author: Meyer, J. Chief Judge Wachtler

text:
    The People of the State of New York, Respondent, v Edward Mertz, Appellant.
    Argued May 30, 1986;
    decided July 3, 1986

      POINTS OF COUNSEL

      Victor Knapp for appellant.
    I. The trial court improperly construed Vehicle and Traffic Law § 1192 (2). (People v Jones, 77 Misc 2d 33; People v Smith, 81 Misc 2d 61; People v LaMontagne, 91 Misc 2d 263; People v LaPlante, 81 Misc 2d 34; People v Shakun, 251 NY 107; People v Strauss, 260 App Div 880; People v Harrison, 71 Misc 2d 782; People v Burton, 47 Misc 2d 1077.) II. The trial court improperly admitted the breathalyzer test results. (People v Gower, 42 NY2d 117; People v Donaldson, 36 AD2d 37; People v Farrell, 58 NY2d 637; People v Meikrantz, 77 Misc 2d 892; People v Drumm, 122 Misc 2d 1051; People v Todd, 38 NY2d 755.) III. The trial court erred by failing to inform the jury that the statutory presumption of regularity in conducting the breathalyzer test by a licensed technician was permissive and not mandatory. (Ulster County Ct. v Allen, 442 US 140; Sandstrom v Montana, 442 US 510; People v Williams, 95 AD2d 866; People v Bradley, 99 AD2d 513; People v Crimmins, 36 NY2d 230.) IV. The trial court improperly marshaled the evidence in its charge to the jury. (People v Williamson, 40 NY2d 1073; People v De Jesus, 42 NY2d 519; People v Bell, 38 NY2d 116.) V. The trial court improperly curtailed the defense during cross-examination and in summation. (People v Kennedy, 70 AD2d 181.)

      Denis Dillon, District Attorney (Gary H Nurkin and Anthony J. Gírese of counsel), for respondent.
    I. Defendant was not deprived of his right to a fair trial. (People v Schmidt, 124 Misc 2d 102; People v Darbouze, 122 Misc 2d 654; People v Rhodes, 121 Misc 2d 701; People v Molina, 121 Misc 2d 483, 128 Misc 2d 638; People v Cruz, 48 NY2d 419, 446 US 901; People v Perez, 73 AD2d 677.) II. The breathalyzer test results were properly admitted into evidence. (People v Gower, 42 NY2d 117; People v Farrell, 58 NY2d 637; People v Hayes, 98 AD2d 824; People v Freeland, 118 Misc 2d 486; People v Drumm, 122 Misc 2d 1051; People v Zigles, 116 AD2d 610.) III. The claim of an improper charge on the statutory presumption of Vehicle and Traffic Law § 1194 has not been preserved and any errors committed were harmless. (People v Whalen, 59 NY2d 273; People v McKenzie, 67 NY2d 695; People v Ippolito, 100 AD2d 734; People v Mitchell, 58 NY2d 368; Connecticut v Johnson, 460 US 73.) IV. The trial court did not improperly marshal the evidence in its charge to the jury. (People v McPherson, 61 NY2d 945; People v Yukl, 25 NY2d 585; People v Lopez, 95 AD2d 241; Hoffa v United States, 385 US 293; People v Spink, 97 AD2d 963; People v Peter O., 114 Misc 2d 559; People v Hummel, 81 Misc 2d 280; People v Gilmore, 66 NY2d 863; People v Johnson, 57 NY2d 969; People v Crimmins, 36 NY2d 230.) V. The trial court properly curtailed the defense with respect to irrelevant issues raised during cross-examination and in summation. (People v Gilmore, 66 NY2d 863; People v Crimmins, 36 NY2d 230; People v Farmer, 36 NY2d 386; People v Evans, 75 Misc 2d 726, 79 Misc 2d 130.)
   OPINION OF THE COURT

Meyer, J.

A violation of Vehicle and Traffic Law § 1192 (2) is not established unless the trier of fact finds that while operating a motor vehicle defendant had a blood alcohol content (BAG) of .10 of 1% or more. Evidence that a breathalyzer test administered within two hours of arrest showed defendant to have such a BAG is sufficient to establish prima facie a violation of the subdivision. It is, however, error not to permit defendant’s attorney to argue on the basis of evidence, whether through cross-examination of the People’s witnesses or testimony of defendant’s witnesses, expert or other, from which it could be found that defendant’s BAG at the time of vehicle operation was less than .10%, that if the jury so found defendant was not guilty of violating the subdivision. It is error also to charge that evidence that the individual administering the test possesses a permit from the Department of Health creates a rebuttable presumption that the breathalyzer examination was properly given, and to receive in evidence the logs for the breathalyzer, simulator and ampoule on the basis of foundation testimony which did not establish that it was the regular course of business to make the records contained in those logs at the time of the tests recorded in them or within a reasonable time thereafter (CPLR 4518 [a]). For all of those reasons, the order of the Appellate Term should be reversed and a new trial ordered.

I

Shortly before 1:28 a.m. on April 19, 1983, defendant’s automobile ran off the roadway of Bayville Avenue and partially through a fieldstone wall some 10 to 15 feet from the road. Officer Sprague, who responded to the radio run concerning the accident, found defendant behind the wheel, the windshield of the automobile cracked and defendant bleeding from lacerations of his face and nose. Asked what happened, defendant responded that he was not sure, that he remembered only driving along Bayville Avenue, but nothing after that. The officer noted that defendant had some trouble speaking and that as he exited the vehicle to enter the ambulance that had been called he staggered, that his eyes were bloodshot and that there was an odor of alcohol on his breath.

The officer, who had made a mental note to arrest defendant for driving while intoxicated, arrived between 1:55 and 2:00 a.m. at the hospital to which defendant had been taken. He could not administer physical coordination tests because defendant was being treated for his injuries, but he placed defendant under arrest and then called the Highway Patrol Bureau for a breathalyzer technician. Officer Needleman, responding to the call, arrived at the hospital at 2:37. Defendant was given the required warnings concerning submission to a breathalyzer examination and consented to do so, signing the required authorization form. Needleman also noticed that defendant was slurring words and that there was an odor of alcohol on his breath. Having determined that the breathalyzer was correctly set up and was functioning properly, Needleman had defendant blow into the instrument twice. The first sample, taken at 3:25 a.m., yielded a .15 reading. The second, taken at 3:35 a.m., after the instrument had been purged, recorded a reading of .16. On the basis of those readings defendant was charged with a violation of Vehicle and Traffic Law § 1192 (2). The maintenance, simulator and ampoule logs for the breathalyzer were admitted in evidence on the basis of Needleman’s testimony that they were made in the normal course of business and that it was the normal course of business to keep them, but over defendant’s objection that the People had to show "that the entries are made on [sic] or about the time that the events occurred”, which the Trial Judge overruled. Each log also bore the certification that it was a true copy of the report made by the breathalyzer technician of the Nassau County Police Department.

Needleman testified that both tests were performed under identical circumstances and explained the difference between the two readings as occurring because not a deep enough sample was obtained at the two different times or because one sample was longer than the other. Through Dr. Jay Zimmerman, associate professor of physiology at St. John’s University, however, defendant presented evidence that alcohol is absorbed into the blood predominantly (90%) through the small intestine and that the time for absorption varies, depending on the presence of food, the type of alcohol, the type of mixer, the physical state of the individual and the presence of stress or trauma, from 15 to 40 minutes on the one hand to two to three hours on the other. Mixers and the presence of food, he explained, would delay the rate of absorption, fats being digested much more slowly, carbohydrates and proteins more rapidly. He further identified the food (a bacon cheeseburger with french fries), which defendant had testified he had eaten at about 12:30 A.M., as consisting of protein and carbohydrates but to a large extent fat, the presence of which "dramatically delays the absorption of alcohol”, and stated that it was possible that defendant’s blood alcohol would be on the increase two to three hours after such a meal and that there was no way to predict from the .15 and .16 readings testified to by Needleman whether defendant’s BAG was greater than .10 two hours earlier.

Notwithstanding Dr. Zimmerman’s testimony, when defendant’s attorney during summation began to argue that it was fair to infer from the fact that defendant’s BAG was rising at 3:35 that at the earlier time when he was driving it was much lower, the Trial Judge responded to the prosecutor’s objection by stating in the presence of the jury that the only question for the jury was whether the sample was taken within two hours of arrest and showed a BAG in excess of .10, that "[t]heir concern would be what was the reading at 3:25 and 3:35, that’s all.” His charge to the jury, however, was that to find defendant guilty of violating Vehicle and Traffic Law § 1192 (2) they had to find that "defendant operated a motor vehicle at the time and place in question and that at the time he had .10 of one percent or more by weight of alcohol in his blood” as shown by chemical analysis. And with respect to the analysis he charged that under Vehicle and Traffic Law § 1194 (9) the fact that it was made by a person possessing a permit issued by the Department of Health was presumptive evidence that the examination was properly given but that "presumptions may be rebutted or overcome by other evidence tending to disprove the presumption.” Defendant’s attorney excepted to both portions of the charge: as to the first because he had been prevented from so arguing in summation to the jury and because the charge would be misleading to the jury; as to the second because the statutory presumption was permissive in nature and the defense did not have the burden of rebutting it.

The jury found defendant guilty of violating Vehicle and Traffic Law § 1192 (2). On appeal by defendant from the judgment entered on that verdict, the Appellate Term affirmed in a memorandum which discussed only the scope of the subdivision. As to that it noted that "[t]he gravamen of the crime is the operation of a motor vehicle after ingestion of sufficient alcohol to produce the reading condemned by the statute within two hours of arrest”. The appeal is before us by leave of a Judge of this court (66 NY2d 765). We conclude (1) that defendant was improperly denied the opportunity of arguing to the jury that his BAG at the time of operation was less than .10, (2) that the breathalyzer logs were admitted without proper foundation and (3) that the charge with respect to Vehicle and Traffic Law § 1194 (9), because it may have been construed by the jury to impose upon defendant the burden of rebuttal, was improper. We therefore reverse.

II

Vehicle and Traffic Law § 1192 (2) provides that "[n]o person shall operate a motor vehicle while he has .10 of one per centum or more by weight of alcohol in his blood as shown by chemical analysis of his blood, breath, urine or saliva, made pursuant to the provisions of section eleven hundred ninety-four of this chapter.” The legislative history of the subdivision is traced in People v Schmidt (124 Misc 2d 102) and need not be repeated in detail here. It is sufficient for purposes of the present case to note that whereas prior versions of the section were phrased in terms of the prima facie effect of various BAG levels, the present subdivision, enacted by New York and, in varying versions, by some 28 other jurisdictions under congressional impetus, does not contain similar language. Some confusion has resulted from the fact that although section 1192 (2) proscribes operation while the driver has a BAG of .10 or more, Vehicle and Traffic Law § 1194 (1) permits the chemical test to be made "within two hours after such person has been placed under arrest for any such violation,” for, as Dr. Zimmerman’s testimony indicates and as other cases and commentators have noted, while blood alcohol content declines over time, the decline does not begin until sometime after the last drink, variously estimated as from 45 minutes to an hour and a half (Fuenning v Superior Ct., 139 Ariz 590, 680 P2d 121; State v Sutliff, 97 Idaho 523, 547 P2d 1128; People v Kappas, 120 Ill App 3d 123, 458 NE2d 140; State v Gallant, 108 NH 72, 227 A2d 597; Commonwealth v Hartman, 383 Pa 461, 119 A2d 211; 1 Erwin, Defense of Drunk Driving Cases § 15.03 [3d ed]; Brent & Stiller, Handling Drunk Driving Cases § 2.4; McCormick, Evidence § 205, at 615 [3d ed]; Fitzgerald & Hume, Single Chemical Test for Intoxication: A Challenge to Admissibility, 66 Mass L Rev 23; Hume & Fitzgerald, Chemical Tests For Intoxication: What Do The Numbers Really Mean?, 57 Analytical Chemistry 876A). A test reading taken within two hours after arrest may, therefore, be higher or lower than the actual BAG while driving.

Predicated on that fact, defendant argued before the trial court that it was the State’s obligation in order to make a prima facie case to relate the .10 BAG back to the time of operation. Before us, however, he contends only that the Trial Judge erred in refusing to allow him to argue to the jury that in fact defendant’s BAG at the time of operation was less than .10. The cases in which the question has been considered so far in New York have not been consistent in their holdings. People v Ippolito (100 AD2d 734) approved defendant’s being permitted to "present expert testimony that the breathalyzer test was not accurate”, both Ippolito and People v Molina (128 Misc 2d 638 [App Term]) recognized that breathalyzer results constitute strong but not conclusive evidence of guilt, and the holding in People v Zigles (116 AD2d 610, lv denied 67 NY2d 767) implies as much. On the other hand, the Appellate Term in the present case and in People v LaMontagne (91 Misc 2d 263), reading the subdivision expansively, as though it prohibited operation not while the driver has a .10 BAG, but when the driver has ingested sufficient alcohol to produce a .10 BAG within two hours thereafter, has ignored the scientifically accepted, fact that a .10 reading within two hours after operation does not establish a .10 reading while operating and, in effect, has rewritten the statute. And the Criminal Court of the City of New York in People v Darbouze (122 Misc 2d 654) held a BAG reading of .10 "per se evidence of guilt” (122 Misc 2d, at p 655) and in People v Schmidt (supra), characterized the subdivision as "a .10 per se liability standard” (124 Misc 2d, at p 108) and a ".10 absolute liability provision” (id., at p 112), pointing out that charts are readily available which indicate, with a reasonable degree of certainty, the number of alcoholic beverages necessary for a particular individual to reach a BAG of .10 (id., at p 113), but somewhat inconsistently held that "what is required is that the People prove, by objective, scientific criteria that at the time defendant was driving, his BAG was .10%” (id., at p 108).

When one turns to out-of-State cases, care must be taken to distinguish the language of the relevant statutes. Thus Burg v Municipal Ct. (35 Cal 3d 257, 673 P2d 732, cert denied and appeal dismissed 466 US 967) and Fuenning v Superior Ct. (139 Ariz 590, 680 P2d 121, supra) both involved statutes simply making it unlawful to drive while there is .10% or more by weight of alcohol in the driver’s blood. Erickson v Municipality of Anchorage (662 P2d 963 [Alaska]); Lovell v State (283 Ark 425, 678 SW2d 318); Coxe v State (281 A2d 606 [Del]); and State v Franco (96 Wn 2d 816, 639 P2d 1320) concerned statutes, like Vehicle and Traffic Law § 1192 (2), making it unlawful to drive with a .10 BAG "as shown by” or "as determined by” a chemical test within a specified time, while State v Tanner (15 Ohio St 3d 1, 472 NE2d 689) and State v Ulrich (17 Ohio App 3d 182, 478 NE2d 812) dealt with a statute the first subdivision of which was phrased like the California and Arizona statutes referred to above, but the second subdivision of which provided that "the court may admit evidence [as to the BAG] at the time of the alleged violation as shown by chemical analysis of the defendant’s * * * breath * * * withdrawn within two hours of the time of such alleged violation” (emphasis supplied).

Both Burg and Fuenning recognized the per se nature of the offense but held that conviction required the jury to find that defendant’s BAG at the time of driving was .10% or more and recognized defendant’s right to challenge whether the test result accurately measured defendant’s BAG at the time of operation. Coxe v State (supra) interpreted the "as shown by” type of statute to require the State to prove "only that the defendant was in physical control of the vehicle, and that a proper and timely test showed the required percentage of alcohol concentrated in the defendant’s system” (281 A2d, at p 607), but did not consider whether the test result could be rebutted by defendant, and State v Ulrich (supra) held the evidentiary subdivision authorizing admission of the test result to be a legislative determination relating the test result back to the time of driving but likewise had no reason to consider whether it was conclusive.

Lovell (accord, Long v State, 284 Ark 21, 680 SW2d 686) held it a per se violation to drive with a BAG of .10 but that its "as determined by” language did not lessen the State’s burden of proof that defendant was driving with a .10 BAG. Erickson held that the breathalyzer result alone established a prima facie case as to defendant’s BAG while she was driving but construed the "as determined by” language of the Alaskan statute to be intended to establish a presumption that a breathalyzer test conducted within four hours of driving will result in a reading equal to or less than the actual BAG while driving and noted that even if the accused offered no rebutting evidence the court should instruct the jury in terms of permissive inferences that it may but is not bound to infer defendant’s BAG while driving from his or her BAG at test.

The Ohio courts, in Tanner and Ulrich, held that their statute did not create a presumption but rather defined the conduct prohibited, but held that defendant could challenge his specific test result and that the jury should consider not only that result but all other relevant evidence in determining whether the State had shown beyond a reasonable doubt that defendant had committed a violation. And in Franco, the Washington Supreme Court, agreeing that its statute did not establish a presumption, answered defendant’s contention that by being required to give a blood sample he was being forced to testify against himself, by holding, in reliance on Schmerher v California (384 US 757) and similar cases, that giving a blood sample is not testimonial in nature. It then went on to state, however, that: "The defense has the same opportunity to attack that reading as they always have had under the prior presumptions. The defense is entitled to an expert witness instruction which was offered in this case by Franco and refused by the court, in error. Additional expert testimony, while available to the defendant, is not the only method of impeaching the reading on the Breathalyzer. The State’s expert testimony may be controverted by the defendant testifying about the number of drinks he consumed and the effects of the alcohol upon him, he may call lay witnesses to testify as to those same factors, he may argue that the machine must be in error because of the slight effect the alcohol had upon him. It is simply not the case that the giving of the breath sample proves the crime.” (96 Wn 2d, at pp 828-829, 639 P2d, at pp 1326-1327, nn omitted.)

Clearly the above cases cannot all be reconciled but they suggest the difficulty arising from the absolutist construction given the statute by the Appellate Term. In our view it must be construed bearing in mind that statutes are to be construed so as to avoid doubt as to their constitutionality (McKinney’s Cons Laws of NY, Book 1, Statutes § 150 [c]). What the statute proscribes is operation of a motor vehicle "while [the operator] has .10 of one per centum or more by weight of alcohol in his blood”. As Dr. Zimmerman’s testimony established and as held in People v Ippolito and People v Molina (supra), and the out-of-State cases cited above, the BAG count shown within two hours after arrest is strong but not conclusive evidence of the BAG during operation. To foreclose a defendant’s introduction of evidence seeking to establish that his BAG while operating was less than .10 may raise doubt as to constitutionality (see, Ulster County Ct. v Allen, 442 US 140) and, as already noted, to construe it as has the Appellate Term is essentially to rewrite the statute. We conclude, therefore, that proof of a breathalyzer reading of .10 or more within two hours after arrest establishes prima facie a violation of Vehicle and Traffic Law § 1192 (2) which, together with evidence of one or more of defendant’s deportment, speech, stability and the odor of his or her breath, is sufficient to sustain a conviction, absent evidence, expert or other and by whichever party produced, from which the trier of fact could conclude that defendant’s BAG at the time of vehicle operation was less than .10. When, however, as here, such evidence has been presented, defendant must be permitted to argue its significance to the jury. Because he was foreclosed from doing so and because the court’s ruling during defendant’s attorney’s sum-motion and its instructions at the close of the case were in conflict on this issue, there must be a reversal.

Ill

Admission of the breathalyzer logs over objection that it had not been shown that the entries were made at the time of the acts recorded in them or within a reasonable time thereafter was also error. CPLR 4518 (a) expressly requires such foundation evidence. People v Farrell (58 NY2d 637) cannot be deemed to have sanctioned admission of records not shown to have been made at or within a reasonable time after the event, for the memorandum decision makes no mention of the point, which apparently was not argued. The statement in the Farrell memorandum that (at p 639) "the records list the date the analyses were performed” concerned the completeness of the documents as business records, not that the entries were contemporaneously made; the date of analysis would be stated even if the entry had been made long after the event it recorded.

Nor can we accept the People’s argument that the certificates were nevertheless properly admitted because each bore the certification set forth in footnote 1 above. As was held in Liberto v Worcester Mut. Ins. Co. (87 AD2d 477, appeal dismissed 57 NY2d 955, lv denied 58 NY2d 824), and as is made clear by the Eighth Annual Report of the Judicial Conference to the Legislature on the CPLR (1970), on the basis of which subdivision (c) was added to CPLR 4518, admissibility under the latter subdivision is governed by the same standards as the general business record exception in subdivision (a). Thus, a certificate made under CPLR 4518 (c) which does not set forth that the entries in the certified record were made at the time of the events they record or within a reasonable time thereafter is not admissible under that subdivision.

The People argue also that the certificates together with Officer Needleman’s testimony that the instrument was functioning properly was sufficient foundation for admission of the test results. We disagree for the reasons set forth in People v Freeland (68 NY2d 699 [decided herewith]) and because, as Officer Needleman himself testified, testing is done by certified mechanics while a breathalyzer technician such as Needleman is trained how to operate the instrument, not in testing and repairing it. While the scientific reliability of breathalyzers in general is no longer open to question (People v Gower; 42 NY2d 117; People v Donaldson, 36 AD2d 37), there must still be either proper foundation testimony under CPLR 4518 (a) or a proper CPLR 4518 (c) certificate to establish that the particular instrument used to test a defendant’s BAG and the ampoules used with it had been tested within a reasonable period in relation to defendant’s test and found to be properly calibrated and in working order (People v Freeland, supra; People v Todd, 38 NY2d 755).

IV

Vehicle and Traffic Law § 1194 (9) provides that proof that the chemical analysis was made by an individual possessing a permit issued by the Department of Health is "presumptive evidence” that the examination was properly given. Presumptive evidence, is, however, like the prima facie evidence to which CPLR 4518 (c) refers, evidence which permits but does not require the trier of fact to find in accordance with the "presumed” fact, even though no contradictory evidence has been presented (Matter of Commissioner of Social Servs. [Patricia A.] v Philip De G., 59 NY2d 137, 140). It is, in short, not a presumption which must be rebutted but rather an inference, like the inference of negligence denominated res ipso loquitur (see, George Foltis, Inc. v City of New York, 287 NY 108; Richardson, Evidence § 56 [Prince 10th ed]).

Because the jury may have understood from the charge as given that they were required to accept Needleman’s tests as properly given in the absence of testimony that they were not, the effect of the instruction was to shift the burden of proof to defendant (Ulster County Ct. v Allen, 442 US 140, supra; see, Sandstrom v Montana, 442 US 510; People v Guilford, 20 AD2d 192). It was, therefore, reversible error.

Accordingly, the order of the Appellate Term should be reversed and a new trial ordered.

Chief Judge Wachtler

(concurring). In reversing the defendant’s conviction, the majority holds that in a prosecution under Vehicle and Traffic Law § 1192 (2) the results of a breathalyzer test taken pursuant to Vehicle and Traffic Law § 1194 (1) may be attacked as not accurately reflecting the defendant’s blood alcohol content at the time of his operation of a vehicle. In so doing, it ignores the clear language of the subdivision, which provides: "No person shall operate a motor vehicle while he has .10 of one per centum or more by weight of alcohol in his blood as shown by chemical analysis of his blood, breath, urine or saliva, made pursuant to the provisions of section eleven hundred ninety-four of this chapter.”

Section 1194 (1), in turn, provides for the administration of the breathalyzer test up to two hours after an arrest upon probable cause.

Thus, the gravamen of a violation of Vehicle and Traffic Law § 1192 (2) is not that a defendant operates a vehicle with .10% or higher blood alcohol content, but that he is found to have done so under the procedures prescribed by section 1194.

Although I concur in the ultimate result reached on the ground stated in part III of the majority opinion, I believe that in cases where the breathalyzer results are properly admitted, are believed by the jury, and establish a blood alcohol level of .10% or above, the statutory elements of the crime have been made out and the defendant’s criminal responsibility conclusively established. The court having now construed the statute to permit the defendant to rebut what I believe was intended under such circumstances to be absolute liability, the Legislature should now redraft Vehicle and Traffic Law § 1192 (2) to make clear its contrary intent. If it does not, each drunk driving prosecution will be hampered by attempts to prove, as was done in this case through expert and other testimony, that the defendant’s blood alcohol content rose between the time he operated his vehicle and the time he was subjected to the breathalyzer test.

Judges Simons, Kaye, Alexander, Titone and Hancock, Jr., concur with Judge Meyer; Chief Judge Wachtler concurs in result in a separate concurring opinion.

Order reversed, etc.

      . The certificates each read: "In accordance with Section 4518 of the C.P.L.R, I hereby certify that I am a designated clerk with the Nassau County Police Department and that this is a true copy of a report made by a breathalyzer technician of the Nassau County Police Department. Dated: October 27,1983.”

      . 23 USC § 408 (e) (1) (C) makes enactment of a .10% BAG law mandatory for States wishing to obtain Federal funds to support their alcohol traffic safety programs.

      . Only one State has so held (State v Rollins, 141 Vt 105, 444 AD2d 884; see also, State v Dumont, — Vt —, 499 A2d 787). Dictum to like effect will be found in People v LaPlante (81 Misc 2d 34) and People v Jones (77 Misc 2d 33). Under an early version of the statute it was held that "intoxication and operation must be simultaneous or there is no crime” (People v Strauss, 260 App Div 880, 881).

      . Such a chart is reproduced in State v Tanner (15 Ohio St 3d 1, 4, 472 NE2d 689, 692; but see, Hume & Fitzgerald, Chemical Tests For Intoxication: What Do The Numbers Really Mean?, 57 Analytical Chemistry, at 878A).

      . The People argue that defendant’s evidence was before the jury and was rejected by it, but it is simply impossible to know whether they found defendant guilty on the basis of the Judge’s comment during summation that all that counted was the BAG at 3:25 and 3:35 a.m. or because they concluded contrary to Dr. Zimmerman’s testimony that defendant’s BAG at 1:28 a.m. was .10 or more.

      . "It is, of course, intended that the admissibility under this subdivision of the contents of the pertinent records would be governed by the same standards of relevancy which govern admissibility under subdivision (a).” The Eighth Annual Report is reprinted in the Sixteenth Annual Report of the Judicial Conference (1971), at page A-42, and in 1970 McKinney’s Session Laws of NY, at 2795-2796. (See also, 5 Weinstein-Korn-Miller, NY Civ Prac f 4518.26.) No argument has been presented to us as to possible admissibility of these records under CPLR 4520 (compare, People v Hoats, 102 Misc 2d 1004, with People v Drumm, 122 Misc 2d 1051), and we, therefore, do not pass upon that question.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    The People of the State of New York, Respondent, v Anton Green, Appellant.
    Decided July 8, 1986
    APPEARANCES OF COUNSEL

      David P. Friedman and Philip L. Weinstein for appellant.

      Mario Merola, District Attorney (Michael J. Eng of counsel), for respondent.
   OPINION OF THE COURT

Per Curiam.

At issue on this appeal is the minimum term of imprisonment that may be imposed on a persistent violent felony offender whose latest conviction is for a class E violent felony. We conclude that Criminal Term correctly set the minimum at two years.

Pursuant to a negotiated plea agreement, defendant pleaded guilty to attempted criminal possession of a weapon in the third degree, a class E felony, in complete satisfaction of an indictment which had charged actual possession of a .357 Magnum, and in exchange for a persistent violent felony offender sentence of two years to life imprisonment. Criminal Term noted, however, that the persistent violent felony offender statute was unclear as to whether a minimum of two years could be imposed and because of that lack of clarity, questioned whether a persistent violent felony offender sentence was legal. Since other Judges had similarly found the statutory language obscure (see, e.g., People v Graham, NYLJ, Dec. 18, 1981, p 7, col 1), Criminal Term urged clarification by the Appellate Division: "I would recommend the appeals bureau of the Legal Aid Society take an appeal so that they can have a definite ruling from the Appellate Division with respect to this most troublesome problem”.

Rather than provide the needed and requested guidance, however, the Appellate Division, First Department, simply affirmed, without opinion. Leave to appeal was granted by a Judge of this court.

Penal Law § 70.08, the statute under which the defendant was sentenced, authorizes persistent violent felony offender treatment where a defendant’s third conviction is for a class E felony. The statute defines a "persistent violent felony offender” as "a person who stands convicted of a violent felony offense as defined in subdivision one of section 70.02 after having previously been subjected to two or more predicate violent felony convictions” (Penal Law § 70.08 [1] [a]). Penal Law § 70.02, which enumerates the violent felony offenses, designates the crime of attempted criminal possession of a weapon as a class E violent felony offense (Penal Law § 70.02 [1] [d]X

A persistent violent felony offender must be sentenced to an indeterminate sentence having a maximum term of life imprisonment (Penal Law § 70.08 [2]). Although the statute sets forth minimum terms of imprisonment for defendants convicted of a class B, C, or D violent felony, it is silent as to the minimum term for a persistent violent felony offender convicted of a class E violent felony offense.

Defendant contends that there is thus a gap in the sentencing scheme, that the judiciary cannot fill the gap because it would usurp the legislative power to prescribe the punishment for crime, and that, therefore, he cannot be sentenced as a persistent violent felon. We disagree.

As observed in People v Jackson (106 AD2d 93, 96 [Titane, J. P.]), "[w]hile the substantive power to prescribe the punishment for a criminal offense is exclusively legislative * * * and, if two constructions of a criminal statute are plausible, the one more favorable to the defendant should be adopted in accordance with the rule of lenity * * * the core question always remains that of legislative intent”. Examination of that intent leaves no question that the sentence imposed was proper.

The second violent felony offender statute (Penal Law § 70.04) provides a mandatory maximum sentence of four years and a mandatory minimum sentence of two years for predicate felons convicted of a class E violent felony (Penal Law § 70.04 [3] [d]; [4]). The minimum set forth in Penal Law § 70.04 should logically apply to persistent offenders, as Criminal Term held. Any other construction would impede the legislative intent to permit enhanced sentencing for defendants who persist in committing serious crimes (see, People v Morse, 62 NY2d 205, 221).

Utilization of the minimum contained in Penal Law § 70.04 is plainly fair to defendants. Such a minimum sentence would be imposed if a defendant was sentenced as a second violent felony offender. But a defendant is given fair warning that the maximum sentence for a persistent violent felony offender, that of life imprisonment, is to be found in Penal Law § 70.08.

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

Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander, Titone and Hancock, Jr., concur in Per Curiam opinion.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed.

       Indeed, defendant requests such a resentencing here, which would mean a sentence of two to four years’ imprisonment.


author: Per Curiam. Simons, J.

text:
    In the Matter of Israel Ruiz, Jr., Respondent, v Carmelo Saez, Appellant. (And Other Proceedings.) In the Matter of Ruth A. Potter, Respondent, v Gregory J. Dudek et al., Appellants, et al., Respondent, and Edward Mahoney et al., as Commissioners of Elections and Constituting the Erie County Board of Elections, Appellants. In the Matter of Anthony R. DePaolo, Respondent, v Edward Mahoney et al., as Commissioners of Elections and Constituting the Erie County Board of Elections, Respondents, and Charles W. Termini, Appellant.
    Argued August 27, 1986;
    decided August 28, 1986

      POINTS OF COUNSEL

      Lucindo Suarez for appellants in the first above-entitled proceedings.
    I. A designating petition is rendered invalid if accompanied by an improper cover sheet, which does not separately set out information as to each candidate sought to be designated. (Matter of Pecoraro v Mahoney, 65 NY2d 1026.) II. Pecoraro requires the application of the standard of strict compliance in that the information required to be supplied by Election Law § 6-134 (2) are matters of prescribed content. (Matter of Hutson v Bass, 4 NY2d 772; Matter of Hargett v Jefferson, 63 NY2d 696.)

      Andrew M. Schnier for respondents in the first above-entitied proceedings.
    I. Respondents’ cover sheets comply with the requirements of Election Law § 6-134 (2). (Matter of Pecoraro v Mahoney, 65 NY2d 1026.) II. The facts in these cases are materially distinguishable from those in Matter of Pecoraro v Mahoney. (Matter of Pilat v Sachs, 59 AD2d 515, 42 NY2d 984; Matter of Staber v Fidler, 65 NY2d 529.) III. Respondents’ cover sheets comply with the "designating petition rules” promulgated by the New York City Board of Elections. (Matter of Pecoraro v Mahoney, 65 NY2d 1026.)

      James C. Brylinski for Gregory J. Dudek and another, appellants in the second above-entitled proceeding.
    I. The cover sheet of Dudek/Burns Republican Party designating petition contains all four informational requirements of Election Law § 6-134 (2). II. Matter of Pecoraro v Mahoney (65 NY2d 1026) is clearly distinguishable from the instant case because in Pecoraro no statement was made as to the number of signatures that applied to each candidate. (Matter of Delle Cese v Black, 63 NY2d 694.) III. The Court of Appeals in Pecoraro and Delle Cese sets forth informational requirements for a cover sheet but did not require this information to be set forth in any particular language or form. IV. The cover sheet of the Dudek/Burns Republican Party designating petition is in strict compliance with statutory commands as to matters of prescribed content of Election Law § 6-134 (2). (Matter of Hutson v Bass, 83 AD2d 920, 54 NY2d 772; Matter of Staber v Fidler, 65 NY2d 529; Brinkerhoff v Mahoney, 97 AD2d 981, 60 NY2d 558; Matter of Fromson v Lefever, 112 AD2d 1064, 65 NY2d 946; Matter of Barrett v Scaringe, 112 AD2d 1095, 65 NY2d 946; Matter of Erazo v Ruis, 112 AD2d 909; Matter of McLeod v Del Toro, 112 AD2d 908.) V. Matter of Pecoraro v Mahoney is clearly distinguishable from the instant case because in Pecoraro numerous additional defects considered in the aggregate led to the invalidation of the petition. VI. The election commissioners unanimously qualified the instant designating petition and the Board should not be overruled absent a finding that it acted in an- arbitrary and capricious manner. VII. Considerations of equity and justice require validation of the instant designating petition. VIII. The lower court’s ruling violates First Amendment rights of appellants and voters. (Lubin v Panish, 415 US 709; Kusper v Pontikes, 414 US 51; Georges v Carney, 546 F Supp 469; North Carolina Socialist Workers Party v North Carolina State Bd. of Elections, 538 F Supp 864.)

      Roger D. Avent, County Attorney (Judith Bapst-Bobrowski of counsel), for Edward Mahoney and another, appellants in the second above-entitled proceeding.
    The Republican Party designating petition cover sheet of candidates Burns and Dudek complies with the requirements of the Election Law. (Matter of Delle Cese v Black, 63 NY2d 694; Matter of Pecoraro v Mahoney, 65 NY2d 1026; Matter of Sheehan v Scaringe, 60 NY2d 795; Matter of Staber v Fidler, 65 NY2d 529; Matter of Hutson v Bass, 54 NY2d 772; Matter of Ruiz v Sachs, 43 NY2d 894; Matter of Donnelly v McNab, 83 AD2d 896; Matter of Jacobson v Schermerhorn, 104 AD2d 534; Matter of Caffery v Lawley, 21 AD2d 749.)

      Mark Matthew Jasen for Ruth A. Potter, respondent in the second above-entitled proceeding.
    I. The cover sheet of the designating petition failed to correctly set forth the information as required by Election Law § 6-134 (2). (Matter of Pecoraro v Mahoney, 65 NY2d 1026; Matter of Staber v Fidler, 65 NY2d 529.) II. The lower court properly applied a strict compliance standard to appellants’ cover sheet. (Matter of Hutson v Bass, 54 NY2d 772.) III. The majority decision in Pecoraro established State-wide, simple, strict, uniform and evenhanded criteria for compliance with Election Law § 6-134 (2). (Matter of Rutter v Coveney, 38 NY2d 993.) IV. Appellants’ joint cover sheet is not in substantial compliance with Election Law § 6-134 (2). (Matter of Staber v Fidler, 65 NY2d 529.) V. The Erie County Board of Elections is not an "aggrieved party”.

      Patrick J. Quinlivan for Mark G. Giangreco, respondent in the second above-entitled proceeding.
    The cover sheet of the designating petitions failed to set forth the requisite information with specificity required by Election Law § 6-134 (2) and Matter of Pecoraro v Mahoney (65 NY2d 1026 [1985].)

      James C. Brylinski for appellant in the third above-entitled proceeding.
    I. The cover sheet of the Termini Democratic Party designating petition contains all four informational requirements of Election Law § 6-134 (2). II. The cover sheet of the Termini Democratic Party designating petition is in strict compliance with statutory commands as to matters of prescribed content of Election Law § 6-134 (2). (Matter of Hutson v Bass, 83 AD2d 920, 54 NY2d 772; Brinkerhoffv Mahoney, 97 AD2d 981, 60 NY2d 558; Matter of Fromson v Lefever, 112 AD2d 1064, 65 NY2d 946; Matter of Barrett v Scaringe, 112 AD2d 1095, 65 NY2d 946; Matter of Erazo v Ruiz, 112 AD2d 909; Matter of McLeod v Del Toro, 112 AD2d 908.) III. Matter of Pecoraro v Mahoney (65 NY2d 1026) is clearly distinguishable from the instant case because in Pecoraro numerous defects considered in the aggregate led to the invalidation of the petition. (Matter of Quintyne v Canary, 104 AD2d 473.) IV. Considerations of equity and justice require validation of the instant designating petition. V. The lower court’s ruling violates First Amendment rights of appellant and voters. (Lubin v Panish, 415 US 709; Kusper v Pontikes, 414 US 51; Georges v Carney, 546 F Supp 469; North Carolina Socialist Workers Party v North Carolina State Bd. of Elections, 538 F Supp 864.) VI. Objector DePaolo lacks standing since he failed to comply with filing requirements for objections in a timely fashion.

      Howard S. Rosenhoch for Anthony R. DePaolo, respondent in the third above-entitled proceeding.
    I. Termini’s petitions are invalid because the cover sheet fails to provide the information required by law. (Matter of Pecoraro v Mahoney, 65 NY2d 1026; D’Amico v Mahoney, 115 AD2d 348; Matter of Delle Cese v Black, 63 NY2d 694; Matter of Hutson v Bass, 54 NY2d 772; Matter of Higby v Mahoney, 48 NY2d 15; Matter of Alamo v Black, 51 NY2d 716.) II. The Board properly exercised its ministerial authority in rejecting Termini’s petitions which are invalid on their face. (Matter of Booth, 119 Misc 243; Matter of Casler v Board of Elections, 131 Misc 744; Matter of Pataki v Hayduk, 87 Misc 2d 1095; Matter of McGough v Todd, 51 Misc 2d 255; Matter of Veteran v Tarry-town Citizens’ Party, 13 Misc 2d 664; Matter of Wicksel v Cohen, 262 NY 446.) III. DePaolo’s objections were not untimely filed. IV. Termini’s appeal, as limited by his preargument statement, should be dismissed. (Matter of Kaplan v Rohan, 7 NY2d 884; Jerry v Blair, 62 App Div 590.)

      Roger D. Avent, County Attorney (Judith Bapst-Bobrowski of counsel), for Edward Mahoney and another, respondents in the third above-entitled proceeding.
    I. The number of signatures and pages applicable to each office or candidacy on a designating petition cover sheet is required information. (Matter of Delle Cese v Black, 63 NY2d 694; Matter of Pecoraro v Mahoney, 65 NY2d 1026; Scoville v Cicoria, 65 NY2d 972; Matter of Hutson v Bass, 54 NY2d 772; Matter of Quintyne v Canary, 104 AD2d 473; Matter of Carr v New York State Bd. of Elections, 40 NY2d 556; Matter of Rutter v Coveney, 38 NY2d 993.) II. The Board of Elections acted within its authority in invalidating the petition on its face. (Matter of Bednarsh v Cohen, 267 App Div 133; Matter of McGovern [Olson], 291 NY 104; Matter of Frankel v Cheshire, 212 App Div 664; Matter of McGrath, 189 App Div 140; Matter of Wicksel v Cohen, 262 NY 446.)
   OPINION OF THE COURT

Per Curiam.

These appeals involve the application of Matter of Pecoraro v Mahoney (65 NY2d 1026) to a range of factual settings. Pecoraro requires that data concerning the number of sheets and number of signatures designating a candidate be indicated on the cover sheet but does not mandate that it be in any particular form, provided the notice and informational purposes specified in the statute (Election Law § 6-134 [2], [3]) are satisfied.

The statutory requirement is not a mere technicality but is designed to provide those seeking to determine the adequacy of the petition with a summary of each volume submitted. It is unreasonable and impractical, within the time constraints afforded by this election process, to require interested parties seeking to ascertain facial validity to count each signature on each page of each volume for every candidate. In order to carry out that purpose the cover sheet must clearly state the number of signatures for each candidate with respect to the particular office.

Matter of Ruiz v Saez

Involved in these proceedings are petitions for public office and party positions on the Democratic primary ballot of September 9, 1986 set forth in volumes 59 (73rd Assembly District), 60 and 61 (76th Assembly District) and 64 (74th Assembly District). Although the cover sheets for volumes 59, 60 and 61 set forth after the name of each of the candidates for Senate, Assembly and Civil Court data showing the volume number, number of pages and number of signatures, no such individual data was set forth on the cover sheet of volume 64 for the Assembly candidate, there being only one block of data for her and for the other 20 candidates whose names appeared on that cover sheet. Nor was such individual data set forth on the cover sheet for volumes 59, 60 and 61 for the 10 candidates for party positions and delegates to the judicial conventian sought to be designated by each of those volumes, there being only one block of data for all 10 candidates. Thus, as to those candidates the data supporting each candidacy has not been supplied and identified as required by Matter of Pecoraro v Mahoney (65 NY2d 1026, supra).

Respondents argue that the use of similar blocks following the names of the Senate, Assembly and Civil Court Judge candidates on the cover sheets for volumes 59, 60 and 61 constituted a graphic or pictorial representation that the data following the names of party position candidates was intended to apply to all of them, that Pecoraro is distinguishable because there invalidation was predicated on other grounds in addition to the cover sheet error, and that the petitions in the present case conformed to Board of Elections rule.

The Board’s rule cannot change the requirements of the governing statute, however (Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451) and, as the Pecoraro memorandum makes clear, the petitions there involved would have been invalidated had there been no "additional defects.” (65 NY2d, at p 1028.)

Respondents’ graphic representation argument is inapplicable to volume 64 the cover sheet of which contained but one block of data. Nor does it save the candidacies sought to be designated by the other three petitions, for the alleged graphic presentation does not convey the data required by the statute. While no particular form is mandated, that data must be set forth in a manner reasonably calculated to give the requisite notice and information to the reader (compare, Matter of Potter v Dudek, 68 NY2d 154, with Matter of Keane v State Bd. of Elections, 122 AD2d 966, lv denied 68 NY2d 605 ["(a)ll of the above pages and signatures apply to all of the designated candidates”]; and Matter of Swift v Lefever, 122 AD2d 922, lv denied 68 NY2d 605 [stating the total number of signatures and pages and adding opposite the name of each candidate the same total number of signatures] [all decided herewith]).

Matter of Potter v Dudek

A joint petition was filed designating appellants, Christopher Burns and Gregory Dudek, as candidates for the offices of County Court Judge and Family Court Judge. The cover sheet recited these facts, specified that the petition contained "in the aggregate 1,036 pages and 18,560 signatures,” and concluded: "The petition contains 18,560 signatures and 1,036 pages for the above mentioned candidates.” Special Term granted respondents’ invalidation petition on authority of Pecoraro and ordered the Board of Elections to remove appellants from the ballot, and a divided Appellate Division affirmed.

Pecoraro does not require invalidation of the petition. There, a petition was filed on behalf of candidates for three offices, and we held that in such a situation failure to reflect the signature totals for each candidate frustrates a primary purpose of the Election Law to facilitate the discovery of fraud and irregularity (see, Election Law § 6-134 [2]; see also, Matter of Staber v Fidler, 65 NY2d 529, 534). Here, the statement that the signatures contained in the petition were for both candidates satisfied the statutory purpose. We decline respondent’s invitation to read the cover sheet statement microscopically so as to uncover an ambiguity in order to invalidate candidacies. Unquestionably a cover sheet statement such as that contained in Matter of Keane v State Bd. of Elections (supra) is preferred. However, the statement before us in the circumstances conveys the same import and should not precipitate the invalidation of appellants’ candidacies.

Matter of DePaolo v Mahoney

For much the same reason, appellant Charles Termini should be restored to the ballot.

A joint designating petition was filed on behalf of the candidacy of appellant, Charles Termini, for two local offices: Member of the Assembly and Member of the State Committee for the same district. The cover sheet set forth this information and stated that the petition consisted of 231 pages and 3,155 signatures. The Appellate Division, affirming Special Term, invalidated the petition on the authority of Matter of Pecoraro v Mahoney (65 NY2d 1026, supra).

The present case, however, involves only one individual. While in Pecoraro there was little reason to believe that a person signing the petition on behalf of one candidate necessarily supported the candidacy of the other two, here, by contrast, the presumption is overwhelming that a person endorsing appellant for one local office also endorsed him for the other.

Accordingly, in Matter of Ruiz v Saez the order of the Appellate Division should be reversed, without costs, and judgment granted invalidating the petitions for public office and party positions and directing that the Board of Elections remove from the Democratic primary ballot of September 9, 1986 the names of the candidates for those positions set forth in Bronx volumes 59 (73rd Assembly District), 60 and 61 (76th Assembly District) and 64 (74th Assembly District).

In Matter of Potter v Dudek the order of the Appellate Division should be reversed, without costs, and the petition to invalidate appellants’ joint designating petition denied.

In Matter of DePaolo v Mahoney the order of the Appellate Division should be reversed, without costs, and the petition to validate appellant’s joint designating petition granted.

Simons, J.

(dissenting in Matter of Potter v Dudek). I would affirm. The statement on the face sheet that "[t]he petition contains 18,560 signatures and 1,036 pages for the above mentioned candidates” is inherently ambiguous because the reader cannot determine whether it is claimed that the petitions contain 18,560 signatures and 1,036 pages for each of the candidates or both of them together and, if for both together, how many signatures support each candidacy. Conceivably, the petition could contain well under the required number of signatures for one of the candidates and well over the required number for the other. The statement contains no hint of that and, even worse, may mislead, thereby frustrating the provisions and purpose of Election Law § 6-134 (2). Faced with the ambiguity "election officials and interested parties [have] no choice except to search through the volumes page by page to determine the sheets designating each candidate and the validity of the signatures contained on them” (Matter of Pecoraro v Mahoney, 65 NY2d 1026, 1028).

Matter of Ruiz v Saez: Order reversed, without costs, and judgment granted in accordance with the opinion herein.

Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander, Titone and Hancock, Jr., concur in Per Curiam opinion.

In Matter of Potter v Dudek: Order reversed, without costs, and petition to invalidate appellants’ designating petition denied.

Chief Judge Wachtler and Judges Meyer, Kaye, Titone and Hancock, Jr., concur in Per Curiam opinion; Judge Simons dissents and votes to affirm in a separate opinion in which Judge Alexander concurs.

In Matter of DePaolo v Mahoney: Order reversed, without costs, and petition to validate appellant’s designating petition granted.

Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander, Titone and Hancock, Jr., concur in Per Curiam opinion.


text:
    Thelma Crosland, Individually and as Administratrix of the Estate of Steven Crosland, Jr., Deceased, Respondent, v New York City Transit Authority, Appellant, et al., Defendants.
    Argued May 29, 1986;
    decided September 11, 1986

      POINTS OF COUNSEL

      Lawrence Heisler, William E. Rosa, John A. Murray and C. Frances Rush for appellant.
    The New York City Transit Authority cannot be liable for the attack on decedent in this case. (Weiner v Metropolitan Transp. Auth., 55 NY2d 175; Bass v City of New York, 38 AD2d 407, 32 NY2d 894; Riss v City of New York, 22 NY2d 579; Dutton v City of Olean, 60 AD2d 335, 47 NY2d 756; Bardavid v New York City Tr. Auth., 61 NY2d 986; Miller v State of New York, 62 NY2d 506; Malerba v Incorporated Vil. of Huntington Bay, 78 AD2d 899, 54 NY2d 863; Pinkney v City of New York, 50 AD2d 928, 40 NY2d 1004; Gallogly v Village of Mohawk, 96 AD2d 710; Augustine v Town of Brant, 249 NY 198.)

      Daniel R. Seidel for respondent.
    I. The order below was properly made and entered. For want of a more objective standard of conduct the proprietary/governmental distinction is proper. (Glanzer v Shepard, 233 NY 236; Twist v City of Rochester, 37 App Div 307; Kenny v Southeastern Pa. Transp. Auth., 581 F2d 351, 439 US 1073; Pennsylvania Co. v Roy, 102 US 451; Lewis v Metropolitan Transp. Auth., 99 AD2d 246; Amoruso v New York City Tr. Auth., 12 AD2d 11; Nieves v Manhattan & Bronx Surface Tr. Operating Auth., 31 AD2d 359; Parsolano v County of Nassau, 93 AD2d 815; Danbois v New York Cent. R. R. Co., 12 NY2d 234; McCrink v City of New York, 296 NY 99.) II. Weiner v Metropolitan Transp. Auth. (55 NY2d 175) is still in vogue. Miller v State of New York (62 NY2d 506) reinforced immunity for traditional police and fire functions. (Kermarec v Compagnie Generate, 358 US 625; Sorichetti v City of New York, 65 NY2d 461.) III. The standard of analysis is to be one of reasonableness under the circumstances. (Sorichetti v City of New York, 65 NY2d 461; Downs v United States, 522 F2d 990; Baker v City of New York, 25 AD2d 770.) IV. Issues of proximate cause, special relationship and carrier standard of care still exist. (Malerba v Incorporated Vil. of Huntington Bay, 78 AD2d 899, 54 NY2d 863; Evers v Westberg, 38 AD2d 751, 32 NY2d 684; Heilman v County of Warren, 111 AD2d 560; Yearwood v Town of Brighton, 101 AD2d 498; Shinder v State of New York, 62 NY2d 945.) V. Plaintiffs other theories are still viable — Special Term found the necessary evidence.
   OPINION OF THE COURT

Per Curiam.

The question presented is whether a public carrier whose employees allegedly stood by and did nothing while one of its passengers was beaten to death by hoodlums should be immune from all civil liability. We hold that it should not, and thus affirm the order appealed from and answer the question certified in the affirmative.

Amplified by affidavits and exhibits in the record, the complaint alleged in pertinent part that after attending a talent show at the High School of Music and Art, at which they were students, Steven Crosland, Jr., and several friends boarded the Independent subway at 135th Street. At 125th Street, they left the local train to change to an express on which to continue their trip downtown. At approximately 11:45 p.m., a group of hoodlums, armed with baseball bats, golf clubs, wooden clubs, tire irons, and chains, jumped the turnstiles at the 125th Street station and savagely attacked the students. Steven later died from wounds he sustained while being beaten over the head as he tried to escape from the platform by climbing a flight of stairs.

There were no police in the station. Steven’s friends claimed there had almost always been officers in that station in the past. Allegedly, several track workers witnessed the incident and did nothing to summon aid. As the attack progressed, the complaint also stated, at least two trains, whose personnel were able to observe the attack, passed through the station, and these employees also did nothing.

Recovery was sought against the Transit Authority on three separate theories: that the defendant breached its special duty of care to the decedent because it failed to maintain "around-the-clock police presence” at the 125th Street station though it knew that station was the site of previous youth gang attacks on Music and Art students; that the defendant’s employees breached a duty to Steven by failing to "take every precaution to prevent * * * injuries to persons”, as required by the Authority’s rule 85; and that defendant failed to meet the standard of care owed by common carriers to their passengers.

Before answering the complaint, the Authority moved "for an Order pursuant to CPLR 3212 granting summary judgment dismissing this action”. The Authority took no issue with the factual allegations of the complaint, which it characterized as charging "defendants for failing to take adequate steps to police the site of the attack and thus prevent the assault on decedent”. The Authority urged that this court’s decision in Weiner v Metropolitan Transp. Auth. (55 NY2d 175) therefore mandated dismissal. Special Term denied the motion. The Appellate Division affirmed and granted the Authority’s motion for leave to appeal, certifying to us the question whether its order was properly made.

The Appellate Division correctly concluded that the defendant owed Steven no special duty, for lack of the element of "some direct contact between agents of the [defendant] and the injured party” (Sorichetti v City of New York, 65 NY2d 461, 469), and that liability cannot be based upon the alleged breach of Transit Authority rule 85, which, as in the portion quoted above, imposed a duty higher than the Authority actually owes, i.e., to exercise "ordinary care commensurate with the existing circumstances” (Thomas v Central Grey hound Lines, 6 AD2d 649, 652). Indeed, as the Appellate Division noted (110 AD2d, at p 156), the rule would be inadmissible at trial for the same reason (see, Abady v Pennsylvania R. R. Co., 6 AD2d 803, affd 6 NY2d 757, rearg denied 6 NY2d 882).

This court has held that the allocation of police resources implicates a governmental function for which a publicly owned carrier cannot be held liable, even though a private carrier could be held liable for a similar failure to allocate security personnel if that failure proximately resulted in a patron’s sustaining injury at the hand of a third party (Weiner v Metropolitan Transp. Auth., 55 NY2d 175, supra). In the two cases decided under the Weiner caption, it must be stressed, the plaintiffs were attacked at stations where no police were present, and they argued, without success, that police should have been put there because of prior incidents at the stations. To the extent the complaint in the present action alleges a failure to properly allocate police resources, therefore, it too must fail.

Weiner did not, however, absolve publicly owned common carriers from liability for assaults on their passengers by third parties in all cases. Rather, the court noted, "[i]t is the specific act or omission out of which the injury is claimed to have arisen and the capacity in which that act or failure to act occurred which governs liability, not whether the agency involved is engaged generally in proprietary activity” (Weiner v Metropolitan Transp. Auth., 55 NY2d 175, 182, supra). Indeed, we have recognized categories of activity rendering a municipality liable (Miller v State of New York, 62 NY2d 506; Riss v City of New York, 22 NY2d 579).

The Authority, though conceding that it can be held liable for "ordinary” negligence, such as the failure to maintain its premises, argues that all acts of its employees are governmental and therefore will not result in liability, relying on Public Authorities Law § 1202 (2), which provides in part that the Authority, in carrying out its corporate purpose, "shall be regarded as performing a governmental function”. However, as we made clear in Weiner v Metropolitan Transp. Auth. (55 NY2d 175, 189, supra), that legislative declaration was not meant to abrogate the separate statutory provision that the Authority is responsible for the negligence of its employees in the operation of the subway system (Public Authorities Law § 1212 [3]). Indeed, the cases invoking section 1202 suggest its purpose was to insure that the Authority’s workers are covered by the Taylor Law, not that it should escape liability for their negligence (see, e.g., New York City Tr. Auth. v Loos, 2 Misc 2d 733, affd 3 AD2d 740; cf. Matter of Subway-Surface Supervisors Assn. v New York City Tr. Auth., 44 NY2d 101, 111).

Whether any act or failure to act of a Transit Authority employee alleged in the complaint can be the basis for an actionable claim against the Authority depends upon whether it is within or without the boundaries of the policy-based governmental immunity established in Weiner v Metropolitan Transp. Auth. (55 NY2d 175, supra). Because the complaint alleges that an employee seeing the injury being inflicted unreasonably failed to summon aid although he could have done so without risk to himself, we hold such failure to act beyond the boundary of the Weiner immunity. Watching someone being beaten from a vantage point offering both safety and the means to summon help without danger is within the narrow range of circumstances which could be found to be actionable (cf. Putnam v Broadway & Seventh Ave. R. R. Co., 55 NY 108, 116; Scalise v City of New York, 3 NY2d 951).

That affirmance in this case might expose the Authority to liability in an amount it would find burdensome, a consideration we expressly rejected in Schuster v City of New York (5 NY2d 75, 80) and implicitly rejected in Sorichetti v City of New York (65 NY2d 461, supra), is not dispositive in any event. Against it must be balanced other policies. Two of those, compensation for the victim and general deterrence (1 Street, Foundations of Legal Liability, at 477-478; Prosser and Keeton, Torts § 4 [5th ed]) are directly implicated in the complaint’s allegations: the undisputed loss of plaintiff’s son, and a public authority the management of which has failed to insure that its employees observe not only its own regulations, but also common standards of behavior.

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

Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander, Titone and Hancock, Jr., concur in Per Curiam opinion.

Order affirmed, etc.

      . Causes of action were also asserted against the City of New York, Board of Education of the City of New York, and the Police Department of the City of New York. Special Term dismissed as to those parties and plaintiff did not cross-appeal to the Appellate Division from that part of its order. Thus, all references to "defendant” will apply only to the New York City Transit Authority.

      . In essence, the Authority’s motion was one to dismiss for failure to state a claim, because issue had not been joined when it was made (CPLR 3212 [a]). In any event, this court must view the facts in a light most favorable to the plaintiff on appeal from an order affirming the denial of a motion by the defendant for summary judgment dismissing the complaint (Patrolmen’s Benevolent Assn. v City of New York, 27 NY2d 410, 415), as it must on appeal from an order affirming the denial of preanswer motion.

      . Ammirati v New York City Tr. Auth. (117 Misc 2d 212, 217), to the extent it misapplies the Weiner test, is disapproved.


author: Kaye, J.

text:
    Leonard Shaw, Appellant, v Manufacturers Hanover Trust Company et al., Defendants. Fuchsberg & Fuchsberg, Respondent.
    Argued September 3, 1986;
    decided October 14, 1986

      POINTS OF COUNSEL

      William J. Thomashower for appellant.
    I. This appeal presents issues of substantial public importance. (Gair v Peck, 6 NY2d 97, 361 US 374; Teichner v W & J Holsteins, 64 NY2d 977; Jacobson v Sassower, 66 NY2d 991.) II. Respondent’s contingent retainer ended with the adverse verdict and entry of judgment for defendants. (Eckert v Truman, 158 App Div 939; Slepin v Beck, 84 Misc 254; Matter of Sherburne, 129 Misc 2d 56; Vitale v La Cour, 92 AD2d 892; Holzberg v Feuerstein, 104 AD2d 971; Greenberg v Bar Steel Constr. Corp., 22 NY2d 210; Jacobson v Sassower, 66 NY2d 991.) III. Alternatively, respondent breached its retainer and discharged itself by refusing to proceed with the appeal except on new terms. (Matter of H, 93 NY 381; Matter of Rieser, 137 App Div 177; Teichner v W & J Holsteins, 64 NY2d 977; Crowley v Wolf, 281 NY 59; Kramer v Salvati, 88 AD2d 583; Jacobson v Sassower, 66 NY2d 991; Greenberg v Bar Steel Constr. Corp., 22 NY2d 210; Vitale v La Cour, 92 AD2d 892.) IV. Due process required that appellant be afforded an evidentiary hearing if there were factual issues as to the termination of the retainer or its meaning. (Teichner v W & J Holsteins, 64 NY2d 977; Matter of Weitling, 266 NY 184.)

      Irwin M. Berg for respondent.
    I. The judgment did not extinguish the lien for legal fees. (Commercial Bank v Foltz, 12 App Div 603; Crowley v Wolf, 281 NY 59; Matter of Sherburne, 129 Misc 2d 56; Title Guar. & Trust Co. v Uniform Fibrous Talc Co., 127 Misc 183; Robinson v Robinson, 24 AD2d 138; Chesapeake Indus. v Gatti, 12 Misc 2d 171; Ohlquist v Nordstrom, 143 Misc 502, 262 NY 696; Lederer v Lederer, 47 Misc 471, 108 App Div 228; Figgolari v Evener, 2 AD2d 650; Marco v Sachs, 25 Misc 2d 763, 12 AD2d 774.) II. Respondent’s request for payment by appellant of appeal costs was not a breach of the retainer agreement. (Coughlin v New York Cent. & Hudson Riv. R. R. Co., 71 NY 443; Matter of Clark, 184 NY 222; Tenney v Berger, 93 NY 524; Matter of Dunn, 205 NY 398; Harvey v Dodge Corp., 169 Misc 781.) III. There is no evidence in the record of any wrongdoing and consequently there is no need for an evidentiary hearing. (Mrozinski v Marinello, 46 Misc 2d 637; Mulligan v Lackey, 33 AD2d 991; Spearmon v Times Sq. Stores Corp., 96 AD2d 552; Williams v Hertz Corp., 75 AD2d 766; Mallad Constr. Corp. v County Fed. Sav. & Loan Assn., 32 NY2d 285; Bethlehem Steel Co. v Turner Constr. Co., 2 NY2d 456).
   OPINION OF THE COURT

Kaye, J.

A contingent fee retainer agreement, on a form supplied by counsel, "to prosecute or adjust” a client’s personal injury claim, with no provision regarding the advance of litigation expenses is — in the context of the present case — unclear, and will be read most favorably for the client. Here we conclude that, so construed, the retainer agreement ended upon an adverse judgment following trial and that, even if this agreement persisted through appeal, it required the attorney to continue advancing the client’s litigation expenses. In either event counsel is entitled to no fee for services rendered during the trial.

Injured during a holdup that occurred as he waited in line at a bank teller’s window, plaintiff engaged Fuchsberg & Fuchsberg (respondent) as his counsel. The agreement, on a form furnished by respondent, provided that plaintiff retained the firm "to prosecute or adjust a claim for damages arising from personal injuries”. The agreement continued: "In consideration of the services rendered and to be rendered by [the firm], the undersigned hereby agrees to pay you, and you are authorized to endorse for the undersigned any checks that may be paid in settlement of this action, and to retain out of any monies that may come into your hand by reason of the above claim: thirty-three and one-third (33-Vá%) percent of the sum recovered, whether by suit, settlement or otherwise. Such percentage is computed on the net sum recovered after deducting and repaying to the attorneys disbursements incurred in accordance with the Rules of the Appellate Division, First and Second Departments.”

A jury trial of plaintiff’s damages action against the bank and others resulted in a defendants’ verdict and judgment dismissing the complaint. Respondent thereafter advised plaintiff that, while prepared to proceed with an appeal and any retrial of the case, it would not continue to advance costs and disbursements, estimated to be several thousand dollars. After the parties’ own efforts to resolve their differences failed, plaintiff moved to substitute William Thomashower as his attorney. While not opposing substitution, respondent maintained that it had no obligation to advance litigation expenses and that, because plaintiff had discharged the firm without cause, before surrendering the files it was entitled to a lien on any ultimate recovery on a quantum meruit basis as well as reimbursement for expenses. Special Term, without elaboration, imposed a lien on any ultimate recovery, to be fixed on a quantum meruit basis, and directed turnover of the records upon the filing of an undertaking for expenses. The Appellate Division affirmed, without opinion (90 AD2d 468).

On appeal of plaintiff’s damages action by new counsel, the Appellate Division reversed and directed a retrial (95 AD2d 738). Plaintiff then concluded two agreements — one with respondent and a second with attorney Max Toberoff. The recited purpose of the first agreement, looking toward plaintiff’s retention of Toberoff, was to fix the amount of respondent’s lien. The parties agreed that, in the event of recovery, respondent would receive two amounts, each calculated as a percentage of the recovery: the first (in actual fact, $122,656.01), one third of Toberoffs fee, would be payable immediately and unconditionally upon recovery. The second amount ($38,888.88), one ninth of the first $350,000 recovered —on which Toberoff had agreed to charge no fee — would be held by Toberoff in escrow, subject to plaintiff’s appeal to this court on respondent’s right to any fee. Plaintiff’s agreement with Toberoff acknowledged the contemporaneous agreement with respondent and further provided that if retrial "terminates in a verdict for the defendants and Leonard Shaw is desirous of taking an appeal, that Max Toberoff will relinquish the files to any appeals lawyer as Mr. Shaw selects and Mr. Shaw shall have the option of discharging Toberoff as his attorney, and in this event Toberoff shall not be entitled to any fee whatsoever for legal services rendered, except that he will have a lien for his disbursements, which shall include the disbursements of Fuchsberg & Fuchsberg which Toberoff returned to Fuchsberg & Fuchsberg.”

Plaintiff’s action was then retried and settled for $1.5 million. As agreed, $122,656.01 — a third of ToberofFs fee — was immediately paid to respondent and is not in issue on this appeal; $38,888.88 — calculated on the portion of plaintiff’s recovery not subject to ToberofFs fee — was placed in an interest-bearing account and is the focus of this appeal, here by our leave (66 NY2d 604). Plaintiff advances two alternate grounds for denying respondent that recovery: first, the retainer ended with the adverse verdict and entry of judgment for defendants, entitling the firm to nothing under its agreement, and second, respondent breached its agreement by refusing to proceed with the appeal except on new terms. On both grounds we agree that the disputed amount of $38,888.88 is not owing to respondent, and therefore reverse the Appellate Division order and deny the application for a lien.

The importance of an attorney’s clear agreement with a client as to the essential terms of representation cannot be overstated. The client should be fully informed of all relevant facts and the basis of the fee charges, especially in contingent fee arrangements (Code of Professional Responsibility, EC 2-19, EC 2-20; see generally, Wolfram, Modern Legal Ethics § 9.4). While, in the law generally, equivocal contracts will be construed against the drafters, courts as a matter of public policy give particular scrutiny to fee arrangements between attorneys and clients, casting the burden on attorneys who have drafted the retainer agreements to show that the contracts are fair, reasonable, and fully known and understood by their clients (Jacobson v Sassower, 66 NY2d 991, 993; Gair v Peck, 6 NY2d 97, 106, cert denied 361 US 374; see also, 1 Speiser, Attorneys’ Fees §§ 2:3, 2:9).

The first controversy between the parties is as to the term of the agreement: did the contract permit termination upon the entry of an adverse judgment after trial, or was the representation to continue through conclusion of the matter, including appeal? The real issue here is of course one of responsibility for fees rather than compelling either the client or the lawyer to continue the representation, for a client has the absolute right to discharge an attorney at any time (Teichner v W & J Holsteins, 64 NY2d 977, 979; Crowley v Wolf, 281 NY 59, 65), and a lawyer in appropriate circumstances may withdraw (see, Code of Professional Responsibility, DR 2-110, DR 5-102, DR 5-105; NY City Bar Ethics Opn No. 1986-6, NYU, July 21, 1986, p 2, col 3). If plaintiff breached the retainer agreement, then respondent is owed fees for its services on a quantum meruit basis (Teichner v W & J Holsteins, supra).

The retainer agreement supplied by respondent speaks only of prosecuting or adjusting a claim for damages; no mention is made of appeals. While not claiming the existence of any issues of fact requiring a hearing, respondent points to authorities supporting its position that under the agreement representation persists through conclusion of the matter, including appeal (see, e.g., Matter of Ellis v Mitchell, 193 Misc 956, affd without opn 275 App Div 767; Mrozinski v Marinello, 46 Misc 2d 637; Gair, Gair & Conason v Stier, NYU, Mar. 15, 1985, p 11, col 5, affd 123 AD2d 556); plaintiff points to contrary holdings (see, e.g., Holzberg v Feuerstein, 104 AD2d 971; Vitale v La Cour, 92 AD2d 892, lv denied 60 NY2d 556; Eckert v Truman, 158 App Div 939; Slepin v Beck, 84 Misc 254). From a reading of the language of the retainer agreement itself, both interpretations are reasonable. In such event the law requires that an agreement between client and attorney be construed most favorably for the client (Greenberg v Bar Steel Constr. Corp., 22 NY2d 210, 213). Had the client maintained that the retainer agreement required respondent’s representation through conclusion of the matter (as was true in the cases relied on by respondent), that would have been the mandated interpretation. But where, as here, the client has asserted that the contract terminated upon entry of an adverse judgment we hold that the agreement must be construed so to provide.

The agreement having ended with the entry of a judgment in the trial court dismissing the complaint, no fee was owed. The contract provided that respondent’s fee would be determined by the sum recovered, and none was recovered.

Plaintiff’s alternative argument also has substance: if the representation was by contract to persist through appeal then respondent breached the agreement by insisting that it would continue only on new terms. If respondent breached the contract, again it would be owed no fee (see, Teichner v W & J Holsteins, 64 NY2d, at p 979, supra; Crowley v Wolf, 281 NY, at p 65, supra; Matter of H, 93 NY 381, 384-385).

In the circumstances presented, the requirement that plaintiff defray expenses as incurred was a new term. The retainer agreement contains no provision spelling out the interim responsibility for payment of expenses as incurred. It speaks only of the ultimate fee being computed "on the net sum recovered after deducting and repaying to the attorneys disbursements incurred”. Respondent actually advanced all expenses through the unsuccessful trial, but refused to continue to advance the costs of appeal. The law firm’s dilemma is certainly understandable. It had already advanced more than $11,000 in costs and disbursements over a three-year period; there was a defendants’ verdict; and the cost of the trial transcript alone — which would be necessary for the appeal— exceeded $4,000. The retainer agreement, however, provided for "deducting” and "repaying” disbursements out of the ultimate recovery. Any ambiguity engendered by this language could be resolved by reference to respondent’s consistent practice, in its relationship with plaintiff, of advancing all litigation expenses.

Again seeking no factual hearing on this issue, respondent points to authorities supporting its contention that the agreement did not obligate the firm to advance costs during the term of the relationship; plaintiff urges that it did so provide. From these arguments the only proposition that emerges with clarity is that the retainer agreement might be read to support both views, and given the controlling public policy must be read to support the client’s view (see, Jacobson v Sassower, 66 NY2d, at p 993, supra).

We would but note the practical impact of the combined lack of clarity as to the term of the retainer agreement and the responsibility for advancing expenses. Having lost after trial, plaintiff was suddenly confronted with a request that he advance several thousand dollars in expenses or find other counsel. Respondent would not release the case files without assurance that it would be paid its fees and disbursements. Efforts to secure substitute counsel were necessarily beclouded by uncertainty as to whether the agreement with respondent had been properly terminated, or was breached, and by whom. A quantum meruit lien had been imposed. In order to obtain other counsel, a new agreement had to be negotiated with respondent, whereby the amount of respondent’s fee was fixed —and in the bargain part of respondent’s fee was made payable unconditionally.

But we are also not blind to respondent’s predicament. Having represented its client for several years respondent is now denied a substantial portion of its fee. In order to avoid the consequences suffered here both by the client and by the lawyer, it is essential that the terms of representation — particularly in matters of fundamental, foreseeable and commonplace as those before us today — be set down with clarity. And the onus is upon the lawyers who draft such agreements to do so.

Accordingly, the order of the Appellate Division should be reversed, with costs, and respondent’s application for a lien denied.

Chief Judge Wachtler and Judges Meyer, Simons, Alexander, Titone and Hancock, Jr., concur.

Order reversed, etc.

       The ultimate obligation to pay litigation expenses at all times remains that of the client (see, Rules of Appellate Division, Code of Professional Responsibility, DR 5-103 [B]; First Department Rules, 22 NYCRR 603.7 [b], [e]; Wolfram, Modern Legal Ethics § 9.2.3). In the present case the litigation expenses were actually paid to respondent and are not in issue. So long as all applicable laws and rules are complied with, we express no view on the desirability of an attorney agreeing to advance expenses for a client. As the present case demonstrates, litigation expenses can quickly become very substantial, making it all the more important that arrangements regarding these payments be crystal-clear.


author: Meyer, J.

text:
    Thelma Sanders et al., Appellants, v Jeanette Palmer et al., Respondents.
    Submitted September 2, 1986;
    decided October 16, 1986

      POINTS OF COUNSEL

      Vincent A. Malito for appellants.
    Where two different mortgagors pledge two separately owned parcels of land to secure a single underlying debt, RPAPL 1371 does not bar a subsequent foreclosure action against the remaining parcel even though no deficiency judgment was sought in an earlier action against the first parcel. (Bodner v Brickner, 29 AD2d 441; Merchants Natl. Bank & Trust Co. v Wagner, 93 Misc 2d 224.)

      Regina Seltzer and Reuben R. Kaufman for Jeanette Palmer, respondent.
    Failure to move for a deficiency judgment authorized by RPAPL 1371 raises a conclusive presumption that the value of the property foreclosed equals at least the entire debt and no right remains to enforce payment from any other security. (Matter of City of New York [E. 29th St.], 247 App Div 648, 273 NY 62; National City Bank v Gelfert, 284 NY 13; Bodner v Brickner, 29 AD2d 441; Womans Hosp. v Sixty-Seventh St. Realty Co., 265 NY 226; Berkman v Silverstein, 245 App Div 891; Band Realty Co. v North Brewster, 59 AD2d 770; Merchants Natl. Bank & Trust Co. v Wagner, 93 Misc 2d 224; Honeyman v Clark, 278 NY 467; State Bank v Amak Enters., 77 Misc 2d 340; Kings County Sav. Bank v Fulton Sav. Bank, 268 App Div 452.)
   OPINION OF THE COURT

Meyer, J.

When a single debt is secured by a mortgage of property of the corporate debtor and by a mortgage of the separate property of an individual guarantor, the failure to obtain a deficiency judgment after the sale of the corporate debtor’s property in a foreclosure action in which the guarantor is a party defendant bars further action to foreclose the guarantor’s mortgage or on the guarantee (RPAPL 1371 [3]). The order of the Appellate Division should, therefore, be affirmed, with cost.

I

Plaintiffs loaned $35,000 to Journey’s End Construction Corporation and received mortgages on three of its properties in Shirley and Mastic, New York, as collateral for the debt. The loan was personally guaranteed by Sanford and Sue Kreisler, principals of the corporation. It was guaranteed also by Jeanette Palmer, who secured her guarantee by giving a second mortgage on property she owned in Sayville.

In October 1975, the corporation defaulted in its payments on the debt. By summonses both dated December 28, 1976, plaintiffs sought to foreclose on property in Shirley, one of the properties covered by the corporate mortgage, and, in a separate action, on the guarantor’s mortgage. The summons and complaint to foreclose on the corporate property was served by substituted service on or about January 13, 1977. The complaint named Jeanette Palmer as a defendant and recited that she was a guarantor of the corporate debt. The summons and complaint to foreclose on Jeanette Palmer’s Sayville property (the present action) was served on her on March 3, 1977.

Defendants defaulted in appearing in both proceedings. The foreclosure of the corporate property resulted in a Referee’s deed to plaintiffs dated October 11, 1977, but no motion for a deficiency judgment was ever made by plaintiffs. Plaintiffs then scheduled a foreclosure sale in the present action of the Palmer Sayville property for December 23, 1977. Sale was, however, delayed by negotiations between the parties. When those negotiations broke down defendants sought and ultimately obtained permission to file an answer. The answer served pleaded as an affirmative defense that by reason of plaintiffs’ failure to move for a deficiency judgment within 90 days after delivery to them of the deed to the Shirley property, foreclosure of the Sayville property was barred by RPAPL 1371 (3).

Special Term, noting that plaintiffs neither sought to foreclose on all properties in one action nor asked permission to bring separate actions (cf. RPAPL 1301), found it unnecessary to consider whether leave should be granted nunc pro tune. It held that because plaintiffs had failed to move for a deficiency judgment in the earlier action, RPAPL 1371 (3) required that the proceeds of sale in that action be deemed to be in full satisfaction of the mortgage debt. The Appellate Division affirmed in a short memorandum (113 AD2d 882).

The appeal is before us by our leave (67 NY2d 601). Plaintiffs argue that the purpose of RPAPL 1371 was to protect the mortgage debtor from multiple lawsuits, that the authorities cited by the courts below do not deal with the single debt-multiple mortgage situation here presented, and that no claim having been made against defendant Palmer in the first foreclosure action, the judgment in that action did not affect her. We conclude that plaintiffs take too limited a view of the purpose of the statute in its present form and, therefore, affirm.

II

Plaintiffs correctly state the purpose of so much of RPAPL 1371 as was enacted by the Revised Statutes of 1829 (vol 2, part III, ch I, tit II, art 6, § 151 ff). The 1829 enactment changed the prior common-law rule, an exception to the general rule that equity does justice completely and not by halves, that a deficiency judgment could not be obtained in a foreclosure action and had to be obtained in a separate action at law (Jamaica Sav. Bank v M.S. Investing Co., 274 NY 215; Frank v Davis, 135 NY 275). Its purpose "was to relieve parties from the expense and vexation of two suits, one equitable and the other legal, where the whole controversy could be adjusted in the one suit” (Frank v Davis, supra, at p 278). Under its provisions "[t]he deficiency was to be ascertained by a sale of the mortgaged premises, and not by the estimates of witnesses or other less satisfactory evidence” (id., at p 279).

That purpose was materially expanded and changed as a result of the depression of the early 1930s. In his message to the extraordinary session of the Legislature proposing enactment of relief for mortgage debtors, which ultimately became the Laws of 1933 (ch 794), Governor Herbert H. Lehman stated:

"It is evident that the State will have to intervene to prevent to some extent the hardships now being occasioned by foreclosures of mortgages on homes and farms. Owing to the current depression, thousands of our citizens who have invested their life savings in individual homes now find themselves faced with the prospect of having these homes taken from them.

* * *

"The hardship has been seriously aggravated by reason of the fact that upon foreclosure sales, deficiency judgments have been entered against home owners entirely out of line with the fair value of the property. In this way not only does the small home owner lose his home but he frequently becomes saddled with an excessive deficiency judgment for the rest of his life. The cause of these deficiency judgments is again the absence of any real estate market, and the consequent reluctance to bid on the foreclosure block.

* * *

"The problem connected with the securing of deficiency judgments is almost as important as that of mortgage foreclosures. I am of the definite opinion that an end must be made of the present system of obtaining exaggerated deficiency judgments. A deficiency judgment should bear some definite relation to the real value of the property, rather than to the price established at the forced auction sale. Not only homes but all forms of real estate are equally affected by this. I believe that such relief should be extended to all real estate. Authority should be granted to the Supreme Court to determine the fair value of the real estate foreclosed, irrespective of the price bid, and to limit the deficiency judgment only to the difference between that determined value and the amount of the bond. The burden of proving such value should be placed upon the mortgagee foreclosing the property, and in the absence of such proof the presumption should be that the value of the property is at least the amount of the first mortgage.” (Public Papers of Herbert H. Lehman, 1933, at 140, 141-142.)

The emergency provisions enacted by Laws of 1933 (ch 794) became Civil Practice Act §§ 1083-a, 1083-b and 1083-c. Thereafter in 1938 the Joint Legislative Committee on Mortgage Moratorium and Deficiency Judgments reported to the Legislature that: "It would seem that the present provisions with respect to deficiency judgments, namely, section 1083-a of the Civil Practice Act, are fair both to the mortgagor and mortgagee, both in times of emergency and in normal times, and that by appropriate amendment it might well be continued beyond the emergency period as a permanent part of the Civil Practice Act with respect to existing mortgages, irrespective of what position the Legislature may take with respect to abolishing deficiency judgments on mortgages thereafter executed. Certainly no one can justify a mortgagee having, for example, a $5,000 mortgage on a piece of property worth $10,000 at the time the mortgage was given and still worth $7,000 at the time the property was sold on foreclosure bidding in said property for $4,000 and taking a deficiency judgment for the balance due on the principal of $1,000 and perhaps another $1,000 for interest, taxes and costs.” (NY Legis Doc, 1938, No. 58, at 35-36.) As a result of that report Civil Practice Act § 1083 was amended by adding to it, in identical language, all but the first sentence of section 1083-a, and in 1962 Civil Practice Act § 1083, with no change other than the insertion of subdivision numbers and the deletion of an obsolete provision relating to actions pending when the 1938 amendment took effect, became RPAPL 1371 (L 1962, ch 312, § 27).

Thus, avoidance of a multiplicity of lawsuits was one of the purposes of providing by statute for entry of a deficiency judgment in a foreclosure action (RPAPL 1371 [1]) and proscribing a separate action to recover such a deficiency without leave of court (RPAPL 1301). But the broader reach of the 1938 amendments was to benefit the mortgagor and burden the mortgagee by requiring that in the computation of any deficiency the mortgagor be credited with the market value as determined by the court or the sale price of the property, whichever is higher, and by mandating that, as to a mortgagee who fails to move for a deficiency judgment, "the proceeds of the sale regardless of amount shall be deemed to be in full satisfaction of the mortgage debt and no right to recover any deficiency in any action or proceeding shall exist” (RPAPL 1371 [3]).

Ill

Not long after the 1938 amendment to Civil Practice Act § 1083 (L 1938, ch 502), we declared with respect to its multiplicity of suits purpose that it was the settled rule that leave to bring a separate action would not be granted as to "a party who could have been made a defendant in the foreclosure action unless special circumstances were shown which manifestly required that course” (National City Bank v Gel fert, 284 NY 13, 22, revd on other grounds 313 US 221). And the same case made clear that the enactment we now know as RPAPL 1371 (2) and (3) "is not emergency legislation, is not confined to cases where the sale price shocks the conscience, and is applicable whether a purchaser on foreclosure is the mortgagee or is a third party” (id., at p 18).

We need not decide whether special circumstances warranting a grant of leave to bring this second action existed, for it is undisputed that plaintiffs never sought permission to begin it, that defendant Palmer not only could have been but was made a party defendant in the first, Shirley, foreclosure, and that both properties are situated in the same county. Nor need we decide whether defendant Palmer, who defaulted in appearance in the Shirley foreclosure, would have been entitled to notice of the application for a deficiency judgment in that action had one been made, for, as noted above, no such application was made.

It is, moreover, clear that the "party against whom such judgment is sought” within the meaning of RPAPL 1371 (2) is not limited to the mortgagor (Klinke v Samuels, 264 NY 144, 149; Vanderbilt v Schreyer, 91 NY 392, 396, 399; see, Honeyman v Hanan, 275 NY 382, appeal dismissed 302 US 375; City Bank Farmers Trust Co. v Ardlea Incorporation, 267 NY 224). Had application been made in the prior action for judgment fixing the deficiency resulting from sale of the Shirley property, the determination made by the court would, therefore, have fixed the amount obtainable by plaintiffs on defendant Palmer’s guarantee and mortgage and would have been binding upon her.

That several mortgages have been given to secure a single debt does not authorize separate foreclosure actions when the properties involved are all subject to the jurisdiction of one court. What is required, rather, is that, unless the court orders otherwise, there be separate sales of the security in such order as the court may fix, and an application after each sale and before the next occurs for determination of the deficiency resulting from the sale, for otherwise what remains due and payable from the additional security provided cannot be known. Were no deficiency application made after each such sale, a guarantor who has provided security additional to that given by the debtor and who, like the debtor, is entitled to the protection of RPAPL 1371 (3) when no deficiency judgment is obtained (TBS Enters. v Grobe, 114 AD2d 445; Kleet Lbr. Co. v Foley Constr. Corp., 91 AD2d 1014; Kings County Sav. Bank v Fulton Sav. Bank, 268 App Div 452; Merchants Natl. Bank & Trust Co. v Wagner, 93 Misc 2d 224; State Bank v Amak Enters., 77 Misc 2d 340; see, Bedcro Realty Corp. v Title Guar. & Trust Co., 290 NY 520; Statewide Sav. & Loan Assn. v Canoe Hill, 44 NY2d 843, ajfg 54 AD2d 1018; Band Realty Co. v North Brewster, 59 AD2d 770) would be deprived of that protection. That the deficiency in a multiple security situation is determined following sale on foreclosure of the security first sold does not affect the applicability of the statute or permit the institution of separate proceedings without permission of the court (cf. Frank v Davis, supra, at p 279). To the extent that Bodner v Brickner (29 AD2d 441) and Klein v Gray (127 NYS2d 459), relied upon by plaintiffs, are to the contrary they are not to be followed.

For the foregoing reasons, the order of the Appellate Division should be affirmed, with costs.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone and Hancock, Jr., concur.

Order affirmed, with costs.

      . RPAPL 1313 provides that “[a]ny person who is liable to the plaintiff for payment of the debt secured by the mortgage may be made a defendant in the action.”

      . See, CPLR 507; 2 Weinstein-Korn-Miller, NY Civ Prac fl 507.07.

      . See, RPAPL 1371 (2); CPLR 3215; and Siegel, NY Prac § 296, at 351.

      . To be distinguished are cases concerning junior mortgages on the same property (e.g., Dow Estates, Inc. v Smith, 290 NY 484), for in such a case sale under the senior mortgage extinguishes the junior, though not the obligation which it secures.