author: Meyer, J.

text:
    Igbara Realty Corp., Respondent, v New York Property Insurance Underwriting Association, Appellant. Bonus Warehouse, Inc., Respondent, v Great Atlantic Insurance Company of Delaware, Appellant. Bonus Warehouse, Inc., Respondent, v North River Insurance Company, Appellant. Syd’s Decorators Inc., Appellant, v New York Property Insurance Underwriting Association, Respondent, et al., Defendant. Patrick M. Trexler et al., Doing Business as Gandlof’s, Appellants, v American Home Assurance Company, Respondent.
    Argued June 4, 1984;
    decided October 23, 1984

      POINTS OF COUNSEL

      Zachary Robb Greenhill for appellant in the first above-entitled action.
    I. The insured’s failure to render sworn proofs of loss subsequent to receipt of written demand for same with blank proof of loss forms requires dismissal of the complaint. (Lentini Bros. Moving & Stor. Co. v New York Prop. Ins. Underwriting Assn., 76 AD2d 759, 53 NY2d 835; Peabody v Satterlee, 166 NY 174; Quinlan v Providence Washington Ins. Co., 133 NY 356; Blossom v Lycoming Fire Ins. Co., 64 NY 162; Gallin v Allemannia Fire Ins. Co., 184 App Div 876, 230 NY 547; Mass v Great Amer. Ins. Co., 33 AD2d 912; Canova v Cooperative Fire Ins. Co., 2 AD2d 679; Perry v Caledonian Ins. Co., 103 App Div 113.) II. The interposition of an answer compelled by the service of a summons and complaint is not a repudiation of liability nor a waiver of the terms and conditions of the contract of insurance by the insurer. (Cohen v New York Prop. Ins. Underwriting Assn., 65 AD2d 71; Black Co. v London Guar. & Acc. Co., 190 App Div 218.) III. The court below erred by distinguishing Lentini Bros, from the instant case by affirming that, there, the answer with affirmative defenses was first served five months subsequent to the demand for sworn proofs of loss and an examination under oath. (Lentini Bros. Moving & Stor. Co. v New York Prop. Ins. Underwriting Assn., 53 NY2d 835.) IV. The court below erred in holding that an affirmation by an individual without personal knowledge of events, plaintiff’s attorney, unsupported by sworn allegations of fact, can create an issue of fact sufficient to require the denial of a motion for summary judgment. (Davis v Shelton, 33 AD2d 707; Di Sabato v Soffes, 9 AD2d 297; Israelson v Rubin, 20 AD2d 668, 14 NY2d 887; Dodwell & Co. v Silverman, 234 App Div 362; Pribyl v Van Loan & Co., 261 App Div 503, 287 NY 749; Anderson v City of New York, 258 App Div 588; Barnet v Horwitz, 278 App Div 700; Cohen v Pannia, 7 AD2d 886; Hood v Murray, 25 AD2d 163; Behrens v Shawmut Transp. Co., 22 Misc 2d 892.) V. The court below erred in reversing the dismissal of the complaint for lack of capacity to sue. (1480 Popham Corp. v Fordham Bus Corp., 176 Misc 508.)
    S. Michael Weisberg for respondent in the first above-entitled action.
    I. Defendant’s answer to the complaint and its amended answer setting forth seven affirmative defenses was a repudiation of liability by the insurer to the insured, as a result of which the insured was no longer obligated to submit proofs even though its time to do so had not expired. (Lentini Bros. Moving & Stor. Co. v New York Prop. Ins. Underwriting Assn., 76 AD2d 759, 53 NY2d 835.) II. The interposition of an amended answer setting forth affirmative defenses constitutes a repudiation. III. The court below did not err in distinguishing Lentini Bros. from the instant case. IV. The affirmation in opposition to defendant’s motion for summary judgment was sufficient to raise questions of fact to require the denial of the motion. V. The court below did not err in reversing the dismissal of the complaint for lack of capacity to sue.

      Charles T. Rubin for appellants in the second and third above-entitled actions.
    I. Bonus’ failure to file proofs of loss within 60 days is an absolute defense. (Lentini Bros. Moving & Stor. Co. v New York Prop. Ins. Underwriting Assn., 76 AD2d 759, 53 NY2d 835; Peabody v Satterlee, 166 NY 174; Quinlan v Providence Washington Ins. Co., 133 NY 356; Blossom v Lycoming Fire Ins. Co., 64 NY 162; Gallin v Allemannia Fire Ins. Co., 184 App Div 876, 230 NY 547; Esa v New York Prop. Ins. Underwriting Assn., 89 AD2d 865; Mass v Great Amer. Ins. Co., 33 AD2d 912; Canova v Cooperative Fire Ins. Co., 2 AD2d 679; Perry v Caledonian Ins. Co., 103 App Div 113.) II. Proofs of loss must be rendered within the 60-day time limit set forth in the policies and statute. (Peabody v Satterlee, 166 NY 174; Quinlan v Providence Washington Ins. Co., 133 NY 356; Blossom v Lycoming Fire Ins. Co., 64 NY 162; Perry v Caledonian Ins. Co., 103 App Div 113; Canova v Cooperative Fire Ins. Co., 2 AD2d 679; Anderson v Fidelity Co-op. Fire Ins. Co., 116 Misc 679; Matter of Carr v New York State Bd. of Elections, 40 NY2d 556.) III. Each of the theories advanced by the court below in affirming the denial of the insurers’ motions for summary judgment are legally insufficient. (Peabody v Satterlee, 166 NY 174; Quinlan v Providence Washington Ins. Co., 133 NY 356; Blossom v Lycoming Fire Ins. Co., 64 NY 162.)

      Ira M. Myers for respondent in the second and third above-entitled actions.
    The insured did not materially breach the terms and conditions of the insurance policy. (Hudson Tire Mart v Aetna Cas. & Sur. Co., 518 F2d 671;
      C-Suzanne Beauty Salon v General Ins. Co., 574 F2d 106; Wachtel v Equitable Life Assur. Soc., 266 NY 345; Bilsky v Mutual Beneficial Health & Acc. Assn., 182 Misc 122, 268 App Div 973; Gallotti v Continental Ins. Co., 152 Misc 351, 241 App Div 804; Porter v Traders' Ins. Co., 164 NY 504; Solomon v Continental Fire Ins. Co., 160 NY 595; McNally v Phoenix Ins. Co., 137 NY 389; Paltrovich v Phoenix Ins. Co., 143 NY 73; Sergent v L. & L. & G. Ins. Co., 155 NY 349; Matthews v American Cent. Ins. Co., 154 NY 449.)

      Mark Easton for appellant in the fourth above-entitled action.
    The insured’s failure to file proofs of loss was not a material breach of the insurance policy which automatically mandated the dismissal of its claim. (Lentini Bros. Moving & Stor. Co. v New York Prop. Ins. Underwriting Assn., 53 NY2d 835; Glazer v Home Ins. Co., 190 NY 6; Pogo Holding Corp. v New York Prop. Ins. Underwriting Assn., 73 AD2d 605.)

      Charles T. Rubin for respondent in the fourth above-entitled action.
    I. Appellant’s failure to file proofs of loss within 60 days of demand is an absolute defense. (Lentini Bros. Moving & Stor. Co. v New York Prop. Ins. Underwriting Assn., 76 AD2d 759, 53 NY2d 835; Peabody v Satterlee, 166 NY 174; Quinlan v Providence Washington Ins. Co., 133 NY 356; Blossom v Lycoming Fire Ins. Co., 64 NY 162; Gallin v Allemannia Fire Ins. Co., 184 App Div 876, 230 NY 547; Esa v New York Prop. Ins. Underwriting Assn., 89 AD2d 865; Mass v Great Amer. Ins. Co., 33 AD2d 912; Canova v Cooperative Fire Ins. Co., 2 AD2d 679; Perry v Caledonian Ins. Co., 103 App Div 113.) II. Each of appellant’s arguments is without validity. (Lentini Bros. Moving & Stor. Co. v New York Prop. Ins. Underwriting Assn., 76 AD2d 759, 53 NY2d 835; Davern v American Mut. Liab. Ins. Co., 241 NY 318; Quinlan v Providence Washington Ins. Co., 133 NY 356; Metger v Aetna Ins. Co., 227 NY 411.)

      Philip F. Calderone for appellants in the fifth above-entitled action.
    As plaintiffs herein, subsequent to the fire loss, supplied defendant with all of the relevant information regarding said loss; were deposed in detail by defendant concerning the facts and circumstances surrounding said loss; and permitted the agents of defendant to inspect the damage to premises on various occasions, the extreme penalty of dismissal of the complaint is not justified or warranted in view of those attendant circumstances by virtue of plaintiffs’ prior attorney’s failure to file proofs of loss within 60 days. (Lentini Bros. Moving & Stor. Co. v New York Prop. Ins. Underwriting Assn., 76 AD2d 759, 53 NY2d 835; Porter v Traders’ Ins. Co., 164 NY 504; Pogo Holding Corp. v New York Prop. Ins. Underwriting Assn., 73 AD2d 605.)

      Francis J. Holloway and John P. Asiello for respondent in the fifth above-entitled action.
    I. The filing of written proofs of loss is a condition precedent to a suit to recover under the policy, and the insured’s failure to furnish written proofs of loss as required by the policy and demanded by respondent is a defense to the action as a matter of law. (Lentini Bros. Moving & Stor. Co. v New York Prop. Ins. Underwriting Assn., 76 AD2d 759, 53 NY2d 835; Gallin v Allemannia Fire Ins. Co., 184 App Div 876, 230 NY 547; Quinlan v Providence Washington Ins. Co., 133 NY 356; Peabody v Satterlee, 166 NY 174; Miller v Nationwide Mut. Fire Ins. Co., 92 AD2d 723; Dyno-Bite, Inc. v Travelers Cos., 80 AD2d 471; Happy Hank Auction Co. v American Eagle Fire Ins. Co., 1 NY2d 534; Proc v Home Ins. Co., 17 NY2d 239; Canova v Cooperative Fire Ins. Co., 2 AD2d 679.) II. On this record, there is no excuse for appellants’ failure to timely file proofs of loss. (Lentini Bros. Moving & Stor. Co. v New York Prop. Ins. Underwriting Assn., 53 NY2d 835.)
   OPINION OF THE COURT

Meyer, J.

The common thread in these four appeals is the effect of sections 168 and 172 of the Insurance Law on the rights of an insured who fails to file proof of loss with the insurer within 60 days after the insurer’s demand in writing. In Igbara the question is involved only peripherally; in the other three cases construction of the sections is determinative of the result.

When an insurer gives its insured written notice of its desire that proof of loss under a policy of fire insurance be furnished and provides a suitable form for such proof, failure of the insured to file proof of loss within 60 days after receipt of such notice, or within any longer period specified in the notice, is an absolute defense to an action on the policy, absent waiver of the requirement by the insurer or conduct on its part estopping its assertion of the defense. In Bonus Warehouse v Great Atlantic Ins. Co., the order of the Appellate Division should, therefore, be reversed and the certified question answered in the negative, and in Syd’s Decorators v New York Prop. Ins. Underwriting Assn. and Trexler v American Home Assur. Co., the respective ordérs of the Appellate Division should be affirmed, in each case with costs.

When such a demand has been made, however, and the insured’s time to file proof of loss has not expired at the time the insurer’s answer in an action on the policy is due, the requirement is not waived by the insurer’s service of an answer asserting defenses other than the failure to file proof of loss. In Igbara Realty Corp. v New York Prop. Ins. Underwriting Assn., the insurer having moved for leave to serve an amended answer asserting defenses of failure to file proof of loss after demand and lack of capacity of the corporate plaintiff insured by reason of its dissolution for nonpayment of taxes prior to issuance of the policy, and for summary judgment on the proof of loss defense, it was, therefore, error for the Appellate Division to deny on the law so much of the motion as sought leave to assert the failure of proof defense. It was not, however, error for that court to reverse so much of the order of Special Term as granted the insurer summary judgment dismissing the complaint for lack of capacity. The order of the Appellate Division in Igbara should, therefore, be modified as hereafter set forth and, as so modified, should be affirmed, with costs, and the certified question answered in the negative.

I

Igbara involves a corporation dissolved for nonpayment of taxes on March 27, 1979, which purchased from defendant Underwriting Association a fire insurance policy effective February 23, 1980. On May 31, 1981, the property insured by Igbara was totally destroyed by fire. Action was begun on the policy by service of summons on December 28, 1981, and the complaint was served on January 25, 1982. A demand for the filing of proof of loss, with which blank forms were enclosed, was made by defendant by letter dated January 18, 1982. It was stipulated that the demand was received by Igbara within a few days thereafter. On February 12, 1982, the Underwriting Association served its answer, which consisted of denials only, but on March 4, 1982, it served an amended answer alleging affirmative defenses of increased hazard, willful exaggeration, arson and false swearing, among other defenses.

Thereafter the Association moved (1) for leave to amend its answer to assert as additional defenses (a) the failure of plaintiff to file with defendant proof of loss though more than 60 days had elapsed since receipt by plaintiff of its demand, and (b) plaintiff’s lack of capacity to sue, and (2) for summary judgment, on the ground of plaintiff’s failure to file proof of loss. Although summary judgment had not been requested with respect to the defense of lack of capacity, Special Term, without considering the motion to amend or the failure to file proof of loss, dismissed the complaint for lack of capacity, as a matter of law. The Appellate Division, First Department, concluded that it did not necessarily follow that a dissolved corporation may not obtain fire insurance and sue on the policy, but held that the affirmative defenses asserted in the amended answer interposed before the time to file proof of loss had expired was a repudiation by defendant of liability on the policy which excused plaintiff from complying with the demand. It, therefore, reversed on the law the order dismissing the complaint, denied the motion to dismiss, denied leave to assert the defense of failure to file proof of loss, but granted, without passing on the merits of the defense, leave to defendant to serve an amended answer asserting lack of capacity as a defense. The appeal is before us by leave of the Appellate Division, which certified the question whether its order was properly made.

In Bonus Warehouse, plaintiff suffered a fire loss on April 6,1981 which destroyed its entire stock. At that time plaintiff was insured under fire policies of $50,000 with Great Atlantic Insurance Company and $100,000 with North River Insurance Company. Written demands for proof of loss were made by each carrier by letter, enclosing the necessary forms, which plaintiff concedes were received within a few days after their respective dates (Aug. 31, 1981 from Atlantic and Aug. 27, 1981 from North River). Proofs of loss were not received by the defendant insurers until January 16, 1982 and were rejected as untimely by each company on January 20,1982. On March 8, 1982, Bonus began separate actions against the two insurers. Each served an answer asserting affirmative defenses, including the failure of plaintiff to file proof of loss within 60 days after demand, and moved for summary judgment on the basis of that defense. Opposing the motions, plaintiff noted that it had met with defendants’ adjusters within two or three days after the fire, had supplied defendants with requested data and records and had agreed to submit to examination under oath, and had been misled by the demand which was but two sentences contained in a two-page letter and nowhere informed it that proof of loss had to be submitted within 60 days.

Special Term denied both motions and on appeal the Appellate Division, Second Department, affirmed, holding that under section 172 of the Insurance Law, failure to submit timely proofs of loss is not an absolute defense and may be excused if the failure was not willful and the delay was under all of the circumstances but a technical and unimportant omission. The appeal to us is by leave of the Appellate Division, which certified the question whether its order was properly made.

In the Syd’s Decorators case, the fire occurred on October 22, 1980, the insurer’s demand that proof of loss be filed and that plaintiff appear for examination under oath was received by plaintiff insured on August 10,1981, plaintiff’s president was examined under oath on October 6,1981, but no proof of loss was served prior to the commencement of action in September, 1982. Defendant’s answer asserted, among others, an affirmative defense based on the failure to file proof of loss and defendant moved for summary judgment on that ground. Noting that the demand had not been renewed after the oral examination, plaintiff asserted that it had believed attendance at the examination to be full compliance with the demand.

Special Term denied the motion and granted plaintiff leave to serve sworn proof of loss forms within 30 days after publication of its decision. The Appellate Division, First Department, reversed, concluding that defendant’s letter' was not misleading, that submission to examination was neither a substitute for nor excused lack of compliance with the proof of loss requirement, and that because plaintiff had never filed such a proof it could not be deemed in substantial compliance. Plaintiff appealed to this court as of right (CPLR 5601, subd [a], par [ii]).

Plaintiffs in the Trexler case sustained two separate fire losses on March 24, 1980 and April 1, 1980. Written demands for proofs of loss were received by plaintiffs on June 18 and June 30, 1980, and examination under oath was conducted on July 1, 1980. The case differs from the others in that the demand contained the statement that, “Proofs of Loss and schedules must be filed within sixty (60) days after receipt of this notice”, and that the examination ended with the carrier’s attorney’s statement that as he understood it plaintiffs were going to comply with the demand and that he, therefore, would continue the examination at a later time. Proofs of loss dated December 23, 1980 were served on January 13, 1981 and rejected as untimely on January 28, 1981. Defendant’s answer to the complaint asserted affirmative defenses, including the failure timely to file proof of loss. On motion of plaintiffs for summary judgment and cross motion by defendant for the same relief, Special Term denied both motions, concluding that plaintiffs had sufficiently complied by the filing of proof, though tardily.

Only defendant appealed to the Appellate Division, Third Department. That court modified, two Justices dissenting, by reversing so much of Special Term’s order as denied defendant’s cross motion for summary judgment, granted the cross motion and dismissed the complaint. Plaintiffs appeal to us from that reversal (CPLR 5601, subd [a], par [ii]).

Presented for our determination by these four appeals are questions whether (1) failure to file proof of loss within 60 days after a section 172 demand is an absolute defense, (2) the defense is waived by the filing of an answer alleging other defenses prior to the expiration of the time for filing proof of loss and (3) the complaint in Igbara could properly be dismissed for lack of capacity to sue on motion papers which although not asking dismissal on that ground did ask for summary judgment dismissing the complaint for failure to file proof of loss. For the reasons hereafter stated we answer question (1) in the affirmative and questions (2) and (3) in the negative.

II

The standard fire insurance policy provides that “within sixty days after the loss, unless such time is extended in writing by [the] Company, the insured shall render to [the] Company, a proof of loss, signed and sworn to by the insured” setting forth specified information (Insurance Law, § 168, subd 5, lines 97-100). Similar provisions in company-prepared contracts prior to adoption in 1886 of the standard policy, as well as the standard policy provision itself, were construed, prior to adoption in 1939 of section 172 of the Insurance Law, to establish a condition precedent, compliance with which had to be alleged and proved by the insured and the failure to comply with which constituted an absolute defense to an action on the policy (Gallin v Allemannia Fire Ins. Co., 230 NY 547, affg 184 App Div 876, 880; Peabody v Satterlee, 166 NY 174; Hicks v British Amer. Assur. Co., 162 NY 284; Quinlan v Providence Washington Ins. Co., 133 NY 356; see Nelson v Traders’ Ins. Co., 181 NY 472; Inman v Western Fire Ins. Co., 12 Wend 452).

The stringency with which the proof of loss provision of the standard policy was applied is illustrated by the Hicks and Peabody cases. In Hicks, Chief Judge Parker stated (162 NY, at p 292) with respect to that provision: “It is unnecessary to present the reasons which induced the legislature to require these conditions precedent to a recovery upon a policy of insurance; it is sufficient for our purpose that the legislature declared that it should be so, and we should see to it that the general trend of our decisions is toward the enforcement of the legislative command instead of its nullification.” In Peabody, the court wrote that: “The use of the standard policy in this state was made compulsory in order to protect both parties to the contract of insurance from unnecessary and wasting litigation over questions having their origin in the varying forms of policies issued by the different companies” (166 NY, at p 179) and that, “It is far more important that there should be a clear and settled rule as to the manner of rendering proofs of loss than that plaintiff should recover in this particular case” {id., at p 180). Applying that philosophy, the Peabody court reinstated a Trial Term judgment dismissing the complaint of an insured who within 32 days after a fire had submitted to the insurer proofs of loss verified by an attorney in fact, and who, the proofs having been rejected and returned by the insurer, on the sixtieth day after the fire mailed new proofs, sworn to by the insured, which were not, however, received by the insurer until the sixty-first day after the fire.

The Insurance Law was, however, recodified in 1939 (L 1939, ch 882) and as a part of that recodification section 172 was added. The issue presented by these cases is the extent to which that section modified the prior stringent rule. The pertinent language, contained in the first two sentences of subdivision 1 of that section, provides that: “The failure of any person insured against loss or damage to property under any contract of insurance, hereafter issued or delivered in this state or covering property located in this state, to furnish proofs of loss to the insurer or insurers as specified in such contract shall not be deemed to invalidate or diminish any claim of such person under such contract, unless such insurer or insurers shall, after such loss or damage, give to such person insured a written notice that it or they desire proofs of loss to be furnished by such person to such insurer or insurers and also a suitable blank form or forms for such proofs of loss. If the person insured shall furnish proofs of loss within sixty days after the receipt of such notice and such form or forms, or within any longer period of time specified in such notice, such person shall be deemed to have complied with the provisions of such contract of insurance relating to the time within which proofs of loss are required.” Although it has been said that that provision was enacted to protect “the insured from the consequences of his oversight or neglect in complying with one of the conditions precedent to a recovery under the policy” (Margulies v Quaker City Fire & Mar. Ins. Co., 276 App Div 695, 698), and there is some testimony in the hearings by the Joint Legislative Committee for the Recodification of the Insurance Law held August 5,1938 and December 21,1938 that would support that statement, its language goes no further than to require that the insurer bring to the attention of the insured, by making written demand for proofs and providing blank forms, the necessity for filing such proofs. But, if such a demand is made, the insured will be deemed in compliance with the policy’s requirement only if he or she “shall furnish proofs of loss within sixty days after receipt of such notice and such form or forms, or within any longer period of time specified in such notice”. Nothing in the subdivision mandates that the notice state that proofs must be submitted within 60 days after it is received by the insured. It may well be, as Justice Leonard H. Sandler suggested in his concurring opinion in Syd’s Decorators, that there is “need for an amendment of subdivision 1 of section 172 to achieve more fully its remedial purpose” (97 AD2d, at p 724), but that is a function of the Legislature rather than the courts, the rule under discussion having resulted from its enactment of sections 168 and 172 of the Insurance Law.

It follows that not only in the Trexler case, in which the insurer expressly set forth in its notice the time available for. compliance, but also in Bonus Warehouse and in Syd’s Decorators, the action must be dismissed because of the insured’s failure to comply with the proof of loss requirement of the policy.

Ill

The conclusion of the Appellate Division, First Department, in Igbara that the insurer should be denied leave to amend to assert the defense of failure to file proofs of loss was predicated upon the fact that by interposing its amended answer of March 4, 1982 alleging various affirmative defenses, the insurers had repudiated liability under the policy and thereby waived the filing of proofs of loss. In so holding it cited Beckley v Otsego County Farmers Coop. Fire Ins. Co. (3 AD2d 190,194, mot for lv to app dsmd 2 NY2d 990) and distinguished Lentini Bros. Moving & Stor. Co. v New York Prop. Ins. Underwriting Assn. (53 NY2d 835) on the ground that in the latter case the amended answer was not served until five months after the time to file proofs had expired, whereas in Beckley and in Igbara the answer was interposed before the time to file such proofs had expired.

We disagree. Critical to the determination of waiver is whether the act said to constitute a repudiation of liability on the policy is inconsistent with assertion of the defense. The act of repudiation may result in numerous ways; among others, from the sending of a letter denying all liability and refusing to pay the loss (Sherri v National Sur. Co., 243 NY 266, 273), from causing the insured’s arrest on a charge of arson (Beckley v Otsego County Farmers Coop. Fire Ins. Co., supra), or from the assertion, in an answer or otherwise, after expiration of the time to file proofs of loss, of various defenses to action on the policy, without asserting the failure timely to file as one of the bases for denial of liability.

Inconsistency, thus, will turn in some cases on when the section 172 demand was made, and in others on whether after service of such notice, the time for filing proofs of loss has expired. As was held in Beckley, an insurer may not after causing the insured’s arrest on a charge of arson “thereafter attempt to create other grounds for refusal to pay by demanding compliance by the insured with other incidental provisions of the policy with which it had not demanded compliance prior to its repudiation of liability” (3 AD2d, at p 194 [italics supplied]). But an insured, served with a section 172 notice prior to commencement of an action on the policy, cannot by beginning his action so as to require the insurer to answer prior to expiration of the time for filing proofs, cut off the insurer’s right to assert the defense (Lentini Bros. Moving & Stor. Co. v New York Prop. Ins. Underwriting Assn., 53 NY2d, at p 836; Blossom v Lycoming Fire Ins. Co., 64 NY 162, 166; Do-Re Knit v National Union Fire Ins. Co., 491 F Supp 1334, 1337). An insurer who answers after expiration of the insured’s time to respond to such a notice and fails to deny “specifically and with particularity” the insured’s failure to perform the condition precedent of filing proof of loss may, however, be held to have waived the defense (CPLR 3015, subd [a]; 3018, subd [b]; Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, C3018:14, C3018:15).

The Appellate Division having as a matter of law denied leave to assert the defense, the matter must be remitted to that court for consideration of that portion of the motion in the exercise of its discretion.

IV

The issues presented to Special Term by defendant’s motion in Igbara were whether leave should be granted to serve an amended answer alleging defenses of failure to file proof of loss and of lack of capacity and whether defendant was entitled to summary judgment based upon plaintiff’s failure to file proofs of loss. No request for summary judgment as to lack of capacity was contained in the notice of motion or any of the accompanying papers nor was the issue otherwise addressed by the parties. Plaintiffs therefore had no reason to present opposition to the granting of summary judgment on the ground of incapacity.

Under such circumstances it was error to grant summary judgment dismissing the complaint because it was not clear that the opponent of the motion had in fact put before the court all of its factual and legal contentions and that, therefore, no prejudice to the opponent could result from so doing (see Matter of Nassau BOCES Cent. Council of Teachers v Board of Coop. Educational Servs., 63 NY2d 100, 102; Rich v Lefkovits, 56 NY2d 276, 283).

The Appellate Division properly reversed Special Term’s grant of summary judgment of dismissal. In affirming its order in this respect we note, as did that court, that we do not reach the question of the effect of subdivision 10 of section 203-a of the Tax Law or sections 1006 and 1009 of the Business Corporation Law upon the right of plaintiff Igbara Corporation to maintain the action.

For the foregoing reasons, the disposition of these appeals is as follows:

In Igbara, the order of the Appellate Division should be modified, with costs to defendant, by reversing so much thereof as denied defendant’s motion for leave to serve an amended answer as to the defense of failure to render sworn proofs of loss and the case should be remitted to the Appellate Division, First Department, for its determination of that portion of the motion in the exercise of discretion and, as so modified, affirmed. The certified question should be answered in the negative.

In Bonus Warehouse, the order of the Appellate Division should be reversed, with costs, defendants’ motions for summary judgment granted and the certified question answered in the negative.

In each of Syd’s Decorators and Trexler, the order of the respective Appellate Divisions should be affirmed, with costs.

Chief Judge Cooke and Judges Jasen, Jones, and Kaye concur; Judges Wachtler and Simons taking no part.

In Igbara Realty Corp. v New York Prop. Ins. Underwriting Assn.: Order modified, with costs to defendant, and case remitted to the Appellate Division, First Department, for further proceedings in accordance with the opinion herein and, as so modified, affirmed. Question certified answered in the negative.

In Bonus Warehouse v Great Atlantic Ins. Co.: Order reversed, with costs, defendants’ motions for summary judgment granted and question certified answered in the negative.

In Syd’s Decorators v New York Prop. Ins. Underwriting Assn.: Order affirmed, with costs.

In Trexler v American Home Assur. Co.: Order affirmed, with costs.

      . The notice of motion refers to CPLR 3211, but the affidavits in support make clear that what defendant was seeking was an “order pursuant to Rule 3212 of the Civil Practice Law and Rules dismissing the complaint * * * for plaintiff’s failure to render sworn proofs of loss, although duly demanded.”

      . A similar ruling has been made by the Appellate Division, Fourth Department ([Miller v Nationwide Mut. Fire Ins. Co., 92 AD2d 723 [holding failure to file proof of loss to be an absolute defense]).

      . See, also, Nelson v Traders’ Ins. Co. (181 NY 472, 475) where, referring to the standard policy, the court stated: “Insurers issuing policies were compelled to use one form of contract; whose meaning should not be obscured by unusual clauses, nor concealed in a mass of verbiage, and whose provisions, being plain, could result in no injustice in their enforcement. When such is the contract, the courts should not refuse to enforce the forfeitures, or limitations, which the parties are deemed to have agreed upon.”

      . Contrast the New Jersey fire insurance statute (now New Jersey Insurance Law, § 17:36-6), which provides that failure to file proofs of loss does not bar recovery by the insured “unless after the loss sixty days’ notice, in writing, that the company desires the proofs of loss is furnished the insured.” The comment to the tentative draft of the Insurance Law, prepared by an Insurance Department committee headed by Professor Edwin W. Patterson and which formed the basis for the 1939 recodification, states that the provision which became section 172 “is based upon New Jersey Insurance Laws, 1935, §112 (N.J. Laws 1911, chapter 340)” which included the language quoted above.

      . Of some significance, though not controlling with respect to the intent of the 1939 Legislature in adopting section 172 (McKinney’s Cons Laws of NY, Book 1, Statutes, § 75, subd a), is the fact that the Insurance Law recodification enacted by chapter 367 of the Laws of 1984 (eff Sept. 1,1984) reenacted the standard policy form (§ 3404, subd [e]) with no change in lines 97-100 and reenacted section 172 as section 3407 with only three insignificant changes in wording.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    In the Matter of the Appointment of a Committee of the Property of Martha C. Von Bulow, an Alleged Incompetent Person. Chemical Bank and C. Sims Farr, Respondents, v Claus Von Bulow et al., Appellants.
    Argued October 9, 1984;
    decided October 23, 1984

      POINTS OF COUNSEL

      Louis Biancone and Roy M. Cohn for appellants.
    I. Special Term and the court below erred in failing to appoint an independent committee since respondents’ interests are potentially adverse to the best interests of the incompetent and her minor child. (Matter of Rothman, 263 NY 31; Matter of Berman, 21 AD2d 136; Matter of Marshall, 15 AD2d 310; Matter of McCarthy, 304 NY 601; Matter of Gorman, 77 Misc 2d 564; Matter of Burling, 41 Misc 2d 742.) II. The court below erred in affirming Special Term’s summary determination of respondents’ appointment without remanding the matter for a hearing concerning the issues of conflicts of interest and bias. (Andre v Pomeroy, 35 NY2d 361; Phillips v Kantor & Co., 31 NY2d 307; Glick & Dolleck v Tri-Pac Export Corp., 22 NY2d 439; Ugarriza v Schmieder, 46 NY2d 471; Onondaga Soil Testing v Barton, Brown, Clyde & Loguidice, 69 AD2d 984; Freling v Restivo, 69 AD2d 978; Leefe v Public Serv. Mut. Ins. Co., 14 AD2d 951; Egan Real Estate v McGraw, 40 AD2d 299; Marine Midland Bank-Eastern Nat. Assn. v Prel-Albany, Inc., 50 AD2d 996.) III. Alternatively, Special Term’s appointment of a third disinterested cocommittee was not, as a matter of law, an abuse of discretion. (Matter of Rothman, 263 NY 31; Barry v Good Samaritan Hosp., 56 NY2d 921; Matter of McCarthy, 279 App Div 716, 304 NY 601.)

      Owen McGivern and Haliburton Fales, 2d, for respondents.
    I. The court below’s affirmances of the appropriateness of the appointment of Chemical Bank and C. Sims Farr alone as cocommittee and of summary judgment were correct. (Kuehne & Nagel v Baiden, 36 NY2d 539; Matter of Kalthoff, 298 NY 458; Matter of Rice, 22 AD2d 339; Matter of McCarthy, 279 App Div 716, 304 NY 601; Matter of Salz, 80 AD2d 769; Matter of Sariyanis, 173 Misc 881; Matter of Kauffman, 55 AD2d 526; Matter of Finkle, 42 AD2d 554; Matter of Beatty, 21 AD2d 969; Matter of Pfleghar, 31 Misc 2d 244, 271 App Div 880.) II. The court below correctly determined that Special Term’s appointment of a stranger third cocommittee was an abuse of discretion. (Matter of Rothman, 263 NY 31; Matter of Fein v Fein, 72 AD2d 683; Matter of Manufacturers Hanover Trust Co., 83 AD2d 808; Matter of Wilder v Straus-Duparquet, Inc., 5 AD2d 1; Matter of Starrett, 53 AD2d 846; Matter of Rice, 22 AD2d 339; Matter of McCarthy, 279 App Div 716, 304 NY 601; Matter of Salz, 80 AD2d 769; Matter of Sariyanis, 173 Misc 881; Matter of Younker, 42 AD2d 534.)
   OPINION OF THE COURT

Per Curiam.

The issue presented concerns the appealability to this court of an Appellate Division order modifying an exercise of discretion by a lower court Judge.

Respondents, C. Sims Farr, an attorney, and Chemical Bank, commenced this proceeding by petitioning the court for a determination of incompetency as to Martha C. Von Bulow. There being no dispute as to the necessity for a committee, Special Term appointed respondents, since for decades they had been active in managing Mrs. Von Bu-low’s finances and counseling her. This appointment was made over the objection of appellants, Claus and Cosima Von Bulow, that respondents were associated with members of Mrs. Von Bulow’s family who were hostile to them. Though it found no conflict of interest on the part of Farr or Chemical, Special Term appointed a third cocommittee, a stranger to the parties and their affairs, because it believed “that the injection of a fresh, independent viewpoint into the management of Mrs. Von Bulow’s affairs can only be salutary.” On cross appeals relating solely to the issue of committee composition, the Appellate Division modified, “on the law,” by vacating the appointment of the third cocommittee but affirmed that of Farr and Chemical.

In selecting a committee for an incompetent, the primary concern is for the best interests of the incompetent (see, e.g., Matter of Kalthoff, 298 NY 458). This determination necessarily involves a judgment upon the facts and lies in the court’s discretion (see Matter of Rothman, 263 NY 31; Cohen and Karger, Powers of the New York Court of Appeals [rev ed], ch 16). On appeal, the Appellate Division may review the determination for an abuse of discretion but may also substitute its own discretion even in the absence of an abuse by Special Term (Barry v Good Samaritan Hosp., 56 NY2d 921). The lower courts have considerable latitude in exercising their discretion, which may be upset by us only for abuse as a matter of law.

Though the Appellate Division stated that Special Term had abused its discretion in appointing a third cocommittee, an examination of its memorandum decision reveals that the court went considerably beyond. Finding no deficiency in the qualifications or fitness to serve of the third cocommittee appointed by Special Term, the Appellate Division nonetheless concluded that the interests of the incompetent were best served by the appointment of respondents alone. The court felt the appointment of a stranger as a cocommittee “would constitute an unjustified burden on the administration of the estate under the circumstances of this case” (101 AD2d, at p 774); that Chemical understandably would expect a fee if it had to educate a stranger and attend regular meetings with an outsider; and that the “insubstantial evidence presented thus far of partiality does not justify this burden on the estate.” (101 AD2d, at p 775.) The court further noted that the conviction of Mr. Von Bulow on two counts of assaulting his wife with intent to commit murder had been reversed by the Rhode Island Supreme Court — an event occurring after Special Term’s decision. It concluded that the interests of the incompetent were best served by the appointment of respondents, and the interest of the minor daughter adequately protected. These findings reflect the exercise of discretion as to factual determinations. Thus, despite a recitation that the modification was “on the law,” the decision leaves no doubt that the Appellate Division action was the result of a substitution of its own discretion for that of Special Term.

Where, as here, an appeal is taken as of right on the basis of a modification at the Appellate Division, that modification must be in a substantial respect “which is within the power of the court of appeals to review on such appeal” (CPLR 5601, subd [a], par [iii]). Necessarily this category of appeals is predicated on the court’s evaluation of the merits of an appeal, for if the issues tendered are not reviewable by us the appeal must' be dismissed (Patron v Patron, 40 NY2d 582). Here, we conclude that issues tendered are not within our power to review. No substantial question of abuse as a matter of law by the Appellate Division has been presented; nor is it contended that the result reached by the exercise of its discretion is so outrageous as to shock the conscience. (Patron v Patron, 40 NY2d 582, 585, supra.) Accordingly, the appeal must be dismissed.

Appeal dismissed, without costs, in a Per Curiam opinion.

       This statutory restriction on our jurisdiction gives particular importance to how the order and decision of the Appellate Division are formulated. When the Appellate Division decision rests on abuse of discretion by the lower court as a matter of law, and the order so recites, a question of law may be presented for our review. When, however, the Appellate Division concludes that there was an improvident exercise of discretion below and substitutes its own discretion, and the order recites that the modification is made as a matter of discretion, then the issues will be appealable only where this court determines that a substantial question of abuse has been presented or the result reached is so outrageous as to shock the conscience. Recitals in the orders of the Appellate Divisions and articulations in their opinions which fail to recognize and implement this distinction may lead to confusion as to appealability or scope of review in our court.


text:
    1303 Webster Avenue Realty Corp., Appellant, v Great American Surplus Lines Insurance Company et al., Respondents.
    Argued September 4, 1984;
    decided October 23, 1984

      POINTS OF COUNSEL

      Ira M. Myers for appellant.
    I. Special Term was correct in finding that the statutorily shortened limitation of time was waived by defendants. The court below erred in its reversal. (Conte v Yorkshire Ins. Co., 5 Misc 2d 670; Bowen v Preferred Acc. Ins. Co., 82 App Div 458; Aktieholaget Malareprovinsernas Bank v Hanover Fire Ins. Co., 211 App Div 608, 241 NY 551; Godwin v Continental Ins. Co., 436 F2d 712.) II. The court below improperly determined as a legal question the factual issue of whether even the one-year limitations provision was in the policy of Great American. (Di Menna & Sons v City of New York, 301 NY 118; Barrett v Jacobs, 255 NY 520; Glick & Dolleck v Tri-Pac Export Corp., 22 NY2d 439.)

      Daniel J. Friedman for respondents.
    I. The action brought to recover under a fire insurance policy delivered in the State, commenced more than two years after inception of the loss, was untimely and should have been dismissed. (Hinkle v Globe & Rutgers Fire Ins. Co., 246 App Div 737, 271 NY 585; Zurich Ins. Co. v Martinez, 24 Misc 2d 437, 14 AD2d 754; McNamara v Allstate Ins. Co., 3 AD2d 295; Helfaer v John Hancock Mut. Life Ins. Co., 51 Misc 2d 869, 30 AD2d 102, 26 NY2d 699; Backus v Nationwide Mut. Ins. Co., 56 AD2d 724; Franklin v John Hancock Mut. Life Ins. Co. 298 NY 81; Godwin v Continental Ins. Co., 436 F2d 712; Frank Corp. v Federal Ins. Co., 91 AD2d 31; Bargaintown, D. C. v Bellefonte Ins. Co., 78 AD2d 206, 54 NY2d 700.) II. Plaintiff-appellant has failed to set forth sufficient facts in the record to establish the existence of a material and triable question of fact as to whether the one-year period of limitation was contained in the insurance policy issued by Great American. (Sutton v East Riv. Sav. Bank, 55 NY2d 550; Zuckerman v City of New York, 49 NY2d 557; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065; Philips v Kantor & Co., 31 NY2d 307; Indig v Finkelstein, 23 NY2d 729; Esa v New York Prop. Ins. Underwriting Assn., 89 AD2d 865.) III. Defendants-respondents did not waive the operative two-year period of limitations; nor are the facts contained in the record sufficient to raise in issue whether defendants-respondents should be estopped from relying upon the statutory limitation within which an action should have been commenced. (Proc v Home Ins. Co., 17 NY2d 239; Skylark Enterprises v American Cent. Ins. Co., 13 AD2d 707; Fotochrome, Inc. v American Ins. Co., 26 AD2d 634, 23 NY2d 889; Rosenthal v Reliance Ins. Co., 25 AD2d 860, 19 NY2d 712; Kaufman v Republic Ins. Co., 35 NY2d 867.)
   OPINION OF THE COURT

Per Curiam.

In this action on two policies of fire insurance, defendants moved to dismiss the complaint pursuant to CPLR 3211 (subd [a], par 5) on the ground that the action was not brought within two years from the date of the loss for which recovery is sought. Both plaintiff and defendants submitted affidavits and other evidentiary proof in connection with the motion. It is not disputed that plaintiff did not commence this suit within the two-year limitations period prescribed by subdivision 5 of section 168 of the Insurance Law.

Special Term denied defendants’ motion, stating that the insurance policy issued by each defendant failed to conform with subdivision 5 of section 168 in that each policy required that an action to recover the proceeds of the policy be brought within one year of the date of loss rather than within two years, the limitations period required to be set forth in a fire insurance policy by subdivision 5 of section 168. Special Term held that the insurers waived the benefit of the two-year limitations period due to the failure of the policies to conform with section 168 and that therefore the general Statute of Limitations of six years for an action on a contract would apply.

The Appellate Division reversed and dismissed the complaint as to both defendants. The Appellate Division apparently accepted Special Term’s finding that both policies contained a one-year Statute of Limitations period, and held that in such a case the policies were enforceable as if they contained the two-year limitations period. Accordingly, the Appellate Division found the complaint untimely as to both defendants.

The Appellate Division was correct in holding that where a policy of fire insurance provides for a shorter period of limitations than permitted by the standard fire insurance policy contained in subdivision 5 of section 168 the policy is enforceable as if it conformed with the statutory standard (Insurance Law, § 143, subd 1; Bersani v General Acc. Fire & Life Assur. Corp., 36 NY2d 457, 460). The inclusion of. an express period of limitations, even though erroneous, precludes a determination that the insurer intended to waive any but the general statutory six-year period with respect to actions upon a contractual obligation (CPLR 213, subd 2). As it is undisputed that the policy issued to plaintiff by defendant Illinois Employers’ Insurance Company of Wausau contained a one-year limitations period, the complaint as it relates to that policy must be dismissed.

If, however, an insurance company issues a policy of fire insurance without any Statute of Limitations provision it is not entitled to the benefit of the two-year period of section 168, and the general Statute of Limitations of six years for an action on a contract applies (Medical Facilities v Pryke, 62 NY2d 716, 717). The holding in Pryke is premised on the fact that in the absence of any provision in the policy as to the limitations period for commencing suit, the insured has no notice that there is a shortened Statute of Limitations and is thus entitled to rely on the general six-year provision for contract actions. In effect the insurer has waived any period of limitations other than the general statutory six-year period.

The papers submitted by plaintiff in opposition to defendant Great American Surplus Lines Insurance Company’s motion to dismiss raise a material question of fact as to whether the policy issued by that defendant contained a reference to a limitations period for commencing suit. Plaintiff’s action against Great American would be timely if the six-year Statute of Limitations were applicable — i.e., if the policy had no such reference and thus the motion to dismiss the complaint as it relates to the Great American policy must be denied.

Accordingly, the order of the Appellate Division should be modified so as to deny defendants’ motion to dismiss the complaint as untimely insofar as it is based on the insurance policy issued to plaintiff by defendant Great American Surplus Lines Insurance Co., and otherwise affirmed.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye concur in Per curiam opinion.

Order modified, without costs, by denying defendants’ motion to dismiss the complaint insofar as it is based on the insurance policy issued by defendant Great American Surplus Lines Insurance Company and, as so modified, affirmed.


author: Jasen, J. Meyer, J.

text:
    In the Matter of the Adoption of Robert Paul P., Appellant. Jack M., Appellant; Frederick A. O. Schwarz, Corporation Counsel, Respondent.
    Argued September 7, 1984;
    decided October 16, 1984

      POINTS OF COUNSEL

      Michael J. Lavery for appellants.
    I. Adoption is proper and permitted by New York’s adoption statute without a showing of the stereotypical parent-child relationship. (Matter of Adult Anonymous II, 88 AD2d 30; Matter of Kingsbury, 192 App Div 206, 230 NY 580; Stevens v Halstead, 181 App Div 198.) II. The best interests of the prospective adoptee will be promoted by granting an order of adoption. (420 East 80th Co. v Chin, 115 Misc 2d 195; Evangelista Assoc, v Bland, 117 Misc 2d 558; Hudson View Props, v Weiss, 59 NY2d 733; Matter of Adult Anonymous II, 88 AD2d 30.) III. The proposed adoption is in accord with the developing concept of freedom of intimate association. (People v Onofre, 51 NY2d 476; Moore v East Cleveland, 431 US 494; Caban v Mohammed, 441 US 380; Matter of Monroe, 132 Misc 279.)
    No appearance for respondent.

      Abby R. Rubenfeld, Craig J. Davidson and M. Ricardo Dubriel for Lambda Legal Defense & Education Fund, Inc., amicus curiae.

    I. The adoption statute does not require the parties to an adoption between adults to demonstrate that their relationship resembles a traditional parent-child relationship. (Matter of Kingsbury, 192 App Div 206, 203 NY 580; Matter of Adult Anonymous II, 88 AD2d 30.) II. The motives of the parties to this proceeding, which include economic and inheritance considerations, are proper grounds to support an adult adoption and are not fraudulent. (Matter of Kaufmann, 20 AD2d 464, 15 NY2d 825.) III. Interpretation of the facially neutral adoption statute in a manner singling out homosexuals for unfavorable treatment conflicts with executive and legislative policies in New York State and is at odds with the many court decisions around the country which have recognized the legitimacy of nontraditional family relationships. (People v Onofre, 51 NY2d 476; Moore v East Cleveland, 431 US 494; Eisenstadt v Baird, 405 US 438; Caban v Mohammed, 441 US 380; Bulloch v United States, 487 F Supp 1078; Sutherland v Auch Inter-Borough Tr. Co., 366 F Supp 127; Thorne v City of El Segundo, 726 F2d 459; Di Stefano v Di Stefano, 60 AD2d 976.)
   OPINION OF THE COURT

Jasen, J.

We are asked to decide whether it was error for Family Court to deny the petition of a 57-year-old male to adopt a 50-year-old male with whom he shares a homosexual relationship.

Appellants are two adult males who have resided together continuously for more than 25 years. The older of the two, who was 57 years of age when this proceeding was commenced, submitted a petition to adopt the younger, aged 50 at the time. The two share a homosexual relationship and desire an adoption for social, financial and emotional reasons. Following a hearing at which both parties to the prospective adoption testified, and upon receipt of a probation investigation that was favorable to the parties, Family Court denied the petition. That court concluded that the parties were attempting to utilize an adoption for the purposes properly served by marriage, wills and business contracts and that the parties lacked any semblance of a parent-child relationship.

The Appellate Division unanimously affirmed, without opinion, and granted leave to appeal to this court. We now affirm for the reasons that follow.

Our adoption statute embodies the fundamental social concept that the relationship of parent and child may be established by operation of law. (Matter of Upjohn, 304 NY 366, 373.) Despite the absence of any blood ties, in the eyes of the law an adopted child becomes “the natural child of the adoptive parent” with all the attendant personal and proprietary incidents to that relationship. (Carpenter v Buffalo Gen. Elec. Co., 213 NY 101, 108.) Indeed, the adoption laws of New York, as well as those of most of the States, reflect the general acceptance of the ancient principle of adoptio naturam imitatur — i.e., adoption imitates nature, which originated in Roman jurisprudence (Wadlington, Minimum Age Difference As A Requisite for Adoption, 1966 Duke LJ 392, 392-396), which, in turn, served as a guide for the development of adoption statutes in this country. (Howe, Adoption Practice, Issues and Laws 1958-1983,17 Family LQ 173,173-177; Wadlington, Adoption of Adults: A Family Law Anomaly, 54 Cornell L Rev 566, 567; Huard, Law of Adoption: Ancient and Modern, 9 Vand L Rev 743, 748; Matter of Livingston, 151 App Div 1-2.)

In imitating nature, adoption in New York, as explicitly defined in section 110 of the Domestic Relations Law, is “the legal proceeding whereby a person takes another person into the relation of child and, thereby acquires the rights and incurs the responsibilities of parent.” (Emphasis supplied.) It is plainly not a quasi-matrimonial vehicle to provide nonmarried partners with a legal imprimatur for their sexual relationship, be it heterosexual or homosexual. (See, e.g., Stevens v Halstead, 181 App Div 198.) Moreover, any such sexual intimacy is utterly repugnant to the relationship between child and parent in our society, and only a patently incongruous application of our adoption laws — wholly inconsistent with the underlying public policy of providing a parent-child relationship for the welfare of the child (Matter of Malpica-Orsini, 36 NY2d 568, 571-572, app dsmd sub nom. Orsini v Blasi, 423 US 1042; Matter of Upjohn, supra; Howe, op. cit., 17 Family LQ, at pp 176-179; Huard, op. cit., 9 Vand L Rev, at pp 748-749) — would permit the employment of adoption as the legal formalization of an adult relationship between sexual partners under the guise of parent and child.

While the adoption of an adult has long been permitted under the Domestic Relations Law, there is no exception made in such adoptions to the expressed purpose of legally formalizing a parent-child relationship. Adoption laws in this State, first enacted in 1873, initially only provided for the “adoption of minor children by adult persons.” (L 1873, ch 830.) As early as 1915, however, the statute was amended to allow adoption of “a person of the age of twenty-one years and upwards” (L 1915, ch 352) and presently the law simply provides that an unmarried adult or married adults together “may adopt another person” without any restriction on the age of the “adoptive child” or “adoptee”. (Domestic Relations Law, §§ 110, 109, subd 1.) Despite these and other statutory changes since adoption came into existence in New York, the basic function of giving legal effect to a parent-child relationship has remained unaltered.

Indeed, although the statutory prerequisites may be less compelling than in the case of the adoption of a minor, an adult adoption must still be “in the best interests of the [adoptive] child” and “the familial, social, religious, emotional and financial circumstances of the adoptive parents which may be relevant” must still be investigated. (Domestic Relations Law, § 116, subds 2, 3, 4.) Neither the explicit statutory purpose nor criteria have been diluted for adult adoptions, and this court has no basis for undoing what the Legislature has left intact.

Moreover, deference to the narrow legislative purpose is especially warranted with adoption, a legal relationship unknown at common law. (Betz v Horr, 276 NY 83, 86-87; Matter of Thorne, 155 NY 140,143.) It exists only by virtue of the legislative acts that authorize it. Although adoption was widely practiced by the Egyptians, Greeks and Romans, it was unknown in England until the Adoption of Children Act of 1926, more than 50 years subsequent to the enactment of adoption laws in New York. (See, generally, Huard, op. cit., 9 Vand L Rev 943; see, also, Matter of Clark, 87 Cal 638, 641 — adoption was “unknown to the common law” and “repugnant to [its] principles”.) Adoption in this State is “solely the creature of, and regulated by, statute law” (Matter of Eaton, 305 NY 162, 165) and “ ‘[t]he Legislature has supreme control of the subject’ ”. (Carpenter v Buffalo Gen. Elec. Co., supra, at p 107, quoting Matter of Cook, 187 NY 253, 260.) Consequently, because adoption is entirely statutory and is in derogation of common law, the legislative purposes and mandates must be strictly observed. (See Matter of Malpica-Orsini, supra, at p 570; Matter of Santacose, 271 App Div 11, 16; 2 NY Jur, Adoption, § 3.)

Here, where the appellants are living together in a homosexual relationship and where no incidents of a parent-child relationship are evidenced or even remotely within the parties’ intentions, no fair interpretation of our adoption laws can permit a granting of the petition. Adoption is not a means of obtaining a legal status for a nonmarital sexual relationship — whether homosexual or heterosexual. Such would be a “cynical distortion of the function of adoption.” (Matter of Adult Anonymous II, 88 AD2d 30, 38 [Sullivan, J. P., dissenting].) Nor is it a procedure by which to legitimize an emotional attachment, however sincere, but wholly devoid of the filial relationship that is fundamental to the concept of adoption.

While there are no special restrictions on adult adoptions under the provisions of the Domestic Relations Law, the Legislature could not have intended that the statute be employed “to arrive at an unreasonable or absurd result.” (Williams v Williams, 23 NY2d 592, 599.) Such would be the result if the Domestic Relations Law were interpreted to permit one lover, homosexual or heterosexual, to adopt the other and enjoy the sanction of the law on their feigned union as parent and child.

There are many reasons why one adult might wish to adopt another that would be entirely consistent with the basic nature of adoption, including the following: a childless individual might wish to perpetuate a family name; two individuals might develop a strong filial affection for one another; a stepparent might wish to adopt the spouse’s adult children; or adoption may have been forgone, for whatever reason, at an earlier date. (See Wadlington, Adoption of Adults: A Family Law Anomaly, 54 Cornell L Rev 566, at p 571, n 26, and p 578.) But where the relationship between the adult parties is utterly incompatible with the creation of a parent-child relationship between them, the adoption process is certainly not the proper vehicle by which to formalize their partnership in the eyes of the law. Indeed, it would be unreasonable and disingenuous for us to attribute a contrary intent to the Legislature.

If the adoption laws are to be changed so as to permit sexual lovers, homosexual or heterosexual, to adopt one another for the purpose of giving a nonmatrimonial legal status to their relationship, or if a separate institution is to be established for the same purpose, it is for the Legislature, as a matter of State public policy, to do so. Absent any such recognition of that relationship coming from the Legislature, however, the courts ought not to create the same under the rubric of adoption.

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

Meyer, J.

(dissenting). Having concluded in People v

Onofre (51 NY2d 476, 490) that government interference with a private consensual homosexual relationship was unconstitutional because it would not “do anything other than restrict individual conduct and impose a concept of private morality chosen by the State”, the court now inconsistently refuses to “permit the employment of adoption as the legal formalization of an adult relationship between sexual partners under the guise of parent and child.” (Majority opn, at p 236.)

The history and background of the adoption laws is sufficiently spelled out by Justice Sidney H. Asch in Matter of Adult Anonymous II (88 AD2d 30) and Family Court Judge Leon Deutsch in Matter of Anonymous (106 Misc 2d 792) and need not be further developed here. I write, therefore, essentially to emphasize the extent to which, in my view, the majority misconceives the meaning and purpose of article 7 of the Domestic Relations Law.

Under that article the relationship of parent and child is not a condition precedent to adoption; it is rather the result of the adoption proceeding. This is clear from the provisions of sections 110 and 117. The second unnumbered paragraph of section 110 defines “adoption” as “the legal proceeding whereby a person takes another person into the relation of child and thereby acquires the rights and incurs the responsibilities of parent in respect of such other person,” (emphasis supplied) and section 117, which spells out the “effect of adoption,” provides in the third unnumbered paragraph of subdivision 1 that, “The adoptive parents or parent and the adoptive child shall sustain toward each other the legal relation of parent and child and shall have all the rights and be subject to all the duties of that relation including the rights of inheritance from and through each other and the natural and adopted kindred of the adoptive parents or parent” (emphasis supplied). From those provisions and the statement in the opening sentence of section 110 that, “An adult unmarried person * * * may adopt another person”, no other conclusion is possible than that the Legislature has not conditioned adult adoption upon there being a parent-child relationship, but rather has stated that relationship to be the result of adoption. Indeed, had it intended to impose limitations of age, consent of others, sexual orientation, or other such condition upon adult adoption, it could easily have done so.

Nor will it do to argue, as did Justice Joseph P, Sullivan dissenting in Matter of Adult Anonymous II (88 AD2d, at p 38), that because the Legislature that provided for adoption of adults continued the proscription against homosexuality, it did not envision adoption as a means of formalizing a homosexual relationship. The wording of section 110 being sufficiently broad to permit such formalization once the prior criminal proscription has been declared unconstitutional, to deny it that effect is to ignore the rule that a court is “not at liberty to restrict by conjecture, or under the guise or pretext of interpretation, the meaning of” the language chosen by the Legislature (Department of Welfare v Siebel, 6 NY2d 536, 543, app dsmd 361 US 535; accord Allen v Minskoff, 38 NY2d 506, 511). It is “incumbent upon the courts to give effect to legislation as it is written, and not as they or others might think it should be written” (People v Woman’s Christian Assn., 56 AD2d 101, 104, on further appeal 59 AD2d 1005, affd 44 NY2d 466; Lawrence Constr. Corp. v State of New York, 293 NY 634, 639).

Contrary to the suggestion of the majority that the adoption statute must be strictly construed (majority opn, at p 238), it “has been most liberally and beneficently applied” (Matter of Malpica-Orsini, 36 NY2d 568, 572, app dsmd sub nom. Orsini v Blasi, 423 US 1042). True, Stevens v Halstead (181 App Div 198) held its use for the purpose of passing property from a 70-year-old physically infirm man to a married 47-year-old woman with whom he was living in an adulterous relationship to be improper. But that holding was predicated on the conception that it was “against public policy to admit a couple living in adultery to the relation of parent and child” and because “[t]his meretricious relationship, and the undue influence which imposed the will of defendant on decedent, condemn the adoption.” (Id., at p 201.) Here, however, there is no suggestion of undue influence and the relationship, which by the present decision is excised from the adoption statute’s broad wording, has, since the Onofre decision, been subject to no legal impediment. That it remains morally offensive to many cannot justify imposing upon the statute a limitation not imposed by the Legislature (People v Onofre, 51 NY2d, at p 490; Department of Welfare v Siebel, 6 NY2d, at p 543).

What leads to the majority’s conclusion that the relationship of the parties “is utterly incompatible with the creation of a parent-child relationship between them” (at p 239) is that it involves a “nonmarital sexual relationship” (at p 238). But nothing in the statute requires an inquiry into or evaluation of the sexual habits of the parties to an adult adoption or the nature of the current relationship between them. It is enough that they are two adults who freely desire the legal status of parent and child. The more particularly is this so in light of the absence from the statute of any requirement that the adopter be older than the adoptee, for that, if nothing else, belies the majority’s concept that adoption under New York statute imitates nature, inexorably and in every last detail.

Under the statute “the relationship of parent and child, with all the personal and property rights incident to it, may be established, independently of blood ties, by operation of law” (Matter of Malpica-Orsini, 36 NY2d, at pp 571-572); existence of a parent-child relationship is not a condition of, but a result of, adoption. The motives which prompt the present application (see n 1 to majority opn) are in no way contrary to public policy; in the words of Mr. Justice Holmes, they are “perfectly proper” (Collamore v Learned, 171 Mass 99, 100). Absent any contravention of public policy, we should be “concerned only with the clear, unqualified statutory authorization of adoption” (Bedinger v GraybilVs Executor, 302 SW2d 594, 599 [Ky]; Matter of Berston, 296 Minn 24, 27) and should, therefore, reverse the Appellate Division’s order.

Judges Jones, Simons and Kaye concur with Judge Jasen; Judge Meyer dissents and votes to reverse in a separate opinion in which Chief Judge Cooke concurs; Judge Wachtler taking no part.

Order affirmed, with costs.

      . The parties’ affidavit, attached to the petition, states the following reasons for the proposed adoption:
      “2. The two of us have lived together for a period of over 25 years. We consider ourselves to be a family, though this might not be true in the traditional sense. Though not the only reason for our petition, our present living arrangements, in a leased apartment, are not formalized and we fear the possibility of eviction; our financial and personal lives are entwined together and though it is not expected, we are concerned about the disposition of our estates upon death and lastly, though not least, we expect to live out our lives together and are concerned about the ability and right under the law for each of us to take care of the other should unexpected events occur.
      “3. Though the above reasons indicate financial, economic and practical considerations for our petition, not of any lesser extent and perhaps of more importance, are the many personal, emotional and sentimental reasons for which we present our petition. Simply stated we are a family and seek to formalize such.”

        . It is true, as the dissent notes (dissenting opn, at p 241), that this court has stated in the past that “the adoption statute ‘has been most liberally and beneficently applied’ ” (Matter of Malpica-Orsini, 36 NY2d 568, 572). However, a closer look at this court’s opinion in that case reveals that the statute is thusly to be applied only “[i]n harmony with the legislative policy” which is the “fundamental social concept that the relationship of parent and child *** may be established” (id., at pp 571-572). It is clear that we were addressing only the beneficent promotion of the “humanitarian principles” involved in “establishing a real home for a child” (id.) — not a liberal expansion of the underlying purposes and application of the adoption statute beyond that intended by the Legislature.

      . The dissent’s reliance on People v Onofre (51 NY2d 476) is misplaced. (Dissenting opn, at pp 239, 241, 241-242.) The issue in this case is not whether private consensual homosexual conduct is legally proscribable — this court has already answered that question in the negative (id.) and the decision today in no way affects or conflicts with that holding. The sole issue addressed today is whether adoption under the Domestic Relations Law is an appropriate means to legally formalize an indisputedly and entirely nonfilial relationship between sexual partners — regardless of whether their relationship is homosexual or heterosexual. The decision today in no way imposes or chooses a “concept of private morality” nor in any way judges the propriety or morality of the parties’ “individual conduct”.

      . Reference in the latter provision to “adoptive parent” and “adoptive child” does not require a contrary conclusion, for subdivision 1 of section 109 defines the former to “mean a person adopting” and the latter to “mean a person adopted.”

      . (Cf. Cal Civ Code, § 227p, subd [a] [“Any adult person may adopt any other adult person younger than himself or herself”]; Conn Gen Stats Ann, § 45-67 [“Any person eighteen years of age or older may by written agreement with another person at least eighteen years of age but younger than himself”]; Mass Gen Laws Ann, ch 210, § 1 [“A person of full age may * * * adopt as his child another person younger than himself”]; Nev Rev Stats, § 127.190 [“any adult person may adopt any other adult younger than himself”]; see 1953 version of the Uniform Adoption Act, 9 ULA [Master ed], p 14; Wadlington, Minimum Age Difference as a Requisite For Adoption, 1966 Duke LJ 392, 404-406.)


author: Jasen, J.

text:
    In the Matter of Anthony Plummer, Appellant, v Harold J. Rothwax, as a Justice of the New York State Supreme Court, et al., Respondents.
    Argued September 10, 1984;
    decided October 18, 1984

      POINTS OF COUNSEL

      Paul Morgenstern and Paul Feinman for appellant.
    I. Reprosecution of defendant following the Trial Judge’s premature discharge of the jury is violative of defendant’s Fifth Amendment rights under the United States Constitution. (Benton v Maryland, 395 US 784; United States v

      Jorn, 400 US 470; United States v Perez, 9 Wheat [22 US] 579; Wade v Hunter, 336 US 684; Downum v United States, 372 US 734; Matter of Girard v Rossi, 40 AD2d 13; People v Pagan, 45 NY2d 725.) II. The Trial Judge abused his discretion granted under CPL 310.60 (subd 1, par [a]) by prematurely discharging the jury.

      Robert M. Morgenthau, District Attorney (Ronald G. Blum and Bruce Allen of counsel), for respondents.
    The Trial Judge correctly exercised his discretion in declaring a mistrial when, after a 1-day trial, the jury declared itself hopelessly deadlocked following 43A hours of deliberations. (People v Michael, 48 NY2d 1; United States v Perez, 9 Wheat [22 US] 579; Arizona u Washington, 434 US 497; People v Ortiz, 54 NY2d 288; United States v Beckerman, 516 F2d 905; United States v Brahm, 459 F2d 546, cert den sub nom. Medina v United States, 409 US 873; Grogan v United States, 394 F2d 287, 393 US 830; Nelson v District Ct., 543 F2d 631.)
   OPINION OF THE COURT

Jasen, J.

The narrow issue presented on this appeal is whether the trial court abused its discretion in declaring a mistrial by reason of the jury’s apparent inability to reach a verdict. If there was such an abuse, a retrial would be barred violative of the defendant’s right against double jeopardy.

Defendant was brought to trial on charges of sodomy in the first degree and assault in the second degree. The People’s case consisted solely of the testimony of the complainant and the arresting officer; the defense presented only a detective from the police crime laboratory.

The complainant testified that defendant had let himself into her apartment while she was alone under the guise that he needed to do some handiwork for the building superintendent, and that, shortly thereafter, he emerged from the bathroom naked and forced her to perform oral sex. She further testified that she ran away immediately thereafter and called the police.

On cross-examination, defense counsel questioned the complainant about the discrepancies between her testimony on direct and that given at the preliminary hearing and the Grand Jury. At the preliminary hearing, for example, the complainant had testified that the defendant entered her apartment together with the landlord, that he remained for several hours, and that she permitted him to use her shower prior to the alleged sexual assault. Additionally, the complainant had stated at the Grand Jury that she unsuccessfully attempted to defend herself with a kitchen knife — a matter which she failed to mention at either the preliminary hearing or at trial. While there were these and other more superficial inconsistencies in complainant’s statements, nevertheless, she did not alter her testimony as to the forceful nature of the sexual act.

The arresting officer testified briefly that he received a radio transmission, met the complainant who explained the incident, found defendant in his own apartment and placed him under arrest, and took complainant to the hospital. The defendant’s only witness testified that the laboratory test failed to disclose any sperm, in complainant’s mouth. On cross-examination, he acknowledged that such tests very rarely do.

The trial had commenced in the afternoon of April 18, 1983. The following morning, the defense rested, the court charged the jury and deliberations began at 11:00 a.m. During the 6V2 hours that followed, the jury spent 1 hour and 15 minutes for lunch, requested further instructions and readings of the complete testimonies of both prosecution witnesses which cumulatively took 32 minutes, and completed their deliberations.

At 5:40 p.m., the jury sent a note to the Trial Judge stating, “Your Honor, we cannot come to a verdict.” The jurors were reassembled in the courtroom and the Judge read from CPL 310.60 and explained tha,t the statute applies where further deliberations would be “fruitless” — where “there would be no possibility of further deliberations altering the positions of the jury.”

Addressing the foreperson in the presence of the other jurors, he then engaged in the following dialogue:

“the court:

Now, is that, Madame Foreperson, is that the position of the jury at this time? Do you think that if you were to discuss this case for any additional period of time the jury is likely to come to any changed position?

“the foreperson:

No, sir.

“the court:

You are suggesting to me that this jury is, what you might say hopelessly deadlocked, split down the middle and there is no chance of the jury changing their position? Essentially the problem is that this case was tried, it’s true in only a period of a day but the circumstances provide that when a jury is discharged, the defendant is to be re-tried on the indictment and so we will select another jury with no more care than we selected this one. They will hear the same witnesses and they will have to hear the same case. So if you think you would like to go to dinner and continue your deliberations then you think that will produce anything, we will do that. If you want to indicate that this jury is so deadlocked that it’s not going to help, you can tell me that now.

“the foreperson:

I believe that we are deadlocked.

“the court:

I am sorry, I can’t hear you.

“the foreperson:

I do believe that we are deadlocked.

“the court:

And you are suggesting that the division of twelve jurors is so hopelessly deadlocked that no amount of further deliberations will be of any value and it will be a waste of your time and the court’s? Is that what you are suggesting?

“the foreperson:

Yes.”

ie court made a finding that a verdict was not likely to be reached within a reasonable time and discharged the jury. Defense counsel noted his objection on the ground that the jury had deliberated for only a short time. The court, however, responded that the time was reasonable in light of the brevity of the case and the nature of the complainant’s testimony, and that there was no dissent from any of the jurors that further deliberations would be of any value. The case was then reassigned for a new trial. At that point,

On reassignment to trial before respondent Supreme Court Justice, defendant moved to dismiss the indictment on the grounds that a retrial was violative of the protections against double jeopardy under the Fifth Amendment of the United States Constitution and CPL 210.20 (subd 1, par [e]). The motion was denied and this article 78 proceeding was commenced in the Appellate Division. Defendant raised the same arguments in that court seeking a writ of prohibition to bar retrial. The Appellate Division unanimously denied the petition, without opinion. We now affirm for the following reasons.

The constitutional guarantee against double jeopardy safeguards the defendant’s “valued right to have his trial completed by a particular tribunal” (Wade v Hunter, 336 US 684, 689) which “he might believe to be favorably disposed to his fate” (United States v Jorn, 400 US 470, 486.) This “valued right” protects the defendant against the increased financial and emotional burden of a second prosecution, the prolongation of an unresolved stigma and the enhanced risk of an unjustified conviction. (Arizona v Washington, 434 US 497, 503-504.) In the oft repeated words of Justice Black, “[t]he underlying idea * * * is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.” (Green v United States, 355 US 184, 187-188.)

But the proscription against twice putting a defendant in jeopardy “does not mean that every time a defendant is put to trial before a competent tribunal he is entitled to go free if the trial fails to end in final judgment.” (Wade v Hunter, supra, at p 688.) Rather, unlike the situation in which the trial has resulted in a judgment of acquittal, a retrial is not automatically barred where the merits of the charges against the defendant have not been resolved. Indeed, the valued right to have the trial concluded by a particular tribunal is sometimes subordinate to the public interest “in seeing that a criminal prosecution proceed to verdict”. (Illinois v Somerville, 410 US 458, 463; Arizona v Washington, supra, at p 505.) The “classic example” is a mistrial where the Trial Judge discharges a genuinely deadlocked jury. (Downum v United States, 372 US 734, 736; see, also, United States v Perez, 9 Wheat [22 US] 579; Logan v United States, 144 US 263.) In such a case, there is no bar to a retrial.

The decision to declare a mistrial necessarily rests in the broad discretion of the Trial Judge (Hall v Potoker, 49 NY2d 501, 505; see, also, People v Ortiz, 54 NY2d 288, 292; Illinois v Somerville, supra, at p 462) who is best situated to take all the circumstances into account and determine whether a mistrial is in fact required in a particular case. (People v Michael, 48 NY2d 1, 9; Gori v United States, 367 US 364, 368.) Moreover, failure of reviewing courts to accord great deference to a Trial Judge’s decision — and, instead, to bar retrial whenever the facts are viewed somewhat differently on appeal — might well encourage a needless waste of judicial resources and time by requiring further deliberation of juries that are hopelessly deadlocked (see Arnold v McCarthy, 566 F2d 1377,1387; United States v Goldstein, 479 F2d 1061, 1068) and, more drastically, might similarly encourage the employment of “untoward pressure” upon juries or, simply, their eventual exhaustion to break deadlocks at the risk of unjust verdicts (see People v Pagan, 45 NY2d 725, 727; People v Carter, 40 NY2d 933, 934; People v Faber, 199 NY 256, 259; Arizona v Washington, supra, at p 510; United States v Horn, 583 F2d 1124, 1127; Arnold v McCarthy, supra, at p 1387).

Nevertheless, trial courts are not free to act without restraint. Rather, the “authority to discharge a jury from giving any verdict” is limited to those situations where “in [the trial court’s] opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated.” (United States v Perez, supra, at p 580.) While it may be impossible to define with precision those circumstances justifying the declaration of a mistrial (id.; Illinois v Somerville, supra, at p 462) — and, indeed, the rigid application of any mechanical formula would be invalid (Arizona v Washington, supra, at p 506; Illinois v Somerville, supra, at p 462) — still, there are some identifiable factors which are helpful in determining the “necessity” of discharging an apparently deadlocked jury.

Those factors, which should be considered by the trial court before exercising discretion, include the length and complexity of the trial, the length of the deliberations, the extent and nature of the communications between the court and the jury, and the potential effects of requiring further deliberation. (See United States v Horn, supra, at p 1127; Arnold v McCarthy, supra, at pp 1386-1387; United States v See, 505 F2d 845, 851-852; ABA Project on Minimum Standards for Criminal Justice, Trial by Jury [approved draft, 1968], § 5.4[c].)

Considering the circumstances of the present case in light of these factors, we believe that the Trial Judge did not abuse his discretion in deciding that the jury could not reach a verdict and declaring a mistrial. The trial was rather short and the issue to be resolved relatively simple. The People’s entire case took but one afternoon and the defense only several minutes the following morning. The evidence consisted of the testimony of only two government witnesses and one for defendant, and only that of the complainant was at all lengthy and detailed. Indeed, the case was a simple one involving only two straightforward counts of sodomy and assault predicated upon a single incident, and requiring the resolution of but one factual issue — i.e., the credibility of the complainant. Neither the law nor the facts were complicated or confusing, requiring any great length of time for the jury to analyze legal intricacies or sort out factual questions. Rather, there was involved but one potentially irresolvable factual issue — i.e., whether complainant’s trial testimony was believable in light of her earlier, somewhat disparate, testimony at the preliminary hearing and Grand Jury. It is not unlikely that a jury could shortly become deadlocked over a complainant’s testimony in a case such as this.

In light of the foregoing, it cannot be said that the jury’s deliberation, which lasted approximately 4xh hours excluding lunch, was per se insufficient as a matter of law. Indeed, jury deliberations lasting a similar period of time have repeatedly been held by Federal appellate courts throughout this country to be adequate under circumstances analogous to those here. (See, e.g., Nelson v District Ct., 543 F2d 631 [2½-day trial, hours deliberation]; United States v Larry, 536 F2d 1149 [3-day trial; hours deliberation]; United States v Beckerman, 516 F2d 905 [2½-day trial, 6 hours deliberation]; United States v Brahm, 459 F2d 546, cert den sub nom. Medina v United States, 409 US 873 [2-day trial, 5 hours deliberation]; Grogan v United States, 394 F2d 287, cert den 393 US 830 [4-day trial, 5 hours deliberation]; United States v Cording, 290 F2d 392 [3-count trial, less than 4 hours deliberation].) While a very short period of deliberation in a lengthy and complicated case may be an inadequate predicate on which to find an irreconcilable disagreement among the jurors, where, as here, the length of the trial was short and the issue clear, the trial court may well be justified in accepting a deadlock after only a few hours of deliberation.

Additionally, the Trial Judge adequately explored the genuineness of the deadlock with the jury itself. It is significant that the jury on its own initiative declared that it was hopelessly deadlocked. Presumably the jury reached a consensus before reporting to the Judge through the note presented by the foreperson. (See Arnold v McCarthy, supra, at p 1387; United States ex rel. Webb v Court of Common Pleas, 516 F2d 1034, 1044, n 56; United States v See, supra, at p 851; United States v Lansdown, 460 F2d 164, 170; United States ex rel. Russo v Superior Ct., 483 F2d 7, 16, cert den 414 US 1023.) Thereafter, the Judge questioned the jury through its foreperson who insisted that further deliberations would be fruitless and that returning after dinner, as the court itself suggested, would not be helpful. There was no word or other indication of dissent from any of the jurors. (Cf. United States v Beckerman, supra, at p 910; see, also, Nelson v District Ct., supra, at p 632; United States v See, supra, at p 851.) Although the better practice would have been for the Judge to obtain the assent of the other jurors by questioning them as a whole, rather than by merely addressing the foreperson (cf. 1 NY CJI 42.60, p 1019), no prejudice resulted under the facts here. In light of the unequivocation of the foreperson’s responses and the absence of dissent from the other jurors, the court’s investigation of the jury’s inability to reach a verdict was adequately extensive.

Finally, inasmuch as the jury seemed genuinely to have reached a stalemate, it was reasonable for the trial court to avoid any coaxing, inducing or pressuring the jury to return for further deliberations. Such action could have proven coercive and prejudicial and might have resulted in the denial of a fair verdict to the defendant or the People, a verdict which the jury might not otherwise support. (People v Carter, supra, at p 934; People v Faber, supra, at p 259; Arizona v Washington, supra, at p 510; Arnold v McCarthy, supra, at p 1387.) Likewise, under these circumstances, it was not error for the court to fail to give an Allen charge. (Allen v United States, 164 US 492.) Such a charge can sometimes be improperly coercive (see United States v Beckerman, supra, at p 909) and, in any event, it was not requested by defendant.

Accordingly, it cannot be said that the trial court abused its discretion in declaring a mistrial and discharging the jury, and a retrial is not barred by the constitutional or statutory guarantee against double jeopardy. The judgment of the Appellate Division should be affirmed.

Chief Judge Cooke and Judges Jones, Wachtler, Meyer, Simons and Kaye concur.

Judgment affirmed, without costs.

      . CPL 310.60 provides in pertinent part:
      “1. A deliberating jury may be discharged by the court withou t having rendered a verdict only when:
      “(a) The jury has deliberated for an extensive period of time without agreeing upon a verdict with respect to any of the charges submitted and the court is satisfied that any such agreement is unlikely within a reasonable time”.

      . The Fifth Amendment provides in part: “No person shall * * * be subject for the same offense to be twice put in jeopardy of life or limb”. While the Federal guarantee against double jeopardy was initially deemed not to be fundamental and, therefore, not applicable to the States by means of “incorporation” into the due process clause of the Fourteenth Amendment (see Palko v Connecticut, 302 US 319), the Supreme Court decided otherwise in 1969 (Benton v Maryland, 395 US 784), making the right assertible against the States as well as the Federal Government. This court had already adopted that position three years earlier in People v Ressler (17 NY2d 174), mandating that New York’s “former jeopardy” laws (presently found in NY Const, art I, § 6; and CPL 40.20) be construed as extensively as the Federal constitutional guarantee.

      . CPL 210.20 (subd 1) provides: “1. After arraignment upon an indictment, the superior court may, upon motion of the defendant, dismiss such indictment or any count thereof upon the ground that * * * (e) The prosecution is barred by reason of a previous prosecution, pursuant to section 40.20”.
      CPL 40.20 (subd 1), in turn, states: “1. A person may not be twice prosecuted for the same offense.”

      . [2] The remedy of prohibition — albeit extraordinary and normally appropriate only where a judicial or quasi-judicial official or body acts or attempts to act without or in excess of jurisdiction (Matter of B.T. Prods, v Barr, 44 NY2d 226, 231) — has traditionally been available to bar a retrial on double jeopardy grounds. (See Hall v Potoker, 49 NY2d 501, 505, n 1; Matter of Nolan v Court of Gen. Sessions, 11 NY2d 114.)