author: Bellacosa, J.

text:
    [638 NE2d 981, 615 NYS2d 336]
    In the Matter of Veronica Johannesen, Respondent, v New York City Department of Housing Preservation and Development, Appellant. Workers’ Compensation Board, Respondent.
    Argued April 26, 1994;
    decided June 21, 1994

      POINTS OF COUNSEL

      Paul A. Crotty, Corporation Counsel of New York City (Barry P. Schwartz and Leonard Koerner of counsel), for appellant.
    I. The Court below’s affirmance of the Workers’ Compensation Board’s finding of an "accidental” injury is inconsistent, as a matter of law, with this Court’s ruling in Matter of Mack v County of Rockland (71 NY2d 1008 [1988]) that a disorder caused by prolonged exposure to cigarette smoke in the workplace, which is not due to the "very nature” or a "distinctive feature” of claimant’s job, is an uncompensable ailment under the Workers’ Compensation Law. (Matter of Vernoia v National Council on Compensation Ins., 147 AD2d 863, 74 NY2d 608; Matter of Knight-Ridder Broadcasting v Greenberg, 70 NY2d 151; Matter of Cunningham v Neisner Bros., 9 AD2d 965.) II. Assuming, arguendo, that Mack is not controlling in this case, the term "accidental” injury excludes, as a matter of law, a malady such as claimant’s asthma here (1) which is solely an allergic or other type of sensitivity reaction to a routine exposure in the particular work environment in question, that existed in many others as well, rather than to an unexpected or unusual circumstance or event there; and (2) which, under the Court below’s reasoning, took five years to become a disabling condition. (Matter of Richardson v Fiedler Roofing, 67 NY2d 246; Matter of Wood v Laid-law Tr., 77 NY2d 79; Matter of Middleton v Coxsackie Correctional Facility, 38 NY2d 130; Matter of Wolfe v Sibley, Lindsay & Curr Co., 36 NY2d 505; Matter of Connelly v Hunt Furniture Co., 240 NY 83; Matter of Lurye v Stern Bros. Dept. Store, 275 NY 182; Barrencotto v Cocker Saw Co., 266 NY 139; Matter of Lanphier v Air Preheater Corp., 278 NY 403; Matter of Lerner v Rump Bros., 241 NY 153.) III. Even if such a prolonged airborne-induced sensitivity reaction to a daily environmental condition can be an industrial "accident” under certain factual circumstances, the evidence in this case is legally insufficient to satisfy the time-definiteness also required of an "accident”, because (1) it is undisputed that claimant’s exposure to the cigarette smoke was constant and continuous rather than irregular and sudden traumatic events; and (2) the documented proof is that claimant exhibited a chronic and unchanged symptomatology instead of a relatively abrupt collapse. (Matter of Middleton v Coxsackie Correctional Facility, 38 NY2d 130; Matter of Albrecht v Orange County Community Coll., 61 AD2d 1068, 46 NY2d 959; Matter of Pessel v Macy & Co., 40 AD2d 746, 33 NY2d 721; Matter of Floom v Harfred Operating Co., 52 AD2d 703; Matter of Scuderi v Miss Ann Dresses, 24 AD2d 905; Matter of Levine v Imperial Textile Co., 40 AD2d 886.)

      G. Oliver Koppell, Attorney-General, New York City (Howard B. Friedland, Jerry Boone, Peter H. Schiff, Jane Lauer Barker and Theresa E. Wolinski of counsel), for Workers’ Compensation Board, respondent.
    The Court below correctly upheld the Board’s finding that claimant suffered a compensable accident. (Matter of Middleton v Coxsackie Correctional Facility, 38 NY2d 130; Matter of Hennige v Fairview Fire Dist., 99 AD2d 158; Matter of Rogers v General Aniline & Film Corp., 33 AD2d 1074; Matter of Lynch v Rockland County Dept. of Social Servs., 124 AD2d 430; Matter of Green-smith v Franklin Natl. Bank, 21 AD2d 576, 16 NY2d 973; Matter of Reichard v Franklin Mfg. Co., 223 App Div 797, 249 NY 525; Matter of Di Simone v Underwriters Adjusting Co., 91 AD2d 782; Matter of Hill v Thompson, 61 NY2d 1018; Matter

      of McDonough v Whitney Point Cent. School, 15 AD2d 191; Matter of Stein v Schneider, 34 AD2d 1062.)

      Stephen M. Gielowski and D. Jeffrey Buckley, Buffalo, for New York State Association of Counties and others, amici curiae.

    I. A finding that claimant did in fact sustain a compensable work-related accident would broaden the Workers’ Compensation Law beyond its intended scope and purpose. (Matter of Jeffreys v Sager Co., 198 App Div 446, 233 NY 535; Matter of Deyo v Village of Piermont, 283 App Div 67, 678; Matter of Goldberg v Conversations & Surveys, 6 AD2d 563; Matter of Lemer v Rump Bros., 241 NY 153; Matter of Tobin v Steisel, 64 NY2d 254; Matter of Detenbeck v General Motors Corp., 309 NY 558; Matter of Goldberg v 954 Marcy Corp., 276 NY 313; Matter of McCarter v LaRock, 240 NY 282.) II. This case must be examined and decided while keeping in mind the environmental setting and state of the law that existed when the alleged exposure took place. III. An affirmation of the Court below’s decision will inevitably lead to a significant increase of costs to employers and carriers in the form of increasing premiums and medical expenses at a time when the legislative and executive intents are otherwise.

      Pasternack Popish & Reiff, P. G, Brooklyn (Victor Pasternack and Dominick J. Tuminaro of counsel), for The Amalgamated Clothing and Textile Workers Union and others, amici curiae.

    I. Substantial evidence supported the finding that claimant’s prolonged exposure to an unusual hazard in the work environment resulted in a relatively sudden event sufficiently definite in time to satisfy requisite criteria applicable to an "accident” under the Workers’ Compensation Law. (Matter of Middleton v Coxsackie Correctional Facility, 38 NY2d 130; Matter of Schutzel v Gelobters Distribs., 24 AD2d 793; Matter of Lyman v Pinkerton Natl. Detective Agency, 33 AD2d 937; Matter of Schechter v State Ins. Fund, 6 NY2d 506.) II. The decision of the Court below is consonant with the public policy objectives of the Workers’ Compensation Law.

      Colleran, O’Hara & Mills, Garden City, (Edward J. Groarke of counsel), for New York State AFL-CIO, amicus curiae.

    Claimant suffered an "accident” under New York’s Workers’ Compensation Law. (Matter of Middleton v Coxsackie Correctional Facility, 38 NY2d 130; Matter of Mack v County of Rockland, 71 NY2d 1008; Matter of Lynch v Rockland County Dept. of Social Servs., 124 AD2d 430; Matter of Greensmith v

      Franklin Natl. Bank, 21 AD2d 576; Matter of Neilson v Michaels Stern & Co., 282 App Div 793.)
   OPINION OF THE COURT

Bellacosa, J.

The determinative issue on this municipal, self-insurer, employer’s appeal is whether claimant’s bronchial asthma, aggravated by exposure to excessive amounts of secondhand cigarette smoke in a confined work environment, constitutes an accidental injury compensable under the Workers’ Compensation Law. The Workers’ Compensation Board found an accidental injury and the Appellate Division affirmed. Because the decision accords with established precedents and is supported by substantial evidence, we affirm.

1

The facts are essentially uncontroverted. Claimant, Veronica Johannesen, was an office assistant for the City of New York when, in 1981, she was assigned to work at the City’s Department of Housing Preservation and Development. The office in which claimant worked consisted of one large room for approximately 50 employees, at least half of whom smoked cigarettes. The room was crammed with desks and file cabinets, so that the employees worked in close proximity to one another. The windows were kept closed because of smoke from the kitchen of a restaurant located below the office. Also, the office ventilation system did not function properly. A coemployee, who worked on the same office floor as claimant, confirmed claimant’s factual allegations.

By 1983, claimant began wheezing and coughing at work. Her breathing worsened and, in January 1985, she was diagnosed as suffering from bronchial asthma aggravated by exposure to the tobacco smoke and dust in the workplace. Her treating physician recommended that she work only in a smoke-free environment. Claimant’s transfer requests, however, were repeatedly denied.

In 1985, claimant sought workers’ compensation benefits based on her asthmatic episodes of wheezing, coughing and spitting. Prior to the administrative hearing, in January 1986, claimant experienced two sudden and traumatic asthmatic attacks at work. On both occasions she was rushed to a hospital for emergency medical treatment and assistance for her breathing difficulty.

At the hearing, medical reports documented that claimant was first treated in 1983 for breathing difficulties and that her exposure to secondhand cigarette smoke at her office aggravated her condition. The Workers’ Compensation Law Judge found that claimant suffered from a compensable occupational disease and made an award. On appeal, the Workers’ Compensation Board rescinded the Administrative Law Judge’s rationale, found instead that claimant had sustained an accidental injury as a result of repeated trauma of exposure to passive cigarette smoke, and restored the case to the Workers’ Compensation Trial Calendar. The Appellate Division affirmed, stating that the Board’s determination of accidental injury was supported by the record (154 AD2d 753). We granted leave to appeal from the final decision of the Workers’ Compensation Board and now affirm that decision and the order of the Appellate Division brought up for review.

IL

The Workers’ Compensation Law was enacted for socioeconomic remediation purposes "as a means of protecting workers] and their dependents from want in case of injury” on the job (Matter of Post v Burger & Gohlke, 216 NY 544, 553; see, Surace v Danna, 248 NY 18, 20-21). An employee is entitled to receive compensation on a "no-fault” basis for all injuries "arising out of and in the course of the employment” (Workers’ Compensation Law § 10 [1]; see also, § 2 [7]; § 21; Matter of Wood v Laidlaw Tr., 77 NY2d 79, 82). Under Workers’ Compensation Law §2 (7), "injury” and "personal injury” means only "accidental injuries arising out of and in the course of employment and such disease or infection as may naturally and unavoidably result therefrom”. To effectuate the statutory objectives, Workers’ Compensation Law § 21 (1) creates a presumption that injuries "arising out of and in the course of’ employment are compensable under section 10 (1) as "accidents” (Matter of Richardson v Fiedler Roofing, 67 NY2d 246, 251). Moreover, given the remedial nature of the Workers’ Compensation Law, the Court has construed the statute and given the Board, as "trier[ ] of the facts”, a very wide latitude in determining whether a disabling condition is an accident (Matter of Middleton v Coxsackie Correctional Facility, 38 NY2d 130, 135; see, Matter of Holcomb v Daily News, 45 NY2d 602, 607; Matter of Wolfe v Sibley, Lindsay & Curr Co., 36 NY2d 505, 508). In particular, the Court has noted also that an accidental injury must be gouged by the "common-sense viewpoint of the average [person]” (Matter of Middleton v Coxsackie Correctional Facility, 38 NY2d 130, 134, supra; Matter of Masse v Robinson Co., 301 NY 34, 37).

On this appeal, the causal relationship between claimant’s inhalation of the secondhand tobacco smoke and the aggravation of her bronchial asthma is not disputed. In addition to claimant’s proof, the employer’s own medical expert confirmed the existence of claimant’s obstructive lung disease and concluded that her work environment aggravated her asthma condition. Thus, the sole focus of this Court’s law question inquiry is whether claimant sustained an accidental injury within the meaning of the Workers’ Compensation Law.

IIL

Appellant Department of Housing Preservation and Development mounts a three-pronged attack against claimant’s case qualifying as an "accidental injury”. First, citing Matter of Mack v County of Rockland (71 NY2d 1008), the appellant employer argues that routine exposure to tobacco smoke in the work environment did not constitute an "accidental injury” in the early 1980s, though it acknowledges that it does today. Second, the Department asserts that the average person would not view claimant’s bronchial asthma as an "accidental injury” because the asthma condition is solely an allergic or other type of sensitivity reaction to an everyday environmental condition and did not occur in an unexpected or unusual circumstance. Lastly, appellant asserts that even if the circumstances are deemed an "accident,” the evidence is legally insufficient as to the "time-definiteness” component affixed under Matter of Middleton v Coxsackie Correctional Facility (38 NY2d 130, 137, supra).

Matter of Mack v County of Rockland (71 NY2d 1008, supra) does not aid or support appellant’s cause. That case is an "occupational disease” case and this one is an "accidental injury” case. A different analysis applies here.

In Mack, the claimant, a psychiatric social worker, suffered an aggravation of a preexisting eye disorder as a result of exposure to cigarette smoking in a poorly ventilated workplace. The Court affirmed an order of the Appellate Division which dismissed the claim that she suffered an "occupational disease” within the meaning of the Workers’ Compensation Law (see, Workers’ Compensation Law § 3 [2]). The Court held that because the claimant’s injury was caused solely by the "environmental condition[ ] of her work place, not by any distinctive feature of the occupation of a psychiatric social worker”, the claimant could not maintain a claim based on occupational disease (id., at 1009 [emphasis added]). The focus of an "occupational disease” claim is on the nature of the work (see, Workers’ Compensation Law §2 [15]), not the nature of the workplace environment. Accordingly, denial of a claim in the occupational disease category is not definitive for an accidental injury in the workplace category (see, Matter of Middleton v Coxsackie Correctional Facility, 38 NY2d, at 134, supra).

The term of art, accidental injury, lacks a statutory definition and, thus, requires a distinctive analysis and tracking of pertinent precedents. An accidental injury need not result suddenly or from the immediate application of some external force but may accrue gradually over a reasonably definite period of time (see, Matter of Middleton v Coxsackie Correctional Facility, supra). There, a correction officer contracted tuberculosis through exposure, over a period of three or four months for two or three hours a day, to an infected, coughing inmate. In holding that the claimant’s tuberculosis was an accidental injury, the Court in Middleton relied on Matter of Pessel v Macy & Co. (40 AD2d 746, affd 33 NY2d 721), where we held that a claimant’s exposure to repeated bursts of cold air over a period of three months, which activated an underlying arthritic condition, was an accidental injury (see also, Matter of Greensmith v Franklin Natl. Bank, 21 AD2d 576, affd 16 NY2d 973). Gradual injury was also recognized as a compensable disability accident in Matter of Michelfelder v Van Alstyne (217 App Div 810, affd 245 NY 569), where a garage mechanic, while in the course of his employment, routinely inhaled carbon monoxide gas from which he developed bronchitis (see also, Matter of Reichard v Franklin Mfg. Co., 223 App Div 797, affd 249 NY 525).

In the present case, claimant’s bronchial condition progressively worsened from 1981 to 1986. The injury may have been gradual, but the record substantiates that her working environment was highly dangerous for her and aggravated her asthma. Professor Larson has noted that "most jurisdictions have at some time awarded compensation for conditions that have developed, not instantaneously, but gradually over periods ranging from a few hours to several decades, culminating in disability from * * * asthma” (IB Larson, Workers’] Compensation Law § 39.10, at 7-384 [1993]).

Appellant, citing Matter of Lerner v Rump Bros. (241 NY 153, 156), interjects, however, that the absence of a "catastrophic or extraordinary” event disqualifies these events from the accidental injury category. While exposure to cigarette smoke in our society and in workplaces may have been and still is relatively endemic, the facts surrounding this claimant’s exposure, even from Middleton’s "common sense” viewpoint of the average person, demonstrate an exacerbative and excessive quality. Claimant was required to work in an unventilated office and forced to share the polluted atmosphere with numerous smokers, who were all around her. She was allowed no alternative but to inhale the dense, dangerous and debilitative smoke-filled air. Graphically, she suffered two bronchial breakdowns at work requiring emergency medical attention. Claimant worked in an office where the tools of her trade are papers, pens, files, computers and telephones. Cigarette smoke is surely not a natural by-product of the Department of Housing Preservation and Development’s activities and her employment role. Thus, unlike Lerner, this risk was not a commonly understood, ordinary incident to the environmental workplace. Just as the Court rejected the employer’s contention in Matter of Gardner v New York Med. Coll. (280 App Div 844, affd 305 NY 583), that a sneeze could not be an "accident” because people normally sneeze, we reject this employer’s assertion that exposure to tobacco smoke was not an accident essentially because many people still smoke. The seriously adverse environmental conditions to which claimant was subjected as part of her job and workplace reasonably qualify as an unusual hazard, not the "natural[ ] and unavoidable]” result of employment (Workers’ Compensation Law § 2 [7]).

We are also satisfied that the severe bronchial aggravation, reflected among other facets of this case, by two on-the-job asthma episodes, requiring immediate emergency medical attention, met the time-definite component of the accidental injury rule (see, Middleton, supra, at 135). We perceive no legally cognizable distinction between this claimant’s "attack” following years of exposure to excessive levels of secondhand cigarette smoke in her workplace and the now quintessential cardiac collapse cases ensuing from extended periods of strain for which awards are customarily upheld (see, e.g., Matter of Schechter v State Ins. Fund, 6 NY2d 506; Matter of Masse v Robinson Co., 301 NY 34, supra).

Claimant’s predisposition with an asthma condition does not change the analysis or result. It is well settled that where causally related injuries from a claimant’s employment precipitate, aggravate or accelerate a preexisting infirmity or disease, the resulting disability is compensable (see, e.g., Matter of McCormick v Green Bus Lines, 29 NY2d 246; Matter of Masse v Robinson Co., 301 NY 34, 37, supra ["(a) heart injury such as coronary occlusion or thrombosis when brought on by overexertion or strain in the course of daily work is compensable, though a pre-existing pathology may have been a contributing factor”]; Matter of Lynch v Rockland County Dept, of Social Servs., 124 AD2d 430 [aggravation of arthritic condition]; Matter of Rogers v General Aniline & Film Corp., 33 AD2d 1074; Matter of Nofi v American Chicle Co., 9 AD2d 966, lv denied 7 NY2d 710 [aggravation of spondylolisthesis]).

Appellant employer urges additional cases (for example, Barrencotto v Cocker Saw Co., 266 NY 139; Matter of Lanphier v Air Preheater Corp., 278 NY 403; Matter of Vaughn v Bushwick Iron & Steel, 9 NY2d 727) to support its view that claimant’s bronchial asthma was not an accidental injury. These cases require no extended discussion or analysis because they are plainly distinguishable on their facts and on distinctive legal principles involved.

Finally, in a policy-based argument, appellant suggests that recovery here will open floodgates and make every allergic reaction, common cold or ordinary ailment compensable. This argument is often advanced when precedent and analysis are unpersuasive. It is unavailing in this case (see, e.g., Matter of Wood v Laidlaw Tr., 'll NY2d 79, 82-83, supra; Matter of Wolfe v Sibley, Lindsay & Curr Co., 36 NY2d 505, 514, supra). The holding in this case does not change existing criteria and legal principles for determining whether a work-related and work-site injury is accidental. Claimants are still required to make showings of unusual environmental conditions or events assignable to something extraordinary that caused an accidental injury. This claimant did so to the satisfaction of the Board and each court that has reviewed the matter. Standard preexisting legal tests were met in this case and substantial evidence supports the Board’s determination that claimant’s disabling and aggravated asthmatic condition, caused by prolonged exposure to secondhand cigarette smoke in her confined employment workplace, constituted an accidental injury within the meaning and intent of the Workers’ Compensation Law. The award should be upheld.

Accordingly, the decision of the Workers’ Compensation Board appealed from and the order of the Appellate Division brought up for review should be affirmed, with costs.

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

Decision of the Workers’ Compensation Board appealed from and order of the Appellate Division brought up for review affirmed, with costs.


source: Caselaw Access Project

author: Ciparick, J.

license: Public Domain

text:
    [638 NE2d 986, 615 NYS2d 341]
    In the Matter of Herbert Zaretsky, Appellant, v New York City Health and Hospitals Corporation et al., Respondents.
    Argued April 28, 1994;
    decided July 5, 1994

      POINTS OF COUNSEL

      Finger & Finger, P. C., White Plains (Dorothy M. Finger and Kenneth J. Finger of counsel), for appellant.
    I. The Court of Appeals of the State of New York has jurisdiction in this matter which presents constitutional issues involving petitioner-appellant’s rights under the First Amendment and Fourteenth Amendment of the Constitution. (Matter of Pell v Board of Educ., 34 NY2d 222; Matter of McDermott v Murphy, 15 AD2d 479, 12 NY2d 780; Matter of Stolz v Board of Regents, 4 AD2d 361.) II. Respondents violated petitioner’s First Amendment rights and his concomitant liberty interests in violation of United States Constitution, CPLR article 78 and 42 USC § 1983. (Perry v Sindermann, 408 US 593; Rookard v Health & Hosps. Corp., 710 F2d 41; Monroe v Pape, 365 US 167; Ryland v Shapiro, 708 F2d 967; N. A. A. C. P. v Button, 371 US 415; California Transp. v Trucking Unlimited, 404 US 508; Harrison v Springdale Water & Sewer Commn., 708 F2d 1422; Matzker v Herr, 748 F2d 1142; Familias Unidas v Briscoe, 619 F2d 391; Russo v Central School Dist. No. 1, 469 F2d 623.) III. Respondents’ removal of petitioner from Goldwater Hospital violated his due process rights. (Board of Regents v Roth, 408 US 564; Matter of Johnson v Katz, 116 AD2d 930; Matter of Garrison v Koehler, 161 AD2d 322; Kadragic v State Univ. of N. Y, 73 AD2d 638; Matter of Terrible v County of Rockland, 81 AD2d 837; Matter of Chant v Department of State, 60 AD2d 535; Mt. Healthy City Bd. of Educ. v Doyle, 429 US 274; In re Primus, 436 US 412.) IV. The action of the New York City Health and Hospitals Corporation terminating petitioner from his employment was arbitrary and capricious because the sanctions were shocking and disproportionate. (Matter of Pell v Board of Educ., 34 NY2d 222.) V. The right to practice a lawful trade or profession is sufficiently "fundamental” to require substantial protection against arbitrary administrative interference by government or a private entity with power to thwart it or to control the terms and conditions under which it is practiced.

      Paul A. Crotty, Corporation Counsel of New York City (Stephen J. McGrath, Leonard Koemer and Gail Donoghue of counsel), for respondents.
    The Court below properly dismissed the petition. Petitioner, an at-will employee, has failed to establish that his termination violated a constitutional, statutory or contractual provision. (Matter of Bergamini v Manhattan & Bronx Surface Tr. Operating Auth., 62 NY2d 897; Murphy v American Home Prods. Corp., 58 NY2d 293; Matter of Bums v Quinones, 68 NY2d 719; Matter of York v McGuire, 63 NY2d 760; Matter of Bergstein v Board of Educ., 34 NY2d 318; Matter of Soto v Koehler, 171 AD2d 567, 78 NY2d 855; Matter of Lentlie v Egan, 61 NY2d 874; Codd v Velger, 429 US 624; Matter of Johnson v Katz, 116 AD2d 930, 68 NY2d 649; Matter of Anonymous v Codd, 40 NY2d 860.)
   OPINION OF THE COURT

Ciparick, J.

In this CPLR article 78 proceeding, petitioner seeks reinstatement to his positions of Director of Psychology Service and Associate Director of Rehabilitation Medicine at Goldwater Memorial Hospital on the ground that his March 1988 discharge violated his rights of free speech, free association and access to the courts. At issue on this appeal is whether respondents’ determination to discharge petitioner and not consider his request for reinstatement abridged petitioner’s constitutional rights.

In 1970, petitioner became the Director of Psychology Service at Goldwater Memorial Hospital (Goldwater), a facility for disabled and chronically ill individuals owned and operated by respondent New York City Health and Hospitals Corporation (HHC). As of January 1, 1988, petitioner also held the position of Associate Director of Rehabilitation Medicine. Petitioner served at Goldwater under an Affiliation Contract between New York University Medical Center (NYU) and HHC, the successor-in-interest to the original contract signatory, the City of New York, pursuant to which NYU provided professional services and medical and support personnel for the delivery of health care.

Throughout much of his tenure at Goldwater, petitioner was a member and officer of the not-for-profit corporation, Friends of Goldwater Hospital, Inc. (Friends), founded in 1975 to advance the causes of Goldwater, its patients and its staff members.

In 1987, when petitioner was president of Friends, HHC demanded a financial and compliance audit of Friends under a newly revised operational procedure requiring auxiliaries to account for patient care revenues. While petitioner, in his capacity as president, ultimately turned Friends’s books and records over to HHC, he also authorized a lawsuit on behalf of Friends against HHC challenging its authority to conduct the audit and seeking to enjoin the audit. Friends instituted an action for declaratory and injunctive relief against HHC in Supreme Court, while investigations of the financial practices of Friends were proceeding under the auspices of both HHC and the Attorney-General’s Medicaid Fraud Control Unit.

According to HHC, its investigations of the financial records of Friends revealed evidence of improper loans to Goldwater employees, expenditures for the personal benefit of such employees and the absence of documentation detailing any benefits to Goldwater patients. Based on the existence of these investigations, respondent HHC President Jo Ivey Boufford, pursuant to her authority under section 5.01 (b) of the Affiliation Contract, requested that NYU remove petitioner from Goldwater.

In response, NYU requested that HHC defer any action against petitioner until the investigations by HHC and the Attorney-General’s office concluded. Respondent Boufford rejected NYU’s suggestion, reiterating her previous request that petitioner be removed forthwith.

Petitioner was subsequently discharged. Based on a representation from the Attorney-General’s Medicaid Fraud Control Unit that petitioner was not the target of an investigation

and was fully cooperative, NYU sought petitioner’s reinstatement by HHC. By letter directed to NYU respondent Boufford denied reinstatement, stating, in pertinent part,

"Friends of Goldwater [has] brought a lawsuit against HHC, and questions about [petitioner’s] conduct and status have been raised in connection with that lawsuit. Until issues are fully and finally resolved, I do not see how HHC can consider your request that [petitioner] be reinstated.”

This article 78 proceeding ensued.

Supreme Court granted the petition to the extent of finding that although petitioner was an at-will employee, he demonstrated that his removal from Goldwater was made in bad faith on the ground that it was either based upon an audit of Friends which HHC was unauthorized to conduct or was an attempt to interfere with his right of association. Supreme Court remanded the matter to HHC for a hearing on "why [petitioner’s] continued employment * * * was not in the best interests of the public” (sic).

The Appellate Division reversed, finding no hearing was required as petitioner was simply an at-will employee who failed to establish that his termination violated any constitutional, statutory or contractual provision which would warrant a pretermination hearing or even a statement of reasons.

Petitioner’s appeal is before this Court as a matter of right (CPLR 5601 [b]).

Petitioner points to the letters from respondent Boufford to NYU requesting his removal as a result of the investigation of Friends and denying reinstatement based on the pendency of the Friends lawsuit against HHC as proof that respondents’ conduct abridged his constitutional rights to free speech, to freely associate and to petition. Respondents counter that petitioner, an at-will employee, failed to establish that his removal violated any constitutional, statutory or contractual provision. Further, respondents argue that petitioner has not demonstrated his entitlement to a hearing as an affiliate employee.

The rights of free speech and free association flowing from the First Amendment are protected liberty interests and the right to petition and access the courts is recognized as a liberty and property interest under the Fourteenth Amendment (Mt. Healthy City Bd. of Educ. v Doyle, 429 US 274, 283; see also, Pickering v Board of Educ., 391 US 563 [First Amendment rights attach to public employee’s speech on matters of public concern]; Ryland v Shapiro, 708 F2d 967, 972 [interference with right of access to courts grounded in the Due Process Clause of the Constitution and the First and Fourteenth Amendments gives rise to a 42 USC § 1983 claim]).

No employee in the public sector employed for a fixed term or an indefinite period can be discharged for the exercise of constitutionally protected rights or activities (Matter of Bergamini v Manhattan & Bronx Surface Tr. Operating Auth., 62 NY2d 897, 898; Matter of State Div. of Human Rights [Cottongim] v County of Onondaga Sheriff’s Dept. 71 NY2d 623, 630). The rights of a public employee, however, can be restrained when their exercise interferes with the government-employer’s functions (Waters v Churchill, 511 US —, —, 114 S Ct 1878, 1886-1888 [government agency may discharge employee for disruptive speech provided it had reasonable basis for belief that speech was disruptive, or involved matter outside purview of First Amendment protection]; Connick v Myers, 461 US 138,150-151; Pickering, 391 US 563, 568, supra).

An aggrieved employee bears the burden of producing legally admissible evidence demonstrating that the dismissal was for constitutionally impermissible reasons, violative of a statutory proscription or contrary to an express contractual provision (Matter of Bergstein v Board of Educ., 34 NY2d 318, 323). Petitioner’s inability to satisfy his burden of demonstrating that his discharge was constitutionally impermissible defeats his petition and any claim of a right to a hearing.

As a public employer, respondent HHC is under no constitutional or legal obligation to retain an employee whose conduct the public employer deems disruptive of its operation (see, Waters, 511 US, at —, —, 114 S Ct, at 1887, 1891, supra ["As a matter of law, (the) potential disruptiveness (to the government-employer) was enough to outweigh whatever First Amendment value the speech might have had”]; Connick, 461 US 138, 150-151, supra; Pickering, 391 US 563, 568, supra). Thus, when petitioner’s constitutional rights are balanced against respondents’ interests in effectively and efficiently discharging its mandate, respondents’ interests must prevail.

HHC had no objection to petitioner’s membership in and leadership of Friends, until Friends came under investigation for financial irregularities. Indeed, petitioner voluntarily resigned from his presidency of Friends shortly after he made Friends’s financial records available to HHC and authorized institution of the suit to enjoin HHC from interfering with Friends. Juxtaposed against these facts, petitioner’s reliance on respondent Boufford’s ambiguous letter denying reinstatement to satisfy his burden of establishing a violation of his constitutional rights is untenable. In this regard, petitioner’s attempts to characterize his affiliation with Friends as protected association and to elevate the Friends lawsuit to the level of protected speech or a petition to enforce an underlying constitutional right are unavailing (see, James v Board of Educ., 37 NY2d 891; see also, Matter of Johnson v Katz, 68 NY2d 649).

That petitioner’s association with Friends and his official action on behalf of Friends, including commencement of the Supreme Court action, became the focus of respondent Boufford’s decision to terminate petitioner does not translate into deprivation of petitioner’s constitutional rights not only because his employment was terminable at will (Parker v Borock, 5 NY2d 156, 159; Murphy v American Home Prods. Corp., 58 NY2d 293, 300-301), but where the express terms of his employment with HHC subject him to removal whenever his continued employment was no longer in HHC’s best interests (see, Weiner v McGraw-Hill, Inc., 57 NY2d 458). The allegations of financial improprieties against an organization in which petitioner, an HHC employee, held the post of president can justify respondents’ decision to remove him as measured against the best interests of HHC (cf., Waters, 511 US, at —, —, 114 S Ct, at 1887, 1891, supra). The untoward consequences respondent Boufford perceived to flow from petitioner’s association with Friends, which publicly compromised the integrity of both Goldwater and HHC, motivated the termination decision. Petitioner had no right to interfere with respondents’ interests as they related to an organization whose stated purpose is to promote Goldwater’s goodwill. Respondents’ consequent determination not to reinstate petitioner based on questions raised in the Supreme Court action regarding his conduct in connection with Friends, therefore, cannot be characterized as impermissibly retaliatory in nature.

Petitioner’s claim that he was entitled to a hearing is equally specious. Notwithstanding the instant challenge, the record is devoid of any evidence that petitioner availed himself of a formal appeal of respondents’ removal determination, although section 5.01 (b) provides for an appeal of the termination decision. Accordingly, the termination must stand.

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

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

Order affirmed, with costs.

      . Section 5.01 (b) provides, in relevant part, that "if the individual’s continued employment at [Goldwater] shall be considered by the President of [HHC] not to be in the best interest of [HHC], then the President * * *, may request, in writing, that the Affiliate remove such employee * * * and, upon such request the Affiliate shall forthwith remove such employee”.

      . Supreme Court resolved Friends’s suit against HHC by declaring that Friends was an independent entity, unaffiliated with Goldwater such that HHC had no right to audit or confiscate moneys from Friends, notwithstanding Operating Procedure 10-20 adopted by HHC in July 1987 to, inter alla, regulate financial reporting of hospital auxiliaries. In the order, Supreme Court also permanently enjoined HHC from interfering with Friends’s operation, officers and directors.

      . We note that respondent Boufford’s determination to discharge petitioner is consistent with the broad discretionary authority vested in HHC’s President under section 5.01 (b) of the Affiliation Contract.


author: Titone, J.

text:
    [639 NE2d 1, 615 NYS2d 644]
    Community Board 7 of the Borough of Manhattan, Respondent, v Richard L. Schaffer, as Director of the New York City Department of City Planning, et al., Appellants.
    Argued April 26, 1994;
    decided June 16, 1994

      POINTS OF COUNSEL

      Paul A. Crotty, Corporation Counsel of New York City (Barry P. Schwartz and Leonard Koerner of counsel), for appellants.
    I. The concept of a public body’s capacity to sue is one of power, and its existence is therefore an issue decided independently of whether petitioner community board has asserted an interest here in document disclosure which supposedly is within a "zone of interest” protected by the New York City Charter, and whether the board has purportedly been aggrieved by appellants’ denial of the board’s document request. Given the board’s conceded absence in the Charter of an express authorization to sue, the capacity to do so can be found only if there is no "legislative” intent to the contrary and if that capacity is of necessary implication because obtaining the requested documents is needed to effectuate or protect an explicit power conferred on the board under which it is charged with the enforcement and administration of laws and regulations, and therefore has a functional responsibility. Inasmuch as such a "legislative” intent against community board lawsuits does exist, and the board’s role in City government is, moreover, solely advisory and assistive, the Court below erred, as a matter of law, in affirming the lower court’s ruling that the board is empowered to bring this proceeding. (Matter of Adirondack Park Local Govt. Review Bd. v Adirondack Park Agency, 89 AD2d 642; Matter of Pooler v Public Serv. Commn., 58 AD2d 940, 43 NY2d 750; Cooper v Wertime, 164 AD2d 221; Matter of Department of Personnel v New York City Civ. Serv. Commn., 79 NY2d 806; Matter of B. T. Prods, v Barr, 44 NY2d 226; Saltser & Weinsier v McGoldrick, 295 NY 499; Matter of Flacke v Freshwater Wetlands Appeals Bd., 53 NY2d 537; Goodstein Constr. Corp. v City of New York, 80 NY2d 366; Matter of Waybro Corp. v Board of Estimate, 67

      NY2d 349; Starburst Realty Corp. v City of New York, 125 AD2d 148, 70 NY2d 605.) II. Assuming, arguendo, that the community board has the implied capacity to sue under certain circumstances, the board still lacked the power to do so here to compel document disclosure because this lawsuit was brought to circumvent the New York City Charter’s directives as to what documents the board is entitled to receive in fulfilling its advisory role under the City’s Uniform Land Use Review Procedure. (Matter of Society of N. Y. Hosp. v Axelrod, 70 NY2d 467; Matter of 172 E. 122 St. Tenants Assn, v Schwarz, 73 NY2d 340; Matter of Knight-Ridder Broadcasting v Greenberg, 70 NY2d 151; McGowan v Mayor of City of N. Y, 53 NY2d 86; Jiggetts v Grinker, 75 NY2d 411; Elliot v Green Bus Lines, 58 NY2d 76; Starburst Realty Corp. v City of New York, 125 AD2d 148; Matter of Douglaston & Little Neck Coalition v Sexton, 145 AD2d 480.)

      Sam Sue, New York City, and Robert M. Levy for respondent.
    I. The Court below properly ruled that Community Board 7 has standing to enforce its right to disclosure of records necessary to discharge its land use review responsibilities under the City Charter. (Matter of City of New York v City Civ. Serv. Commn., 60 NY2d 436; Matter of Axelrod v Sobol, 78 NY2d 112; Matter of Adirondack Park Local Govt. Review Bd. v Adirondack Park Agency, 89 AD2d 642; Matter of Association of Bds. of Visitors of N. Y. State Facilities for Mentally Disabled v Prevost, 98 AD2d 260; Matter of Pooler v Public Serv. Commn., 58 AD2d 940, 43 NY2d 750; Matter of Community Bd. No. 4 v Board of Estimate, 88 AD2d 832, 57 NY2d 846; Community Planning Bd. No. 2 v Board of Stds. & Appeals, 43 AD2d 670; Boryszewski v Brydges, 37 NY2d 361; Matter of Schulz v State of New York, 81 NY2d 336.) II. Petitioner has standing to sue under the provisions of the Freedom of Information Law. (Matter of Scott, Sardano & Pomeranz v Records Access Officer, 65 NY2d 294; Matter of John P. v Whalen, 54 NY2d 89; Matter of Pasik v State Bd. of Law Examiners, 114 Misc 2d 397, 102 AD2d 395; Matter of Cavalier v McCue, 58 AD2d 729; Matter of Capital Newspapers v Burns, 67 NY2d 562; Matter of Farbman & Sons v New York City Health & Hosps. Corp., 62 NY2d 75; Matter of Syracuse United Neighbors v City of Syracuse, 80 AD2d 984.)

      Cleary, Gottlieb, Steen & Hamilton, New York City (Jonathan

      I. Blackman and David S. Miller of counsel), for Manhattan Borough President Ruth Messinger and others, amici

      curiae. Community boards have standing to sue City agencies for information vital to fulfill their statutory responsibilities. (Matter of City of New York v City Civ. Serv. Commn., 60 NY2d 436; Matter of Bradford Cent. School Diet, v Ambach, 56 NY2d 158; Matter of Axelrod v Sobol, 78 NY2d 112; Matter of Pooler v Public Serv. Commn., 58 AD2d 940, 43 NY2d 750; Boryszewski v Brydges, 37 NY2d 361; Matter of Schulz v State of New York, 81 NY2d 336; Matter of Scott, Sardano & Pomeranz v Records Access Officer, 65 NY2d 294; Matter of Farbman & Sons v New York City Health & Hosps. Corp., 62 NY2d 75; Matter of John P. v Whalen, 54 NY2d 89; Matter of Department of Personnel v City Civ. Serv. Commn., 94 AD2d 5.)
   OPINION OF THE COURT

Titone, J.

Petitioner, a community board established by the New York City Charter (NY City Charter § 2800), brought the present proceeding to challenge respondents’ right to deny it access to certain documents under the New York State Freedom of Information Law (FOIL). The only issue on this appeal is whether petitioner, a legislatively created entity, has the capacity to maintain a proceeding such as this. In holding that it does not, we stress that the question of petitioner’s capacity to sue is a matter allied with but conceptually distinct from the question of its standing and that, in this case, the standards for establishing the former were not satisfied.

Petitioner community board represents a district in Manhattan that encompasses the Penn Central railyards, a tract that runs between the Hudson River and West End Avenue and is bounded by West 59th and West 72nd Streets. Under the City Charter’s Uniform Land Use Review Procedure (ULURP), petitioner’s responsibilities include studying proposed changes in land use within its district and making recommendations to the Borough President and City Planning Commission regarding such proposals (NY City Charter § 197-c [e]).

In 1990, petitioner wrote to the Department of City Planning requesting certain material that had been prepared in connection with a proposal to erect "Trump City,” a massive office, residential and commercial complex, on the Penn Central railyards tract. Because the proposal entailed zoning and land use changes, the project was subject to ULURP review (see, NY City Charter § 197-c). In seeking the project’s draft "restrictive declaration” and all correspondence relating to it, petitioner invoked the Freedom of Information Law (Public Officers Law §§ 84-90), which requires government agencies to provide the public with access to their records except in certain enumerated circumstances.

The Planning Department’s Records Access Officer denied petitioner’s FOIL request, asserting that the documents sought were exempt "inter-agency” or "intra-agency” materials and that their disclosure would "impair present or imminent contract awards or collective bargaining negotiations” (see, Public Officers Law § 87 [2] [c], [g]). This determination was subsequently upheld by the Department’s Appeals Officer (see, Public Officers Law § 89 [4] [a]).

The Department’s decision prompted petitioner to commence the present CPLR article 78 proceeding to compel respondents to disclose the requested material. In support of its position, petitioner cited the provisions of FOIL, as well as the provisions of ULURP and the City Charter that authorize its participation in land use decisions such as this one (NY City Charter § 197-c [e]; § 2800 [d] [3], [17]; [e]). Respondents then moved for dismissal of the petition, arguing that petitioner did not have the "capacity” under the City Charter to bring a judicial challenge to the Planning Department’s FOIL decision.

The Supreme Court rejected respondents’ dismissal motion, concluding that petitioner had “standing” to sue. Noting that petitioner was seeking only the limited relief of document disclosure rather than "ultimate or complete relief,” the court distinguished prior cases holding that community boards lack the requisite capacity to bring suit (150 Misc 2d 770, 774). Reaching the merits, the Supreme Court granted the petition, concluding that petitioner was entitled to disclosure of the requested documents.

The Appellate Division upheld the Supreme Court’s decision, reasoning that petitioner’s request for relief was " 'within the zone of interest to be protected’ by New York City Charter § 197-c (e)” and that "there [was] no clear legislative intent to negate review of respondents’ denial of access to the records” (183 AD2d 422). Following judicial resolution of petitioners’ outstanding request for attorney fees (see, Public Officers Law § 89 [4] [c]), the Supreme Court rendered final judgment in favor of petitioner, and this Court granted respondents’ motion for leave to appeal. The appeal brings up for review the Appellate Division’s prior nonfinal order.

Initially, we note that we do not deem it appropriate to dismiss the proceeding for mootness, despite the facts that the Trump City proposal has been scaled down to the less ambitious Riverside South project, petitioner has completed its review of the project and submitted its recommendations and the FOIL request for documents has been withdrawn. The issue presented here — whether a community board has the capacity to bring an article 78 proceeding to enforce its ostensible FOIL rights — is one that is likely to recur, particularly in view of the community boards’ responsibilities under ULURP. Moreover, the issue is one that will typically evade review because of the relatively short time frame in which those responsibilities must be carried out (see, NY City Charter § 197-c). Finally, the issue is both novel and substantial, since it has not yet been considered by this Court and has unquestionable significance for the way in which land use decisions are made within New York City. Thus, the exception to the mootness doctrine that was delineated in Matter of Hearst Corp. v Clyne (50 NY2d 707, 714-715) is applicable.

Having concluded that the proceeding need not be dismissed for mootness, we turn now to the question presented by the parties for our review: whether petitioner has capacity to bring this proceeding. We note at the outset that the concept of capacity is often confused with the concept of standing, but the two legal doctrines are not interchangeable (see, Matter of Pooler v Public Serv. Commn., 58 AD2d 940, affd on mem below 43 NY2d 750; see also, Matter of Association of Bds. of Visitors of N. Y. State Facilities for Mentally Disabled v Prevost, 98 AD2d 260). "Standing” is an element of the larger question of "justiciability” (see, Society of Plastics Indus. v County of Suffolk, 77 NY2d 761, 769; Matter of Dairylea Coop. v Walkley, 38 NY2d 6, 9). The various tests that have been devised to determine standing are designed to

ensure that the party seeking relief has a sufficiently cognizable stake in the outcome so as to "cast[ ] the dispute 'in a form traditionally capable of judicial resolution’ ” (Society of Plastics Indus. v County of Suffolk, supra, at 772-773, quoting Schlesinger v Reservists to Stop War, 418 US 208, 220-221; see, Schieffelin v Komfort, 212 NY 520, 530). Often informed by considerations of public policy (Society of Plastics Indus, v County of Suffolk, supra, at 769), the standing analysis is, at its foundation, aimed at advancing the judiciary’s self-imposed policy of restraint, which precludes the issuance of advisory opinions (see generally, Cuomo v Long Is. Light. Co., 71 NY2d 349, 354).

"Capacity,” in contrast, concerns a litigant’s power to appear and bring its grievance before the court. The concept of a lack of capacity, which has also occasionally been intermingled with the analytically distinct concept of a failure to state a cause of action, does not admit of precise or comprehensive definition (see, Ward v Petrie, 157 NY 301; 4 Weinstein-KornMiller, NY Civ Prac |f 3211.17). Capacity, or the lack thereof, sometimes depends purely upon a litigant’s status. A natural person’s status as an infant, an adjudicated incompetent or, formerly, a felony prisoner, for example, could disqualify that individual from seeking relief in court (see, Kittinger v Churchill Evangelistic Assn., 239 App Div 253; Garner v Garner, 59 Misc 2d 29; CPLR 1201; but see, Civil Rights Law § 79 [2]; § 79-a [2] [removing disqualification of felony prisoners to sue in court]). Additionally, the capacity question has often arisen in connection with controversies involving trustees (see, Siegel, NY Prac § 261 [2d ed]).

Another category of capacity problems — the category at issue here — arises in the context of suits brought by artificial entities. Business corporations, for example, are creatures of statute and, as such, require statutory authority to sue and be sued (see, Business Corporation Law § 202 [a] [2]; see also, § 1005 [a] [1]; § 1006 [a] [4] [dissolved corporations]; § 1312 [foreign corporations doing business in New York]). Similarly, unincorporated associations, which are voluntary congregate entities, are accorded the capacity to bring suit through their presidents or treasurers by statute (General Association Law § 12; see, Ayew v Hawes & Co., 250 App Div 596).

Governmental entities created by legislative enactment present similar capacity problems. Being artificial creatures of statute, such entities have neither an inherent nor a common-law right to sue. Rather, their right to sue, if it exists at all, must be derived from the relevant enabling legislation or some other concrete statutory predicate (Matter of Pooler v Public Serv. Commn., supra; see, Matter of Flacke v Freshwater Wetlands Appeals Bd., 53 NY2d 537 [analyzing agency’s capacity to sue, although using the term "capacity” interchangeably with "standing”]). The principle is a well-known one, originating in the more general canon that "a creature of the State * * * has no power other than that given it by the Legislature, either explicitly or by necessary implication” (Matter of B. T. Prods, v Barr, 44 NY2d 226, 236, citing Matter of Pooler v Public Serv. Commn., supra; see, e.g., Matter of Department of Personnel v New York City Civ. Serv. Commn., 79 NY2d 806, 807).

In a recent discussion on the subject, Matter of City of New York v City Civ. Serv. Commn. (60 NY2d 436), we considered both the standing and the capacity of a governmental agency to bring an article 78 proceeding against another governmental entity. With respect to the capacity question, we stated that the authority of a government agency to bring suit does not require "that in every instance there be express legislative authority” (id., at 444-445). Rather, the capacity to sue may also be inferred as a "necessary implication from [the agency’s] power[s] and responsibilities],” provided, of course, that "there is no clear legislative intent negating review” (id., at 443, 444). The Court indicated in City of New York that the power to bring a particular claim may be inferred when the agency in question has "functional responsibility within the zone of interest to be protected” (id., at 445, distinguishing Matter of Pooler v Public Serv. Commn., supra). Notably, this "zone of interest” test is related but not identical to the "zone of interest” analysis that is traditionally applied in the allied area of standing (see, Matter of Dairylea Coop. v Walkley, supra; see also, Matter of Bradford Cent. School Dist. v Ambach, 56 NY2d 158).

It is the City of New York "zone of interest” test that also distinguishes this case from Community Bd. No. 4 v Board of Estimate (88 AD2d 832, affd on mem below 57 NY2d 846), on which respondents place considerable reliance. In that case, the Court held that local community boards created pursuant to New York City Charter § 2800 lack the power to challenge substantive zoning determinations made by the responsible administrative authorities. Here, unlike the situation in Community Bd. No. 4, petitioner board is not challenging a substantive decision by the City to approve or disapprove a land development proposal. Rather, it is contesting a decision by the City Planning Department to deny it access to certain documents which, arguably, might be useful in carrying out its statutorily mandated responsibility to study the land use proposal and to make appropriate recommendations to the Borough President and Planning Department (see, NY City Charter § 197-c [d], [e], [m]; § 197-d [b] [2]; § 668 [a] [1], [2], [7]). Given that fundamental mandate, it cannot be said that petitioner board does not have "functional responsibility” within the sphere to be protected by ULURP, the law on which this particular judicial challenge is primarily based (see, Matter of City of New York v City Civ. Serv. Commn., supra, at 445).

Nonetheless, petitioner’s lack of capacity to bring this suit may readily be inferred from the terms and history of its own enabling legislation, as well as from its limited role in the land use planning process. Petitioner does not dispute that neither New York City Charter § 2800 nor the relevant ULURP provisions expressly authorize community boards to bring suit. Nor can such authority be constructed as a "necessary implication” of petitioner’s other powers, since there are clear indications in the legislation that no authority to sue for document disclosure was, in fact, intended.

The enabling statute gives community boards no power to retain independent counsel or to subpoena documents, despite a study group’s recommendation that the power to subpoena be conferred (see, Staff Report, Community Boards, prepared by Staff of State Charter Rev Commn for NY City [May 1974] [hereinafter Staff Report]; see also, NY City Charter § 395; see generally, Caruso v New York City Police Dept. Pension Funds, 72 NY2d 568, 575). Moreover, the City Charter’s ULURP provisions and their accompanying regulations are quite specific on the question of what documents a community board is entitled to receive in connection with its advisory role (see, NY City Charter § 197-c [b]; see also, § 197-c [i]; 62 RCNY 2-02 [a] [5]; [b] [1] [ULURP regulations]). The legislative choice to delineate the documents that are to be used and to deny subpoena power to community boards as a means of widening their inquiries suggests that these boards were not intended to have the even more encompassing power to compel wide-ranging document disclosure through judicial suits to enforce the rights conferred by the Freedom of Information Law.

Additionally, the legislative history of the City Charter is inconsistent with the notion that community boards were intended to have the power to sue for information. As part of the over-all 1975 Charter revision process, a study group created by the nonpartisan State Charter Revision Commission for New York City noted in its report a suggestion that a grant of the power to sue City agencies would be helpful to the community boards. The report also noted that a prior opinion by Corporation Counsel had construed the then-existing New York City Charter § 84 — the sole potential source of authority 5 — as not encompassing the power to sue (see, Staff Report, op. cit., at 90, n 34). Despite these observations, as well as a recommendation by the study group itself that community boards be empowered to sue (Staff Report, op. cit., at 94-105, 133-134), the power to sue was not included either in the Charter Commission’s Preliminary Recommendations or in the final proposed Charter amendments (see, Preliminary Recommendations of State Charter Rev Commn, City Government in the Community, Majority Recommendations, at 221-224 [June 1975]; Proposed Amendments to Charter for City of NY by State Charter Rev Commn, at 418-421 [Aug. 1975]; Final Report of State Charter Rev Commn, at 13, 27 [1975]).

Under these circumstances, the reenactment of former section 84 (i) in essentially the same terms under the present section 2800 (e), is indicative of a legislative intent not to authorize community boards to bring independent judicial actions as a means of obtaining desired document disclosure. As drafted both before and after the Charter’s revision, the provision merely directs City agencies to comply with community boards’ pertinent requests for assistance and information. The adoption of this provision without substantive change should be viewed in light of the existing decisional law, with which the Legislature is presumed to be familiar (see, Williams v Niske, 81 NY2d 437, 443; Matter of Alonzo M. v New York City Dept. of Probation, 72 NY2d 662, 667; Matter of Knight-Ridder Broadcasting v Greenberg, 70 NY2d 151, 156-157). That decisional law includes not only the opinion of Corporation Counsel that was explicitly referred to in the Staff Report (Opn No. 107,518), but also a contemporary appellate court decision holding that community boards lack capacity to sue (Community Planning Bd. No. 2 v Board of Stds. & Appeals, 43 AD2d 670). The choice not to alter the existing language when the Charter was revised suggests legislative approval of these constructions (see, Matter of Knight-Ridder Broadcasting v Greenberg, supra, at 157).

Finally, the power to bring the instant proceeding cannot be derived by "necessary implication” from the community boards’ ULURP responsibilities, which are purely advisory in nature. Unlike the policing function at issue in Matter of City of New York v City Civ. Serv. Comma, (supra, at 444), the boards’ far more limited advisory mission can readily be accomplished without according them the right to obtain whatever documents they want through a plenary judicial proceeding brought under FOIL. That conclusion is particularly apt where, as here, there is no claim that the documents referred to in New York City Charter § 197-c (b) and (i) and the accompanying ULURP regulations (62 RCNY 2-02 [a] [5]; [b] [1]) were not furnished.

For all of these reasons, we conclude that petitioner does not have the capacity to maintain the present article 78 proceeding. That conclusion obtains notwithstanding the provisions of Public Officers Law § 89 (4) (b), which confer standing upon any person denied access to government records. The Freedom of Information Law’s generous standing provisions may cast a net that is wide enough to encompass petitioner. Irrespective of its standing, however, a governmental entity such as petitioner must be able to show that it has the capacity to institute suit. Since that showing was not made here, the petition should have been dismissed.

Accordingly, the judgment appealed from and the order of the Appellate Division brought up for review should be reversed, with costs, and the petition dismissed.

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

Judgment appealed from and order of the Appellate Division brought up for review reversed, etc.

      . A "restrictive declaration” is an instrument that describes a proposed development and the method by which it is to be completed. After the ULURP process has been completed and a proposed project has been approved, the declaration is filed in the office of the County Clerk and becomes a public document of record.

      . Respondents’ motion for leave to appeal from the prior Appellate Division order was dismissed because the order sought to be appealed did not finally determine the proceeding within the meaning of the Constitution (80 NY2d 972).

      . Although the Court used only the term "standing,” it is evident from the opinion’s discussion that the distinct concepts of "standing” and "capacity” were separately considered.

      . Former section 84 (i) provided that City agencies were to give community boards "such information necessary for their work which they shall require.”

      . Section 2800 (e), which appears in the present New York City Charter, provides that an agency is to "furnish promptly” to a board "on request any information or assistance necessary for the board’s work.”


author: Ciparick, J. Titone, J.

text:
    [639 NE2d 7, 615 NYS2d 650]
    The People of the State of New York, Respondent, v James Galatro and John Schmidt, Appellants.
    Argued June 7, 1994;
    decided June 30, 1994

      POINTS OF COUNSEL

      Agulnick & Gogel, New York City (Barry W Agulnick and Steven L. Greenspan of counsel), for James Galatro, appellant.
    I. The trial court correctly dismissed the charge of reckless endangerment in the second degree because the evidence before the Grand Jury failed to establish a prima facie case of reckless endangerment in the second degree. (People v Jennings, 69 NY2d 103; People v Cruciani, 36 NY2d 304; People v Licitra, 47 NY2d 554; People v Davis, 72 NY2d 32; People v Kern, 75 NY2d 638; People v Knapp, 113 AD2d 154; People v Kibbe, 35 NY2d 407; People v Wagman, 99 AD2d 519; People v Goetz, 68 NY2d 96.) II. The trial court correctly dismissed the charge of reckless endangerment in the second degree because appellant owed no duty to the complainant thereby negating reckless conduct by omission. (People v Lansing Terrace Apts., 70 Misc 2d 44; People v Steinberg, 170 AD2d 50; Lipsius v White, 91 AD2d 271; Burton v Brooklyn Doctors Hosp., 88 AD2d 217; People v Robbins, 83 AD2d 271; People v Northrup, 83 AD2d 737; People v Gladden, 118 Misc 2d 831.)

      Joseph P. Grancio, Brooklyn, for John Schmidt, appellant. I.

      Where a person in a roadway was surrounded and attended by a large group of people, a charge of reckless endangerment by omission was properly dismissed because there was no disregard of any risk such as would constitute a gross deviation from the standard of conduct of a reasonable person. (People v Jennings, 69 NY2d 103; People v Mikuszewski, 73 NY2d 407; People v Pelchat, 62 NY2d 97; People v Cruciani, 36 NY2d 304; People v LeBeau, 128 Misc 2d 226; People v Conyers, 160 AD2d 318; People v Davis, 72 NY2d 32; People v Knapp, 113 AD2d 154; People v Kibbe, 35 NY2d 407; People v Richardson, 97 AD2d 693.) II. Where appellant owed no duty to complainant, appellant cannot be found to commit reckless conduct by omission, and the charge of reckless endangerment in the second degree was therefore properly dismissed below. (People v Gladden, 118 Misc 2d 831; People v Lansing Terrace Apts., 70 Misc 2d 44; People v Steinberg, 170 AD2d 50.)

      Charles J. Hynes, District Attorney of Kings County, Brooklyn (Ruth E. Ross and Roseann B. MacKechnie of counsel), for respondent.
    The evidence before the Grand Jury was legally sufficient to sustain an indictment for reckless endangerment in the second degree. (People v Mikuszewski, 73 NY2d 407; People v Jennings, 69 NY2d 103; People v Haney, 30 NY2d 328; People v Macellaro, 131 AD2d 699; People v Davis, 72 NY2d 32; People v Register, 60 NY2d 270; People v Goetz, 68 NY2d 96; People v Kin Wong, 158 AD2d 288; People v Conigliaro, 20 AD2d 930; People v Kibbe, 35 NY2d 407.)
   OPINION OF THE COURT

Ciparick, J.

The issue presented by this appeal is whether the Grand Jury evidence is legally sufficient to support the charge of reckless endangerment in the second degree (Penal Law § 120.20). We agree with the Appellate Division that it is.

I

Defendants were arrested after a street altercation with a third man, complainant James Kasemersky, outside a bar located on Flatbush Avenue in Brooklyn. According to the evidence presented to the Grand Jury, one or both of the defendants struck the complainant, knocking him unconscious and causing him permanent brain damage. The evidence was conflicting as to whether complainant or one of the defendants struck the first blow. Defendants left the victim unconscious in the middle of the street. Several persons who witnessed the incident assisted the victim and called the police, who arrived within five minutes.

The District Attorney charged the Grand Jury panel as to assault in the second degree, assault in the third degree, and reckless endangerment in the second degree. The Grand Jury was instructed that they could return a count of reckless endangerment in the second degree, if they found that there was legally sufficient evidence that defendants, acting in concert, "recklessly engaged in conduct which created a substantial risk of serious physical injury to another person, in that they left an injured person, James Kasemersky, on a trafficked roadway.” The Grand Jury returned "No True Bill” on the assault counts, but indicted defendants for reckless endangerment in the second degree. Supreme Court granted defendants’ motion to dismiss the indictment. Emphasizing the Grand Jury’s refusal to indict on the assault counts, Supreme Court concluded that the People’s evidence was not legally sufficient to support the charge of reckless endangerment. Supreme Court also determined that defendants’ conduct in leaving the complainant in a heavily trafficked roadway did not create a substantial risk of serious physical injury to the complainant where persons who witnessed the incident approached complainant and rendered assistance.

The Appellate Division reversed, stating that the prima facie proof satisfied the statutory definition of recklessness, and it did not matter that bystanders quickly rendered the assistance the defendants had failed to provide, since "[t]he statutory risk was present the moment the victim lay unconscious on the pavement as a result of the defendants’ actions” (194 AD2d 552, 554). The Appellate Division also disagreed with Supreme Court concerning the significance of the Grand Jury’s failure to indict on the assault counts, concluding that "any inconsistency may be harmonized on the basis of the charge to the jury” (id,., at 554).

II

In the context of a motion to dismiss an indictment, the sufficiency of the People’s presentation "is properly determined by inquiring whether the evidence viewed in the light most favorable to the People, if unexplained and uncontradicted, would warrant conviction by a petit jury” (People v Jennings, 69 NY2d 103, 114; see, People v Mikuszewski, 73 NY2d 407, 411). The People are required to make out a prima facie case that the accused committed the crime charged by presenting legally sufficient evidence establishing all of the elements of the crime (Jennings, 69 NY2d, at 115, supra). On a motion to dismiss, the reviewing court’s inquiry is confined to the legal sufficiency of the evidence and the court is not to weigh the proof or examine its adequacy. Indeed, "all questions as to the quality or weight of the proof should be deferred” (id., at 115).

Penal Law § 120.20 provides that a person is guilty of reckless endangerment in the second degree where he or she "recklessly engages in conduct which creates a substantial risk of serious physical injury to another person.” A person acts recklessly with respect to a result or circumstance when he or she is aware of and consciously disregards a substantial and unjustifiable risk that the particular result will occur or that the circumstance exists (see, Penal Law § 15.05 [3]). As we stated in People v Davis (72 NY2d 32, 36), the reckless endangerment statutes "seek to prevent the risk created by the actor’s conduct, not a particular outcome”, and the risk of injury alone will sustain prosecution.

In this case, the People’s evidence established that defendants struck and rendered the complainant unconscious and then simply left him lying in the middle of a heavily trafficked thoroughfare. Viewed in the light most favorable to the People, the evidence adduced before the Grand Jury established a prima facie case that defendants acted recklessly in disregarding the substantial risk that the complainant would be struck and further injured by a vehicle travelling on Flatbush Avenue. As the Appellate Division recognized, the substantial risk of injury contemplated by the statute was present here the moment complainant was caused to lie helpless in the middle of the street.

In People v Roth (80 NY2d 239), the evidence before the Grand Jury established that the defendants allowed a petroleum tank to be cleaned without adequate ventilation and in the presence of numerous sources of ignition. We held that this evidence was sufficient to support the charge of reckless endangerment in the second degree and we reinstated that count of the indictment, stating that it was enough that defendants were aware of and consciously disregarded a substantial and unjustifiable risk involving serious physical injury to another person (id., at 245).

We thus conclude that the People’s evidence is legally sufficient to sustain an indictment for reckless endangerment in the second degree (see, Roth, 80 NY2d, at 245, supra; People v Kibbe, 35 NY2d 407, 413).

Factual impossibility is a defense to reckless endangerment inasmuch as that crime is defined in terms of the risk produced by the defendant’s conduct rather than by intent (Davis, 72 NY2d, at 37). The evidence before the Grand Jury was not conclusive on the question of factual impossibility. Although, as Supreme Court noted, it is undisputed that several persons assisted the complainant and that a crowd gathered around him, it is unclear how quickly such assistance was rendered, a question relevant to whether defendants acted recklessly. More importantly, however, a determination whether it was factually impossible for complainant to have been struck by a vehicle requires assessment and examination of the proof, an endeavor that should not take place at the Grand Jury stage of the proceedings (see, Jennings, 69 NY2d, at 115, supra).

Finally, given the charge to the Grand Jury — that defendants’ conduct in leaving an injured person on a trafficked roadway was reckless, the indictment for reckless endangerment was not inherently inconsistent with the failure to indict on the assault counts (see, People v Tucker, 55 NY2d 1, 6-8).

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

Titone, J.

(dissenting). Contrary to the majority, I conclude that no view of the evidence before the Grand Jury supported an indictment against these defendants for second degree reckless endangerment under Penal Law § 120.20. Accordingly, I dissent.

The crime of second degree reckless endangerment is committed when a person “recklessly engages in conduct which creates a substantial risk of serious physical injury to another person” (Penal Law § 120.20). In People v Davis (72 NY2d 32, 36, quoting People v Register, 60 NY2d 270, 277, cert denied 466 US 953), we held that the risk-creation element of the crime is an objective one that depends not on the actor’s state of mind but rather on " 'an objective assessment of the degree of risk presented by [the] defendant’s reckless conduct.’ ” It follows that, regardless of how heinous the defendant’s conduct may have been, the crime of second degree reckless endangerment is not committed unless there existed an actual and substantial risk of "serious physical injury” (see, People v Davis, supra).

The majority acknowledges these principles but concludes that such a risk existed here because defendants left a helpless, unconscious man in the middle of Flatbush Avenue, an admittedly heavily trafficked roadway. The "substantial risk of serious physical injury” that the majority evidently contemplates is the risk that the injured man would be struck by a passing car.

The majority’s conclusion is flawed because it rests on an analysis of only a selected portion of the facts that were before the Grand Jury. Contrary to the majority’s suggestion, consideration of all of the surrounding circumstances is required because an assessment of whether the identified risk was truly a "substantial” one cannot be made in a vacuum. In People v Kibbe (35 NY2d 407, 413), for example, there existed an objective "grave risk of death” not because the injured victim had been left on the roadside, but rather because of the surrounding conditions, namely that the road was deserted and there was a snowstorm producing low visibility. These conditions combined to create a risk that the helpless victim would either "fr[eeze] to death” or be hit by a vehicle (id., at 413).

Here, in contrast, there were no visibility problems and the street in question was far from deserted. In fact, according to the evidence before the Grand Jury, one of defendants’ companions immediately approached the unconscious victim, another individual stood so as to block an advancing car and the other cars in the area were "going around” the victim. At that point, a crowd of 20 to 30 people had gathered and one or more individuals ran to get help. Under these particularized circumstances, there was no objective risk at all, much less a "substantial” risk that the victim would be injured by moving traffic. Thus, the People did not, and could not, adduce a prima facie case establishing all of the elements of the crime, and the trial court’s dismissal of the indictment was proper.

I would note that People v Roth (80 NY2d 239), on which the majority relies, is not relevant to the problem presented here because the risk created in that case by the method used to clean an unventilated petroleum tank was clear and unmitigated by any other surrounding circumstances. Similarly, the majority’s reference to the "factual impossibility” defense discussed in People v Davis (supra, at 37) is not pertinent. In Davis, the defendant’s pulling the trigger of the gun he was pointing at police officers plainly would have created a risk of death but for the fact that the gun’s chamber was apparently jammed due to an unejected spent shell. Under those circumstances, invocation of the defense of "factual impossibility” was appropriate to rebut the otherwise valid inference that a real risk existed. Here, in contrast, there was never any risk at all, since the act of leaving an unconscious individual in the middle of a road where others are crowding around and directing traffic to flow around him simply does not give rise to the possibility of injury. Thus, the question of "factual impossibility” does not enter into the analysis at all, and it is irrelevant whether the defense was "conclusively” established.

In sum, I would hold that, as a matter of law, the evidence before the Grand Jury did not demonstrate the "substantial risk of serious physical injury” that Penal Law § 120.20 requires. As noted in Davis (supra, at 37, n), "[t]he crime must be judged by the risk created at the time of the incident” and not by some theoretical possibility that a risk might have arisen under other conditions. In this case, there was never a substantial risk that the unconscious victim would be hit by a passing vehicle because there were individuals at the immediate scene who could — and did — direct traffic around him and a crowd promptly formed, making the unhindered passage of traffic unthinkable. Accordingly, I vote to reverse the order of the Appellate Division and reinstate the order of the trial court, which dismissed the indictment.

Chief Judge Kaye and Judges Simons, Bellaoosa, Smith and Levine concur with Judge Ciparick; Judge Titone dissents and votes to reverse in a separate opinion.

Order affirmed.


author: Per Curiam.

text:
    [639 NE2d 11, 615 NYS2d 654]
    In the Matter of David B. Heburn, a Justice of the Remsen Town and Village Courts, Petitioner. State Commission on Judicial Conduct, Respondent.
    Argued June 8, 1994;
    decided June 30, 1994

      POINTS OF COUNSEL

      Robert Barry, Utica, for petitioner.
    The Commission by and through their attorneys did not meet their burden of proof. (Tumure v Breitung, 195 App Div 200, 233 NY 649.)

      Gerald Stem, New York City, Cathleen S. Cenci, and Jean M. Savanyu for respondent.
    By making a false, sworn statement on his designating petitions for reelection to judicial office, petitioner engaged in serious misconduct which warrants removal from office. (Matter of Myers, 67 NY2d 550; Matter of Reedy, 64 NY2d 299; People v Molineux, 168 NY 264; Ibanez v Pfeiffer, 76 Misc 2d 363; Matter of Fahy v New York State Bd. of Elections, 104 AD2d 535, 63 NY2d 602, 768; People v Maxam, 161 AD2d 961; Matter of Cooley, 53 NY2d 64; Matter of Kihl, 103 AD2d 393; Matter of Insogna, 113 AD2d 988; Matter of Brooklyn Bar Assn. [Fox], 225 App Div 680.)
   OPINION OF THE COURT

Per Curiam.

Petitioner, a Justice of the Remsen Town and Village Courts in Oneida County, was charged by the State Commission on Judicial Conduct with misconduct in connection with his alleged violation of section 6-132 (2) and section 17-122 of the Election Law. According to the charges, on or about July 19, 1991, petitioner had falsely subscribed his own designating petition as witness when, in fact, he had not actually been present when the petition was signed. Significantly, the subscribed statement included a notice that a material false statement would subject the subscriber to the same penalties as if the subscriber had been duly sworn.

During the investigative phase of the proceeding, the Chief Attorney of the State Commission on Judicial Conduct wrote to petitioner by certified mail, return receipt requested, asking him to respond to the charge. The return receipt was received, followed by a letter that was dated September 22, 1992, in which petitioner acknowledged that he had not collected the signatures on the designating petition, admitted that he had subscribed the petitions as witness anyway and, finally, characterized his conduct as "careless” and "grievous error.” By way of excuse for his conduct, petitioner wrote that he was unable to collect signatures himself because he worked full time and, as a consequence, his wife had obtained some of the signatures by soliciting door-to-door, while others had been obtained at a local hardware store. He also stated that since he had always carried his own petitions, he simply "assumed the candidate signed the petition.”

In a complaint dated November 24, 1992, the State Commission on Judicial Conduct accused petitioner of violating sections 100.1 and 100.2 (a) of the Rules Governing Judicial Conduct (22 NYCRR) and Canons 1 and 2 (A) of the Code of Judicial Conduct. Petitioner’s Election Law § 6-132 (2) and § 17-122 (7) violations were cited as the factual basis for the charge. In response, petitioner filed a verified amended answer in which he invoked his Fifth Amendment right against self-incrimination, noting that the matter had been "turned over to the Oneida County District Attorney.”

A hearing on the charges was conducted before a Referee on June 4, 1993. Several individuals who had signed the designating petitions in question testified that they had added their signatures at the request of petitioner’s wife and that petitioner himself had not been present when they signed. The Town Clerk, Robert Walter, also testified, stating that he had offered to help petitioner in his reelection bid and had taken petitioner’s designating petition to his hardware store in Remsen to gather signatures. According to Walter and at least one of the other individuals who had signed the petition in Walter’s hardware store, petitioner had not been present when the signatures on that petition were obtained. On July 19, 1991, petitioner’s designating petition was filed with the Oneida County Board of Elections and petitioner was sent a letter notifying him of that fact.

Also admitted into evidence at the hearing were copies of petitioner’s designating petition and the letter petitioner had sent to the Commission in response to its inquiry about the charges. Asserting his Fifth Amendment privilege once again, petitioner elected not to testify.

The Referee found that the factual allegations in the Commission’s complaint had been sustained and that petitioner had violated the ethical provisions cited in the Commission’s complaint by falsely subscribing his designating petitions. In response to a motion by the Commission’s counsel, the Commission held that the charge had been sustained and that petitioner should be removed from judicial office. Petitioner subsequently requested review by this Court.

In this proceeding pursuant to article VI, §22 of the NY Constitution and section 44 of the Judiciary Law, petitioner’s only argument is that the charge was not sustained because the Commission failed to meet its burden of proving that the signature appearing on the subscribing witness line on his designating petition was, in fact, his signature. The argument lacks merit. Petitioner acknowledged that the signature on the petition was his in his September 22, 1992 letter to the Commission’s Chief Attorney. As for petitioner’s subsidiary contention that the Commission did not sufficiently establish that he was the author of that letter, we note that the circumstances under which the letter was received by the Commission — including the fact that it was obviously written in response to a letter that had been sent to petitioner’s address — provide persuasive proof that the letter was, in fact, authored and signed by petitioner.

Having determined that there was ample factual evidence to sustain the charge against petitioner, we also note our agreement that removal is the proper sanction. By subscribing as witness to signatures that had been added to his designating petition outside his presence, petitioner was guilty of false swearing. Despite the implausible denial in petitioner’s September 22, 1992 letter, there can be no doubt that he was aware of the nature of the conduct at the time he signed, since the document itself gave fair and clear warning that the witness’s statement was "the equivalent of an affidavit” and that false statements would subject the signatory to the same penalties that would be imposed if the statement had actually been sworn.

Such deliberately deceptive conduct is "antithetical to the role of a Judge who is sworn to uphold the law and seek the truth” (Matter of Myers, 67 NY2d 550, 554). A judicial officer who has so little regard for both this State’s election laws and the obligations of a witness who signs "the equivalent of an affidavit” is not a fit person to administer oaths and cannot be trusted to faithfully uphold the laws.

Petitioner’s actions were thoroughly inconsistent with the obligation to "observe * * * high standards of conduct” (Rules of Judicial Conduct [22 NYCRR] § 100.1; see, Code of Judicial Conduct Canon 1). They were also contrary to the fundamental injunction that "[a] judge shall respect and comply with

the law and shall conduct himself or herself at all times in a manner that promotes public confidence in the integrity * * * of the judiciary” (Rules of Judicial Conduct [22 NYCRR] § 100.2 [a]; see, Code of Judicial Conduct Canon 2 [A]).

Accordingly, the determined sanction of removal should be accepted, without costs, and petitioner removed from the office of Justice of the Remsen Town and Village Courts.

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

Determined sanction accepted, etc.