time arbitration is demanded” (emphasis supplied).

In addition, the 1990 Agreement contained a general merger or integration clause which stated:

"This Agreement may not be amended, changed, modified, or altered except by a writing signed by both parties. All prior discussions, agreements, understandings or arrangements, whether oral or written, are merged herein and this document represents the entire understanding between the parties.”

After the 1990 Agreement expired, the parties entered into a second "Service Agreement” (the 1993 Agreement) which controlled the parties’ South American transactions over the next two years, until its stated termination date of February 6, 1995. The 1993 Agreement contained the same arbitration, New York choice of law, notice of termination, and merger provisions as the 1990 Agreement.

Upon expiration of the 1993 Agreement, a third contract containing the same arbitration, choice of law, termination and merger clauses was forwarded by Primex’s attorney to Wal-Mart corporate counsel. Wal-Mart’s counsel removed the arbitration clause contained in the signed draft and changed the title of the Agreement to "Buying Agency Agreement”. These changes were accepted by Primex, effective February 7, 1995. Thus, as revised, the terms of the 1995 Agreement were essentially identical to the earlier Agreements, except that it did not contain any provision for the arbitration of disputes arising out of, or in connection with, that Agreement.

Four months later, Wal-Mart advised Primex that, pursuant to the six-month notice provision set forth in the 1995 Agreement, it was terminating their business relationship effective December 1. However, in early October, upon allegedly learning that Primex had been soliciting and accepting kickback payments from the South American vendors in violation of the parties’ three Agreements, Wal-Mart immediately terminated appellant as its buying agent. Wal-Mart subsequently commenced an action against Primex in the Circuit Court of Benton County, Arkansas, for civil and punitive damages and an accounting, based on causes of action for fraud and breaches of the three successive written Agreements entered into between the parties in 1990,1993, and 1995. The gravamen of the causes of action was that Primex had been covertly demanding, charging, and accepting kickbacks from certain South American vendors for placing Wal-Mart orders with those vendors "for at least eight years” and passing these payments on to Wal-Mart in the purchase prices of the merchandise. Wal-Mart specifically alleged that this conduct constituted a breach of "each and every buying agency agreement”.

Upon commencement of Wal-Mart’s Arkansas suit, Primex served it with a demand for arbitration, pursuant to the arbitration clauses contained in the 1990 and 1993 Agreements. When Wal-Mart rejected, the demand, Primex commenced this CPLR article 75 proceeding to compel arbitration of the parties’ dispute in New York and to stay the Arkansas action.

In its opposition papers, Wal-Mart asserted a counterclaim seeking to stay arbitration under CPLR 7503. The principal ground advanced by Wal-Mart in its answer was that the general merger clause contained in the 1995 Agreement — coupled with the absence of an arbitration clause — had the legal effect of impliedly superseding the 1990 and 1993 Agreements, thereby eliminating any obligation to arbitrate claims arising under the two prior Agreements.

Supreme Court rejected Primex’s petition to stay the Arkansas action, concluding that the contractual language contained in the 1995 Agreement was to be given retroactive effect. The court found that the presence of a general merger clause expressed the parties’ intent to operate solely under the 1995 Agreement and represented the entire understanding of the parties. Because it determined that no agreement to arbitrate existed after February 7, 1995, Supreme Court ruled that Wal-Mart could not now be deprived of its right to seek redress in a court of law. The Appellate Division affirmed, stating that it was "not imperative that the latest agreement expressly revoke the prior agreements’ arbitration provisions to effectively cancel those provisions” (227 AD2d 219, 220). We granted Primex leave to appeal, and now modify the Appellate Division’s order.

The courts below correctly ruled that the issue of whether the claims in the Wal-Mart complaint are arbitrable, i.e., whether there is a clear, unequivocal and extant agreement to arbitrate the claims, is for the court and not the arbitrator to determine (see, Sisters of St. John the Baptist v Geraghty Constructor, 67 NY2d 997, 998; Matter of Schlaifer v Sedlow, 51 NY2d 181, 184). Because the 1995 Agreement between the parties did not contain an arbitration clause in its final form, those courts also correctly held that, insofar as Wal-Mart’s causes of action arise out of Primex’s performance of that Agreement, its petition to compel arbitration of such claims should be denied. We, however, disagree with the courts below as to the arbitrability of the claims in Wal-Mart’s complaint arising out of the 1990 and 1993 Agreements.

Generally, a broad arbitration clause in an agreement survives and remains enforceable for the resolution of disputes arising out of that agreement subsequent to the termination thereof and the discharge of obligations thereunder, irrespective of whether the termination and discharge resulted from the natural expiration of the term of the agreement (Nolde Bros. v Bakery Workers, 430 US 243, 251-253), a unilateral termination under a notice of cancellation provision (Hamilton & Co. v American Home Assur. Co., 21 AD2d 500, 503, affd 15 NY2d 595) or the breach of the agreement by one of the parties (Matter of Terminal Auxiliar Maritima [Winkler Credit Corp.], 6 NY2d 294, 298; see also, Litton Fin. Print. Div. v National Labor Relations Bd., 501 US 190, 205-206). Thus, although both the 1990 and 1993 contracts have expired, the broad arbitration clauses contained in them would be enforceable as to the allegations in the Wal-Mart complaint pertaining to the acts of Primex during the terms of the 1990 and 1993 Agreements — all of which arise out of the procurement of merchandise by Primex as Wal-Mart’s agent under those Agreements. It follows that Primex’s petition to compel arbitration of those claims should prevail unless, as the courts below held, the merger clause of the 1995 Agreement superseded the 1990 and 1993 contractual obligations of the parties to submit disputes arising under those Agreements to arbitration.

We conclude that the language of the merger clause was insufficient to establish any intent of the parties to revoke retroactively their contractual obligations to submit disputes arising thereunder to arbitration. Thus, we modify the order of the Appellate Division and remit to Supreme Court to determine which of Wal-Mart’s claims in the Arkansas suit arise out of the 1990 and 1993 Agreements and, therefore, are arbitrable, and to grant the appropriate relief in accordance with that determination.

Courts and commentators addressing the substantive and procedural aspects of New York commercial litigation agree that the purpose of a general merger provision, typically containing the language found in the clause of the parties’ 1995 Agreement that it "represents the entire understanding between the parties,” is to require full application of the parol evidence rule in order to bar the introduction of extrinsic evidence to vary or contradict the terms of the writing (see, Citibank v Plapinger, 66 NY2d 90, 94-95; Judnick Realty Corp. v 32 W. 32nd St. Corp., 61 NY2d 819, 822; S. Kaye, The Parol Evidence Rule Generally, in 3 Commercial Litigation in New York State Courts § 36.3, at 390, n 82 [Haig, et al., eds 1995]). The merger clause accomplishes this objective by establishing the parties’ intent that the Agreement is to be considered a completely integrated writing (see, Fogelson v Rackfay Constr. Co., 300 NY 334, 340, rearg denied 301 NY 552; Restatement [Second] of Contacts § 216, comment c; 3 Corbin, Contracts § 578, at 411; 2 Farnsworth, Contracts § 7.3, at 205). A completely integrated contract precludes extrinsic proof to add to or vary its terms (W.W.W. Assocs. v Giancontieri, 77 NY2d 157, 162).

It is readily demonstrable that enforcement of the parties’ obligations to arbitrate disputes arising out of their 1990 and 1993 Agreements does not implicate the parol evidence rule in connection with the 1995 Agreement and, hence, is not precluded by the merger clause in that writing. As we have already described, the parties omitted from the 1995 Agreement any duty to submit disputes arising thereunder to arbitration. Thus, they evidenced their intent to permit either of them to resort to the courts for the adjudication of claims originating out of their 1995 contractual obligations. As we have already ruled in this case, each party still remains free to seek judicial relief for claims against the other arising out of the 1995 Agreement, just as Wal-Mart has done in its Arkansas action, despite enforcement of the arbitration clauses as to disputes under the 1990 and 1993 Agreements.

Once it has been, thus, established that an antecedent agreement has no effect to vary, contradict or supplement the terms of a later agreement containing the general merger clause, the prior agreement remains enforceable. Thus, in Champlin Ref. Co. v Gasoline Prods. Co. (29 F2d 331), which involved an oral agreement regarding plant construction and a written licensing agreement to use a patented oil-refining process containing a merger clause, the court permitted introduction of evidence of the breach of the oral agreement to establish a counterclaim to a suit on the licensing agreement:

"[W]e can give no such broad construction to this [merger] paragraph as to apply it to matters extrinsic the license contract. This paragraph is intended to buttress rights accruing under the royalty contract — to cut off defenses otherwise open. But no defense to claims under this contract is now made; it is admitted that plaintiff is entitled to recover every dollar it claims. The issue here is solely as to defendant’s right to counterclaim for damages suffered under another contract. The fact that this other contract relates to what is, in important aspects, the same transaction, does not extend this [merger] paragraph to the destruction of that other contract. Its effect is limited to the contract sued upon.” (Id,., at 337.)

(See also, Gem Corrugated Box Corp. v National Kraft Container Corp., 427 F2d 499, 503 [2d Cir] [''Indeed, it would appear that the parol evidence rule simply has no application in these circumstances; the oral agreement does not serve to vary or modify the engagement of the parties with respect to the terms of purchase of box materials”]; Traders’ Natl. Bank v Laskin, 238 NY 535, 540-541; Frohman Amusement Corp. v Blinkhorn, 178 App Div 431, 434; 3 Corbin, op. cit., § 594, at 564-565).

Applying the foregoing principles to this case, because the antecedent Agreements to arbitrate disputes thereunder unquestionably will have no effect of varying or adding to the terms of the 1995 Agreement, the mutual purpose of the parties in including the merger clause in the latter Agreement has been fulfilled and upheld, without frustrating their corresponding mutual purpose in agreeing to arbitrate disputes arising under their earlier Agreements.

Finally, we reject Wal-Mart’s contention that, because the completely integrated 1995 Agreement may have signified the termination of application of the substantive provisions of the earlier Agreements (see, Restatement [Second] of Contracts § 213 [2]), it necessarily also terminated application of their obligations to arbitrate disputes arising under the former Agreements. Notwithstanding that a contract merger clause may be considered the equivalent of a general release of substantive claims under a prior Agreement, as Wal-Mart’s argument suggests (see, 3 Corbin, op. cit., § 578, at 404), we have already held, that, absent a more specific indication of intent to abandon contractual rights to an arbitration forum, a general release terminating the substantive rights of the parties to the contract will not nullify their obligation to submit to an arbitrator all of the disputes relating to that contract and its termination (see, Matter of Schlaifer v Sedlow, 51 NY2d 181, 184-185, supra; cf., Matter of Minkin [Halperin], 279 App Div 226, 227 [parties stipulated that the prior agreement " 'is hereby canceled and declared of no further force or effect, and said agreement shall be interpreted as though it had never been executed’ ” (emphasis supplied)], affd 304 NY 617).

Moreover, as we have previously shown, the prevailing general rule of both New York and Federal common law of contracts is that, absent a clear manifestation of contrary intent, it is presumed that the parties intended that the arbitration forum for dispute resolution provided in an agreement will survive termination of the agreement as to subsequent disputes arising thereunder, whether its cessation was the result of the expiration of its term, exercise of a unilateral termination option, or breach (see, Nolde Bros. v Bakery Workers, supra; Hamilton & Co. v American Home Assur. Co., supra; Matter of Terminal Auxiliar Maritima [Winkler Credit Corp.], supra). There is no good reason, then, why that same principle should not apply as to arbitration of disputes arising out of an antecedent contract, when termination of that contract is attributable to a general merger clause in a subsequent agreement.

And, of course, Wal-Mart’s reliance on the merger clause in the 1995 Agreement as a termination of any enforcement of rights (including arbitration) under the earlier Agreements of the parties is undercut by its Arkansas suit for a breach of those Agreements. As Judge Fuld stated in rejecting a similar attempt to avoid arbitration in Matter of Terminal Auxiliar Maritima (Winkler Credit Corp.): "[i]n point of fact, the appellant does not regard the contract as having been 'cancelled’ in any real sense, since it is actually suing for its breach in the action now stayed. If the contract had been so 'cancelled,’ then neither party would have a claim under it, and [appellant’s] lawsuit would be ripe for dismissal” (6 NY2d, at 298, supra). Accordingly, the petition to compel arbitration should be granted, insofar as it seeks such relief with respect to the claims in Wal-Mart’s complaint in the Arkansas suit arising out of the 1990 and 1993 Agreements of the parties.

The order of the Appellate Division should be modified, without costs, by remitting to Supreme Court, New York County, for further proceedings in accordance with this opinion and, as so modified, affirmed.

Chief Judge Kaye and Judges Titone, Bellacosa, Smith, Ciparick and Wesley concur.

Order modified, etc.