text:
    In the Matter of Mercy Hospital of Watertown, Respondent, v New York State Department of Social Services, Appellant.
    Argued January 10, 1992;
    decided February 20, 1992

      POINTS OF COUNSEL

      Robert Abrams, Attorney-General (Clifford A. Royael, Jerry Boone and Peter H Schiff of counsel), for appellant. I.
    The Department of Social Services’ use of statistically valid random sample audits is proper even though records are available for individual review of the providers’ claims. (Matter of Inwood Post No. 581, Am. Legion v State Bingo Control

      Commn., 22 AD2d 884, 17 NY2d 699; Matter of Sunset Taxi Co. v Blum, 73 AD2d 691; Matter of Metzies Shoe Brooklyn N. Y. Corp. v New York State Dept. of Social Servs., 151 AD2d 675; Chaves County Home Health Serv. v Sullivan, 931 F2d 914; Michigan Dept. of Educ. v United States Dept. of Educ., 875 F2d 1196; Illinois Physicians Union v Miller, 675 F2d 151; Matter of Cortlandt Nursing Home v Axelrod, 66 NY2d 169; Jones v Georgia, 389 US 24; Schaubman v Blum, 49 NY2d 375; Matter of Camperlengo v Blum, 56 NY2d 251.) II. DSS’s determination is reasonable and supported by substantial evidence.

      Michael J. McNeil, Robert H. Iseman and Carol A. Hyde for respondent. I.
    The statistical sample audit used here was not authorized. (Matter of Tze Chun Liao v New York State Banking Dept., 74 NY2d 505; Matter of Trump-Equitable Fifth Ave. Co. v Gliedman, 57 NY2d 588; Kahal Bnei Emunim & Talmud Torah Bnei Simon Israel v Town of Fallsburg, 78 NY2d 194, 1008; Matter of Niagara Mohawk Power Corp. v Public Serv. Commn., 118 AD2d 908; Matter of Allen v Commissioner of Social Servs., 116 AD2d 35; Matter of Mohawk Airlines v Tully, 75 AD2d 249; Names in The News v New York State Tax Commn., 75 AD2d 145; Matter of Chartair, Inc. v State Tax Commn., 65 AD2d 44; Muller v Eno, 14 NY 597; Meagley v Hoyt, 125 NY 771.) II. The auditors’ methods were arbitrary and capricious. III. The Department’s issuance of the "corrected decision” was arbitrary and capricious. (Matter of Drew v State Liq. Auth., 2 NY2d 624; Saltser & Weinsier v McGoldrick, 295 NY 499.)
   OPINION OF THE COURT

Chief Judge Wachtler.

Petitioner, a hospital authorized to provide Medicaid services, challenges the method by which respondent, the agency charged with administering the Medicaid program in New York State, has determined that overpayments in the amount of $113,771.24 were made to the hospital for Medicaid services provided during a two-year period. At issue is whether respondent was authorized to calculate the amount of overpayment by means of statistical sampling rather than by an individual review of all the cases in the audit period, without a showing that petitioner’s records were inadequate to conduct a case-by-case review. We conclude that it was neither arbitrary and capricious nor in excess of respondent’s authority to employ a statistical sampling method in these circumstances.

I.

Medicaid is a joint Federal-State medical assistance program which reimburses medical providers for services provided to eligible individuals (see, Social Security Act tit XIX, 42 USC § 1396 et seq.; Social Services Law § 363 et seq.). Federal funds are available to pay a percentage of the total amounts spent by states for medical assistance (see, 42 USC § 1396b). To participate in the program and receive Federal funds, states are required to submit for Federal approval a medical assistance plan which conforms to standards set forth in Federal statutes and regulations (42 USC § 1396a). States are required, among other things, to adopt procedures to prevent fraud, abuse, unnecessary or inappropriate use of Medicaid services and excess payments (42 CFR 447.45, 455.13, 456.3, 456.23).

New York State opted to participate in the Medicaid program and the Legislature delegated to respondent, the State Department of Social Services (DSS), the task of developing a plan to submit for Federal approval. To that end, Social Services Law § 363-a (1) provides that DSS "shall submit a plan for medical assistance, as required by title XIX of the federal social security act, to the federal department of health, education and welfare. for approval * * * and shall act as the single state agency to supervise the administration of the plan in this state. [DSS] shall act for the state in any negotiations relative to the submission and approval of such plan and it may make such arrangements, not inconsistent with law, as may be required by or pursuant to federal law to obtain and retain such approval and to secure for the state the benefits of the provisions of such law.” In addition, section 363-a (2) provides that DSS "shall make such regulations, not inconsistent with law, as may be necessary to implement this title.”

Pursuant to this grant of authority from the State Legislature, and in accordance with Federal regulations requiring such procedures as part of the State plan, DSS administers a plan which includes mechanisms for detecting and recouping payments to providers for unnecessary or inappropriate services or in excess of the authorized amount (see generally, 18 NYCRR parts 517 [audit procedures], 518 [recoupment procedures], 519 [hearing procedures]). Regulations promulgated by DSS require providers to prepare and maintain detailed records reflecting the nature and extent of services furnished and to make them available to DSS for audit (18 NYCRR 504.3 [a], [g]). Audits are conducted on notice to the provider, who may discuss and lodge objections to the audit procedures, audit findings and any proposed action prior to the issuance of a final audit report (18 NYCRR 517.3, 517.5, 517.6). Upon the issuance of a final audit report, the provider is entitled to a hearing to challenge any determination that overpayments have been made (18 NYCRR 517.6, 519.4). The regulation governing hearing procedure provides, in part, that "[a]n extrapolation based upon an audit utilizing a statistical sampling method certified as valid will be presumed, in the absence of expert testimony and evidence to the contrary, to be an accurate determination of the total overpayments made or penalty to be imposed. The [provider] may submit expert testimony challenging the extrapolation by the department or an actual accounting of all claims paid in rebuttal to the department’s proof’ (18 NYCRR 519.18 [g]).

II.

Respondent’s audit of petitioner’s Medicaid billings covered the period from December 1, 1982 through November 30, 1984, and concerned billings for outpatient services only. These services fell into three categories — emergency room services, ordered ambulatory services (tests and procedures ordered by an outside physician), and laboratory services. The hospital’s Medicaid billings for the audit period consisted of 5,047 emergency room cases, 1,860 ordered ambulatory cases and 2,979 laboratory cases, for a total of 9,886 cases.

Although it is not disputed that the hospital had adequate records for all of the cases subject to the audit, the auditors reviewed only 400 randomly selected cases: 200 emergency room cases, 100 ordered ambulatory cases, and 100 laboratory cases. Based upon a review of the hospital’s medical records for the sampled cases, the auditors determined that the hospital had been overpaid a total of $4,256.76 for the 200 emergency room cases sampled (an average of $21.2838 per case) and a total of $341.50 for the 100 ordered ambulatory cases sampled (an average of $3,415 per case). No significant over-payments were found in the laboratory cases. By multiplying the average overpayment by the total number of cases in each category, DSS projected overpayments of $107,419.34 for the 5,047 emergency room cases and $6,351.90 for the 1,860 ordered ambulatory cases — a total of $113,771.24.

After being notified of DSS’s intention to recoup the alleged overpayments, the hospital requested a hearing, asserting, among other things, that the use of statistical sampling was improper. At the hearing, DSS presented expert testimony from a statistician that the random sample reviewed was representative of the universe of cases subject to the audit. He explained the method by which the results of the sample were extrapolated to determine the total amount of overpayments and testified that, in his opinion, the result achieved by this method was the amount that the auditors most likely would have found if they had reviewed the entire universe of cases.

Other witnesses for DSS explained the reasons that claims were disallowed. In the emergency room cases, for example, claims for services rendered during prescheduled visits were disallowed pursuant to regulations defining emergency services as those provided "to the ill and injured who require immediate medical or surgical care on an unscheduled basis” (10 NYCRR 444.19 [a] [1]).

The hospital’s expert did not challenge the validity of the sample used in this case, or the efficacy of sampling techniques in general. He asserted, however, that the audit in this case was flawed because the criteria applied by the auditors were not sufficiently specific and because the auditors’ lack of a medical background did not qualify them to determine whether a given case involved a medical emergency as defined in the regulations.

Following the hearing, the Administrative Law Judge upheld the determination that the hospital had received over-payments, holding that the use of statistical sampling techniques was authorized and that the audit in this case was properly conducted. The ALJ initially reduced the amount of the overpayment by allowing the hospital to offset each disallowance for prescheduled emergency room cases by the amount billable for a routine physician’s office visit. Following a request from DSS’s hearing counsel for clarification of the basis for the offset, the ALJ issued a corrected decision eliminating the offset, which he stated was the product of a proofreading mistake in the original decision.

This CPLR article 78 proceeding ensued. Upon transfer from Supreme Court (see, CPLR 7804 [g]), the Appellate Division, Third Department, annulled the determination and remitted the matter to DSS for further proceedings. The Appellate Division held that DSS’s use of the random sample audit was arbitrary and capricious because adequate records were available to conduct a case-by-case review (169 AD2d 1009). In light of this holding, the Appellate Division did not address the other issues raised by the hospital, including its arguments with respect to the issuance of the corrected decision, and its objections to the criteria used and the qualifications of the auditors. We granted the motion of DSS for leave to appeal and now reverse.

III.

Petitioner contends first that DSS exceeded its authority in conducting the random sample audit, notwithstanding the existence of regulations purporting to authorize such methods, because the legislation delegating to DSS the authority to administer the Medicaid program does not expressly or impliedly authorize the use of random sample audits.

It is true, of course, that the Social Services Law does not expressly refer to such audits, but that observation does not materially advance the analysis. The legislation makes no express reference to audits of any kind, but there can be no doubt that, to administer a Medicaid program in conformance with Federal requirements regarding the prevention of fraud and abuse, DSS must have the authority to audit the medical records maintained by providers to determine the legitimacy of claims made by them (see, Matter of Camperlengo v Blum, 56 NY2d 251, 255-256). Such authority is implicit in the designation of DSS as the agency "to supervise the administration of the [Medicaid] plan in this state” (Social Services Law § 363-a [1]). It is well settled that an agency’s powers include not only those expressly conferred, but also those "required by necessary implication” (Matter of City of New York v State of New York Commn. on Cable Tel., 47 NY2d 89, 92). This is especially true where, as here, the Legislature has delegated administrative duties in broad terms, leaving the agency to determine what specific standards and procedures are most suitable to accomplish the legislative goals (see, id.; Matter of Levine v Whalen, 39 NY2d 510, 515-516). DSS’s decision to employ statistical sampling in conducting audits falls well within that broad authority. If it is reasonably designed to further the regulatory scheme, it cannot be disturbed by the courts unless it is arbitrary, illegal or runs afoul of the enabling legislation or constitutional limits (see, Matter of Barie v Lavine, 40 NY2d 565, 568-569).

Petitioner has made no effort to demonstrate that statistical sampling methods generally are arbitrary, unfair or unreliable. The use of such methods has been upheld by this Court in other contexts (see, Matter of Grant Co. v Joseph, 2 NY2d 196, cert denied 355 US 869; Matter of Inwood Post No. 581, Am. Legion v State Bingo Control Commn., 22 AD2d 884, affd no opn 17 NY2d 699) and courts in other jurisdictions have approved their use in this or closely analogous contexts (see, Chaves County Home Health Serv. v Sullivan, 931 F2d 914 [DC Cir] [Medicare]; Illinois Physicians Union v Miller, 675 F2d 151 [7th Cir] [Medicaid]; State of Georgia, Dept. of Human Resources v Califano, 446 F Supp 404 [ND Ga] [Medicaid]; see also, Michigan Dept. of Educ. v United States Dept. of Educ., 875 F2d 1196 [6th Cir] [audit of State’s vocational rehabilitation expenditures]).

We agree with those courts that, in view of the vast number of claims subject to audit, it is not unreasonable for a supervising agency, such as DSS, to use statistical samples to establish that overpayments have been made and to estimate their total amount. We emphasize that, as the regulation governing the use of statistical sampling dictates, the provider, who at all times bears the burden of proving entitlement to the Medicaid funds, must be given a fair opportunity to challenge the accuracy of the estimate by attacking the reliability of the methods or standards employed, as petitioner did in this case, or by conducting and submitting a complete audit, which petitioner chose not to do (18 NYCRR 519.18 [g]).

Relying on Tax Law § 1138 (a), however, petitioner contends and the Appellate Division held that, even if random sample audits are permissible, it was arbitrary and capricious to use that method in these circumstances. Tax Law § 1138 (a) provides that the Tax Commission shall determine the amount of sales tax due "from such information as may be available [and] [i]f necessary, the tax may be estimated on the basis of external indices”. This provision has been construed by the Appellate Division, Third Department, as precluding the use of a test period audit unless the taxpayer’s records are inadequate to permit a complete audit (see, Names in The News v New York State Tax Commn., 75 AD2d 145, 147; Matter of Mohawk Airlines v Tully, 75 AD2d 249, 250-251; Matter of Chartair, Inc. v State Tax Commn., 65 AD2d 44, 46).

By analogy to those sales tax cases, the Third Department has held, as in this case, that it is arbitrary and capricious for DSS to conduct a statistical sampling audit of Medicaid billings if the provider’s records are available for a complete audit (see, Matter of Graziosi v New York State Dept. of Social Servs., 167 AD2d 793, 794-795; Matter of Allen v Commissioner of Social Servs., 116 AD2d 35, 38). The First and Second Departments, on the other hand, have accepted the use of statistical sampling in Medicaid audits, apparently without regard to the adequacy or availability of the provider’s records (see, Matter of Metzies Shoe Brooklyn N. Y. Corp. v New York State Dept. of Social Servs., 151 AD2d 675 [2d Dept]; Woldeyohannes v Webb, 96 AD2d 493 [1st Dept]; Matter of Sunset Taxi Co. v Blum, 73 AD2d 691 [2d Dept]).

This Court has not passed on the validity of the Third Department’s construction of Tax Law § 1138 (a) and we do not do so now. Assuming, however, that the Tax Law indeed limits the Tax Commission’s use of test period audits to cases in which a complete audit is not possible, we do not believe that a legislative preference for complete audits in the sales tax context establishes a general rule applicable to all administrative agencies with audit responsibilities. If the Legislature wanted to create a limitation of general applicability, it is unlikely that it would do so by expressing it in a specific, narrow context and hoping that it would spread by implication to other contexts. The Legislature does not ordinarily express its will by such circumlocution.

Nor do we accept petitioner’s argument that the reference to test period audits in section 1138 (a) is a grant of authority to conduct such audits that would not otherwise exist and that, since there is no similar reference in the Social Services Law, DSS has not been so empowered by the Legislature. The argument proves too much. If it were true, then DSS would have no authority to employ statistical sampling techniques even when a provider’s records are inadequate to allow a complete audit. Such a rule would frustrate efforts to recoup overpayments and would undermine the agency’s ability to comply with Federal requirements concerning the prevention of fraud and abuse. In our view, to the extent that Tax Law § 1138 authorizes test period audits only when inadequate records exist, it merely expresses a limitation on the agency’s authority to conduct audits. The absence of a similar reference in the Social Services Law establishes, not an absence of authority to conduct statistical sampling audits in any circumstances, but rather an absence of a similar limitation on the DSS’s authority to conduct such audits.

Finally, we reject petitioner’s contention that the determination to use indirect audit methods is a "uniquely legislative function” that cannot be made by an administrative agency without violating constitutional separation of powers principles (Boreali v Axelrod, 71 NY2d 1, 12). The agency’s choice of methods for detecting and valuating overpayments— tasks specifically imposed on the State by Federal regulations and assigned to DSS by the State Legislature — is an instance of an agency merely "fill[ing] in the details of broad legislation describing the over-all policies to be implemented” (id., at 13). In doing so, DSS was implementing legislative policy, not making legislative policy, and was thus acting within its proper sphere (see, Matter of New York State Health Facilities Assn. v Axelrod, 77 NY2d 340, 348).

In sum, we conclude that the authority for DSS to conduct Medicaid audits based upon statistical sampling is implicit in the general grant of authority to supervise the administration of the Medicaid program in this State and that such authority is not limited to cases in which the inadequacy of a provider’s records preclude a complete audit.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the matter remitted to the Appellate Division, Third Department, for consideration of issues raised but not passed upon on the appeal to that court.

Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur.

Order reversed, etc.

      . The relevant Federal agency is now the Department of Health and Human Services.

      . This regulation became effective on June 6, 1988, the date the administrative hearing in this case began. A substantially similar regulation (18 NYCRR former 515.14 [b] [3]) was previously in effect.

      . Although the Appellate Division’s order remitting the matter to DSS is nonfinal, it is appealable to this Court pursuant to CPLR 5602 (a) (2) (see, Matter of F. J. Zeronda, Inc. v Town Bd., 37 NY2d 198, 200-201).

      . Petitioner does claim, however, as it did during the administrative hearing, that the methods used in this particular audit rendered the results unreliable. That claim, which relates to whether the administrative determination was supported by substantial evidence, must be considered by the Appellate Division on remittal.

        . In the only case to reach us arguably presenting the opportunity to consider whether Tax Law § 1138 (a) limits the use of test period audits, the Third Department had ruled that a test period audit was permissible because the taxpayer’s records were inadequate (see, Matter of Markowitz v State Tax Commn., 54 AD2d 1023, affd 44 NY2d 684). That case, therefore, did not require us to determine whether such an audit would be permissible if adequate records existed. Matter of Grant Co. v Joseph (2 NY2d 196 involved a provision of the Administrative Code of the City of New York similar to Tax Law § 1138 (a). In that case, too, the taxpayer’s records were inadequate and we upheld the use of a test period audit for sales tax purposes. Dicta in that case runs counter to the Third Department’s strict approach to the use of test period audits. We stated: "Even when an item-by-item audit is possible, and it was not here, there is no inflexible requirement that the comptroller resort to it. * * * It is sufficient if the method adopted is reasonably calculated to reflect the taxes due.” (2 NY2d, at 206, supra.)


source: Caselaw Access Project

author: Alexander, J.

license: Public Domain

text:
    The People of the State of New York, Appellant, v John Liberatore, Respondent.
    Argued January 10, 1992;
    decided February 25, 1992

      POINTS OF COUNSEL

      R. Michael Tontillo, District Attorney (Brian D. Dennis of counsel), for appellant.
    The People complied with CPL 700.70. (People v Penasso, 142 AD2d 691; People v Schulz, 67 NY2d 144; People v Mark, 68 AD2d 315; People v Baris, 116 AD2d 174, 67 NY2d 1050; People v Pardo, 69 NY2d 1008; People v Mullen, 152 AD2d 260; People v Leale, 151 AD2d 611; People v Manuli, 104 AD2d 386; People v Rumpel, 111 AD2d 481; People v Washington, 46 NY2d 116.)

      David Lee Foster for respondent. I.
    The court below’s unanimous reversal of defendant’s judgment of conviction was mandated by CPL 700.70. (Berger v New York, 388 US 41; People v Schulz, 67 NY2d 144; People v Gallina, 66 NY2d 52; People v Sturgis, 76 Misc 2d 1053; People v Baris, 116 AD2d 174; Aguilar v Texas, 378 US 108; Spinelli v United States, 393 US 410; People v Griminger, 71 NY2d 635; People v Basilicato, 64 NY2d 103.) II. The People’s assertion of compliance with CPL 700.70 is erroneous. (People v Tambe, 71 NY2d 492; People v Penasso, 142 AD2d 691; People v Darden, 34 NY2d 177; People v Leale, 151 AD2d 611; People v Manuli, 104 AD2d 386.)

      Susan H. Salomon for Criminal Appeals Bureau of the Legal Aid Society, amicus curiae.

    The denial to the defense of access to the contents of a confidential informant’s statement included in an application for an eavesdropping or search warrant, where the statement is necessary to a determination of probable cause, denies the defense "opportunity for full and fair litigation” of any issues concerning the propriety of the warrant, and thereby violates defendant’s rights to the effective assistance of counsel and due process. (Waller v Georgia, 467 US 39; United States ex rel. Thomas v O’Leary, 856 F2d 1011; Kimmelman v Morrison, All US 365; Stone v Powell, 428 US 465; Alderman v United States, 394 US 165; Franks v Delaware, 438 US 154; People v Guerra, 65 NY2d 60; People v Pettaway, 153 AD2d 647; People v Taylor, 73 NY2d 683; United States v Cronic, 466 US 648; Davis v Alaska, 415 US 308.)
   OPINION OF THE COURT

Alexander, J.

The People appeal by leave of a Judge of this Court from three orders of the Appellate Division which reversed, on the law, three judgments of Ontario County Court convicting defendant, upon his guilty plea, of first degree criminal possession of a controlled substance, third degree criminal sale of a controlled substance and first degree criminal possession of stolen property and granted defendant’s motion to suppress all evidence obtained as the result of eavesdropping warrants and search warrants. The Appellate Division concluded that the People failed to comply with the notice mandate of CPL 700.70. Inasmuch as we disagree for the reasons that follow, there should be a reversal.

I

Defendant’s conviction in Ontario County for drug-related offenses grew out of a narcotics trafficking investigation in adjoining Wayne County. An eavesdropping warrant authorizing the interception of conversations on a telephone listed to Noemi Dessis-Carbuccia (Carbuccia warrant) was issued on May 30, 1984 by Wayne County Judge Carmen R. Parenti. The warrant application included the affidavit of State Police Investigator William Freeman and numerous attachments, including a seven-page statement of a confidential informant. Because the investigation was continuing and the identity of the informant was readily discernible from the detailed information contained in the statement, Judge Parent! directed that the informant’s statement be sealed to protect the informant and avoid compromising the on-going investigation. Thus, the warrant specifically directed that the statement remain sealed "until further order of a Court having jurisdiction to order disclosure thereof.” The warrant provided further that "no person who shall gain knowledge of the existence or contents of the Ex Parte Order shall thereafter divulge such information to any unauthorized individual under pain of contempt of this Court.”

As part of the continuing investigation, on June 25th, Ontario County Judge Frederic T. Henry, Jr. issued an eavesdropping warrant authorizing interception of conversations on the telephone of Samuel K. Tambe. The June 25th warrant incorporated by reference the May 30th Carbuccia warrant.

The Carbuccia warrant was thereafter extended on June 29th. Thereafter, Judge Parent! issued search warrants authorizing searches of defendant and his two automobiles. These search warrants were executed on July 5th as defendant was returning to Ontario County from New York City. Fourteen ounces of cocaine were discovered in the car defendant was driving. He was arrested and subsequently indicted for criminal possession of a controlled substance in the first degree. Two other indictments were also filed against defendant, charging him with criminal sale of a controlled substance in the third degree and criminal possession of stolen property in the first degree.

Defendant was arraigned on all three indictments in Ontario County on August 29th. At arraignment, the People provided defense counsel with copies of the May 30th Carbuccia warrant, the June 25th Tambe warrant and the June 29th extension of the Carbuccia warrant. Counsel was also provided with all the accompanying applications for each warrant as well as the numerous exhibits submitted to the issuing courts. The only document not turned over was the seven-page statement of the confidential informant which had been sealed by Judge Parenti’s order. In total, almost 300 pages of documents and exhibits were furnished to defense counsel.

Within the 45-day period limited by CPL 255.20, defendant sought suppression of all property and evidence seized as a result of information derived from the eavesdropping warrant, contending that the People had failed to comply with CPL 700.70 because they did not furnish the seven-page informant’s statement. Defendant argued that inasmuch as the issuing Judge considered and relied upon that statement in authorizing the eavesdropping warrant, it was necessary that the information establishing the existence and reliability of the informant and the reliability of the information provided by the informant be supplied. He argued that because this was not done, the reliability and identity of the informant could not be determined; thus, failure to furnish the statement within 15 days of arraignment was a violation of CPL 700.70.

Instead of conducting a hearing on the suppression motion, Ontario County Court Judge George A. Reed, under constraint of People v Romney (77 AD2d 482 [4th Dept]), transferred the motion to Judge Parenti, the issuing Judge. On January 11, 1985, Judge Parenti held a probable cause hearing. He concluded that the statement of the confidential informant was not germane to defendant’s case, that there was sufficient probable cause for the eavesdropping warrant even in the absence of the confidential informant’s statement, that there also was probable cause for the search warrants issued and that all of the statutory requirements of CPL article 700 had been met. Defendant’s motion to suppress was denied and he subsequently pleaded guilty to the crimes charged.

On defendant’s appeal, the Appellate Division reversed the conviction, on the law, granted the motion to suppress and vacated defendant’s plea.

11

In People v Schulz (67 NY2d 144), we reaffirmed the need for "strict compliance with the provisions of New York’s eavesdropping statute” (id., at 148) and held that "where there has been a failure to comply with the notice provisions of CPL 700.70, and * * * neither an application for an extension of time within the 15 days provided in that statute nor a showing of good cause for noncompliance and lack of prejudice to defendant” (id., at 147), evidence derived from an intercepted communication must be suppressed (see, CPL 700.70). We again noted "[t]he insidiousness of electronic surveillance [which] threatens the right to be free from unjustifiable governmental intrusion into one’s individual privacy” and, citing People v Washington (46 NY2d 116, 124), concluded that "law enforcement officials [must] be sensitive to the fact that there must be meticulous adherence to the terms of the warrant and the statute pursuant to which it [was] issued” (id., at 148-149). We have imposed this requirement of meticulous compliance with the eavesdropping statute as being consistent with the mandate of the Legislature. The statutory provision that "a copy of the eavesdropping warrant, and accompanying application” does not provide us with sufficient guidance, however, to determine whether the Legislature would require that documents sealed by court order — a special category of accompanying material — be disclosed as well.

Applying the principle enunciated in Schulz without discussion or analysis of its relevance to the facts of this case, the Appellate Division concluded that the failure of the People to furnish this defendant with the sealed affirmation of the confidential informant, or to seek an extension of time within the 15 days provided by statute, violated CPL 700.70. Thus, the Appellate Division felt compelled to suppress all evidence derived from information flowLig from the Carbuccia eavesdropping warrant. We disagree and conclude that the provisions of CPL 700.70 were not violated in the circumstances of this case.

A primary purpose of the notice requirement of CPL 700.70 is to "alert * * * criminal defendants to the existence of evidence that [can] be introduced against them at trial so that a timely decision [can] be made about whether to file a motion to suppress such evidence” (see, People v Basilicato, 64 NY2d 103, 118; see also, People v Schulz, 67 NY2d 144, 151, supra; Bellacosa, Practice Commentary, McKinney's Cons Laws of NY, Book 11A, CPL 700.70, at 525).

There is no dispute that all the extensive attachments to the eavesdropping warrants and the extension, other than the sealed statement, were turned over to defendant at arraignment. Additionally, it is undisputed that the existence of the sealed statement and its general contents were made known by the affidavit of Investigator Freeman in the warrant application. Defendant was given ample opportunity to, and in fact did, seek suppression of the eavesdropping warrant. Accordingly, the purpose of the 15-day statutory service requirement (L 1976, ch 194, § 2) to facilitate the service and filing of all pretrial motions within 45 days after arraignment or within 45 days after service of the papers pursuant to CPL 700.70, was accomplished (see, CPL 255.20 [1]). Defendant argues, however, and the Appellate Division, citing our discussion in People v Schulz (67 NY2d 144, supra), agreed that by not turning over the sealed statement, the People failed to strictly comply with the provisions of CPL 700.70.

Our holding in Schulz, however, does not require suppression in the circumstances of this case. Schulz involved a complete failure of the People to turn over the eavesdropping warrant and application to the defendant until 61 days after his arraignment. We rejected the People’s excuse for the total failure to comply. By contrast, here there was full compliance save for the confidential informant’s statement which had been ordered sealed by the issuing Magistrate and the content of which was substantially revealed by Investigator Freeman’s affidavit. The question here then is whether a balance may properly be struck between the notice and disclosure requirements of CPL 700.70 and the competing need to protect the identity of informants for their own well-being as well as to ensure the flow of information to the police in aid of their effort to combat crime.

Defendant concedes that there are circumstances where the identity of an informant used in an application for an eavesdropping warrant may properly be withheld from the defense. He argues, however, that the People’s failure to turn over the informant’s statement prevented him from presenting an informed challenge, to the validity of the eavesdropping warrant for lack of probable cause; that inasmuch as the issuing Magistrate relied upon that statement, he had a right to its disclosure.

We have noted that where the disclosure of the identity of an informant is pertinent to establishing probable cause for arrest and search, an ex parte in camera hearing with respect to the existence of the informant and the alleged communication from that person strikes a proper balance between the defendant’s rights and the competing interests of the State. However, where the defendant’s guilt or innocence is at issue, disclosure of the informant’s identity should not be resolved in an ex parte proceeding (see, People v Goggins, 34 NY2d 163, 168; People v Darden, 34 NY2d 177, 181). Here, in response to defendant’s motion to suppress, Judge Parenti concluded that the issue before him was whether probable cause existed for the issuance of the eavesdropping warrant and the subsequent search warrant, not defendant’s guilt or innocence. Thus, he ruled that it was not necessary to reveal the identity of the informant or the content of the statement in order to resolve the probable cause issue. Judge Parenti determined upon examining the statement that it was not germane to defendant. He found probable cause for issuance of the warrant, even without consideration of the sealed affirmation; that the information contained in that document referred to persons other than defendant, and that the information implicating defendant came from another informant, Munoz, whose identity was disclosed and whose affidavit implicating defendant and transcripts of telephone conversations between them, all of which were attached to the warrant application, detailed Munoz’s involvement with defendant in the purchase and sale of narcotics on a local college campus.

This ex parte determination by Judge Parenti was not impermissible under existing precedent (see, People v Mullen, 152 AD2d 260; People v Leale, 151 AD2d 611, lv denied 75 NY2d 869, lv denied upon reconsideration 76 NY2d 738; People v Rumpel, 111 AD2d 481). Such a determination by a hearing court should not be shielded from appellate review by not including the sealed statement with the record, however, because if it were determined that the statement was relevant to the determination of probable cause, in the absence of other compelling reasons for nondisclosure, the failure to provide it to the defendant may require suppression. The statement was not included in this record; thus, neither the Appellate Division nor this Court has been afforded an opportunity to review the determination of relevancy and probable cause. Indeed, the Appellate Division reversed defendant’s conviction "on the law” based on the People’s violation of CPL 700.70 and did not consider the factual findings of the hearing court. Inasmuch as we disagree with this legal determination, there must be a remittal to that court for a determination of whether the hearing court in fact was correct in finding that the sealed statement made no reference to this defendant and thus was irrelevant, and further that there was probable cause even without the sealed statement.

Our holding, that under the unique facts of this case there was no violation of CPL 700.70 such as to require suppression, as a matter of law, is not a departure from our long tradition of construing the eavesdropping statute strictly and requiring meticulous compliance with its provisions. Rather, it represents a commonsense balance between the rights of the defendant and the needs of law enforcement in a situation the Legislature apparently did not contemplate. A defendant of course has statutory and constitutional rights to test whether the issuance of an eavesdropping warrant is based on probable cause. As indicated above, however, the necessity for protecting the safety of an informant by withholding his identity as well as furthering the needs of law enforcement in an effort to stem the tide of ever burgeoning crime, are equally compelling interests. By remitting for a determination of whether there was probable cause even without the sealed statement, we strike a logical and commonsense balance between those interests.

Finally, defendant’s contention that Judge Reed erred in transferring the hearing on the omnibus motion to Judge Parenti, is without merit. We have expressly rejected the limitation on review of suppression motions set forth in People v Romney (77 AD2d 482, supra) (see, People v Guerra, 65 NY2d 60, 63). We concluded that there is neither a mandate for nor a prohibition against the transfer of a suppression motion to a Judge of coordinate jurisdiction. A Judge who issued a warrant is not prohibited from entertaining a motion to suppress evidence seized pursuant to that warrant nor is that Judge the only one who may entertain such a motion (see, People v Tambe, 71 NY2d 492, 506; People v Guerra, supra, at 63). Thus, it was not improper for Judge Parent! who issued the first eavesdropping warrant and the related search warrants to make the determinations with respect to defendant’s motion to suppress.

Accordingly, the orders of the Appellate Division should be reversed and the case remitted to that court for a determination of the facts (CPL 470.25 [2] [d]; 470.40 [2] [b]).

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

Orders reversed and case remitted to the Appellate Division, Fourth Department, for further proceedings in accordance with the opinion herein.

      . This Court has previously affirmed the determination that this eavesdropping warrant was supported by probable cause (People v Tambe, 71 NY2d 492).

      . The hearing court noted that the affidavit of Investigator Freeman, submitted in support of the Carbuccia warrant, revealed that the information received from the confidential informant concerned three other individuals suspected of criminal activity but not defendant. The hearing court also determined that Liberatore was not a target of the Carbuccia warrant, and that the application contained specific evidence obtained from another named informant, implicating defendant as a participant in narcotics trafficking, which evidence was legally sufficient to establish probable cause for the search warrant and defendant’s subsequent arrest (see, infra, at 215).

      . The statute provides that "[t]he contents of any intercepted communication, or evidence derived therefrom, may not be received in evidence or otherwise disclosed upon a trial of a defendant unless the people, within fifteen days after arraignment and before the commencement of the trial, furnish the defendant with a copy of the eavesdropping warrant, and accompanying application, under which interception was authorized or approved. This fifteen day period may be extended by the trial court upon good cause shown if it finds that the defendant will not be prejudiced by the delay in receiving such papers” (CPL 700.70 [emphasis added]).

      . The affidavit discussed, in detail, information acquired from the informant concerning narcotics trafficking activity by Hector Carbuccia and described some of the transactions, including dates, times and locations, which occurred between Carbuccia and individuals other than defendant.

      . Prior to 1976, CPL 700.70 only required that the People turn over the relevant material 10 days before trial, thus enabling a prosecutor to "sit by and when ready for trial very easily comply, to the great and unfair surprise of an accused” (Bellacosa, op. cit., at 525).

      . Apparently, these conversations were intercepted, not pursuant to an eavesdropping warrant, but rather with the consent of Munoz.


author: Chief Judge Wachtler.

text:
    Bernard Harvey et al., Respondents, v Mazal American Partners et al., Doing Business as Assay Partners et al., Appellants. Assay Partners et al., Third-Party Plaintiffs-Appellants-Respondents, v Mosher Steel Company, a Division of Trinity Industries, Inc., Third-Party Defendant, and Gem Steel Erectors, Inc., et al., Third-Party Defendants-Respondents-Appellants. (And a Second Third-Party Action.)
    Argued January 14, 1992;
    decided February 25, 1992

      POINTS OF COUNSEL

      Glen Feinberg, London Fischer, James L. Fischer and Edward Magro for appellants and third-party plaintiffs-appellants-respondents. I.
    The lower courts erred as a matter of law first in permitting and then in failing to explain or charge the unsworn, unauthenticated, incompetent and untrustworthy testimony and exhibit of Bernard Harvey. (McDougald v Garber, 73 NY2d 246; Ellis v Brookdale Hosp. Med. Center, 122 Misc 2d 942; People v Parks, 41 NY2d 36; Matter of Brown v Ristich, 36 NY2d 183; Stoppick v Goldstein, 174 App Div 306; People ex rel. Niebuhr v McAdoo, 184 NY 304; Napiearlski v Pickering, 278 App Div 456; Razauckas v New York Dugan Bros., 263 App Div 1002, 289 NY 592; Clarke v Steeplechase Amusement Co., 9 Misc 2d 342; People v Nisoff, 36 NY2d 560.) II. The lower courts abused their discretion as a matter of law by granting permission to exhibit an unsworn, unauthenticated, incompetent and unprecedented oral subjective show and testimony all without adequate notice to the defense. (Leader v Dinkler Mgt. Corp., 20 NY2d 393; Matter of Hunter v County Clerk of Suffolk County, 19 NY2d 941; Walker Mem. Baptist Church v Sounder, 285 NY 462; Jacobs v Chemical Bank, 30 NY2d 750; Brady v Ottaway Newspapers, 63 NY2d 1031; Herrick v Second Cuthouse, 64 NY2d 692; Hirschfeld v Hirschfeld, 69 NY2d 842; Matter of Von Bulow, 63 NY2d 221; Matter of 425 Park Ave. Co. v Finance Adm'r of City of N. Y., 69 NY2d 645; Patron v Patron, 40 NY2d 582.) III. The court below erred as a matter of law by applying the "shocks the conscience” standard of review in place of the required "reasonable compensation” standard of review. (Graham v Murphy, 135 AD2d 326; Harvey v Mazal Am. Partners, 165 AD2d 242; Gonzalez v Manhattan & Bronx Surface Tr. Operating Auth., 160 AD2d 420; Marmo v Southside Hosp., 143 AD2d 891; Grcic v City of New York, 139 AD2d 621; Merrill v Albany Med. Center, 126 AD2d 66.) IV. The court below violated the requirements of CPLR 5522 (b) by failing to state the reasons for its award for pain and suffering. (Serano v New York Cent. & Hudson Riv. R. R. Co., 188 NY 156; Barnes v Midland R. R. Term. Co., 218 NY 91.) V. Gem is contractually obligated to indemnify HRH and Assay. (Brown

      v Two Exch. Plaza Partners, 146 AD2d 129, 76 NY2d 172; Kilfeather v Astoria 31st St. Assocs., 156 AD2d 428; Lawrence v Fox, 20 NY 268.)

      Peter Pearson Traub, Jr., and Elliott Zucker for third-party defendants-respondents-appellants.
    The receipt into evidence of unsworn testimony is improper as a matter of law. (O’Hearn v O’Hearn, 55 AD2d 766; Razauckas v New York Dugan Bros., 263 App Div 1002; People v Copeland, 70 AD2d 884; Fineman v Krebs, 17 Misc 2d 922; Clarke v Steeplechase Amusement Co., 9 Misc 2d 342; Napiearlski v Pickering, 278 App Div 457.)

      Joseph Kelner, Robert S. Kelner and Arthur I. Strier for respondents. I.
    The trial court did not abuse its discretion in permitting the presentation of Harvey in the jury’s presence as an exhibit. (Matter of Brown v Ristich, 36 NY2d 183; Riddle v Memorial Hosp., 43 AD2d 750; Harvey v Fargo, 99 App Div 599.) II. The court below did not err in reviewing excessiveness pursuant to CPLR 5501 (c). (Murphy v A. Louis Shure, P. C., 156 AD2d 85.) III. The court below adequately stated its reasons for affirming the judgment. (Murphy v A. Louis Shure, P. C., 156 AD2d 85.)
   OPINION OF THE COURT

Chief Judge Wachtler.

The plaintiff Bernard Harvey was an ironworker foreman employed by Atlas-Gem Joint Venture to work on the construction of a high-rise office building in downtown Manhattan. The property was owned by Assay Partners and managed by HRH Construction Corporation. Assay had contracted with Mosher Steel Company for the fabrication and erection of structural steel and Mosher in turn subcontracted the work to Atlas-Gem Joint Venture, a joint venture between Atlas-Gem Erectors and Gem Steel Erectors. On the morning of July 25, 1986, Harvey stepped onto an unsecured wooden plank installed by Atlas-Gem on the 24th floor. The plank gave way, causing Harvey to fall head first two stories. He sustained serious and permanent brain and spinal cord damage.

Harvey and his wife Margaret commenced this action against Assay Partners and HRH by service of summons and complaint in August of 1986. In July of 1987, Assay and HRH commenced a third-party action for indemnification and contribution against Mosher, Atlas-Gem Erectors and Gem Steel. Another third-party action was commenced by Assay and HRH in October of 1987 against Atlas-Gem Joint Venture.

The plaintiffs’ motion for summary judgment on the issue of liability under Labor Law § 240 (1) was granted against defendants Mazal American Partners, Gezint Corporation, Hoson Holdings, Inc., Elstar Associates, a Limited Partnership, all doing business as Assay Partners, and HRH. The Appellate Division affirmed (145 AD2d 1006). Thereafter, a trial was held on the issue of damages and apportionment. The jury returned a verdict in favor of the plaintiffs in the amount of $27,084,819.03. The jury apportioned liability as follows: HRH, 55% liable; Mosher, 5% liable; and Gem Steel, 40% liable. The trial court overturned that portion of the jury’s verdict that found Mosher 5% at fault, and divided that 5% pro rata between HRH and Gem Steel. HRH was thus 57.9% liable and Gem Steel 42.1% liable. HRH and Assay filed a posttrial motion in which they claimed, among other things, that the verdict was excessive. This motion was granted in part by reducing the total award to $14,304,042.

The Appellate Division modified to the extent of correcting the judgment of Supreme Court to reflect that Assay Partners’ individual partners were "not summoned” under CPLR 5018 (a), and otherwise affirmed the January 17, 1990 judgment of the lower court which had granted a new trial upon the issue of damages unless plaintiffs stipulated to a reduction in the jury award. The Appellate Division also affirmed the July 16, 1990 judgment of the lower court which had granted judgment over in favor of Assay Partners and HRH against third-party defendant Gem Steel. The Appellate Division found that the damages award had not been excessive in light of the severity of the plaintiff’s injuries and the cost of his medical care. The court also found that the Trial Judge did not commit reversible error in permitting Harvey to be exhibited before the jury and respond to questions posed by his attorney. Finally, the Appellate Division rejected HRH and Assay’s arguments that the verdict as to apportionment was against the weight of the evidence and that Gem Steel, by virtue of an indemnification clause, was required to indemnify HRH and Assay against HRH’s own negligence.

HRH and Assay Partners moved for leave to appeal to this Court and Atlas-Gem Joint Venture, Atlas-Gem Erectors and Gem Steel cross-moved for leave to appeal. Both the motion and the cross motion were granted by this Court.

The primary issue on appeal is whether the Trial Judge did in fact err in permitting Harvey, who was not sworn, to appear before the jury and answer a series of questions that were designed to demonstrate the extent of his injuries. The Trial Judge justified her decision to allow the questioning on the grounds that the plaintiff was not a witness who needed to be sworn, but an exhibit whose physical condition was an issue at trial. We agree with the Appellate Division that there was no abuse of discretion evident.

Before Harvey was brought into the courtroom, the attorneys and the Trial Judge conferred in an off-the-record sidebar. Harvey was wheeled in and asked a number of questions before the jury. Most of these questions did not involve specific issues that were relevant at trial. For instance, his attorney asked him his age, how many children he had, and their names. He also asked what day of the week it was, how many days there were in a week, a month and a year. Some of the answers to these questions were inaudible, some correct, and some incorrect.

After the plaintiff was taken from the courtroom, counsel for HRH, Assay Partners, Mosher and Gem Steel, who had registered a number of objections as Harvey was being questioned, moved for a mistrial, claiming that the exhibit was designed to inflame the jury and that their clients had been prejudiced as a result. The trial court denied these motions.

We have in past cases recognized the importance of demonstrative evidence and have allowed parties to exhibit their injuries to the members of the jury. In Mulhado v Brooklyn City R. R. Co. (30 NY 370), for example, we permitted a plaintiff injured in an accident on a city railroad car to exhibit his injured arm to the jury. In Clark v Brooklyn Hgts. R. R. Co. (177 NY 359), the Trial Judge permitted the plaintiff, who had been injured in a collision, to leave the witness stand assisted and to exhibit himself to the jury in the act of writing his name and taking a drink of water. The display was designed to illustrate the plaintiff’s testimony that he was afflicted by a tremor and could use his hands only with difficulty. We stated that the decision whether to permit such demonstrative evidence was entrusted to the discretion of the Trial Judge. "The object of all evidence is to inform the trial tribunal of the material facts, which are relevant as bearing upon the issue, in order that the truth may be elicited and that a just determination of the controversy may be reached. It is not objectionable, in these cases, that the evidence may go beyond the oral narrative and may be addressed to the senses; provided that it be kept within reasonable limits by the exercise of a fair judicial discretion” (id., at 361). Although we noted the possibility of simulation and deception and the potential for unfairness to the defendant, we did not overturn the judgment of the lower courts because we considered the decision ultimately a matter of judicial discretion (id., at 362).

More recently, in People v Acevedo (40 NY2d 701, 704), we noted that demonstrative evidence, when "validly and carefully used,” is highly convincing, but we cautioned that "though tests and demonstrations in the courtroom are not lightly to be rejected when they would play a positive and helpful role in the ascertainment of truth, courts must be alert to the danger that, when ill-designed or not properly relevant to the point at issue, instead of being helpful they may serve but to mislead, confuse, divert or otherwise prejudice the purposes of the trial * * * When there is such a threat, the trial court itself must decide in the exercise of a sound discretion based on the nature of the proffered proof and the context in which it is offered, whether the value of the evidence outweighs its potential for prejudice” (see also, People v Scarola, 71 NY2d 769, 777; Riddle v Memorial Hosp., 43 AD2d 750, 751; Richardson, Evidence §§ 134, 136 [Prince 10th ed]).

In the case now before us, most of the questions asked of the plaintiff were of a general nature and did not touch upon any of the issues involved at trial. Further, the plaintiffs answers illustrated the extent to which his cognitive abilities had been affected by the accident. In her colloquy with counsel following the examination of Mr. Harvey, the Trial Judge noted that in deciding to permit the questioning, she had balanced the value of showing the jury the plaintiffs injuries against the potential for prejudice and for generating an emotional response. That balancing is without question an exercise of judicial discretion, and we find no basis for disturbing it. Although with the benefit of hindsight, the preferred practice would have been for the Trial Judge to examine the plaintiff in camera, outside the presence of the jury, before permitting the questioning, we cannot find the failure to conduct such an examination to have constituted an abuse of discretion under the facts present here.

Finally, we note that our holding today is consistent with decisions from other jurisdictions allowing the introduction of demonstrative evidence under similar circumstances (see, Ensor v Wilson, 519 So 2d 1244 [Ala]; Heidbreder v Northampton Twp. Trustees, 64 Ohio App 2d 95, 411 NE2d 825; see generally, Annotation, Permissibility of In-Court Demonstration to Show Effect of Injury in Action for Bodily Injury, 82 ALR4th 980).

Appellants and cross appellants argue that the plaintiff’s statements concerning his prior recreational activities were testimonial and not merely demonstrative. This argument, however, was not properly preserved for review by this Court. The general objections taken at trial to the questioning of the plaintiff did not alert the court to this particular issue, and it is therefore beyond our review powers.

We agree with appellants and cross appellants, however, that the Appellate Division did not manifest that it used the proper standard in determining whether the damages award was excessive. CPLR 5501 (c), which is applicable here, states that "[i]n reviewing a money judgment in an action * * * in which it is contended that the award is excessive or inadequate and that a new trial should have been granted unless a stipulation is entered to a different award, the appellate division shall determine that an award is excessive or inadequate if it deviates materially from what would be reasonable compensation.” Although the Appellate Division referred to this standard in discussing the plaintiff wife’s loss of consortium award, it also referred to the former "shocks the conscience” standard in its review of the remainder of the award. Consequently, we are obliged to remit this matter to the Appellate Division so that it can discharge and manifest its review of the excessiveness of the damages award in accordance with the proper standard.

HRH and Assay also claim that Gem Steel is contractually obligated to indemnify them for their own acts of negligence. We agree with the Appellate Division that this would run contrary to the intent behind General Obligations Law § 5-322.1 (see, Brown v Two Exch. Plaza Partners, 76 NY2d 172).

We have considered appellants’ remaining contentions and we find them to be without merit. Accordingly, the order of the Appellate Division should be modified, without costs, by remitting to the Appellate Division, First Department, for further proceedings in accordance with the opinion herein, and, as so modified, affirmed.

Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur.

Order modified, etc.


author: Chief Judge Wachtler. Kaye, J.

text:
    Jews for Jesus, Inc., et al., Appellants, v Jewish Community Relations Council of New York, Inc., et al., Respondents.
    Argued January 8, 1992;
    decided February 25, 1992

      POINTS OF COUNSEL

      Jay Alan Sekulow and James H Henderson, Sr., of the Georgia Bar, admitted pro hae vice, and Eric Alan Daly, for appellants. I.
    The Jewish Community Relations Council is liable for its attempted violation of Jews for Jesus’ rights protected by New York’s Civil Rights and Executive Laws, even though no specific example of discrimination resulted from the Council’s publication of the religiously discriminatory memo. (National Org. for Women v State Div. of Human Rights, 34 NY2d 416; State Div. of Human Rights v Binghamton Press Co., 67 AD2d 231; Holly v Pennysaver Corp., 98 AD2d 570.) II. The First Amendment does not immunize the Jewish Community Relations Council’s unlawful discriminatory conduct of writing and publishing the memo with religious animus in a specific plan to injure Jews for Jesus. (PruneYard Shopping Center v Robins, 447 US 74; NAACP v Claiborne Hardware Co., 458 US 886; Pittsburgh Press Co. v Human Relations Commn., 413 US 376; Roberts v United States Jaycees, 468 US 609; New York State Club Assn. v New York City, 487 US 1.)

      Aaron Stiefel and Joel Katcoff for respondents. I.
    The courts below correctly concluded that defendants’ activities did not violate the laws of this State. (National Org. for Women v State Div. of Human Rights, 34 NY2d 416; State Div. of Human Rights v Binghamton Press Co., 67 AD2d 231; United States v Zambrano, 776 F2d 1091; Jubran v Musikahn Corp., 673 F Supp 108; Matter of Lower Manhattan Loft Tenants v New York City Loft Bd., 66 NY2d 298; Loretto v Teleprompter Manhattan CATV Corp., 58 NY2d 143; Wittenberg v City of New York, 135 AD2d 132; People v Werblow, 241 NY 55; People v Bracey, 41 NY2d 296; People v Di Stefano, 38 NY2d 640.) II. Defendants’ activities consisted entirely of constitutionally protected speech. (Brandenburg v Ohio, 395 US 444; People v Dietze, 75 NY2d 47; NAACP v Claiborne Hardware Co., 458 US 886; Roberts v United States Jaycees, 468 US 609; New York State Club Assn. v New York City, 487 US 1; State Div. of Human Rights v Binghamton Press Co., 67 AD2d 231; Jews for Jesus v Jewish Community Relations Council, 768 F Supp 467; Delano Vil. Cos. v Orridge, 147 Misc 2d 302; Arkansas Writers’ Project v Ragland, 481 US 221.)
   OPINION OF THE COURT

Chief Judge Wachtler.

This appeal requires us to consider the scope of various State antidiscrimination statutes. The question in the case is whether, by circulating a memorandum critical of plaintiffs’ religious activities and advocating that plaintiffs be denied access to facilities in which to conduct those activities, defendants violated statutory prohibitions against discrimination on the basis of religion.

Plaintiff Jews for Jesus, Inc., describes itself as "an umbrella and representative organization for the religious activities of [individuals] who are Jewish and profess belief in Jesus the Messiah”. Defendant Jewish Community Relations Council of New York, Inc., describes itself as. "an umbrella organization encompassing many of the New York area’s leading Jewish organizations”. The individual defendants are either officers of the Jewish Community Relations Council or members of the Council’s Task Force on Missionaries & Cults.

The memorandum at issue in this case was written on the letterhead of the Task Force and was dated February 25, 1985. It reads as follows:

"MEMO
"To: Long Island Rabbis
"From: Rabbi Lawrence Colton, TFMC Steering Committee
"Re: American Board of Missions to the Jews and/ or Jews for Jesus
"Recently churches on Long Island reported receiving calls from the American Board of Missions to the Jews and/or Jews for Jesus.
"The American Board of Missions to the Jews, known as Beth Sar Shalom, or the separate organization known as Jews for Jesus, are Hebrew-Christian organizations seeking to convert Jews to Christianity.
"They are trying to rent space in order to conduct an interfaith seder in your community. If that fails, then they ask Long Island churches to rent them a room, an office or any space at all.
"They hope to gain church approval on the basis that they are a 'co-Christian body’ sharing in the Christian mission.
"Of course what they seek is the imprimatur of a recognized church group in each local community.
"PLEASE CONTACT YOUR CHRISTIAN COLLEAGUES. URGE THEM TO IMMEDIATELY DISAPPROVE OF THE AMERICAN BOARD OF MISSIONS TO THE JEWS AND OF THE ORGANIZATION JEWS FOR JESUS. IMPRESS UPON THEM HOW SERIOUS AN AFFRONT THESE HEBREW-CHRISTIAN GROUPS ARE TO THE JEWISH COMMUNITY. ASK THEM TO CHECK IN YOUR COMMUNITY TO DETERMINE IF THE AMERICAN BOARD OF MISSIONS TO THE JEWS OR JEWS FOR JESUS HAS ALREADY ESTABLISHED ITSELF.
"IF THEY CANNOT RENT SPACE IN A CHURCH, THEY MAY TRY TO RENT A CATERING ESTABLISHMENT OR A LARGE RESTAURANT. PLEASE CALL ANY SUCH PLACES IN YOUR COMMUNITY AND ASK THE COOPERATION OF THE MANAGEMENT IN NOT RENTING TO THESE GROUPS.
"PLEASE LET US KNOW OF ANY CONTACTS MADE BY THE AMERICAN BOARD OF MISSIONS TO THE JEWS OR BY JEWS FOR JESUS TO CHURCH GROUPS OR CATERING ESTABLISHMENTS IN YOUR AREA.”

The record does not establish how many copies of the memorandum were disseminated or who received them. There is, moreover, no allegation that any recipient contacted restaurants or catering establishments or took any action as a result of the memorandum. Nor is there any evidence that any facility discriminated against plaintiffs as a result of the memorandum. Nevertheless, after obtaining a copy of the memorandum, plaintiffs commenced this lawsuit alleging that defendants had violated antidiscrimination provisions of the State Civil Rights Law and the State Human Rights Law (Executive Law art 15). Plaintiffs sought injunctive relief and statutory damages in the amount of $100.

Defendants answered, admitting that the memorandum was sent to certain unspecified Long Island rabbis, but denying that they had violated the statutory provisions cited by plaintiffs and asserting that their conduct was in any event an exercise of speech and religion protected by the State and Federal Constitutions. After extensive discovery, defendants moved and plaintiffs cross-moved for summary judgment. After initially denying the motions so that further discovery could be conducted, upon renewal Supreme Court granted defendants’ motion for summary judgment dismissing the complaint, noting that plaintiffs had alleged no specific acts of discrimination resulting from the memorandum. The court concluded that the mere issuance and dissemination of the memorandum constituted free speech and was not actionable. The Appellate Division affirmed, holding that, in the absence of a showing that the memorandum resulted in one or more specific acts of discrimination, defendants’ conduct was not actionable. In addition, the court suggested that dissemination of the memorandum "may be protected by the First Amendment of the United States Constitution.” (169 AD2d 461.) We granted plaintiffs’ motion for leave to appeal and now affirm.

Plaintiffs rely primarily on three provisions of the Human Rights Law (Executive Law art 15). All three are found in Executive Law § 296.

Subdivision (2) (a) of that section provides that "[i]t shall be an unlawful discriminatory practice for any person, being the owner, lessee, proprietor, manager, superintendent, agent or employee of any place of public accommodation, resort or amusement, because of the race, creed, color, national origin, sex, or disability or marital status of any person, directly or indirectly, to refuse, withhold from or deny to such person any of the accommodations, advantages, facilities or privileges thereof’.

Subdivision (13) provides that "[i]t shall be an unlawful discriminatory practice (i) for any person to discriminate against, boycott or blacklist, or to refuse to buy from, sell to or trade with, any person, because of the race, creed, color, national origin or sex of such person”.

Plaintiffs concede that they were not denied access to a place of public accommodation and that defendants are not owners, lessees, proprietors, etc., of such a place and therefore do not fall within the terms of subdivision (2) (a). Thus, plaintiffs’ allegations fall short of establishing a violation of that section. Nor have defendants blacklisted or refused to trade with plaintiffs. Instead, the memorandum that defendants distributed requested the recipients of the memorandum to urge others to commit such violations.

Thus, plaintiffs rely most heavily on the third relevant subdivision of Executive Law § 296. Subdivision (6) provides that "[i]t shall be an unlawful discriminatory practice for any person to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this article, or to attempt to do so.” Plaintiffs contend that the distribution of the memorandum aided, abetted or incited acts forbidden by subdivisions (2) (a) and (13) or, at the very least, constituted an attempt to aid, abet or incite such acts.

Defendants, on the other hand, argue that one cannot aid, abet or incite one of the prohibited discriminatory acts unless a prohibited act occurs, which plaintiffs have not alleged. They argue further that the prohibition against attempts must refer to attempts to engage in prohibited discriminatory conduct, rather than attempts to aid, abet or incite discriminatory conduct. It cannot be, defendants contend, that the Legislature intended to outlaw attempts merely to aid, abet or incite discriminatory acts but not the relatively more serious conduct (according to defendants) of attempting to engage in discriminatory practices. Plaintiffs counter that this anomaly can be avoided easily by construing subdivision (6) broadly as prohibiting both categories of attempts.

Assuming, without deciding, that plaintiffs’ interpretation of subdivision (6) is correct, we conclude that defendants’ conduct does not fall within its prohibitions. In our view, the Legislature did not intend to prohibit the kind of advocacy contained in the memorandum prepared by defendants.

The memorandum was not directed to restaurant owners or caterers — those in a position to carry out the unlawful discriminatory practices that were advocated. Instead, defendants addressed religious associates concerning a matter that, in their opinion, posed a threat to their religion. While the steps they proposed were inconsistent with the Human Rights Law and the Civil Rights Law, their conduct did not go beyond the proposal stage. Defendants did not provide, attempt or offer to provide assistance to those who could have denied access to plaintiffs and thus did not aid or abet, or attempt to aid or abet unlawful conduct.

Nor did defendants’ conduct rise to the level of incitement or an attempt to incite. The term "incite” connotes a much closer connection between speech and action than is present in this case. Defendants’ conduct here, asking associates to ask others to engage in prohibited conduct, is too far removed from the potential unlawful conduct to be considered incitement.

Plaintiffs’ claims based on sections 40, 40-c, 40-d, and 41 of the New York Civil Rights Law also fail. The Civil Rights Law, like the Human Rights Law, prohibits, among other things, denial of access to places of public accommodation and the denial of civil rights based on religion (Civil Rights Law §§40, 40-c). In addition, the Civil Rights Law establishes a private cause of action to recover a statutory penalty against those who violate these rights or who aid or incite such a violation (Civil Rights Law §41; see also, Civil Rights Law § 40-d).

For the same reasons that defendants’ conduct did not violate the similar provisions of Executive Law § 296, no violations of the Civil Rights Law have been alleged. Plaintiffs were not denied access to any place of public accommodation and the memorandum distributed by defendants cannot be said to have aided or incited such a violation.

For these reasons, summary judgment dismissing the complaint was properly granted in favor of defendants. Accordingly, the order of the Appellate Division should be affirmed, with costs.

Kaye, J.

(concurring). The Court finds no need to resolve the ambiguity in Executive Law § 296 (6) because it concludes that, under either construction, defendants’ acts did not violate the law. In my view, however, plaintiff’s allegations do state a cause of action under one of the two possible readings of the statute, and it is therefore necessary to resolve the ambiguity. As I would interpret the statute, defendants’ construction is the preferable one, which leads me to concur in dismissal of the complaint.

Executive Law § 296 (6) provides:

"It shall be an unlawful discriminatory practice for any person to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this article, or to attempt to do so.”

The difference centers on the meaning of the statutory words "or to attempt to do so.” Plaintiff contends that these words modify "aid, abet, incite, compel or coerce,” so that the law proscribes an attempt to incite discrimination. If plaintiff’s reading of the statute were correct, in my opinion the complaint would survive summary judgment: the dissemination of a letter asking rabbis to contact restaurants and catering halls to urge them to deny accommodations to Jews for Jesus could be considered an attempt to incite discrimination. In this respect I disagree with the majority.

Defendants would read the words "or to attempt to do so” to modify the immediately preceding clause — "the doing of any of the acts forbidden under this article.” Under defendants’ reading, the statute proscribes attempts to discriminate, not attempts to incite discrimination. While the majority’s disposition makes extended analysis of this point unnecessary, in my view defendants’ reading of the statute is the better one because of the language and structure of the subdivision. Moreover, where the choice must be made between proscribing attempts to incite discrimination and proscribing attempts to discriminate, I would conclude as a matter of statutory interpretation that the Legislature chose the latter.

It is a concern to me, however, in reading this statute that both interpretations are plausible, both attempts to discriminate and attempts to incite discrimination might, as a matter of policy, be considered important proscriptions, and because the statute is written in the disjunctive, only one of the two interpretations can be accepted. In that the majority has no occasion to reach the statutory interpretation issue in this case, a patent ambiguity in the statute necessarily remains unresolved, suggesting that it might be highly desirable for the Legislature to examine the provision and make clear whether it intended to proscribe attempts to "aid, abet, incite, compel or coerce,” or attempts to discriminate, or both.

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

Order affirmed, with costs.

       Plaintiffs also claimed that defendants had violated State and Federal constitutional provisions and a Federal statute, 42 USC § 1985 (3). Those claims are not pressed on the appeal to this Court.


author: Titone, J.

text:
    Uniformed Firefighters Association of Greater New York, Appellant, v City of New York et al., Respondents.
    Argued February 13, 1992;
    decided March 26, 1992

      POINTS OF COUNSEL

      John F. Mills, Carol L. O’Rourke and James A. Brown for appellant.
    The conflict within the State’s judicial departments over whether injunctive relief is available where a labor relations board has invoked jurisdiction should be resolved to permit injunctive relief to protect the jurisdiction of a labor relations board or where the labor relations board is not vested with the power to grant injunctive relief. (Matter of Caruso v Ward, 146 AD2d 486; Matter of Schenectady Police Benevolent Assn. v City of Schenectady, 158 AD2d 849; Buffalo Police Benevolent Assn. v City of Buffalo, 79 AD2d 186; Shay v 746 Broadway Corp., 96 Misc 2d 346; Survel Realty Corp. v Brooklyn Edison Co., 139 Misc 113; Grant Co. v Srogi, 52 NY2d 496; Albini v Solork Assocs., 37 AD2d 835.)

      O. Peter Sherwood, Corporation Counsel (John Hogrogian, Elizabeth S. Natrella, Marilyn Richter and Alan M. Schlesinger of counsel), for respondents.
    The Supreme Court correctly dismissed this action, in that it had no subject matter jurisdiction over an action which sought only a preliminary injunction pending the resolution of the administrative petitions pending before the Office of Collective Bargaining. Accordingly, the order of the court below should be affirmed. (Preston Corp. v Fabrication Enters., 68 NY2d 397; Bachman v Harrington, 184 NY 458; People v Asiatic Petroleum Corp., 45 AD2d 835; Maspeth Branch Realty v Waldbaum, Inc., 19 AD2d 833; Matter of Hart Is. Comm, v Koch, 150 AD2d 269, 75 NY2d 705; Matter of Caruso v Ward, 146 AD2d 486; Granelli v Granelli, 134 AD2d 930; Matter of Jefferson County Bd. of Supervisors v New York State Pub. Employment Relations Bd., 36 NY2d 534; Buffalo Police Benevolent Assn. v City of Buffalo, 79 AD2d 186; Matter of Schenectady Police Benevolent Assn. v City of Schenectady, 158 AD2d 849.)
   OPINION OF THE COURT

Titone, J.

At issue in this appeal is the power of the Supreme Court to grant injunctive relief as a means of preserving the status quo during the pendency of an improper labor practice proceeding before the New York City Board of Collective Bargaining. The courts below concluded that the Supreme Court has no such power, and we agree. Accordingly, plaintiffs complaint, which sought such relief, was properly dismissed.

The parties’ dispute began on November 26, 1990 with defendants’ issuance of an intradepartmental order changing the classification of a position within the New York City Fire Department from "full duty” to "light duty” effective January 1, 1991. Contending that the reclassification would have a negative practical impact on the safety of its members, plaintiff, the uniformed firefighters’ collective bargaining agent, filed petitions for relief with the New York City Board of Collective Bargaining (the Board), the agency charged with overseeing labor relations between the City and its employees (Administrative Code of City of New York § 12-309). Specifically, plaintiff alleged that the challenged order represented an improper labor practice and that it ought to be rescinded so that the matter could be resolved through the collective bargaining process (see, id,., §§ 12-306,12-307).

Shortly after filing its petitions, plaintiff commenced the present action in Supreme Court seeking an order enjoining defendants from implementing their new policy "pending a determination by [the Board] of the merits of [plaintiff’s] improper practice * * * and scope of bargaining petition[s].” Plaintiff, alleged that such relief was necessary because "[t]he [Board’s] processing of the * * * petitions can take many months,” implementation of the new policy was imminent and if injunctive relief were not granted, the safety of New York City’s firefighters would be placed in jeopardy, rendering any subsequent order of the Board "ineffectual.”

On the parties’ cross motions, the trial court dismissed the complaint, holding that it had no subject matter jurisdiction to entertain plaintiff’s request for relief. In support of that conclusion, the court relied on two recent Appellate Division decisions (Matter of Caruso v Ward, 146 AD2d 486; Buffalo Police Benevolent Assn. v City of Buffalo, 79 AD2d 186) and distinguished a third (Matter of Schenectady Police Benevolent Assn. v City of Schenectady, 158 AD2d 849). The Appellate Division affirmed the trial court’s ruling on the ground that there was no underlying action to support the issuance of a preliminary injunction. This Court subsequently granted defendants leave to take a further appeal.

Regardless of how its complaint is framed, the ultimate relief plaintiff seeks in this action is relief in the nature of a preliminary injunction. The purpose of plaintiff’s Supreme Court action is not to obtain a final adjudication on the merits of its dispute with defendants, but rather to preserve the status quo until that dispute can be resolved through the Board’s adjudicative process. Indeed, plaintiff’s aim could not be otherwise, since that administrative agency has primary jurisdiction over this dispute about whether plaintiff’s and its members’ rights under Administrative Code §§ 12-306 and 12-307 have been violated (see, Administrative Code §§ 12-308). Thus, the threshold question for us to resolve is whether the Supreme Court has the authority to grant such relief.

The most obvious source of authority for granting preliminary injunctive relief is CPLR 6301, the basic statutory vehicle for preserving the status quo during the pendency of civil litigation. That statute, however, provides no assistance to plaintiff in this case, because it authorizes the issuance of a preliminary injunction only within an "action,” i.e., a judicial suit brought to obtain an adjudication of the merits of, and a substantive remedy for, a particular dispute. Since there is no such judicial action pending between the parties here, a preliminary injunction pursuant to CPLR 6301 is unavailable (see, Buffalo Police Benevolent Assn. v City of Buffalo, supra, at 190).

It remains to be determined whether there is anything in the Supreme Court’s inherent powers that could serve as a source of authority for granting a preliminary injunction in connection with a pending administrative proceeding. As a general rule, the courts of this State have "no inherent absolute power to grant interlocutory injunctions” and may not do so in the absence of an authorizing statute (see, Bachman v Harrington, 184 NY 458, 462 [and cases cited therein]; Matter of Board of Educ. v Lewis, 67 Misc 2d 770; 7A Weinstein-Kom-Miller, NY Civ Prac 6301.05, at 63-13, 63-14). On a few rare occasions, courts have carved out exceptions to this general rule where necessary to protect the court’s jurisdiction or to prevent an action that would frustrate its final determination (Matter of Ohrbach v Kirkeby, 3 AD2d 269 [Breitel, J.]; accord, Ocorr v Lynn, 105 Misc 489, affd 190 App Div 927; see also, Woerishoffer v North Riv. Constr. Co., 99 NY 398). However, with one anomaly which will be discussed below, none have held that preliminary injunctive relief is available when the underlying dispute itself has not been, and will not be, placed before the court for final resolution.

The anomalous case, on which plaintiff relies, also arose in the context of a public sector labor dispute that was pending before an administrative agency (PERB) (Matter of Schenectady Police Benevolent Assn. v City of Schenectady, 158 AD2d 849, supra). In Schenectady, the court provisionally enjoined an employer from compelling an employee to take a lie detector test until PERB could resolve the merits of the underlying dispute over the lie detector test because the alternative — permitting the test to go forward — would have rendered PERB’s ultimate determination moot.

The circumstances in this case are significantly different, in that the activity plaintiff here seeks to restrain is a continuing one and, consequently, there is no risk of a mootness problem even if provisional relief is not afforded. However, even if that distinction did not exist, plaintiff could not prevail, since, for the reasons that follow, we decline to adopt the premise on which the Schenectady decision was based, i.e., that courts have "inherent authority” to issue preliminary injunctions either to protect the jurisdiction of an administrative agency adjudicating a dispute or to prevent actions which could render the agency’s determination moot.

First, because preliminary injunctions prevent the litigants from taking actions that they are otherwise legally entitled to take in advance of an adjudication on the merits, they should be issued cautiously and in accordance with appropriate procedural safeguards (see, e.g., Town of Porter v Chem-Trol Pollution Servs., 60 AD2d 987; Camardo v Board of Educ., 50 AD2d 1073; see also, McLaughlin, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C6301:1, at 209 [preliminary injunctions are “drastic” remedies]). For cases involving preliminary injunctions to be issued pursuant to CPLR 6301, the Legislature has provided for a number of specific safeguards (CPLR 6312 [b] [requiring the posting of an undertaking]; 6315 [establishing a procedure for assessment of “damages sustained * * * by reason of the preliminary injunction”]). Similarly, the Legislature has placed elaborate restrictions on the use of preliminary injunctions in private sector labor disputes (Labor Law § 807). Since such specific provisions would not apply to preliminary injunctions issued pursuant to the court’s “inherent authority,” the courts would have to undertake to fashion a new set of procedural rules and safeguards of their own to govern applications such as plaintiff’s. This would be an undesirable outcome, since, as we have noted in a different context, “establishing appropriate standards and procedures” is a task best left to statutes and rules rather than to ad hoc judicial decision-making (Matter of A. G. Ship Maintenance Corp. v Lezak, 69 NY2d 1, 6).

Second, and even more importantly, permitting courts to grant preliminary injunctive relief in public sector labor disputes pending before the Board or PERB would have the undesirable effect of embroiling the courts in the merits of such disputes, a matter best left to the “impartial body with expertise in th[at] area” (see, Matter of Levitt v Board of Collective Bargaining, 79 NY2d 120, 128; Matter of Board of Educ. v New York State Pub. Employment Relations Bd., 75 NY2d 660, 666). Such judicial involvement in the merits of the dispute would necessarily occur because a determination as to whether a preliminary injunction should be issued necessarily entails an inquiry into the likelihood of the applicant’s ultimate success on the merits (see, e.g., Aetna Ins. Co. v Capasso, 75 NY2d 860; see also, McLaughlin, op. cit., at 208). And, such involvement would be highly undesirable because it would plainly be inconsistent with the basic purposes of the doctrine of primary jurisdiction: to "co-ordinate the relationship between courts and administrative agencies” and to give the principal responsibility for adjudicating the merits of disputes requiring special competence to the agency with the necessary expertise (Capital Tel. Co. v Pattersonville Tel. Co., 56 NY2d 11, 22; cf., Flacke v Onondaga Landfill Sys., 69 NY2d 355, 362-363). Indeed, early judicial assessment of the merits in public sector labor disputes would be particularly inappropriate because such disputes often require "a balancing of the interests” and an evaluation of subtle questions for which "[n]o litmus test has yet been devised” in an area where the courts have little experience or expertise (Matter of Levitt v Board of Collective Bargaining, supra, at 127).

Finally, to the extent that the absence of a provisional remedy in these circumstances constitutes a potential gap in the law, we conclude that a legislative solution is preferable to one based on ill-defined notions of "inherent” judicial authority. In general, prescribing the procedures for practice in our courts has been considered a legislative function, except, perhaps, where "the inherent nature of the judicial function” is implicated (Matter of A. G. Ship Maintenance Corp. v Lezak, supra, at 4-5). Whether, as a matter of public policy, interim injunctive relief should be available in public sector labor disputes such as this one is a choice that ought to be made by the Legislature (cf., Labor Law § 807; see also, Buffalo Police Benevolent Assn. v City of Buffalo, supra, at 189-190).

Indeed, with respect to the specific question of interim judicial relief pending disposition of an administrative proceeding, the Legislature has in the past made specific provision therefor when it determined that such relief should, in fact, be available (see, Executive Law § 297 [6] [authorizing issuance of provisional relief where the respondent in a Human Rights Division proceeding "is doing * * * any act tending to render ineffectual any order the commissioner may (subsequently) enter”]). Significantly, consistent with the policies underlying the doctrine of primary jurisdiction, the above-cited provisions for judicial intervention contemplate that the application for relief will be made to the court by the agency charged with administering the relevant statutory provisions, rather than by the litigants themselves.

In sum, in the absence of some statutory authority, the courts have no power to issue preliminary injunctions to preserve the status quo during the pendency of a proceeding before the Board involving a dispute concerning an alleged improper labor practice or the scope of collective bargaining. Since no such statutory authority exists in this instance, plaintiffs complaint seeking such relief was properly dismissed.

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

Chief Judge Wachtler and Judges Simons, Kaye, Hancock, Jr., and Bellacosa concur; Judge Alexander taking no part. Order affirmed, with costs.

      . In fact, in an interim decision not issued until April 1991, the Board determined that it was unable to dispose of the controversy on the basis of the papers before it, since there were issues of fact that could only be resolved after a plenary hearing. Rejecting a specific request by plaintiff for immediate relief, the Board also concluded that it had no authority to direct the suspension of the disputed order during the pendency of the proceeding.

      . The Schenectady court relied, in part, on Buffalo Police Benevolent Assn. v City of Buffalo, supra), in which the court held that a preliminary injunction is not available to restrain a challenged labor practice during the pendency of an underlying PERB proceeding concerning that practice. The Buffalo court stated: "Where jurisdiction of a labor relations board has been invoked, no action in equity should be entertained which would disturb or interfere with the subject matter of the proceeding before or within the jurisdiction of the board, unless an ancillary action is necessary to protect the jurisdiction of the board * * *, or the board is not vested with the general power to grant the relief sought” (id., at 190 [emphasis added]). However, contrary to the Schenectady court’s conclusion, the italicized dictum from Buffalo, when viewed in context, does not provide authority for the proposition that there are circumstances in which a court may grant preliminary injunctive relief when no substantive aspects of the dispute have been placed before it. In positing that there are limited circumstances in which an "action in equity” may be entertained, the Buffalo court cited Matter of Zuckerman v Board of Educ. (44 NY2d 336) and Matter of Jefferson County Bd. of Supervisors v New York State Pub. Employment Relations Bd. (36 NY2d 534), both of which concerned the courts’ power to entertain separate plenary actions for substantive remedies that were beyond the scope of PERB’s statutory authority. The other case cited in Buffalo Domanick v Triboro Coach Corp. (259 App Div 657, 659-660), merely referred, again in dictum, to the availability of an "ancillary action” to protect "a res which may be endangered by the acts sought to be enjoined.” It is thus apparent that the exception to the prohibition against "actionfs] in equity” that the Buffalo court envisioned did not encompass such piecemeal litigation as a judicial action seeking only provisional procedural relief.