author: Titone, J.

text:
    [635 NE2d 1213, 613 NYS2d 343]
    The People of the State of New York, Respondent, v Souvath Sayavong, Appellant.
    Argued March 16, 1994;
    decided May 10, 1994

      POINTS OF COUNSEL

      Donald M. Thompson, Rochester, for appellant.
    The unauthorized presence of a police officer/witness during videotaping and replaying of the Grand Jury testimony of three child witnesses violated CPL 190.25 and 190.32, impairing the integrity of the Grand Jury proceeding and creating the possibility of prejudice. (People v Minet, 296 NY 315; People v Wilson, 77 AD2d 713; People v De Ruggiero, 96 Misc 2d 458; People v Conte, 17 Misc 2d 664; People v Santana, 80 NY2d 92; People v Cooke, 292 NY 185; Levine v Levine, 83 AD2d 606, 56 NY2d 42; Williamson v United States, 310 F2d 192; People v Corrigan, 80 NY2d 326; People v Wilkins, 68 NY2d 269.)

      Donald A. Schneider, District Attorney of Yates County, Penn Yan, for respondent.
    I. The Court below erred in determining that the video camera operator was not employed by the District Attorney. II. The Court of Appeals is not empowered to review the trial court’s and Court below’s factual findings as to the possibility of prejudice. (People v Verkey, 185 AD2d 622; People v Di Falco, 44 NY2d 482; People v McRay, 51 NY2d 594; People v Harrison, 57 NY2d 470; People v Brooks, 65 NY2d 1021.) III. Appellant has failed to make a showing that Investigator Mitchell’s service as video camera operator created a possibility of prejudice and impaired the integrity of the Grand Jury proceedings. (People v Di Falco, 44 NY2d 482; People v Verkey, 185 AD2d 622; People v Wilson, 77 AD2d 713; People v Dubay, 95 AD2d 900; People v Hyde, 85 AD2d 745.)
   OPINION OF THE COURT

Titone, J.

The Criminal Procedure Law safeguards the secrecy of Grand Jury proceedings by carefully circumscribing the categories of persons who may be present during that function. The question we are called upon to decide here is whether a police investigator who will serve as a fact witness at Grand Jury proceedings concerning the sexual abuse of several children may be present during the children’s testimony as a video camera operator under the authority of CPL 190.25 (3). We conclude that the officer’s status as a witness disqualified him from employment as a video operator within the meaning of the statute, and that, accordingly, the indictment should be dismissed.

I

Defendant was charged with four counts of sexual abuse and four counts of endangering the welfare of a child. In lieu of giving live Grand Jury testimony, three child witnesses under the age of 12 gave videotaped testimony pursuant to CPL 190.32 to be used at the later Grand Jury proceedings. Police Investigator Mitchell, who had previously questioned the children in connection with his investigation of the case against defendant, operated the video camera during that taping upon the request of respondent Yates County District Attorney. Mitchell later testified for the prosecution before the Grand Jury and again at all other stages of the criminal action.

By order to show cause, defendant sought dismissal of the indictment, contending that the investigating officer was not authorized to be present during the videotaping of the children’s testimony because he was also to testify as a Grand Jury witness. The People countered, and the trial court agreed, that the officer was a videotape operator "employed by the district attorney” (CPL 190.32 [1] [c]) — one of the persons authorized to be present during Grand Jury proceedings under CPL 190.25. Following a jury trial, defendant was convicted of two counts of first degree sexual abuse and three counts of endangering the welfare of a child, and sentenced thereon.

The Appellate Division affirmed the convictions. While holding that the officer’s presence violated CPL 190.25 and 190.32 because the People failed to demonstrate that the officer was technically "employed” by the District Attorney as a video operator, the Court concluded that the officer’s presence did not impair the integrity of the Grand Jury process or create a possibility of prejudice to defendant. A Judge of this Court granted defendant leave to appeal, and we now reverse.

II

The officer’s presence in this case was a product of CPL 190.32 (2), which authorizes the videotaping of Grand Jury testimony of a "child witness.” This alternative procedure is designed to "lessen the traumatic impact upon young victims of sex offenses” by enabling the child to testify in a setting less intimidating than that usually associated with the impressive presence of a large Grand Jury audience (Mem in Support of Assembly Bill A 11502, Senator Martin J. Knorr, Bill Jacket, L 1984, ch 804; see also, Preiser, Practice Commentaries, McKinney’s Cons Laws of NY, Book 11 A, CPL 190.32, at 254). The Legislature’s extension of statutory secrecy requirements and provisions prohibiting attendance by unauthorized persons to the taping process (see, CPL 190.25 [3]; 190.32 [5] [c]) indicates that videotaped testimony is to be treated as the functional equivalent of live Grand Jury testimony (see, Mem in Support of Assembly Bill A 11502, Senator Martin J. Knorr, Bill Jacket, L 1984, ch 804). Accordingly, the enduring secrecy principles governing the conduct of personal Grand Jury appearances and proceedings apply with equal force to videotaped examinations and drive our analysis in this case.

The Grand Jury has long been heralded as " 'the shield of innocence * * * and as the guard of the liberties of the people against the encroachments of unfounded accusations from any source’ ” (People v Minet, 296 NY 315, 323). The integrity of the Grand Jury is preserved by ensuring that its actions and deliberations are conducted in such a manner that they are " 'uninfluenced by the presence of those not officially and necessarily connected with it’ ” (People v Di Falco, 44 NY2d 482, 488, quoting People v Minet, 296 NY 315, 323, supra). Accordingly, secrecy has become "a vital requisite of Grand Jury proceedings” (Di Falco, supra, at 488; Minet, supra, at 323), and "the law makes every effort to safeguard this secrecy” (People v Conte, 17 Misc 2d 664, 665).

The recognized purposes of Grand Jury secrecy are several: to protect an innocent accused, to prevent a suspect’s flight and to shield grand jurors from interference by those under investigation (People v Di Napoli, 27 NY2d 229, 235). Beyond those objectives, and of particular relevance here, secrecy creates a climate designed to encourage prospective witnesses to testify freely and truthfully and to prevent subornation of perjury and witness tampering (id.).

With those goals in mind, lawmakers have historically placed strict limitations on attendance at Grand Jury proceedings to safeguard the secrecy objectives of that institution (see, CPL 190.25 [4] [a]). Thus, CPL 190.25 (3) furnishes a carefully circumscribed list of persons who may be present during Grand Jury proceedings generally and, more specifically, during the videotaping of a child witness’ testimony (see also, CPL 190.32 [5] [c]). The fixed categories of authorized attendants generally include only those who perform some official administrative or prosecutorial function necessary to conduct or record the proceeding (see, e.g., CPL 190.25 [3] [a] [District Attorney]; CPL 190.25 [3] [c] [stenographer]; CPL 190.25 [3] [d] [interpreter]; CPL 190.25 [3] [f]) [a witness’ attorney]). Among those authorized to be present is an "operator” (see, CPL 190.25 [3] [g]), defined elsewhere in the statute as "a person employed by the district attorney who operates the video camera to record the examination of a child witness” (CPL 190.32 [1] [c]).

The People in this case contend that the investigating officer was authorized to be present during the children’s Grand Jury testimony because his services were used to operate the video camera. Contrary to the Appellate Division’s assumption, sections 190.25 and 190.32 do not require a showing that the District Attorney formally hired and agreed to pay a person to operate the video camera. Rather, it is sufficient if the individual in question is operating the video camera at the District Attorney’s specific request. Thus, the People are correct in their contention that the absence of a conventional hire agreement did not in itself disqualify Officer Mitchell from serving as an "operator” under CPL 190.25.

We nonetheless conclude that Investigator Mitchell’s presence as a video camera operator was unauthorized because another circumstance disqualified him from serving as an operator — namely, his status as a fact witness in the case. It is by now axiomatic that two witnesses are not authorized to be simultaneously present before the Grand Jury (People v Minet, 296 NY 315, supra; People v Wilson, 77 AD2d 713; People v De Ruggiero, 96 Misc 2d 458; People v Conte, 17 Misc 2d 664). In the seminal case of People v Minet (296 NY 315, supra), this Court recognized that the presence of a witness during the testimony of another impaired the purposely secret character of Grand Jury proceedings because a witness might be inclined to give an inaccurate or incomplete account of his or her knowledge of a crime if "there were present a person who was free to publish his testimony” (id., at 324). Indeed, in time-honored language, the Minet Court observed that "[a] change in expression, a pressure on the hand or a warning glance * * * might well influence, suppress or alter testimony to the prejudice of the defendant. There may have been prior expressions or conversations between the two witnesses which the one then giving testimony might well hesitate to repudiate or modify in the presence of the other” (id., at 322).

Certainly, the goal of fostering free and truthful testimony by preserving the confidential nature of Grand Jury proceedings is compromised by the presence of a witness during the testimony of another. Indeed, because a person’s unauthorized presence may affect the accuracy with which another witness testifies, a "primary function” of the Grand Jury, which "is to investigate crimes and determine whether sufficient evidence exists to accuse a citizen of a crime and subject him or her to criminal prosecution” risks impairment (People v Calbud, Inc., 49 NY2d 389, 394). Even in the context of a public trial, the exclusion of a witness during the testimony of another concerning "events or facts in dispute” is sanctioned as a device to preserve the truth-seeking function by " 'preventing one prospective witness from being taught by hearing another’s testimony’ ” (People v Santana, 80 NY2d 92, 100, quoting 6 Wigmore, Evidence § 1838, at 461 [Chadbourn rev 1976]; see also, People v Cooke, 292 NY 185, 190-191). Manifestly, a person whose presence seriously threatens any of the goals of the bedrock secrecy requirement — here the protection of witnesses and fostering of truthful testimony — cannot be authorized to attend the Grand Jury proceedings under the aegis of a statutory provision for which that person may technically qualify.

The presence of Officer Mitchell — a witness — during the child witnesses’ testimony was undeniably prohibited by the secrecy rule. That very same rule also operates as an impediment to his service as a videotape operator (cf., People v Hyde, 85 AD2d 745, 746). Indeed, were we to hold that Officer Mitchell was qualified as an operator, we would encourage the People to circumvent long-standing principles upon which the integrity of the Grand Jury is founded. Clearly, the limited statutory exception for the presence of an "operator” was created with a singular, ministerial purpose — to facilitate the taking of videotaped testimony of child witnesses — and was not intended to create a giant loophole through which other witnesses could gain access to confidential proceedings and "jeopardize [the] safeguards with which the cumulative wisdom of our legislators, lawyers and judges has surrounded the institution of the grand jury” (Minet, supra, at 322).

While we recognize that a careful balancing of defendants’ and victims’ rights was made in enacting the statutory provision permitting substitution of a videotape examination for live presentation of Grand Jury testimony, we are also aware that the potential for irregularities especially inherent in the taping process compels more strict and careful compliance with the fundamental secrecy mandates. By statute, the videotaping may be conducted "anywhere and at any time,” provided that the tape begins with a statement of the date, time and place of the examination and a listing of those present (CPL 190.32 [5] [a]). As recognized in Minet, an exchange between the unauthorized person and the witness is often subtle and undetectable through an inspection of the record (296 NY 315, 322, supra). This concern is magnified in the videotape process where those present in the room other than the testifying witness are not visible on the tape. Indeed, a greater possibility exists that unauthorized persons will be present at that unregulated location where the secrecy safeguards normally ensured by the formality and solemnity of Grand Jury proceedings are lacking. The potential for improper influence of a Grand Jury witness is heightened where that witness is a child who may be unusually susceptible to signals — real or perceived — emanating from an on-looker. Accordingly, the courts have a special duty to guard against prejudice and to preserve the confidential nature of the procedures employed when the videotaping process is involved.

Ill

Having concluded that the officer’s presence was unauthorized, our remaining concern is whether "prejudice to the defendant may result” from that defect (CPL 210.35 [5]) — a predicate to dismissal of the indictment as defendant seeks under CPL 210.20 (1) (c). Notably, defendant need not demonstrate actual prejudice under this statutory scheme to prevail (see, People v Wilkins, 68 NY2d 269, 276).

In determining whether a possibility of prejudice may result from a person’s unauthorized Grand Jury presence, the courts must consider all of the circumstances, including whether that person had an opportunity to interact with the witness, an inclination to influence the other’s testimony (cf., People v Wilson, 77 AD2d 713, supra), or some manifest stake or interest in the outcome of the proceeding (see, People v Gilbert, 149 Misc 2d 411, 413 [distinguishing cases where unauthorized persons have nonprosecutorial status from cases involving unauthorized prosecutors]). Additionally, where the unauthorized attendee is a fact witness who hears the testimony of another concerning the substance of the charges against the accused, the possibility of prejudice to the defendant is demonstrated (cf., People v Conte, 17 Misc 2d 664, 666, supra [no evidence that one Grand Jury witness "was present at any time that (the other witness) was sworn or began testifying”]). Significantly, although Minet was decided at a time when the statutory scheme required automatic dismissal of an indictment for unauthorized presence — without any showing of prejudice (see, former Code Grim Pro § 313 [2])— this Court recognized that the possibility of prejudice was inherent in the simultaneous presence of two fact witnesses (296 NY, at 322, supra).

IV

Relying on the aforementioned principles, we conclude that the officer’s unauthorized presence during the videotaping of the child witnesses’ testimony constituted a defect in the proceeding to such a degree that the resulting possibility of prejudice to defendant warrants dismissal of the indictment. While we recognize that the danger of prejudice could conceivably have arisen from the officer’s ability to prompt or influence the children during their testimony, the claim pressed by defendant throughout these proceedings, and upon which we rest our determination, is that the possibility of prejudice to this defendant was demonstrated because the investigating officer, who played a pivotal role in the prosecution of this criminal action against defendant, had the opportunity to listen to the child witnesses’ testimony and to tailor his testimony to theirs. Contrary to the dissent’s contention, our conclusion that a risk of prejudice resulted is not based solely on "speculative theorizing” (dissenting opn, at 716), but is grounded firmly on the fact that the children’s testimony that was overheard by Officer Mitchell concerned substantive allegations of sexual abuse directly pertaining to this defendant’s guilt or innocence (cf., People v De Ruggiero, 96 Misc 2d 458, 461, supra [no possibility of prejudice where two detective-witnesses simultaneously present in Grand Jury room “to expedite the process of playing (eavesdropping) tapes” where one detective’s testimony was limited to identifying male voices on the tape, and the other detective’s testimony concerned only identification of female voices]). The officer’s own recollection and recitation of the events in question could have been innocently clouded by the several versions of the events attested to by the children. Additionally, as a representative of the prosecution in this case, the officer undeniably had an incentive and an opportunity to bolster the children’s testimony by conforming his own to the allegations that he overheard. Thus, the potential for prejudice to this defendant was solidly demonstrated, and was not remedied by the fact that Officer Mitchell took the requisite oath of secrecy prior to taping (see, CPL 190.32 [5] [c]). That vow required the officer not to disclose the substance of the victims’ videotaped examinations and could not remove the taint caused by the officer’s capacity to reflexively alter his own testimony or influence, however innocently, that of the children.

The dissent contends that an affirmance is warranted because "a conclusive lack of actual prejudice is demonstrable” (dissenting opn, at 713). However, it is precisely because of the problem recognized by the dissent — that ”[n]ot a shred of evidence is discernible or deducible from the record” (dissenting opn, at 714) — that the governing inquiry focuses not on whether a defendant was actually prejudiced, but on whether some conduct during Grand Jury proceedings created the possibility of prejudice to a defendant. That a defendant need only demonstrate that a defect in Grand Jury proceedings created a risk of prejudice is not a rule invented by the majority in this case, but one with strong jurisprudential roots (see, People v Wilkins, 68 NY2d 269, 276, supra; People v Di Falco, 44 NY2d 482, supra), and supported by the plain language of CPL 210.35 (5). Indeed, an actual prejudice test, included in two earlier drafts of that section, was changed in the final draft enacted by the Legislature to read "prejudice to the defendant may result” (see, Preiser, Practice Commentaries, McKinney’s Cons Laws of NY, Book 11 A, CPL 210.35, at 676).

The People steadfastly maintain that the officer’s presence was comforting to the children, and not prejudicial, because they had developed a relationship with him during the preliminary stages of the investigation. Ironically, however, the People unwittingly identify precisely the hazard which compels the officer’s exclusion — that the established familiarity between the officer and the children created a climate naturally lending itself to the mutual exchange of subtle messages.

Thus, the investigating officer’s operation of the video camera during the children’s Grand Jury testimony was a serious and substantial defect which jeopardized the sacred secrecy principles upon which the Grand Jury’s integrity rests. The possibility of prejudice caused by the simultaneous presence of these witnesses outside of the formal Grand Jury setting warranted dismissal of the indictment under CPL 210.20 (1) (c) and 210.35 (5).

Accordingly, the order of the Appellate Division should be reversed, and the indictment dismissed with leave to the People to re-present if they be so advised.

Bellacosa, J. (dissenting). Judge Smith and I respectfully dissent and vote to affirm the order of the Appellate Division. This Court reverses a unanimous affirmance of the judgment of conviction following a jury trial, for what amounts to a ministerial and utterly technical Grand Jury videotaping irregularity. The speculative theory of reversal is contradicted by the record, especially the live trial testimony of the three child victims which was subject to full cross-examination.

L

The Appellate Division held that the police officer who was directed by the Yates County District Attorney to use video equipment to record the child victims’ testimony was not an "operator” within the meaning of CPL 190.32 (195 AD2d 968). Nevertheless, that Court concluded that the multiple-victim, multiple-count conviction should be upheld "because defendant failed to show that there was a possibility of prejudice or that the integrity of the [Grand Jury] proceeding was impaired” (id.).

Ironically, this Court unanimously concludes the officer was an "operator” within the meaning of the statute. This Court nevertheless overturns the conviction. We see no basis for the creation and use of a new per se rule directed at only the Grand Jury phase of this case but effectuating vacatur of the conviction secured, beyond a reasonable doubt before a petit jury after an error-free trial. Instead of the "possibility of prejudice” being wrested from this record, a conclusive lack of actual prejudice is demonstrable.

Everyone might do well to step back from the abstraction of Grand Jury secrecy, for there was no violation of that in this case. Also, a careful comparison of the speculation concerning taint of the victim witnesses as against the record would confirm conclusively that there was none of that either. Concentrating on the record, one finds:

• October 26 and 27, 1990 — The three children, friends of defendant’s children, were sexually assaulted by defendant during a slumber party at defendant’s home.
• October 27, 1990 — The children were picked up from defendant’s home by a mother of one of the girls, and during the car ride home, the children explained what had occurred. Eventually, all parents were informed.
• October 28, 1990 — Two of the children met with investigating Officer Mitchell and gave detailed accounts of defendant’s actions. The third child provided a statement on October 29, 1990.
• Shortly thereafter, the children’s testimony was recorded for use by the Grand Jury, and defendant was indicted on November 26, 1990.
• On September 30, 1991, defendant’s trial commenced. At trial, the People presented the three children, two of the mothers, and Officer Mitchell. Defendant’s counsel had full opportunity to cross-examine each witness.

The principal flaws in the reversal analysis include that the record is barren of any allegation by defense counsel that any of the children’s testimony was tainted or that the officer’s testimony was tainted or that there was any prejudice or possibility of prejudice on this record.

IL

The Legislature has defined an "operator” as "a person employed by the district attorney who operates the video camera to record the examination of a child witness or a special witness” (CPL 190.32 [1] [c]). The plain meaning of the statutory words ought to control and resolve this case (see, Matter of Alonzo M. v New York City Dept. of Probation, 72 NY2d 662, 665; People v Cruz, 48 NY2d 419, 427-428; see also, McKinney’s Cons Laws of NY, Book 1, Statutes § 232). In practically the same breath that the police officer is found to be an authorized video operator under this child witness protection statute, the Court disqualifies him because of what he might have done "reflexively” or with unintentional body language or "looks” to influence the children’s testimony during the videotaping of their testimony for the Grand Jury’s later consideration. At another point of the Court’s analysis, the suggestion emerges that the children’s Grand Jury taped testimony may have affected the officer’s testimony. The conjectural nature of this approach to the case is quite evident.

The sole perceived irregularity rests on this miscast portrayal of the sworn officer and his role in this case. He acted in accordance with the facial authority of the statute by performing a ministerial recording function for his employer, the local District Attorney. As to the children’s testimony, the officer gave no fact or substance-of-the-crime testimony. He recorded their evidence for use and consideration by the Grand Jury and verified the process and technology. That the officer acted for an authorized purpose but "maybe” could have perverted his role into that of acting as a manipulative agent prejudicially affecting the child witnesses is irrelevant to the analysis of this case, because that never occurred here. Also, surmises are not a proper basis upon which cases should be decided and convictions overturned, because they cannot supplant facts and evidence as a basis to upset any validly secured conviction, no less one for gross and grievous sexual assaults against children by a prior felony child sex offender.

The acts resulting in verdicts of guilt in this case constituted two counts of first degree sexual abuse and three counts of endangering the welfare of three young girls, each 10 years of age at the time of the crimes. Not a shred of evidence is discernible or deducible from the record or developed in available cross-examination of the witnesses to support the speculative analysis used to reverse. In establishing rules of law, this Court never acts in the abstract. It applies legal principles to the particular evidence in the record. Since the Court is obligated to do that, it should not be forgotten or overlooked that the only live testimony of these child victim witnesses was given in full confrontation of the accused, in open court, with full cross-examination opportunities, before the petit jury at trial that convicted defendant. No taint whatsoever was explored, uncovered or hinted at by anyone, including defendant or his counsel. This, it seems to us, clinches the irrefutable rebuttal of the conjectural linchpin on which this reversal rests.

Consideration should also be given to the ante litem motem verification of the children’s evidence. They graphically described the events which occurred at their slumber party weekend in October 1990. Their descriptions are recorded in written police investigative statements given just two days after the incidents took place and after parents promptly called the police. From the inception of the investigation through trial, the three girls provided consistent, distinct, cross-corroborative and explicit descriptions of the awful crimes inflicted against them in their host friend’s house by the host child’s father. A review of the trial testimony given one year later punctuates the lack of any possibility or actuality of prejudice to defendant in this case. The trial testimony of the three girls is consistent with their original statements made one year earlier to the police. It was tendered with some insignificant human variations that, frankly, if the Court is going to rely on nonrecord psychological propensities, help to provide even greater cogency to their accuracy and veracity. There is not a hint of taint or scripting of the children’s testimony from the investigating officer’s functional, ministerial video-recording role or of tailoring by the officer based on his earlier videotaping of their testimony for Grand Jury purposes only. Pointedly, at trial, when asked, one child answered that the investigating officer directed her to "just tell the truth”. The theory of a "possibility” that the investigating, video-recording officer might have coached or affected the children into providing false testimony or that he tailored his testimony to theirs disintegrates under the weight of the actual trial evidence in this case.

IIL

On another aspect of the Court’s analysis — People v Minet (296 NY 315) — we conclude that that case offers no support whatsoever for a reversal. That pre-CPL case presented the question whether a defendant’s indictment should be dismissed, based on common-law precepts and practices because a District Attorney permitted two witnesses to enter the Grand Jury room together and testify in each other’s presence. That is not this case. The children and the video-recording officer never appeared before the Grand Jury together and the functional equivalent notion has no relevancy in this case.

Moreover, in Minet, the Court applied section 313 of the former Code of Criminal Procedure to dismiss an indictment without the need to show prejudice. That Code of Criminal Procedure section was replaced by CPL 210.35, which today requires a demonstration — not speculative theorizing — that an improper procedure affected the integrity of the Grand Jury proceeding creating the possibility of prejudice (see, People v Di Falco, 44 NY2d 482; see also, People v Corrigan, 80 NY2d 326, 329; People v Wilkins, 68 NY2d 269, 276). Thus, the principles governing what should be done in this case do not include a per se outcome or a conjectural psychological conclusion founded on a record devoid of any expert proof foundation whatsoever. Rather, a case specific, fact-weighing evidentiary application is or should be the rule and that is not being done here.

Instead of following the statutory prescription that contains the prejudice component and implementing the Court’s unanimous agreement that the officer was a designated operator within the statute, the majority jumps to a different analysis and turns mere presence of the video-recording officer into a surefire, low threshold "possibility of prejudice” reversal standard. No basis is manifested on the actual record of this case that the integrity of the Grand Jury proceedings was in the least bit impaired or that this defendant was actually or potentially prejudiced in any way before the Grand Jury or before the petit jury rendered its verdict after his error-free fair trial.

IV.

In sum, a statutory procedure enacted as a shield for the protection and assistance of child victim witnesses, and initiated in this case to fulfill that very goal, is converted into a sword. That weapon then cuts down this valid conviction and inflicts a miscarriage of justice against the legitimate interests of the child victims, especially if in 1994, four years after the crimes, now at age 14, they may be returned to the Grand Jury and trial for reprises of their terrible weekend in Octoher 1990. In place of the Legislature’s statutory protection, the Court substitutes a prophylactic per se rule designed to achieve a version of idealized justice in the abstract and in futuro. Regrettably, demonstrable justice, in praesenti and in the particular facts of this case, is sacrificed as the means to that end.

Chief Judge Kaye and Judges Simons, Levine and Ciparick concur with Judge Titone; Judge Bellacosa dissents and votes to affirm in a separate opinion in which Judge Smith concurs.

Order reversed, etc.

      . A "child witness” is defined as a person under the age of 12 who is the victim of one of the enumerated abuse or sex crimes and who the People intend to call as a witness in a Grand Jury proceeding (see, CPL 190.32 [1] [a]; [2], [5]).

      . The dissent contends that the consistency in the children’s initial statements and trial testimony "punctuates the lack of any possibility or actuality of prejudice” to this defendant (dissenting opn, at 715). This analysis is flawed precisely because the danger associated with the attendance of this law enforcement official is that the children’s awareness that the officer is familiar with their earlier statements may well have deterred those fragile witnesses from modifying their prior versions of the events in question, had they later been inclined to do so. Thus, consistency in the children’s statements is not a reliable basis to refute the conclusion that the possibility of prejudice to this defendant has been demonstrated.

      . Indeed, while testifying during a Sandoval and Huntley hearing, and again at trial, Officer Mitchell related in his own words the substance of a number of the specific allegations made by the children against defendant, stated that he asked defendant if the allegations were true, and then repeated the substance of defendant’s responses to those allegations.


source: Caselaw Access Project

license: Public Domain

text:
    [635 NE2d 1222, 613 NYS2d 352]
    Ilde A. Soto, Individually and as Administratrix of the Estate of Nelson Rivera, Deceased, et al., Appellants, v State Farm Insurance Company, Respondent.
    Argued March 23, 1994;
    decided May 10, 1994

      POINTS OF COUNSEL

      John Lloyd Egan & Associates, Buffalo (John Lloyd Egan, Jr., of counsel), for appellants.
    I. The measure of excess damages in a bad-faith insurance action is the full amount of the underlying judgment including punitive damages that are in excess of the policy limits. (DiBlasi v Aetna Life & Cas. Ins. Co., 147 AD2d 93; Roldan v Allstate Ins. Co., 149 AD2d 20; Gordon v Nationwide Mut. Ins. Co., 37 AD2d 265, 30 NY2d 427, 410 US 931; AFIA v Continental Ins. Co., 140 AD2d 167; United States Fid. & Guar. Co. v Copfer, 48 NY2d 871.) II. Plaintiffs/appellants are entitled to the full measure of damages for defendant/respondent’s breach of covenant of fair dealing which damages were contemplated and consciously weighed by defendant/respondent at the time of its failure to settle within the policy limits when time was so afforded creating the punitive damages now in question. (Gordon v Nationwide Mut. Ins. Co., 30 NY2d 427; DiBlasi v Aetna Life & Cas. Ins. Co., 147 AD2d 93; Walker v Sheldon, 10 NY2d 401; Samovar of Russia Jewelry Antique Corp. v Generali, Gen. Ins. Co., 102 AD2d 279; Belco Petroleum Corp. v AIG Oil Rig, 164 AD2d 583; Kenford Co. v County of Erie, 73 NY2d 312; Chapman v Fargo, 223 NY 32; Kerr S. S. Co. v Radio Corp., 245 NY 284; Booth v Spuyten Duyvil Rolling Mill Co., 60 NY 487; Baldwin v United States Tel. Co., 45 NY 744.) III. Defendant has failed to introduce facts in evidentiary form at the trial level in opposition to plaintiffs/appellants’ allegations of insurance bad faith, and therefore said issue is deemed admitted by operation of law. (South Bay Ctr. v Butler, Herrick & Marshall, 43 Misc 2d 269; Hanson v Ontario Milk Producers Coop., 58 Misc 2d 138; Banasik v Reed Prentice Div., 34 AD2d 746, 28 NY2d 770; Payne v Payne, 28 NY2d 399.)

      Maghran, McCarthy & Flynn, Buffalo (W. Donn McCarthy and Kevin E. Ketchum of counsel), for respondent.
    I. There is no legal merit to plaintiffs’ cause of action because New York public policy prohibits insurance companies from paying punitive damages assessed against their insureds. (Home Ins. Co. v American Home Prods. Corp., 75 NY2d 196; Public Serv. Mut. Ins. Co. v Goldfarb, 53 NY2d 392; Hartford Acc. & Indem. Co. v Village of Hempstead, 48 NY2d 218; Zieman Mfg. Co. v St. Paul Fire & Mar. Ins. Co., 724 F2d 1343.) II. Punitive damages could not have been within the contemplation of the parties to the insurance contract at the time the contract was made. (Gordon v Nationwide Mut. Ins. Co., 30 NY2d 427; Kenford Co.

      v County of Erie, 73 NY2d 312; Public Serv. Mut. Ins. Co. v Goldfarb, 53 NY2d 392.) III. There is no legal merit to plaintiffs’ cause of action seeking recovery of an unpaid punitive damages award because an unsatisfied punitive damages award does not constitute damage to plaintiffs. (Hartford Acc. & Indem. Co. v Village of Hempstead, 48 NY2d 218; Home Ins. Co. v American Home Prods. Corp., 75 NY2d 196.) IV. The denial of plaintiffs’ cross motion was proper because plaintiffs did not submit competent evidence to establish as a matter of law any bad-faith conduct by State Farm. (Pavia v State Farm Mut. Auto. Ins. Co., 82 NY2d 445; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065; Zuckerman v City of New York, 49 NY2d 557; Crawford v Hospital of Albert Einstein Coll. of Medicine, 159 AD2d 304.)

      Charles Platto, New York City, James Kimble, of the District of Columbia Bar, admitted pro hac vice, and Keith Hopkinson, of the Illinois Bar, admitted pro hac vice, for American Insurance Association and another, amici curiae.

    I. Punitive damages are inappropriate in first-party claims. (Halpin v Prudential Ins. Co., 48 NY2d 906; Public Serv. Mut. Ins. Co. v Goldfarb, 53 NY2d 392; Home Ins. Co. v American Home Prods. Corp., 75 NY2d 196.) II. A private cause of action for damages under Insurance Law § 2601 does not lie for any damages no less punitive damages. (Varela v Investors Ins. Holding Corp., 81 NY2d 958; Pilot Life Ins. Co. v Dedeaux, 481 US 41; Royal Globe Ins. Co. v Chock Full O’Nuts Corp., 86 AD2d 315; A & E Supply Co. v Nationwide Mut. Fire Ins. Co., 798 F2d 669, 479 US 1091.)

      Anderson Kill Olick & Oshinsky, P. C. (Eugene R. Anderson, Robert M. Horkovich and Michael J. Keane of counsel), Robert P. Walton, New York City, and Martha Churchill, of the Illinois Bar, admitted pro hac vice, for New York University and another, amici curiae.

    I. New York Insurance Law and regulations do not provide the exclusive remedy for policyholders. (Riordan v Nationwide Mut. Fire Ins. Co., 756 F Supp 732, 977 F2d 47; In re Insurance Antitrust Litig., 938 F2d 919, 5 F3d 1556; Sulner v General Acc. Fire & Life Assur. Corp., 122 Misc 2d 597; Hartford Acc. & Indem. Co. v Michigan Mut. Ins. Co., 93 AD2d 337, 61 NY2d 569; Unigard Sec. Ins. Co. v North Riv. Ins. Co., 762 F Supp 566, 4 F3d 1049; Walker v Sheldon, 10 NY2d 401; State of New York v Merchants Ins. Co., 109 AD2d 935; Fredericks v Home Indem. Co., 101 AD2d 614; Cornwell v Safeco Ins. Co., 42 AD2d 127; Pavia v State

      Farm Mut. Auto. Ins. Co., 82 NY2d 445.) II. Allowing for punitive damages in actions alleging bad-faith claims handling practices against insurance companies is sound public policy. (German Alliance Ins. Co. v Kansas, 233 US 389; Hartford Acc. & Indem. Co. v Michigan Mut. Ins. Co., 93 AD2d 337, 61 NY2d 569; Christiania Gen. Ins. Corp. v Great Am. Ins. Co., 745 F Supp 150.) III. Insurance companies should be forced to follow the set of rules they require their policyholders to follow, and not be allowed to have a different set of rules apply to their own conduct.
   OPINION OF THE COURT

Titone, J.

Defendant’s insureds were adjudged liable to pay a total of $420,000 in compensatory damages and $450,000 in punitive damages in connection with a fatal automobile accident. The insureds’ assignees, the actual injured parties, then commenced the present action against the defendant insurer, alleging that it should be held liable for the full amount of the judgment, which far exceeded the policy limits, because it acted in bad faith in refusing a pretrial settlement offer that was within the policy limits. The issue in this appeal is whether the insureds’ assignees may recover the portion of the judgment that represents an award of punitive damages. We conclude that they cannot.

On May 21, 1988, Nelson Rivera and Angel Luis Echevarria were hit by a car and fatally injured while they were standing and conversing with some individuals who were sitting in another car. The vehicle that hit Rivera and Echevarria had been operated by Elisio Montanez, but was registered and insured in the name of Mary Casey, Montanez’s live-in girlfriend.

The victims’ administrators brought wrongful death and survival actions against Casey and Montanez. Although the administrators’ counsel had allegedly expressed a willingness to settle the case before trial for the $50,000 per death insurance policy limit, defendant, Casey’s insurer, never offered that sum in settlement. Instead, it decided to litigate the case on the theory that its insured had never consented to Montanez’s use of the car. The result was a judgment far in excess of the limits of Casey’s policy and an award against Montanez that included $450,000 in punitive damages.

In awarding damages to the plaintiffs, the jury apparently found that Montanez had been operating the vehicle with Casey’s permission at the time the accident occurred. It also evidently credited the substantial proof that Montanez, who had no driver’s license, was legally blind when not wearing eyeglasses and had been intoxicated at the time of the accident.

The plaintiffs were paid the full amount of the compensatory damage award. Defendant insurer, however, declined to pay any portion of the judgment that represented punitive damages.

Unable to collect the full amount of their judgment, the decedents’ administrators subsequently took an assignment of Montanez’s and Casey’s rights against defendant insurer. They then commenced the present action against defendant, alleging that it had been guilty of bad faith in refusing to settle the Rivera-Echevarria action within the policy limits before trial despite the opportunity to do so. In support of their claim, plaintiffs alleged that defendant had recklessly disregarded the interests of its insureds and that its conduct had been particularly egregious in light of the overwhelming evidence against Montanez and the clear likelihood of a jury award in excess of the policy limits.

Defendant insurer responded by moving to dismiss plaintiffs’ complaint for failure to state a claim for which relief could be granted. Inasmuch as the full amount of the compensatory damage award in the Rivera-Echevarria action had already been paid, the only remaining basis for monetary relief was the punitive damages award. Relying on the well-established New York policy against indemnification for punitive damages (see, Home Ins. Co. v American Home Prods. Corp., 75 NY2d 196), defendant contended that plaintiffs’ claim for reimbursement for the punitive damages award could not be maintained.

Both courts below adopted defendant’s argument and dismissed the complaint. In ruling in defendant’s favor, both courts stressed that since punitive damages are not insurable in this State, they could not have been within the contemplation of the parties when they made their insurance contract and therefore were not properly recoverable as a consequential damage for defendant’s alleged breach of its obligation of good faith. Following the Appellate Division’s affirmance of the order dismissing the complaint, this Court granted plaintiffs leave to take a further appeal. We now affirm.

It is well established that an insurer who refuses a settlement offer in bad faith may be held liable in damages to its insured (e.g., Gordon v Nationwide Mut. Ins. Co., 30 NY2d 427; Best Bldg. Co. v Employers’ Liab. Assur. Corp., 247 NY 451, 453). Indeed, we recently observed that an insurer which acts in " 'gross disregard’ of [its] insured’s interests * * * when considering a settlement offer” may be required to pay damages, provided the plaintiff can show that " 'the insured lost an actual opportunity to settle the * * * claim’ * * * at a time when all serious doubts about the insured’s liability were removed” (Pavia v State Farm Mut. Auto. Ins. Co., 82 NY2d 445, 453, 454 [quoting United States Fid. & Guar. Co. v Copfer, 48 NY2d 871, 873]).

The damages recoverable in an action based on an insurer’s bad-faith refusal to settle are generally measured by "the amount for which the insured becomes charged in excess of his policy coverage” (7C Appleman, Insurance Law and Practice § 4711, at 414 [Berdal ed]; see, Gordon v Nationwide Mut. Ins. Co., supra, at 436-437; see generally, 14 Couch, Insurance 2d § 51:143 [rev ed]). An excess judgment is a class of harm that naturally and foreseeably flows from an insurer’s failure to accept a pretrial settlement offer within the policy limits. Accordingly, when the harm has been caused by the insurer’s breach of its obligation to perform in good faith, the insurer should be required to remedy that harm by paying the excess judgment (Gordon v Nationwide Mut. Ins. Co., supra, at 436-437; see, Brassil v Maryland Cas. Co., 210 NY 235; DiBlasi v Aetna Life & Cas. Ins. Co., 147 AD2d 93; see also, Kenford Co. v County of Erie, 73 NY2d 312, 321).

This principle is more complicated when, as here, a portion of the excess judgment for which the insured seeks compensation represents an award of punitive damages obtained by an injured plaintiff On the one hand, for purposes of measuring the amounts recoverable in a bad-faith action against an insurer, such an award is no different in principle from an award of excess personal injury damages; both are unindemnified liabilities to which the insured would not have been exposed if the insurer had acted in good faith to reach a fair pretrial settlement. On the other hand our State’s public policy clearly precludes indemnification for punitive damages (Home Ins. Co. v American Home Prods. Corp., 75 NY2d 196, supra; Public Serv. Mut. Ins. Co. v Goldfarb, 53 NY2d 392; Hartford Acc. & Indem. Co. v Village of Hempstead, 48 NY2d 218). While the relief an insured seeks in an action for bad faith is more in the nature of compensation than indemnification, the nature of the underlying reason for the recovery, i.e., a civil punitive damage award, cannot be ignored.

We conclude that a rule permitting recovery for excess civil judgments attributable to punitive damage awards would be unsound public policy. We have previously endorsed the " 'fundamental principle that no one shall be permitted to take advantage of his own wrong’ ” (Hartford Acc. & Indem. Co., supra, at 226, quoting Messersmith v American Fid. Co., 232 NY 161, 165; accord, Public Serv. Mut. Ins. Co. v Goldfarb, 53 NY2d 392, 400). This principle is not vitiated by the existence of an entirely separate and analytically distinct wrong on the part of the insurer.

As we have noted on other occasions, since punitive damages are not designed to compensate an injured plaintiff for the actual injury that that person may have suffered, their only real purpose is to punish and deter the wrongdoer (Home Ins. Co. v American Home Prods. Corp., supra, at 200; Hartford Acc. & Indem. Co. v Village of Hempstead, supra, at 226). While the deterrent value of the rule against indemnification may be somewhat attenuated in this context, the rule’s equally important goal of preserving the condemnatory and retributive character of punitive damage awards remains clear and undiminished. That goal cannot be reconciled with a conclusion that would allow the insured wrongdoer to divert the economic punishment to an insurer because of the insurer’s unrelated, independent wrongful act in improperly refusing a settlement within policy limits.

Where an insurer has acted in bad faith in relation to an available pretrial settlement opportunity, it is guilty only of placing its insured at risk that a jury will deem him or her so morally culpable as to warrant the imposition of punitive damages. Stated another way, an insurer’s failure to agree to a settlement, whether reasonable or wrongful, does no more than deprive the insured of a chance to avoid the possibility of having to suffer a punitive damage award for his or her own misconduct. Regardless of how egregious the insurer’s conduct has been, the fact remains that any award of punitive damages that might ensue is still directly attributable to the insured’s immoral and blameworthy behavior.

Our system of civil justice may be organized so as to allow a wrongdoer to escape the punitive consequences of his own malfeasance in order that the injured plaintiff may enjoy the advantages of a swift and certain pretrial settlement. However, the benefit that a morally culpable wrongdoer obtains as a result of this system, i.e., being released from exposure to liability for punitive damages, is no more than a necessary incident of the process. It is certainly not a right whose loss need be made subject to compensation when a favorable pretrial settlement offer has been wasted by a reckless or faithless insurer.

In summary, we hold that the punitive damages awarded against an insured in a civil suit are not a proper element of the compensatory damages recoverable in a suit against an insurer for a bad-faith refusal to settle. Since that is the sole basis of plaintiffs’ action against defendant insurer in this case, their complaint was properly dismissed.

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

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

Order affirmed, with costs.

       To be distinguished are situations in which the insured is seeking to recover punitive damages from the insurer because of the insurer’s own alleged misconduct in handling a settlement offer. We do not here address the recoverability of this category of damages (cf, Rocanova v Equitable Life Assur. Socy., 83 NY2d 603 [decided today] [discussing availability of punitive damages for insurer’s own alleged misconduct in settling first-party claims]).


author: Smith, J.

text:
    [635 NE2d 1225, 613 NYS2d 355]
    In the Matter of Margaret Hamburg, as Acting Commissioner of the New York City Department of Health, et al., Respondents, v Lorna McBarnette, as Acting Commissioner of the New York State Department of Health, et al., Appellants.
    Argued May 3, 1994;
    decided June 14, 1994

      POINTS OF COUNSEL

      G. Oliver Koppell, Attorney-General, New York City (Mark G. Peters and Jerry Boone of counsel), for appellants.
    The State Department of Health’s (DOH) interpretation of its own regulations is consistent with the intent of Public Health Law article 6 and the Court below erred in failing to defer to State DOH’s expertise in this matter. (Matter of Bernstein v Toia, 43 NY2d 437; Kuresics v Merchants Mut. Ins. Co., 49 NY2d 451; Matter of Rosen v Public Empl. Relations Bd., 72 NY2d 42; Servomation Corp. v State Tax Commn., 51 NY2d 608; Matter of Industrial Indent. Co. v Cooper, 81 NY2d 50; Matter of Nicholas v Kahn, 47 NY2d 24; Matter of Park E. Land Corp. v Finkelstein, 299 NY 70; Matter of Henschke v State Div. of Hous. & Community Renewal, 174 AD2d 535, 79 NY2d 780.)

      Paul A. Crotty, Corporation Counsel of New York City (Linda H. Young and Pamela Seider Dolgow of counsel), for respondents.
    The denial by the State of Public Health Law reimbursement for services provided by City agencies under contract with the City’s Department of Health was irrational since the State’s own regulations provide for the contracting-out of such services and these agencies were not required by law to provide them. (Matter of Trump-Equit. Fifth Ave. Co. v Gliedman, 57 NY2d 588; Kuresics v Merchants Mut. Ins. Co., 49 NY2d 451; Berger v New York State Department of Social Servs., 181 AD2d 12; Matter of Grace Plaza v Axelrod, 121 AD2d 799.)
   OPINION OF THE COURT

Smith, J.

The issue in this case is whether the determination of the State Department of Health (State DOH), denying State aid reimbursement to the New York City Department of Health (City DOH) for certain public health services that were contracted-out to other City agencies, was arbitrary and capricious.

In 1986, the Legislature enacted, effective January 1, 1988, a new article 6 of the Public Health Law (L 1986, ch 901) "to increase State assistance for public health and to encourage enhanced local public health activities” (Governor’s Mem approving L 1986, ch 901, 1986 NY Legis Ann, at 367). The new legislation was designed to assist localities in providing specific health care needs. The legislation was designed to support and increase the level of funding and oversight for such programs but not to supplant such funding.

The new article 6 governs State reimbursement for local public health services and establishes new procedures for State review of those services to determine eligibility for reimbursement. A municipality is required, among other things, to submit to the State DOH an application for State aid, a municipal public health services plan and a detailed report of all expenditures on public health services funded by the State (see, Public Health Law § 600). The municipality is also required to employ a Commissioner of Health to supervise the provision of public health services (see, id.; § 604). The application for State aid must include an organizational chart of the municipal health agency, a detailed budget of proposed expenditures, a description of proposed program activities, a copy of the municipal public health services plan and a certification from a governing body of the municipality that the proposed expenditures are consistent with the plan (see, Public Health Law § 601).

The purpose of the municipal health services plan must be to "maintain and improve the health status of [the] residents [of the municipality], maintain and improve the accessibility and quality of health care, and assist in containing the costs of the health care system” (Public Health Law § 602 [2] [b]). Services that promote the public health of the residents of the municipality and, thus may be incorporated in the plan, include (1) family health, (2) disease control, (3) health education and guidance, (4) community health assessment, and (5) environmental health (see, Public Health Law § 602 [3] [b]). The plan must include, at a minimum, an estimate and description of the immediate and long-term needs for public health services in the municipality, a statement and description of the public health objectives of the municipality, a description of the programs for achieving those goals, a projected two-year plan for expenditures necessary to implement the programs, a general description of available health services, the number of staff people required to provide the necessary services, a fee and revenue plan and evidence that the governing body of the municipality has adopted the plan as a basis for the municipality’s public health activities (see, Public Health Law § 602).

The State DOH is authorized to promulgate rules and regulations that define the activities within each of the five public health service categories (see, Public Health Law § 602 [3] [b]). In addition, the State DOH may withhold State aid reimbursement if the municipality does not render services jn conformance with the rules or regulations or with the statutory provisions regarding State aid reimbursement (see, Public Health Law § 603 [2]).

Effective January 1, 1988, the State DOH promulgated regulations implementing the new provisions of the Public Health Law (see, 10 NYCRR 40-1.0 et seq.). The regulations require municipalities to apply annually for State aid reimbursement (10 NYCRR 40-1.0), to biennially submit a municipal public health service plan (10 NYCRR 40-1.10), and to specify the programs and services in the plan that are eligible or ineligible for State aid reimbursement (10 NYCRR 40-1.52, 40-1.53). Pursuant to the regulations, public health services rendered under contract with municipalities are eligible for reimbursement (10 NYCRR 40-1.52 [d]), provided that the Commissioner of Health maintains "supervision” of those services (10 NYCRR 40-1.30 [b] [1]). However, the cost of programs or services for which municipalities have been given legal responsibility is ineligible for reimbursement (see, 10 NYCRR 40-1.53 [p]).

On April 23, 1990, the City DOH submitted its municipal health services plan for fiscal years 1991 and 1992 to the State DOH. The plan included certain public health services that were provided through contracts with other City agencies, including the New York City Health and Hospitals Corporation (City HHC), the New York City Department of Environmental Protection (City DEP), and the New York City Department of Housing Preservation and Development (City HPD). The plan also included a description of the public health services furnished by these agencies. The services provided by the City HHC included public health clinics providing assistance in family planning, prenatal care, child care, screening and treatment of sexually transmitted diseases, screening, counseling and treatment of HIV-infected citizens, and the coordination of emergency medical services. The City HPD provided lead paint inspections, and the City DEP supplied emergency responses to the presence of hazardous materials. Pursuant to the contracts, the City DOH required the City agencies to submit detailed quarterly financial reports itemizing the applicable expenses incurred by the agencies during the previous three months. In addition, the City DOH assigned members of its staff to review and audit the financial reports.

On August 31, 1990, the City DOH submitted applications for State aid reimbursement for services totalling $77,474,254 provided pursuant to its submitted plan. The State DOH approved reimbursement for $68,500,946 and rejected payment for $8,973,311, which represented the cost of public health services provided by the City HHC, the City DEP and the City HPD. The State DOH asserted, without elaboration, that the cost associated with the services provided by the City agencies was "determined ineligible for state aid reimbursement.”

Petitioners, collectively referred to as the City DOH, commenced this CPLR article 78 proceeding challenging the State DOH’s decision to deny the $8,973,311 in State aid reimbursement. Supreme Court dismissed the petition, concluding, inter alla, that the State DOH acted within its statutory mandate in denying reimbursement, because "[the] City agencies act as independent entities and are subject to the supervisory control of their respective agency heads.” The court also rejected the claim that the City agencies were not "legally responsible” for the services at issue. The Appellate Division reversed, on the law, and granted the petition, stating that the agencies involved were not required by law to provide the services in question, and that the City DOH maintained sufficient supervision over the contracted-out services to entitle it to reimbursement (195 AD2d 275). This Court granted leave to appeal (82 NY2d 659).

The State DOH argues that the interpretation of the statutory provisions at issue here involves knowledge and understanding of the underlying operational practices of the agencies, as opposed to a mere reading and analysis of the statute and, thus, the Court should defer to its expertise in the area. The State DOH also urges that its interpretation of the statutory provisions is consistent with the legislative intent of article 6. The City DOH contends that the interpretation afforded by the State DOH is irrational because the public health expenditures made pursuant to the contracts are the types of expenditures for which the Legislature intended State DOH to reimburse a municipality.

There is no reason to apply the deference doctrine urged by the State DOH. It is clear that the new provisions of article 6 of the Public Health Law were enacted to "ensure that State resources will be committed to strengthen the existing local public health infrastructure and to expand preventive health programs [such as prenatal care, environmental health, nutrition and health education programs]” (Governor’s Mem approving L 1986, ch 901, 1986 NY Legis Ann, at 367).

Public Health Law § 604 requires a municipality to "employ a full-time local commissioner of health * * * to supervise the provision of public health services” in order to be eligible for State aid reimbursement. In its implementing regulation, the State DOH essentially repeats the statutory language, including the term "supervise.” Thus, the implementing regulation provides, in part, "Each municipality shall supervise public health services * * * [and] such supervision shall be provided by a local commissioner of health” (10 NYCRR 40-1.30 [b] [1]).

The services that were contracted-out to the City agencies included family planning, prenatal care, child care, screening and treatment of sexually transmitted diseases, screening, counseling and treatment of HIV-infected citizens, emergency medical services, lead paint inspections, and environmental health services. Pursuant to the contracts, the City agencies were required to submit detailed quarterly financial reports itemizing the applicable expenses incurred, and the City DOH was required to assign staff members to review and audit the financial reports. We conclude that this level of supervision provided by the City DOH over the contracting City agencies wholly comports with the intent of the Legislature to increase State assistance for the stated areas of public health and to encourage enhanced local public health activities in those areas.

The State DOH also contends that the interpretation of its own regulation afforded by the Commissioner deserves great deference because the three City agencies are empowered and, thus, "legally responsible,” to provide the services for which reimbursement is sought. The City DOH argues that the City agencies are authorized, but not legally responsible, to provide the contracted-for services.

Public Health Law § 603 authorizes the Commissioner of Health to withhold State aid reimbursement if it is determined that the services for which reimbursement is sought are not rendered in conformance with the rules and regulations established by the Commissioner. To effectuate this legislative authorization, the Commissioner promulgated a regulation disallowing reimbursement for the "cost of activities for which any other agency * * * has been given legal responsibility” (10 NYCRR 40-1.53 [p]).

We have previously stated that where a regulation is not inconsistent with a statute and does not exceed it, the interpretation given to it by the Commissioner of Health is "controlling and will not be disturbed in the absence of weighty reasons” and unless it is arbitrary and capricious (Matter of Sigety v Ingraham, 29 NY2d 110, 114; see also, Matter of Cortlandt Nursing Care Ctr. v Whalen, 46 NY2d 979, 980). Applying that principle to the case before us, we conclude that there are controlling reasons why the decision of the DOH, denying State aid reimbursement on the ground that the City agencies had a legal responsibility to provide the contracted-for public health services, cannot stand.

We agree with the Appellate Division that although the City agencies involved are authorized to provide the contracted-for public health services (see, McKinney’s Uncons Laws of NY § 7382 [New York City Health and Hospitals Corporation Act § 2; L 1969, ch 1016, § 1, as amended] [authorizing the City HHC to provide such health and medical services as are necessary to protect and promote the health, safety and welfare of the inhabitants of the State]; NY City Charter § 1403 [h] [empowering the City DEP to respond to emergencies caused by releases or threatened releases of hazardous substances into the environment]; § 1803 [2] [authorizing the City HPD to enter and inspect any building, structure, enclosure or premises]), none of the agencies has a "legal responsibility” to do so. Moreover, nothing in the statutory provisions imposes a legal responsibility on the City agencies to provide those services pursuant to contract with the City DOH. Rather, the contractual relationship between the City DOH and the City agencies empowered to provide the public health services at issue here may serve one of the goals of the new statutory provisions, namely "yield[ing] enormous cost savings” (see, Governor’s Mem approving L 1986, ch 901, 1986 NY Legis Ann, at 367).

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

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

Order affirmed, with costs.


text:
    [636 NE2d 1375, 613 NYS2d 842]
    Joan V. Harris, Appellant, v Paul Hirsh, Respondent.
    Argued April 27, 1994;
    decided June 9, 1994

      POINTS OF COUNSEL

      Graham, Campaign & McCarthy, P. G, New York City (Daniel F. McCarthy and Daniel A. McCarthy of counsel), for appellant.
    I. The decision of the Court below should be reversed because the Railway Labor Act was never intended to preempt State common-law intentional tort remedies not involving the terms of a collective bargaining agreement. (Cipollone v Liggett Group, 505 US —, 112 S Ct 2608; English v General Elec. Corp., 496 US 72; California Fed. Sav. & Loan Assn. v Guerra, 479 US 272; Florida Avocado Growers v Paul, 373 US 132; CSX Transp. v Easterwood, 507 US —, 113 S Ct 1732; Abbot v American Cyanamid Co., 884 F2d 1108; Silkwood v Kerr-McGee Corp., 464 US 238; Matter of Tap Elec. Contr. Serv. v Hartnett, 76 NY2d 164; Motor Coach Empls. v Lockridge, 403 US 274; Allis-Chalmers Corp. v Lueck, 471 US 202.) II. The Court below ignored its prior ruling that Harris had established Hirsh’s malice and erroneously failed to hold that malicious defamation actions are an exception to the Federal preemption doctrine. (Linn v Plant Guard Workers, 383 US 53; Franco v Long Is. R. R., 94 AD2d 756; Feldleit v Long Is. R. R., 723 F Supp 892; Capraro v United Parcel Serv., 993 F2d 328; Miller v Norfolk & W. Ry. Co., 834 F2d 556; Lancaster v Norfolk & W. Ry. Co., 773 F2d 807, 480 US 945; McCann v Alaska Airlines, 758 F Supp 559; Balzeit v Southern Pac. Transp. Co., 569 F Supp 986.) III. Resolution of Harris’ slander action does not "require” or "depend upon” an interpretation of the collective bargaining agreement and, therefore, is not preempted. (Angelo v Metro-N. Commuter R. R., 193 AD2d 525; Lingle v Norge Div. of Magic Chef, 486 US 399; Anderson v American Airlines, 2 F3d 590; Davies v American Airlines, 971 F2d 463.)

      Proskauer Rose Goetz & Mendelsohn, New York City (Charles S. Sims and Wendy H. Schwartz of counsel), Richard K. Bernard and C. Sue Barnett for respondent.
    I. The Court below correctly held that the National Railroad Adjustment Board had exclusive jurisdiction of this dispute, so that Harris’ claim was preempted by the Railway Labor Act. (Chicago

      & N. W. Ry. Co. v Transportation Union, 402 US 570; Railroad Trainmen v Terminal Co., 394 US 369; Consolidated Rail Corp. v Railway Labor Executives, 491 US 299; Switchmen’s Union v Board, 320 US 297; Virginian Ry. v Federation, 300 US 515; Angelo v Metro-N. Commuter R. R, 193 AD2d 525; Lorenz v CSX Transp., 980 F2d 263; Magnuson v Burlington N, 576 F2d 1367, 439 US 930; Majors v U. S. Air, 525 F Supp 853; Union Pac. R. R. Co. v Sheehan, 439 US 89.) II. This Court should also affirm the dismissal on the ground that plaintiff failed, as a matter of law, to prove malice. (Liberman v Gelstein, 80 NY2d 429; Toker v Pollack, 44 NY2d 211; Shapiro v Health Ins. Plan, 7 NY2d 56; Stukuls v State of New York, 42 NY2d 272; Garrison v Louisiana, 379 US 64.)
   OPINION OF THE COURT

Titone, J.

On this appeal, we are called upon to determine whether the trial court lacked subject matter jurisdiction over plaintiff’s common-law defamation action because it constituted a "minor dispute” within the exclusive purview of the mandatory grievance-to-adjustment board procedures established by the Federal Railway Labor Act (RLA) (45 USC § 151 et seq.). For the reasons that follow, we conclude that plaintiff’s State law claim is preempted, and her exclusive remedy lies with the arbitration procedures established under the RLA.

Plaintiff Joan Harris was employed by Metro-North Commuter Railroad (Metro-North) as a crew dispatcher and was a member of the Brotherhood of Railway, Airline and Steamship Clerks (BRAC) collective bargaining unit. The terms of plaintiff’s employment were governed by a collective bargaining agreement (CBA) entered into between Metro-North and BRAC. On July 16, 1986, defendant Hirsh, plaintiff’s former supervisor, called plaintiff into his office to discuss her work performance. Plaintiff alleges that during that encounter, and in the presence of plaintiff’s two immediate supervisors who were invited to attend the meeting, defendant Hirsh asked plaintiff whether she had a problem, and then stated to her: "You take drugs. I’ve worked in the Towers, and I know a person who is on drugs and you look like one. I’ve been thinking about sending you for a drug test.” During the meeting, defendant Hirsh also indicated that he was suspicious that plaintiff used drugs because on a prior occasion he had observed her give an "incoherent” answer to a co-worker who had posed a question. Defendant’s remarks were eventually circulated among plaintiffs co-workers.

By letter dated August 7, 1986, plaintiff requested that the BRAG district chair institute an investigation and grant her an "unjust treatment” hearing pursuant to rule 52 of the CBA to determine whether defendant’s conduct during the July 16 meeting violated company policy and procedure. Plaintiff thereafter commenced this slander action in State court, alleging that defendant’s false and defamatory words damaged her reputation and caused her to suffer mental anguish and physical injuries. Defendant Hirsh asserted as affirmative defenses that the court lacked subject matter jurisdiction over the defamation claim because it was preempted by the mandatory arbitration provisions set forth in the RLA, and that defendant’s comments were made in the context of a supervisor-employee interview and were thus subject to a qualified privilege.

At the commencement of trial, defendant moved to dismiss the complaint on the jurisdictional ground. Supreme Court denied the motion. To support plaintiffs claim at trial that defendant knowingly uttered false statements about plaintiffs purported drug use, plaintiff introduced uncontradicted testimony that her two immediate supervisors had previously told defendant, in response to his inquiry, that plaintiff was not on drugs. Plaintiff also introduced three documents as exhibits: the Metro-North substance abuse policy, her August 7, 1986 letter requesting a rule 52 unjust treatment hearing, and a letter written by defendant on February 12, 1987 informing her that her position had been abolished. Thereafter, the jury returned a verdict in favor of plaintiff, finding specifically that defendant (1) committed the intentional tort of slander per se, (2) was entitled to a qualified privilege as her supervisor, (3) abused the qualified privilege he enjoyed, and (4) acted with malice when he defamed her. The jury awarded plaintiff $1.2 million in compensatory and punitive damages. Defendant moved to set aside the verdict, again arguing Federal preemption. The motion was denied.

The Appellate Division reversed the order denying the motion to set aside the verdict and dismissed the complaint. The Court concluded that the trial court lacked subject matter jurisdiction by virtue of Federal preemption. In so holding, the Court determined that the allegations raised in plaintiffs State law complaint must be considered "a 'minor dispute’ within the meaning of the RLA” because the claim "is one growing out of a grievance and 'indisputably arises out of the employment relation between the plaintiff and * * * Metro-North’ ” (196 AD2d 425, 426, quoting Angelo v Metro-N. Commuter R. R., 193 AD2d 525). We now affirm.

Congress enacted the RLA (45 USC §§ 151-163) to stabilize labor-management relations in the rail and air carrier industries and to ensure uniform application of Federal law in the interpretation of labor agreements (Atchison, Topeka & Santa Fe Ry. Co. v Buell, 480 US 557, 562 [1987]). The act establishes a comprehensive scheme for the orderly and prompt resolution of disputes between covered carriers and their employees that could potentially interrupt service and affect the Nation’s commerce (Union Pac. R. R. Co. v Sheehan, 439 US 89, 94 [1978]). To achieve the congressional goal of "keeping railroad labor disputes simple and out of the reach of the often lengthy court process” (Grate v Trans World Airlines, 905 F2d 1307, 1309 [9th Cir], cert denied 498 US 958 [1990]), the RLA gives the National Railroad Adjustment Board, or an adjustment board jointly established by the employer and the representative unions (see, 45 USC § 153 [First] [i]; [Second]) primary and exclusive jurisdiction to resolve what have been termed "minor disputes” between covered carriers and their employees (Elgin, Joliet & E. Ry. Co. v Burley, 325 US 711, 723 [1945]). "Minor disputes,” statutorily defined as all "disputes between an employee * * * and a carrier * * * growing out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions” (45 USC § 153 [First] [i]), are subject to binding and compulsory arbitration under the RLA (45 USC § 153).

All claims that may properly be characterized as "minor disputes” are subject exclusively to the arbitration procedures established by the RLA, even if the disputes could otherwise provide the basis for State tort remedies (Magnuson v Burlington N, 576 F2d 1367 [9th Cir], cert denied 439 US 930 [1978]). Thus, a plaintiff cannot circumvent the RLA’s mandatory dispute resolution provisions by recharacterizing or disguising a minor dispute as one grounded on State common law (Lorenz v CSX Transp., 980 F2d 263, 268 [4th Cir 1993]; Magnuson, 576 F2d 1367, 1369, supra).

To prevent an aggrieved employee from avoiding the mandatory RLA arbitration provisions, the courts have defined preempted "minor disputes” expansively (Consolidated Rail Corp. v Railway Labor Executives, 491 US 299, 307 [1989]). A dispute will clearly be deemed "minor” within the meaning of the RLA when "the terms of an existing agreement either establish or refute the presence of a right to take the disputed action” (id., at 305). However, the fact that a claim is not expressly governed by precise terms of a collective bargaining agreement is not fatal for purposes of RLA preemption. Minor disputes will include not only claims concerning "the meaning or proper application of a particular [CBA] provision,” but also those "founded upon some incident of the employment relation,” although not expressly covered by a contract term (Burley, 325 US 711, 723, supra). A commonly followed restatement of the governing inquiry is that the RLA grievance provisions will preempt State tort actions when the underlying claims are "based on a matrix of facts which are inextricably intertwined with the grievance machinery of the collective bargaining agreement and of the R.L.A.” (Magnuson, 576 F2d 1367, 1369, supra.)

The purpose of defining "minor disputes” broadly is clear: "[i]f the pleading of emotional injury permitted aggrieved employees to avoid the impact of the R.L.A., the congressional purpose of providing a comprehensive federal scheme for the settlement of employer-employee disputes in the railroad industry, without resort to the courts, would be thwarted” (Magnuson, 576 F2d 1367, 1369, supra, cited in Melanson v United Air Lines, 931 F2d 558, 561, n 1, cert denied 502 US —, 112 S Ct 189 [1991]). In other words, an employee should not be permitted to disguise or restate a genuine contract claim in terms of tort or to extract parasitic tort claims from an employment-related grievance to obtain remedies outside of those contemplated by the RLA.

It follows from those principles that a State defamation action — which typically will not be expressly governed by a specific labor contract term — will be preempted if the disputed statements were made in connection with conduct authorized by the governing collective bargaining agreement and concerned matters related to the employment relationship (see, Gay v Affourtit, 1993 WL 438923, 2 [US Dist Ct, SD NY 1993] [libel action preempted where collective bargaining agreement between airline and aircraft crew members must be consulted to determine whether crew had qualified privilege to report misconduct of pilot, even if reports turn out to be false and defamatory]). In other words, where the dispute turns on whether a provision of the collective bargaining agreement created a qualified privilege to discuss certain employment-related matters, and that privilege would serve as the employer’s defense to the suit, the terms of the labor contract are necessarily implicated. In such circumstances, the congressional goal that labor contracts negotiated under Federal law receive uniform interpretation will only be furthered where the arbitration board acts as the final arbiter, and not the courts. The State law claim may survive, however, if "the alleged defamation becomes distanced from the work-place and is only 'peripherally’ concerned with federal labor law” (Lorenz v CSX Transp., 980 F2d 263, 267 [4th Cir 1992], supra; see also Rosemond v National R. R. Passenger Corp., 1986 WL 10711 [US Dist Ct, SD NY 1986]).

Along with a number of courts that have addressed the issue, we conclude that the preemptive effect of the RLA is more pervasive than the preemptive effect of the Labor Management Relations Act, 29 USC § 185 et seq. (LMRA or TaftHartley Act), or the National Labor Relations Act, 29 USC § 151 et seq. (NLRA or Wagner Act) (see, Lorenz v CSX Transp., 980 F2d 263, 268, supra; Melanson v United Air Lines, 931 F2d 558, 562, supra; Grote v Trans World Airlines, 905 F2d 1307, 1309-1310 [9th Cir 1990]; DeTomaso v Pan Am. World Airways, 43 Cal 3d 517, 528, 733 P2d 614 [1987]), two Federal regulatory schemes with a purpose distinct from that of the RLA (see generally, Andrews v Louisville & Nashville R. R. Co., 406 US 320, 323 [1972]). Accordingly, we reject plaintiff’s claim that the test for preemption under section 301 of the LMRA (29 USC § 185) established in Lingle v Norge Div. of Magic Chef (486 US 399 [1988]) — whether "resolution of a state-law claim depends upon the meaning of a collective bargaining agreement” (supra, at 405-406 [emphasis added])— governs this case, and decline to apply the holding of Linn v Plant Guard Workers (383 US 53 [1966]) — that a malicious libel suit is not preempted by the NLRA — to this case.

We also reject, as a creative attempt " 'to evade the mandatory arbitration provisions of the [RLA]’ ” any suggestion that the preemptive effect of the RLA does not apply to suits, such as this one, brought by an employee against a coworker in an individual capacity (Henegar v Banta, 817 F Supp 668, 672 [ND Ohio 1993], quoting Gray v Chessie Sys., 588 F Supp 1334, 1337 [D Md 1984]; see also, Gay v Affourtit, 1993 WL 438923, 3 [US Dist Ct, SD NY 1993], supra; Gonzalez v Northwest Airlines, 201 NJ Super 422, 427-428, 493 A2d 547). The claimed distinction between suits brought against the carrier and those brought against an employee individually ignores the explicit language of the RLA which provides that "any disputes” (45 USC § 153 [First] [j] [emphasis added]) "concerning rates of pay, rules, or working conditions” are to be promptly settled by the established arbitration procedures (45 USC § 153 [First] [i]). It also ignores the RLA’s legislative history, which indicates that Congress "intended to protect the public from the injuries and losses consequent upon any impairment or interruption of interstate commerce through failure of managers and employees to settle peaceably their controversies” (HR Rep No. 328, 69th Cong, 1st Sess 1 [emphasis added]).

Applying the aforementioned principles, we conclude that plaintiffs slander action is preempted and the trial court lacked subject matter jurisdiction to entertain it. The substance of plaintiffs claim is that defendant falsely accused her of drug use during the July 16 meeting and failed to comply with the negotiated policies and procedures governing such inquiries. At the time of the alleged slander, plaintiff was being interviewed regarding her work performance and her possible violation of the substance abuse policy. Thus, the alleged tortious conduct was "inextricably intertwined” with a work-related investigation that defendant Hirsh was authorized to undertake by the terms of the CBA (see, Magnuson, 576 F2d 1367, 1369, supra). Accordingly, the defamation action is a preempted "minor dispute” (see, Lorenz, 980 F2d, at 268, supra; Magnuson, 576 F2d 1367, supra; cf., Rosemond v National R. R. Passenger Corp., 1986 WL 10711 [SD NY 1986], supra).

The State action against defendant "in essence and substance” concerned the application or interpretation of company rules embodied in Metro-North’s CBA (see, Carson v Southern Ry. Co., 494 F Supp 1104, 1110 [D SC 1979]). Adjudication of plaintiff’s State tort claim would have been impossible without reference to conduct governed by the collective bargaining agreement since, in rendering its verdict, the jury here was required to specifically determine whether defendant’s conduct was qualifiedly privileged under the labor contract and whether he exceeded the scope of that privilege (see, Choate v Louisville & Nashville R. R. Co., 715 F2d 369, 372 [7th Cir 1983]). In finding that defendant did not have the authority under the collective bargaining agreement to engage in the exchange with plaintiff in the manner that he did, the jury had to second-guess whether defendant Hirsh conducted the investigation of plaintiff within the dictates of the labor agreement. In so doing, the jury necessarily trespassed upon the exclusive authority of the adjustment board to determine the manner in which an employer may enforce company policies.

The risk to be avoided by the provisions for the board’s exclusive jurisdiction — that a State court ruling may be inconsistent with a Federal adjustment board determination on the same employment issue — is present here. Notably, plaintiff claimed at trial that defendant Hirsh knew that his statements were false — and thus were maliciously uttered — because plaintiff’s two immediate supervisors previously told defendant that plaintiff did not use drugs. However, the terms of the Metro-North substance abuse policy authorize a supervisor to proceed with an employee substance abuse investigation by relying "solely on evidence of behavior, personal observations, or other evidence customarily relied upon in investigations or hearings.” Thus, plaintiff’s theory that defendant’s reliance upon his own observations here constituted malice could well be seen as unsustainable in light of the terms of the agreement which permit such conduct.

The trial record also supports defendant’s contention that plaintiff’s tort action constituted a preempted "disguised” contract claim. As additional proof of defendant’s malice, plaintiff introduced, over objection, a letter written to her by defendant some six months after the July 16 meeting notifying her that her position had been abolished. Plaintiff’s reliance upon this document at trial suggests that through the "disguised” State tort defamation action, plaintiff interjected into the litigation the claim that she was "unjustly treated” and. ultimately "forced out” of her position — matters entrusted to the sole jurisdiction of the adjustment board under the RLA (see, Carson v Southern Ry. Co., 494 F Supp 1104, 1112, supra).

Finally, the contention that preemption of State tort claims by the RLA penalizes railway workers for being governed by a collective bargaining agreement lacks merit. The grievance-to-arbitration procedures made available to employees governed by the RLA provide a valuable benefit, albeit different from the relief that may be obtained through judicial intervention: a ready forum to promptly resolve employment-related disputes and redress grievances without any cost of litigation to the employee (see, Union Pac. R. R. Co. v Sheehan, 439 US 89, 94, supra). In any event, the determinative inquiry is not whether an employee could obtain more favorable relief in State court, but whether the dispute is "minor” within the meaning of the RLA and the grievance procedure established by the RLA is intended by Congress to be the plaintiff’s exclusive remedy, as it is here (see, Magnuson, 576 F2d, at 1369-1370, supra; United Airlines v Superior Ct., 234 Cal App 3d 1085, 1091, 286 Cal Rptr 159 [1991]).

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

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

Order affirmed, with costs.

      . Rule 52, entitled "Unjust Treatment,” provides: "An employee who considers himself[/herself| unjustly treated except for discipline matters shall have the * * * right of investigation, hearing on appeal and representation * * * if written request which sets forth the employee’s complaint is made to his[/her] supervising officer within thirty (30) calendar days of cause of complaint.”

      . Although plaintiff was granted that hearing on administrative appeal, it has been postponed pending the conclusion of this action.

      . By contrast, "major disputes” involve claims arising from the negotiation or formation of the collective bargaining agreement itself, and are not subject to the grievance-to-arbitration dispute resolution procedures (see, Burley, 325 US 711, 723, supra).


text:
    [632 NE2d 1270, 610 NYS2d 947]
    The People of the State of New York, Respondent, v Anthony Fratta, Appellant.
    Argued January 11, 1994;
    decided February 10, 1994

      APPEARANCES OF COUNSEL

      Edward J. Nowak, Public Defender of Monroe County, Rochester (Janet C. Somes of counsel), for appellant.

      Howard R. Relin, District Attorney of Monroe County, Rochester (Mark W. Pedersen of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant alleges that, relying on the court reporter’s certification that the transcript of each day’s proceedings was a complete record of the machine shorthand notes, appellate counsel neglected to include in the filed brief a Batson issue that had been preserved in the voir dire minutes (see, Batson v Kentucky, 476 US 79). Apparently, as a matter of practice, voir dire minutes were not included as part of trial transcripts. Just after this Court’s decision in People v Antommarchi (80 NY2d 247), appellate counsel obtained permission to file supplemental briefs in this case and several other appeals pending in the Fourth Department in order to raise possible Antommarchi issues. After People v Mitchell (80 NY2d 519), however, the Appellate Division denied defendant leave to file a supplemental brief, and reviewed and affirmed his conviction on the previously filed brief.

While defendant suggests a deprivation of due process and denial of equal protection, we conclude there was no error here, and that the Appellate Division acted within the proper exercise of its discretion to control its own calendar. The Batson issue could have been discovered and included in defendant’s original brief. Nor did defendant’s indigence affect his access to a complete transcript, as the minutes were transcribed upon his request.

Defendant’s remaining contentions are similarly without merit. Even if ethnic groups are cognizable under Batson, an issue we need not reach, defendant failed to establish a prima facie case. Moreover, we cannot agree that defendant was deprived of his constitutional right to testify on his own behalf because he personally did not waive that right on the record.

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

Order affirmed in a memorandum.


text:
    [633 NE2d 479, 611 NYS2d 125]
    In the Matter of American Communications Technology, Inc., et al., Petitioners, and David Meyers et al., Appellants, v State of New York Tax Appeals Tribunal et al., Respondents.
    Argued January 12, 1994;
    decided February 10, 1994

      APPEARANCES OF COUNSEL

      Scher & Scher, P. C., Great Neck (Robert A. Scher and Daniel J. Scher of counsel), for appellants.

      G. Oliver Koppell, Attorney-General, Albany (Nancy A. Spiegel, Jerry Boone and Peter H. Schiff of counsel), for James W. Wetzler, respondent.
   OPINION OF THE COURT

Judgment affirmed, with costs, for the reasons stated in the opinion by Justice A. Franklin Mahoney at the Appellate Division (185 AD2d 79).

Concur: Chief Judge Kaye and Judges Simons, Bellacosa, Smith and Ciparick. Taking no part: Judges Titone and Levine.


text:
    [633 NE2d 479, 611 NYS2d 125]
    The People of the State of New York, Appellant, v Michael Bayusik, Respondent.
    Argued January 12, 1994;
    decided February 10, 1994

      APPEARANCES OF COUNSEL

      Howard R. Relin, District Attorney of Monroe County, Rochester (Mark W. Pedersen of counsel), for appellant.

      Melvin Bressler, Rochester, for respondent.
   OPINION OF THE COURT

Order affirmed for the reasons stated in the memorandum of the Appellate Division (192 AD2d 1073).

Concur: Chief Judge Kaye and Judges Simons, Bellacosa, Smith, Levine and Ciparick. Taking no part: Judge Titone.


text:
    In the Matter of Lorna S. McBarnette, as Acting Commissioner of Health of the State of New York, Appellant, v Thomas Sobol, as Commissioner of Education of the State of New York, et al., Respondents.
    Submitted January 31, 1994;
    decided February 10, 1994
   Judges Titone and Levine taking no part.


text:
    [632 NE2d 1271, 610 NYS2d 948]
    In the Matter of 43rd Street Second Avenue Corp., on Behalf of Itself and All Others Similarly Situated, Appellant, v City of New York et al., Respondents.
    Argued January 6, 1994;
    decided February 15, 1994

      APPEARANCES OF COUNSEL

      Seiden, Stempel & Bennett, New York City (Richard L. Claman and Jay G. Seiden of counsel), for appellant.

      Paul A. Crotty, Corporation Counsel of New York City (Regina Feder, Edith I. Spivack and Joseph I. Lauer of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

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

We find no abuse of discretion in the Appellate Division’s determination that class certification is unwarranted in this case.

Additionally, judicial mandamus is unavailable to petitioner-appellant to grant retroactive relief for tax years 1990-1991 and 1991-1992 concerning a tax benefit under Real Property Tax Law § 421-a (2). The calculation of the tax benefit and the manner in which it was applied were the subject of two different tax formulas at the times in question and the City elected to choose the formula devised by the City Finance Department. Although the formula was subsequently declared invalid in judicial proceedings, we find no basis to override the City’s judgment under these circumstances and Supreme Court and the Appellate Division did not err in denying mandamus relief under CPLR article 78 (see, Klostermann v Cuomo, 61 NY2d 525).

Notably, too, the underlying tax exemption question has no import beyond this case because the New York City Department of Finance has changed its calculation method.

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

Order affirmed, with costs, in a memorandum.


text:
    James Druiett et al., Appellants, v Fred Brenner, Respondent, and Saf-Tee Plumbing Corporation, Third-Party Respondent.
    Submitted January 3, 1994;
    decided February 15, 1994
   Judge Titone taking no part.


text:
    East Thirteenth Street Community Association et al., Appellants, v New York State Urban Development Corporation, Respondent.
    Submitted December 13, 1993;
    decided February 15, 1994
   Judges Simons and Titone taking into part.


text:
    Frank Pavia, Respondent, et al., Plaintiffs, v State Farm Automobile Insurance Company, Appellant.
    Submitted January 3, 1994;
    decided February 15, 1994
   Judge Titone taking no part.


text:
    The People of the State of New York, Respondent, v Socrates de Leon, Appellant.
    Submitted January 3, 1994;
    decided February 15, 1994
   Judge Titone taking no part.


text:
    [633 NE2d 481, 611 NYS2d 126]
    In the Matter of David B. Heburn.
    Decided February 17, 1994
   OPINION OF THE COURT

On the Court’s own motion, it is determined that Honorable David B. Heburn is suspended with pay, effective immediately, from his office of Justice of the Remsen Town and Village Courts, Oneida County, pending disposition of his request for review of a determination by the State Commission on Judicial Conduct.

Concur: Chief Judge Kaye and Judges Simons, Bellacosa, Smith and Levine. Taking no part: Judges Titone and Ciparick.