author: Chief Judge Cooke. Fuchsberg, J.

text:
    In the Matter of the Claim of Frank Burns and Another, as Parents of Ricky Burns, Deceased, Respondent, and Richard B. Brabaw, Appellant, v Robert Miller Construction, Inc., et al., Respondents. Workers’ Compensation Board, Respondent.
    Argued February 18, 1982;
    decided April 7, 1982

      POINTS OF COUNSEL

      John S. Hogg for appellant.
    I. Denial of workers’ compensation benefits to the posthumous child of a deceased worker on the ground that he was not “acknowledged” violates the equal protection clause of the Fourteenth Amendment of the United States Constitution. (Matter of Hunter v Goodstein Bros., 2 AD2d 387; Brown v Board of Educ., 347 US 483; McDonald v Board of Election, 394 US 802; Dunn v Blumstein, 405 US 330; Shapiro v Thompson, 394 US 618; Harper v Virginia Bd. of Elections, 383 US 663; Skinner v Oklahoma, 316 US 535; McLaughlin v Florida, 379 US 184; Oyama v California, 332 US 633; Matter of Griffiths, 413 US 717.) II. The requirement of “acknowledgement” as an absolute condition of eligibility of an illegitimate child for compensation benefits results in an irrational and invidious discrimination against unwed mothers as a class, in violation of the equal protection clause of the Fourteenth Amendment of the United States Constitution. (Weber v Aetna Cas. & Sur. Co., 406 US 164; Lalli v Lalli, 38 NY2d 77; Personnel Administrator of Mass. v Feeney, 442 US 256; Brooklyn Union Gas. Co. v New York State Human Rights Appeal Bd., 41 NY2d 84; Matter of Parks v Rex Roofing Co., 53 AD2d 748; Matter of Kluss v Levene’s Son, 269 App Div 801, 295 NY 990; Matter of Wilkins v Kelly, 108 Misc 2d 598.) III. It is expressly provided by the Workers’ Compensation Law that the posthumous child of a deceased worker is entitled to workers’ compensation benefits for the compensable accidental death of his father. (Orr v Orr, 440 US 268; Matter of Parks v Rex Roofing Co., 53 AD2d 748; Matter of McMillan v Police Dogs, 52 AD2d 369; Meltzer v Koenigsberg, 302 NY 523; Matter of Shannon v Introne, 80 AD2d 834.)

      Lee H. Turner and David L. Welch for Frank Burns and another, respondents.
    Subdivision 11 of section 2 of the Workers’ Compensation Law does not violate the equal protection clause of the United States Constitution, (Weber v Aetna Cas. & Sur. Co., 406 US 164; Goodell v Goodell, 77 AD2d 684.)

      Robert Abrams, Attorney-General {Morris N. Lissauer, Shirley Adelson Siegel and Henriette Frieder of counsel), for Workers’ Compensation Board, respondent.
    I. The enactment of subdivision 11 of section 2 of the Workers’ Compensation Law by the Legislature was a rational exercise of its police powers and is not violative of the equal protection clause of the Fourteenth Amendment of the United States Constitution, as interpreted by the Supreme Court of the United States. (Matter of Iannone v Radory Constr. Corp., 285 App Div 751, 1 NY2d 671; Mathews v Lucas, 427 US 495; Gomez v Perez, 409 US 535; Weber v Aetna Cas. & Sur. Co., 406 US 164; Griffin v Richardson, 346 F Supp 1226, 409 US 1069; Levy v Louisiana, 391 US 68; Matter of Husted v Seneca Steel Serv., 41 NY2d 140; Matter of Greene v City of New York Dept. of Social Servs., 44 NY2d 322; Matter of McFadden v Duo Plumbing &

      Heating Corp., 73 AD2d 739; Lalli v Lalli, 439 US 259.) II. The question of whether “posthumous child” as used in subdivision 11 of section 2 of the Workers’ Compensation Law includes an illegitimate child was not raised in the court below and is therefore not properly before this court. In any event, it is clear from the legislative history and the decided cases that a “posthumous child” is a legitimate child. (Di Bella v Di Bella, 47 NY2d 828; Matter of Bell v Terry & Tench Co., 177 App Div 123; Matter of McLean v Thatcher Process Co., 214 App Div 842; Feder v Caliguira, 8 NY2d 400; Matter of McMillan v Police Dogs, 52 AD2d 369.)
   OPINION OF THE COURT

Chief Judge Cooke.

When a claim is filed for death benefits under the Workers’ Compensation Law by or on behalf of a child born out of wedlock to a deceased worker, there is strong reason to require proof of paternity and dependency. It is unconstitutional, however, to require the additional proof of acknowledgment as a prerequisite to approving the child’s claim.

Twenty-year-old Ricky Burns died on November 2,1971, two weeks after he started his new construction job, when a wall collapsed on him during a severe windstorm. Claimant was born approximately eight and one-half months later. In October, 1972, claimant, through his unmarried mother, filed for death benefits. At a hearing, the mother testified that the first and only time she mentioned her pregnancy to Ricky Burns was on the day of his death.

The Workers’ Compensation Board denied the claim, finding that the child was not an acknowledged child born out of wedlock. On appeal, the Appellate Division remitted to the board for clarification of the grounds for its decision (Matter of Burns v Miller Constr., 62 AD2d 1114). The board then determined that claimant had not been “acknowledged” by the decedent and so could not receive benefits. Claimant challenged that determination on the ground that subdivision 11 of section 2 of the Workers’ Compensation Law is unconstitutional. In particular, claimant urged a denial of equal protection by virtue of the law’s classification of children born in and those born out of wedlock requiring the latter to prove both dependency on and acknowledgment by the father.

Section 16 of the Workers’ Compensation Law entitles certain dependents of a worker killed in a job-related accident to receive benefits. Among those dependents are children, defined as including “a posthumous child, a child legally adopted prior to the injury of the employee; and a step-child or acknowledged child born out of wedlock dependent upon the deceased” (Workers’ Compensation Law, § 2, subd 11). Posthumous and legally adopted children are presumed dependent; stepchildren and those born out of wedlock must prove their dependency. Children born out of wedlock must also prove acknowledgment as well as paternity.

The Appellate Division concluded that requiring proof of acknowledgment does not unconstitutionally discriminate against children born out of wedlock, and upheld the statute. Reversal is now appropriate.

I

At the outset, it must be determined whether the statute may be construed in such a way that the constitutional issue need not be confronted (see Matter of Coates, 9 NY2d 242, 253; McKinney’s Cons Laws of NY, Book 1, Statutes, § 150), that is, whether claimant could apply for benefits as a posthumous child.

Subdivision 11 of section 2 has gone through several revisions over the years. As originally enacted, it included only what is now the first clause referring to posthumous children and adoptees (L 1913, ch 816). Three years later, dependent stepchildren were added to the scope of the statute (L 1916, ch 622). Finally, the subdivision was amended to include acknowledged illegitimate children as well (L 1917, ch 705, eff July 1, 1917). The subdivision has remained- virtually unaltered since that time.

This court has never addressed the meaning of subdivision 11 of section 2. The statute’s evolution in conjunction with decisions of various courts would indicate, however, that a child born out of wedlock may not claim benefits as a posthumous child.

In Bell v Terry & Tench Co. (177 App Div 123 [March 7, 1917]), the court considered the original version of subdivision 11. After noting the rule of construction that, when used in a statute, the word “child” means only a legitimate child, it went on to hold that the statute did not expand that definition beyond its express terms. In short, only (1) legitimate children, (2) posthumous legitimate children, and (3) adoptees could receive benefits.

The Bell analysis was later confirmed in a Court of Appeals decision in an action arising under the Federal Employers’ Liability Act. In Hiser v Davis (234 NY 300, 305 [1922]), the court, citing Bell, stated that “under the law in this state the word ‘child’ in a statute or will, without any other description, would [not] include an illegitimate child.”

Arguably, Bell incorrectly interpreted the Legislature’s intent. Three months after that decision was handed down, the subdivision was amended to include “illegitimate” children (L 1917, ch 705). That change, however, does not mean that children born out of wedlock may receive benefits under the category of “posthumous” children. In Matter of Kluss v Levene’s Son (269 App Div 801, mot for lv to app den 269 App Div 912, mot for lv to app den 295 NY 990), the Appellate Division, in affirming the compensation board’s award to an infant claimant, ruled that a posthumous child born out of wedlock must meet the same burden of proof as any child born out of wedlock — i.e., proof of paternity, acknowledgment, and dependency. Since Kluss was decided, the Legislature has amended section 2 at least 20 times, yet it has not seen fit to overrule Kluss by revising subdivision 11. It is reasonable to conclude, then, that the Legislature intended children born out of wedlock after the worker’s death to meet the same requirements as other children born out of wedlock or that it has had no desire to change the interpretation accorded the statute.

This interpretation is consistent with the statute’s structure as well. The first clause, not requiring proof of dependency, extends the definition of children to those conceived in wedlock, but born after the employee’s death, and to those whom the State particularly wishes to encourage to have a relationship as close as possible to the natural family. On the other hand, the latter clause recognizes that there are informal relationships that historically have received less respect by the law, but which should be accepted in order to further the law’s purpose of removing from the public the burden of supporting dependents of deceased workers. Therefore, stepchildren and those born out of wedlock may receive benefits, but they must prove dependency.

II

Having concluded that claimant here can receive benefits under the statute, if at all, only as an acknowledged, dependent child born out of wedlock, the constitutionality of subdivision 11 of section 2 must be addressed.

At the outset, the proper level of scrutiny must be established. As initially developed, a law challenged for denying equal protection would be analyzed under one of two standards, depending on the nature of the right being infringed. If a fundamental, constitutionally based right were involved or the law made distinctions based on suspect classes, it would be subjected to strict scrutiny to determine whether the law was necessary to serve a compelling governmental interest (see, e.g., Shapiro v Thompson, 394 US 618; Loving v Virginia, 388 US 1). All other laws were reviewed merely to determine whether there was a rational basis by which the statute could be justified (see, e.g., New Orleans v Dukes, 427 US 297). In time, a third level of scrutiny was developed, sometimes referred to as the “middle tier”, which is invoked in circumstances such as here where the group classification does not involve a suspect class, but deserves a protection greater than that afforded by the rational-basis standard of review (see, generally, Gunther, The Supreme Court, 1971 Term — Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 Harv L Rev 1). The test imposed may be described as an inquiry into whether the law’s classification bears a significant relationship to its purpose (see Weber v Aetna Cas. & Sur. Co., 406 US 164, 172-173, 175). This middle-tier analysis is the appropriate standard when the classification challenged is the legitimacy of one’s birth (see Lalli v Lalli, 439 US 259, 264-265 [plurality opn], 279 [Brennan, J., dissenting]; Trimble v Gordon, 430 US 762, 766-767; Weber v Aetna Cas. & Sur. Co., 406 US 164, supra).

Upon considering the various elements that must be proven by the child born out of wedlock, it becomes evident that “acknowledgment” does not substantially further any State interest. It unlawfully excludes certain children born out of wedlock from receiving benefits upon the work-related death of their fathers.

First, the State purpose underlying workers’ compensation may be succinctly summarized. The statutory scheme was designed to provide economic support efficiently to the employee injured on the job or to his or her dependents when the employee has died, and to place the cost of such support upon the employer, and ultimately, the consumer, rather than upon the general public (see 1 Larson, Workmen’s Compensation Law [1978], § 2.20). As a remedial statute serving humanitarian purposes, the Workers’ Compensation Law should be liberally construed (see Matter of Merchant v Pinkerton’s Inc., 50 NY2d 492, 495; Matter of Husted v Seneca Steel Serv., 41 NY2d 140, 145; Matter of Wolfe v Sibley, Lindsay & Curr Co., 36 NY2d 505, 508).

It is against this policy that the burden imposed by the various elements of proof must be weighed. No challenge is raised to the elements of paternity and dependency. Both substantially further the State’s purpose without unduly burdening the child born out of wedlock. Proof of paternity operates to bring a claimant within the statute. Proof of dependency serves to further the goal of awarding benefits in order to keep the child off the public dole. Together, both elements demonstrate the appropriate relationship between decedent and claimant so as to justify paying death benefits, while their proof also avoids spurious claims.

The claimant having established both paternity and dependency, it must be asked what purpose is served in the workers’ compensation context by requiring claimant also to prove acknowledgment. No fraudulent claims will be avoided that would otherwise be paid if only proof of paternity and dependency were required. Nor is there present any State interest comparable to that in the inheritance field, where the stability of property titles is involved (compare Lalli v Lalli, 439 US 259, 268, supra, with Weber v Aetna Cas. & Sur. Co., 406 US 164, 170, supra). Moreover, while a decedent has some interest in the distribution of his or her estate, the deceased worker has no personal interest in who receives workers’ compensation for his death as it is not paid from his estate, but by third parties. Indeed, the deceased worker who has supported his child born out of wedlock presumably would prefer for that child to share in the death benefits.

In Weber v Aetna Cas. & Sur. Co. (406 US 164, supra), the .Supreme Court struck down a Louisiana statute permitting dependent, unacknowledged children born out of wedlock to recover workers’ compensation for a parent’s death, but relegated them to a position behind dependent children born in wedlock and dependent, acknowledged children born out of wedlock. The court reached its decision after noting that all children, regardless of the circumstances of their birth or whether they have been acknowledged, may suffer equally from the death of a parent (id., at p 169). The critical factor is that all are children dependent upon the deceased parent and so should be treated equally (id., at p 170). The Supreme Court concluded that, inasmuch as dependency is a prerequisite to anyone’s recovery, no compelling purpose is served in the statutory scheme by requiring acknowledgment, which the court noted “may be unlikely to occur or legally impossible to effectuate” (id., at pp 173-174).

As noted above, proof of paternity and dependency accomplishes the purposes of the statutory scheme. The Weber analysis is equally applicable here as acknowledgment serves no purpose expressed in or implied from the statute. Inasmuch as no legitimate State interest is substantially furthered by the requirement that the child be acknowledged by the father, the statute unconstitutionally denies equal protection to children born out of wedlock. As a practical matter, of course, proof of dependency may evince acknowledgment. The two, however, are distinct concepts which should not be equated (cf. EPTL 4-1.2, subd [a], par [2]), particularly when doing so would create surplusage in the statute. Therefore, children born out of wedlock claiming death benefits under section 16 of the Workers’ Compensation Law should be required to prove only paternity and dependency.

The board, while concluding that Ricky Burns did not acknowledge claimant as his son, apparently made no findings as to the . questions of paternity and dependency. The board should be given an opportunity to address those issues.

Accordingly, the order of the Appellate Division should be reversed, with costs, appellant’s claim reinstated, and the matter remitted to the Appellate Division, Third Department, with directions to remand to the Workers’ Compensation Board for further proceedings in accordance with this opinion.

Fuchsberg, J.

(dissenting). The order should be affirmed for reasons stated in Justice John T. Casey’s opinion for a unanimous Appellate Division. In so saying, I would reiterate that there can be no quarrel with the general proposition that all children, regardless of the circumstances of their birth, “may suffer as much from the loss of a parent as a child born within wedlock or an illegitimate later acknowledged” (Weber v Aetna Cas. & Sur. Co., 406 US 164, 169). The statute here, however, does no more than facilitate the determination of the necessary predicate that the injured or deceased worker is indeed the parent of the child who presents a derivative claim for benefits under the Workers’ Compensation Law.

Judges Gabrielli, Wachtler and Meyer concur with Chief Judge Cooke; Judge Fuchsberg dissents and votes

to affirm in a separate opinion in which Judges Jasen and Jones concur.

Order reversed, etc.

      . In. 1981, the section was amended to substitute the words “born out of wedlock” for ‘illegitimate” so as to minimize the stigma unfairly associated with that status.

      . Without considering the substantive merits of each prerequisite that must be established by children born out of wedlock, to the extent that the statute imposes varying burdens of proof upon children bom in and those born out of wedlock, it is not constitutionally infirm. In effect, children born in wedlock must prove paternity only, and dependency will be presumed. On the other hand, children born out of wedlock must prove paternity, dependency, and acknowledgment. These differing evidentiary burdens serve administrative convenience and act against spurious claims. As such, they do not unfairly discriminate against children born out of wedlock (see Mathews v Lucas, 427 US 495; Weber v Aetna Cas. & Sur. Co., 406 US 164, 174-175, supra).


source: Caselaw Access Project

author: Jones, J.

license: Public Domain

text:
    In the Matter of Holy Spirit Association for the Unification of World Christianity, Appellant, v Tax Commission of the City of New York, Respondent.
    Argued March 30, 1982;
    decided May 6, 1982

      POINTS OF COUNSEL

      Laurence H. Tribe, of the Massachusetts Bar, admitted pro hac vice, for appellant.
    I. Government cannot condition tax exemption on a church’s abandonment of beliefs or practices that are independently protected or that others are allowed to pursue without losing their exempt status.
      (Frost Trucking Co. v Railroad Comm., 271 US 583; Memorial Hosp. v Maricopa County, 415 US 250; Shapiro v Thompson, 394 US 618; Hunter v Erickson, 393 US 385; United States v Jackson, 390 US 570; Sherbert v Verner, 374 US 398; Branti v Finkel, 445 US 507; First Unit. Church v Los Angeles, 357 US 545; Harris v McRae, 448 US 297; Maher v Roe, 432 US 464.) II. A group otherwise qualifying as religious may not be penalized because its “theology * * * binds it to a course of political activity * * *, fund raising and recruitment.” (United States v Macintosh, 283 US 605; Board of Educ. v Barnette, 319 US 624; United States v Ballard, 322 US 78; Martin v Struthers, 319 US 141; Jamison v Texas, 318 US 413; Schaumburg v Citizens for Better Environment, 444 US 620; Kedroff v St. Nicholas Cathedral, 344 US 94; Walz v Tax Comm., 397 US 664; Lemon v Kurtzman, 403 US 602.)

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Edith I. Spivack, Rochelle M. Corson and Russell D. Scott of counsel), for respondent.
    I. The facts establish that petitioner’s purposes and use of its property are not primarily religious, but combine religious, political and commercial activities. It does not qualify, therefore, for the primarily religious exemption provided by subdivision 1 of section 421 of the Real Property Tax Law. (Parker v Commissioner of Internal Revenue, 365 F2d 792, 385 US 1026; Founding Church of Scientology of Washington, D.C. v United States, 409 F2d 1146, 396 US 963; Christian Echoes Nat. Ministry v United States, 470 F2d 849, 414 US 864; Kuper v Commissioner of Internal Revenue, 332 F2d 562, 379 US 920; Buckley v Valeo, 424 US 1; McDaniel v Paty, 435 US 618; Theriault v Carlson, 495 F2d 390; Slee v Commissioner of Internal Revenue, 42 F2d 184; Matter of Swedenborg Foundation v Lewisohn, 40 NY2d 87; Krohn v United States, 246 F Supp 341.) II. Denial of tax exemption on the basis of the facts in this record does not violate constitutional guarantees of freedom of religion, speech, association or equal protection. (McDaniel v Paty, 435 US 618; Matter of Community Synagogue v Bates, 1 NY2d 445; Murdock v Pennsylvania, 319 US 105; Matter of Society for Ethical Culture in City of N. Y. v Spatt, 51 NY2d 449; Wisconsin v Yoder, 406 US 205; Brown v Dade Christian Schools, 556 F2d 310;
      Follett v McCormick, 321 US 573; Walz v Tax Comm., 397 US 664; Reynolds v United States, 98 US 145; United States v Seeger, 380 US 163.) III. Failure to follow the exclusive remedy for partial exemption and lack of proof of contemplation in good faith of construction for exempt use in any event constitute fatal bars for parcels designated Block 1258, Lot 42, Manhattan, and Block 476, Lot 1, Queens. (Young Women’s Christian Assn. of City of N. Y. v City of New York, 217 App Div 406, 245 NY 562; Young Women’s Christian Assn. of City of N. Y. v City of New York, 220 App Div 49, 247 NY 591; Sikora Realty Corp. v City of New York, 262 NY 312; Matter of St. Luke’s Hosp. v Beame, 47 Misc 2d 71; People ex rel. Northchester Corp. v Miller, 288 NY 163; People ex rel. Cord Meyer Co. v Feitner, 39 Misc 467; People ex rel. Sutphen v Feitner, 45 App Div 542; People ex rel. Greenwood v Feitner, 77 App Div 428; People ex rel. Buffalo, Rochester & Pittsford Ry. v Carmichael, 64 Misc 271; Matter of Stevens v Near, 202 Misc 324; Matter of Singer Co. v Tax Assessor of Vil. of Pleasantville, 86 Misc 2d 631.)

      Herbert Teitelbaum and Sanford Jay Rosen, Robin B. Johansen and Sarah E. Kurtz, of the California Bar, admitted pro hoc vice, for National Council of Churches of Christ in the U. S. A. and another, amici curiae.

    I. The redefinition of the court below of free exercise of religion is inconsistent with the First Amendment. (McRae v Califano, 491 F Supp 630, revd on other grounds sub nom. Harris v McRae, 448 US 297; Walz v Tax Comm., 397 US 664; Everson v Board of Educ., 330 US 1; McCollum v Board of Educ., 333 US 203; McGowan v Maryland, 366 US 420; Torcaso v Watkins, 367 US 488.) II. The justifications for the court below and explanations of its holding themselves disregard and imperil First Amendment freedoms. (Walz v Tax Comm., 397 US 664; Presbyterian Church v Hull Church, 393 US 440; Serbian Orthodox Diocese v Milivojevich, 426 US 696.) III. The dissent below adopts and applies correct First Amendment principles. (Matter of America Press v Lewisohn, 74 Misc 2d 562, 48 AD2d 798; Serbian Orthodox Diocese v Milivojevich, 426 US 696; Watson v Jones, 13 Wall [80 US] 679.) IV. The historic meaning of “free exercise of religion” demonstrates that central to the meaning of freedom of religion is the necessity for religious bodies themselves, rather than government or any other entity, to define, by their teachings and activities, what religion is. (Girard Trust Co. v Commissioner of Internal Revenue, 122 F2d 108.)

      Julius B. Poppinga, Samuel E. Ericsson and Stephen H. Galehach, of the Virginia Bar, admitted pro hac vice; Robert A. Destro, of the Wisconsin Bar, admitted pro hac vice, and Forest D. Montgomery, of the Washington, D.C. Bar, admitted pro hac vice, for the Catholic League for Religious and Civil Rights and others, amici curiae.

    I. The decision below violates established principles for defining religion. (United States v Seeger, 380 US 163; Torcaso v Watkins, 367 US 488; United States v Ballard, 322 US 78; Welsh v United States, 398 US 333; Matter of America Press v Lewisohn, 74 Misc 2d 562, 48 AD2d 798, 38 NY2d 708; Walz v Tax Comm., 397 US 664; McDaniel v Paty, 435 US 618; Christian Echoes Nat. Ministry v United States, 470 F2d 849, 414 US 864.) II. The examination of doctrine conducted by the court below and the Tax Commission violates the establishment clause. (Committee for Public Educ. v Regan, 444 US 646; Lemon v Kurtzman, 403 US 602; Walz v Tax Comm., 397 US 664; Serbian Orthodox Diocese v Milivojevich, 426 US 696; NLRB v Catholic Bishop of Chicago, 440 US 490; Presbyterian Church v Hull Church, 393 US 440; St. Nicholas Cathedral of Russian Orthodox Church in North Amer. v Kedroff, 302 NY 1, 344 US 94; Kreshik v St. Nicholas Cathedral, 363 US 190.) III. The decision below violates the free exercise of religion guarantee under the First Amendment. (Sherbert v Verner, 374 US 398; Cantwell v Connecticut, 310 US 296.) IV. The decision below violates the equal protection clause. (Yick Wo v Hopkins, 118 US 356.) V. The decision below violates the freedom of association. (N.A.A.C.P. v Alabama, 357 US 449; Scales v United States, 367 US 203; Schware v Board of Bar Examiners, 353 US 232; Greene v McElroy, 360 US 474; N.A.A.C.P. v Button, 371 US 415; Uphaus v Wyman, 360 US 72.) VI. By placing upon appellant the full burden of proof and persuasion on the issues of primary purpose and use, the court below denied due process and contravened controlling New York authority. (Speiser v

      Randall, 357 US 513; Matter of Watchtower Bible & Tract Soc. of N. Y. v Lewisohn, 35 NY2d 92; Matter of America Press v Lewisohn, 74 Misc 2d 562, 48 AD2d 798, 38 NY2d 708.)

      Robert L. Beebe, Stephen J. Harrison and Deborah R. Herbach for the State Board of Equalization and Assessment, amicus curiae.

    I. The separation of church and State permits limited government involvement with religion. (United States v Ballard, 322 US 78; United States v Seeger, 380 US 163; Wisconsin v Yoder, 406 US 205; Malnak v Yogi, 592 F2d 197; Walz v Tax Comm., 397 US 664; Everson v Board of Educ., 330 US 1; Board of Educ. v Allen, 392 US 236.) II. Tax exemption for religious groups are constitutionally permitted and the Legislature may constitutionally prescribe requirements for such exemptions. (Walz v Tax Comm., 397 US 664; Town of Hardenburgh, Ulster County, State of N. Y. v State of New York, 52 NY2d 536; Hebrew Free School Assn. of City of N. Y. v Mayor of N. Y., 99 NY 488; Young Men’s Christian Assn. of City of N. Y. v Mayor of N. Y., 113 NY 187; People ex rel. Society of Free Church of St. Mary v Feitner, 168 NY 494; Lawrence-Smith School v City of New York, 166 Misc 856, 255 App Div 762, 280 NY 805; Matter of De Peyster, 210 NY 216; Matter of Board of Educ. v Baker, 241 App Div 574, 266 NY 636.) IIL.The Tax Commission and the court below had the right and duty to examine the association’s doctrines and tenets to determine whether its primary purpose was religious. (Matter of America Press v Lewisohn, 74 Misc 2d 562, 48 AD2d 798, 38 NY2d 708; Parker v Commissioner of Internal Revenue, 365 F2d 792; Sisters of St. Joseph v City of New York, 49 NY2d 429; Christian Echoes Nat. Ministry v United States, 470 F2d 849, 414 US 864; Walz v Tax Comm., 397 US 664; Town of Hardenburgh, Ulster County, State of N. Y. v State of New York, 52 NY2d 536; Matter of Religious Soc. of Families v Assessor of Town of Carroll, 73 Misc 2d 923, 75 AD2d 1004, 51 NY2d 704, 768; Matter of Dudley v Kerwick, 52 NY2d 542.)

      Steven R. Shapiro for the American Civil Liberties Union and another, amici curiae.

    The decision below is based on a definition of religion which is irreconcilable with our constitutional tradition. (United States v Ballard,
      322 US 78; Christian Echoes Nat. Ministry v United States, 470 F2d 849, 414 US 684; Matter of Association of Bar of City of N. Y. v Lewisohn, 34 NY2d 143; People ex rel. Watchtower Bible & Tract Soc. v Haring, 8 NY2d 350; Everson v Board of Educ., 330 US 1; Lemon v Kurtzman, 403 US 602; Engel v Vitale, 370 US 421; Walz v Tax Comm., 397 US 664; McDaniel v Paty, 435 US 618; United States v Macintosh, 283 US 605.)

      Nathan Z. Dershowitz, Marc D. Stern and Victoria B. Eiger for American'Jewish Congress, amicus curiae.

    I. The real property tax exemption is available to religious corporations which teach about nontraditional religious matters. (Board of Educ. v Barnette, 319 US 624; United States v Seeger, 380 US 163; Welsh v United States, 398 US 333; Walz v Tax Comm., 397 US 664; Gillette v United States, 401 US 437; Matter of Association of Bar of City of N. Y. v Lewisohn, 34 NY2d 143; Matter of Community Synagogue v Bates, 1 NY2d 445; Matter of Diocese of Rochester v Planning Bd. of Town of Brighton, 1 NY2d 508; United States v Ballard, 322 US 78; Stevens v Berger, 428 F Supp 896.) II. Tax exemption may not be denied because a religious corporation engages in constitutionally protected activity. (Christian Echoes Nat. Ministry v United States, 470 F2d 849, 414 US 864; Big Mama Rag v United States, 631 F2d 1030; Sherbert v Verner, 374 US 398; Speiser v Randall, 357 US 513.)
   OPINION OF THE COURT

Jones, J.

In determining whether a particular ecclesiastical body has been organized and is conducted exclusively, for religious purposes, the courts may not inquire into or classify the content of the doctrine, dogmas, and teachings held by that body to be integral to its religion but must accept that body’s characterization of its own beliefs and activities and those of its adherents, so long as that characterization is made in good faith and is not sham. On this principle it must be concluded that the Unification Church has religion as its “primary” purpose inasmuch as much of its doctrine, dogmas, and teachings and a significant part of its activities are recognized as-religious, and in good faith it classifies as religious the beliefs and activities which the Tax Commission (Commission) and the court below have described as political and economic.

The Holy Spirit Association for the Unification of World Christianity (the Church) is one of more than 120 national Unification Churches throughout the world propagating a common religious message under the spiritual guidance of the Reverend Sun Myung Moon, the Unification movement’s founder and prophet. The Church was organized as a California nonprofit corporation in 1961, and since 1975 has maintained its headquarters in New York City.

In March, 1976 the Church applied to the Tax Commission of the City of New York under section 421 (subd 1, par [a]) of the New York Real Property Tax Law for exemption from real property taxes for the tax year beginning July 1, 1976 of three properties title to which it had acquired in 1975. The three properties are: the Church headquarters, located at 4 West 43rd Street in the Borough of Manhattan; the missionary residence, located at 305 West 107th-Street in Manhattan; and the maintenance and storage facility, located at 38-38 Ninth Street in the Borough of Quéens. Following hearings, the Tax Commission on September 21, 1977, by a vote of 4 to 3' denied the application. The majority concluded that, “although the applicant association does in certain respects bespeak of a religious association, it is in our opinion so threaded with political motives that it requires us to deny its application”. Having con-, eluded that the Church was not organized or conducted exclusively for religious purposes, the majority of the Commission had no occasion to consider whether the three properties were used exclusively for religious purposes. The dissenting members of the Tax Commission, explicitly declining to judge the validity or. content of the religious beliefs of the Church or its adherents or to submit the Church’s theology to analysis, concludéd that the Church was organized exclusively for religious purposes and that the three properties in question were used exclusively for statutory purposes. The dissenters would therefore have granted the application.

The Church then instituted the present proceeding under CPLR article 78 for judgment annulling the determination of the Commission, directing that the Church’s application be granted, and declaring that the three properties are entitled to tax exemption. By order dated September 21,1977 Supreme Court, New York County, transferred the proceeding to the Appellate Division. The Appellate Division, declaring itself unable to determine on the record then before it whether the Commission had acted arbitrarily and capriciously in denying the exemption, remanded the matter for a hearing by a Special Referee, holding the article 78 proceeding in abeyance pending receipt of the referee’s report.

Between January 15 and December 7, 1979 the Special Refereé heard extensive testimony as to the nature of the Church, the Church’s purpose and activities, and the uses of the three properties. On August 25, 1980 the Special Referee issued his report concluding that the Church’s primary purpose is religious but finding that the Commission had not acted arbitrarily or capriciously in its determination that “the Church is so inextricably interwoven with political motives and activities as to warrant denial of the tax exemption”, adding that “the evidence at the hearing established that petitioner’s religious purposes are intertwined with political and economic objectives that form an amalgam”.

On May 5, 1981 the Appellate Division confirmed the report of the Special Referee and the determination of the Commission by a vote of 4 to 1. Because that court, in reviewing the determination of the Commission invoked erroneous’legal principles (as did the majority of the Commission in ruling on the Church’s application for tax exemption), we now reverse..

It is appropriate at the threshold to delineate our holding in this case — to make explicit what we are not as well as what we are called on to decide. We are not called on to determine whether the Church has any real religious purpose or whether any of its doctrine, dogmas, and teachings constitute a religion. In this case it is recognized that at least many of the beliefs and a significant part of the activities of the Church are religious and that the Unification movement at least in part is a religion. The determination of the Tax Commission, the report of the Special Referee, the opinion at the Appellate Division and now the arguments of the Tax Commission in our court all, at least implicitly, accept this proposition.

The issue that we confront is a narrower one — is the Church, many of whose beliefs and activities are religious, organized and conducted primarily for religious purposes within the contemplation of section 421 (subd 1, par [a])? This, as understood by the Tax Commission and the Appellate Division, turns on whether the Church is engaged in so many or such significant nonreligious activities as to warrant the conclusion that its purpose is not primarily religious. More specifically the issue is whether the activities which have been found to be “political” and “economic” are for the purposes of that statute to be classified as secular rather than religious.

When, as here, particular purposes and activities of a religious organization are claimed to be other than religious, the civil authorities may engage in but two inquiries: Does the religious organization assert that the challenged purposes and activities are religious, and is that assertion bona fide? Neither the courts nor the administrative agencies of the State or its subdivisions may go behind the declared content of religious beliefs any more than they may examine into their validity. This principle was firmly established in Watson v Jones (13 Wall [80 US] 679, 728) when the Supreme Court declared that “[t]he law knows no heresy, and is committed to the support of no dogma, the establishment of no sect.” That court again condemned the judicial pursuit>of any such investigation in Board of Educ. v Barnette (319 US 624, 640-642, n omitted):

“Struggles to coerce uniformity of sentiment in support of some end thought essential to their time and country have been waged by many good as well as by evil men * * * As first and moderate methods to attain unity h,ave failed, those bent on its accomplishment must resort to an ever-increasing severity. As governmental pressure toward unity becomes greater, so strife becomes more bitter as to whose unity it shall be * * * Ultimate futility of such attempts to compel coherence is the lesson of every such effort from the Roman drive to stamp out Christianity as a disturber of its pagan unity [to] the Inquisition, as a means to religious and dynastic unity * * * Compulsory unification of opinion achieves only the unanimity of the graveyard.

“It seems trite but necessary to say that the First Amendment to our Constitution was designed to avoid these ends by avoiding these beginnings * * *

“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion *** If there are any circumstances which permit an exception, they do not now occur to us.” The articulation of the Supreme Court in foreclosing judicial inquiry into the truth or falsity of religious beliefs is equally applicable to judicial inquiry as to the content of religious beliefs.

“Freedom of thought, which includes freedom of religious belief, is basic in a society of free men. * * * It embraces the right to maintain theories of life and of death and of the hereafter which are rank heresy to the followers of the orthodox faiths. Heresy trials are foreign* to our Constitution. Men may believe what they cánnot prove. They may not be put to the proof of their religious doctrines or beliefs * * * Many take their gospel from the New Testament. But it would hardly be supposed that they could be tried before a jury charged with the duty of determining whether those teachings contained false representations * * * The religious views espoused by respondents might seem incredible, if not preposterous, to most people. But if these doctrines are subject to trial before a jury charged with finding their truth or falsity, then the same can be done with the religious beliefs of any sect. When the triers of fact undertake that task, they enter a forbidden domain.” (United States v Ballard, 322 US 78, 86-87.)

The reliance by the Tax Commission and by the Appellate Division on Christian Echoes Nat. Ministry v United States (470 F2d 849) as authority for their examination and consequent characterization of the activities of the Church is misplaced (aside from whether the holding in that case has been subsequently eroded). The issue in that case was the entitlement of a religious organization to tax exemption under the Internal Revenue Code. The statute there involved (US Code, tit 26, § 501, subd [c], par [3]) in effect deprived a religious organization which would otherwise be tax exempt of that exemption if a substantial part of its activities was carrying on propaganda or otherwise attempting to influence legislation or if it participated in political campaigns on behalf of candidates for public office. We are not here concerned with whether the Legislature has authority, should it choose to do so, to deny exemption to an organization whose purpose is primarily religious but which as part of its religious program devotes a substantial portion of its activities to political objectives. It suffices for our present purposes to note that section 421 (subd 1, par [a]) includes no such provision.

We turn then to the first avenue of inquiry allowed us, namely, whether the Church asserts that its religious doctrine and teachings embrace the challenged activities. We quote the statement with respect to the history and doctrine, dogmas and teachings of the Church from the brief of the Church in our court (without its footnote references to sources in the record).

“Thé Unification movement has its origins in Korea as one of the host of revivalist Christian religions that flourished there in the aftermath of the forty-year Japanese occupation (1905-1945), during which Korean religions were suppressed. Common to many of these new, patriotic religions was the theme of Korea as the modern Holy Land, birthplace of the new Messiah. This theme likewise animates the religion founded by the Reverend Moon.

“Unification theology is based on the teachings of the Old and New Testaments as clarified by revelations held to have been received by the Reverend Moon directly from Jesus Christ beginning in 1936, and subsequently recorded by his followers in the book Divine Principle. Central to Divine Principle is the millenialist conviction that the time has come for the forces of God to reclaim the earth from the forces of Satan, and to restore ‘the Kingdom of God on earth.’

“According to Unification theology, the ‘great promise of Christianity’ is ‘the return of Christ’ — ‘not as a visiting God but as a sinless man’ — to complete the work Jesus began 2,000 years ago. Unification faith holds that ‘when Jesus came he was the Messiah,’ the perfect image of God. Through the Resurrection, the Church believes, Jesus brought ‘spiritual salvation,’ but the physical institutions of this world — beginning with the family — remained unredeemed; in the Church’s view, it" is for the new Messiah to restore a Bride and establish the True Family serving as the foundation for ending ‘the existence of evil in the world,’ and to accomplish ‘not only spiritual but also physical’ salvation for mankind. Adherents of the Unification faith look to the Reverend Moon to accomplish this task.

“In Unification doctrine, every temporal sphere — political, cultural, and economic — is a battleground for the forces of God and the forces of Satan. God-denying Communism is deemed a singularly potent evil, threatening to overwhelm the forces of God just as Cain overwhelmed Abel; the division between North and South Korea is seen as a central providential instance of the struggle between the sons of Adam. Other temporal controversies also assume crucial spiritual significance in Unification theology.

“Committed to the view that men and women need no ‘mediator between themselves and God,’ Unification faith makes no provision for a ‘priestly class.’ All members of the Church, for example, are qualified to conduct prayer services and other religious activities. Church members fall into two categories — some 7,000 members, serving the Church full-time, are engaged in some combination of evangelical, educational, pastoral, and fund-raising activities, and rely upon the Church or local Church units to meet their material needs; the remaining 30,000 members accept the tenets of the Church as their faith but devote less than full-time efforts to the Church. Representing a movement that proclaims ah urgent millenialist gospel, the Church appeals primarily, but not exclusively, to the young.”

There can be no doubt on the record before us that the Church has amply demonstrated that it does indeed assert that those beliefs and activities which the Tax Commission and the Appellate Division have found to be political and economic are of thev essence of its religious doctrine and program. This has been the finding at every stage of this matter. The Special Referee reported that “the petitioner’s theological doctrines bind petitioner to a course of political activism”, that “petitioner believes that the physical world consisting of science and economics as well as the spiritual world consisting of religion have developed in accordance with ‘God’s providence’ and that ‘religion and economy relate to social life through politics’ ”, that “it is petitioner’s religious tenet that the republican form of goverment with separate or coequal powers held by the legislatives, judicial and executive branches of government is a Satanic principle and that these three governmental branches under the presfent political system must be brought under a single controlling force as a condition for the, second coming of the Messiah”; that “according to the Divine Principle, the forces of Satan must be subdued and Korea unified undér the type of political environment where religions and science are unified in order to make the world ready for the second coming of the Messiah”; and that “it also appears that petitioner is opposed to the constitutionally mandated separation of church and State.” Following a recital of illustrative examples of “political” activities, the report continues, “The petitioner’s involvement in these political activities is not an escalated mobilization in behalf of a political cause. Each activity is consistent with the expression of political motives set forth in the Divine Principle and is part of an over-all plan and it is petitioner’s deployment of its cadre and administrators for these activities that mark its involvement in political causes”. “One of the principal tenets advanced in the Divine Principle is that there be complete integration of all economic, social and religious activities.”

The Appellate Division described the referee as reporting, “that petitioner’s primary purpose is religious, but that petitioner’s theology, as expressed in Reverend Moon’s writings binds it to a course of political activity”. (81 AD2d, p 68.) That court itself concluded that “religious and nonreligious themes are inextricably intertwined in the doctrine”, and that, “[therefore, despite the religious content of the doctrine, and the leitmotif of religion with which the eclectic teachings are tinged, the doctrine, to the extent that it analyzes and instructs on politics and economics has substantial secular elementé.” (81 AD2d, p 75.)

We conclude that it has been sufficiently demonstrated that what have been characterized below as political and economic beliefs and activities are in the view of the Church integral aspects of its religious doctrine arid program.

We turn then to the second avenue of our restricted inquiry. No serious question can be raised on the record before us that the Church has demonstrated the sincerity and the bona fides of its assertions that in its view the political beliefs and activities of the Church and its members and the efforts which they devote to fund raising and recruitment are at the core of its religious beliefs. The Tax Commission found that the Church “does in certain aspects bespeak of a religious association”; the Special Referee reported that the Church’s “primary purpose is religious” and that “it is religious in nature and nothing contained in this report should be considered as constituting a comment on the sincerity or lack of sincerity with which any members of [the Church] practices his faith”. The Appellate Division concluded “that one of [the Church’s] purposes is religious”. We do not confront in this case an organization every aspect of whose claim to being religious is challenged, and whose bona fides might accordingly be said to be suspect.

The error of the majority of the Tax Commission, of the Special Referee and of the majority at the Appellate Division is that each asserted the right of civil authorities to examine the creed and theology of the Church and to factor out what in its or his considered judgment are the peripheral political and economic aspects, in contradistinction to what was acknowledged to be the essentially religious component. Each then took the view that beliefs and activities which could be objectively accurately described by knowledgeable outsiders as “political” and “economic” were by that fact precluded from being classified as “religious”.

As stated, it is not the province of civil authorities to indulge in such distillation as to what is to be denominated religious and what political or economic. It is for religious bodies themselves, rather than the courts or administrative agencies, to define, by their teachings and activities, what their religion is. The courts are obliged to accept such characterization of the activities of such bodies, including that of the Church in the case before us, unless it is found to be insincere or sham.

Applying this principle, we conclude that on the record before us, as a matter of law, the primary purpose of .the Church (much of whose doctine, dogmas and teachings and a significant part of whose activities are recognized as religious) is religious and that the determination of the Tax Commission to the contrary is both arbitrary and capricious and affected by error of law.

Determinations with respect to the use to which each of the three individual properties is put, however, cannot be made as a matter of law. Accordingly, inasmuch as such determinations should be made in the first instance by the Tax Commission rather than by the courts, tlie case must be remitted to Supreme Court with. directions to it to remand to the. Tax Commission to make determination as to the use of each of the three properties in conformity with the views expressed in this opinion.

For the reasons stated, the judgment of the Appellate Division should be reversed, without costs, and the cage remitted to Supreme Court for further remand in accordance with this opinion.

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

Judgment reversed, without costs, and matter remitted to Supreme Court, New York County, with directions to remand to the Tax Commission of the City of New York for further proceedings in accordance with the opinion herein.

      . New York Real Property Tax Law (§ 421): “1. (a) Real property owned by a corporation or association organized or conducted exclusively for religious, charitable, hospital, educational, moral or mental improvement of men, women or children or cemetery purposes, or for two or more such purposes, and used exclusively for carrying out thereupon one or more of such purposes either by the owning corporation or association or by another such corporation or association as hereinafter provided shall be exempt from taxation as provided in this section.”

      . The statute uses the adverb “exclusively”, but we have held that it connotes “principally” or “primarily” (Matter of Association of Bar of City of N. Y. v Lewisohn, 34 NY2d 143, 153).

      . Nor are we here concerned with cases (quotations from which are relied on by the Tax Commission), relating to the authority of the State in the employment of its police power to regulate or restrict the exercise of what are concededly religious principles, in which the courts deny the right of the religious group to be final arbiter of the issue (e.g., Wisconsin v Yoder, 406 US 205 [holding Wisconsin’s compulsory school-attendance law unconstitutional as applied to members of the Amish religion because contrary to their religious beliefs]; United States v Seeger, 380 US 163 [upholding claims by conscientious objectors to exemption from universal military service]).

      . Before the Tax Commission the Church offered evidence from five witnesses, together with substantial documentary proof. At the hearings before the Special Referee, it introduced the testimony and accompanying documentary submissions of 16 witnesses, covering some 1,340 pages of the transcript.

      . The Appellate Division was explicit in this regard: “We are compelled to conduct a broad inquiry into [the Church’s] doctrine and activities in order to determine whether petitioner qualifies for the tax exemption provided by law.” (81 AD2d, pp 71-72.)

      . o If such categorization were to be undertaken we note that substantial arguments are advanced that traditional theology has. always mandated religious action in social, political and economic matters. Numerous illustrations are cited of essentially religious concern and activity in areas of political and economic action in J udeo-Christian history. The point is made that virtually all of the recognized religions and denominations in America today address political and economic issues within their basic theology. (See, e.g., the briefs of the amici curiae filed in support of the position of the Church on this appeal: American Civil Liberties Union and New York Civil Liberties Union] American Jewish Congress; The Catholic League for Religion and Civil Rights; The National Association of Evangelicals, and The Center for Law and Religious Freedom of the Christian Legal Society; and National Council of Churches of Christ in the U. S. A., and New York State Council of Churches.) As reiterated, however, it is not for the courts to make judgments with reference' to these substantive matters. .


author: Jones, J. Meyer, J.

text:
    The People of the State of New York, Respondent, v Albert Bennett Petgen, Appellant.
    Argued March 29, 1981;
    decided May 11, 1982

      POINTS OF COUNSEL

      E. Stewart Jones, Jr., and Robert M. Cohen for appellant.
    I. Judge Battisti’s order violated the well-settled rule that a Judge cannot overrule the determination of another Judge of co-ordinate jurisdiction. (Matter of Dondi v Jones, 40 NY2d 8; People v Jenkins, 39 AD2d 924; People v Solomon, 91 Misc 2d 760; People v Bauer, 36 AD2d 888; People v Canna, 35 AD2d 1062; People v La Placa, 17 AD2d 766; People v Tartt, 71 Misc 2d 955; George W. Collins, Inc. v Olsker-McLain Inds., 22 AD2d 485.) II. Judge Battisti’s order violated the law of the case doctrine. (Martin v City of

      Cohoes, 37 NY2d 162; People v Watson, 57 AD2d 143; Duane Sales v Carmel, 57 AD2d 1003; Matter of Marocco v State of New York, 56 AD2d 949; Fadden v Cambridge Mut. Fire Ins. Co., 51 Misc 2d 858, 27 AD2d 487; Matter of McGrath v Gold, 36 NY2d 406; Dain & Dill v Betterton, 39 AD2d 939; George W. Collins, Inc. v Olsker-McLain Inds., 22 AD2d 485.) III. It was an abuse of discretion for Judge Battisti to deny defendant’s motion to extend time to seek suppression. (People v Huelin, 85 Misc 2d 139; People v Egan, 72 AD2d 239; People v Frigenti, 91 Misc 2d 139; People v Thomas, 47 NY2d 37; People v Jenkins, 73 AD2d 694; People v Wyssling, 82 Misc 2d 708; People v Solomon, 91 Misc 2d 760.) IV. Original counsel’s failure to make the suppression motions constitutes ineffective assistance of counsel. (People v Crump, 53 NY2d 824; People v Brown, 45 NY2d 852; People v Brown, 40 NY2d 381; People v Rivera, 107 Misc 2d 544; People v Detling, 73 AD2d 937; People v Ramos, 53 AD2d 703; People v Primo, 69 AD2d 890; People v Donald R. E., 53 AD2d 780; People v Roff, 67 AD2d 805; People v Bell, 48 NY2d 933.)

      Seymour Meadow, District Attorney (Michael O’Brien of counsel), for respondent.
    I. Reargument of defendant’s application granted by one Judge was properly before a Judge of co-ordinate jurisdiction. (People v Calhoun, 49 NY2d 398; People v Yarter, 41 NY2d 830; People v Young, 48 NY2d 995; Matter of Cheryl B. v Alfred W. D., 99 Misc 2d 1085; People v Jenkins, 39 AD2d 924; People v Garofalo, 71 AD2d 782, 49 NY2d 879; People v Reap, 68 AD2d 964; Matter of Wright v County of Monroe, 45 AD2d 932; Kamp v Kamp, 59 NY 212; People v Whitridge, 144 App Div 493.) II. The order on reargument superseded the prior order. (Aridas v Caserta, 41 NY2d 1059; Bonilla v Reeves, 49 Misc 2d 273; Foley v Roche, 68 AD2d 558; Simpson v Loehmann, 21 NY2d 990; Tonkonogy v Seidenberg, 63 AD2d 587; Rosemont Enterprises v Irving, 49 AD2d 445; Weiss v Nathan, 30 AD2d 856; Dennis v Stout, 24 AD2d 461; Mutual Life Ins. Co. of N. Y. v 160 East 72nd St. Corp., 272 App Div 48.) III. The denial of defendant’s untimely application for an evidentiary hearing before trial was not an abuse of discretion. (People v Turner, 49 NY2d 925; People v Stafford, 79 AD2d 435; People v McCall, 17 NY2d 152;
      People v Bostic, 97 Misc 2d 1039; People v Weaver, 49 NY2d 1012; People v Glen, 30 NY2d 252; People v Schultz, 40 AD2d 690; Feuerstein v People of N. Y., 515 F Supp 573; People v Ganci, 27 NY2d 418, 402 US 924; People v L. B. Smith, Inc., 108 Misc 2d 261.) IV. Defendant’s claims of ineffective assistance of counsel are not supported by the record and must be considered waived by his plea. (People v Thomas, 53 NY2d 338; People v Lewis, 46 NY2d 825; People v Brown, 45 NY2d 852; People v Raco, 72 AD2d 857; People v De Mauro, 48 NY2d 892; People v Rivera, 73 AD2d 528; People v Pascale, 48 NY2d 997; People v La Ruffa, 37 NY2d 58, 423 US 917; People v Lynn, 28 NY2d 196; Menna v New York, 423 US 61.)
   OPINION OF THE COURT

Jones, J.

An order denying an application for permission to make a late motion to suppress, as distinguished from an order denying a motion to suppress on the merits, does not come within the scope of CPL 710.70 (subd 2), and accordingly the right to appellate review thereof is forfeited by a guilty plea. Likewise such a plea, entered on advice of competent counsel, constitutes a forfeiture of a claim of prior ineffective assistance of counsel on the part of a former attorney where the full measure of the asserted derelictions of the first attorney were known to the second attorney who nonetheless counseled acceptance of the plea.

Johnny Marmo was shot and killed on December 14, 1977. Defendant and his son were indicted on charges of manslaughter in the first degree. They were convicted in April, 1979 after a trial in which one attorney represented both of them.

In consequence of an allegedly improper search conducted by the police after the Marmo incident, defendant had alsó been charged individually in a separate 45-count indictment with one count of alleged unlawful disposition of a machine gun, one count of alleged possession of marihuana, and 43 counts of possession of various weapons. This indictment, returned February 16, 1978, led to the conviction which is the subject of the present appeal.

At defendant’s arraignment on the 45-count indictment on March 8, 1978, pursuant to CPL 710.30 the People served notice of their intention to offer in evidence on trial oral statements made by defendant to a police officer on December 14, 1977. Defendant’s then counsel, who was also representing him on the manslaughter charge, took no action with respect to that notice, and the 45-count indictment lay dormant until after defendant had been convicted on the manslaughter charge. Defendant’s present counsel, brought in to represent him on the appeal from his conviction for manslaughter (which conviction was reversed at the Appellate Division on the ground that defendant had been deprived of his constitutional right to assistance of counsel by reason of the joint representation of both defendant and his son by the same attorney [People v Richard MM., 75 AD2d 389]), first learned of the present charges in September, 1979. At his request County Court put the case over to permit the substitute counsel to familiarize himself with the case. Communications with defendant’s prior attorney having been unproductive, finally on December 14, 1979 counsel obtained a copy of the 45-count indictment from the District Attorney and was then informed that no motions, had been made and accordingly no suppression hearing held.

The normal statutory period of 45 day's within which to make a motion to suppress having long since expired, on January 7, 1980 counsel made an application, pursuant to CPL 710.40 (subd 2), for permission to file a late suppression motion and for other relief. On January 25, 1980 Judge Fromer of Greene County Court granted permission to file the late motion to suppress. The District Attorney then sought reargument before Judge Battisti of the same court, and on February 8,1980, based in part on representations by the District Attorney that Judge Fromer had disqualified himself from hearing the case, Judge Battisti granted reargument and on réargument denied the application for permission to file the late motion to suppress. One week later defendant entered a plea of guilty to the first count in full satisfaction of the 45-count indictment.

On appeal from his resulting conviction the Appellate Division affirmed, rejecting defendant’s contentions that, as a Judge of co-ordinate jurisdiction, Judge Battisti had no authority to grant reargument, that in any event it was error to have denied defendant’s application to file a late motion to suppress, and that defendant was denied effective assistance of counsel by his first attorney, all on the merits. We affirm but on a different rationale.

We conclude that by his plea of guilty defendant forfeited his right to appellate review of the contentions he now presses on us. The right to appellate review of the denial of a motion to suppress is preservéd notwithstanding a guilty pléa only in consequence of express statutory provision (CPL 710.70, subd 2). Defendant’s application for permission to file a late motion to suppress, however, is to be distinguished from a motion to suppress. The granting of that application depended on a factual determination that, “owing to unawareness of facts constituting the basis thereof or to other factors, the defendant did not have reasonable opportunity to make the motion previously” (CPL 710.40, subd 2); it did not involve consideration or denial of the merits of the constitutional contentions which defendant might later have asserted on a motion to suppress had permission been granted him to make such a motion. Accordingly, his right to appeal from the denial of his application did not survive his plea of guilty under the provisions of CPL 710.70 (subd 2).

Nor does defendant’s assertion in this case that he was denied effective assistance of counsel survive his plea. There is no suggestion that, aside from the asserted default of the first attorney in failing to make a suppression motion, the acceptance of the plea was infected by any ineffective assistance of counsel. Defendant’s replacement counsel, confronted with the fact that his application for permission to make a late motion to suppress had been denied, was fully aware of all the asserted derelictions of the first attorney and, by reason of his own unquestioned competence and experience as attorney for th^ defense, was fully qualified to make a seasoned assessment of defendant’s claims in the circumstances and of the likelihood of their judicial acceptance. In this instance it cannot be said that any ineffective assistance of counsel vitiated defendant’s plea of guilty premised as it was on advice of counsel (as to which there is now no suggestion of incompetency) comprehending, inter alia, the very claims of ineffective assistance of counsel that defendant now urges on us.

For the reasons stated, the order of the Appellate Division should be affirmed.

Meyer, J.

(dissenting). Respectfully, I dissent. The majority ignores the facts that in denying defendant’s motion to suppress, Judge Battisti reversed the order of a Judge of co-ordinate jurisdiction, Judge Fromer, who had granted defendant a suppression hearing. Because the Battisti order was made without authority, was apparently based upon the statement (which court records demonstrate to have been incorrect) that Judge Fromer had disqualified himself, and was expressly stated to be the predicate for defendant’s guilty plea, I would reverse the order of the Appellate Division and remit the matter to the County Court with directions to permit defendant to withdraw his plea if he be so advised and to proceed with the suppression hearing ordered by Judge Fromer subject, however, to a renewed motion for reargument by the People addressed to Judge Fromer with respect to that order.

Judge Battisti, to whom the People’s motion for reargument was addressed, made no finding that Judge Fromer had disqualified himself. Rather he considered the suppression question as an original matter and not on the basis of reargument of Judge Fromer’s order, for his reasoning was “I was assured by your office you would be ready to try this. Now, I’m faced with a suppression hearing. I’m not going to grant.”

He was not asked to grant and the issue before us is not whether he exercised his discretion properly, but whether he had the authority to review Judge Fromer’s prior grant made, in the exercise of discretion. As a Judge of coordinate jurisdiction he could neither ignore nor overrule Judge Fromer’s order granting a hearing on defendant’s suppression motion. He could act only if, on a reargument motion addressed to Judge Fromer, the latter disqualified himself. To reason as did the Appellate Division majority that, without any attempt to ascertain from Judge Frqmer whether he had in fact disqualified himself and without any finding of disqualification, Judge Battisti could withdraw the right to a suppression hearing previously granted by Judge Fromer is simply to ignore the rule firmly embedded in the law, that a Judge of co-ordinate jurisdiction has no authority to sit in review of a colleague’s order.

Moreover, the District Attorney’s statement, upon which the Appellate Division relied, was inconsistent with the fact, for as shown by court records of which judicial notice can be taken, Judge Fromer presided in other later, matters concerning defendant, which he would not have done (nor indeed would he have made the original order granting a suppression hearing) had he disqualified himself.

The record is clear that Judge Battisti’s refusal to allow a suppression hearing was the basis of defendant’s plea, for defendant’s attorney stated when the plea was entered that the prior not guilty plea was being withdrawn “in view of the denial of our application for permission to file suppression motions and to conduct the suppression hearing” and reiterated at sentence that defendant “entered a plea of guilty having been effectively deprived of all of his pretrial rights” to which Judge Battisti responded that “if you desire to appeal that suppression hearing you are perfectly entitled to do it.”

It is, therefore, incorrect to characterize the Battisti order, as the majority does (p 532), as an “order denying an application for permission to make a late motion to suppress”. It was rather an unauthorized order taking away from defendant the suppression hearing already granted and the right of appeal from denial on the merits that would have been defendant’s under CPL 710.70 (subd 2) had that hearing resulted in denial of his motion to Suppress. Correctly described the order is well within the scope and intent of that subdivision, though technically not itself an order denying a motion to suppress.

There was, therefore', no forfeiture of defendant’s right to appeal. Simply put, the only question is whether Judge Battisti had authority to reverse Judge Fromer’s order or was required by it to proceed with the suppression hearing. He did not have such authority and defendant’s plea having been entered solely because he was improperly deprived of the suppression hearing previously granted to him, defendant should be given back his plea (cf. People v Thomas, 53 NY2d 338, 344) without prejudice to a proper motion by the People to reargue Judge Fromer’s order granting a hearing, if they be so advised.

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

Order affirmed.

      . (CPL 710.40, subd 1; 255.20, subd 1.),

      . CPL 710.70 (subd 2) provides: “An order finally denying a motion to suppress evidence may be reviewed upon an appeal from an ensuing judgment of conviction notwithstanding the fact that such judgment is entered upon a plea of guilty.”
      Even if we were to accept the dissenter’s characterization of Judge Battisti’s order of February 8,1980 as “an unauthorized order taking away from defendant the suppression hearing already granted” (dissent, p 537), that would not change the consequence to be attached to his guilty plea. However characterized, and whether or not authorized, the order did mot constitute a disposition on the merits of the motion to suppress and accordingly did not come within the preservative shelter of subdivision 2.

      . Indeed it may be persuasively argued that even if there were but one attorney, if the ineffective assistance of counsel did not infect the plea bargaining process itself, the defendant, having admitted commission of the criminal act by his guilty plea, should be held to have forfeited any claim of ineffective assistance of counsel not directly involved in the plea bargaining process.

       No issue of ineffectiveness of counsel is involved in Judge Battistj’s ruling, though the ineffectiveness of defendant’s original counsel, who not only made no motion ■ to suppress but also “lost” the file, was apparently involved in Judge Fromer’s order.


author: Per Curiam.

text:
    Michaeline O’Connor et al., Appellants, v Anthony Midiria et al., Respondents.
    Decided May 11, 1982

      POINTS OF COUNSEL

      Robert A. Di Nieri for appellants.

      Sam C. Bonney for Anthony Midiria, respondent.

      James R. Sullivan for Michael Kane and another, respondents.
   OPINION OF THE COURT

Per Curiam.

The Workers’ Compensation Board having properly acquired jurisdiction with respect to an employee’s injuries, the board’s determination that those injuries were accidental and occurred within the course of her employment is binding between the parties under the exclusive remedy and finality provisions of the Workers’ Compensation Law and, even though the employee did not herself apply for or accept benefits, is, until set aside, a bar to an action by the employee against her employer for damages based on intentional tort. Accordingly, the order of the Appellate Division granting summary judgment to defendants should be affirmed, with costs.

This action ¿rises out of an alleged intentional assault on plaintiff Michaeline O’Connor by her coemployee, defendant Midiria, while in the course of their employment at the Seneca Falls Pizza Hut. Plaintiffs allege that late in the evening of September 17, 1978, Midiria locked Mrs. O’Connor in a walk-in cooler located in the parking lot of the restaurant and then turned out the lights, leaving the parking lot in darkness. Mrs. O’Connor freed herself from the cooler, but in attempting to return to the restaurant, she stumbled and fell over the sidewalk curbing, fracturing her ankle and injuring her hip. A report of the injury was submitted to the compensation board by Mrs. O’Connor’s treating physician and by her employer as well.

Mrs. O’Connor and her husband seek to recover compensatory and derivative damages from Midiria and, predicated upon their prior knowledge of Midiria’s propensity for malicious conduct, from Pizza Hut and Michael Kane, the manager of the restaurant, as well. The latter each moved for summary judgment, contending that the action is barred by the Workers’ Compensation Board’s subsequent determination of compensability and that, in any event, plaintiffs failed to state a claim against them in intentional tort. Plaintiffs answered that they neither applied for nor accepted benefits from the compensation board but, instead, elected to pursue their remedy at law and, thus, that the board’s ex parte determination of accidental injury does not bar recovery of damages.

Special Term denied defendants’ motions. The Appellate Division reversed, granted the motions and dismissed the complaint, holding the board’s determination of accidental injury conclusive and binding on the court. We now affirm.

In Werner v State of New York (53 NY2d 346), where claimant applied for and received workers’ compensation death benefits, we held that she was barred by the exclusive remedy and finality provisions of the Workers’ Compensation Law from maintaining a wrongful death action against the deceased worker’s former employer. Although the present case arises in a slightly different factual context, the legal issue is the same. For here, as in Werner, the board rendered a determination of “accident, notice and causal relationship * * * for the injury.” Plaintiff Michael - ine O’Connor had notice that the employer’s report had been filed and that board claim proceedings had been scheduled. The board’s determination is binding between the parties not only because of sections 11, 23 and 29 of the Workers’ Compensation Law, but also on settled principles of res judicata which apply to administrative determinations when the agency is acting, as does the compensation board, in a quasi-judicial capacity (Werner, supra, at p 353). To permit further adjudication of the question after the board has made an award would be inconsistent with the statutory mandate that the compensation remedy be exclusive as to the employer and that the board’s decision be conclusive.

Plaintiffs argue, however, citing Jones v State of New York (33 NY2d 275), that where an employee elects to pursue his common-law remedy for intentional tort, the employer should be estopped from filing a compensation claim on the employee’s behalf. This contention misconceives the purpose of an employer’s report of injury, which is to protect both the employer and the employee. The quid pro quo for the “swift and sure source of benefits to the injured employee” (O’Rourke v Long, 41 NY2d 219, 222) is the limitation of the employer’s liability for work-related accidents to compensation (O’Rourke, supra). Whether the employee or the employer first brings the injury to the attention of the board, a finding by the board that the injury is compensable is, until set aside, a final and conclusive determination which bars an action at law.

It should be noted, however, that an employee is not without protection when the employer reports the injury. Under section 20 of the Workers’ Compensation Law an employee who wishes to contest compensability on the ground that the injury was intentional rather than accidental may do so before the board by demanding a hearing. Nor is Michaeline O’Connor, despite her failure to raise the issue before the board, entirely foreclosed, for she may still apply to the board pursuant to section 123 for a change in its determination. What she may not do is undermine the conclusiveness of the board’s determination and the exclusivity of the compensation remedy by collateral attack in an action such as this.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur in Per Curiam opinion.

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [b]), order affirmed, with costs.

       It noted further that defendants would, in any event, be entitled to judgment on the merits because plaintiffs’ complaint contained no allegation that Michaeline O’Con-nor’s injury was caused by direct contact or by an intentional or deliberate act of the employer or its manager.


author: Gabrielli, J.

text:
    Kevin McCarthy, Appellant, v Volkswagen of America, Inc., et al., Respondents.
    Argued February 16, 1982;
    decided May 11, 1982

      POINTS OF COUNSEL

      James J. Hasson for appellant.
    I. Plaintiff’s mental incapacity warrants tolling of the Statute of Limitations pursuant to CPLR 208. (Prude v County of Erie, 47 AD2d 111; Matter of Hurd v County of Allegany, 39 AD2d 499.) II. Special Term’s findings of fact, based upon the demeanor, qualifications, testimony and credibility of the witnesses, consideration of the records and exhibits received into evidence, were supported entirely by the record and should not be disturbed. (Horn v State of New York, 31 AD2d 364; Quinones v St. Vincent’s Hosp. of City of N.Y., 20 AD2d 529; 67 Wall St. Co. v Franklin Nat. Bank, 44 AD2d 825; Matter of Anonymous v Anonymous, 25 AD2d 350; Gillette v Heinrich Motors, 55 AD2d 841; Hoffman v Board of Educ., 64 AD2d 369.) III. Insanity has many forms ánd definitions and where insanity may be shown in a legal proceeding the rule for establishing mental capacity or the want of it varies according to the object or purpose of the proceeding.

      Herbert Rubin, Michael Hoenig, Edward L. Birnbaum and David B. Hamm for respondents.
    I. CPLR 208 speaks to “insanity”, not “neurosis”. Therefore, that statute is inapplicable to plaintiff’s case. (New York Life Ins. Co. v Taylor, 147 F2d 297; Matter of Pokorny v Wallace, Parkes & Whiteside, 14 AD2d 662; Jones v Beame, 86 Misc 2d 832, 56 AD2d 778, 45 NY2d 402; De Gogorza v Knickerbocker Life Ins. Co., 65 NY 232; Mason v Henry, 152 NY 529; Doyon v Bascom, 38 AD2d 645.) II. The decision of the court below in Matter of Hurd v County of Allegany (39 AD2d 499), even if that case was properly decided, provides no support for a finding of “insanity” on the part of this plaintiff. (De Gogorza v Knickerbocker Life Ins. Co., 65 NY 232.) III. The unanimous court below properly dismissed the complaint upon consideration of all of the facts and relevant legal principles. Special Term’s decision was premised upon an erroneous refusal to consider relevant and material evidence in the record. (Matter of Hurd v County of Allegany, 39 AD2d 499; Graboi v Kibel, 432 F Supp 572.) IV. The Statute of Limitations represents an important public policy. Accepting plaintiff’s position would seriously jeopardize that public policy and invade the province of the Legislature. (Schwartz v Heyden Newport Chem. Corp., 12 NY2d 212; Connell v Hayden, 83 AD2d 30; Thornton v Roosevelt Hosp., 47 NY2d 780; Martin v Dierck Equip. Co., 43 NY2d 583; Gregoire v Putnam’s Sons, 298 NY 119; Hoffman v Keller, 193 F Supp 733; McDonald v Boslow, 363 F Supp 493; United States v Ming, 466 F2d 1000.)
   OPINION OF THE COURT

Gabrielli, J.

The issue posed upon this appeal is whether an injured plaintiff may successfully assert the toll of the Statute of Limitations for the disability of insanity, created by CPLR 208, upon the claim that he had suffered from a post traumatic neurosis.

Plaintiff was seriously injured on July 26,1974 when the 1965 Volkswagen he was operating struck a utility pole and burst into flames. As a result of the accident plaintiff suffered massive injuries, including severe fractures and extensive burns. Plaintiff later commenced this personal injury action against Volkswagen of America on September 28, 1978 and against Volkswagen Aktiengesellschaft on January 5,1979. Defendants then moved to dismiss the action as barred by the three-year Statute of Limitations provided by CPLR 214 (subd 5).

In opposition to this motion to dismiss, plaintiff asserted that the running of the Statute of Limitations was tolled by virtue of his claimed disability of insanity. CPLR 208 provides, in pertinent part, that where a person is under a disability of “insanity” at the time his cause of action accrues, the limitations period in a personal injury action will be extended to three years after the disability ceases.

At a hearing to determine plaintiff’s mental condition during the period of time surrounding the accident, plaintiff’s psychiatric expert testified that plaintiff was suffering from a condition known as “post traumatic neurosis”. Although it was established that plaintiff could function normally in many respects shortly after the accident, the expert opined that as a result of this neurosis plaintiff had attempted to repress and forget as much of the accident as possible and therefore would have had difficulty in cooperating with counsel or understanding his rights regarding the accident. Defendant’s expert concluded, in contrast, that plaintiff was not previously unable to protect his rights. The record discloses that in February, 1975, plaintiff successfully entered college, and shortly thereafter he resumed participation in athletics and returned to his job as a stock clerk in a supermarket. In fact, during the period of plaintiff’s claimed insanity, he was named as a defendant in an action by a passenger in the accident vehicle, and on September 17, 1975, less than 14 months after the accident, a third-party complaint against the City of New York was filed on his behalf seeking indemnification for damages which might be recovered by that passenger.

Special Term accepted the theory that plaintiff was suffering from post traumatic neurosis and concluded that he had therefore been insane within the meaning of CPLR 208. The Appellate Division reversed, on the law and the facts, holding that Special Term erred in making this finding. The court observed that the record contains sufficient evidence to conclude that, at least since February, 1975, plaintiff was able to manage his business affairs and estate and to comprehend his own legal rights and liabilities. The court went on to conclude that it cannot be said that during this period plaintiff was suffering from a temporary mental incapacity which prevented him from understanding or protecting his legal rights.

Plaintiff now maintains that his claim of post traumatic neurosis, manifesting itself in an inability to confront the memory of his accident, falls within the scope of the toll for insanity contained in CPLR 208. Defendants, on the other hand, contend that this is insufficient, implying that the insanity toll of CPLR 208 contemplates proof of an individual’s over-all inability to deal with his general affairs, rather than simply a specific inability to deal with his affairs in relation to the accident.

In general, Statutes of Limitation are creatures of the legislative rather than the judicial process (see 1 Weinstein-Korn-Miller, NY Civ Prac, par 201.01). Similarly, the various tolling provisions to the Statutes of Limitation are largely, if not exclusively, the product of legislative design. Because the toll of the Statute of Limitations for the disability of insanity is a product of statutory law, our examination of the scope of this toll requires a determination of the legislative intent underlying the statute.

We begin by noting that the statute itself provides no definition of the term “insanity”. Additionally, there is scant case law in this area. We have previously held that insanity need not have been adjudicated at the time the cause of action accrued (Hammer v Rosen, 7 NY2d 376), and it has also been held that a temporary mental affliction arising from the accident in question may give rise to the toll for insanity (see Matter of Hurd v County of Allegany, 39 AD2d 499). In the present case, however, the issue is whether an individual capable of managing his general business and social affairs, yet assertedly incapable of dealing with the fact of a previous accident, may claim the toll for insanity. Some guidance may be gleaned from the general purposes behind the Statutes of Limitation and the specific legislative history of the tolling provision for insanity.

Statutes of Limitation are essentially arbitrary time limitations barring the commencement of an action, and they reflect the legislative judgment that individuals should be protected from stale claims (see 1 Weinstein-Korn-Miller, NY Civ Prac, par 201.01). As time passes, the defense of an action may become more difficult. Statutes of Limitation therefore have aptly been described as statutes of repose. Accordingly, the tolling provisions should not readily be given an expansive interpretation tending to undermine the basic purposes behind the Statutes of Limitation.

Indeed, the legislative history of CPLR 208 indicates that the Legislature intended the toll for insanity to be narrowly interpreted. When the CPLR was enacted, the Advisory Committee on Practice and Procedure reviewed the possibility of substituting the phrase “mental illness” for the term “insanity” contained in the tolling provision. This suggestion was rejected because of the fear that this change might result in unwarranted extensions of the time within which to commence an action (Fifth Rep of NY Adv Comm, NY Legis Doc, 1961, No. 15, p 43).

With this background, we must interpret the term “insanity” within the context of the case at hand. Although the condition of an individual’s mental capabilities is largely a factual question, the toll claimed by plaintiff in this instance is untenable as a matter of law. In view of the refusal of the Advisory Committee and the Legislature to broaden the scope of the CPLR insanity toll, we believe that the Legislature meant to extend the toll for insanity to only those individuals who are unable to protect their legal rights because of an over-all inability to function in society. The statute, in our view, cannot be interpreted as providing a toll of the Statute of Limitations to an individual claiming a mere post traumatic neurosis.

In reaching this conclusion, it should be noted that a contrary interpretation of the statute could greatly and perhaps inappropriately expand the class of persons able to assert the toll for insanity and could, concomitantly, weaken the policy of the Statutes of Limitation as statutes of repose. The expansion of the statute in the manner asserted by plaintiff therefore might best be reserved for legislative attention (cf. Thornton v Roosevelt Hosp., 47 NY2d 780).

Accordingly, since the Appellate Division properly concluded that plaintiff’s action was time barred by the applicable Statute of Limitations, the order of the Appellate Division should be affirmed, with costs.

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

Order affirmed, with costs.

      . Plaintiff, who was 17 years of age at the time of the accident, reached the age of 18 on December 7, 1974. Although the toll for infancy (CPLR 208) applied in this case, it was, of course, not determinative.

      . The disability toll cannot result in an extension of more than 10 years from the accrual of the claim (CPLR 208).

      . To the extent that the holdings in Prude v County of Erie (47 AD2d 111) and Matter of Hurd v County of Allegany (39 AD2d 499, supra) may be interpreted as standing for the proposition that the existence of a post traumatic neurosis may be equated with the term “insanity” as used in CPLR 208, those cases are not to be followed.