author: Jasen, J.

text:
    219 Broadway Corp., Appellant, v Alexander’s, Inc., Respondent.
    Argued January 11, 1979;
    decided February 22, 1979

      POINTS OF COUNSEL

      Edwin Ostrow, Stanley Zwillinger and Mark I. Aronson for appellant.
    The lease executed by the parties hereto is a valid lease and no additional requirement of delivery is necessary to effectualize it. (176 West 87th St. Corp. v Fleischman, 202 App Div 187; Corn v Bergmann, 138 App Div 260; Geraci v Jenrette, 41 NY2d 660; Church of God of Prospect Plaza v Fourth Church of Christ, Scientist, of Brooklyn, N. Y., 59 AD2d 732.)

      Richard M. Goldstein and Ronald H. Alenstein for respondent.
    A lease for a period of 10 years is a conveyance of real property and, as such, is ineffective absent delivery. (Geraci v Jenrette, 41 NY2d 660; Darob Holding Co. v House of Pile Fabrics, 62 Misc 2d 899; 59 Madison Ave. Corp. v Bauer, 15 Misc 2d 780; Harnett v Korscherak, 59 Misc 457; Flomerfelt v Englander, 29 Misc 655; Ross v Ross, 233 App Div 626, affd sub nom. Ross v Hutchinson, 262 NY 381; 176 West 87th St. Corp. v Fleischman, 202 App Div 187; Corn v Bergmann, 138 App Div 260.)
   OPINION OF THE COURT

Jasen, J.

The specific issue raised on this appeal is whether a complaint which alleges a breach of a written lease, yet explicitly concedes that such lease was never delivered, states a cause of action.

Plaintiff, 219 Broadway Corp., alleges that its representatives and those of defendant, Alexander’s, Inc., conducted extensive negotiations between August, 1974 and June, 1975 with the expectation that mutually acceptable terms could be reached concerning the leasing of certain premises by defendant, as lessor, to plaintiff, as lessee. Plaintiff planned to utilize this property, located on Broadway between 219th Street and 220th Street in New York City, as a parking lot.

As a result of the negotiations, an agreement was reached as to the terms of the lease and an instrument was drafted which provided for plaintiff to lease the subject premises from defendant for a 10-year term at an annual rental rate of $6,000 for the initial five years and $6,600 for the remaining five years. The lease and an accompanying memorandum for recording were duly signed by the plaintiff on June 25, 1975, and thereafter forwarded to the attorneys for the defendant. Plaintiff alleges, upon information and belief, that "subsequent thereto, the defendant executed the said lease and memorandum thereof but refused and still refuses to deliver the said lease to the plaintiff.”

In August, 1975, the attorneys for the defendant informed the plaintiff’s attorneys that the defendant had leased the premises to a third party. Plaintiff, learning of this turn of events, commenced this action by service of a summons and complaint in which it seeks specific performance of the lease, or, in the alternative, money damages resulting from its breach. Defendant moved to dismiss the complaint on the ground that it failed to state a cause of action. (CPLR 3211, subd [a], par 7.) Special Term denied defendant’s motion, reasoning that "the signatures of [the] lessor and lessee are sufficient to validate a lease.” The Appellate Division unanimously reversed, holding, inter alia, that absent delivery, a lease is ineffective. An appeal to this court ensued from the order of the Appellate Division. There should be an affirmance.

Initially, we note the procedural posture in which this case comes before us. The sole question presented for our review is whether the plaintiff’s complaint states a cause of action. As such, we accept, as we must, each and every allegation forwarded by the plaintiff without expressing any opinion as to the plaintiff’s ability ultimately to establish the truth of these averments before the trier of the facts. (See, e.g., Becker v Schwartz, 46 NY2d 401, 408; Cohn v Lionel Corp., 21 NY2d 559, 562; Kober v Kober, 16 NY2d 191, 193.) If we find that the plaintiff is entitled to a recovery upon any reasonable view of the stated facts, our judicial inquiry is complete and we must, declare the plaintiff’s complaint to be legally sufficient. (See, e.g., Dulberg v Mock, 1 NY2d 54, 56; Condon v Associated Hosp. Serv. of N. Y., 287 NY 411, 414.)

In addressing the issue presented, we take cognizance of the hybrid nature of a lease. Only recently we have noted that "a lease, especially a modern lease, is generally more than a simple conveyance of an interest in land for a fixed period of time. Typically it is also a contract which requires the parties, particularly the tenant, to fulfill certain obligations while the lease is in effect.” (Geraci v Jenrette, 41 NY2d 660, 665.) Thus, it can be said, and we would be remiss not to recognize, that a lease achieves two ends, to wit: the conveyance of an estate in real property from lessor to lessee, and the delineation of the parties’ rights and obligations pursuant thereto.

Plaintiff, seizing upon this judicial acknowledgment of the dual function of a lease, would argue that the validity of the instrument, as a conveyance of an estate in land, should be governed by what are said to be contract principles. Since it is alleged in plaintiff’s complaint that the lease and the accompanying memorandum for recording were duly "executed” by both the plaintiff and the defendant, plaintiff contends that it has adequately demonstrated, at the pleading stage, its right to demand specific performance, or, in the alternative, to recover money damages. Specifically, plaintiff cites compliance with section 5-703 of the General Obligations Law to bolster its position. Inasmuch as that provision imposes no requirement that a lease be delivered to take effect, plaintiff asserts that the lease, and all rights and obligations of the parties thereunder, became fully binding once the instrument was duly signed by the defendant. With this contention, we cannot agree.

By its very terms, section 5-703 of the General Obligations Law speaks only to the requirement that conveyances and contracts concerning real property be memorialized in writing. Nowhere does the statute provide, or its language even remotely suggest, that its provisions were intended to supplant the traditional prerequisites for the conveyance of an interest in real property. In the absence of such legislative directive, the issue posed on this appeal, namely whether a lease must be delivered to take effect, must be resolved by application of time-weathered principles of real property law. (Cf. Kahn v Kahn, 43 NY2d 203, 209.)

Plaintiff’s reliance upon our holding in Geraci v Jenrette (41 NY2d 660, supra) to support its contention that a lease can be enforced against the party sought to be charged once facts sufficient to demonstrate compliance with section 5-703 of the General Obligations Law are alleged is misplaced. Our holding in Geraci was limited to a determination of whether a lease is, or is not, a contract within the Statute of Frauds (General Obligations Law, § 5-703, subd 2). In view of our disposition that it was, it became unnecessary to consider the further issue of whether parties who have signed a lease could be bound by its terms, absent a showing of delivery.

While, as previously noted, a lease is often chameleonic in both character and function, its fundamental purpose remains to serve as a vehicle for the conveyance of an interest in real property. Until this end is achieved, any rights or obligations of the parties which may be embodied in the lease remain dormant. Thus, the threshold inquiry in this case becomes whether, under the facts alleged, the lease served to convey an estate in real property from the defendant to the plaintiff.

A lease, as in the case of conveyances of an interest in land generally, requires the fulfillment by the parties of certain prerequisites to take effect. It is the well-established rule in this State that delivery is one such requirement, the absence of which, without more, renders the lease ineffective. (E.g., Whitford v Laidler, 94 NY 145, 151-152; Witthaus v Starin, 12 Daly 226, 228; P & R Realty Corp. v Hagel, 191 Misc 732, 734; 425 E. 86th St. Corp. v Worms, 145 Misc 598, 599; 1 Rasch, New York Landlord and Tenant [2d ed], § 18; 33 NY Jur, Landlord and Tenant, § 25; see, e.g., Darob Holding Co. v House of Pile Fabrics, 62 Misc 2d 899, 900; 59 Madison Ave. Corp. v Bauer, 15 Misc 2d 780, 781.) The requirement that a lease be delivered to be effective as a conveyance of an interest in land is not peculiar to this State alone, but is ingrained in the common-law principles of real property in many States. (See, e.g., Stetson v Briggs, 114 Cal 511; Roberts v Cyr, 136 Me 39; Scroggins v Roper, 548 SW2d 779 [Tex]; see, generally, 3 Thompson, Real Property [1959 ed], § 1059; 4 Tiffany, Real Property [3d ed], § 1033; 49 Am Jur 2d, Landlord and Tenant, § 35.)

The underlying justification for viewing delivery as fundamental to the conveyance of an interest in land is not grounded in the blind application of what some may consider archaic principles of property law. On the contrary, delivery serves a very practical end. It is a common practice in the contemporary business world for parties to draft and sign instruments of conveyance prior to the time at which they intend their contemplated transaction to become irrevocable. By requiring delivery, the law facilitates the true expectations of the parties by ensuring that the interest in the property is not conveyed until that moment when the parties so intend.

Inasmuch as delivery is required for a lease to take effect and being concerned, as we are, with the legal sufficiency of the plaintiff’s complaint, we proceed to an examination of plaintiff’s allegations bearing upon the issue of delivery. Plaintiff’s sole allegation in this regard is that a written lease and memorandum for recording were duly "executed” by it and, after being forwarded, were subsequently "executed” by the defendant. Plaintiff concedes that the defendant never returned the written lease. In light of these bare assertions, we now hold that the plaintiff has failed to state a cause of action for which recovery can be sought. Since plaintiff did not allege a delivery of the lease — indeed, it alleged nondelivery — it may not now be heard to seek enforcement of a written lease which, as a matter of law, never became effective.

In determining whether pleaded allegations are sufficient to allege a delivery, we recognize that the concept of delivery is not given to precise definition or controlled by fixed formalities. It can be said, however, with as much certainty as this sometimes elusive concept permits, that a delivery of a lease so as to give it effect requires acts or words or both acts and words which clearly manifest that it is the intent of the parties that an interest in the land is, in fact, being conveyed to the lessee. (See, generally, 1 Rasch, New York Landlord and Tenant [2d ed], § 18; 3 Thompson, Real Property [1959 ed], § 1059; cf. Ten Eyck v Whitbeck, 156 NY 341, 352; Bianco v Furia, 41 Misc 2d 292; 15 NY Jur, Deeds, § 47.)

The due signature of the lease instrument is but one step in the process of conveying an interest in land. Delivery requires something more. There must be evidence of an unequivocal intent that the interest intended to be conveyed is, in fact, being conveyed. The mere signing of the instrument by parties not in the presence of each other, without more, does not evince such intent. (See Whitford v Laidler, 94 NY 145, 151-152, supra; P & R Realty Corp. v Hagel, 191 Misc 732, 734, supra; cf. Marden v Dorthy, 160 NY 39, 49.)

In reaching the conclusion that we do, we observe, as did the Appellate Division, that the "complaint does not allege breach by [defendant] of an executory contract to enter into a lease for the parking lot.” (61 AD2d 917.) Accordingly, we do not reach the question whether, had there been such an allegation, the complaint should have been dismissed. Nor do we reach or consider the broad question whether, and in what circumstances, signature alone will suffice to create an enforceable contract.

In sum, we hold that a plaintiff must plead allegations sufficient to allege a delivery to state a cause of action for a breach of a written lease. On the record before us, plaintiff has failed to do so.

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

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

Order affirmed.

       Section 5-703 of the General Obligations Law provides:
      "1. An estate or interest in real property, other than a lease for a term not exceeding one year, or any trust or power, over or concerning real property, or in any manner relating thereto, cannot be created, granted, assigned, surrendered or declared, unless by act or operation of law, or by a deed or conveyance in writing, subscribed by the person creating, granting, assigning, surrendering or declaring the same, or by his lawful agent, thereunto authorized by writing. But this subdivision does not affect the power of a testator in the disposition of his real property by will; nor prevent any trust from arising or being extinguished by implication or operation of law, nor any declaration of trust from being proved by a writing subscribed by the person declaring the same.
      “2. A contract for the leasing for a longer period than one year, or for the sale, of any real property, or an interest therein, is void unless the contract or some note or memorandum thereof, expressing the consideration, is in writing, subscribed by the party to be charged, or by his lawful agent thereunto authorized by writing.
      "3. A contract to devise real property or establish a trust of real property, or any interest therein or right with reference thereto, is void unless the contract or some note or memorandum thereof is in writing and subscribed by the party to be charged therewith, or by his lawfully authorized agent.
      "4. Nothing contained in this section abridges the powers of courts of equity to compel the specific performance of agreements in cases of part performance.”
      In Geraci v Jenrette (41 NY2d 660, supra), this court held that a lease is a contract within the meaning of subdivision 2 of this section, and is therefore void unless signed by the person against whom enforcement is sought.


source: Caselaw Access Project

author: Chief Judge Cooke.

license: Public Domain

text:
    In the Matter of the Estate of Earl J. Coffed, Jr., Deceased. David E. Coffed, Appellant; Edwin Waley, Jr., Respondent.
    Argued January 9, 1979;
    decided March 20, 1979

      POINTS OF COUNSEL

      Norman A. Le Blanc for appellant.
    I. It is respectfully submitted that while the instant proceeding is not technically a will construction proceeding, certain principles applicable in construction proceedings should be followed in the instant case. It is necessary and important that a determination be made as to the intention of the deceased and Dessie at the time they executed the wills and agreements on September 22, 1971. It is necessary to determine their intention at that point, so their subsequent acts may be properly analyzed. New York courts have consistently held the cardinal principle of construction to be to determine the intention of the testator. It is respectfully submitted that the intention of the deceased at the time he executed the will and agreement is of the utmost importance to the proper determination of the issues presented in this proceeding. (Matter of Fabbri, 2 NY2d 236; Robinson v Martin, 200 NY 159; Matter of Lorberbaum, 35 Misc 2d 647; Matter of Day, 10 AD2d 220; Matter of Hollister, 18 NY2d 281; Cooke v Cooke, 2 AD2d 128, 810; Matter of Lampshire, 57 Misc 2d 332; Matter of Sharinay, 58 Misc 2d 334; Matter of Silverman, 43 Misc 2d 909; Oursler v Armstrong, 10 NY2d 385.) II. Respondent, before the court below, argued that the sole method prescribed for the revocation of wills is to be found in EPTL 3-4.1. He further argued that a divorce accompanied by execution of mutual general releases is not sufficient to satisfy the provisions of this statute. However, EPTL 3-4.1 has been held not to be the sole method by which revocation may be effected. These wills should be considered as revoked through the execution of the general releases under the provisions of EPTL 3-4.3. (Matter of Hollister, 18 NY2d 281.) III. If the Court of Appeals does not wish to extend the rule of Hollister to the facts of the instant situation and find a revocation pursuant to the provisions of EPTL 3-4.3, then it is respectfully submitted that, in the alternative, this will be considered realistically a contract, and that the parties by execution of the mutual releases, rescinded the contract which, by its own terms, incorporates the wills. Rescission of contracts between parties is a clearly recognized legal doctrine, and should be extended to a situation such as that presented in the instant case. (Rill v Darling, 21 AD2d 955; Kauffman v American Youth Hostels, 6 AD2d 223; Matter of De Masi, 10 Misc 2d 308; Matter of Ohrbach, 4 Misc 2d 964; Oliphant v New York Yankees, 42 Misc 2d 394; Cahill v Regan, 5 NY2d 292; Connell v Bradt, 36 Misc 2d 515; Matter of NTA, Inc. [Tableau Tele.], 11 Mise 2d 333, 8 AD2d 799; Meil v Syracuse Constructors, 42 Misc 2d 39; E. T. C. Corp. v Title Guar. & Trust Co., 271 NY 124.) IV. The decision of the court below will result in the unjust enrichment of respondent herein. As an alternative to finding the rescission or revocation of the wills and contracts of September 22, 1971, it was urged before the court below that the rules involving the law of constructive trusts be extended to this situation. The court rejected both alternatives proffered by appellant, and as a result totally thwarted the estate plans entered into by these parties at the time of the execution of the wills. It is respectfully submitted that the conclusion of the court below is totally capricious and arbitrary, totally contrary to any estate plan envisioned by the parties, and unjustly enriches respondent herein. (Matter of Phillips, 10 Misc 2d 714; Bradkin v Leverton, 26 NY2d 192; Miller v Schloss, 218 NY 400; Pink v Title Guar. & Trust Co., 274 NY 167.)

      Leonard W. M. Zingler for respondent.
    I. A husband’s contractually reciprocal will is not impliedly revoked by reason of divorce and exchange of general releases. (Matter of Lewis, 79 Misc 2d 610; Matter of White, 82 Misc 2d 323; Matter of North, 32 AD2d 862; Matter of Ruark, 35 AD2d 920; Matter of Hollister, 18 NY2d 281; Matter of McGill, 229 NY 405; Lovell v Quitman, 88 NY 377; Burnham v Comfort, 108 NY 535.) II. Although a divorced spouse does not take under the ex-husband’s contractual reciprocal will, the will is entitled to probate and the contingent provisions should be carried out. (Matter of Lampshire, 57 Misc 2d 332; Matter of Sharinay, 58 Misc 2d 334; Matter of Hollister, 18 NY2d 281; Matter of Lamedrin, 157 Misc 431; Matter of Tremaine, 282 NY 485.) III. The burden of proving revocation of a will is upon the contestant. (Matter of Bonner, 46 Misc 2d 294, 17 NY2d 9; Matter of Mack, 39 Misc 2d 889, 21 AD2d 205; Matter of Crouse, 205 App Div 135, 238 NY 583; Matter of Thomas, 216 NY 426; Matter of Schinasi, 277 NY 252, 278 NY 624; Patrolmen’s Benevolent Assn. of City of N. Y. v City of New York, 41 NY2d 205.)
   OPINION OF THE COURT

Chief Judge Cooke.

Presented for review is the question whether a "reciprocal” will is revoked by a general release which discharges the testator’s contractual obligation to execute such a will. An ancillary issue concerns whether a testamentary disposition may be impliedly abrogated by a document which does not comply with the formalities prescribed by EPTL 3-4.1.

A contract obligating an individual to execute a reciprocal will is analytically distinct from the will itself, and we hold that a release or discharge of the contractual duty, without more, does not work a revocation of the will. In a similar vein, an instrument which does not satisfy the strictures of EPTL 3-4.1 may not, at least in the circumstances of the present case, be deemed to revoke by implication an otherwise valid bequest.

Earl J. Coffed, Jr., the decedent, and Bessie M. Waley were married in July, 1971. As a result of previous marriages to others, Bessie had a son, Edwin Waley, Jr., while Earl had three children. Shortly after their marriage, Earl and Bessie entered into a contract whereby they agreed to execute reciprocal wills which would pass the estate assets of the first deceased to the survivor. The wills also were to provide for disposition of an equal portion of the estates to each of the four children upon the death of the survivor or the simultaneous death of both husband and wife. Finally, the parties agreed not to "revoke or change or in any way modify the will as reciprocally drawn”.

Unhappily, the bonds of matrimony were severed late in 1973 when Bessie obtained a default divorce decree. Some three months later, in the course of effecting a modification to the decree, the parties mutually released all claims of any nature which they might have against each other.

Earl Coffed, Jr., died on May 28, 1976. His will, which had remained unchanged since he executed it pursuant to the contract in 1971, was offered for probate by Edwin Waley, Jr. Bavid Coffed, one of Earl’s three children, filed objections, and this proceeding ensued.

The Surrogate, relying upon the presumed intention of Earl Coffed, ruled that the will should not be probated. Moreover, the Surrogate concluded that EPTL 5-1.4, which upon a divorce automatically revokes a prior testamentary provision for a spouse, was inapplicable to the present circumstances. A unanimous Appellate Bivision reversed the decree of the Surrogate. We now affirm the order of the Appellate Bivision.

Reciprocal and joint wills, which are essentially a species of the more inclusive category of contracts to make testamentary provisions, are not unfamiliar to our law (see 9B Rohan, NY Civ Prac, par 13-2.1 [8]). So long as certain prerequisites are met, a contract requiring the execution of a joint or reciprocal will is legally enforceable (see, generally, Rich v Mottek, 11 NY2d 90; EPTL 13-2.1). Upon the death of a party who has complied with the contractual provisions, the agreement is no longer executory and will be specifically enforced

in equity (see, e.g., Lally v Cronen, 247 NY 58, 62-63; Rastetter v Hoenninger, 214 NY 66, 71). Absent such an obligation, of course, and subject to applicable statutory and decisional law, an individual may make or revoke testamentary provisions at his pleasure (see, e.g., Lally v Cronen, supra, at p 62).

Conceptually, the contract to make a testamentary provision is separate and distinct from the will itself. While the contract might be enforceable in equity, from a technical standpoint it has no effect upon the will’s status as a legal instrument. Thus, this court has previously held that a document purporting to be a will may not be denied probate merely because the testator "bound himself to a different disposition of [his] property by contract” (Matter of Higgins, 264 NY 226, 229; see, also, Matter of Davis, 182 NY 468).

It follows that the release of a contractual duty requiring a particular testamentary disposition, by itself, has no impact upon an existing will. True, the parties are no longer bound to comply with the agreement’s strictures, and equity will no longer enforce the disposition called for by the contract. But the existing wills, whether they are consistent with the contractual requirements or not, subsist and remain unaffected.

To reach a contrary conclusion would be to undermine the rigorous, but necessary, statutory provisions relating to revocation of wills. With few exceptions not here relevant, the exclusive mechanism for revocation of a testamentary instrument is contained in EPTL 3-4.1. That section wisely requires that a revocatory instrument be executed with the same formalities as those needed to make a valid will. A less stringent provision would open the door to the dual evils of fraud and perjury (cf. Matter of Tremain, 282 NY 485, 486-487, 490), and perhaps fail to impress upon the mind of the testator the solemnity of the occasion. Consequently, the conclusion is inescapable that the general release signed by decedent, which concededly does not satisfy EPTL 3-4.1, did not work a revocation of the existing reciprocal will.

Nor was decedent’s will impliedly revoked by virtue of the principle enunciated in Matter of Hollister (18 NY2d 281). In Hollister, this court, construing section 40 of the Decedent Estate Law, held that a subsequent separation agreement which is "wholly inconsistent” with a testamentary disposition to a spouse works a revocation of that disposition (Matter of Hollister, supra, at pp 286-287). Strictly speaking, that precise holding is inapplicable to the present case, inasmuch as the bequest to the wife has been automatically revoked by divorce. Moreover, the boilerplate language in the release executed by this decedent does not approach the more specific language found "wholly inconsistent” in Hollister (see 18 NY2d, at p 286).

But all of this assumes that the rule stated in Hollister continues to represent the law of this State. Although we do not today decide the question, we note that the viability of that case may be in doubt. The specific problem addressed in Hollister, concerning the effect of a subsequent separation or divorce upon an existing disposition to a spouse, has since become a topic of legislative consideration and action (see EPTL 5-1.4; Temporary State Commission on the Modernization, Revision and Simplification of the Law of Estates, Report No. 8.25A, NY Legis Doc, 1966, No. 19, pp 702-804, esp p 782). In view of this legislative action, further development in the area might well be precluded. Because Hollister is clearly distinguishable from the present case, however, we need not now grapple with this question.

Accordingly, the order of the Appellate Division should be affirmed, with costs to all parties appearing separately payable out of the estate.

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

Order affirmed, etc.

      . EPTL 5-1.4 provides: "If, after executing a will, the testator is divorced * * * the divorce * * * revokes any disposition or appointment of property made by the will to the former spouse.” We find no obstacle to the application of this provision here. This section is "new” and effects a substantial change in New York law in respect to revocation of wills (L 1966, ch 952, eff Sept. 1, 1967, as amd by L 1969, ch 805, eff Sept. 1, 1969; see Hoffman, Practice Commentary, McKinney’s Cons Laws of NY, Book 17B, § 5-1.4, p 727).

      . Section 40 of the Decedent Estate Law was incorporated into the EPTL and is now contained in EPTL 3-4.3. We note that the language of the EPTL provision differs from that of its predecessor, but need not reach the question whether the new wording has altered the substantive effect of the provision.


text:
    In the Matter of the Arbitration between South Colonie Central School District, Respondent, and South Colonie Teachers Association et al., Appellants.
    Argued February 5, 1979;
    decided March 22, 1979

      POINTS OF COUNSEL

      Susan M. Topper and Bernard F. Ashe for appellants.
    I. Severe restrictions are placed upon judicial inquiry with respect to a stay of arbitration. (Board of Educ. v Associated Teachers of Huntington, 30 NY2d 122; Matter of Associated Teachers of Huntington v Board of Educ., 33 NY2d 229; Board of Educ. v Bellmore-Merrick United Secondary Teachers, 39 NY2d 167; Matter of Board of Educ. v Yonkers Federation of Teachers, 40 NY2d 268; Matter of Acting Supt. of Schools of Liverpool Cent. School Dist. [United Liverpool Faculty Assn.], 42 NY2d 509; Matter of South Colonie Cent. School Dist. v Longo, 43 NY2d 136; Matter of Susquehanna Val. Cent. School Dist. at Conklin [Susquehanna Val. Teachers’ Assn.], 37 NY2d 614.) II. The parties agreed to submit this grievance dispute to arbitration. (Matter of South Colonie Cent. School Dist. v Longo, 43 NY2d 136; Rochester City School Dist. v Rochester Teachers Assn., 41 NY2d 578.) III. The parties were not prohibited from agreeing to submit this dispute to arbitration. (Matter of City of Albany v Helsby, 38 NY2d 778; Jackson v Regional Tr. Serv., 54 AD2d 305; Matter of City School Dist. of City of Poughkeepsie [Poughkeepsie Public School Teachers Assn.], 35 NY2d 599.) IV. The court below erred in its reliance upon the so-called exclusion in the grievance definition. (Hines v Anchor Motor Frgt., 424 US 554; Jackson v Regional Tr. Serv., 54 AD2d 305; Matter of Board of Educ. [Auburn Teachers Assn.], 49 AD2d 35; Alexander v Gardner-Denver Co., 415 US 36.)

      C. Theodore Carlson for respondent.
    I. The parties did not agree to refer their differences in this specific area to arbitration. (Matter of Acting Supt. of Schools of Liverpool Cent. School Dist. [United Liverpool Faculty Assn.], 42 NY2d 509; Matter of Board of Educ. [Auburn Teachers Assn.], 49 AD2d 35; Matter of City School Dist. of City of Poughkeepsie [Poughkeepsie School Teachers Assn.], 35 NY2d 599.) II. A nondelegable duty is imposed upon the school district by the Education Law.
   OPINION OF THE COURT

Jasen, J.

In this special proceeding brought pursuant to CPLR 7503, respondent seeks a permanent stay of arbitration demanded by appellants on the ground that the grievance sought to be arbitrated is the subject matter of a disciplinary charge filed against the grievant and, therefore, lies outside the scope of the parties’ agreement to submit their disputes to binding arbitration.

The pertinent facts may be simply stated: In March, 1976, respondent school district entered into a collective bargaining agreement with appellant teachers association in which the parties agreed to submit grievances to binding arbitration pursuant to the rules of the American Arbitration Association. The agreement defined a grievance as "a claim based upon an event or condition which affects the terms and conditions of employment of a teacher or group of teachers and/or the interpretation or meaning of any of the provisions of this Agreement or any subsequent Agreement entered into pursuant to this Agreement. The term 'grievance’ shall not apply to any matter for which a method of review is prescribed by law or by any rule or regulation of the State Commissioner of Education having the force and effect of law”.

During the term of the bargaining agreement, respondent filed charges against appellant Austin, a physical education teacher in the school district, one of which alleged that Austin neglected his duty on four school days in January, 1977 when he traveled to and participated in a basketball tournament as a coach without receiving permission from the board of education to leave his teaching assignments. Austin was also charged with misconduct for allegedly ignoring a direct order of the assistant superintendent not to interrupt his teaching responsibilities by participating in the tournament. Additionally, Austin was charged with having neglected his duty by absenting himself from his teaching assignments for the entire month of December, 1974, and with misconduct in failing to obey a directive of the acting superintendent to return to work during that period.

After service of formal notice of the charges filed against him pursuant to section 3020-a of the Education Law, Austin filed a grievance in compliance with the multistep grievance procedure outlined in the bargaining agreement. Thereafter, the association, on behalf of Austin, demanded arbitration, characterizing the nature of the dispute as a violation of Austin’s employment contract: namely, the denial of personal leave for the four days in January, 1977 and concomitant deduction of pay. The remedy as requested in the demand for arbitration consisted of: "Reimbursement of four days pay to the grievant and interest. Further, that the District cease and desist from the practice of denying personal leave. That all disciplinary actions resulting from the grievants use of personal leave which is guaranteed under the contract [sic]. ”

Upon respondent’s motion to stay arbitration, Special Term denied the requested relief and directed the parties to proceed to arbitration. The Appellate Division reversed and granted a stay. There should be an affirmance.

The sole question on this appeal is whether the parties agreed to arbitrate the dispute for which arbitration has been demanded. As the Appellate Division correctly observed, resolution of this question in the context of arbitrations authorized under the Taylor Law (Civil Service Law, art 14) is a threshold judicial function. Absent a finding that there exists an "express, direct and unequivocal” agreement to arbitrate a dispute, courts exercising this function must stay arbitration. (Matter of Acting Supt. of Schools of Liverpool Cent. School Dist. [United Liverpool Faculty Assn.] 42 NY2d 509, 510-511.)

Examination of the arbitration clause at issue in the present case reveals that while the scope of the parties’ agreement to arbitrate is not narrow, encompassing as it does disputes arising from events and conditions affecting terms and conditions of employment, as well as interpretation of the agreement (see Matter of South Colonie Cent. School Dist. v Longo, 43 NY2d 136, 141), it is limited simultaneously by broad language of exclusion. As noted previously, excluded from the definition of an arbitrable grievance is any dispute "for which a method of review is prescribed by law or by any rule or regulation of the State Commissioner of Education having the force and effect of law.” Inasmuch as the grievance for which arbitration was demanded, although undoubtedly involving a term or condition of employment, is identical to the subject matter of one of the disciplinary charges filed against appellant Austin pursuant to section 3020-a of the Education Law, it would appear that the parties’ dispute falls within the broad language of both inclusion and exclusion contained in their agreement to arbitrate. In such a case, it is impossible to conclude, as a court must conclude to direct that arbitration proceed, that the parties’ agreement to arbitrate the dispute at issue is "express, direct and unequivocal”. (Matter of Acting Supt. of Schools of Liverpool Cent. School Dist. [United Liverpool Faculty Assn.], 42 NY2d, at pp 511, 515, supra.)

Appellants contend, however, that to enforce the exclusionary language contained in the definition of an arbitrable grievance would render the parties’ agreement to submit their disputes to arbitration a nullity, inasmuch as all grievances could be considered nonarbitrable under this exclusion if the parties’ agreement, because of this exclusion, is interpreted to permit an action at law. Admittedly, such a broad interpretation of the exclusionary language contained in this clause would effectively negate the parties’ agreement to submit their disputes to binding arbitration. To the same extent, however, this language cannot be ignored. Having agreed to exclude certain otherwise includable disputes from their agreement to arbitrate, the parties must have intended this exclusion to have some effect. To effectuate the intent of the parties without nullifying either the inclusory or exclusory language contained in their agreement, we would limit the exclusion of arbitrable grievances for which a method of review is "prescribed” by law or by rule or regulation of the State Commissioner of Education to those grievances for which such review is "mandatorily” provided by statute, rule or regulation. Inasmuch as the grievance for which arbitration has been demanded in the instant case is identical to the subject matter of a disciplinary charge filed against appellant Austin pursuant to section 3020-a of the Education Law, a statutorily mandated procedure for the review of such charges, we hold that the grievance falls within the ambit of both the inclusionary and exclusionary language contained in the definition of an arbitrable grievance and, thus, that appellants have failed to demonstrate an express and unequivocal agreement to submit this dispute to binding arbitration.

One final point merits brief comment. By interpreting this exclusion as limited to a grievance for which a method of review is mandated, rather than merely otherwise available under statute or by rule or regulation of the State Commissioner of Education, we are limiting its scope, for all practical purposes, to grievances involving the subject matter of a disciplinary proceeding. Notwithstanding this limitation, this exclusion might still be utilized to consume an agreement to arbitrate were a school district to file disciplinary charges against a grievant in bad faith as a pretext for the sole purpose of preventing arbitration. We need not reach this issue in the instant case, however, inasmuch as the disciplinary charges were filed prior to the grievance, foreclosing any allegation of bad faith on the part of respondent.

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

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

Order affirmed.


author: Gabrielli, J.

text:
    Wilfredo Dominguez, an Infant, by His Mother and Natural Guardian Santo Perez, et al., Appellants, v Manhattan and Bronx Surface Transit Operating Authority, Respondent.
    Argued February 7, 1979;
    decided March 27, 1979

      POINTS OF COUNSEL

      Mark D. Lefkowitz, Robert R. Solomon and Robert W. Cross for appellants.
    I. It was reasonable for the jury to infer from the testimonial evidence adduced by plaintiff that the bus driver had the last clear chance to avoid plaintiff’s injury. Moreover, the jury could disbelieve the driver’s testimony that he did not know that there were any hitchhikers on the bus before the accident. (Martin v City of Albany, 42 NY2d 13; Sagorsky v Malyon, 307 NY 584; Blum v Fresh Grown Preserve Corp., 292 NY 241; Stein v Palisi, 308 NY 293; African Metals Corp. v Bullowa, 288 NY 78; Prince v City of New York, 21 AD2d 668; Chadwick v City of New York, 301 NY 176; Woloszynowski v New York Cent. R. R. Co., 254 NY 206; Kaskoff v Anderson, 18 AD2d 192; Elliott v New York R. T. Corp., 293 NY 145.) II. Any reliance upon Feliciano v Manhat

      tan & Bronx Surface Tr. Operating Auth. is misplaced. The facts at bar and those in Feliciano are highly distinguishable. (Feliciano v Manhattan & Bronx Surface Tr. Operating Auth., 53 AD2d 534.)

      John A. Murray, Alphonse E. D’Ambrose and Helen R. Cassidy for respondent.
    The court below was correct in ruling that the doctrine of last clear chance did not apply under the facts presented. (Jennings v Delaney, 229 App Div 439, 255 NY 626, 256 NY 551; Wilson v Maiello, 34 AD2d 221, 28 NY2d 594; Kaskoff v Anderson, 13 NY2d 911; Panarese v Union Ry. Co. of N. Y. City, 261 NY 233; Hernandez v Brooklyn & Queens Tr. Corp., 284 NY 535; Srogi v New York Cent. R. R. Co., 287 NY 707; Bragg v Central New England Ry. Co., 228 NY 54; Chadwick v City of New York, 301 NY 176; Matter of Case, 214 NY 199; Wright v Union Ry. Co., 224 App Div 55, 250 NY 526.)
   OPINION OF THE COURT

Gabrielli, J.

The question presented on this appeal is whether the Appellate Division was correct in concluding as a matter of law that there was insufficient evidence in the record to support the application of the doctrine of last clear chance in this negligence action. For the reasons discussed below, we disagree with the conclusion reached by the Appellate Division, and thus the order appealed from must be reversed.

The incident on which this suit is based occurred early in the evening of May 15, 1975. Wilfredo Dominguez, then 11 years of age, and two other youths hitched a ride on the outside of a bus owned by defendant and operated by one of its employees. They first jumped onto the bus as it began to pull away from a bus stop. The bus driver then drove to the next corner and began to make a right-hand turn. As he was doing so, the bus was cut off by a taxicab, and the bus driver turned too sharply, causing the bus to go over the curb and strike an elevated subway support column, knocking Wilfredo off the bus and allegedly causing him serious injuries. His mother subsequently commenced this action on her own behalf and on behalf of her son to recover for his personal injuries.

At a trial on the issue of liability only, the court charged that Wilfredo was guilty of contributory negligence as a matter of law, and put the case to the jury on a last clear chance basis after denying defendant’s motion to dismiss for failure to make out a prima facie case due to the purported lack of any evidence that the bus driver actually knew of Wilfredo’s presence on the side of the bus. The jury found in plaintiffs favor, and the court denied defendant’s motion to set aside the verdict over claims that it was against the weight of the evidence and not supported by the evidence with respect to the bus driver’s knowledge of the infant’s presence. On appeal to the Appellate Division, that court reversed on the law, concluding that there was insufficient evidence to support the factual determination implicitly and necessarily made by the jury that the bus driver did know of Wilfredo’s presence on the side of the bus. Plaintiff now appeals to this court.

Preliminarily, we note that the question before us is not whether the verdict was against the weight of the evidence, for the Appellate Division did not reach that factual issue. Rather, the issue before us is a question of law alone, namely, whether there is sufficient evidence to support the jury’s resolution of the factual question. In other words, the issue is whether there is in fact sufficient evidence to raise a question of fact as to whether the bus driver knew of Wilfredo’s dangerous position. As we have recently declared, to hold that there is insufficient evidence to support a verdict is to find "that there is simply no valid line of reasoning and permissible inferences which could possibly lead rational men to the conclusion reached by the jury on the basis of the evidence presented at trial” (Cohen v Hallmark Cards, 45 NY2d 493, 499). In the instant case, although the evidence may not have been overwhelming, we conclude that it does suffice to create a factual question for the jury and hence, of necessity, it is sufficient to sustain the jury’s resolution of that factual question.

The doctrine of last clear chance is most appropriately viewed as a somewhat ambivalent common-law attempt to alleviate the harsh consequences of strict adherence to the traditional contributory negligence rule, pursuant to which a person whose injury is due in part to his own negligence may not recover from any other party whose negligence was also a proximate cause of the injury. The contributory negligence rule is no longer the law in New York with respect to any cause of action accruing on or after September 1, 1975 (CPLR art 14-A), but must still be applied to any cause of action which accrued prior to that date. Since the instant cause of action accrued prior to September 1, 1975, it is subject to the contributory negligence bar, and may not be maintained absent application of the ameliorative doctrine of last clear chance. That doctrine provides that even a contributorily negligent party may recover from a negligent party under the following circumstances:. (1) the plaintiff negligently places himself in a perilous situation from which he cannot then extricate himself in time to avoid the injury; (2) the defendant becomes aware of the danger at a time when he can avert the accident; and (3) the defendant nonetheless fails to use reasonable care so as to prevent the injury.

Although some variant of the doctrine is accepted in almost all American jurisdictions which retain the contributory negligence bar, it is a doctrine "as to the basis or extent of which there has been little agreement and endless discussion” (Prosser, Torts [4th ed], § 66, p 427). The doctrine is justified by some as a means of imposing liability on a defendant whose fault is of a worse nature than is that of the contributorily negligent plaintiff, while others categorize it as a matter of causation, applicable in cases in which the plaintiffs contributory negligence is actually not a proximate cause of his injury because of the subsequent intervening negligence of the defendant (see Restatement, Torts 2d, § 479, Comment a). Neither theory is entirely satisfactory or fully consistent with the wide spectrum of cases in which the doctrine of last clear chance has been applied (see Restatement, Torts 2d, § 479, Comment a; see, also, 2 Harper and James, Torts, § 22.13). At least one court has suggested that "neither explanation is strictly logical, and that the real foundation for the rule is merely its fundamental justice and reasonableness. The justice of the rule * * * may be a sufficient foundation for it” (Cavanaugh v Boston & Maine R. R., 76 NH 68, 72). Similarly, one noted commentator has suggested that the doctrine is actually "more a matter of dissatisfaction with the defense of contributory negligence than anything else” (Prosser, Torts [4th ed], § 66, p 433), while others consider it to be a transient doctrine serving to prepare the way for a system of comparative negligence. Viewed thusly, it may well be that the doctrine of last clear chance will be inapplicable to cases arising under New York’s relatively new system of comparative negligence (CPLR art 14-A; see Twenty First Ann Report of NY Judicial Conference, 1976, pp 243-244; Survey of New York Practice, 50 St John’s L Rev 179, 199). This case, however, must be decided in accord with the common-law principles applicable as of the date of the accident.

Defendant correctly states that for the doctrine of last clear chance to apply, the negligent party must have known that the about-to-be-injured party was in a perilous situation, from which he could not extricate himself. It is contended that in this case there was insufficient evidence to support the factual determination, necessarily implicit in the jury verdict, that the bus driver was aware of Wilfredo’s presence on the side of the bus. We disagree.

Initially, we note that it is well settled in this State that a jury may conclude that a defendant had knowledge of a plaintiffs danger for purposes of application of the doctrine of last clear chance solely on the basis of circumstantial evidence and over the denial of the party charged with such knowledge (Woloszynowski v New York Cent. R. R. Co., 254 NY 206, 208-209; Chadwick v City of New York, 301 NY 176, 181; cf. Panarese v Union Ry. Co., 261 NY 233, 237). Assessment of the weight of the evidence and the credibility of witnesses is a function of the finder of fact, and is generally not relevant to the question of sufficiency of evidence. Moreover, the concept of knowledge as used in this context is a fairly broad and elastic one. While it is not wide enough to encompass situations in which a defendant who was not negligent would have been aware of plaintiffs plight (see Panarese v Union Ry. Co., supra, p 236), it does include cases in which there is a "willful indifference” to clear indicia of another’s peril (Kumkumian v City of New York, 305 NY 167, 176), or a "negligence so reckless as to betoken indifference to knowledge” (Woloszynowski v New York Cent. R. R. Co., supra, p 209).

The proper application of these general principles in a particular case will of course depend on the unique factual circumstances of each accident. In the instant case, the evidence submitted to prove that the bus driver had knowledge of Wilfredo’s presence on the side of the bus was all circumstantial, and was opposed by the driver’s own testimony that he was not aware that the youths were on the exterior of the bus. Nonetheless, it was sufficient to raise a question of fact and to support the jury’s resolution of that question. Wilfredo himself testified that he and several friends had first tried to board the bus without paying, but were denied entrance by the driver. They then waited outside the bus until it began to pull away from the curb, at which time they jumped onto the side and rear of the bus. Wilfredo was positioned on the right side of the bus towards its rear, between the rear door and the right rear wheel. He stuck his hands through an open window into the bus and held onto the top of that window, and placed his feet on a piece of metal stripping running along the side of the bus. There was no exterior mirror on that side of the bus, but Wilfredo testified that his head was above the bottom of the window and that he could see the bus driver looking at him through the broad inside rear view mirror.

A woman passenger on the bus also testified on plaintiff’s behalf. She was seated inside the bus adjacent to Wilfredo’s position on its exterior. She saw his hands inside the bus and his head in the window, and told him to get off before he was killed. She testified that the youths on the outside were making a great deal of noise, yelling and banging on the bus, and that although she did not tell the driver of their presence she was sure he had noticed them as she several times observed his eyes watching them in the mirror.

While this evidence was not overwhelming, it was sufficient to raise a question of fact for the jury as to whether the bus driver did notice Wilfredo in the few moments between his jumping onto the bus and the accident. There was sufficient evidence for the jury to find that the bus driver did know of Wilfredo’s presence, based on the testimony as to the noise made by the youths and the various observations of the driver’s use of the mirror. Hence, it was error for the Appellate Division to conclude as a matter of law that there was insufficient evidence to sustain the verdict.

As to defendant’s contention that the doctrine of last clear chance is inapplicable because Wilfredo’s negligence had not come to an end prior to the accident (see Panarese v Union Ry. Co., 261 NY 233, supra), it suffices to note that we have previously approved the submission to the jury of the doctrine of last clear chance under somewhat similar circumstances, stating that hitching a ride on the side of a moving vehicle is "a single, noncontinuing act” complete as soon as the hitchhiker is on the vehicle (Chadwick v City of New York, 301 NY 176, 180, supra).

Since the Appellate Division has not as yet exercised its jurisdiction to review the facts (CPLR 5501, subd [c]), instead of reinstating the judgment of Supreme Court, we must remit the case to the Appellate Division (CPLR 5613).

Accordingly, the order appealed from should be reversed, with costs, and the case remitted to the Appellate Division for the exercise of its jurisdiction to review the facts.

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

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


author: Jones, J.

text:
    In the Matter of Daniel S. Singer, Respondent, v Peter A. A. Berle, as Commissioner of the New York State Department of Environmental Conservation, Appellant.
    Argued February 9,1979;
    decided March 27,1979

      POINTS OF COUNSEL

      Robert Abrams, Attorney-General (William J. Kogan of counsel), for appellant.
    I. The Commissioner of the State Department of Environmental Conservation may lawfully assign forest rangers to perform campsite security in the course of enforcing the provisions of article 9 of the Environmental Conservation Law and he may also require forest rangers, when licensed, to possess concealable weapons in the performance of such duties. (Ball v State of New York, 41 NY2d 617; Matter of Pell v Board of Educ., 34 NY2d 222; Matter of Guile v State Univ. of N. Y, 49 AD2d 1022; Matter of Civil Serv. Employees Assn. v Narcotic Addiction Control Comm., 45 AD2d 685; Matter of Salata v Tolman, 38 AD2d 991; Figaro v Ward, 86 Misc 2d 530.) II. The opinion of the court below and order erroneously describe the limits of the commissioner’s authority to designate forest rangers as peace officers.

      William M. Wallens for respondent.
    I. Contrary to appellant’s assertion, campsite security detail involves penal law enforcement duties. (Tenneco, Inc. v Central N. Y. R. R. Corp., 51 AD2d 676; Flomenbaum v Drug Abuse Control Comm., 50 AD2d 20; Bankers Trust Co. of Albany, N.A. v Martin, 51 AD2d 411; Matter of Glazer v Hankin, 50 AD2d 924.) II. A forest ranger may not be ordered to engage in campsite security detail with its enforcement of full penal law violations. (McLoughlin v New York Edison Co., 252 NY 202; Wallenstein v Rosenbaum, 241 App Div 374.) III. Some of the cases cited by appellant are not applicable to this proceeding. (Matter of Guile v State Univ. of N. Y., 49 AD2d 1022; Matter of Civil Serv. Employees Assn. v Narcotic Addiction Control Comm., 45 AD2d 685; Matter of Salata v Tolman, 38 AD2d 991; Figaro v Ward, 86 Misc 2d 530.)
   OPINION OF THE COURT

Jones, J.

Although forest rangers attached to the Department of Environmental Conservation may not be required to enforce the State Penal Law per se they may be assigned to campsite security details for the enforcement of the Environmental Conservation Law and rules and regulations promulgated thereunder, and the fact that conservation restrictions may parallel proscriptions of the Penal Law does not relieve them of their duty of enforcement.

Petitioner has been a duly appointed forest ranger in the New York State Department of Environmental Conservation, engaged primarily in forest fire prevention and control, since 1964. For Memorial Day weekend, 1976, he was assigned by his superior to a "Campsite Security Detail” at a State park camping area and was instructed to bring a service revolver. It appears that he accepted and discharged this assignment. He was again assigned to such duty for Labor Day weekend in September, 1976. On December 17, 1976 respondent Environmental Conservation Commissioner promulgated a revised Duty Statement for Forest Rangers by which rangers were required to be armed with concealable weapons and to provide security at State-operated campsites, day-use areas, special facilities or undeveloped sites when so assigned.

By this article 78 proceeding petitioner sought a declaration that the directions that he carry a concealable weapon and engage in campsite security detail were null and void and in violation of subdivision 2 of section 61 of the Civil Service Law ("Prohibition against out-of-title work”) and that respondent commissioner might not order petitioner to possess a weapon and engage in penal law enforcement activities until the Criminal Procedure Law should be amended to provide him with powers of a peace officer or a police officer. Special Term granted relief only to the extent of determining that the commissioner could not require petitioner to engage in campsite security detail with a service revolver until such time as he should be qualified to possess a service revolver. The Appellate Division modified the judgment to grant the petition in its entirety.

By virtue of the positions now taken by the parties the issue before us has been narrowed and defined. On oral argument counsel for the commissioner withdrew any opposition to petitioner’s request for a declaration that He may not now be required to carry weapons in the performance of his duties. Petitioner is therefore entitled to a determination to that effect.

In his brief the commissioner has disclaimed any suggestion that forest rangers may be required to enforce the Penal Law of the State; he contends however that he may require enforcement by them of the Environmental Conservation Law and rules and regulations promulgated thereunder. Petitioner, on the other hand, concedes his obligation as a ranger to enforce that statute and the rules and regulations issued in furtherance of its enforcement, but disputes the authority of the commissioner to order him to enforce the Penal Law or any rules and regulations of the Environmental Conservation Department which "involve the full range of potential Penal Law violations”. The issue thus drawn is whether a forest ranger may be required to enforce provisions of the conservation statute or of ancillary rules and regulations if the violation of the statute, rule or regulation would also constitute a violation of the Penal Law, or whether the imposition of such duty is to be classified as a requirement of enforcement of the Penal Law that is beyond the scope of duties incidental to the position of forest ranger.

Critical to the resolution of this issue is a recognition of the status and function of the forest ranger. Section 9-0105 of the Environmental Conservation Law charges the Department of Environmental Conservation with the duty of the care, custody and control of specified State lands, including the State park campsite to which petitioner was assigned, and incidental to that duty authorizes the adoption by it of necessary rules and regulations. Article 71 of the statute — relating to enforcement — permits the Environmental Conservation Commissioner to designate employees of the department as enforcers of the statute, rules and regulations, and in consequence of such designation particular enforcement powers devolve upon them for exercise in the care and control of State lands (§§ 71-0201, 71-0525, 71-0705, 71-0907). Employees having the title of forest ranger are included, as they were in May and September, 1976, among those designated to enforce "the provisions of the Environmental Conservation Law and the rules, regulations and orders promulgated pursuant thereto” (6 NYCRR 641.1; see, also, predecessor rule, 6 NYCRR 641.2, repealed eff June 8, 1978).

It is thus apparent that the enforcement responsibility of the forest ranger focuses on provisions of the conservation statute and implementing rules, regulations and orders, rather than on the Penal Law. Indeed, the duty of general law enforcement on State park lands may accurately be said to be vested, within the department, in those employees who are defined as "police officers”, to wit, "sworn officer of the division of law enforcement in the department of environmental conservation”, a classification of department employees different and to be distinguished from forest rangers (CPL 1.20, subd 34, par £j]). This is not to say, however, that a forest ranger is absolved from responsibility for enforcement within his orbit of duty if the conduct which he must monitor happens also to be a violation of a Penal Law provision. The obligation of the ranger to compel compliance with restrictions, rules or orders issued for the preservation and control of State parks and property does not vanish because the infraction, by its nature, may serve additionally to subject the actor to criminal proceedings and penalties. A contrary result would effect a substantial and unwarranted impairment of the forest ranger’s authority and obligation to maintain and protect public lands and forests — a principal function of that employee within the Department of Environmental Conservation. Petitioner is therefore not entitled to a determination that he may not be assigned to campsite security details.

When so assigned, however, it must be observed that his responsibility is limited to enforcement of the conservation statute and rules, regulations and orders appropriately promulgated thereunder, utilizing, as necessary, such means and sanctions as may be authorized thereby, irrespective of whether Penal Law violations are simultaneously being committed. If the latter be the case, he is not obliged to take steps to invoke criminal sanctions, even though applicable to the conduct that contravenes conservation regulations. In short, while petitioner may be directed to enforce rules promulgated by the department in execution of its responsibility with respect to public lands, he may not be required to enforce the Penal Law of the State.

Accordingly, the order of the Appellate Division, which granted the petition in its entirety, should be modified, without costs, and the matter remitted to Special Term for entry of a judgment granting the petition to the extent of declaring that respondent commissioner does not have authority to direct that petitioner, a forest ranger, carry weapons in the discharge of his duties or to direct that petitioner engage in enforcement of the Penal Law as such, but that the commissioner may direct petitioner to enforce the various applicable provisions of the Environmental Conservation Law and rules, regulations and orders duly promulgated thereunder by such means as may be authorized thereby, without regard to the fact that the action or conduct involved might also be subject to criminal sanction, and, as so modified, affirmed.

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

Order modified, withofit costs, and the matter remitted to Special Term, for entry of a judgment in accordance with the opinion herein, and, as so modified, affirmed.

       Petitioner by his pleading has not challenged any regulation or rule governing use of park land or conduct by campers as not appropriately issued under the authority of the Conservation Department.


author: Wachtler, J.

text:
    John J. Kassner & Co., Inc., Respondent, v City of New York, Appellant.
    Argued February 7, 1979;
    decided March 27, 1979

      POINTS OF COUNSEL

      Allen G. Schwartz; Corporation Counsel (James P. GriiRn and Leonard Koerner of counsel), for appellant.
    Plaintiff’s claim for alleged extra services was untimely both under the contract and under the six-year Statute of Limitations provided in CPLR 213. (Soviero Bros. Contr. Corp. v City of New York, 286 App Div 435, 2 NY2d 924; Matter of City of New York [Elm Street], 239 NY 220.)

      Leon Quat for respondent.
    Plaintiff’s suit was timely and in accordance with the terms of the contract. (Hauer Constr. Co. v City of New York, 193 Misc 747, 276 App Div 841, 898; Soviero Bros. Contr. Corp. v City of New York, 286 App Div 435, 2 NY2d 924.)

       The certified question reads as follows: "Was the order of the Supreme Court, as affirmed by this Court, properly made?”

   OPINION OF THE COURT

Wachtler, J.

In an action by an engineering firm to recover money allegedly owed for work done on a municipal contract the city asserted the Statute of Limitations (CPLR 213, subd 2) as a defense. The Supreme Court granted plaintiff’s motion to dismiss the defense and denied the city’s cross motion for summary judgment holding that the action was timely because it was brought within the period specified in the contract. The Appellate Division affirmed and granted the city leave to appeal on a certified question.

In 1967 the plaintiff John J. Kassner & Co., a professional engineering corporation, entered into a contract with the City of New York to arrange the relocation of all utility facilities at the site of the proposed new police headquarters in Manhattan. The contract, and a later supplemental agreement, provided for a lump sum payment of approximately $200,000 to be paid to the plaintiff in percentage installments as the work progressed "subject to audit and revision by the Comptroller” of the city. The agreement also provides that "No action shall be * * * maintained against the City upon any claim based upon this contract or arising out of this contract * * * unless such action shall be commenced within six (6) months after the date of filing in the office of the Comptroller of the City of the certificate for the final payment hereunder * * * None of the provisions of Article 2 of the Civil Practice Laws and Rules shall apply to any action against the City arising out of this contract.”

On December 13, 1967 plaintiff submitted an itemized statement indicating that it had completed its work and claiming that there was a balance due of $39,523.69. Upon audit, however, the comptroller disallowed $38,423.69 claimed for "technical services” and only authorized a final payment of $1,100. The record does not indicate the date the plaintiff was informed of the comptroller’s decision. It is evident though that the plaintiff was aware of the results of the audit by July 1, 1968 when it sent a letter of protest demanding payment of the full amount.

For over six years the plaintiff did nothing further to collect any part of the final payment. Then, on September 19, 1974, the plaintiff submitted a requisition for final payment of the undisputed balance of $1,100. A voucher for this amount was certified by the Department of Public Works, on September 27, 1974, and was forwarded to the comptroller. On November 8, 1974, a check for $1,100 was sent to the plaintiff and, on that same date, a certificate of final payment was filed in the comptroller’s office.

Plaintiff commenced this action on April 18, 1975 by service of a summons and complaint seeking $39,523.69 as final payment due on the contract. By stipulation this amount was later reduced to $38,423.69 after plaintiff accepted the city’s check for $1,100 representing the undisputed balance. In its answer the city asserted the Statute of Limitations as a second affirmative defense. The plaintiff, relying on the limitations provision in the contract, moved to dismiss the defense and the city cross-moved for summary judgment on the defense.

The city relied upon CPLR article 2 which provides that a suit on a contract must be commenced within six years (CPLR 213, subd 2) after the cause of action accrued (CPLR 203, subd [a]). The city urged that the plaintiff’s cause of action "accrued no later than July 1, 1968” because the "Plaintiff was fully aware of the amount and nature of its claim as of July 1, 1968, and was enabled to bring its action at any time thereafter.” The city also argued that the provision in the contract requiring the plaintiff to commence its action within six months of the filing of the certificate of final payment was inapplicable because it was intended to shorten the statutory period and not to extend it and, in any event, could not have the effect of extending the statutory period since the city has "no power to waive * * * the statute of limitations” (General City Law, § 20, subd 5).

The plaintiff on the other hand urged that the contract was controlling; that under the agreement the cause of action did not accrue until the certificate of final payment had been filed and that the suit commenced within six months of that date was timely under the contract. The plaintiff also argued that the contractual limitations provision did not violate the General City Law (§ 20, subd 5) because the city "has not waived the statute [of limitations], but has * * * selected the agreed event or contingency on which the cause of action would accrue and. the statute would start to run.”

The Supreme Court concluded that the contractual limitations provision was controlling. The court stated: "While it may appear that the plaintiff’s cause of action here accrued on July 7, 1968, the parties contracted for the statute to run from the 'date of filing in the office of the Comptroller of the City of the certificate for the final payment hereunder . . .’ And the agreement also provided that none of the provisions of Article 2 of the CPLR 'shall apply to any action against the city arising out of this contract.’ The City entered into a binding agreement and it may not now use the CPLR as a shield against the provisions of the contract. Under the terms of the contract, the plaintiff has timely commenced the action even if it would otherwise have been barred by the CPLR.” Accordingly the court granted the plaintiff’s motion to dismiss the second affirmative defense and denied the city’s cross motion for summary judgment dismissing the complaint as untimely under the Statute of Limitations. The Appellate Division affirmed without opinion.

Two questions are presented by the appeal: (1) when did the cause of action accrue within the meaning of the Statute of Limitations, and (2) can a contractual limitations clause, which begins to run at a later date than the time of accrual under the statute, effectively extend the Statute of Limitations in an action on the contract.

In contract cases, the cause of action accrues and the Statute of Limitations begins to run from the time of the breach (Edlux Constr. Corp. v State of New York, 252 App Div 373, affd 277 NY 635; Victorson v Bock Laundry, 37 NY2d 394, 403; 6 Williston, Contracts [rev ed], § 2004, p 5641). And, as a general rule, when the right to final payment is subject to a condition, the obligation to pay arises and the cause of action accrues, only when the condition has been fulfilled (36 NY Jur, Limitations and Laches, § 61; Nolan v Whitney, 88 NY 649; Simpson, Contracts, § 112). In this case, however, the contract does not state that the plaintiff’s right to final payment is conditioned upon the filing of a certificate of final payment. On the contrary, the contract provides that the plaintiff is entitled to final payment when it has completed its work to the satisfaction of the Department of Public Works, subject only to an audit by the comptroller. Thus the plaintiff’s right to final payment and the city’s obligation to pay were conditioned upon completion of the audit (City of New York v State of New York, 40 NY2d 659, 668). But once the audit was completed and the plaintiff was informed of the results, the cause of action accrued (City of New York v State of New York, supra, p 668). The breach, if any, occurred at this point because the comptroller — the only official responsible and specifically designated in the contract to authorize payment on behalf of the city — unequivocally refused to pay the full amount demanded and allegedly due on the contract. Therefore the cause of action for breach of contract accrued, within the meaning of the Statute of Limitations, no later than July 1, 1968.

The limitations provision contained in the contract cannot serve, in this case, to extend the statutory period. Although the Statute of Limitations is generally viewed as a personal defense "to afford protection to defendants against defending stale claims”, it also expresses a societal interest or public policy "of giving repose to human affairs” (Flanagan v Mt. Eden Gen. Hosp., 24 NY2d 427, 429; Schwartz v Hayden Chem. Co., 12 NY2d 212; see, also, Weinstein-Korn-Miller, NY Civ Prac, par 201.01). Because of the combined private and public interests involved, individual parties are not entirely free to waive or modify the statutory defense.

The parties may cut back on the Statute of Limitations by agreeing that any suit must be commenced within a shorter period than is prescribed by law. Such an agreement does not conflict with public policy but, in fact, "more effectively secures the end sought to be attained by the statute of limitations” (Ripley v Aetna Ins. Co., 30 NY 136, 163). Thus an agreement which modifies the Statute of Limitations by specifying a shorter, but reasonable, period within which to commence an action is enforceable (Sapinkopf v Cunard S.S. Co., 254 NY 111) provided it is in writing (CPLR 201).

But the power of the parties to make enforceable agreements which would extend the Statute of Limitations is, of course, more restricted. "The public policy represented by the statute of limitations becomes pertinent where the contract not to plead the statute is in form or effect a contract to extend the period as provided by statute or to postpone the time from which the period of limitation is to be computed. ” (1961 Report of NY Law Rev Comm, pp 97, 98, emphasis added.) The validity of this type of agreement depends initially on the time at which it was made.

If the agreement to "waive” or extend the Statute of Limitations is made at the inception of liability it is unenforceable because a party cannot "in advance, make a valid promise that a statute founded in public policy shall be inoperative” (Shapley v Abbott, 42 NY 443, 452; Croker v Ireland, 235 App Div 760; Pine v Okoniewski, 256 App Div 519; cf. Wood Co. v Horgan, .291 NY 422, 426; see, also, Simpson, Contracts, § 41, pp 128-129). Of course at that stage there is a greater likelihood that a "waiver” or extension of the defense, as part of the initial contract or obligation, was the result of ignorance, improvidence, an unequal bargaining position or was simply unintended.

But if the agreement is made after the cause of action has accrued the Legislature has provided that it may be enforceable under certain circumstances. The controlling statute (General Obligations Law, § 17-103, subd 1) is applicable only to actions arising out of a contract and requires that the agreement or promise "to waive, to extend, or not to plead the statute of limitation” be in writing and signed by the promisor "after the accrual of the cause of action”. If these requirements are met the agreement or promise has the effect of renewing the Statute of Limitations for the applicable period, unless a shorter period is specified. The statute, it should be noted, is exclusive (see General Obligations Law, § 17-103, subd 3). Thus extension agreements made prior to the accrual of the cause of action continue to have "no effect” (General Obligations Law, § 17-103, subd 3).

An agreement to extend the Statute of Limitations is not truly a waiver unless it is made after the statutory period has run (Shapley v Abbott, supra, p 447). Thus, as a general rule a party who has not raised the Statute of Limitations as a defense in the answer or by a motion to dismiss is held to have waived it (see Weinstein-Korn-Miller, NY Civ Prac, par 201.11). A city, as noted, lacks the power to waive the Statute of Limitations (General City Law, § 20, subd 5; Matter of City of New York [Elm St], 239 NY 220) but is not otherwise precluded from granting an extension. In New York City, for instance, the comptroller is expressly authorized to agree to an extension, although under circumstances and terms generally more restrictive than would otherwise be permitted by section 17-103 of the General Obligations Law (see Administrative Code of City of New York, § 93d-3.1).

The contractual limitations provision in this case is apparently a standard clause which, undoubtedly, was included to shorten the Statute of Limitations (see, e.g., Soviero Bros, v City of New York, 286 App Div 435 [Breitel, J.], affd 2 NY2d 924). To that extent, of course, it would be enforceable (CPLR 201). It is doubtful that the parties actually intended to postpone the accrual of the cause of action or anticipated that this provision would ever be employed to extend the expiration of the statutory period. In any event, since it was adopted at the inception of the contract and not after the cause of action had accrued, it may not serve to extend the Statute of Limitations (General Obligations Law, § 17-103, subds 1, 3).

Accordingly, the order of the Appellate Division should be reversed, with costs, the plaintiff’s motion to dismiss the second affirmative defense should be denied, and the defendant’s cross motion for summary judgment should be granted. The certified question should be answered in the negative.

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

Order reversed, etc.


text:
    Board of Education of Central School District No. 1 of the Towns of Niagara, Wheatfield, Lewiston and Cambria, Respondent, v Niagara-Wheatfield Teachers Association et al., Appellants.
    Argued February 15,1979;
    decided March 29, 1979

      POINTS OF COUNSEL

      Richard E. Casagrande, Bernard F. Ashe and J. Michael Eadry for appellants.
    I. The reviewing court is prohibited from undertaking a relitigation of the merits of the case decided in arbitration. (Matter of Cohoes City School Dist. v Cohoes Teachers Assn., 40 NY2d 774; Matter of Torano [MVAIC], 19 AD2d 356; Matter of Professional Staff Congress/City Univ. of

      N. Y. v Board of Higher Educ., 39 NY2d 319; Matter of Associated Teachers of Huntington v Board of Educ., 33 NY2d 229; Matter of Fayetteville-Manlius Cent. School Dist. [Fayetteville-Manlius Teachers Assn.], 51 AD2d 91, 41 NY2d 818.) II. The lower courts’ confirmation of the first three paragraphs of the arbitrator’s award was proper. (Lentine v Fundaro, 29 NY2d 382; Matter of National Cash Register Co. [Wilson], 8 NY2d 377; Matter of Board of Educ. [Auburn Teachers Assn.], 49 AD2d 35.) III. The lower courts erred by vacating the arbitrator’s award of damages. (Garrity v Lyle Stuart, Inc., 40 NY2d 354; Matter of Feuer Transp. [Local No. 445], 295 NY 87; Matter of Staklinski [Pyramid Elec. Co.], 6 AD2d 565; Board of Educ. v Bellmore-Merrick United Secondary Teachers, 39 NY2d 167; Matter of British Overseas Airways Corp. v International Assn. of Machinists & Aerospace Workers, AFL-CIO, 39 AD2d 900, 32 NY2d 823; Matter of Fayetteville-Manlius Cent. School Dist. [Fayetteville-Manlius Teachers Assn.], 51 AD2d 91, 41 NY2d 818; Matter of Bellmore-Merrick United Secondary Teachers v Board of Educ., 51 AD2d 762; Randall-Smith, Inc. v 43rd St. Estates Corp., 17 NY2d 99; Rochester City School Dist. v Rochester Teachers Assn., 41 NY2d 578.) IV. Appellant Brown is entitled to interest accruing from the date of the arbitrator’s award. (Matter of McEntee [MVAIC], 29 AD2d 68, 28 NY2d 939; Matter of Silverglad v Motor Vehicle Acc. Ind. Corp., 56 Misc 2d 289.) V. Public policy demands that this arbitration award be confirmed in all respects. (Steelworkers v American Mfg. Co., 363 US 564; Board of Educ. v Associated Teachers of Huntington, 30 NY2d 122; Board of Educ. v Bellmore-Merrick United Secondary Teachers, 39 NY2d 167; Matter of Associated Teachers of Huntington v Board of Educ., 33 NY2d 229.)

      David A. Hoover for respondent.
    I. Arbitration awards are subject to limited review and may not be vacated because of the arbitrator’s error of law or fact. (Matter of Associated Teachers of Huntington v Board of Educ., 33 NY2d 229; Garrity v Lyle Stuart, Inc., 40 NY2d 354; Matter of Publishers’ Assn. of N. Y. City v Newspaper & Mail Deliverers’ Union of N. Y, 280 App Div 500.) II. The lower courts correctly vacated the arbitrator’s award of money damages. (Walker v Sheldon, 10 NY2d 401; Matter of Bellmore-Merrick United Secondary Teachers v Board of Educ., 51 AD2d 762.) III. The award of $1,500 to Brown was in the nature of punitive damages and was properly vacated by the courts below. (Mat

      ter of Professional Staff Congress/City Univ. of N. Y. v Board of Higher Educ., 39 NY2d 319; Matter of Associated Teachers of Huntington v Board of Educ., 33 NY2d 229.) IV. The arbitrator’s violation of a clear public policy against the award of punitive damages makes vacatur of the fourth paragraph of the award proper in all respects. (Steelworkers v American Mfg. Co., 363 US 564; Board of Educ. v Associated Teachers of Huntington, 30 NY2d 122; Board of Educ. v Bellmore-Merrick United Secondary Teachers, 39 NY2d 167; Matter of Acting Supt. of Schools of Liverpool Cent. School Dist. [United Liverpool Faculty Assn.], 42 NY2d 509.)
   OPINION OF THE COURT

Gabrielli, J.

The issue presented is whether an arbitrator’s award is punitive, and hence unenforceable, when the compensatory damages awarded are deemed to be somewhat speculative. Because we conclude that the award is not punitive in nature, we reverse and direct that the arbitrator’s award be confirmed in its entirety.

The present controversy ensued following the filing of a grievance by the Niagara-Wheatfield Teachers Association on behalf of a member, George Brown, alleging that the district violated the collective bargaining agreement when it hired a guidance counselor from outside the district rather than awarding the position to Mr. Brown. Specifically it was alleged that the district had breached a covenant against discrimination on the basis of sex when it announced that female applicants were preferred for the position. It was also alleged that Brown had been deprived of a professional advantage without just cause, that the district had failed to follow the contractually required posting procedures, and that the district had refused to give the position to the most senior of the equally qualified applicants, all in violation of the collective bargaining agreement.

In due course, the matter proceeded to arbitration, and the arbitrator found that the district had in fact breached its agreement with the association. He found that the solicitation of applicants was discriminatory, that the posting procedures mandated by the agreement had not been followed, and that the grievant’s seniority rights may have been neither clearly understood nor properly evaluated by the district.

In his decision the arbitrator candidly stated "there is a chance that [Mr. Brown] might not have received the appointment, even. if his contractual rights had been safeguarded although his presumptive right thereto may have been shown. Nonetheless, I do believe that these rights were flagrantly disregarded and that he suffered compensable damages thereby”. The arbitrator then fixed the amount of damages at $1,500, without further .specifically detailing the manner or mode of fixing that amount.

The district moved under CPLR 7511 to vacate the award, alleging that the arbitrator exceeded his powers under the collective bargaining agreement. Special Term agreed, and vacated the award to the extent only that it granted monetary damages. All other provisions of the award, including the arbitrator’s findings that the district had breached the agreement, were confirmed. The Appellate Division affirmed on the opinion of Special Term, adding only that the award of monetary damages was punitive and was subject to vacatur under the rule laid down in Garrity v Lyle Stuart, Inc. (40 NY2d 354). We reverse.

Merely because an arbitrator’s award is not arrived at by precise mathematical computations does not make it punitive. Indeed, much of the laudatory value of arbitration lies in the arbitrator’s power to construct a remedy best suited to the situation without regard to the restrictions on traditional relief in a court of law (Rochester City School Dist. v Rochester Teachers Assn., 41 NY2d 578). Merely because the computation of damages may be so speculative as to be unsupportable if awarded by a court does not make the award infirm, for, as we have firmly stated, arbitrators are not bound by rules of substantive law or, indeed, rules of evidence (Matter of Associated Teachers of Huntington v Board of Educ., 33 NY2d 229).

Here, the arbitrator found that Brown had been discriminated against when the district failed properly to consider his application for a guidance counselor position. Admittedly, there was no certainty or assurance that Brown would have been given the position even if his application had been properly processed. The arbitrator’s pragmatic solution was to select a sum that he thought properly reflected the damages suffered by Brown.

As in many cases, the award was an attempt to arrive at a just solution, despite the association’s inability to prove the damages precisely. Assuming, arguendo, that the arbitrator exceeded the power (or lack thereof) which law courts would have had if the parties had chosen to litigate, this nevertheless is not a ground for vacatur. Having chosen arbitration as their forum, the parties must recognize that an award may differ from that expected in a court of law without being subject to attack for that reason alone (Rochester City School Dist. v Rochester Teachers Assn., 41 NY2d 578, 582, supra).

The present case is readily distinguishable from the situation in Garrity v Lyle Stuart, Inc. (40 NY2d 354, supra), which was relied on by the Appellate Division. In that case there was no problem computing compensatory damages, but in addition the arbitrator awarded punitive damages which were expressly labeled as such. We held on the facts in that case, that punitive damages may only be awarded by the State’s courts. That holding should not be interpreted as an indication that whenever compensatory damages are somewhat speculative they are necessarily punitive (cf. Matter of North Colonie Cent. School Dist. [North Colonie Teachers’ Assn.], 60 AD2d 496, affd 46 NY2d 965). Ritualistic incantations of "punitive damages” will not suffice to vacate an arbitration award where discretion is used in the computation of damages. Only where the damages are genuinely intended to be punitive should the courts vacate the award. In all other cases "it is the declared policy of this State to encourage 'public employers and * * * employee organizations to agree upon procedures for resolving disputes’ ” (Board of Educ. v Associated Teachers of Huntington, 30 NY2d 122, 131), and we should enforce the awards rendered by using those procedures where strong public policy is not violated.

On this appeal the Teachers Association also urges that it is entitled to interest on the monetary damages from the date of the arbitrator’s award. This was clearly the rule under the Civil Practice Act (Matter of Durant [MVAIC], 15 NY2d 408, mot for rearg den 16 NY2d 716), and it was not changed by the adoption of the CPLR (Matter of McEntee [MVAIC], 29 AD2d 68, affd 28 NY2d 939). Hence, upon confirmation of an arbitrator’s award, interest should be provided from the date of the award.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the arbitrator’s award of damages reinstated and confirmed.

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

Order reversed, etc.

       In fact the association has suggested that the award was an attempt to compensate Brown for one half the pay differential between the salary at his teaching position and that as guidance counselor, a difference of $3,800. This, of course, adds support to our holding that the damages are compensatory and not punitive.