text:
    Suffolk County Builders Association, Inc., et al., Appellants, v County of Suffolk et al., Respondents.
    Argued February 14, 1979;
    decided April 5, 1979

      POINTS OF COUNSEL

      Sol Horenstein and John E. Lander for appellants.
    I. The powers granted to defendant agency are not equivalent to the powers granted to a municipal corporation unless specifically delegated by the Legislature. (Bender v Jamaica Hosp., 40 NY2d 560; Matter of Torsoe Bros. Constr. Corp. v Board of Trustees of Inc. Vil. of Monroe, 49 AD2d 461; City of Albany v Anthony, 262 App Div 401; Matter of Barker v Switzer, 209 App Div 151; Gerber v Seaich Realty Co., 259 App Div 667; Komar v Dun & Bradstreet Co., 284 App Div 538; Matter of Ostrove v New York State Teachers Retirement System Bd., 32 AD2d 163, 27 NY2d 623; Civil Serv. Forum v New York City Tr. Auth., 4 AD2d 117; Matter of Mooney v Cohen, 272 NY 33; Matter of Levine v Whalen, 39 NY2d 510.) II. Examination of the Public Health Law, the New York State Sanitary Code, and Suffolk County Sanitary Code establishes that the Legislature of the State of New York and the Suffolk County Charter did not grant to respondents the power to promulgate rules for the exaction of fees for alleged services. (Nitkin v Administrator of Health Servs. Admin. of City of

      N. Y., 55 AD2d 566, 43 NY2d 673; Matter of People ex rel. Brown v Woodruff, 32 NY 355; McKuskie v Hendrickson, 128 NY 555; Oneida Nat. Bank & Trust Co. of Utica v Manikas, 10 Misc 2d 671; Delaney v Central Val. Golf Club, 263 App Div 710, 870, 289 NY 577; People v Kupprat, 6 NY2d 88; Bright Homes v Wright, 8 NY2d 157.) III. The evidence established the fees charged bear no reasonable relation to the cost of regulation. (Matter of Lakeland Water Dist. v Onondaga County Water Auth., 24 NY2d 400; People v Strax, 80 Misc 2d 679; Falcone v Zingerline, 61 Misc 2d 885; Larsen Baking Co. v City of New York, 30 AD2d 400, 24 NY2d 1036; Bon Air Estates v Village of Suffern, 32 AD2d 921; Adlerstein v City of New York, 11 Misc 2d 754, 7 AD2d 717, 6 NY2d 740; People ex rel. Western Union Tel. Co. v Public Serv. Comm, of State of N. Y., 192 App Div 748, 230 NY 95, 657.)

      Howard E. Pachman, County Attorney (Alfred Jackson, Jr., and Leonard J. Shore of counsel), for respondents.
    I. The County Board of Health, as an incident to its power to adopt regulations for the issuance of permits for water and sanitary facilities, may adopt reasonable fees for said regulations. (Matter of Torsoe Bros. Constr. Corp. v Board of Trustees of Inc. Vil. of Monroe, 49 AD2d 461; Larsen Baking Co. v City of New York, 30 AD2d 400, 24 NY2d 1036; Matter of Posner v Cooper, 194 Misc 640; Matter of Medine v Burns, 29 Misc 2d 890.) II. The Commissioner of Health Services was properly empowered to establish the fee schedule for the permits. (Matter of Levine v Whalen, 39 NY2d 510; Matter of McGovern v Patterson, 273 App Div 35, 298 NY 530; Matter of Nemeroff Realty Corp. v Kerr, 38 AD2d 437, 32 NY2d 873; Matter of Kiernan v Bronstein, 73 Misc 2d 629; Mobil Oil Corp. v Town of Huntington, 85 Misc 2d 800; Smart v City of Albany, 146 Misc 60.)
   OPINION OF THE COURT

Fuchsberg, J.

In a declaratory judgment action, plaintiffs Suffolk County Builders Association and certain individual builders challenge the validity of a schedule of site inspection charges promulgated by the defendant Suffolk County Department of Health Services. The regulation in question, section 301 (subd 1, par [a]) of the Suffolk County Sanitary Code, was adopted by the County Board of Health in September, 1975 pursuant to the authority delegated in section 347 of the Public Health Law. It purports to empower the Commissioner of Health Services, the presiding member of the board and the head of the county health department, to "establish a schedule of and impose fees for the consideration of applications for the issuance of licenses, approvals or permits consistent with the cost of examination and field inspections”. Essentially at issue is the power of the commissioner to impose any charges at all and the propriety of those here established.

Shortly after section 301 was adopted, under the commissioner’s direction, the health department undertook a study of the expenses the county incurred incident to the issuance of health permits for water service and sanitary facilities for new construction. The factors that the study took into account consisted of approximations of the actual cost of performing the related services by the department’s general engineering unit in 1974 (the last full year before the section was enacted), the number of actual inspections of both commercial and residential construction projects for that year, and an estimation of the time required for inspecting and processing the various applications. Candidly conceding that the end result was only a "rough estimate” of the cost of the entire permit issuance program, the commissioner arrived at a figure indicating that the total cost to the county in 1974 was $545,000.

Finally established by the commissioner in February, 1976, the schedule that eventuated from the cost study imposed fees ranging from $25 to $140 for the issuance of a health department permit for residential construction, depending on whether the particular plot was serviced by public or private water and sanitary facilities and, in the instance of a parcel serviced by both private water (wells) and private sanitary facilities (cesspools), upon the size of the parcel. A separate, higher fee schedule was applicable to commercial construction. Based on an annualized projection of revenue for 1976, a total of almost $500,000 was collected in permit fees; the cost of issuing permits for 1975, however, had risen to $585,000.

Plaintiffs’ attack is three-pronged. Two of their grounds rest on an ultra vires theory, namely, that the County Board of Health lacked either express or implied statutory authority to impose the fees, and that, even if the board did have such authority, it was improperly delegated to the commissioner and the department, a unit of local government never invested with any such powers by the Legislature. The third, a fallback position, concerns the method by which the commissioner computed the schedule. In scattershot manner, the plaintiffs complain of things as disparate as a claim that the study bunched the time periods spent in inspecting commercial parcels with those for single-family residential sites, that too much of the inspectors’ working time was wasted and that State aid grants to the local government had not been proportionately credited against the cost of running the department in computing the cost of the permit issuance procedure.1 Overall, displaying a rather excessive confidence in the infallibility of statistics, plaintiffs argue that the schedule was arrived at by a process too heavily dependent on subjective estimates to form a sufficient basis for fixing the costs. They further would have us conclude that, as a consequence, the amounts permit applicants are required to pay are in tribute under an unauthorized revenue-producing measure.

The Supreme Court, agreeing with the first two contentions and, under its approach, apparently finding it unnecessary to reach the third, declared the section under attack invalid. The Appellate Division, in a conclusory memorandum reversing, rejected all three of plaintiffs’ arguments. We agree with its determination.

We deal first with plaintiffs’ claim that the board lacked the power to levy fees for health permits. Subdivision of section 347 of the Public Health Law delegates a broadly framed grant of authority to all county boards of health to "formulate, promulgate, adopt and publish rules, regulations, orders and directions for the security of life and health * * * not * * * inconsistent with the provisions of this chapter and the sanitary code”. Though the statute nowhere provides explicitly for the imposition of permit fees by the board, in other contexts the power to impose reasonable fees in connection with effective regulation has been implied from similarly broad delegations (see Jewish Reconstructionist Synagogue of North Shore v Incorporated Vil. of Roslyn Harbor, 40 NY2d 158, 163-165 [upholding ordinance imposing set fees of $60 for a variance and $50 for a permit plus actual costs of zoning appeals board’s consideration of application]; City of Buffalo v Stevenson, 207 NY 258, 262-263 [validating a city’s power to levy fees for opening of pavement]).

However, plaintiffs argue that there exists no valid basis for implying such power because explicit authorization for the health commissioner’s collection of a fee is found in another section of the statute (Public Health Law, § 352, subd 4 [fees collectible from patients or from person or agency responsible for their care for services rendered by county-operated institutions]). We hardly think that the expansive mandate conferred by section 347 should be negated on the strength of so ambiguous an inference as might be drawn from this single instance of express legislative authorization. Moreover, local authorities traditionally have been accorded latitude in adopting regulations directly affecting the health of those within their province (see Lang’s Creamery v City of Niagara Falls, 251 NY 343, 346). And the breadth of the regulatory power delegated by the Legislature, bounded only by "the security of life and health” (cf. Matter of Levine v Whalen, 39 NY2d 510, 517 ["protection and promotion of the health of the inhabitants of the state”]), cannot be deemed otherwise than as encompassing the board’s enactment here.

The power to regulate subsumes the concomitant power to license and to set fees reasonably related to the cost of licensing (see City of Buffalo v Stevenson, supra, p 262; Matter of Torsoe Bros. Constr. Corp. v Board of Trustees of Inc. Vil. of Monroe, 49 AD2d 461, 464; 9 McQuillin, Municipal Corporations [3d ed rev], §§ 26.27, 26.28). For, without the power to do so, a local governmental agency might well find itself without the means to fulfill its statutory imperative. Thus the power to enact fees may be implied, though, because its provision is then not spelled out in so many words, it must be regarded as circumscribed by a similarly implied limitation that the fees charged be reasonably necessary to the accomplishment of the regulatory program (Jewish Reconstructionist Synagogue of North Shore v Incorporated Vil. of Roslyn Harbor, 40 NY2d 158, 163, supra).

Nor, as plaintiffs urge, is this implied power to set fees peculiar to municipalities. In this regard, given that agencies and municipal corporations both derive their authority from the Legislature, we reject any attempt to base a distinction in the implied powers that each is permitted to wield on whether they are exercisable by one of these governmental entities or the other.

We pass next to plaintiffs’ contention that the board’s delegation to the commissioner and, hence, to the health department of the power to establish the fee schedule was unlawful. Well settled is the principle that legislative delegations of power to administrative bodies are legitimate so long as adequate standards exist to channel the exercise of that power (Matter of Levine v Whalen, 39 NY2d 510, 515, supra, and authorities therein cited). Nevertheless, because flexibility is sought, the required standards need only be prescribed in so much detail as is reasonably practicable in light of the complexities of the area to be regulated.

The present case offers a variant of the traditional problem in that the issue is the validity of the subdelegation from the board to the commissioner and then in turn from the commissioner to the department, a creature of local government charged with implementing, among other things, the directives of the County Sanitary Code. But this distinction does not supply a sufficient reason to depart from the rules pertaining to legislative delegations, especially since the orderly functioning of an administrative body might otherwise be frustrated (see 1 Davis, Administrative Law Treatise, § 9.01; cf. Matter of McGovern v Patterson, 273 App Div 35, 38-39, affd 298 NY 530). It is a commonsense proposition that subdelegation is an inevitable incident of hierarchical organization; the issue then is one of degree. In our view, the board acted well within the parameters of its discretion in appointing the commissioner — its presiding officer and the one charged with powers of investigation and enforcement through the local health agency — to administer the permit fee program. Thus, the initial grant of authority to the board having encompassed the power to levy fees, the board did no more than take the reasonable step of commending the responsibility to the officer and department most capable of effectively performing that task.

We turn now to the point that the fees imposed by the commissioner were not, in fact, "consistent with the cost of examination and field inspections” because the cost figures on which the fee schedule was based were drawn in part from rough estimates of the previous year’s expenses rather than from more precise statistical formulae. To support it, plaintiffs place much reliance on the fact that judgments and estimates rather than numerically accurate calculations alone led to the fees proclaimed by the schedule. Doing so, they fail to recognize that bare numbers may be more deceptive than words. To be sure, things stated in terms of decimal points and fractions do carry an air of cold neutrality, but, except in a world of absolutes, as respected observers of life as diverse as Mark Twain and Benjamin Disraeli have had occasion to note, statistics can prove anything (see, generally, Lepham, Random Numbers, Harper’s [Oct., 1976], pp 10-12; Time, Sept. 8, 1967, p 29). Thus, though often in the end but an "unsupported opinion”, a statistic acquires an existence independent of the ultimate fact it is intended to establish (Holland v United States, 348 US 121, 128; Berley Inds. v City of New York, 45 NY2d 683, 688), an attribute that oft renders difficult any attempt to controvert or evaluate the underlying fact.

This is not to scoff at exact figures — when they are to be had. It is merely to observe that they are not necessarily the only means by which to arrive at a fair judgment of cost, all the more so when, as here, the department’s aim was not to record past experience but to predict what it would be in the future. Yet, here, the available cost figures were not ignored. The commissioner took those that were most recent and, where no time studies separating commercial from noncommercial inspections had been made in the past, almost necessarily placed reliance on estimates instead. Judgmental exercise was also unavoidable in apportioning departmental costs between this program and the other functions jointly served by the health department.

In short, this was a situation in which both statistical information and human experience played a part. Together, they were calculated to attain a reasonable correspondence between costs and fees. Exact congruence between total expenses and total permit charges was not required (see Bon Air Estates v Village of Suffern, 32 AD2d 921, 922-923; McQuillin, Municipal Corporations, § 26.36; cf. Gannett Co. v City of Rochester, 69 Misc 2d 619, 629). And, from this analysis, it also follows that the imposition of fees did not constitute an improper assumption of the power to tax (see Matter of Torsoe Bros. Constr. Corp. v Board of Trustees, 49 AD2d 461, supra).

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

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

Order affirmed, with costs.

      . There was no State aid granted to the department as such.

      . We note that, though the propriety of the method thus employed was therefore sufficient to permit its utilization when adopted, even as tested by hindsight the total cost of the fee program came in at a figure within 10% of the one on which the schedule was based — interestingly, a percentile by which licensees, not the county, were favored.


source: Caselaw Access Project

author: Jasen, J.

license: Public Domain

text:
    In the Matter of the Arbitration between Murray Sprinzen, as Vice President of Local 1115 Joint Board, Appellant, and Murray Nomberg, Respondent.
    Argued February 14, 1979;
    decided March 27, 1979

      POINTS OF COUNSEL

      Richard M. Greenspan for appellant.
    I. Nomberg’s contract of employment contained a very broad and sweeping arbitration clause requiring arbitration as the sole and exclusive remedy for all disputes whether under the contract or with respect to any act, conduct or term of condition of employment between them. (Matter of Grayson-Robinson Stores [Iris Constr. Corp.], 8 NY2d 133; Matter of Lipschutz [Gutwirth], 304 NY 58; Matter of Amtorg Trading Corp. [Camden Fibre Mills], 227 App Div 531, 304 NY 519; Monroe Sander Corp. v Livingston, 377 F2d 6.) II. The making of the contract being admitted, all questions of fact and law are for the arbitrator. Courts will not review the arbitrator’s finding of fact and law. (Steelworkers v American Mfg. Co., 363 US 464; Matter of Ruppert [Egelhofer], 3 NY2d 576; Matter of Staklinski [Pyramid Elec. Co.], 6 NY2d 159; Matter of Grayson-Robinson Stores [Iris Constr. Corp.], 8 NY2d 133; Reed, Roberts Assoc. v Strauman, 40 NY2d 303; Matter of Raisler Corp. [N. Y. City Housing Auth.], 32 NY2d 274; Lentine v Fundaro, 29 NY2d 382; Matter of Schine Enterprises [Real Estate Portfolio of N. Y.], 26 NY2d 799; Matter of United Buying Serv. Int. Corp. v United Buying Serv. of Northeastern N. Y., 38 AD2d 75, 30 NY2d 822.) III. Confirmation of the arbitrator’s award is not against public policy. (Bates Chevrolet Corp. v Haven Chevrolet, 13 AD2d 27; Matter of All State Tax Serv. of Area 5

      [Kerekes Bros.], 34 AD2d 935; Matter of Riccardi v Modern Silver Linen Supply Co., 45 AD2d 191; Matter of Associated Teachers of Huntington v Board of Educ., 33 NY2d 229; Binghamton Civ. Serv. Forum v City of Binghamton, 44 NY2d 23; Matter of Susquehanna Val. Cent. School Dist. at Conklin [Susquehanna Val. Teachers’ Assn.], 37 NY2d 614; Paramount Pad Co. v Baumrind, 4 NY2d 993; Matter of Exercycle Corp. [Maratta], 9 NY2d 329.)

      Stephen C. Vladeck, Judith P. Vladeck and David M. Eisenberg for respondent.
    I. The arbitration award was properly vacated on the ground that it enforced unreasonable restrictive covenants and thus violated manifest public policy. (Oregon Steam Nav. Co. v Winsor, 87 US 64; Purchasing Assoc. v Weitz, 13 NY2d 267; Columbia Ribbon & Carbon Mfg. Co. v A-1-A Corp., 42 NY2d 496; Clark Paper & Mfg. Co. v Stenacher, 236 NY 312; Paramount Pad Co. v Baumrind, 4 NY2d 993; Simons v Fried, 302 NY 323; Leo Silfen, Inc. v Cream, 29 NY2d 387; Frederick Bros. Artists Corp. v Yates, 271 App Div 69, 296 NY 820; Small v Kronstat, 175 Misc 626; Corpin v Wheatley, 227 App Div 212.) II. Assuming, arguendo, that the arbitration award should not be vacated on public policy grounds, the award should be vacated on the ground that Arbitrator Le Grange was not impartial. (Matter of Labor Relations Section of Northern N. Y. Bldrs. Exch. v Gordon, 41 AD2d 25; Matter of Friedman, 215 App Div 130; Matter of Baar & Beards v Oleg Cassini, Inc., 37 AD2d 106, 30 NY2d 649; Commonwealth Corp. v Casualty Corp., 393 US 145; Matter of Frenkel [Schickman], 285 App Div 885; Matter of A. M. Perlman, Inc. [Raycrest Mills], 280 App Div 744; Matter of Stevens & Co. [Rytex Corp.], 41 AD2d 15, 34 NY2d 123; Matter of Weinrott [Carp], 32 NY2d 190; Matter of Shirley Silk Co. [American Silk Mills], 260 App Div 572.)
   OPINION OF THE COURT

Jasen, J.

This appeal requires us to determine whether an arbitrator’s award which enforces the terms of a restrictive covenant of employment is unenforceable as being contrary to public policy.

Respondent Murray Nomberg was employed by the petitioner Local 1115 Joint Board in April, 1973 as a business agent in its health-care division. Nomberg’s responsibilities included, among other tasks, the negotiation of collective bargaining agreements, the processing of members’ grievances, and the general organization of employees at various facilities. Practically all of Nomberg’s service occurred in New Jersey, although he did, on occasion, work in Connecticut and Pennsylvania.

Upon commencement of his employment with Local 1115 in April, 1973, Nomberg signed an agreement which contained a restrictive covenant. The terms of such covenant provided for a perpetual prohibition against the divulgence of the identity and addresses of union members or the terms and conditions embodied in the union agreements or the revelation of any information obtained by Nomberg during the course of his employment. Further, Nomberg agreed that "[u]pon the termination of his employment * * * he shall not directly or indirectly, within the States of New York, Pennsylvania, New Jersey and Connecticut * * * enter into or engage in organizing workers, either as an individual or as a part of a labor organization, for a period of five (5) years after the date of termination of his employment hereunder.” The agreement also contained a sweeping arbitration clause which prescribed that "[a]ll complaints, disputes whatsoever of whatever kind or nature * * * concerning any provision of this contract * * * or otherwise * * * shall be submitted for arbitration” pursuant to a clearly delineated process.

In February, 1976, Nomberg left Local 1115 and began employment as a business representative for Local 144 of the Hotel, Hospital, Nursing Home and Allied Services Union, a union also involved in organizing and representing employees in the health-care field. With Local 144, Nomberg’s geographical responsibilities included only Manhattan and Staten Island, areas with which he had no previous dealings.

Petitioner Local 1115 demanded arbitration to compel compliance with the terms of the restrictive covenant and to enjoin Nomberg from employment as a business representative for Local 144. The parties proceeded to arbitration, where Nomberg, after unsuccessfully contesting the partiality of the arbitrator named in the April, 1973 agreement, walked out of the hearing, refusing to participate further. After petitioner presented its case, the arbitrator ruled that Local 1115 was entitled to the relief sought and issued an award enjoining Nomberg from working for Local 144 until February 6, 1981, five years after his employment ceased with Local 1115, and further restrained Nomberg from engaging in any of the other practices and acts specifically prohibited by the restrictive covenant.

Petitioner moved to confirm the arbitrator’s award, and Nomberg cross-moved to vacate the same, contending that his rights were prejudiced by the arbitrator’s partiality and that the award itself was unjust. Special Term confirmed the award and denied Nomberg’s cross motion in all respects. On appeal, the Appellate Division, with two Justices dissenting, reversed and vacated the award, holding that "the arbitration award under the circumstances of this case [is] in contravention of public policy”. There should be a reversal and the judgment of Special Term confirming the award of the arbitrator reinstated.

Controversies involving questions of public policy can rarely, if ever, be resolved by the blind application of sedentary legal principles. The very nature of the concept of public policy itself militates against any attempt to define its ingredients in a manner which would allow one to become complacent in the thought that those precepts which society so steadfastly embraces today will continue to serve as the foundation upon which society will function tomorrow. Public policy, like society, is continually evolving and those entrusted with its implementation must respond to its everchanging demands.

Over the years, courts have had not infrequent occasion to test restrictive covenants against the fabric of prevailing public policy. While it has been consistently asserted that the policy considerations against depriving the public of a person’s industry and precluding an individual from pursuing his occupation, thereby preventing him from supporting himself and his family, must be weighed against the enforcement of such covenants (see, e.g., Oregon Steam Nav. Co. v Winsor, 87 US 64, 68; Purchasing Assoc. v Weitz, 13 NY2d 267, 272), no hard-and-fast rules have yet been formulated and courts have been continuously engaged in the ongoing task of determining what restrictions are reasonable given the peculiar circumstances and context of each individual case. (See, e.g., Columbia Ribbon & Carbon Mfg. Co. v A-l-A Corp., 42 NY2d 496; Gelder Med. Group v Webber, 41 NY2d 680; Reed, Roberts Assoc. v Strauman, 40 NY2d 303, mot for rearg den 40 NY2d 918; Purchasing Assoc. v Weitz, 13 NY2d 267, supra.) Thus, it can be said with apparent certainty that cases involving restrictive covenants cannot be decided in a vacuum free from external influences. Courts must respond to each case as it presents itself, and often times, as in the present case, must resolve seemingly divergent considerations of public policy.

The issue presented in this case comes to us in an increasingly recurrent posture — to wit: the review of a judgment confirming an arbitrator’s award. An agreement to submit to arbitration disputes arising out of a contract, once condemned by the judiciary of this State as tending to oust the courts of their jurisdiction and, thus, declared void as contrary to settled policy (see Meacham v Jamestown, Franklin & Clearfield R. R. Co., 211 NY 346), is now favorably recognized as an efficacious procedure whereby parties can select their own nonjudicial forum for the “private and practical” resolution of their disputes “with maximum dispatch and at minimum expense.” (Matter of Siegel [Lewis], 40 NY2d 687, 689, mot for rearg den 41 NY2d 901; see, generally, Siegel, New York Practice, § 586.)

In furtherance of the laudable purposes served by permitting consenting parties to submit controversies to arbitration, the law has adopted a policy of noninterference, with few exceptions, in this mode of dispute resolution. Quite simply, it can be said that the arbitrator is not bound to abide by, absent a contrary provision in the arbitration agreement, those principles of substantive law or rules of procedure which govern the traditional litigation process. (E.g., Matter of Associated Teachers of Huntington v Board of Educ., 33 NY2d 229, 235; Lentine v Fundaro, 29 NY2d 382, 385.) An arbitrator’s paramount responsibility is to reach an equitable result, and the courts will not assume the role of overseers to mold the award to conform to their sense of justice. Thus, an arbitrator’s award will not be vacated for errors of law and fact committed by the arbitrator (Rochester City School Dist. v Rochester Teachers Assn., 41 NY2d 578, 582; Garrity v Lyle Stuart, Inc., 40 NY2d 354, 356-357; Matter of Raisler Corp. [N. Y. City Housing Auth.], 32 NY2d 274, 282, citing Matter of S & W Fine Foods [Office Employees Int. Union], 8 AD2d 130, 131, affd 7 NY2d 1018), and ”[e]ven where the arbitrator states an intention to apply a law, and then misapplies it, the award will not be set aside (Matter of Schine Enterprises [Real Estate Portfolio of N. Y.], 26 NY2d 799, 801).” (Matter of Associated Teachers of Huntington v Board of Educ., 33 NY2d 229, 235, supra.)

Despite this policy of according an arbitrator seemingly unfettered discretion in matters submitted to him by the consent of the parties, it is the established law in this State that an award which is violative of public policy will not be permitted to stand. (Garrity v Lyle Stuart, Inc., 40 NY2d 354, 357, supra.) The courts, however, must exercise due restraint in this regard, for the preservation of the arbitration process and the policy of allowing parties to choose a nonjudicial forum, embedded in freedom to contract principles, must not be disturbed by courts, acting under the guise of public policy, wishing to decide the dispute on its merits, for arguably every controversy has at its core some issue requiring the application, or weighing, of policy considerations. Thus, there are now but a few matters of concern which have been recognized as so intertwined with overriding public policy considerations as to either place them beyond the bounds of the arbitration process itself or mandate the vacatur of awards which do violence to the principles upon which such matters rest. (See Matter of Port Jefferson Sta. Teachers Assn. v Brookhaven-Comsewogue Union Free School Dist., 45 NY2d 898, 899.)

Some examples would be instructive. It has been held that an arbitrator is without power to award punitive damages, a sanction reserved solely to the State (Garrity v Lyle Stuart, Inc., 40 NY2d 354, supra; Matter of Publishers’ Assn. of N. Y. City [Newspaper Union], 280 App Div 500), and that an agreement to arbitrate, when sought to be enforced by a lender, cannot divest the courts of their responsibility to determine whether a purported sales agreement is in fact a usurious loan, and thus illegal. (Compare Durst v Abrash, 22 AD2d 39, 44, affd 17 NY2d 445, with Rosenblum v Steiner, 43 NY2d 896, 898.) Matters involving the enforcement of our State’s antitrust laws, recognized as representing "public policy of the first magnitude”, cannot be left to commercial arbitration (Matter of Aimcee Wholesale Corp. [Tomar Prods.], 21 NY2d 621, 625), and claims concerning the liquidation of insolvent insurance companies have been held to be beyond the reach of an arbitrator’s discretion where a State statute bestows upon the Supreme Court exclusive jurisdiction over these proceedings. (Matter of Knickerbocker Agency [Holz], 4 NY2d 245.)

In public school matters, it has been held that agreements which purportedly reflect a bargain by a board of education not to inspect teacher personnel files cannot be enforced through arbitration insofar as such right is supported by statute and public policy. (Board of Educ. v Areman, 41 NY2d 527.) Nor can a board of education surrender its authority to discharge a nontenured teacher at the end of his probationary period to the arbitration process pursuant to a collective bargaining agreement, and an award the terms of which would bestow upon a probationary teacher tenure, as distinguished from procedural guarantees, will be struck down as violative of public policy. (Compare Matter of Cohoes City School Dist. v Cohoes Teachers Assn., 40 NY2d 774, with Matter of Candor Cent. School Dist. [Candor Teachers Assn.], 42 NY2d 266.)

These illustrations of instances where courts will intervene in the arbitration process are, without apparent exception, cases in which public policy considerations, embodied in statute or decisional law, prohibit, in an absolute sense, particular matters being decided or certain relief being granted by an arbitrator. Stated another way, the courts must be able to examine an arbitration agreement or an award on its face, without engaging in extended factfinding or legal analysis, and conclude that public policy precludes its enforcement. This is so because, as has been previously noted, an arbitrator is free to apply his own sense of law and equity to the facts as he has found them to be in resolving a controversy.

Applying these principles to this case, we now hold that disputes involving restrictive covenants of employment can be, by mutual consent of the parties, submitted to arbitration, and an arbitrator’s award which specifically enforces such covenants, even to the extent of enjoining an individual from engaging in like employment for a reasonable period of years in the future, will not be vacated on public policy grounds.

While it is true that considerations of public policy militate against the enforcement of restrictive covenants of future employment (see Columbia Ribbon & Carbon Mfg. Co. v A-1-A Corp., 42 NY2d 496, 499, supra), these covenants are not per se unenforceable as being null and void. (E.g., Gelder Med. Group v Webber, 41 NY2d 680, supra; see, generally, Purchas ing Assoc. v Weitz, 13 NY2d 267, 272-273, supra, and cases cited therein.) Each case turns upon its own distinct facts. If the restrictive covenant is found, under all the circumstances, to be "reasonable in time and area, necessary to protect the employer’s legitimate interests, not harmful to the general public and not unreasonably burdensome to the employee”, it will be subject to specific enforcement. (Reed, Roberts Assoc. v Strauman, 40 NY2d 303, 307, supra.)

Here, the parties, by reason of a broad arbitration clause contained in their signed agreement, submitted the issue of the enforceability of the restrictive covenant to arbitration, clearly a proper forum for the resolution of their dispute in this private matter. By so doing, the parties placed upon the arbitrator, not the courts, the responsibility of passing upon the merits of their controversy with the expectation that a just, yet practical, result would be reached. While there may be some doubt whether we would have enforced the restrictive covenant now before us had this dispute been adjudicated in the courts, such consideration is irrelevant to the disposition of this case, for courts will not second-guess the factual findings or the legal conclusions of the arbitrator. The utility of the arbitration process itself is derived from its autonomy, and courts must honor the choice of the parties to have their controversy decided within this framework. Insofar as public policy considerations do not absolutely preclude the enforcement of restrictive covenants of future employment for a reasonable period of time or related business concerns, we conclude that the arbitrator had the power to pass upon the issue of both the reasonableness and the necessity of the restrictions imposed upon the employee. Having thus concluded, and acknowledging the wide latitude afforded arbitrators in formulating just relief, the award rendered should not now be disturbed.

In passing, we reject respondent’s contention that the award must be vacated on the ground of the arbitrator’s alleged bias. (CPLR 7511, subd [b], par 1, cl [ii].) The arbitrator, known to respondent to have been designated by petitioner as an impartial arbitrator in various collective bargaining agreements between the union and certain employers, was expressly named in the April, 1973 agreement signed by the parties. The receipt of compensation from the union for his services is not sufficient to constitute bias. (See Matter of Siegel [Lewis], 40 NY2d 687, 689-690, supra.)

Accordingly, the order of the Appellate Division should be reversed, with costs, and the judgment of Supreme Court, New York County, confirming the arbitrator’s award reinstated.

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

Order reversed, etc.

      . Initially, it should be noted that respondent does not now contend, nor could he, that this dispute is not arbitrable pursuant to the express terras of the agreement.

      . This holding, of course, does not preclude the courts from vacating or modifying an arbitrator’s award upon those grounds set forth in CPLR 7511 (subds [b], [c]X


author: Jasen, J. Jones, J.

text:
    Gilberto Alvez, Respondent, v American Export Lines, Inc., Defendant and Third-Party Plaintiff-Appellant. Joseph Vinal Ship Maintenance, Inc., Third-Party Defendant-Respondent.
    Argued February 15, 1979;
    decided April 3, 1979

      POINTS OF COUNSEL

      Stephen K. Carr and Gary D. Stumpp for defendant and third-party plaintiff-appellant.
    I. Federal law governs maritime personal injury actions instituted in State court. (Garrett v Moore-McCormack Co., 317 US 239; Celeste v Prudential-Grace Lines, 35 NY2d 60; Matter of Rederi [Dow Chem. Co.], 25 NY2d 576, 398 US 939; Valitutto v D/S I/D Garonne, 295 F Supp 764.) II. Federal maritime law does not permit loss of consortium damages to the wife of an injured harbor worker. (Igneri v Cie. de Transports Oceaniques, 323 F2d 257, 376 US 949; Sanseverino v Alcoa S. S. Co., 276 F Supp 894; Pruitt v M.S. Rigoletto, 211 F Supp 295; Rogers v City of New York, 46 Mise 2d 373; Sea-Land Servs. v Gaudet, 414 US 573; Moragne v States Mar. Lines, 398 US 375; Simpson v Knutson, 444 F2d 523; Matter of United States Steel Corp., 436 F2d 1256, 402 US 987; Skidmore v Grueninger, 506 F2d 716.) III. It constituted a gross abuse of discretion for the court below to permit the amendment of the complaint so as to raise a noncognizable cause of action for loss of consortium. (Allied Bldg. & Airport Servs. v 101-103 Park Ave., 54 AD2d 852; Grafer v Marko Beer & Beverages, 36 AD2d 295, 29 NY2d 641; Valley Bank of N. Y. v Winston, 54 AD2d 759; Raymond v Ormsby, 54 AD2d 1021; Beck v Motler, 42 AD2d 1020; Norton v Norton, 12 AD2d 1003; Simone v Long Is. Jewish Hillside Med. Center, 81 Misc 2d 163; Coucounas v Coucounas, 33 Misc 2d 559; Levine Corp. v Gimbel Accessories, 41 AD2d 637.)

      Paul C. Matthews for respondent.
    I. The general maritime law of the United States governs in all maritime personal injury actions in both State and Federal courts. (Garrett v Moore-McCormack Co., 317 US 239.) II. Controlling Federal maritime law requires the granting of an award for loss of society and consortium. (Moragne v States Mar. Lines, 398 US 375; Sea-Land Servs. v Gaudet, 414 US 573; Igneri v Cie. de Transports Oceaniques, 323 F2d 257.) III. Moragne, Gaudet
      and Higginbotham granting the right to recover for loss of consortium in a death case a fortiori the same right must be present in a nonfatal case. (Valitutto v D/S I/D Garonne, 295 F Supp 764; Lemon v Bank Lines, 411 F Supp 677; Ruffino v Scindia Steam Nav. Co., 559 F2d 861; Albina Engine & Mach. Works v O’Leary, 328 F2d 877; Spinks v Chevron Oil Co., 507 F2d 216; Pan-Alaska Fisheries v Marine Constr. & Design Co., 565 F2d 1129; Watz v Zapata Off-Shore Co., 431 F2d 100; Matter of Kinsman Tr. Co., 338 F2d 708; Just v Chambers, 312 US 383; Schaeffer v Michigan-Ohio Nav. Co., 416 F2d 217.) IV. Igneri is not controlling Federal law today. (Hitaffer v Argonne Co., 183 F2d 811; Kronenbitter v Washburn Wire Co., 4 NY2d 524; Millington v Southeastern Elevator Co., 22 NY2d 498; Jordan v States Mar. Corp. of Del., 257 F2d 232; Westerberg v Tide Water Assoc. Oil Co., 304 NY 545; Christofferson v Halliburton Co., 534 F2d 1147; Hubschman v Antilles Air-boats, 440 F Supp 828; Matter of United States Steel Corp., 436 F2d 1256; Giglio v Farrell Lines, 424 F Supp 927.) V. The Christofferson case was incorrectly decided. (Canal Barge Co. v Griffith, 480 F2d 11.)

      William M. Kimball and Peter M. Pryor for third-party defendant-respondent.
    It is common ground that the sufficiency of the amended complaint by the ship lasher’s wife for lost consortium is governed by general maritime law. (Allied Bldg. & Airport Servs. v 101-103 Park Ave., 54 AD2d 852; Haman v Humble Oil & Refining Co., 46 AD2d 854; Black Diamond v Stewart & Sons, 336 US 386; Calmar S. S. Corp. v Scott, 345 US 427; Igneri v Cie. de Transports Oceaniques, 323 F2d 257, 376 US 949; Christofferson v Halliburton Co., 534 F2d 1147, 542 F2d 1174; Sea-Land Servs. v Gaudet, 414 US 573; Giglio v Farrell Lines, 424 F Supp 927; Hubschman v Antilles Airboats, 440 F Supp 828.)
   OPINION OF THE COURT

Jasen, J.

To be resolved on this appeal is the question whether the wife of an injured harbor worker may seek recovery for loss of consortium occasioned by her husband’s injury.

Respondent, while working as a ship’s lasher aboard appellant’s vessel, the "Export Builder”, was injured within the territorial waters of this State when struck by the handle of an allegedly defective tension jack, resulting in the enucleation of his right eye. After commencing this action, respondent moved to amend his complaint to add his spouse as a party plaintiff in an action for loss of consortium. Special Term denied respondent’s motion, reasoning that the general maritime law does not afford a remedy for loss of consortium. The Appellate Division unanimously reversed, granted respondent’s motion and certified the following question: "Was the order of this Court, which reversed the order of Supreme Court an abuse of discretion as a matter of law?” The order of the Appellate Division should be affirmed and the certified question answered in the negative.

In denying respondent’s motion, Special Term relied entirely upon Igneri v Cie. de Transports Oceaniques (323 F2d 257, cert den 376 US 949), in which the Second Circuit held that the spouse of a longshoreman injured while working aboard a vessel in Brooklyn harbor had no cause of action for loss of consortium whether caused by negligence of the owner or unseaworthiness of the vessel. (323 F2d, at pp 265-268, supra.) In reaching this conclusion, the court observed that maritime law will often draw upon the law of the land where clear precedent does not exist in the former. With respect to recovery for loss of consortium, the court posited that if an admiralty court found that "the common law recognized a wife’s claim for loss of consortium, uniformly or nearly so,” it would query why it should not similarly recognize such a claim. (Id., at p 260.)

Upon examining the state of the common law, the court found that although the great majority of States recognized the existence of a cause of action by a husband for loss of consortium, only 12 jurisdictions permitted a similar recovery by a wife. In light of the absence of a clear rule either permitting or prohibiting such recovery, the court turned to a consideration of which rule best comported with then existing principles of maritime law. Relying primarily upon the unavailability of such relief to the wife of an injured seaman under the Jones Act (US Code, tit 46, § 688), the court concluded that it would be anamolous to permit recovery for loss of consortium by the wife of a longshoreman, whether on a theory of negligence or unseaworthiness. (Id., at pp 265-268.)

In the years since the Second Circuit’s decision in Igneri, maritime law has not remained static but, like the common law, has undergone significant change. In 1963, the year of the Igneri decision, the Supreme Court’s decision in The Harrisburg (119 US 199, 213), still ruled the day, holding that maritime law did not afford a cause of action for wrongful death. However, in 1970, the Supreme Court overruled The Harrisburg and recognized the existence of an action for wrongful death under the general maritime law. (Moragne v States Mar. Lines, 398 US 375, 409.) In so holding, the court left for future consideration the precise scope of the remedy recognized. (Id., at pp 405-408.)

Further delineation of the breadth of the wrongful death cause of action afforded by general maritime law soon followed in Sea-Land Servs. v Gaudet (414 US 573), wherein the court held that a decedent’s dependents may recover for, among other elements of damage, loss of society, which the court defined as including a decedent’s "love, affection, care, attention, companionship, comfort, and protection.” (Id., at p 585 [footnote omitted].) The court was careful, however, to exclude from the concept of society recovery for mental anguish or grief. (Id., at n 17.)

In assessing the impact of these cases upon resolution of the issue before us, we proceed cautiously cognizant that it is the general maritime law that governs the rights and liabilities of the parties. (Romero v International Term. Operating Co., 358 US 354, 373; Garrett v Moore-McCormack Co., 317 US 239, 245; Celeste v Prudential-Grace Lines, 35 NY2d 60, 62-63; Matter of Rederi [Dow Chem. Co.], 25 NY2d 576, 581, cert den 398 US 939; ALI Study of the Division of Jurisdiction Between State and Federal Courts, § 1316[b], at p 239 [Off Draft, 1969].) Were this a case in which State law were applicable notwithstanding the existence of a Federal question (see, e.g., People v Payton, 45 NY2d 300, 312), we would be free to render a decision on such Federal question differing from pertinent Federal court decisions save a controlling determination of the Supreme Court. (People ex rel. Ray v Martin, 294 NY 61, 73, affd 326 US 496.) To be distinguished, however, are those unique areas, such as admiralty and maritime matters, which either by Constitution or Congressional legislation have been deemed to require a uniform body of national law. (See, generally, Hart, Relations Between State and Federal Law, 54 Col L Rev 489.) In such areas not only does there exist a Federal question, but more importantly, an answer obtainable solely by recourse to Federal law. (Cf. Teamsters Local v Lucas Flour Co., 369 US 95, 102.) Thus, notwithstanding the absence of a controlling Supreme Court decision, were there a uniform Federal rule, albeit one established by lower Federal courts, we would be bound in a case such as the one at hand to apply it.

It is, therefore, with great deference that we proceed to an analysis of the question before us. Critical to its resolution is the effect which Moragne and Gaudet have had upon general maritime law and in particular upon the continued validity of Igneri. Judicial interpretation of these developments has not been uniform, leaving uncertain whether there presently exists a cause of action for loss of consortium in a personal injury action under the general maritime law. (Compare Giglio v Farrell Lines, 424 F Supp 927, mot for lv to app den No. 77-8014 [2d Cir, Feb. 17, 1977], and Lemon v Bank Lines, 411 F Supp 677, dsmd upon reconsideration in light of Christofferson v Halliburton Co., 534 F2d 1147, affd without opn 562 F2d 1259, and Pesce v Summa Corp., 54 Cal App 3d 86 [upholding cause of action for loss of consortium], with Christofferson v Halliburton Co., 534 F2d 1147, supra, and Wetters v Moore-McCormack Lines, 1977 AMC 1529, and Davidson v Reederei, 295 So 2d 700 [Fla] [rejecting cause of action for loss of consortium].)

In our opinion, examination of the ratio decedendi of the Igneri decision reveals an erosion of its theoretical underpinnings so severe as to precipitate its collapse under its own weight. To begin with, unlike the state of the law of the land as to recovery for loss of consortium then prevailing, the great majority of States, including New York, now recognize such a cause of action by either husband or wife in a personal injury action. In dispelling any argument that a wife does not have as great a right to her husband’s consortium as he to hers, we stated: " 'The gist of the matter is that in today’s society the wife’s position is analogous to that of a partner, neither kitchen slattern nor upstairs maid. Her duties and responsibilities in respect of the family unit complement those of the husband, extending only to another sphere. In the good times she lights the hearth with her own inimitable glow. But when tragedy strikes it is a part of her unique glory that, forsaking the shelter, the comfort, the warmth of the home, she puts her arm and shoulder to the plow. We are not at the heart of the issue. In such circumstances, when her husband’s love is denied her, his strength sapped, and his protection destroyed, in short, when she has been forced by the defendant to exchange a heart for a husk, we are urged to rule that she has suffered no loss compensable at the law. But let some scoundrel dent a dishpan in the family kitchen and the law, in all its majesty, will convene the court, will march with measured tread to the halls of justice, and will there suffer a jury of her peers to assess the damages. Why are we asked, then, in the case before us, to look the other way? Is this what is meant when it is said that justice is blind?’ ” (Millington v Southeastern Elevator Co., 22 NY2d 498, 503-504, quoting Montgomery v Stephan, 359 Mich 33, 48-49.)

In addition to the absence of a rule at common law recognizing "a wife’s claim for loss of consortium, uniformly or nearly so,” (Igneri v Cie. de Transports Oceaniques, 323 F2d, at p 260, supra), the Second Circuit hinged its decision upon the anomaly it perceived in permitting a longshoreman’s wife to recover for loss of consortium when the wife of an injured seaman would not be afforded a similar right under the Jones Act (US Code, tit 46, § 688). (323 F2d, at pp 266-268.) That such anomalies do exist in the remedies afforded injured maritime workers is, however, a currently accepted fact of

life. For example, although the wife of a deceased longshoreman may recover for loss of consortium in a wrongful death action under the general maritime law (Sea-Land Servs. v Gaudet, 414 US 573, supra), recovery for wrongful death under the Death on the High Seas Act (US Code, tit 46, §§ 761, 762) is limited to pecuniary loss and does not afford a remedy for loss of a wife’s consortium. (Mobil Oil Corp. v Higginbotham, 436 US 618.)

The Second Circuit’s concern, in Igneri, with the absence of a clear common-law rule as to recovery for loss of consortium and with the avoidance of anomalous remedies in maritime law is clearly manifested in its observation: "If there were evidence that maritime law generally recognized a claim for negligent injury to such an intangible right, or if the common law clearly authorized a wife’s recovery, the gravitational pull of such concepts with respect to the wife of a longshoreman might be stronger than that of the analogy to the statute denying such recovery to a seaman’s wife. But, with neither of these conditions realized, our duty to avoid capricious differences in treatment between similarly situated persons forbids our fashioning a rule that would place the spouse of a harbor-worker in a different, and better, position than the spouse of a seaman.” (323 F2d, at p 267, supra.) We believe that the clear recognition by the law of the land of the right of a wife to recover for loss of consortium in a personal injury action, together with the recognition of such right in wrongful death actions under the general maritime law, exert, in the words of the Second Circuit, a "gravitational pull” of sufficient intensity to require recognition of respondent’s claim. (See 2 Benedict, Admiralty [7th rev ed], § 12, pp 1-66 — 1-74; Comment, Loss of Consortium in Admiralty: A Yet Unsettled Question, 1977 BYU L Rev 133.)

In reaching this conclusion, we are cognizant that the Fifth Circuit has interpreted Gaudet (supra) as limited to authorizing recovery for loss of consortium under the general maritime law to wrongful death actions. (Christofferson v Halliburton Co., 534 F2d 1147, supra.) Critical to the court’s determination were two factors: first, its belief that recognition of a wife’s claim for loss of consortium by 37 States is not indicative of a uniformity in the common law; and, second, its interpretation of Gaudet as holding that a cause of action for loss of consortium cannot accrue until the decedent’s death. (Id., at pp 1150-1151.)

With all due respect, we cannot agree with the Christofferson court’s reasoning. Concerning the state of the common law, it is difficult to conclude that a clear rule authorizing a wife’s recovery for loss of consortium in a personal injury action does not exist. In Gaudet, the Supreme Court surveyed State wrongful death statutes concluding that "[a] clear majority of States” permit recovery for loss of society. (414 US, at p 587, supra.) It supported this proposition by the finding that 27 of the 44 State and territorial wrongful death statutes that measure damages by the loss sustained by beneficiaries permit recovery for loss of society. (Id., at n 21.) In our view, it would be overly artificial to view the present state of the common law as to recovery for loss of consortium in a personal injury action as anything but nearly uniform. Moreover, we would also question the relevancy of the Christofferson court’s statement: "Much of the change in the law has come about through statutory modification of the law, rather than change in the common law.” (534 F2d, at p 1150, supra.) In our opinion, it matters little whether a State’s recognition of the cause of action at issue is rooted in statute or decisional law.

As to the Supreme Court’s reference to the accrual of a cause of action for loss of consortium, the factual setting in Gaudet is critical. There, the injured seaman had already recovered for his personal injuries prior to his death. Thereafter, his widow commenced a wrongful death action seeking as an element of damage recovery for loss of society. The trial court dismissed the action on the ground of res judicata. In affirming the reversal of this order by the Circuit Court of Appeals (463 F2d 1331), the Supreme Court stated: "Obviously, the decedent’s recovery did not include damages for the dependents’ loss of services or of society, and funeral expenses. Indeed, these losses — unique to the decedent’s dependents— could not accrue until the decedent’s death.” (414 US, at pp 591-592, supra.) It is this language which the Fifth Circuit in Christofferson interpreted as implicitly limiting the right to recover for loss of consortium to wrongful death actions on the ground that a cause of action for loss of consortium does not accrue absent death. We would not read this language so broadly as it would appear to have been intended merely to identify the widow’s wrongful death action as an action separate and apart from the decedent’s personal injury action, precluding application of res judicata principles.

In holding as we do today, we are sensitive to the limited role of the State court in maritime matters, bound as it is to apply Federal maritime law. In applying this body of law, we are equally sensitive to the well-settled principle that "certainly it better becomes the humane and liberal character of proceedings in admiralty to give than to withhold the remedy, when not required to withhold it by established and inflexible rules.” (Moragne v States Mar. Lines, 398 US 375, 387, supra, quoting The Sea Gull, 21 F Cas 909, 910.) Examination of current maritime law réveals, in our opinion, an absence of any established and inflexible rule barring recognition of the claim before us.

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

Jones, J.

(dissenting). I am obliged to dissent in observance of what I perceive to be proper jurisprudential restraint. All agree that in this maritime action instituted in State court Federal maritime law governs. Our sole responsibility then is to determine the applicable Federal law. If the present state of such law is reasonably clear, we are not free to speculate what it may some day come to be.

In Igneri v Cie. de Transports Oceaniques (323 F2d 257, cert den 376 US 949) the Circuit Court of Appeals for the Second Circuit, within the territorial boundaries of which circuit our court sits, decided explicitly in 1963 that loss of consortium was not recognized under Federal maritime law. That determination is recognized as binding on the Federal District Courts within the Second Circuit (Tornatore v Koninklijke Nederlandsche Stoomboot Maatschappij, N. V. "Sinon”, USDCEDNY, Docket No. 75 C 69 [Dec. 6, 1976]; cf. Giglio v Farrell Lines, 424 F Supp 927, mot for lv to app den 2d Cir., Docket No. 77-8014 [Feb. 17, 1977]). It is urged, however, that the decision of the Supreme Court of the United States in Sea-Land Servs. v Gaudet (414 US 573) in 1974 impliedly if not expressly overruled Igneri. Plaintiff constructs an appealing argument to support that conclusion. Were the Federal slate clean and were we therefore free to resolve the issue, it might well be that this argument, buttressed by the expanding recognition of loss of consortium at the common law, should be accepted. Again, however, it is our discipline to follow the controlling decisions of the Federal courts. In Christofferson v Halliburton Co. (534 F2d 1147) the Circuit Court of Appeals for the Fifth Circuit not only adhered to the holding in Igneri but expressly concluded that Igneri was not overruled by Gaudet. In sum, whatever may be the differences of opinion among the Federal District Courts or the views expressed by other State courts, the only two Circuit Courts of Appeals which have addressed the issue have denied recovery for loss of consortium — one in our own circuit and the other, in the Fifth Circuit, which considered and rejected arguments that Gaudet had changed the law.

Not only, in my analysis, is the present state of the applicable Federal law clear, but even if it be recognized that Federal maritime law, as is true of most fields of the law, is and should be subject to the dynamics of appropriate growth and refinement, in my opinion the responsibility for such development properly rests with the Federal courts. Whatever may be our privilege, indeed our obligation, as a common-law court to share responsibility for the evolution and responsiveness of the common law, it is not fitting that we should venture decisional contributions to the developmental processes of maritime law which is characterized by peculiarities, even idiosyncrasies. We are neither qualified by judicial experience nor, inasmuch as any decision we hand down will have no precedential significance in the Federal courts, can we be held jurisprudentially responsible for the determination which we decide to make.

Accordingly, under constraint of the present state of Federal law, I would reverse the order of the Appellate Division and deny the motion to amend the complaint.

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

Order affirmed, etc.

      . Appellant American Export Lines, Inc., impleaded respondent’s employer, Joseph Vinal Ship Maintenance, Inc., as a third-party defendant.

      . With this definition in mind, the terms consortium and society will be used interchangeably.

      . Giglio was subsequently dismissed in its entirety. (No. 75 Civ 6359, SONY, Jan. 5, 1979, app pending No. 79-7078 [2d Cir].)

      . The following States recognize a wife’s cause of action for loss of consortium in a personal injury action either by statute or decisional law: (Swartz v United States Steel Corp., 293 Ala 439; Schreiner v Fruit & Equit. Life Assur. Soc., 519 P2d 462 [Ala]; City of Glendale v Bradshaw, 108 Ariz 582; Missouri Pacific Transp. Co. v Miller, 227 Ark 351; Rodriguez v Bethlehem Steel Corp., 12 Cal 3d 382; Col Rev Stat, § 14-2-209; Yoner v Adams, 53 Del 229; Gates v Foley, 247 So 2d 40 [Fla]; Brown v Georgia-Tennessee Coaches, 88 Ga App 519; Nichols v Sonneman, 91 Idaho 199; Dini v Naiditch, 20 111 2d 406; Troue v Marker, 253 Ind 284; Acuff v Schmit, 248 Iowa 272; Kan Stat Ann, § 23-205; Kotsiris v Ling, 451 SW2d 411 [Ky]; Me Rev Stat, tit 19, § 167-A; Deems v Western Md. Ry. Co., 247 Md 95; Diaz v Lilly & Co., 364 Mass 153; Montgomery v Stephan, 359 Mich 33; Thill v Modern Erecting Co., 284 Minn 508; Miss Code Ann, § 93-3-1; Novak v Kansas City Tr., 365 SW2d 539 [Mo]; Duffy v Lipsman-Fulkerson & Co., 200 F Supp 71; Cooney v Moomaw, 109 F Supp 448; NH Rev Stat Ann, § 507:8-a; General Elec. Co. v Bush, 88 Nev 360; Ekalo v Constructive Serv. Corp., 46 NJ 82; Millington v Southeastern Elevator Co., 22 NY2d 498; Clouston v Remlinger Oldsmobile Cadillac, 22 Ohio St 2d 65; Okla Stat Ann, tit 32, § 15; Ore Rev Stat, § 108.010; Hopkins v Blanco, 457 Pa 90; Hoekstra v Helgeland, 78 SD 82; Tenn Code Ann, § 25-109; W Va Code, § 48-3-19a; Moran v Quality Aluminum Casting Co., 34 Wis 2d 542.)

       In Giglio, a panel of the Court of Appeals for the Second Circuit declined an express invitation to overrule Igneri. That the court thereby left standing the District Court’s view that the time may have come for such overruling is not to be construed as approval or rejection of that view (cf. the denial of petitions for writs of certiorari by the United States Supreme Court). It is noted that the Giglio case has subsequently been dismissed in its entirety (USDCSDNY, Docket No. 75 Civ 6359 [Jan. 5, 1979]) and an appeal is now pending from that disposition (2d Cir, Docket No. 79-7078).


author: Wachtler, J.

text:
    The People of the State of New York, Appellant, v Vernon Branch and Vraden Branch, Respondents.
    Argued March 28, 1979;
    decided April 24, 1979

      POINTS OF COUNSEL

      Charles J. Wilcox, District Attorney (Robert A. Becher and Robert L. Adams of counsel), for appellant.
    The court below erred in displacing the trial court’s determination that a prospective juror, employed on a part-time basis as a small town constable, bore no relationship to the prosecutor likely to preclude him from rendering an impartial verdict. (People v Culhane, 33 NY2d 90; People v Branch, 59 AD2d 459; People v Biondo, 41 NY2d 483; People v Oddy, 16 AD2d 585.)

      E. Stewart Jones, Jr., and Donald J. Shanley for respondents.
    I. The court below properly ruled that the policeman, James Scott, should not have been seated as a juror. (People v Mendola, 2 NY2d 270; People v Culhane, 33 NY2d 90; Turner v Louisiana, 379 US 466; People v Martin, 19 AD2d 804; People v Luedecke, 22 AD2d 636; Rideau v Louisiana, 373 US 723; Estes v Texas, 381 US 532; Sims v United States, 405 F2d 1381.) II. The trial court’s exclusion of critical defense proof in the form of testimony from defense witnesses bearing on the purpose and understood intent of the visit to Geronimo’s and the nature of the so-called "conspiracy” denied the Branch twins their constitutional right to a full and fair defense and irreparably prejudiced their fair trial rights. (Jenkins v McKeithen, 395 US 411; People v Gilliam, 45 AD2d 744, 37 NY2d 722; Webb v Texas, 409 US 95; Chambers v Mississippi, 410 US 284; Davis v Alaska, 415 US 308; People v Baker, 54 AD2d 876; People v Crandall, 48 AD2d 946.) III. The prosecutor’s use on cross-examination of Vraden Branch of questions charging a collateral, unproven, uncharged act of robbery with a weapon was grossly improper and, under the circumstances, an unethical breach of faith and, independently, deprived the Branch twins of their fundamental right to a fair trial. (People v Caviness, 38 NY2d 227; People v Sandoval, 34 NY2d 371; People v Rencher, 49 AD2d 609; People v Reingold, 44 AD2d 191; People v Reyes, 48 AD2d 632; People v Branch, 34 AD2d 541, 27 NY2d 834; People v Santiago, 47 AD2d 476; People v Nash, 49 AD2d 827; United States v Puco, 453 F2d 539; United States v Harding, 525 F2d 84; People v Mullin, 41 NY2d 475; People v Wright, 41 NY2d 172.) IV. The volunteered unresponsive statement by the prosecution witness, Janie Mae Roberts, that she had been released from jail after taking a lie detector test irreversibly and impermissibly bolstered her own credibility, insinuated incurably prejudicial error into the trial and irretrievably deprived the Branch twins of a fair trial. (People v Leone, 25 NY2d 511; People v Neumuller, 29 AD2d 886; People v Forte, 279 NY 204; Bowen v Eyman, 324 F Supp 339.) V. The unwarranted admission of evidence as to crimes not charged in the indictment so prejudiced the Branch twins as to deprive them of their right to a fair trial. (People v Molineux, 168 NY 264; People v McKinney, 24 NY2d 180; People v Kampshoff, 53 AD2d 325; People v Laguna, 34 AD2d 581; People v Lewis, 52 AD2d 929; People v Massey, 7 AD2d 850, 6 NY2d 893; People v Outler, 31 AD2d 639; People v Fiore, 34 NY2d 81.) VI. The trial court’s failure to exclude certain physical evidence whose prejudicial impact far outweighed its probative value, compromised defendants’ right to a fair trial. (People v Laguna, 34 AD2d 581; People v Massey, 7 AD2d 850, 6 NY2d 893; People v Lewis, 52 AD2d 929; People v Fiore, 34 NY2d 81; People v Condon, 26 NY2d 139; People v Mullin, 41 NY2d 475; People v Wright, 41 NY2d 172; People v Ashwal, 39 NY2d 105; People v Adams, 21 NY2d 397.) VII. The court’s failure to exclude certain testimonial evidence improperly impaired the fair trial rights of the Branch twins. Krulewitch v United States, 336 US 440; People v Carborano, 301 NY 38; People v Mullin, 41 NY2d 475; People v Wright, 41 NY2d 172; People v Ashwal, 39 NY2d 105; People v Fiore, 34 NY2d 81; People v Adams, 21 NY2d 397; People v Condon, 26 NY2d 139; People v Massey, 7 AD2d 850, 6 NY2d 893; People v Liller, 20 NY2d 727.) VIII. The court’s failure to dismiss count one of the indictment prior to the commencement of the trial, a failure sponsored, implemented and contributed to by prosecutorial misrepresentation and misconduct prejudicially contaminated the case and compromised the fair trial rights of the Branch twins. IX. The prosecutor committed further error when he deliberately placed before the jury a highly inflammatory exhibit knowing full well that it was inadmissible. (People v Winston, 52 AD2d 432; People v Freytes, 48 AD2d 807; Giles v Maryland, 386 US 66; People v Kitchen, 55 AD2d 575; People v Caruso, 246 NY 437; People v Rial, 25 AD2d 28; People v Tassiello, 300 NY 425.) X. The trial court improperly refused to suppress the oral statements made by the Branch twins. (People v Huntley, 15 NY2d 72; People v Leonti, 18 NY2d 384; People v Valerius, 31 NY2d 51; People v Thasa, 32 NY2d 712; People v Watts, 35 AD2d 802, 29 NY2d 571; Matter of Kevin R., 42 AD2d 541; People v Edney, 47 AD2d 906; People v Townsend, 33 NY2d 37; United States ex rel. Stephen J. B. v Skelly, 430 F2d 215.) XI. The trial court improperly and prejudicially allowed the prosecution at trial, through its police testimony, to enlarge and expand upon the content and scope of the alleged oral statements which had been described and delimited at the Huntley hearing. (People v Greer, 49 AD2d 297; People v Utley, 77 Misc 2d 86; People v Remaley, 26 NY2d 427; People v Quarles, 44 Misc 2d 955; People v Chirico, 61 Misc 2d 157.) XII. The court’s charge on intent impermissibly diluted the prosecution’s burden of proof, had the effect of shifting that burden of proof and mislead the jury with respect to the requirements that the prosecution prove every element of the offense beyond a reasonable doubt. (Mullaney v Wilbur, 421 US 684; United States v Chiantese, 546 F2d 135; United States v Barash, 365 F2d 395; United States v Bertolotti, 529 F2d 149; People v Jackson, 10 NY2d 510; People v Felcone, 43 AD2d 976; People v Rainey, 34 AD2d 557; People v Benjamin, 47 AD2d 861; People v May, 55 AD2d 739.) XIII. The trial court improperly permitted the prosecution witness Crawford to testify to and about statements made by "unidentified” persons in the course of the events at Geronimo’s restaurant was improper, highly prejudicial and directly violated the accuseds’ Sixth Amendment rights to confront and cross-examine the witnesses against them. (People v Weiss, 290 NY 160;
      Matter of Sabatini v Kirwan, 42 AD2d 1022; United States v Nixon, 418 US 683; United States v Stroupe, 538 F2d 1063; United States v Oliva, 497 F2d 130.)
   OPINION OF THE COURT

Wachtler, J.

After a joint jury trial defendants Vernon and Vraden Branch were convicted of murder in the second degree (Penal Law, § 125.25, subd 3) and robbery in the first degree (Penal Law, § 160.15). On appeal to the Appellate Division both defendants argued, among other things, that the trial court erred, as a matter of law, in denying their challenge for cause to excuse a venireman from the jury. The Appellate Division held that the denial of the challenge for cause constituted reversible error under CPL 270.20 (subd 1, par [c]), reversed the judgments of conviction and remanded for a new trial. This case presents a novel question of statutory interpretation.

During the course of the jury selection process after the defendants had exhausted their peremptory challenges, James Scott was called to the jury box. Extensive questioning of Scott revealed that he had been serving as a part-time police officer in Poestenkill, a town in Rensselaer County, for three years. In his capacity as a police officer Scott had worked in conjunction with the Rensselaer County District Attorney’s office, and in some cases particularly closely with the State’s trial attorney in the present case. It was further disclosed that the two had developed a personal relationship, on occasion having socialized together.

After eliciting this testimony from Scott, the court asked him a series of questions designed to determine if he could serve as an impartial juror. In response Scott stated that neither his work as a police officer nor his relationship with the prosecutor would influence his verdict, and that he could render an impartial verdict according to the evidence. Based on these assurances, the court denied defendants’ challenge for cause, and seated Scott as a juror.

The issue is whether the court erred, as a matter of law, in allowing Scott to participate as a juror. We hold that Scott’s professional and personal relationship with the People’s trial attorney rendered him unsuitable for jury service in this case within the meaning of CPL 270.20 (subd 1, par [c]). We further hold the expurgatory oath unavailable where this statutory provision disqualifies a juror.

To determine the meaning of CPL 270.20 (subd 1, par [c]), it is instructive to review the relevant law prior to its enactment. Before the adoption of the Criminal Procedure Law, the rules governing challenges for cause were prescribed by section 376 of the Code of Criminal Procedure which provided for the automatic disqualification of prospective jurors for "implied bias”. Among the eight enumerated categories of implied bias were having a relationship of consanguinity or affinity within the ninth degree to the defendant, victim, or complainant (Code Crim Pro, § 377, subd 1), being an adverse party to the defendant in a civil action (Code Crim Pro, § 377, subd 3), and being a complainant against or having been accused by the defendant in another criminal case (Code Crim Pro, § 377, subd 3). An expurgatory oath was not available where implied bias was shown.

A juror could also be challenged for cause under the old law for "actual bias”, defined as "the existence of a state of mind on the part of the juror” as to the guilt or innocence of the defendant. Such a state of mind would not disqualify the juror if he declared on oath to the satisfaction of the court that his opinions would not influence his verdict, and that he could render an impartial verdict according to the evidence. (Code Crim Pro, § 377, subd 2; People v Biondo, 41 NY2d 483; People v Wilmarth, 156 NY 566, 569.)

The new statute, which is controlling here, is similar in many respects to the old one. Although the term "implied bias” has been abandoned, the concept underlying the term has survived. Thus a challenge for cause may be made on the ground that the juror "is related within the sixth degree of consanguinity or affinity to the defendant, or to the person allegedly injured by the crime charged, or to a prospective witness at the trial, or to counsel for the people or for the defendant; or that he is or was a party adverse to any such person in a civil action; or that he has complained against or been accused by any such person in a criminal action” (CPL 270.20, subd 1, par [c]). The new law, however, has included one additional ground for disqualifying a prospective juror. A venireman may not serve if "he bears some other relationship to any such person [e.g., the defendant or either counsel] of such nature that it is likely to preclude him from rendering an impartial verdict” (CPL 270.20, subd 1, par [c]).

First it must be noted that Scott’s professional and personal relationship to the prosecutor in this case places him squarely within the above provision. As a part-time police officer in Poestenkill during the past three years he had had direct contact with the Rensselaer County District Attorney’s office, and had worked directly with the prosecutor. In addition his professional contact with him grew into a personal relationship so that on occasion they had socialized together. These facts establish, as a matter of law, that the nature of this relationship was "likely to preclude [Scott] from rendering an impartial verdict” (CPL 270.20, subd 1, par [c]).

The People argue nevertheless that in view of Scott’s expurgatory declarations the court was within its discretion in allowing him to serve as a juror. We disagree.

As stated, under the old law an expurgatory oath was not available where "implied bias” was shown. The reason for this rule was that the risk of prejudice arising out of the close relationship between the prospective juror and one of the key participants in the trial was so great that recital of an oath of impartiality could not convincingly dispel the taint. In enacting CPL 270.20 (subd 1, par [c]) the Legislature broadened the list of suspect relationships to exclude from jury service those persons who bear "some other relationship * * * likely to preclude [them] from rendering an impartial verdict”. To be sure such individuals are equally unfit to sit as jurors as are those who fall within the other prohibited categories. The expurgatory oath was never applied where any of the other suspect relationships were involved, and there is no indication whatsoever that the Legislature intended to diverge from this principle here (see People v Culhane, 33 NY2d 90, 104, n 2).

By contrast, CPL 270.20 (subd 1, par [b]) allows a challenge for cause where a prospective juror "has a state of mind that is likely to preclude him from rendering an impartial verdict based upon the evidence adduced at trial”. This provision is analogous to subdivision 1 of section 376 of the Code of Criminal Procedure which similarly allowed a challenge for cause for a prejudicial "state of mind on the part of the juror” as to the guilt or innocence of the defendant. It is here, rather than in the case of a suspect relationship, that the expurgatory oath is available (People v Biondo, 41 NY2d 483, supra; People v Genovese, 10 NY2d 478).

We would add that the trial court should lean toward disqualifying a prospective juror of dubious impartiality, rather than testing the bounds of discretion by permitting such a juror to serve. It is precisely for this reason that so many veniremen are made available for jury service. Nothing is more basic to the criminal process than the right of an accused to a trial by an impartial jury. The presumption of innocence, the prosecutor’s heavy burden of proving guilt beyond a reasonable doubt, and the other protections afforded the accused at trial, are of little value unless those who are called to decide the defendant’s guilt or innocence are free of bias.

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

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

Orders affirmed.


author: Per Curiam.

text:
    Board of Education, Union Free School District No. 3, Town of Brookhaven, Appellant, v Valden Associates, Inc., et al., Respondents, et al., Defendants. Board of Education, Union Free School District No. 3, Town of Brookhaven, Appellant, v Aldoro Electric Corp., Respondent, et al., Defendants.
    Argued February 5, 1979;
    decided March 22, 1979

      POINTS OF COUNSEL

      Milton B. Pfeifer for appellant.
    I. Section 5-323 of the General Obligations Law is applicable to construction contracts. II. The legislative history of section 5-323 of the General Obligations Law shows a strong legislative concern with safety. III. Defendants’ contention that plaintiff waived its right to proceed against defendants is invalid, in light of section 5-323 of the General Obligations Law, which renders void and unenforceable any agreement whereby a contractor attempts to exculpate himself from liability to others arising from his negligence in the construction of real property. (Cullen v Naples, 31 NY2d 818.) IV. Even if section 5-323 of the General Obligations Law did not exist, the exculpatory clause would be void because it does not explicitly include negligent conduct. (Ciofalo v Vic Tanney Gyms, 10 NY2d 294; Van Dyke Prods. v Eastman Kodak Co., 12 NY2d 301.)

      John F. Mulholland for Valden Associates, Inc., respondent.
    I. Contractual waiver clauses entered into by parties of equal bargaining strength dealing with one another at arm’s length must be given effect according to its terms. (Cenven, Inc. v Bethlehem Steel Corp., 51 AD2d 955, 41 NY2d 842; Hogeland v Sibley, Lindsay & Curr Co., 51 AD2d 866, 42 NY2d 153; Ciofalo v Vic Tanney Gyms, 10 NY2d 294; Rinaldi & Sons v Wells Fargo Alarm Serv., 39 NY2d 191; Levine v Shell Oil Co., 28 NY2d 205; Phibbs v Ray’s Chevrolet Corp., 45 AD2d 897; St. Vincent’s Med. Center of Richmond v Vincent E. lorio, Inc., 78 Misc 2d 968; Russell v New York Tel. Co., 57 Misc 2d 227; Bayview Gen. Hosp. v Associated Hosp. Serv. of N. Y., 45 Misc 2d 218.) II. Section 5-323 of the General Obligations Law does not bar the waiver provision contained in the contract between the parties. (Kirshembaum v General Outdoor Adv. Co., 258 NY 489.)

      Francis P. McGowan for Aldoro Electric Corp., respondent.
    I. Section 5-323 of the General Obligations Law is not applicable to construction contracts entered into by parties of equal bargaining power at arm’s length where the public interest is not affected. (St. Vincent’s Med. Center of Richmond v Vincent E. Iorio, Inc., 78 Misc 2d 968; Rogers v Dorchester Assoc., 32 NY2d 553; Rankin v Shanker, 23 NY2d 111; People ex rel. Carollo v Brophy, 263 App Div 238, 294 NY 540; Broderick v Weinsier, 253 App Div 213, 278 NY 419; Matter of Cherkis v Impellitteri, 307 NY 132; Matter of New York Post Corp. v Leibowitz, 2 NY2d 677.) II. The subject waiver clause was entered into by the parties at arm’s length, did not contract away liability and did not violate public policy. (Ciofalo v Vic Tanney Gyms, 10 NY2d 294; B.V.D. Co. v Marine Midland Bank — N. Y., 46 AD2d 51; Levine v Shell Oil Co., 28 NY2d 205; Brentano’s, Inc. v Charter Mgt. Corp., 46 AD2d 861; 614 Third Ave. Corp. v Grand Iron Works, 44 AD2d 531.)
   OPINION OF THE COURT

Per Curiam.

This appeal concerns the validity of certain provisions contained in a construction contract which required the owner to provide "fire, extended coverage, vandalism and malicious mischief insurance upon the entire structure on which the work of the Contract is to be done and upon the materials, in or adjacent thereto and intended for use thereon, to One Hundred Percent of the insurable value thereof.” It also provided that "[t]he Owner, Contractor, and all subcontractors waive all rights, each against the others, for damages caused by fire or other perils covered by insurance provided for under the terms of the Contract Documents, except such rights as they may have to the proceeds of insurance.” The owner did make provision for the required insurance, and during the course of the project a fire broke out, allegedly due to the negligence of the contractor or the subcontractors, causing damage to the building. The insurer paid the owner its damages pursuant to the policy, and then this action was commenced against the contractor and subcontractors, in which the owner is the named plaintiff but the actual plaintiff in interest is the insurer as a subrogee.

Defendants argue that the contractual provisions quoted above constitute a defense to this action. Plaintiff contends, however, that so viewed, those contractual provisions are unenforceable pursuant to section 5-323 of the General Obligations Law, which provides as follows: "Every covenant, agreement or understanding in or in connection with or collateral to any contract or agreement affecting real property made or entered into, whereby or whereunder a contractor exempts himself from liability for injuries to person or property caused by or resulting from the negligence of such contractor, his agent, servants or employees, as a result of work performed or services rendered in connection with the construction, maintenance and repair of real property or its appurtenances, shall be deemed to be void as against public policy and wholly unenforceable.” In response, defendants contend first that this section is applicable only to building maintenance contracts, and alternatively, that even if it is applicable to contracts such as this, the General Obligations Law section does not speak to the provisions involved in this dispute. As to defendant’s first argument, although it may not be without some support in the legislative history of the section, such arguments are inappropriate in the face of the clear, explicit, and unambiguous language of the statute, speaking as it does of "any contract or agreement affecting real property”. However, we agree that the section does not prohibit contractual provisions of the type involved in this litigation.

Insofar as damages for injuries are in fact compensable under an insurance policy mandated by contract, a provision waiving all rights to recover for those same injuries other than from the proceeds of the insurance policy does not constitute a violation of the statute. A distinction must be drawn between contractual provisions which seek to exempt a party from liability to persons who have been injured or whose property has been damaged and contractual provisions, such as those involved in this suit, which in effect simply require one of the parties to the contract to provide insurance for all of the parties. Absent any indication of overreaching or unconscionability, such provisions violate neither section 5-323 of the General Obligations Law nor any other public policy (see Hogeland v Sibley, Lindsay & Curr Co., 42 NY2d 153).

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

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

Order affirmed.