text:
    Employers Commercial Union Insurance Company of New York, Respondent, v Firemen’s Fund Insurance Company, Appellant, et al., Defendants.
    Argued September 20, 1978;
    decided December 6, 1978

      POINTS OF COUNSEL

      Richard J. O’Keeffe for appellant.
    I. There is no evidence to sustain the conclusion of the court below that Employers’ policy did not insure the 1967 Chevrolet. (Ehrlich v American Moninger Greenhouse Mfg. Corp., 26 NY2d 255; Capelin Assoc. v Globe Mfg. Corp., 34 NY2d 338.) II. Section 313 of the Vehicle and Traffic Law automatically terminated Firemen’s Fund’s policy on the effective date of Employers’ replacement policy.

      John T. McDonald and Sidney A. Schwartz for respondent.
    I. As a matter of law the court should affirm the orders of the courts below as correct and supported by the evidence which is now outlined. (Equipment Fin. v Selected Meat Packers, 57 AD2d 1017; Capelin Assoc. v Globe Mfg. Corp., 34 NY2d 338.) II. The court below was correct in holding Firemen’s liable pursuant to section 313 of the Vehicle and Traffic Law. (Tomala v Peerless Ins. Co., 20 AD2d 206; Teeter v Allstate Ins. Co., 9 AD2d 176; Government Employees Ins. Co. v Mizell, 36 AD2d 452.)
   OPINION OF THE COURT

Fuchsberg, J.

In this declaratory action, the ultimate question is which of two liability insurance carriers, plaintiff-respondent Employers or defendant-appellant Firemen’s, was the one obligated to assume the cost of defending and paying claims for damages for injuries sustained by third parties in an automobile collision in which the operator of a motor vehicle and, through him, its owner, Hacker Oil Corporation, were involved. The answer to the question requires interpretation of section 313 of the Vehicle and Traffic Law, a statute designed to circumscribe the freedom of insurers to terminate policies which motorists must carry to conform with our compulsory liability insurance requirements (Vehicle and Traffic Law, arts 6-8).

The factual background against which the case comes to us is essentially uncomplicated. The collision occurred on January 1, 1969. It is conceded that Firemen’s policy by its terms was due to expire more than two months earlier, on October 25, 1968. Before that date, Firemen’s notified Hacker’s insurance broker that it would not renew and, consistent with that advice, never billed for or received further premiums. For its part, the brokers issued a binder on behalf of Employers for replacement insurance. To avoid any time gap, the effective date of the new policy was specified as October 25, 1968 to coincide with that of the Firemen’s termination. The language of both policies spelled out identical liability coverage; as pertinent here, each was applicable to the "use of any [Hacker-owned] automobile” (emphasis ours). Thereafter, memorialization of the new insurance continued in binder form until Arpil 24, 1969, when Employers sent Hacker its long form policy specifying the year between October 25, 1968 and October 25, 1969 as the period during which it afforded protection.

When the parties injured in the accident sued the driver and Hacker, Employers, treating them as its assureds, undertook their defense and, later, after a verdict on the issue of liability, reached a settlement of the suit in the amount of $166,999.40. Employers now looks to Firemen’s to reimburse it for the moneys it expended in settlement and defense of the liability litigation. In doing so, it contends in the main that Firemen’s was still on the risk on January 1, 1969 because, when it elected not to renew, Firemen’s concededly neglected to give either Hacker or the Commissioner of Motor Vehicles the notices of termination referred to in section 313. Employers also relies on a melange of arguments alternating between the suggestion that its own coverage was not in place by January 1, 1969 and that, if it was, it did not include the accident vehicle.

These issues were confronted when Employers moved for summary judgment, whereupon Firemen’s requested like relief pursuant to CPLR 3212 (subd [b]). Special Term then declared that Firemen’s and not Employers was the insurer of the Hacker automobile at the time of the accident and directed an assessment of damages against Firemen’s. The Appellate Division affirmed the judgment entered thereon (55 AD2d 888).

Having granted leave to appeal, we now reverse. The record unequivocally shows that Employers insured the Hacker vehicle at the time of the accident. A supervening policy of liability insurance terminates a prior insurer’s obligation to indemnify irrespective of the prior insurer’s noncompliance with the notice requirements of section 313 of the Vehicle and Traffic Law.

In so holding, first we reject any notion that the Employers policy was not in force on January 1, 1969. Whether it was did not depend on the status of the Firemen’s coverage, i.e., whether its nonrenewal had gone into effect by that date. Subdivision 1 of section 313 tells us that the procurement of "another insurance contract” may terminate "the insurance previously in effect with respect to any motor vehicles designated in both contracts”. Thus, the issuance of a second policy may be the condition on which the termination of the first becomes effective. That is consonant with the legislative concern that those injured as a result of the negligent operation of motor vehicles not go unrecompensed because of financial irresponsibility (Vehicle and Traffic Law, § 310, subd [2]). But such considerations do not obtain when a motorist purchases a second policy to cover a risk that is already protected by an earlier one. In that event, continued existence of the first policy may bring the second carrier a coinsurer, but does not end the second one’s coverage.

Moreover, if, as Employers alleges, Firemen’s, in notifying the commissioner of its coverage of the accident vehicle in an earlier year, had — accurately or inaccurately — classified it as though it were covered by a separate policy, that would not without more have narrowed the scope of either the subsequent Employers binder when it was issued in 1968 or its formal policy when that was transmitted to Hacker in April, 1969. At no time did Employers, whether through incorporation by reference or otherwise, limit its coverage to that of Firemen’s. Specifically, nothing else in the record supports the assertion that Firemen’s ever wrote an individual policy on the vehicle involved or, if it had, that Employers’ own contract, directly or by implication, excluded any automobile which Firemen’s may have insured separately.

The record gives no greater support to Employers’ agrument that the binders which preceded the policy’s delivery had created no enforceable contract as of January 1, 1969. Though the issuing agent’s deposition testimony indicates that he had not spoken to Employers about the October, 1968 binder until that December, the accident here did not occur until January, 1969. Employers did nothing to repudiate its coverage on either of these occasions. Instead, a second Employers binder continuing the new insurance followed a month after the accident. Very important is that Employers undertook, without reservation, to manage the defense of the liability suit. And perhaps most crucial is the unambiguous dating and language of the policy when it was finally issued to supplant the binder.

The conclusion dictated by these facts is reinforced by the very nature of insurance binders. Daily, important affairs and rights in our society are made to depend upon them. It is a common and necessary practice in the world of insurance, where speed often is of the essence, for the agent to use this quick and informal device to record the giving of protection pending the execution and delivery of a more conventionally detailed policy of insurance. Courts, recognizing that the cryptic nature of binders is born of necessity and that many policy clauses are either stereotypes or mandated by public regulation, are not loath to infer that conditions and limitations usual to the contemplated coverage were intended to be part of the parties’ contract during the binder period (Matter of Seiderman v Herman Perla, Inc., 268 NY 188; Ell Dee Clothing Co. v Marsh, 247 NY 392).

All the greater is the reluctance to engage in hypercritical scrutiny of a binder, since the public interest, which exceeds that of the parties, is at stake. Here the paramount public interest as expressed by the Legislature is in the vindication of the rights of third parties, in this case those injured in the accident (Teeter v Allstate Ins. Co., 9 AD2d 176, 182, affd 9 NY2d 655). Against this public policy perspective and the factual backdrop of this case, the conclusion that Employers’ insurance was in effect on January 1, 1969 is too inescapable for it to have successfully withstood summary judgment (see Capelin Assoc. v Globe Mfg. Corp., 34 NY2d 338, 341).

Having found that Employers’ policy was in effect, we now must turn to section 313 of the Vehicle and Traffic Law to determine whether Firemen’s nevertheless remained on the risk as well. Subdivision 1 of that statute begins with an explicit statement that existing insurance shall not be terminated by the insurer’s cancellation or failure to renew until the passage of a specified time after the insurer mails a notice of termination to the named insured. Firemen’s gave no such notice. However, with equal clarity, subdivision 1 goes on to add an exception consisting of a clause that reads "provided, however, if another insurance contract has been procured, such other insurance contract shall, as of its effective date and hour, terminate the insurance previously in effect.”

We find no conflict or inconsistency in these provisions. On its face, the second of these clauses presents an alternative the consequence of which is that, when replacement insurance provides uninterrupted continuation of coverage from the instant of expiration of the pre-existing policy, the new insurer bears the risk exclusively.

Neither policy nor logic supports a contrary result. Aside from affording members of the general public protection for injuries caused by errant motorists, the recognized purpose of subdivision 1 is to keep an insured from suffering immediate and perhaps unanticipated loss of his insurance and thereby of his automobile registration (Vehicle and Traffic Law, § 310, subd [2]; Providence Washington Ins. Co. v Security Mut. Ins. Co., 43 AD2d 213, 217 [Shapiro, J.]). Both these concerns are met when new coverage eliminating the possibility of an insurance-less period has been secured. The insured needs no notice when that has happened. Having already procured new insurance, he needs no time leeway in which to do so. Nor is notice of termination upon the initiative of the insurer a condition precedent to the right of the insured to substitute carriers. The insured is free to do so at will. It follows that, since the Employers insurance was placed with the intent of superseding the expiring policy, the Firemen’s coverage came to an end as a matter of law at that time notwithstanding its failure to give notice to its insured.

A contrasting picture is presented by Employers’ undertaking. One of the facts on which it premised its varied defenses was that its initial binder was for only 15 days. Subdivision 1 is not, however, limited in application to insurance contracts of any particular duration. Therefore, once Employers had stepped into the shoes of Firemen’s, unless the insured obtained still another substitute insurer, which did not happen here, the coverage created by the binder could not be terminated or canceled without the requisite statutory notice to Hacker. Employers never having sent such a notice at any time until its binder was subsumed by its own full policy in 1969, it never went off the risk during the period relevant to this case.

Finally, we note that while subdivision 2 of section 313 requires an insurer to provide the Commissioner of Motor Vehicles with notice of termination of coverage within 30 days of the date that it ends, the statute prescribes no penalty for failure to do so. Obviously, since the notice to the commissioner is not required to be given before the insurance has already terminated, it is not intended to further the public interest in insulating existing insurance from unheralded demise.

True, some cases have held that, where a terminated policy has not been superseded as provided by subdivision 1, a derelict insurer remains on the risk until notice is filed with the commissioner, even if the policy period has ended (e.g., Matter of Kinahan v Fireman’s Fund Amer. Ins. Cos., 52 AD2d 846; but cf. Capra v Lumbermens Mut. Cas. Co., 31 NY2d 760). We need not pass on the correctness of such rulings, however, because we hold that where replacement insurance is actually obtained so as to continue coverage from the expiration date of the previous policy, the superseded insurer is relieved of the risk despite failure to notify the commissioner of termination of coverage.

Subdivision 2 itself contemplates that in the first instance ordinarily the terminated insurer will have "been advised by the commissioner that such insurance has been superseded by another insurance contract” and not the other way around. Furthermore, since there will then be no occasion for the commissioner to revoke the motor vehicle’s registration (see Vehicle and Traffic Law, § 312, subd 1), the purpose of the notice essentially will be informational only. It follows that, whatever the administrative action the commissioner may believe appropriate to bring compliance, in a case like the one before us there is no statutory warrant for either the imposition of liability on the superseded insurer or for a windfall for the one which took its place.

For all these reasons, the order appealed from should be reversed and summary judgment granted to Firemen’s declaring that its policy terminated on October 25, 1968 and that it has no liability with respect to the accident of January 1, 1969.

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

Order reversed, with costs, and summary judgment granted to defendant Firemen’s Fund Insurance Company in accordance with the opinion herein.

APPENDIX

313. Notice of termination.

1. No contract of insurance or renewal thereof for which a certificate of insurance has been filed with the commissioner shall be terminated by cancellation by the insurer or failure to renew by the insurer until at least twenty days after mailing to the named insured at the address shown on the policy a notice of termination, except where the cancellation is for nonpayment of premium in which case ten days notice of cancellation by the insurer shall be sufficient, provided, however, if another insurance contract has been procured, such other insurance contract shall, as of its effective date and hour, terminate the insurance previously in effect with respect to any motor vehicles designated in both contracts. Time of the effective date and hour of termination stated in the notice shall become the end of the policy period. Every such notice of termination for any such cause whatsoever sent to the insured shall include in type of which the face shall not be smaller than twelve point a statement that proof of financial security is required to be maintained continuously throughout the registration period and that failure to maintain such proof of financial security requires revocation of the registration of the motor vehicle, unless the registration certificate and number plates of such vehicle have been surrendered to the commissioner prior to the time at which the termination becomes effective.

2. Upon the termination of insurance by cancellation or failure to renew, notice of such cancellation or other termination shall be filed by the insurer with the commissioner not later than thiry days following the effective date of such cancellation or other termination. However, no insurer shall be required to file a notice of cancellation or other termination under this paragraph where the insurer has been advised by the commissioner that such insurance has been superseded by another insurance contract which took effect at or prior to the time at which the termination became effective, or where the insured has surrendered his registration certificate and number plates to the commissioner and has delivered to the insurer a copy of the notice indicating surrender at or prior to the time at which the termination became effective.

      . The insureds, the broker who placed the insurance and those injured in the accident also were joined as defendants, but only the two carriers are parties to this appeal.

      . The policies were for "Garage Liability Insurance”, under whose standard Automobile Hazard I provision the premium for liability insurance was not based on the number of automobiles owned or in charge of the name insured. Therefore, the motor vehicles covered, whose precise identification could not be known in advance, would not be listed.

      . The pertinent text of the statute is appended to this opinion.


source: Caselaw Access Project

author: Wachtler, J.

license: Public Domain

text:
    Maria T. Lopes, as Administratrix of the Estate of Manuel D. Lopes, Deceased, Respondent, v Harold R. Rostad et al., Respondents, and County of Nassau, Appellant, et al., Defendants. County of Nassau, Third-Party Plaintiff-Respondent, v S. Zara & Sons Contracting Co., Inc., Third-Party Defendant-Appellant. Vito Martino, Respondent, et al., Plaintiff, v County of Nassau, Appellant, and Palma Rostad et al., Respondents. County of Nassau, Third-Party Plaintiff-Respondent, v S. Zara & Sons Contracting Co., Inc., Third-Party Defendant-Appellant.
    Argued October 26, 1978;
    decided December 6, 1978

      POINTS OF COUNSEL

      E. Richard Rimmels, Jr., for appellant.
    I. The County did not have the duty to direct and control the method of performing work. (Matter of Town of Saratoga, 160 App Div 60, 211 NY 543; Caldwell v State of New York, 39 Misc 2d 898, 22 AD2d 834; Morris v State of New York, 10 AD2d 754; Uppington v City of New York, 165 NY 222; Olsen v Chase Manhattan Bank, 10 AD2d 539, 9 NY2d 829; Ramos v State of New York, 34 AD2d 1056; Leahy v Botnick, 35 AD2d 898; Mazzocchi v Triborough Bridge & Tunnel Auth., 12 Misc 2d 805, 13 AD2d 455; Tallarico v Long Is. Light. Co., 45 AD2d 845, 38 NY2d 733.) II. County of Nassau owed no duty to plaintiff that was breached. (Harris v Village of East Hills, 41 NY2d 446; Rinaldi v State of New York, 49 AD2d 361; Berkshire Mut. Fire Ins. Co. v State of New York, 9 AD2d 555; Williams v County of Saratoga, 266 App Div 431, 291 NY 782; Tharrett v County of St. Lawrence, 24 AD2d 700; Karl v State of New York, 279 NY 555; Wright v Belt Assoc., 14 NY2d 129; Gasper v Ford Motor Co., 13 NY2d 104; Persichilli v Triborough Bridge & Tunnel Auth., 16 NY2d 136.) III. The proximate cause of the accident was solely the negligence of Rostad. (Kirchhoff v County of Erie, 24 AD2d 551, 18 NY2d 849; River v City of New York, 11 NY2d 856; Bolsenbroek v Tully & Di Napoli, 12 AD2d 376,10 NY2d 960.)

      David Rosenberg, Peter M. Pryor, Abraham I. Marglin and David J. Wiener for third-party defendant-appellant.
    I. The court below erred by disregarding the express contractual indemnity agreement between the County and Zara, and instead awarding the County indemnity at common law. (Feller v Sano-Rubin Constr. Co., 82 Misc 2d 890; Fenner v Continental Diving Serv., 543 F2d 1113; Dole v Dow Chem. Co., 30 NY2d 143; Williams v D. A. H. Constr. Corp., 42 AD2d 877; Rock v Reed-Prentice Div. of Package Mach. Co., 39 NY2d 34; Rogers v Dorchester Assoc., 32 NY2d 553; Cormier v Rowan Drilling Co., 549 F2d 963; D'Agosta v Royal Netherlands S. S. Co., 301 F2d 105; Schroeder v Braun & Co., 502 F2d 235; United States Steel Corp. v Hartford Acc. & Ind. Co., 511 F2d 96.) II. The courts have upheld a variety of analogous contractual provisions by which parties to the contract have prearranged the remedies and procedures to be employed in the event of litigation. (James Talcott, Inc. v Wilson Hosiery Co., 32 AD2d 524; Bonnie-Lassie Sportswear v Century Factors, 283 App Div 702; Waterside Holding Corp. v Lask, 233 App Div 456; Lerner v Rivera, 25 Misc 2d 558; Linker v Herrard, 13 Misc 2d 445; Amazon Mgt. Corp. v Paff, 166 Misc 438; Adelphi Enterprises v Mirpa, Inc., 33 AD2d 1019; National Rental v Szukhent, 375 US 311; Syracuse Plaster Co. v Agostini Bros. Bldg. Corp., 169 Misc 564.) III. The County’s duty "to maintain the highway in a reasonable safe condition” does not require it to affirmatively insure the safety of Zara’s employees. It is, therefore, not liable to plaintiffs for their injuries and third-party defendant Zara, in turn, has no duty to indemnify. (Canepa v State of New York, 203 Misc 694, 282 App Div 145; Turner v City of Newburgh, 109 NY 301; Gille v State of New York, 197 Mise 1043; Ingham v State of New York, 4 Misc 2d 1; Khoury v County of Saratoga, 267 NY 384; Aschmutat v State of New York, 17 Misc 2d 553; Boyce Motor Lines v State of New York, 280 App Div 693, 306 NY 801; Bird v State of New York, 2 Misc 2d 244; Goodman v State of New York, 203 Misc 945; Viggiano v State of New York, 47 Misc 2d 205.) IV. On the basis of principles already enunciated, the County, as owner, may not be held liable absent a finding of direct and immediate supervision and control by its inspectors. (Persichilli v Triborough Bridge & Tunnel Auth., 16 NY2d 136; Zucchelli v City Constr. Co., 4 NY2d 52; Ortiz v Uhl, 39 AD2d 143, 33 NY2d 989; Wright v Belt Assoc., 14 NY2d 129; Ramos v State of New York, 34 AD2d 1056; Kappel v Fisher Bros. 6th Ave. Corp., 29 AD2d 578, 39 NY2d 1039; Tallarico v Long Is. Light. Co., 38 NY2d 733; Dawson v Diesel Constr. Co., Div. of Carl A. Morse, Inc., 51 AD2d 397; Freeo v Victor A. Pirosi, Inc., 54 AD2d 684; Scavone v State Univ. Constr. Fund, 46 AD2d 895.) V. In view of defendant Rostad’s uncontroverted testimony, the trial court should have ruled, as a matter of law, that the absence of traffic cones was not a proximate cause of the accident. (Natina v Westchester County Park Comm., 49 Misc 2d 573; Boyce Motor Lines v State of New York, 280 App Div 693; Cruz v State of New

      York, 38 AD2d 764; Frohm v State of New York, 34 AD2d 724.)

      Marshall D. Sweetbaum and Bernard P. McSherry for Maria T. Lopes, respondent.
    I. The County of Nassau was charged with a duty of maintaining its roads and highways in a reasonably safe condition. (Tharrett v County of St. Lawrence, 24 AD2d 700; Karl v State of New York, 279 NY 555; Huston v Chenango County, 253 App Div 56, 278 NY 646; Klepper v Seymour House Corp., 246 NY 85; Meil v Syracuse Contrs., 19 AD2d 10; Shaffer v State of New York, 256 App Div 1053; Neddo v State of New York, 194 Misc 379, 275 App Div 492, 300 NY 533.) II. The absence of any warning devices on the highway was a concurring proximate cause of the accident resulting in the death of decedent, Lopes. (Segal v State of New York, 79 Misc 2d 529; Marton v McCasland, 16 AD2d 781.)

      E. Richard Rimmels, Jr., for third-party plaintiff-respondent.
    This court should not disturb the judgment in the third-party action. (Williams v D. A. H. Constr. Corp., 42 AD2d 877; O’Dowd v American Sur. Co., 3 NY2d 347.)
   OPINION OF THE COURT

Wachtler, J.

S. Zara Contracting Co., Inc. (Zara), by contract with the County of Nassau (County) undertook a sanitary sewer construction project. On September 3, 1971 at 9:00 a.m., while repairing a manhole in connection with the project, Manuel Lopes and Vito Martino, both employees of Zara, were struck by an automobile driven by Harold Rostad and owned by his mother Palma Rostad. As a result of the accident Lopes died and Martino suffered personal injuries.

The accident occurred in the northbound lane of Babylon Turnpike, a two-lane county highway in the Village of Free-port. Just prior to the accident Harold Rostad had been driving in the southbound lane at approximately 30 mph. At that time the weather was clear, the road was dry, and nothing obstructed Rostad’s vision, nor otherwise interfered with his driving. Except for a red flag attached to a tripod located about 50 feet south of the manhole in the northbound lane, no warning devices of any kind had been placed to alert on-coming traffic of the potential hazard of the construction zone.

It was the responsibility of Joseph Duffe, a civil engineer employed by the County, to supervise a team of County engineers who inspected Zara’s work to assure that the project was progressing satisfactorily. There was no indication, however, that the County, through Duffe or otherwise, had taken any actions by which it assumed the responsibility of placing warning devices around the job site. To the contrary, the contract between the County and Zara stated that "[t]he Contractor shall provide to the satisfaction of the [County] Engineer and at his own expense, suitable barricades and warning signs for the protection of pedestrians and vehicular traffic” (Contract, art 6).

Two separate actions, jointly tried before a jury, were brought against the Rostads and the County of Nassau, one for the wrongful death of Lopes and the other in negligence for the personal injuries sustained by Martino. The County, by way of a third-party action, sought common-law indemnification (see Dole v Dow Chem. Co., 30 NY2d 143) from Zara in both actions. Finding for the plaintiffs in each case the jury apportioned the damages 70% against the Rostads and 30% against the County. By stipulation of the parties, the court considered the County’s indemnification claim and awarded judgment over against Zara on the theory of common-law indemnification for the entire contribution of the County to the plaintiffs’ recoveries. The Appellate Division affirmed unanimously and we granted leave to appeal.

The plaintiffs’ theory of liability against the County is that sections 102 and 139 of the Highway Law impose a nondelegable duty on the County to supervise construction work on County roads, and for liability for injuries sustained as a result of dangerous road conditions. The primary issue is whether the nondelegable duty of the County to maintain its roads in a safe condition, which concededly applies to the traveling public, extends to employees of an independent contractor who suffer injuries caused in part by the contractor’s negligence while working on a County road construction project. We hold that the County’s nondelegable duty does not apply in such a case.

It has long been established that a governmental body, be it the State, a county or a municipality, is under a nondelegable duty to maintain its roads and highways in a reasonably safe condition, and that liability will flow for injuries resulting from a breach of the duty (Neddo v State of New York, 194 Misc 379, affd 275 App Div 492, affd 300 NY 533). Because the duty is nondelegable, even if the dangerous condition of the road, which caused the injury, is created by an independent contractor, the obligation imposed on the governmental body nevertheless remains fixed (Pettengill v City of Yonkers, 116 NY 558).

The source of this duty is not only the common law, but also statute. Section 102 of the Highway Law provides: "The County superintendent * * * shall * * * 1. Have general charge and supervision of the work of constructing, improving, repairing and maintaining all county roads”. The consequent liability of a county for breaching this duty is also prescribed by statute: "When, by law, a county has charge of the repair or maintenance of a road * * * the county shall be liable for injuries to person or property sustained in consequence of such road * * * being defective, out of repair [or] unsafe * * * because of the negligence of the county, its officers, agents or servants” (Highway Law, § 139).

Although the County concedes, as indeed it must, that it is subject to this statutory nondelegable duty, it argues that the legislative policy behind the statutes was to protect the traveling public exclusively. Since the injured parties in this case were employees of an independent contractor, and were injured through the contractor’s negligence while working at the job site, the County urges that they were not part of the traveling public. Hence the County claims it owed them no duty to maintain the road in a safe condition.

To determine the proper scope and breadth to be accorded these statutes and the duty they impose, we must be guided primarily by the intent of the Legislature. "In many cases the evident policy of the legislature is to protect only a limited class of individuals. If so, the plaintiff must bring himself within the class in order to maintain an action based on the statute” (Prosser, Torts [4th ed], § 36, p 194; Chotapeg, Inc. v Bullowa, 291 NY 70, 74; Dean v Baumann, 39 AD2d 138, affd 32 NY2d 756). Only if the person seeking redress comes within the protective orbit of the statute, will his claim based upon a breach of a statutory duty be upheld (Van Gaasbeck v Webatuck Cent. School Dist., 21 NY2d 239, 244-245; Beauchamp v New York City Housing Auth., 12 NY2d 400, 401; Di Caprio v New York Cent. R. R. Co., 231 NY 94).

Application of this principle to sections 102 and 139 of the Highway Law compels the conclusion that the duty which they create was intended by the Legislature, and has been interpreted by the courts of this State, to extend to the traveling public, pedestrians, motorists and the like, but not to employees of an independent contractor working on a construction project.

Since the inception of this nondelegable duty the courts have consistently indicated that it is intended to protect the traveling public. In Storrs v City of Utica (17 NY 104, 108) we said: "The principles suggested become plain propositions in the case of a municipal corporation which owes to the public the duty of keeping its streets in a safe condition for travel.” Using nearly identical language in a more recent case we again stated that "[t]he city owed to the public the absolute duty of keeping its streets in a reasonably safe condition for travel” (Annino v City of Utica, 276 NY 192, 196; Weiss v Fote, 7 NY2d 579, 584; Restatement, Torts 2d, § 418).

The reason that the principal object of the duty is the traveling public is apparent. One responsibility of government is to provide the public with roads and highways for travel. With this responsibility comes the further obligation to assure, insofar as is reasonably possible, that the thoroughfares of travel will be constructed and maintained in a safe condition. A governmental body would hardly have fulfilled its responsibility if the roadways it provided for public use were a source of public danger. It is for this reason that "[governments have ever been most zealous to afford special protection to the users of streets, highways and other means of transportation” (1936 Report of NY, Law Rev Comm, p 955).

But the duty, although stringent with respect to the traveling public, should not be rashly extended to protect those for whose sake the duty was not conceived. While engaged in the tasks assigned them, the employees of an independent contractor which has undertaken a road construction project may be exposed to risks. Being in control of the daily operation of the project, the employer, not the governmental body with which it is under contract, is in the best position to maintain safe working conditions and to remedy whatever dangers may exist. Indeed the employer-employee relationship places a duty on the independent contractor to see to the safety of its workers. If the contractor is remiss in this duty and by its acts or omissions subjects its workmen to danger, it is the contractor which must face liability (cf. Caldwell v State of New York, 39 Misc 2d 898, affd 22 AD2d 834).

So it is with the case now before us. Although the County would not be insulated from liability if the independent contractor’s negligence had caused injury to a traveler (Pettengill v City of Yonkers, 116 NY 558, supra), a different rule must apply here. The independent contractor was in control of the work site, and the jury found the contractor negligent in failing to position adequate warning devices. This negligence was a proximate cause of the automobile accident. The contractor’s failure to protect its own workers cannot throw the County into liability, particularly where, as here, the contractor had assumed the responsibility to place warning devices (Contract, art 6).

Because we hold that the County did not owe a nondelegable duty to the injured parties in this case to maintain the road in a safe condition, we need not reach the further issue of whether the contractual indemnification clause superseded the County’s right to seek common-law indemnification from Zara.

Accordingly the order of the Appellate Division should be reversed and the complaints dismissed against the County of Nassau. The third-party claims of the County against Zara should be dismissed as moot.

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

Order reversed, with costs to defendant County of Nassau only against plaintiffs, and the complaints against defendant County of Nassau and the third-party complaints against S. Zara & Sons Contracting Co., Inc., dismissed.

      . Having charged the jury on the nondelegable duty of the County to maintain its roads in a reasonably safe condition under the common law and section 102 of the Highway Law, the court refused to charge the jury on section 139. Such a charge, as the trial court noted, would have been redundant since section 139 imposes no duty on the County beyond that of which the jury had already been instructed.

      . In this case we are not presented with, nor do we resolve, the issue of the County of Nassau’s liability under section 241 of the Labor Law.


author: Jones, J.

text:
    The People of the State of New York, Respondent, v John Ciaccio, John Cerverizzo, Thomas De Sousa and Robert Velez, Appellants.
    Argued October 25, 1978;
    decided December 7, 1978

      POINTS OF COUNSEL

      Raymond Kobus and Michael F. Coiro, Jr., for John Cerverizzo, appellant.
    I. The unsolicited, unresponsive and highly prejudicial testimony of Officer McLaughlin, combined with the grossly improper summation of the prosecutor and the absence of curative instructions, so inflamed the trial atmosphere as to deprive appellant of his constitutional right to a fair and impartial trial. (People v Steinhardt, 9 NY2d 267; People v Colascione, 22 NY2d 65; People v Griffin, 29 NY2d 91; People v Mleczko, 298 NY 153; People v Crimmins, 36 NY2d 230.) II. The evidence seized without a valid search warrant at 84 Alabama Avenue, Brooklyn, New York, where there was no probable cause nor exigent circumstances was in violation of the Fourth Amendment. Since the subsequent search of the Buick and the seizure of the evidence therein is a direct result of the initial Alabama Avenue seizure it too must be suppressed pursuant to the doctrine of the fruits of the poisonous tree. (Chimel v California, 395 US 752; United States ex rel. Mungo v La Valle, 522 F2d 211; Jones v United States, 362 US 257; Simmons v United States, 390 US 377; United States v Legato, 480 F2d 408; United States v Pastore, 456 F2d 99.) III. The trial court committed innumerable errors in its instructions to the jury. (People v Freeman, 9 NY2d 600; People v Steinhardt, 9 NY2d 267.)

      Alexander Potruch for Thomas De Sousa, appellant.
    I. The improper commentary by the prosecution during summation and. during the trial was so prejudicial as to deprive appellant of a fair trial. (People v Crimmins, 36 NY2d 230; Williams v Brooklyn Elevated R. R. Co., 126 NY 96; People v Ashwal, 39 NY2d 105; People v Tassiello, 300 NY 425; People v Griffin, 29 NY2d 91; People v Jackson, 7 NY2d 142; People v Alicea, 37 NY2d 601; People v Winslow, 51 AD2d 824; People v Moore, 26 AD2d 902; People v Range, 49 AD2d 832.) II. The evidence seized as a result of the search on Alabama Avenue, should be suppressed because, (a) no probable cause existed to justify police entry onto the premises, (b) there were no exigent circumstances justifying the failure of the police officers to obtain a search warrant prior to the search, and (c) the search was of a rummaging exploratory nature. (People v Single-teary, 35 NY2d 528; Chapman v United States, 365 US 610; Jones v United States, 362 US 257; People v Smith, 35 Misc 2d 533; People v Spinelli, 35 NY2d 77; See v City of Seattle, 387 US 541; Ludwig v United States, 3 F2d 231; People v Terrell, 53 Misc 2d 32; Byars v United States, 273 US 28; United States v Di Re, 332 US 581.) III. The evidence seized from appellant De Sousa’s car should have been suppressed by the trial court. (People v Singleteary, 35 NY2d 528; People v Garcia, 41 AD2d 560; Agnello v United States, 269 US 20; Chimel v California, 395 US 752; People v Lemmons, 40 NY2d 505; People v Gleeson, 36 NY2d 462; Wong Sun v United States, 371 US 471; People v Ingle, 36 NY2d 413; People v Cantor, 36 NY2d 106.) IV. Certain errors by the court in its instructions to the jury, as well as its refusal to the jury on certain requested charges, by themselves and cumulatively constitute reversible error. (People v Gambino, 52 AD2d 957; People v Carroll, 37 AD2d 1015; People v Robinson, 36 NY2d 224; People v Jones, 32 AD2d 1069; People v McLucas, 15 NY2d 167; People v Miles, 289 NY 360; People v Dreares, 15 AD2d 204, 11 NY2d 906; People v Cull, 26 Misc 2d 668, 10 NY2d 123; People v Radzinski, 24 Misc 2d 109; People v Winig, 7 Misc 2d 803.)

      John J. Santucci, District Attorney (John T. Wynne, Jr., of counsel), for respondent.
    I. The guilt of each appellant was proven by overwhelming evidence. (People v Mleczko, 298 NY 153; People v Lytton, 257 NY 310.) II. The prosecutor’s summation was reasonable under the circumstances and was not reversible error. (People v Alicea, 37 NY2d 601; People v Marks, 6 NY2d 67, 362 US 912; People v Anthony, 24 NY2d 696; People v Castillo, 16 AD2d 235, 12 NY2d 732; Donnelly v

      De Christoforo, 416 US 637; People v Brosnan, 32 NY2d 254; People v Crimmins, 36 NY2d 230; People v Ketchum, 35 NY2d 740; People v Robinson, 36 NY2d 224; People v Gurley, 42 NY2d 1086.) III. The seizure of the stolen property at 84 Alabama Avenue was lawful and proper. Appellants had no reasonable expectation of privacy for these items left in an open van in the "public” area of this commercial premises which was open for business. No search warrant was necessary due to the exigent circumstances of the situation revealed during the inquiry of the manager while in an area open to the public. (Katz v United States, 389 US 347; See v City of Seattle, 387 US 541; Air Pollution Variance Bd. of Western Alfalfa, 416 US 861; Matter of Finn’s Liq. Shop v State Liq. Auth., 24 NY2d 647; People v Buggenhagen, 57 AD2d 466; People v Reshes, 39 Misc 2d 723; People v Ruggieri, 85 Misc 2d 141; People v Doria Hotels, 88 Misc 2d 9; Ludwig v United States, 3 F2d 231; Smith v United States, 105 F2d 778.) IV. The motion to suppress the invoices seized from appellant De Sousa’s automobile was properly denied. (People v Perel, 34 NY2d 462; Chimel v California, 395 US 752; People v Garcia, 41 AD2d 560; People v Menditto, 59 AD2d 705; People v Kreichman, 37 NY2d 693; Chambers v Maroney, 399 US 42.) V. The court’s instructions to the jury were proper and were not prejudicial to appellants. (People v Russell, 266 NY 147; People v Johnson, 185 NY 219; People v Gambino, 52 AD2d 957; People v Britt, 52 AD2d 811; People v Katz, 209 NY 311; People v Radcliffe, 232 NY 249.)
   OPINION OF THE COURT

Jones, J.

The evidence in the record supports the conclusion reached by the courts below that, after the arrest of two of the four defendants for having hijacked a truck from which they stole cartons of watches, the police had probable cause to search a different white Econoline Ford truck as it stood in a garage on Alabama Avenue in Brooklyn, and that the high probability that the stolen merchandise would then be moved on without delay constituted such exigent circumstances as to justify the warrantless search and the consequent seizure of the stolen watches.

In late March, 1974 detectives attached to the Safe, Loft and Truck Squad of the New York City Police Department, a highly specialized police unit with considerable experience and expertise in the investigation of hijackings, commenced surveillance of defendant Ciaccio prompted by his prior association with known members of organized crime. In effectuation of that continuing surveillance, on April 19, 1974 Detectives Hernandez and Lalena tailed defendants Ciaccio, Velez and Cerverizzo from a truck repair garage located at 84 Alabama Avenue in Brooklyn to the vicinity of Kennedy Airport where they were joined by defendant De Sousa. No criminal activity was observed on that occasion.

One week later, on April 25, 1974, Detectives Hernandez and McLaughlin staked out a surveillance at the 84 Alabama Avenue garage at about 10:30 a.m. At 11:00 a.m. they observed all four defendants leave that garage in two cars. Velez and Ciaccio left in a white Pontiac Bonneville, license plate number 905-289; Cerverizzo and De Sousa departed in a tan Chevrolet, license plate number 619 KDH. The detectives followed and were shortly joined by other members of the Safe, Loft and Truck Squad. The officers continued to tail defendants until eventually, at about 12:15 p.m., they lost them.

At 12:35 p.m. James Guirza, a driver for Graf-Air Associates Air Freight Company, while transporting merchandise which he had picked up at Kennedy Airport in his green Ford Econoline van, was forced off the road by a white Pontiac Bonneville. Another car pulled up behind the van. A white male wearing a dark ski mask and brandishing a revolver ordered Guirza into the back seat of the Pontiac. He was then driven around for a period of about 25 minutes and was eventually released unharmed, minus, of course, his van and its cargo. At the time of his release he was able to ascertain the license plate numbers of the white Pontiac: 905-289. He then ran down the block and immediately reported the incident to the police over the telephone.

After losing defendants the two police cars had commenced their return to Brooklyn by different routes. During this return Detective Hernandez, while riding in the car operated by detective Butler, spotted the white Pontiac proceeding in the opposite direction on the Interboro Parkway. The detectives turned around and began following the Pontiac. Shortly thereafter they observed the Pontiac pull up to an intersection and discharge a passenger (later discovered to be James Guirza) who ran down the block. Based on their prior experience with hijacking operations, the detectives knew that this passenger was the victim of a truck hijacking. Consequently, the detectives followed the Pontiac for a short distance to a garden apartment complex, where, after a brief struggle, they placed defendants Velez and Ciaccio under arrest.

After unsuccessfully attempting to re-establish contact with defendants, the second police car, containing Sergeant Cunningham and Detectives Lalena and Jacob, returned to the origin of the day’s surveillance, the garage at 84 Alabama Avenue, reaching there about 1:00 p.m. The officers were aware that this garage had been previously used as a "drop” for hijacked merchandise. On arriving Sergeant Cunningham phoned his office while the other detectives watched the garage. Cunningham was then informed that Detective Hernandez had reported that a green truck bearing license plate number 4169 HJ and containing, among other things, cartons of Helbros watches had been hijacked. He was further told that the hijacking victim had been released and that defendants Velez and Ciaccio were in police custody. After completing this telephone conversation Cunningham was then informed by Lalena and Jacob, who had been watching the garage, that at about 1:10 p.m. they had seen a green truck operated by defendant De Sousa with license plate number 4169 HJ arrive at the garage together with the tan Chevrolet that they had been following earlier in the day, operated by defendant Cerverizzo. Cerverizzo parked the Chevrolet on the street, got out of the vehicle and thereafter went into the garage. Subsequently a stranger (who later proved to be Robert Cerverizzo, defendant John Cerverizzo’s brother, but who was not so identified at the time) and another man came out of the building and moved a tractor which had been blocking the entrance to the garage. The stranger then directed the green truck into the garage. After perhaps a 10-minute interval the green truck was driven out of the garage with defendant Cerverizzo at the wheel, followed by a red and white Buick automobile operated by defendant De Sousa.

At this point Sergeant Cunningham and Detectives Lalena and Jacob left their observation post and approached the garage. Detective Jacob remained outside but Officers Cunningham and Lalena entered the garage through the wide-open doors. They observed several mechanics in the rear work area in the garage. The stranger who had guided the movements of the green truck was standing in the center of the garage near a white Ford Econoline truck. Detective Lalena walked up to this man and indicated that he wanted to get his car repaired and inquired as to who was in charge. The stranger responded that he was in charge and Lalena then asked him several questions concerning the ownership of the white truck. Thereafter Lalena and Cunningham displayed their shields and walked over to the white truck. Lalena, peering in the window, spotted several cartons. He opened the truck door and found that the cartons bore labels of "Helbros Watches”. Cunningham verified this observation and the stranger was promptly arrested for possession of stolen property and the cartons of watches were seized.

While they were still in the garage, the detectives observed the red and white Buick previously operated by defendant De Sousa pass slowly across the opening of the garage door. The officers ran out to the street and, with weapons drawn, surrounded the Buick, ordered defendant De Sousa and his passenger, defendant Cerverizzo, out of the car and placed them under arrest. While these defendants were standing by the open passenger door of the car, Sergeant Cunningham ordered Detective Lalena to search the car. Lalena thereupon reached into the car and removed from the front seat a pair of brown work gloves and some papers which proved to be air freight bills.

At trial defendants moved to suppress both the cartons of watches seized from the white Econoline truck and the gloves and air freight bills taken from the front seat of the Buick. Hearings on both motions were conducted outside the presence of the jury, at the conclusion of which the trial court denied the motions, finding that there was probable cause for both searches and concluding that the warrantless search of the white truck in the garage at 84 Alabama Avenue was justified by exigent circumstances and that the warrantless search of the Buick was lawful as incident to the arrest of defendants De Sousa and Cerverizzo. The defendants were convicted of grand larceny, and their convictions were affirmed by the Appellate Division, without opinion. We now affirm the order of the Appellate Division.

Defendants urge that the seizure of the cartons from the white truck violated their rights under Federal and State Constitutions to be secure against unreasonable searches and seizures. We reject this contention as have the courts below.

Our analysis proceeds in two stages. First it must be determined whether the police officers had probable cause to search. The evidence offered on the suppression motion disclosed that the searching officers had been engaged in a continuing, active investigation of defendants’ suspected hijacking activities. They knew that a particular truck had been hijacked, and they had a description and the license number of the truck in question. Two of the four associated defendants had already been arrested for that hijacking. The truck which had been hijacked and one of the hijackers’ automobiles were positively identified at the garage on Alabama Avenue. Professional truck hijacking, by its very nature, calls for immediate disposal of the motor vehicle that has been hijacked and prompt action to place the stolen merchandise beyond the reach of police recovery. It would obviously be unreasonably hazardous to continue to operate the loaded vehicle, or to transfer its contents to another vehicle, on public streets when commission of the crime and complete identification of the hijacked truck were inevitably soon to be known to the authorities. In this instance Sergeant Cunningham and Detectives Lalena and Jacob knew of the hijacking, of the identity of the truck which had been hijacked, and that two of the perpetrators had been apprehended. Their own observations confirmed that the, hijacked truck had been driven into the Alabama Avenue garage, had remained there for a brief interval and then had been driven away, uncamouflaged, bearing the same license plates and with its external appearance unchanged. There were but two alternatives; either the stolen watches were still in the green truck when it was driven out of the garage, or they had been off-loaded in the garage. If the stolen merchandise was still in the green truck there was no ready explanation for the brief garage stop. On the other hand it was known to the officers that the Alabama Avenue garage had previously been used as a "drop” for hijacked goods. The probabilities were high that the purpose of the 10-minute stop in the protective shelter of the garage was to remove the watches prior to driving the green truck away to be abandoned. The record amply supports the conclusion that the officers had probable cause to believe that the watches were in the garage.

Proof of probable cause, however, is not sufficient; the second, critical question is whether, acknowledging that there was probable cause, there was additional justification to search and then to seize without having first obtained a warrant. (People v Vaccaro, 39 NY2d 468, 471-472.) We find the requisite justification in this record; there were exigent circumstances sufficient to justify the immediate search of the white Econoline truck as it stood in the garage on Alabama Avenue. If the watches had been unloaded in the garage, the nature of the premises and the presence of other motor vehicles made prompt movement of the stolen goods on to another location highly likely. (Cf. People v Farenga, 42 NY2d 1092, 1093.) There was no proof to suggest that the garage itself, with customers coming in and out, might be used as a storage warehouse, or even had facilities for such use. The great probability that the stolen watches were not in the green truck when it was driven away and that they would not remain in the garage but would almost immediately be transported by a readily available vehicle to another location for hiding or other possible disposition constituted sufficiently exigent circumstances to justify the immediate search of the garage. Although De Sousa and Cerverizzo had left the garage with the green truck, the two men who had assisted in bringing the green truck into the garage had not left. Indeed it may be suggested that the police would have been subject to severe criticism had they not moved in immediately. Nor was the manner in which the officers entered on their search unduly intrusive or otherwise calculated to result in a breach of the peace. The constitutional proscriptions did not require in these circumstances that application be made for a search warrant while the garage and all vehicles exiting from that garage be kept under continuing protective surveillance. The evidence in the record sustains the finding of the trial court, affirmed at the Appellate Division, that ”[f]rom their experience and ’streetwide’ knowledge these officers rightly concluded that if immediate police action was not taken, the fruits of the crime would be quickly removed or otherwise disappear”.

We have examined defendants’ other contentions and find them to be without merit. It is not disputed that the police had probable cause to arrest De Sousa and Cerverizzo, and there is support in the record for the finding, affirmed at the Appellate Division, that the seizure of the work gloves and air freight bills from the front seat of the Buick was permissible as incident to that arrest. We add that, while certain of the prosecutor’s statements on summation would better have been left unsaid, they did not constitute reversible error, considered singly or in combination.

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

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

Order affirmed.

       This was defendants’ second trial. Their first had ended in a mistrial when the jury was unable to reach agreement.


author: Wachtler, J. Gabrielli, J. Cooke, J.

text:
    The People of the State of New York, Respondent, v Joseph P. Havelka, Appellant.
    Submitted September 20, 1978;
    decided December 1, 1978

      POINTS OF COUNSEL

      Morton N. Wekstein for appellant.
    I. The so-called frisk of defendant Havelka was a violation of the Fourth Amendment to the United States Constitution and of section 12 of article I of the New York State Constitution. (People v Moore, 32 NY2d 67; Adams v Williams, 407 US 143; Whitely v Warden, 401 US 560; People v Lypka, 36 NY2d 210; People v Sutton, 32 NY2d 923; People v De Bour, 40 NY2d 210; People v Stewart, 41 NY2d 65; People v Cantor, 36 NY2d 106; Kremen v United States, 353 US 346; Go-Bart Co. v United States, 282 US 344.) II. The Criminal Procedure Law absolutely prohibits the remand ordered herein. III. The remand of the court below violated both the State and Federal Constitutions. (People v Brown, 40 NY2d 381.) IV. Defendant was denied his right to assistance of counsel of his choice guaranteed to him by the Federal Constitution and the New York State Constitution. (Gideon v Wainwright, 372 US 335; People v Dinan, 15 AD2d 786, 11 NY2d 350; People v McLaughlin, 291 NY 480; People v Faracey, 46 Misc 2d 46; People v Betillo, 53 Misc 2d 540; People v Silverman, 3 NY2d 200; People v Di Salvo, 19 AD2d 747; People v Gordon, 262 App Div 534; People v Fitch, 25 AD2d 783; People v Walker, 29 AD2d 973.) V. The instant indictment should be dismissed in the interests of justice. (People v Davis, 55 Misc 2d 656; People v Quill, 11 Misc 2d 512; People v Campbell, 48 Misc 2d 798; People v Caccamise, 187 Misc 705; People v Broadway-Sheridan Arms, 275 App Div 352.)

      Carl A. Vergari, District Attorney (John B. Dinin and Anthony J. Servino of counsel), for respondent.
    I. The stop and frisk of defendant-appellant did not violate constitutional or statutory provisions. (People v Arthurs, 24 NY2d 688; People v Taggart, 20 NY2d 335; People v Green, 35 NY2d 193; People v Moore, 32 NY2d 67; People v Stroller, 42 NY2d 1052; Terry v Ohio, 392 US 1; People v Malinsky, 15 NY2d 86; People v Coffey, 12 NY2d 443, 376 US 916.) II. The remand order by the court below in the case herein is neither prohibited by the Criminal Procedure Law, nor is it violative of the respective Federal and State Constitutions. (People v Darden, 34 NY2d 177; People v Goggins, 34 NY2d 163; People v Brown, 40 NY2d 381; United States v Wilson, 420 US 332.) III. The trial court properly denied defendant’s application, on the eve of trial, to discharge his retained attorney. There is no constitutional right to delay. (People v San Souci, 23 AD2d 352, 17 NY2d 684; People v Mooney, 18 AD2d 1112, 375 US 887; People v Dinan, 15 AD2d 786, 11 NY2d 350; People v Reynolds, 39 AD2d 812; People v De Chiaro, 48 AD2d 54, 423 US 894.) IV. The instant indictment should not be dismissed. (People v Kwok Ming Chan, 45 AD2d 613; People v Clayton, 41 AD2d 204; People v Beige, 41 NY2d 60.)
   OPINION OF THE COURT

Wachtler, J.

A jury convicted the defendant of unlawful possession of a weapon (Penal Law, § 265.05, subd 2), a felony, and unlawful possession of a weapon (Penal Law, § 265.05, subd 3), a misdemeanor. At a pretrial hearing, defendant’s motion to suppress was denied. The Appellate Division found the evidence offered at the suppression hearing insufficient to justify the challenged police action, and, holding the appeal in abeyance, remitted the case for a rehearing, giving the People the opportunity to offer further evidence. After the rehearing the lower court adhered to its initial determination, and the Appellate Division affirmed both the order denying the motion and the judgment of conviction. The primary issue is whether it was proper for the court to remit the case for a second hearing.

Patrolman Michael Bassano of the Port Chester Police Department, the only witness called for the People at the first suppression hearing, testified that while on duty at 11:30 p.m. on January 23, 1973 he rang police headquarters from a call box, and spoke to the Desk Sergeant, Roger Arlotta. The sergeant informed him that he had received a telephone call from the Depot Tavern warning of a possible gun battle in the vicinity of the tavern involving the Tribe Motorcycle Club. Bassano was ordered to meet a Lieutenant Sabia at the railroad parking lot across the street from the Tribe clubhouse, which was located two doors away from the Depot Tavern. Upon his arrival, Bassano was ordered to take a position with two fellow officers on the roof of the Port Chester Auto Driving School, adjacent to the parking lot. Other officers were stationed in nearby patrol cars.

After 10 or 15 minutes of observation from the rooftop, Bassano saw two or three automobiles and two motorcycles, carrying a total of about seven males, arrive at the scene. These 7 men were met by approximately 10 others who exited the clubhouse. The entire group then began walking toward the Depot Tavern. Although no suspicious activity was observed, nor any weapons seen, Lieutenant Sabia ordered his men to "get down there”. Bassano descended to street level and proceeded to frisk two or three of the "suspects”, who offered no resistance. No weapons were discovered. Bassano then frisked defendant and felt a hard object under his jacket, a .38 calibre revolver. Bassano seized the weapon which, although registered in Connecticut was unregistered in New York. Immediately he handcuffed defendant to a parking meter and conducted a full-blown search which revealed a blackjack hidden in defendant’s boot. Bassano removed the boot and seized the blackjack.

At trial, Richard Garafola, a Tribe member, testified that several police officers were "lined down the street in the middle of the road with sawed off shotguns” while others frisked and searched club members, and that an in-depth search of the clubhouse was conducted. Defendant, who took the stand at trial, testified that the police made no inquiries prior to conducting the searches, and Sergeant Arlotta testified that besides defendant only one other person searched was found to be in possession of a weapon, a blackjack.

After defendant’s convictions of the weapons charges the Appellate Division (50 AD2d 904, 905) ordered that "[a] new hearing should be held to afford the People the opportunity to produce Hechinger [the owner of the Depot Tavern who had informed Sergeant Arlotta of the possible gun battle involving the Tribe] and any other proof they may have to establish probable cause.”

At the new hearing Hechinger testified that he had called the Port Chester Police Department from his home in Cos Cob, Connecticut, and that in his telephone conversation with Sergeant Arlotta he had merely relayed information which he had received a few minutes before from his bartender Danny Megan, who was working at the Depot Tavern that evening. Megan had warned Hechinger that certain Tribe members were causing a disturbance at the tavern, and that he had heard a rumor that there might be a shootout. It is unclear from Hechinger’s testimony whether Megan had seen any Tribe members carrying weapons.

Preliminarily we note that the Appellate Division was correct in its initial determination that the People failed to justify the challenged search at the first suppression hearing. The People argue that the search of defendant was reasonable in light of the police communication received by Bassano because, although hearsay, the knowledge transmitted in a police radio communication is imputed to the receiver who is charged with that knowledge. But on a motion to suppress, the challenged police conduct can be sustained only by proof that the sender actually possessed the requisite knowledge or that the personal observations of the receiving officer justified the search (People v De Bour, 40 NY2d 210, 223-224; People v Lypka, 36 NY2d 210, 214; cf. People v Horowitz, 21 NY2d 55, 60). Assuming in this case that the police communication prima facie supported the police action taken, it was nevertheless incumbent on the People to produce the sending officer Sergeant Arlotta at the suppression hearing. Yet, although both he and Hechinger, the informant, were apparently available to testify at the hearing, neither was called. The danger in relying solely on Bassano’s hearsay testimony to sustain the legality of the search is underscored by the fact that his information was tenuously balanced on a pyramid of hearsay, the information having been passed from Megan to Hechinger to Arlotta to Bassano. It seems, too, that Megan’s source may well have been nothing more than unsubstantiated rumor.

Nor did Bassano’s personal observations justify the search. The mere fact that he saw a group of Tribe members congregate outside their own clubhouse, and that they were dressed in a manner typical of motorcyclists, "in dungarees with, for the most part, black leather jackets or dungaree jackets” (dissent p 649) hardly establishes grounds sufficient to support the challenged police action. Indeed the utter lack of suspicious activity observed during the period of surveillance attenuates whatever justification the police communication might have furnished to conduct the search.

Having concluded that the Appellate Division was correct that the testimony at the initial suppression hearing was insufficient to justify the search, we must resolve the primary issue — whether the remission for a rehearing was proper. We hold that it was not.

It is the nature of our common-law system that a single precedent will rarely fully reveal its underlying principles. We can expect little more than a glimpse into a direction in which the law is moving. "Cases do not unfold their principles for the asking. They yield up their kernel slowly and painfully” (Cardozo, Nature of the Judicial Process, p 29). Rules emerge and aré tested against varying factual backgrounds. Those rules which accomplish just and workable results survive and expand. But a principle should never be applied hastily without measuring its probable effect. It is the purpose of the rule, rather than the rule itself, to which we are ultimately bound.

The courts must take particular care that precedents creating procedures do not sweep too broadly. It is all too easy to adhere blindly to a procedure, forgetting its purpose. We decide the issue of whether or not there should have been a remission for additional proof within this framework.

The practice of granting a rehearing to afford the People the opportunity to present additional evidence was first established in People v Malinsky (15 NY2d 86). In Malinsky at the suppression hearing, conducted solely to determine if the search and seizure was incident to a lawful arrest, the court erroneously denied defendant’s motion for disclosure of a confidential informant, and ultimately denied the motion to suppress. On appeal we found the record insufficient to substantiate that either the informant was reliable or that probable cause existed independent of his communication. Although we did not articulate the reasons for ordering a further hearing, it is manifest that the People had failed to present the testimony of the informant because of the court’s erroneous ruling. To deny the People a rehearing to present his testimony would have been to deprive them of a full opportunity to be heard. In addition other relevant testimony was also admissible at the rehearing since the People, misled by the ruling, might have declined to offer available testimony believing that sufficient evidence had already been presented (see, also, People v Verrecchio, 23 NY2d 489).

The procedure established in Malinsky has found application in numerous subsequent cases (see, e.g., People v Hill, 22 NY2d 686; People v Butterly, 25 NY2d 159; People v McDonnell, 18 NY2d 509). These decisions, however, do not reflect an abdication of reason or the slavish application of an entrenched procedure, for they are consistent with the emerging principle implicit in Malinsky — that the People should not be deprived of one full opportunity to present evidence of the dispositive issues involved at the suppression hearing. If an error of law is committed by the hearing court which directly causes the People to fail to offer potentially critical evidence a rehearing should be ordered so that the evidence may be presented. Thus where a motion to suppress was denied on the erroneous ground that the search was supported by search warrants, the case was properly remitted for a new hearing for a finding as to whether probable cause, independent of the warrants, justified the arrest and incidental search (People v Green, 33 NY2d 496). Similarly, an error of law made at the suppression hearing that consent to the search was not at issue required remission for a rehearing for proof on that question (People v Whitehurst, 25 NY2d 389). To hold otherwise would be to deny the People the opportunity for a full and fair hearing.

But having established this procedure for a sound reason, it would be wrong to assume that the People’s right to a rehearing is without limitation. The practice should not be followed when its underlying principle is not served. Generally, where "no contention is made that the People had not had [a] full opportunity to present evidence * * * [tjhere [is] no justification * * * to afford the People a second chance to succeed where once they had tried and failed” (People v Bryant, 37 NY2d 208, 211; but see People v Cardaio, 18 NY2d 924). Denial of a rehearing under these circumstances accords with a system that offers a single opportunity for the presentation and resolution of factual questions. If such a practice were not followed, the defendant, having prevailed at the hearing, would be haunted by the specter of renewed proceedings. Success at a suppression hearing would be nearly meaningless, for a second and perhaps a third hearing, could later be ordered.

It is of equally great concern that a perfunctory remand would magnify the potential for abuse and injustice. "A remand with the benefit of hindsight derived from an appellate court opinion offers too facile a means for establishing probable cause after the event” (People v Hendricks, 25 NY2d 129, 138). Tailoring the evidence at the rehearing to fit the court’s established requirements, whether done unconsciously or otherwise, would surely be a considerable danger. A procedure which fails to shield a criminal defendant from abuses so inimical to the rights guaranteed him should not be tolerated.

Under certain circumstances, however, the risk of the introduction of distorted testimony at a rehearing is minimal. Thus a rehearing was ordered where information supporting a search was furnished by an interstate bulletin (People v Lypka, 36 NY2d 210, supra) or by a communication from one division of a police department to another (People v Horowitz, 21 NY2d 55, supra). In such cases the lack of familiarity and personal contact between the sending and receiving officers diminished the potential for distortion.

Today, we confront quite a different case, the sending and receiving officers being members of the same police department, and working closely with one another on a daily basis. The rationale of Lypka and Horowitz, which supported a remand for a new hearing, is therefore inapplicable. Nor were the People deprived of a full opportunity to present evidence at the initial hearing. No erroneous ruling interfered in any way with the People’s opportunity to advance evidence to justify the challenged police activity. Although both Arlotta and Hechinger were available to testify at the initial hearing, the People were content to offer only the testimony of Patrolman Bassano which was legally insufficient to uphold the search. Having had a full opportunity to be heard, the People should not be heard again on the same issue.

Accordingly the order of the Appellate Division should be reversed and the indictment dismissed.

Gabrielli, J.

(dissenting). The majority, by its holding, is extending the rules developed in probable cause hearings to hearings where the question is reasonable suspicion for limited frisks of a suspect. It seems to be imposing a per se rule that in order for the police to establish reasonable suspicion to frisk they will invariably have to produce the person who informed them of criminal activity. While this sort of testimony may be necessary to establish probable cause, the rule should not be extended into the area of stop and frisk, where the infringement of a person’s rights is so much less egregious.

Furthermore, in addition to establishing this hitherto unacceptable rule of law (People v Mack, 26 NY2d 311, cert den 400 US 960), the majority is denying the People an opportunity to comply with the new standard, ignoring a considerable body of law which we have established. There are many instances where we have allowed the People to produce further proof after reversing a finding of probable cause (see, e.g., People v Lypka, 36 NY2d 210; People v Verrecchio, 23 NY2d 489; People v Horowitz, 21 NY2d 55; People v Cardaio, 18 NY2d 924; People v Malinsky, 15 NY2d 86). In each of these cases the initial determination of probable cause was made without testimony by the party who initially warned the police of possible criminal activity. In reversing we required further proof to establish probable cause, but gave the People an opportunity to meet the burden without summarily suppressing the evidence; and in each case determination of the appeal was withheld and the case remitted to nisi prius for further hearings on the motion to suppress, consistent with the opinion. By their decision today, the majority condemns use of this procedure without adequate explanation for the departure from the well-established prior law, resulting in further erosion of long-established judicial determinations dealing with justified and effective police procedures.

It is not necessary to here detail the circumstances prevailing in the above-cited Lypka, Verrecchio, Horowitz, Cardaio and Malinsky cases. The established principles there enunciated and followed for many years are legion and require no further elucidation. It will suffice if we quote from but one case, People v Horowitz (21 NY2d 55, 60) wherein Judge Van Voorhis, writing for an unanimous court, stated:

"The controlling principle seems to be that it is not necessary for the officer making the arrest to know of the reliability of the informer or to be, himself, in possession of information sufficient to constitute probable cause provided that he acts upon the direction of or as a result of communication with a superior or brother officer or another police department provided that the police as a whole were in possession of information sufficient to constitute probable cause to make the arrest. This record does not show that any of the law enforcement officers had facts before them sufficient to indicate that this anonymous informer was reliable, or that the police had other information, not derived from the informer, which was sufficient, in itself, to constitute probable cause.

"Under the procedure adopted in People v. Malinsky (15 N Y 2d 86, 96; 19 N Y 2d 262) where we withheld determination of the appeal and remitted the case to the Supreme Court for a further hearing on the motion to suppress in order that it might be determined whether 'the police actually received a tip from a dependable informer, or had evidence, apart from or in addition to the informer’s communication, to establish probable cause for the arrests of the defendants’, the determination of this appeal is withheld and the case remitted to the Supreme Court, New York County, for a further hearing on the motion to suppress in accordance with this opinion” (emphasis added).

The defendant was arrested on January 23, 1973, for unlawfully possessing two weapons, a fully loaded .38 caliber revolver and a blackjack. He moved to suppress the weapons, but following a hearing the County Court Judge found that the arresting officer had reasonable suspicion that a crime was being committed, and therefore the search which uncovered the weapons was authorized (CPL 140.50, subd 3). At the hearing there was testimony by Patrolman Bassano, the arresting officer, which established that his actions were the result of information received from fellow officers, Sergeant Arlotta and Lieutenant Sabia, who told him there had been a phone call warning the police of a shootout that night near the Depot Tavern. The court further found that the police were involved as a result of a tip from one Hechinger, a party known to the police as the owner of the Depot Tavern. There was also testimony that members of the Tribe Motorcycle Club frequented that tavern and that the defendant, a club member, knew and was known to Hechinger. There was extensive testimony describing conduct that could reasonably have been interpreted as foreshadowing the predicted shootout. Upon the basis of this testimony, the Trial Judge determined that Bassano was justified in relying on the information supplied by his fellow officer to find the reasonable suspicion necessary to frisk Havelka. In these circumstances it was not felt necessary to produce Hechinger to establish the reasonableness of the police actions.

The Appellate Division remitted the case for a further hearing, in order that Hechinger, the person who actually gave the information to the police, could testify and it could then be determined whether there was reasonable cause for the search. In doing so, that court concluded that Officer Bassano’s testimony alone was insufficient in these circumstances, in the absence of testimony from the person who initially informed the police of the criminal activity. The majority of our court agrees with the Appellate Division to the extent that Bassano’s testimony alone was insufficient and they substantially rely upon the rationale, in part, of People v Lypka (36 NY2d 210, supra) and People v Horowitz (21 NY2d 55, supra). However, those cases dealt with the issue of probable cause to conduct a full search, whereas we are here presented with a determination of whether there was reasonable suspicion that a crime is being committed, a situation where less evidence is required (People v Mack, 26 NY2d 311, cert den 400 US 960, supra). Thus it is clear that the majority is now extending the rule appropriate for probable cause cases to situations where only reasonable suspicion is required for the police to act. By reversing the procedural device utilized by the Appellate Division in its remittal (which, as noted, the Court of Appeals has sanctioned, and indeed itself ordered, on many occasions), the majority implicitly says that the more exacting rule has applied to frisks since its inception in People v Horowitz (supra). Such a concept cannot prevail and certainly is not the law, as is clearly delineated in People v Mack (supra), decided three years following Horowitz.

People v Mack (supra) was a case where, as here, a limited frisk of defendant was conducted and a revolver was seized. The arresting officer testified as the sole witness at the suppression hearing that the basis for his suspicion was a tip from another officer. Although the officer who had described the defendant never testified, we nevertheless upheld the search. The holding was based on the description by an unidentified officer, his statement that there had been three burglaries in the area, and the "furtive conduct” of defendant and another going into two buildings briefly. These facts are no more or less supportive of a reasonable suspicion than the facts here, yet the court now requires that the person supplying the arresting officer with information testify as well. This was not necessary under the rationale of Mack, and the prosecutor who conducted the suppression hearing in this case had no reason at that time to doubt that the testimony presented at the hearing was sufficient.

The court’s holding today will require exhaustive testimony whenever an officer discovers an illegally possessed weapon during a frisk, despite recognition that the infringement of a person’s constitutional rights is minimal. Aside from the substantial question of whether this is mandated by the Constitution (see Terry v Ohio, 392 US 1), this appeal is especially troublesome because the result wrongly assumes that the People had an opportunity for a full and fair hearing. Since the rule being established today is a new one, it is clear they did not.

I furthermore take exception to the comment that rehearings will allow evidence to be tailored to fit the guidelines announced. This is an assumption which has no foundation in fact. There is a possibility of abuse in any procedure, yet we live in a society where we expect integrity from public officials. To develop a rule of law on the assumption that the police and prosecutors will conform their testimony to fit within new standards unwarrantedly denigrates the judicial system and cheapens us all. I prefer to maintain the belief that our public servants support the law which they have sworn to uphold and enforce.

Having determined that the remittitur was proper, I now discuss the propriety of the search that led to the discovery of Havelka’s loaded revolver. There is no need to establish probable cause for the search, since the limited frisk performed by Patrolman Bassano is authorized by CPL 140.50 (subd 3) if the officer reasonably suspected that he was in danger of physical injury. The testimony at the second suppression hearing clearly establishes that Patrolman Bassano had sufficient grounds for performing the frisk when he did.

Hechinger had called and informed the police that members of the Tribe Motorcycle Club were in and out of the tavern that night, that some of them had weapons, and that he had been informed there was going to be a shootout in the area that night. He was known to the police as a local businessman whose establishment was located next to the Tribe headquarters. Acting on this tip, the police placed the area under surveillance. Within 20 minutes several events took place to corroborate the report made by Hechinger. Two or three cars and two motorcycles drove up to the Tribe headquarters. Seven or 8 young males left their vehicles and were joined by approximately 10 members exiting from the Tribe headquarters. This group, numbering 15 or 20, moved in concert down the street toward the Depot Tavern. They were dressed in dungarees with, for the most part, black leather jackets or dungaree jackets bearing the Tribe insignia. Given the additional factors that it was around midnight on a January night and that a telephone call had alerted the police to a shootout by members of the motorcycle club in the area, there were reasonable grounds to suspect that some or all members of the group were committing the crime of weapons possession.

When the small group of policemen descended to the street to confront the 15 or 20 Tribe members who were believed to be on their way to a shootout, Patrolman Bassano had good cause to fear for his own safety or the safety of others, and in this case that is sufficient (People v Moore, 32 NY2d 67, cert den 414 US 1011). There was no need for Bassano to particularize the danger he may have perceived; under these circumstances the limited infringement of a frisk is preferable to the alternative of serious injury to the officer (People v Mack, 26 NY2d 311, cert den 400 US 960, supra; Terry v Ohio, 392 US 1, 33, concurring opn by Mr. Justice Harlan, supra). The officer acted in a proper and responsible manner in making a limited pat down of the suspect’s clothing to avoid the very real possibility of danger to himself and others (People v Taggart, 20 NY2d 335, app dsmd 392 US 667).

The order of the Appellate Division sustaining the conviction should in all respects be affirmed.

Cooke, J.

(dissenting). I, too, vote for affirmance, but my reasons differ from those of my brother Gabrielli.

Prior to our decision in People v De Bour (40 NY2d 210, 223), no reasonable suspicion case required the prosecution to produce the testimony of a sender of a police communication at a suppression hearing (compare People v Lypka, 36 NY2d 210, 214, and People v Horowitz, 21 NY2d 55, with People v Mack, 26 NY2d 311). Nor did any case furnish notice that such a rule was emerging, with the exception of People v Lypka (36 NY2d 210, supra). Both De Bour and Lypka were decided after the first suppression hearing in this case. Hence the District Attorney handling the initial hearing could not have known that the testimony of Sergeant Arlotta and Mr. Hechinger would be needed to establish reasonable suspicion.

Where, as here, a new rule of law altering the proof needed to establish reasonable suspicion is laid down subsequent to the suppression hearing, the People effectively have not been afforded "a full opportunity to present evidence” at that hearing. Measured against the standard adopted by the majority, then, the remittal in this case was proper, and the testimony elicited at the second hearing may be considered in assessing the legality of the challenged police conduct. Taken together, the facts developed at the two hearings demonstrate that the officer acted upon reasonable suspicion.

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

Chief Judge Breitel and Judges Jones and Fuchsberg concur with Judge Wachtler; Judge Gabrielli dissents and votes to affirm in an opinion in which Judge Jasen concurs; Judge Cooke dissents and votes to affirm in a separate dissenting opinion.

Order reversed, etc.

      . Although summoned to testify at the rehearing, Megan failed to appear.

      . The correctness and applicability of this rule is not impugned by People v Mack (26 NY2d 311, 315), as the dissent would have us believe. In Mack the testimony of the officer furnishing the information was not required at the suppression hearing, since the arresting officer, before taking any action, observed "furtive conduct” on the part of the defendant. By contrast Bassano saw nothing which could fairly be characterized as furtive conduct or suspicious activity.

      . As will be demonstrated, although remittal was not necessary, the procedure there adopted followed our holding in Lypka, infra, decided 10 months earlier.

      . In reply to the majority’s attempt to distinguish Lypka and Horowitz on the ground that in this case the officer was a member of the same police department and working daily with Officer Bassano, we note that in Mack the officer was never identified.

      . If the frisk that uncovered the revolver was proper, the subsequent full search of defendant’s person was incident to his arrest, and therefore the discovery of the blackjack was certainly supported by probable cause.

      . In relying on the testimony introduced at the second suppression hearing I do not intimate that the testimony at the first was insufficient to establish reasonable suspicion. In fact, it established that a named complainant had notified the police of criminal activity by members of a motorcycle gang who had had prior dealings with the police. Furthermore, the observations by the officers supported the suspicion that members of the gang had committed or were about to commit a crime (see People v Mack, 26 NY2d 311, cert den 400 US 960, supra). However, due to the above conclusion that the remand for a further hearing was proper, this discussion need not be confined to the testimony elicited at the first hearing.