author: Simons, J.

text:
    [626 NE2d 912, 606 NYS2d 127]
    Albert Gordon, Respondent, v Eastern Railway Supply, Inc., et al., Appellants.
    Argued November 10, 1993;
    decided December 16, 1993

      POINTS OF COUNSEL

      Damon & Morey, Buffalo (Hedwig M. Auletta of counsel), and Harrison & Gruber (Iris B. Schifeling of counsel), for appellants.
    I. Eastern Railway Supply is not an owner of the structure nor a contractor and, therefore, had no duty under Labor Law § 240 (1). (Sweeting v Board of Coop. Educ. Servs., 83 AD2d 103, 56 NY2d 503; Defreece v Penny Bag, 137 AD2d 744; Mangiameli v Galante, 171 AD2d 162; Nowak v Smith & Mahoney, 110 AD2d 288; Cantarino v New York Zoological Socy., 162 AD2d 155; Celestine v City of New York, 59 NY2d 938; Kerr v Rochester Gas & Elec. Corp., 113 AD2d 412; Karaktin v Gordon Hillside Corp., 143 AD2d 637.) II. Section 240 (1) of the Labor Law is inapplicable because plaintiff was not injured by a hazard contemplated by the statute. (Rocovich v Consolidated Edison Co., 78 NY2d 509; Smith v New York State Elec. & Gas, 189 AD2d 19; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494.) III. Should this Court determine that the nature of the hazard is one against which section 240 (1) was designed to protect, this recalcitrant plaintiff should nevertheless be precluded from relying on that section. (Stolt v General Foods Corp., 81 NY2d 918; Hagins v State of New York, 81 NY2d 921.)

      Lewis & Lewis, P. C, Buffalo (Allan M. Lewis and Michael J. Skoney of counsel), for respondent.
    I. Eastern, a fee owner and lessor, is among the class of defendants subject to the nondelegable duties of Labor Law § 240 (1). (Koenig v Patrick Constr. Corp., 298 NY 313; Quigley v Thatcher, 207 NY 66; Celestine v City of New York, 86 AD2d 592, 59 NY2d 938; Sperber v Penn Cent. Corp., 150 AD2d 356; Kerr v Rochester Gas & Elec. Corp., 113 AD2d 412; Pouso v City of New York, 177 AD2d 560; Ampolini v Long Is. Light. Co., 186 AD2d 772; Mangiameli v Galante, 176 AD2d 162; Cantarino v New York Zoological Socy., 162 AD2d 155; Sweeting v Board of Coop. Educ. Servs., 83 AD2d 103, 56 NY2d 503.) II. Recent decisions of this Court have held workers injured in gravity related falls from inadequate safety devices are entitled to the special protections of Labor Law § 240 (1). (Bland v Manocherian, 66 NY2d 452; Zimmer v Chemung County Performing Arts, 65 NY2d 513; Rocovich v Consolidated Edison Co., 78 NY2d 509; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494.) III. Because plaintiff’s comparative negligence and/or assumption of risk by using a stepladder rather than the safer scaffold is not a defense under Labor Law § 240 (1), the order of the Court below must be affirmed. (Stolt v General Foods Corp., 81 NY2d 918; Hagins v State of New York, 81 NY2d 921; Zimmer v Chemung County Performing Arts, 65 NY2d 513.)
   OPINION OF THE COURT

Simons, J.

Plaintiff instituted this action against defendants Eastern Railway Supply, Inc. and GATX Capital Corp. seeking damages for injuries he sustained when he fell from a ladder while cleaning a railroad car. His appeal presents three questions: (1) is Eastern Railway Supply, Inc., the owner-lessor of the real property upon which an accident took place, subject to strict liability as an "owner” pursuant to Labor Law § 240 (1); (2) is plaintiff’s injury within the hazards contemplated under Labor Law § 240 (1); and (3) are defendants’ allegations that plaintiff was a recalcitrant worker sufficient to raise a triable issue of fact.

I.

On September 21, 1989, plaintiff, an employee of Ebenezer Railcar Services, Inc., was injured while cleaning the exterior of a railroad car with a hand-held sandblaster. GATX Capital Corp. owned the railroad car; Ebenezer, a wholly owned subsidiary of Eastern, was the contractor performing the work for GATX; and Eastern owned the "sandhouse” in which the cleaning was performed and the property upon which the "sandhouse” was situated. Eastern had leased the real property to Ebenezer. The accident occurred when plaintiff fell off a ladder leaning against the side of the railroad car while he was using the sandblaster.

The questions were presented on cross motions for summary judgment. Supreme Court denied the motions but the Appellate Division modified its order. After deciding that under Labor Law § 240 (1): the railroad car was a "structure”; Eastern was an "owner”; the accident fits within the falling worker or object test; and that plaintiff was not a recalcitrant worker, it granted judgment to plaintiff. One Justice dissented, concluding that defendant had raised a triable issue of fact on the recalcitrant worker issue. We agree with the Appellate Division majority and therefore affirm its order.

II.

Section 240 (1) of the Labor Law, often referred to as the "scaffold law”, provides that "[a]ll contractors and owners and their agents” engaged in cleaning a building or structure shall furnish or erect proper scaffolding, ladders and similar safety devices to protect employees in the performance of the work. The purpose of the section is to protect workers by placing the "ultimate responsibility” for worksite safety on the owner and general contractor, instead of the workers themselves (see, Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 500; Rocovich v Consolidated Edison Co., 78 NY2d 509, 513; 1969 NY Legis Ann, at 407). Thus, section 240 (1) imposes absolute liability on owners, contractors and their agents for any breach of the statutory duty which has proximately caused injury (Rocovich v Consolidated Edison Co., 78 NY2d, at 513, supra). The duty imposed is "nondelegable and * * * an owner is liable for a violation of the section even though the job was performed by an independent contractor over which it exercised no supervision or control” (id., at 513; see also, Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d, at 500, supra; Haimes v New York Tel. Co., 46 NY2d 132, 136-137). We have noted "that section 240 (1) ' "is to be construed as liberally as may be for the accomplishment of the purpose for which it was thus framed” ’ ” (Rocovich v Consolidated Edison Co., 78 NY2d, at 513, supra [quoting Quigley v Thatcher, 207 NY 66, 68]).

Eastern acknowledges that it owns the property where the accident took place but notes that it leased it to Ebenezer and that it neither contracted to have the work performed nor was the work performed for its benefit. Accordingly, it contends it cannot be liable as an "owner”.

In Celestine v City of New York (86 AD2d 592, 593, affd 59 NY2d 938 for reasons stated below), the defendant made a similar claim. In that case the owner contended that it was not within the statute because the property was subject to an easement it had granted to the City of New York and the New York City Transit Authority. The action involved a claim under Labor Law § 241 (6) which requires that owners and contractors provide their workers with "reasonable and adequate protection and safety”. We recognized that the statute imposes liability on "all owners”, without regard to encumbrances, and that the duty to provide safe working conditions is nondelegable regardless of control.

Section 240 (1) of the Labor Law, like section 241 (6), provides that the statutory duty is nondelegable. It does not require that the owner exercise supervision or control over the worksite before liability attaches (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d, at 501-502, supra). Although sections 240 and 241 had been construed before the 1969 amendment as requiring that an owner or general contractor actually exercise control or supervision before either could be held responsible, when the Legislature amended the Labor Law, as we noted in Haimes (supra), it referred to both sections and stated its purpose in redrafting them was to fix " 'ultimate responsibility for safety practices * * * where such responsibility actually belongs, on the owner and general contractor’ (NY Legis Ann, 1969, p 407)” (Haimes v New York Tel. Co., 46 NY2d, at 136, supra). Thus, the reasoning adopted in Celestine is controlling here. Liability rests upon the fact of ownership and whether Eastern had contracted for the work or benefit-ted from it are legally irrelevant.

Similarly unpersuasive is Eastern’s claim that since it was not the "owner” of the "structure”, i.e., the railroad car, it cannot be held liable. The property was let to Ebenezer to be used for cleaning and repairing railroad cars (see generally, Ampolini v Long Is. Light Co., 186 AD2d 772; Pouso v City of New York, 177 AD2d 560). The very presence of the structure on its property was the direct result of Eastern’s actions and established a sufficient nexus for liability to attach to it as an "owner”.

Given the legislative history of section 240 and our affirmance in Celestine, we hold that when the Legislature imposed the duties of section 240 (1) on "[a]ll * * * owners” it intended to include owners in fee even though the property might be leased to another.

III.

Defendants also contend that plaintiff was not injured by a hazard contemplated by the statute.

This accident happened after plaintiff climbed to the fourth or fifth step of the ladder and activated the trigger of the sandblaster. When he did so, the ladder tipped, causing him to fall. Plaintiff was not injured because he hit the ground but because in falling he lost control of the sandblaster and it sprayed him with sand. It continued to spray sand, apparently because of a defective trigger, after he hit the ground. Based on these facts, defendants maintain that any violation of section 240 (1) did not contribute to plaintiff’s injury but, rather, the injury was solely caused by the defective sandblaster.

In Rocovich v Consolidated Edison Co. (78 NY2d 509, 514, supra), we noted that section 240 was intended to apply where there are "risks related to elevation differentials”. Thus, we concluded that the hazards contemplated by section 240 (1) "are those related to the effects of gravity where protective devices are called for * * * because of a difference between the elevation level of the required work and a lower level” (id., at 514). We recently expanded upon Rocovich by stating that:

"Labor Law § 240 (1) was designed to prevent those types of accidents in which the scaffold * * * ladder or other protective device proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person. The right of recovery afforded by the statute does not extend to other types of harm, even if the harm in question was caused by an inadequate, malfunctioning or defectively designed scaffold” (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d, at 501, supra [emphasis in original]).

In Ross plaintiff alleged that he was required to work in an awkward position on scaffolding and that doing so resulted in serious back injury. We held he was not entitled to recovery under section 240 (1) because "however unsafe the * * * 'scaffold’ may have been * * * it cannot be said that the device did not serve the core objective of Labor Law § 240 (1)— preventing plaintiff from falling” (id., at 501; see also, Smith v New York State Elec. & Gas Corp., 189 AD2d 19, revd 82 NY2d 781).

In this case, plaintiff was working on a ladder and thus was subject to an "elevation-related risk”. The ladder did not prevent plaintiff from falling; thus the "core” objective of section 240 (1) was not met. Accordingly, plaintiff is within the protection of the statute if his injury was proximately caused by the risk, i.e., defendant’s act or failure to act as the statute requires "was a substantial cause of the events which produced the injury” (Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315).

Defendants maintain that plaintiff’s injury was caused by a defective sandblaster, not their failure to provide him with a sufficiently safe scaffold or ladder. In essence, they contend that the sandblaster was a superseding cause of plaintiff’s injuries, completely independent of defendants’ violation of the statute.

Defendants are liable for all normal and foreseeable consequences of their acts. To establish a prima facie case plaintiff need not demonstrate that the precise manner in which the accident happened or the injuries occurred was foreseeable; it is sufficient that he demonstrate that the risk of some injury from defendants’ conduct was foreseeable. An independent intervening act may constitute a superseding cause, and be sufficient to relieve a defendant of liability, if it is of such an extraordinary nature or so attenuated from the defendants’ conduct that responsibility for the injury should not reasonably be attributed to them (see, Kush v City of Buffalo, 59 NY2d 26, 33; Derdiarian v Felix Contr. Corp., supra, at 316).

In this case, defendants’ failure to provide plaintiff with a safe scaffold or ladder while he sandblasted the railroad car was a substantial cause leading to his fall and the injuries he sustained. Injury was a foreseeable result of cleaning railroad cars from an elevated position, and a fall and injury occasioned by an allegedly defective sandblaster used in the process is not of such an "extraordinary nature” that defendants’ responsibility for the injury should be severed. If it were, recovery under section 240 (1) would be foreclosed in every case in which a worker was using a tool while working in an elevated position, fell and was injured by the tool.

IV.

Finally, defendants contend that there are triable issues of fact concerning whether or not plaintiff was a recalcitrant worker to whom it owed no continuing duty of supervision.

While it is well settled that an injured worker’s contributory negligence is not a defense to a Labor Law § 240 (1) claim, the "recalcitrant worker” defense may allow a defendant to escape liability under section 240 (1) (Stolt v General Foods Corp., 81 NY2d 918, 920; Smith v Hooker Chems. & Plastics Corp., 89 AD2d 361, appeal dismissed 58 NY2d 824). The defense requires a showing that the injured worker refused to use the safety devices that were provided by the owner or employer (Stolt v General Foods Corp., supra).

Defendants’ claim here rests on their contention that plaintiff was repeatedly instructed to use a scaffold, not a ladder, when sandblasting railroad cars. We have held, however, that an instruction by an employer or owner to avoid using unsafe equipment or engaging in unsafe practices is not a "safety device” in the sense that plaintiff’s failure to comply with the instruction is equivalent to refusing to use available, safe and appropriate equipment (Stolt v General Foods Corp., supra; see also, Hagins v State of New York, 81 NY2d 921, 922-923). Evidence of such instructions does not, by itself, create an issue of fact sufficient to support a recalcitrant worker defense.

Accordingly, the judgment of Supreme Court appealed from and the order of the Appellate Division brought up for review should be affirmed, with costs.

Chief Judge Kaye and Judges Titone, Bellacosa, Smith and Levine concur; Judge Hancock, Jr., taking no part.

Judgment of Supreme Court appealed from and order of the Appellate Division brought up for review affirmed, with costs.

       The parties have conceded this point and the issue of whether a mobile railroad car may be classified as a "structure” under Labor Law § 240 (1) is not before this Court.


source: Caselaw Access Project

author: Hancock, Jr., J.

license: Public Domain

text:
    [626 NE2d 917, 606 NYS2d 132]
    Voorheesville Rod and Gun Club, Inc., Respondent, v E. W. Tompkins Company, Inc., Appellant.
    Argued November 9, 1993;
    decided December 20, 1993

      POINTS OF COUNSEL

      Feeney, Centi and Mackey, Albany (Daniel J Centi of counsel), for appellant.
    I. The determination of the Court below contains unwarranted construction of the contract. (Fiore v Fiore, 46 NY2d 971; Armstrong Props. v Glasso, 141 AD2d 687; Rowe v Great Atl. & Pac. Tea Co., 46 NY2d 62.) II. The decision below is contrary to existing law on marketability of titles. (Lincoln Trust Co. v Williams Bldg. Corp., 227 NY 313; Stern v Gepo Realty Corp., 289 NY 274; Rhodes v Astro-Pac, Inc., 41 NY2d 919; Grace v Nappa, 46 NY2d 560; Regan v Lame, 40 NY2d 475; Rotuba Extruders v Ceppos, 46 NY2d 223; Falk v Goodman, 7 NY2d 87.) III. The conveyance herein was not subject to the subdivision regulations of the Village of Voorheesville. (Freundlich v Town Bd., 52 NY2d 921; Matter of Golden v Planning Bd., 30 NY2d 359; Matter of Charles v Diamond, 41 NY2d 318.) IV. Plaintiff-respondent breached the contract by refusing to close. (Ludlam Stead v Rezza, 147 AD2d 457.)

      Williams & Clobridge, P. C, Albany (Kurt David Clobridge of counsel), for respondent.
    I. The courts below were correct in their finding that where a seller of real property contracts to convey marketable title, then said seller is under an affirmative duty to undertake such action as may be required to convey same. (Burwell v Jackson, 9 NY 535; Matter of Brous v Smith, 304 NY 164; Village of Lynbrook v Cadoo, 252 NY 308; Matter of Fullam v Kronman, 31 AD2d 947, 36 NY2d 725; Adams v Incorporated Vil. of Westhampton Beach, 71 Misc 2d 579; Pamerqua Realty Corp. v Dollar Serv. Corp., 93 AD2d 249; Bronen v Marmer, 27 Misc 2d 868; Stern v Gepo Realty Corp., 289 NY 274; Mokar Props. Corp. v Hall, 6 AD2d 536; Shepard v Spring Hollow, 87 AD2d 126.) II. The decisions below comport with existing law on marketability of title. (Vought v Williams, 120 NY 253; Dyker Meadow Land & Improvement Co. v Cook, 159 NY 6; Freundlich v Town Bd., 73 AD2d 684, 52 NY2d 921; Stokes v Stokes, 155 NY 581; Smith v Browning, 225 NY 358; Green Point Sav. Bank v Litas Investing Co., 124 AD2d 555, 70 NY2d 693; Matter of Brous v Smith, 304 NY 164.) III. The conveyance herein was subject to the subdivision regulations of the Village of Voorheesville. (Freundlich v Town Bd., 73 AD2d 684; Delaware Midland Corp. v Incorporated Vil. of Westhampton Beach, 79 Misc 2d 438, 48 AD2d 681, 39 NY2d 1029; Suffolk County Bldrs. Assn. v Town of Islip, 48 AD2d 692, 39 NY2d 1031; Matter of Esposito v Town of Fulton Planning Bd., 188 AD2d 779; Incorporated Vil. of Nissequogue v Meixsell, 55 Misc 2d 1069.) IV. Defendant’s inability to convey title to the real property at issue justified plaintiff’s refusal to tender performance. (Iannelli Bros. v Muscarella, 24 NY2d 779; Ballan v Potter, 251 NY 224.)
   OPINION OF THE COURT

Hancock, Jr., J.

The first issue in this case is whether the subdivision regulations of the Village of Voorheesville apply to a conveyance of a portion of a parcel of land where it is intended by the parties to the transaction that the lands shall remain undeveloped. If the regulations apply, then the primary issue is whether defendant seller’s failure to seek subdivision approval before the transfer renders the title unmarketable. We conclude that the Village’s subdivision regulations apply to this sale of property. But we further hold that defendant’s refusal to seek the subdivision approval here does not cause the title to be unmarketable. Because no provision in the contract requires defendant to obtain subdivision approval and the only basis for plaintiffs specific performance claim is its failed assertion of unmarketable title, we reverse, deny plaintiffs summary judgment motion for specific performance, and dismiss the complaint.

I

On January 15, 1986, plaintiff Voorheesville Rod & Gun Club, Inc., signed a standard preprinted contract with defendant E. W. Tompkins Company, Inc., to purchase a portion of defendant’s property located in the Village of Voorheesville, Albany County, for $38,000. The contract specified that the property would be conveyed by warranty deed subject to all covenants, conditions, restrictions and easements of record, and also to zoning and environmental protection laws, "provided that this does not render the title to the premises unmarketable.” The property to be conveyed consisted of 24.534 acres of undeveloped land used for recreational purposes. The parties agree that plaintiff buyer did not intend to change the existing condition or use of the property after the purchase.

On August 23, 1986, prior to the revised closing date, plaintiffs attorney sent defendant’s attorney a copy of the Village of Voorheesville’s subdivision regulations and requested that defendant comply with them. Defendant did not seek subdivision approval. Defendant sent plaintiff a time-of-the-essence notice, demanded a closing on August 29, 1986, and notified plaintiff that if it did not close, that would be considered an anticipatory breach of contract. When plaintiff failed to close, defendant canceled the contract and returned plaintiffs $5,000 deposit. On September 4th, plaintiff informed defendant that the cancellation was unacceptable because defendant’s failure to obtain subdivision approval had rendered the title unmarketable and, for that reason, plaintiffs financing bank was unwilling to close. Plaintiff then sought the requisite approval from the Village of Voorheesville Planning Commission. The Commission denied the application, stating that the subdivision regulations required that the application be submitted "by the [property] owner or an agent of the owner.”

Plaintiff commenced this action on September 12, 1986, for specific performance or damages for breach of contract and then moved for partial summary judgment seeking specific performance. Supreme Court ordered that the contract be specifically performed by defendant and directed that defendant apply to the Village for subdivision approval and close on the subject property within a reasonable time after approval. The court held that defendant’s failure to obtain subdivision approval made the title unmarketable and relieved plaintiff from closing until the approval was obtained (Voorheesville Rod & Gun Club v Tompkins Co., 141 Misc 2d 38).

The Appellate Division affirmed, stating that the sale of a portion of defendant’s real property subjected the sale to the subdivision regulations of the Village of Voorheesville, even though development of the land was not then contemplated. The Court concluded that defendant’s refusal to obtain subdivision approval rendered the title unmarketable, particularly because it appeared that plaintiff "would be 'plagued by zoning problems’ ” (Voorheesville Rod & Gun Club v Tompkins Co., 158 AD2d 789, 791).

Thereafter, plaintiff moved in Supreme Court for an order compelling defendant to file the subdivision application and convey the property. Noting that the subdivision application had been made and approved, Supreme Court directed defendant to transfer the property. Then the parties stipulated to discontinue all causes of action interposed in the pleadings except plaintiffs claim for specific performance of the contract. This Court granted defendant leave to appeal from the stipulation, deemed a judgment, bringing up for review the prior nonfinal Appellate Division order pursuant to CPLR 5602 (a) (1) (ii).

II

The preliminary issue is whether the Village’s subdivision regulations apply at all under the circumstances presented. If they do not, that is the end of the matter and we do not reach the separate question of whether defendant’s refusal to obtain subdivision approval rendered the title to the property unmarketable. Thus, we must first interpret the Village’s Land Subdivision Regulations, which provide in pertinent part:

"Article II: Definitions
* * *
"Subdivision: means the division of any parcel of land into two or more lots, blocks, or sites, with or without streets or highways and includes re-subdivision.
* * *
"Article III: Procedure in Filing Subdivision Applications
"Whenever any subdivision of land is proposed to be made, and before any contract for the sale of, or any offer to sell any lots in such subdivision or any part thereof is made, and before any permit for the erection of a structure in such proposed subdivision shall be granted, the subdivider or his duly authorized agent shall apply in writing for approval of such proposed subdivision.”

Defendant maintains that, pursuant to article III, subdivision approval is required only in instances where building or development is contemplated; and because no development of the subject property was intended, the regulations do not apply in this case. This claim is not persuasive. It is undisputed that defendant was selling only a portion of its property; therefore, the subject property transfer constituted a subdivision within the meaning of article II of the regulations. Article III clearly requires subdivision approval "[w]henever any subdivision of land is proposed” and before any sales contract is executed. Contrary to defendant’s interpretation, merely because article III requires subdivision approval, inter alla, "before any permit for the erection of a structure in such proposed subdivision shall be granted”, it does not follow that subdivision approval is necessary only when a building permit will be sought (see, Matter of Esposito v Town of Fulton Planning Bd., 188 AD2d 779). Indeed, defendant’s interpretation would effectively limit the purpose of the regulations to controlling building on individual parcels of property. Such an interpretation is contrary to the Village’s broader policy, as stated in article I of the regulations, to "consider land Subdivision Plats as part of a plan for the orderly, efficient and economical development of the Village”, which means, among other things, that "all proposed lots shall be so laid out and of such size as to be in harmony with the development pattern of the neighboring properties”. Clearly, the stated policy of the regulations is that subdivision approval should be acquired for any proposed subdivision, not just those to be immediately developed.

Ill

Given that the subdivision regulations apply, we turn to the main issue: whether lack of subdivision approval constitutes a cloud on the title which renders the title unmarketable. It is undisputed that the contract is silent as to the specific issue of subdivision approval. Thus nothing in the contract imposes upon defendant the affirmative obligation of obtaining subdivision approval. Rather, paragraph 4 of the contract, entitled "Existing Conditions”, provides that the property would be conveyed by warranty deed

"subject to all covenants, conditions, restrictions and easements of record. Subject also to zoning and environmental protection laws; any existing tenancies; * * * and any state of facts which an inspection and/or accurate survey may show, provided that this does not render the title to the premises unmarketable” (emphasis added).

As stated, plaintiff was to purchase the property subject to zoning laws, which are closely related to subdivision regulations (see generally, Matter of Golden v Planning Bd., 30 NY2d 359, 372; 2 Anderson, New York Zoning Law and Practice § 21.02 [3d ed]). This requirement conforms to the well-settled rule that "where a person agrees to purchase real estate, which, at the time, is restricted by laws or ordinances, he will be deemed to have entered into the contract subject to the same [and] [h]e cannot thereafter be heard to object to taking the title because of such restrictions” (Lincoln Trust Co. v Williams Bldg. Corp., 229 NY 313, 318; see, Pamerqua Realty Corp. v Dollar Serv. Corp., 93 AD2d 249, 251; 3 Warren’s Weed, New York Real Property, Marketability of Title, § 8.07 [4th ed]; Annotation, Zoning or Other Public Restrictions On the Use of Property as Affecting Rights and Remedies of Parties to Contract for the Sale Thereof, §§ 3, 5 [b], 39 ALR3d 362, 370, 376).

The only limitation that the contract places upon plaintiffs duty to purchase the property subject to zoning laws is when the application of such laws would render title to the property unmarketable. It was not necessary for the contract to specify that a marketable title was required because, in the absence of a stipulation to the contrary, it is presumed that a marketable title is to be conveyed (see, Regan v Lanze, 40 NY2d 475, 482; Laba v Carey, 29 NY2d 302, 311; 3 Warren’s Weed, op. cit, Marketability of Title, § 1.01). Accordingly, the issue reduces to whether the lack of subdivision approval constitutes a defect in the title which makes it unmarketable.

The test of the marketability of a title is "whether there is an objection thereto such as would interfere with a sale or with the market value of the property” (Regan v Lanze, 40 NY2d 475, 481, supra). A marketable title is "a title free from reasonable doubt, but not from every doubt” (id., at 482). We have said that a "purchaser ought not to be compelled to take property, the possession or title of which he may be obliged to defend by litigation. He should have a title that will enable him to hold his land free from probable claim by another, and one which, if he wishes to sell, would be reasonably free from any doubt which would interfere with its market value” (Dyker Meadow Land & Improvement Co. v Cook, 159 NY 6, 15). As can be seen from these definitions, marketability of title is concerned with impairments on title to a property, i.e., the right to unencumbered ownership and possession, not with legal public regulation of the use of the property (see, Lincoln Trust Co. v Williams Bldg. Corp., 229 NY 313, 318, supra; 5A Warren’s Weed, op. cit., Title, § 1.01; compare, 3 Warren’s Weed, op. cit., Marketability of Title, §§ 1.01, 2.01, with § 8.07). Accordingly, a zoning ordinance, existing at the time of the contract, which regulates only the use of the property, generally is not an encumbrance making the title unmarketable (see, Lincoln Trust, supra, at 318; Anderson v Steinway & Sons, 178 App Div 507, 513, affd 221 NY 639; Pamerqua Realty Corp. v Dollar Serv. Corp., 93 AD2d 249, 251, supra; 3 Warren’s Weed, op. cit., Marketability of Title, § 8.07; 1 Rasch, New York Law and Practice of Real Property § 22.61 [2d ed]).

Where, however, a contract expressly provides that the seller warrants and represents that, upon purchase, the property will not be in violation of any zoning ordinance, the purchaser "is entitled to demand that the vendor rectify the same or return any moneys paid on account” (Pamerqua Realty Corp., 93 AD2d 249, 251, supra; see, Artstrong Homes v Vasa, 23 Misc 2d 608 [Meyer, J.]; 3 Warren’s Weed, op. cit., Marketability of Title, § 8.07; 1 Rasch, op. cit., § 22.61). Contrary to plaintiff’s claim, the present case does not fall within this exception to the general rule. Defendant did not warrant or represent that it would obtain subdivision approval; rather, plaintiff agreed to purchase the property subject to the zoning laws. In effect, plaintiff is attempting to add a term to the contract after the deal has been made. Thus, although defendant’s failure to obtain subdivision approval was a violation of the regulations which were in effect when the parties contracted, such violation did not make the title unmarketable (see, Lincoln Trust, supra, at 318; Pamerqua Realty Corp., 93 AD2d 249, 251, supra; 3 Warren’s Weed, op. cit, Marketability of Title, § 8.07; 1 Rasch, op. cit., § 22.61).

We recognize, as noted by the courts below, the increasing sophistication of municipalities regarding subdivision regulation and their ability to prevent the purchaser from developing property as allowed by the zoning laws until the requisite subdivision approval is obtained (see, Delaware Midland Corp. v Incorporated Vil. of Westhampton Beach, 79 Misc 2d 438, 445, affd on opn below 48 AD2d 681, affd on opn at Sup Ct 39 NY2d 1029 ["Implicit in the power to control subdivisions is the authority to prevent illegal development by denial of permission to build”]; see also, Village Law § 7-714; Town Law § 268; Matter of Golden v Planning Bd., 30 NY2d 359, 372, supra; cf., Freundlich v Town Bd., 73 AD2d 684, affd 52 NY2d 921 [property may not be sold pursuant to invalid sales map without approval of planning board]). The solution for avoiding such problems, however, is not for the courts to expand the conditions which render title unmarketable, thereby altering the concept of marketability of title, but for the parties to real estate contracts to include specific provisions dealing with the duty to obtain subdivision approval.

Accordingly, the judgment appealed from and the order of the Appellate Division brought up for review should be reversed, with costs, plaintiff’s motion for partial summary judgment should be denied, and defendant’s cross motion for summary judgment dismissing the complaint should be granted.

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

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

      . To the extent that plaintiff now claims — distinct from its argument that lack of subdivision approval renders the title unmarketable — that defendant has an implied good-faith contractual duty to obtain subdivision approval as a precondition of performing the contract, this issue was not raised by plaintiff in its summary judgment motion papers and thus is not preserved for our review.
      We also note that this is not a case where the seller is seeking specific performance of a contract to compel a buyer to purchase property lacking subdivision approval or where a municipality is trying to block such a conveyance, and we do not address such situations here.

      . Since it is undisputed that plaintiff did not intend to develop or further partition the parcel but only to continue its recreational use, there is no basis for any claim that the property would be "plagued by zoning problems”.


author: Smith, J.

text:
    [626 NE2d 922, 606 NYS2d 137]
    In the Matter of the Estate of Carroll Donner, Deceased. Squire N. Bozorth et al., Appellants; Mills College, Respondent; Robert Abrams, as Attorney-General of the State of New York, Respondent.
    Argued November 10, 1993;
    decided December 20, 1993

      POINTS OF COUNSEL

      Milbank, Tweed, Hadley & McCloy, New York City (Charles G. Berry and Edward J. Reilly of counsel), for Squire N. Bozorth, appellant.
    I. The Surrogate abused her discretion in imposing a duty of investment management on the executors with respect to the trust assets before they were distributed to the estate. (Matter of Miller, 231 App Div 587, 257 NY 349; Matter of Engel, 140 Misc 276; Matter of Heubach, 165 Misc 196; Matter of Thomas, 254 NY 292; Matter of Townsend, 23 Misc 2d 70; Matter of Valionis, 176 Misc 110.) II. The Surrogate abused her discretion in misapplying the prudent person rule for investment management by fiduciaries. (Matter of Cowles, 22 AD2d 365, 17 NY2d 567; Matter of Weston, 91 NY 502; United States Trust Co. v Colgate, 189 App Div 75; Stark v United States Trust Co., 445 F Supp 670; Matter of Clark, 257 NY 132; Matter of Hahn, 93 AD2d 583, 62 NY2d 821; Matter of Bank of N. Y., 35 NY2d 512; Matter of Goldstick, 177 AD2d 225; Matter of Winburn, 140 Misc 18.) III. The Surrogate abused her discretion in denying the executors one of their two statutory commissions. (Chemical Bank & Trust Co. v Ott, 248 App Div 406, 274 NY 572; Matter of Shurtleff, 206 Misc 255, 285 App Div 988.)

      Richard I. Wolff, New York City, for Duncan Miller, appellant.
    I. The coexecutors acted in a prudent and diligent manner in the care and management of the assets of the estate. (Costello v Costello, 209 NY 252; Matter of Bank of N. Y., 35 NY2d 512; Matter of Clark, 257 NY 132; Purdy v Lynch, 145 NY 462; Matter of Hahn, 93 AD2d 583, 62 NY2d 821; Matter of Cowles, 22 AD2d 365, 17 NY2d 567; Matter of Newhoff, 107 Misc 2d 589, 107 AD2d 417, 66 NY2d 605; McCabe v Fowler, 84 NY 314; Matter of Cady, 211 App Div 373; Matter of Wood, 177 AD2d 161.) II. It was a misapplication of the law to surcharge the coexecutors with investment losses using date-of-death values. (Matter of Frame, 245 App Div 675; Public Serv. Co. v Chase Manhattan Bank, 577 F Supp 92; Matter of Mendleson, 46 Misc 2d 960.) III. Mr. Miller is not personally responsible for the investment advisor fees paid by Wilmington Trust Company to the Donner corporation, which then paid over a substantial portion of the fees to McConnell & Miller. (Matter of Thomas, 254 NY 292; Deering v Pierce, 149 App Div 10; Matter of Tuttle, 4 NY2d 159; Puma Indus. Consulting v Daal Assocs., 808 F2d 982; Billy v Consolidated Mach. Tool Corp., 51 NY2d 152, 52 NY2d 829.) IV. It would be a waste of estate assets and a violation of the doctrine of collateral estoppel for the coexecutors to be required to pursue a lawsuit in Delaware in an ill-advised attempt to recover the predeath losses incurred in the decedent’s 1920 trust and 1932 trust. (Matter of Rosenthal, 269 App Div 139; Matter of Owen, 71 Misc 2d 179; Matter of Schwarzkopf, 6 Misc 2d 566; Matter of Shafran, 143 Mise 754; Matter of Fantl, 249 App Div 392; D’Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d 659; Hauser v Western Group Nurseries, 767 F Supp 475; Polur v Raffe, 912 F2d 52; Skydell v Gelb, 177 AD2d 437; Young v GSL Enters., 170 AD2d 401.) V. The coexecutors are entitled to their full statutory commissions.

      Sullivan & Cromwell, New York City (Theodore O. Rogers, Jr., and Basil P. Zirinis, III, of counsel), for Mills College, respondent.
    I. There was no abuse of discretion in denying commissions based on the extensive record of behavior long condemned by the courts. (Matter of Schaich, 55 AD2d 914; Matter of Schinasi, 3 NY2d 22; Meinhard v Salmon, 249 NY 458; Matter of Rothko, 84 Misc 2d 830, 56 AD2d 499, 43 NY2d 305; Hoopes v Carota, 74 NY2d 716; Matter of Nelson, 176 AD2d 882; Matter of Baker, 139 Misc 2d 573.) II. The surcharge for losses, based on the factual findings that the executors failed to act prudently to preserve assets within their control, was not an abuse of discretion. (Matter of Yarm,
      119 AD2d 754; Matter of Dakin, 58 Misc 2d 736; Matter of Rugoff, 8 Misc 2d 1052; Matter of Clarke, 12 NY2d 183; Matter of Hubbell, 302 NY 246; Matter of Wood, 177 AD2d 161; United States Trust Co. v Colgate, 189 App Div 75; Matter of Cuddeback, 168 Misc 698.)

      Robert Abrams, Attorney-General, New York City (David G. Samuels, Jerry Boone and Pamela A. Mann of counsel), respondent pro se.

    I. The executors were properly surcharged for failing to act promptly and prudently to preserve estate assets. (Matter of Yarm, 119 AD2d 754.) II. The executors violated their duty to disclose crucial facts as to their conflicting roles and interests. (Matter of Schinasi, 3 NY2d 22; Matter of Kessler, 173 Misc 716; Matter of Rothko, 84 Misc 2d 830, 56 AD2d 499, 43 NY2d 305; Matter of Schaich, 55 AD2d 914; Matter of Bloomingdale, 172 Misc 218; Matter of Israel, 64 Misc 2d 1035.) III. The executors improperly paid postdeath investment compensation to Mr. Miller’s firm. (Matter of Popp, 123 App Div 2; Matter of Badenhausen, 38 Misc 2d 698.)
   OPINION OF THE COURT

Smith, J.

The central issue in this case is whether, given the executors’ role and responsibility with respect to the assets of the estate, Surrogate’s Court abused its discretion in concluding that they breached their fiduciary duty, in imposing a surcharge for investment losses incurred by the estate on the coexecutors and in reducing the commission of the coexecutors. We conclude that there was no abuse of discretion.

The coexecutors, who were paid handsomely for their services before and after the decedent’s death, failed to concern themselves as special experts with the investments through a period of precipitous decline. They were invested with personal and professional knowledge that should have guided their actions in fulfillment of fiduciary duties. They failed to act prudently within the framework of the obligation to preserve assets under the circumstances of this case and thus violated their fiduciary responsibilities to this estate.

Carroll Donner, a resident of New York City, died on February 4, 1984 leaving a gross estate of more than $12.5 million. Her last will, dated May 27, 1983, was admitted to probate. By her will, the decedent bequeathed more than $2 million to several individuals and the Santa Barbara Museum, and the residuary to her alma mater, Mills College, in Oakland, California. The decedent appointed her longtime attorney and drafter of the will, Squire N. Bozorth, and her longtime, personal financial advisor, Duncan Miller, as coexecutors. Bozorth also served as attorney for Miller in Miller’s role as executor of the estate. The coexecutors received preliminary letters testamentary for the estate on March 26, 1984 and full letters testamentary on May 22, 1984.

The major asset of the decedent’s estate was an inter vivas trust, which had been created on November 20, 1920 by her grandfather, of which Wilmington Trust Company (WTC), a Delaware corporation, was the trustee. The decedent was the income beneficiary of the trust and had a general testamentary power of authority over the principal. By her will, the decedent exercised that power of authority "by appointing all the property subject thereto to [her] Executors to be blended with [her] own estate and to pass as a part thereof.” On the date of her death, the 1920 trust had a value of $8,224,662. The decedent’s assets also included another trust, created by her grandfather on March 16, 1932, of which WTC also acted as the trustee. The 1932 trust instrument provided that the decedent would receive the income from the trust during her life, and that on her death three quarters of the trust principal was to pass to her brother. The decedent had testamentary power of appointment over the remaining one quarter of the principal, and she exercised that power by "appointing] the property subject thereto to [her] Executors, to be applied by them towards the payment of [estate, inheritance, legacy, succession or transfer] taxes.” At the time of the decedent’s death, approximately 80% of the 1920 trust and the 1932 trust consisted of interest-sensitive securities.

In addition to being the financial advisor for the decedent during her lifetime, since 1965, coexecutor Miller had unlimited powers to direct the purchase and sale of the assets of the 1920 and 1932 trusts. Furthermore, although WTC, as trustee of the two trusts, charged full services and fees, coexecutor Miller acted as investment director and received compensation from WTC for that service. After the decedent’s death, coexecutor Miller continued to receive compensation for his role as investment director of the trusts.

After the decedent’s death, the value of the securities in the trusts declined significantly due to a downward turn in the stock market. In addition, the decedent’s brother contested the decedent’s right to the property in the trusts. WTC commenced two separate proceedings in the Delaware Court of Chancery for instructions regarding the distribution of the property. By orders issued in July and August 1985, the court determined that the coexecutors were entitled to the entire principal of the 1920 trust and to one eighth of the value of the minority accumulation fund of the 1932 trust, and ordered WTC to provide the coexecutors with accountings for both trusts for the period from 1965 through 1984. Pursuant to the court orders, the coexecutors proceeded to collect the assets of the trust. WTC distributed the balance of the 1932 trust but stated that it would retain at least $2 million of the 1920 trust unless and until the coexecutors provided it with general releases from liability for any misconduct for both trusts. WTC also continued to pay itself commissions and administrative expenses on the $2 million it retained.

Mills College, as residuary legatee of the estate, successfully obtained a reduction in the amount retained by WTC from $2 million to $1 million. WTC distributed the $1 million to the coexecutors who then transmitted it to Mills College.

WTC also provided the coexecutors with accountings for the 1920 and 1932 trusts pursuant to the court orders. On May 9, 1988, the coexecutors also filed an accounting of the estate, from the date of the decedent’s death to September 30, 1987. Appended to the coexecutors’ accounting were schedules, which included the accountings of WTC. The coexecutors asserted that the accountings of WTC were "in order.” The coexecutors’ accounting reflected combined principal and income on hand of $1,968,570.56 and calculated gains and losses against "inventory values.” The coexecutors forwarded copies of their accounting to the Attorney-General and Mills College (the objectors). It was later determined that the "inventory values” were the values of the assets in the estate as of 1985, not as of the date of death, and that the estate had incurred substantially more losses during the period following decedent’s death until 1985 than were reflected in the accounting. Using date-of-death values, the objectors calculated that there had been more than $786,000 in losses on the sale of the assets in the estate.

Thus, in August 1989, the Attorney-General and Mills College filed numerous objections to the accounting of the coexecutors. The objectors challenged, inter alla, (1) the failure of the coexecutors to collect the $1 million in estate funds that was retained by WTC, (2) certain expenditures by the coexecutors, including fees paid from estate funds for moving two sculptures, payment to counsel of WTC, fees paid by the estate for payroll services, and disbursements paid by the estate to two law firms, (3) compensation paid by WTC from the assets of the trusts to coexecutor Miller for his role as investment director, (4) losses incurred by the estate resulting from sale of assets by the coexecutors after the decedent’s death, and (5) commissions paid to the coexecutors in excess of those authorized by the trust instruments. Exhibit 89 of the objections was a schedule of the individual assets in the trusts, the date-of-death value of each asset, the date of sale, and the net proceeds from the sales. The objectors sought $5,991,587.40 in surcharges, plus interest, costs and allowances.

During discovery, the objectors uncovered memoranda that had been prepared by one of coexecutor Bozorth’s senior associates indicating, inter alla, substantial losses in the securities held. The fact that the memoranda were prepared for but never delivered to the Attorney-General and Mills College indicates, as the Surrogate found, an attempt to withhold information. The memoranda stated, inter alla, that (1) the trust accountings with WTC were "directed accountings,” i.e., WTC did not have investment responsibilities because Miller, as financial adviser, directed the investments, (2) before the death of the decedent, the 1920 trust suffered total losses of more $3.7 million, among which were 13 securities, each of which experienced a 100% or virtual 100% loss, causing a total loss of $271,130.45 on those securities, (3) the commissions paid to WTC exceeded the commissions initially authorized by the trust instrument, (4) since the fair market values for the assets in the trust at the beginning and end of the accounting periods were not used in the accountings submitted by WTC, the over-all gains and losses during that period could not be fully evaluated, and (5) the objectors had standing to challenge the payment of Federal income taxes from the principal of the trusts since, if the money had been retained in the principal, it would have passed to Mills College.

After a trial, Surrogate’s Court sustained the objections to the accounting, reduced the commission of the coexecutors and surcharged them for various acts of negligence in collecting the assets of the estate. The court, inter alla, (1) limited the coexecutors to a single commission, (2) directed the coexecutors to refund to the estate, with interest from the date of payment, any advance payment of commissions which exceeded the amounts authorized by the trust instruments, (3) ordered the coexecutors to repay to the estate any disbursements improperly paid to certain law firms, (4) directed the coexecutors to repay to the estate the costs of moving two sculptures and the fees paid for payroll tax services, and (5) ordered the coexecutors to pay to the estate the actual investment losses from the date of death until the assets were sold and collected, without interest. On cross appeals, the Appellate Division affirmed for the reasons stated in the decision of Surrogate’s Court, and certified the following question to this Court:

"Were the Surrogate’s determinations, limiting the co-executors to a single commission and surcharging said co-executors for losses to the estate and for improper disbursements, an abuse of the Surrogate’s discretion, given the facts as affirmed by this Court?”

The parties make numerous arguments on this appeal. Coexecutor Bozorth argues that Surrogate’s Court abused its discretion in imposing a duty of investment management on the coexecutors before the assets of the trust were distributed to the estate. He urges that at the time that the assets of the trusts incurred the losses for which they were surcharged, the trusts were under the management of WTC, and that coexecutor Miller’s role as investment director for the trusts and Bozorth’s knowledge of that role did not give rise to a duty of investment management on the part of Miller and Bozorth in their executorial capacity. Bozorth also claims that Surrogate’s Court abused its discretion in measuring the investment losses and calculating the surcharges using date-of-death values since the coexecutors had no authority to act until letters testamentary were issued, and that Surrogate’s Court failed to perform an investment-by-investment analysis of each security that made up the assets of the trusts, or to make any finding as to when it became imprudent for the coexecutors to retain the assets, before it imposed a blanket surcharge on the coexecutors. Bozorth urges further that Surrogate’s Court misapplied the burden of proof and failed to consider many significant factors, including the offset of investment gains against investment losses, militating against the imposition of the surcharge. Finally, Bozorth claims that Surrogate’s Court abused its discretion in denying the coexecutors their statutory commission representing compensation for the performance of executorial duties.

Coexecutor Miller does not argue that he and his coexecutor had no authority to act as of the date of the decedent’s death. Instead, he urges that the coexecutors acted in a prudent and diligent manner in the care and management of the assets of the estate, and that they opted to retain the assets in the trusts during an 18-month period of adverse market conditions and to await a more advantageous time to sell at higher prices. Miller argues, in addition, that Surrogate’s Court improperly shifted the burden of proof on the issues of prudence or negligence from the objectors to the coexecutors. Miller also challenges Surrogate’s Court’s use of date-of-death values to calculate the surcharges, and adds that Surrogate’s Court abused its discretion in surcharging the coexecutors for losses amounting to $116,237 incurred by the estate in connection with the investments sold between September 1985 and November 1985 at the direction of Mills College, and for $84,074.90 for fees paid by WTC for his role, postdeath, as investment director. Moreover, Miller contends, compliance with Surrogate’s Court’s directive — that the coexecutors seek to recover, in the appropriate Delaware court, the amounts relating to predeath investment losses incurred by the trusts —would violate the doctrine of collateral estoppel and constitute a waste of estate assets. Finally, Miller argues that Surrogate’s Court erroneously deprived the coexecutors of the commissions, pursuant to SCPA 2307, for performing their fiduciary duties with respect to the estate.

The objectors assert that Surrogate’s Court did not abuse its discretion in surcharging the coexecutors for failing to act promptly and prudently to preserve the assets of the estate or in reducing the commissions of the coexecutors. The objectors assert further that Surrogate’s Court properly reduced the commission of the coexecutors because the record supports the finding that the coexecutors intentionally concealed material facts about the estate, including Miller’s role as investment director of the trust before and after the decedent’s death, the existence of substantial losses to the estate after the decedent’s death, and the detailed memoranda prepared by Bozorth’s firm for Mills College and the Attorney-General.

At the outset, it should be noted that the coexecutors were fiduciaries who owed a duty of undivided loyalty to the decedent and had a duty to preserve the assets that she entrusted to them. In Meinhard v Salmon (249 NY 458, 464), as to the level of conduct required for fiduciaries, Chief Judge Cardozo stated:

"Many forms of conduct permissible in a workaday world for those acting at arm’s length, are forbidden to those bound by fiduciary ties. A trustee is held to something stricter than the morals of the market place. Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior. As to this there has developed a tradition that is unbending and inveterate. Uncompromising rigidity has been the attitude of courts of equity when petitioned to undermine the rule of undivided loyalty by the 'disintegrating erosion’ of particular exceptions (Wendt v. Fischer, 243 N. Y. 439, 444). Only thus has the level of conduct for fiduciaries been kept at a level higher than that trodden by the crowd. It will not consciously be lowered by any judgment of this court.”

Surrogate’s Court’s findings of fact as to the conduct of the coexecutors were affirmed by the Appellate Division, and our review is limited to whether there is evidence in the record to support those findings and to the legal issues raised (see, Matter of Rothko, 43 NY2d 305, 318).

First, while the authority of executors is derived from the will (Hartnett v Wandell, 60 NY 346, 349-350), it is clear that, in this case, the coexecutors had a duty to preserve the assets of the estate even prior to obtaining letters testamentary. This is true since Miller was responsible for investment decisions at the time of the decedent’s death. Indeed, he made those decisions long before her death. Given their relationship to the testatrix, the executors had a duty to preserve the assets of the estate from the moment of death to insure that they were protected for the persons or entities eventually entitled to receive them. Furthermore, "an executor who knows that his coexecutor is committing breaches of trust and not only fails to exert efforts directed towards prevention but accedes to them is legally accountable” (Matter of Rothko, 43 NY2d, at 320, supra). The record is clear that the attorney fiduciary was aware of the losses but did not act with the prudence required by the circumstances.

Here, Surrogate’s Court found that the coexecutors did not fulfill their duty, which arose from their unique status vis-ávis the decedent, to preserve the assets of the estate and to prevent losses incurred by the estate after the decedent’s death. The record amply supports the findings of Surrogate’s Court that coexecutor Miller, as investment director of the 1920 and 1932 trusts, had complete authority to direct sales and purchase assets in the trust before as well as after the decedent’s death; that from the decedent’s death through 1985, the estate incurred losses in assets of more than $786,000; that the coexecutors knew that a major part of the assets in the estate were interest rate sensitive securities, which values had been declining due to a downfall in the stock market; that, after the decedent’s death, the coexecutors did not act prudently to preserve the investments. Thus, Surrogate’s Court did not abuse its discretion in finding that the coexecutors did not satisfy their duty to preserve the assets of the estate and in imposing surcharges on them for the losses incurred by the estate.

Next, the surcharges imposed by Surrogate’s Court were proper. "To warrant a surcharge, the objectors must show that the trust’s losses resulted from the trustee’s negligence or failure to exercise such prudence” (Matter of Hahn, 93 AD2d 583, 586, affd 62 NY2d 821). Whether a surcharge should be imposed in this instance depends on "a balanced and perceptive analysis of [the coexecutors’] consideration and action in the light of the history of each individual investment, viewed at the time of its action or its omission to act” (Matter of Bank of N. Y., 35 NY2d 512, 519). Thus, our inquiry becomes whether the record supports the finding that the coexecutors did not act in good faith and failed to exercise " ' "such diligence and such prudence in the care and management [of the fund], as in general, prudent men of discretion and intelligence in such matters, employ in their own like affairs” ’ ” (id., at 518-519, quoting Matter of Clark, 257 NY 132, 136). "Normally, the determination of whether the conduct of a trustee measures up to the appropriate standards of prudence, vigilance and care, is a fact to be found by the trial court” (Matter of Hubbell, 302 NY 246, 258).

Although coexecutor Miller claims that the coexecutors chose to retain the assets of the trusts and to await favorable market conditions, the record supports the Surrogate’s finding that the coexecutors failed to act prudently to prevent the losses incurred by the estate after the decedent’s death. With the exception of raising cash for advance payment of their commissions and legal fees, the coexecutors took no action with respect to the investments. We conclude that, here, the indifference and inaction by the coexecutors justifies the imposition of the surcharge on them for postdeath losses incurred by the estate.

As stated, we are not persuaded by the claim by the coexecutors that they had no authority to act on the date of the decedent’s death, and, thus, we discern no abuse of discretion by Surrogate’s Court in using date-of-death values to calculate the amount of the surcharge to impose on the coexecutors. Nor, are we persuaded by the argument of the coexecutors that Surrogate’s Court did not perform stock-by-stock analysis to determine the exact date when it became imprudent to retain each of the stocks. The record before us indicates that Surrogate’s Court based its decision to impose the surcharge, inter alla, on exhibit 89 to the objections, which was a schedule of the individual assets in the trusts, the date-of-death value of each asset, the date of sale, and the net proceeds from the sales. Moreover, Surrogate’s Court imposed the surcharge because the coexecutors exhibited a "lack of knowledgeable investment decision” and did not demonstrate a postdeath "review of the investments that was responsive to losses of over $780,000,” and imposed the surcharge on actual investment losses incurred by the estate from the date of death until the assets were sold and collected.

Miller’s argument that the surcharges should be reduced by the amount paid by WTC for his services as investment director, after the decedent’s death, and by the amount of losses incurred by the sale of investments at the direction of Mills College, lacks merit. The finding of Surrogate’s Court that Miller did not provide the advisory services for which he had been paid is supported by the record. Furthermore, Miller and Bozorth, and not Mills College, were coexecutors of the estate. It was their duty to preserve the estate’s assets with prudent conduct.

Miller’s opposition to the directive of Surrogate’s Court that the coexecutors seek to recover, in the appropriate Delaware court, predeath losses incurred by the trusts is untenable. The predeath losses involve assets of trusts that were located in Delaware and of which a Delaware company was trustee. These issues should be resolved by the Delaware courts.

We discern nothing in the record to support the claim by the coexecutors that Surrogate’s Court incorrectly placed the burden of proof on them and failed to consider the factors militating against the imposition of the surcharge.

Finally, the claim by the coexecutors that the Surrogate abused her discretion in denying them their commissions for the performance of executorial duties is unavailing. There is evidence in the record, including the undelivered memoranda, to support the finding by the Surrogate that the coexecutors intentionally withheld information from and acted contrary to the interests of Mills College by concealing the actual losses incurred by the estate, and by claiming commissions on an inflated value of the estate and in excess of those authorized by the trust instruments.

Accordingly, the order of the Appellate Division should be affirmed, with costs payable personally by appellants, and the question certified answered in the negative.

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

Order affirmed, etc.

      . At present there remains approximately $1 million uncollected from the 1920 trust.

      . The Attorney-General appears in this action pursuant to EPTL 8-1.4 (e) (1), which requires service upon the Attorney-General of notice of any action or proceeding in which any trustee holds property or income which may be required to be devoted for charitable purposes.


author: Levine, J. Titone, J.

text:
    [627 NE2d 500, 606 NYS2d 579]
    In the Matter of Gregory M., a Person Alleged to be a Juvenile Delinquent, Appellant.
    Argued October 5, 1993;
    decided December 20, 1993

      POINTS OF COUNSEL

      Marcia Egger, New York City, and Lenore Gittis for appellant.
    The Court below erred as a matter of law in affirming the Family Court order denying appellant’s motion to suppress evidence seized after an in-school search of his book bag by a school security guard where the sole predicate for the search was a "metal thud” heard by the guard when he placed the book bag on a cabinet. (Horton v California, 496 US 128; Arizona v Hicks, 480 US 321; Coolidge v New Hampshire, 403 US 443; People v Jackson, 41 NY2d 146; People v Miret-Gonzalez, 159 AD2d 647; Matter of Marrhonda G., 81 NY2d 942; Hernandez v United States, 353 F2d 624; New Jersey v T. L. O., 469 US 325; People v Scott R, 34 NY2d 483.)

      O. Peter Sherwood, Corporation Counsel of New York City (Linda H. Young and Pamela Seider Dolgow of counsel), for respondent.
    As the Supreme Court held in New Jersey v T. L. O. (469 US 325 [1985]), "what is reasonable depends on the context within which a search takes place.” Appellant’s Fourth Amendment rights were not violated by the school Dean’s search of appellant’s book bag after a school safety officer heard the bag drop with a metal thud, and after the safety officer conducted a protective patdown of the bag and felt the outline of a gun. (People v Scott D., 34 NY2d 483; Terry v Ohio, 392 US 1; People v Tratch, 104 AD2d 503; People v Brooks, 65 NY2d 1021; People v Dukes, 151 Misc 2d 295; Matter of Marrhonda G., 81 NY2d 942; People v Diaz, 81 NY2d 106; People v Rivera, 165 AD2d 756, 77 NY2d 842; People v White, 156 AD2d 741, 75 NY2d 971.)
   OPINION OF THE COURT

Levine, J.

There is no dispute over the facts giving rise to appellant’s adjudication of juvenile delinquency upon his admission to an act that, if committed by an adult, would constitute criminal possession of a weapon in the fourth degree. On November 29, 1990 appellant, then 15 years old, arrived at the high school he attended in The Bronx without a proper student identification card. He was directed by a school security officer to report to the office of the Dean to obtain a new card. In accordance with school policy, he was required to leave his cloth book bag with the security officer until he had obtained the proper identification. When appellant tossed the book bag on a metal shelf before proceeding beyond the school lobby to the Dean’s office, the security officer heard a metallic "thud” which he characterized as "unusual”. He ran his fingers over the outer surface of the bottom of the bag and felt the outline of a gun. The security officer then summoned the Dean who also discerned the shape of a gun upon feeling the outside of appellant’s book bag. The bag was brought to the Dean’s office and opened by the head of school security, revealing a small hand gun later identified as a .38 Titan Tiger Special.

A juvenile delinquency petition was filed in Family Court accusing appellant of acts constituting criminal possession of a weapon in the second, third and fourth degrees, defacement of a weapon and unlawful possession of a weapon by a person under age 16. Family Court denied appellant’s motion to suppress the gun. Following a fact-finding hearing, Family Court dismissed the count of the petition accusing appellant of an act that, if committed by an adult, would constitute the crime of criminal possession of a weapon in the second degree, and found that he had committed all the acts alleged in the remaining counts of the petition. At the dispositional hearing, Family Court placed appellant with the Division for Youth.

On appeal, the Appellate Division upheld Family Court’s denial of appellant’s motion to suppress (184 AD2d 252). It held that the unusual metal thud heard by the security officer when appellant deposited his book bag was sufficient to support a reasonable suspicion that the bag contained a weapon, thereby justifying a "frisk” of the outside of the bag. The Court further ruled that when the frisk touching revealed the presence in the bag of an object that felt like a gun, the school authorities were justified in searching the inside of the bag. The Court, however, reversed the adjudication of juvenile delinquency and remanded for a new fact-finding hearing because of an error in the introduction into evidence of a ballistics report regarding the gun found in appellant’s satchel. Upon remand to Family Court, the proceeding against appellant was disposed of by his admission to an act that, if committed by an adult, would constitute the crime of criminal possession of a weapon in the fourth degree. This Court granted permission to appeal in order to review the propriety of the Appellate Division’s ruling upholding Family Court’s denial of appellant’s motion to suppress.

We affirm. Although minimally intrusive, the purposeful investigative touching of the outside of appellant’s book bag by the school security officer (i.e., to acquire knowledge about the bag’s contents) falls marginally within a search for constitutional purposes (see, Arizona v Hicks, 480 US 321, 325; see also, United States v Most, 876 F2d 191, 193-194). Also, appellant is quite correct in contending that the metallic thud heard by the security officer when appellant put the book bag down was by itself insufficient to furnish a reasonable suspicion that the bag contained a weapon. We conclude, however, that a less rigorous premonition concerning the contents of the bag was sufficient to justify the investigative touching of the outside of the bag. When that touching disclosed the presence of a gun-like object in the bag, there was reasonable suspicion to justify the search of the inside of the bag.

In People v Scott D. (34 NY2d 483), this Court held that students attending public schools are protected by the constitutional ban against unreasonable searches and seizures. Scott D. involved a school search of a student for illegal drugs. We further held in Scott D. that inherent in determining whether a school search was reasonable is a "balancing of basic personal rights against urgent social necessities” (id., at 488) and that, "[g]iven the special responsibility of school teachers in the control of the school precincts and the grave threat, even lethal threat, of drug abuse among school children, the basis for finding sufficient cause for a school search will be less than that required outside the school precincts” (id., at 488 [emphasis supplied]).

Employing an analysis similar to that of People v Scott D. (supra), the United States Supreme Court in New Jersey v T. L. O. (469 US 325) also concluded that the Fourth Amendment of the United States Constitution applies to searches of students by school authorities, but held that less cause is required to justify such a search than is required of law enforcement authorities searching persons or their effects outside school premises. Thus, the Supreme Court held that a determination of the appropriate standard of reasonableness to govern a certain class of searches requires a balancing: "On one side of the balance are arrayed the individual’s legitimate expectations of privacy and personal security; on the other, the government’s need for effective methods to deal with breaches of public order” (id., at 337). The Court in New Jersey v T. L. O. held that, ordinarily, searches by school authorities of the persons or belongings of students may be made upon "reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school” (id., at 342). The Court applied the reasonable suspicion standard in validating a teacher’s full search of the inside of a student’s purse for cigarettes, during which evidence of her involvement in drug dealing was revealed.

We agree that for searches by school authorities of the persons and belongings of students, such as that conducted in New Jersey v T. L. O. (supra), the reasonable suspicion standard adopted in that case for Fourth Amendment purposes is also appropriate under our State Constitution (NY Const, art I, § 12). In the instant case, however, the investigative touching of the outer surface of appellant’s book bag falls within a class of searches far less intrusive than those which, under New Jersey v T. L. O., require application of the reasonable suspicion standard. Applying the balancing process required under People v Scott D. (supra) and New Jersey v T. L. O. (supra), it is undeniable that appellant had only a minimal expectation of privacy regarding the outer touching of his school bag by school security personnel, even for purposes of learning something regarding its contents, when he left the bag with the security officer pursuant to the school policy requiring this until he obtained a valid identification card. On the other hand, it seems equally undeniable that, in the balancing process, prevention of the introduction of hand guns and other lethal weapons into New York City schools such as this high school is a governmental interest of the highest urgency. The extreme exigency of barring the introduction of weapons into the schools by students is no longer a matter of debate.

Thus, the balancing process ordained by People v Scott D. (supra) and New Jersey v T. L. O. (supra) leads to the conclusion that a less strict justification applies to the limited search here than the reasonable suspicion standard applicable for more intrusive school searches. In this regard, we find it noteworthy that the Supreme Court in New Jersey v T. L. O. (supra) specifically disclaimed that its decision made some quantum of individualized suspicion an essential element of every school search (see, id., at 342, n 8). The Supreme Court has elsewhere made it clear that, at least outside the context of criminal investigations by law enforcement officers, individualized suspicion is not a constitutional floor below which any search must be deemed unreasonable. There may be circumstances in which, because the privacy interests involved in the case are minimal and are overborne by the governmental interests in jeopardy if a higher standard were enforced, a search may be reasonable despite the absence of such suspicion (see, Skinner v Railway Labor Executives’ Assn., 489 US 602, 624; see also, United States v Martinez-Fuerte, 428 US 543, 561-562). We need not apply these precedents, however, to sustain the actions of the school authorities in the instant case.

Because appellant’s diminished expectation of privacy was so clearly outweighed by the governmental interest in interdicting the infusion of weapons in the schools, we think the "unusual” metallic thud heard when the book bag was flung down — quite evidently suggesting to the school security officer the possibility that it might contain a weapon — was sufficient justification for the investigative touching of the outside of the bag, thus rendering that limited intrusion reasonable (and not based on mere whim or caprice) for constitutional purposes (cf., People v Hollman, 79 NY2d 181, 190-191). Our application in the instant case of a graduated standard of reasonableness is, of course, sanctioned by and premised on the minimal nature of the search, and that it was conducted by school officials for the special needs of school security and not for a criminal investigative purpose (see, O’Connor v Ortega, 480 US 709, 725-726; see also, Preiser, 1987 Survey of New York Law — Criminal Procedure, 39 Syracuse L Rev 237, 249-251 [1988]). Once the touching of the outer surface of the bag revealed the presence of a gun-like object inside, school authorities had a reasonable suspicion of a violation of law justifying the search of the contents of the bag (New Jersey v T. L. O., supra).

We are unpersuaded by our dissenting colleague’s contention that the limited intrusion upon appellant’s privacy interest in his book bag, by the initial touching of the outside of the bottom of the bag to ascertain whether it may have contained a weapon, could only be justified on the school security officer’s reasonable suspicion that such was so. In effect, despite vague professions to the contrary, the dissent is contending that reasonable suspicion is a constitutional floor for purposes of all types of searches, however limited, in a school setting or elsewhere, and irrespective of who conducts the search. As we have already noted, New Jersey v T. L. O. (supra) cannot be read to support that position, and it has been rejected by the Supreme Court in other cases outside the context of police searches during criminal investigations (see, e.g., Camara v Municipal Ct., 387 US 523, 538-539). The dissent instead supports this position by reliance on Terry v Ohio (392 US 1) and this Court’s decisions in People v Diaz (81 NY2d 106; cf., Minnesota v Dickerson, 508 US —, 113 S Ct 2130) and Matter of Marrhonda G. (81 NY2d 942). The dissent claims that applying a lesser standard than reasonable suspicion to justify the touching of the outside of appellant’s bag "blurs the all-important distinction between searches and such lesser forms of intrusion as limited Terry patdowns” (dissenting opn, at 597 [emphasis supplied]). The Supreme Court in Terry described the intrusion in that case as "a careful exploration of the outer surfaces of a person’s clothing all over his or her body in an attempt to find weapons” (Terry v Ohio, supra, at 16), and characterized it as "a serious intrusion upon the sanctity of the person, which may inflict great indignity” (id., at 17). The primary sense in which, in Terry, the "frisk” of the person was characterized and then justified as a "limited search”, and thus less than a full search, was that "it must be limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby” (id., at 26).

This concept of limited search in Terry is precisely what was applied in People v Diaz (81 NY2d 106, supra). "Under both the State -and Federal Constitutions, the protective pat-down exception to the warrant requirement authorizes a limited search * * * to determine whether a weapon is present” (id., at 109 [emphasis supplied]). Diaz declined to extend the Terry warrantless search exception to a frisk disclosing other forms of contraband. "Once an officer has concluded that no weapon is present, the search is over and there is no authority for further intrusion” (id., at 109). Diaz and Terry simply do not apply to a less intrusive touching of the outside of a book bag by school personnel, after possession of the bag had been lawfully relinquished.

Likewise, the holding in Matter of Marrhonda G. (81 NY2d 942, supra) is no bar to the touching of the outer surface of appellant’s book bag on less than reasonable suspicion that it contained a weapon. Marrhonda G. refused to create a "plain touch” justification for the warrantless searching of the contents of a travel bag. Had the holding in Marrhonda G. been intended to bar the touching of the outer surface of the travel bag in that case, the Court clearly would not have suggested that "the police [could] have simply detained the bag while they obtained a warrant to search it” (id., at 945), since the information necessary to obtain a search warrant could only have been gained from touching the bag.

The dissent’s attempt to rigidify reasonable suspicion as the constitutionally mandated minimum standard for nonpolice searches, irrespective of minimal levels of intrusiveness, is also inconsistent with the flexible balancing of expectations of privacy/State interests approach dictated by New Jersey v T. L. O. (supra) and People v Scott D. (supra). Thus, Family Court’s denial of appellant’s motion to suppress should be upheld.

Accordingly, the judgment of Family Court appealed from and the order of the Appellate Division brought up for review should be affirmed, without costs.

Titone, J.

(dissenting). Acknowledging that there was not even a "reasonable suspicion” of criminality, the Court nevertheless holds that the school security guard was entitled to conduct a search of appellant’s book bag. In so ruling, the Court has reduced the privacy protections of the Fourth Amendment and of article I, § 12 of the State Constitution below all previously recognized minimum thresholds. While I too am horrified by the recent escalation of deadly weapons in the public schools, I cannot agree that the problem should be remedied by a contraction of even the minimal privacy rights that the Supreme Court has accorded to school children, particularly when there exist other, less intrusive remedies. Since I can find no constitutionally sanctioned justification for this invasion of an individual student’s right to the privacy of his personal effects, I dissent from the Court’s decision to uphold the search in this case.

It is undisputed that the security guard’s actions in this case in feeling the outside of appellant’s school bag constituted a full-blown search for purposes of constitutional analysis. Indeed, after our holdings in People v Diaz (81 NY2d 106) and Matter of Marrhonda G. (81 NY2d 942), which were premised on the Federal and State Constitutions (People v Diaz, supra, at 112-113, n 2), that characterization is no longer open to question in this State (but see, People v Lewis, 82 NY2d 839 [characterizing a feel of a shirt that was not on the suspect’s person as a "handling”]; cf., Minnesota v Dickerson, 508 US —, 113 S Ct 2130).

Further, although the point is not explicitly recognized by the majority, there can be little doubt that, but for its occurrence in a school setting, this warrantless search, like any other, would have to be supported by both a showing of probable cause and a recognized exception to the warrant requirement (e.g., People v Diaz, supra; Matter of Marrhonda G., supra). The teaching of New Jersey v T. L. O. (469 US 325), on which the majority places heavy reliance, is that search warrants are not constitutionally required for school searches and that such searches may be justified by a lesser showing of reasonable suspicion (see also, People v Scott D., 34 NY2d 483). Nothing in T. L. O., however, suggests that the serious intrusion of a search may be upheld on even less than reasonable suspicion, much less on the gossamer thread of what the Court has labelled an "unusual” metallic thud. The majority’s attempt to justify its decision to do so here is singularly unpersuasive.

The majority begins its analysis with the premise that the "investigative touching” of the outside of appellant’s book bag was somehow "far less intrusive” than other types of searches. This premise, however, is irreconcilable with the holding and analysis in People v Diaz (supra). In Diaz, this Court specifically stated that such an "investigative touching” of a closed container requires "a degree of pinching, squeezing or probing beyond the limited intrusion allowed under Terry [v Ohio (392 US 1)]” (81 NY2d, at 112, supra; see also, Matter of Marrhonda G., supra).

Further, the majority’s analysis is objectionable because it blurs the all-important distinction between searches and such lesser forms of intrusion as limited Terry patdowns (see, Terry v Ohio, supra) — a result that the Diaz Court expressly refused to sanction (81 NY2d, at 112). In the past, the courts have been willing to permit incursions not intrusive enough to be deemed full searches or seizures upon a showing of reasonable suspicion rather than probable cause (see, Delaware v Prouse, 440 US 648; Pennsylvania v Mimms, 434 US 106; United States v Brignoni-Ponce, 422 US 873; Terry v Ohio, supra; People v Hollman, 79 NY2d 181; People v De Bour, 40 NY2d 210). However, once it has been determined that a particular police action rose to the level of a "search” or a "seizure,” neither the Supreme Court nor this Court has been willing to subdivide that characterization into subcategories related to the degree of the intrusiveness or to use such a subdivision as a basis for reducing the required probable cause showing (see, Dunaway v New York, 442 US 200; People v Diaz, supra; Matter of Marrhonda G., supra; cf., Camara v Municipal Ct., 387 US 523). Indeed, the majority’s reference here to an "investigative touching” is reminiscent of the "investigative detention” doctrine that was rejected in Dunaway v New York (supra).

What the majority has done here, in effect, is to dilute the recently minted Diaz-Marrhonda holding. According to this majority, the touching of a closed container for the purpose of discovering possible criminality is a "search” in some technical sense but is not the type of search that would require probable cause in the nonschool setting — or reasonable suspicion in the school setting as permitted by T. L. O. Rather, it is some hybrid form of police action that is labelled a "search” but may be treated as some lesser form of intrusion for purposes of determining the required constitutional knowledge predicate.

Notably, this dilution of the Diaz-Marrhonda holding cannot be justified on the ground that the search in this case occurred in a school setting (see, majority opn, at 594). While that circumstance may distinguish this case from Diaz with regard to whether probable cause or reasonable suspicion is the proper standard, it does not affect the degree of intrusiveness of the authorities’ conduct. Manifestly, if a particular action is intrusive enough to be considered an unqualified search when it occurs on the street or in a store security office (People v Diaz, supra; Matter of Marrhonda G., supra), the same action must also be deemed an equally intrusive unqualified search when conducted in a school. And, the previously recognized standard applicable to such an action — probable cause in a street encounter or reasonable suspicion in a school encounter — should be used to measure the constitutional propriety of the intrusion.

The majority also attempts to justify its decision on the theory that appellant had only a "minimal” expectation of privacy "regarding the outer touching of his school bag” when he left it with a security officer pursuant to a school policy (majority opn, at 593). This sweeping conclusion, however, remains unexplained. Significantly, the Supreme Court has specifically rejected the contention that a child has a drastically diminished expectation of privacy in articles of personal property that are carried into school. In T. L. O. (supra, at 338), the very case on which the majority relies, the Court stated that neither the "maintenance of a sound educational environment” nor the "minimal interest of the child in bringing any items of personal property into the school” is sufficient to justify that conclusion. As the Court noted, "schoolchildren may find it necessary to carry with them a variety of legitimate, noncontraband items, and there is no reason to conclude that they have necessarily waived all rights to privacy in such items merely by bringing them onto school grounds” (id., at 339). Similarly, neither a waiver of the right to privacy nor a diminution in the expectation of privacy may be inferred from the fact that a student, acting in accordance with the rules of the school, has temporarily relinquished the closed container he used to carry his personal effects in order to obtain an entrance pass.

The appropriate balance between "the schoolchild’s legitimate expectations of privacy and the school’s equally legitimate need to maintain an environment in which learning can take place” (id., at 340) was carefully and deliberately struck in T. L. O. by permitting searches conducted without warrants and on reasonable suspicion rather than probable cause (id., at 339-343). That balance is skewed in a manner never contemplated by the T. L. O. Court when the notion of a reduced expectation of privacy is injected as a basis for effecting an even greater reduction in the constitutional privacy protections afforded to students.

A further reason offered by the majority for reducing the quantum of information necessary to conduct a school search such as this one is the unquestionably compelling need to prevent the introduction of hand guns and other lethal weapons into the schools. I find this aspect of the majority’s rationale unconvincing for several reasons. First, the reductian of students’ privacy rights that the majority sanctions is not narrowly tailored to address weapon-related criminal activities. While the search in this case happened to disclose a weapon, the sequence of events that led to that disclosure here could just as easily lead in another case to the discovery of some other illegality or rule infraction such as the possession of drugs (cf., People v Diaz, supra) or cigarettes. Second, there exist other, more effective means of interdicting weapons in public schools, namely, the installation of metal detectors at the front door. Thus, the need to control the burgeoning weapon crisis is, at best, a questionable rationale for such a serious incursion on students’ constitutional rights.

Third, and most importantly, the constitutional privacy guarantees in our Federal and State Constitutions exist precisely to protect citizens from governmental overreaching in the name of the exigencies of law enforcement. It is circular to rely on the contemporary exigencies of law enforcement as grounds for justifying reductions in the constitutional protections. It is also somewhat dangerous, since the same rationale may be trotted out to justify virtually any governmental excess that is aimed at a currently troublesome or rampant form of crime (see, e.g., People v Keta, 79 NY2d 474 [auto theft]; Matter of Patchogue-Medford Congress of Teachers v Board of Educ., 70 NY2d 57).

Contrary to the majority’s views, it would seem that the need for judicial intervention to bolster the privacy protections would concomitantly increase, rather than diminish, with an increase in the public pressure on law enforcement authorities to take all necessary steps to obliterate a new crime threat. As has been said in an analogous context, "[o]ur responsibility in the judicial branch is not to respond to these temporary crises or to shape the law so as to advance the goals of law enforcement, but rather to stand as a fixed citadel for constitutional rights” (People v Keta, 79 NY2d 474, 501).

What the majority seems to overlook is the fact that there was no way of knowing until after appellant’s bag was palpated and searched that it contained a dangerous weapon rather than a video game or some other harmless device commonly carried by high school students. The privacy protections of the State and Federal Constitutions have little worth if the balancing analysis they dictate allows consideration of the nature of the items disclosed as a result of the police intrusion. Such an analysis sacrifices the rights of the innocent to an extent that I find unacceptable. Indeed, a recent incident in which an entire fifth grade class was frisked after two teachers discovered that money was missing from their wallets (Albany Times Union [Associated Press], Nov. 12, 1993, at B2, col 1) highlights the double-edged nature of the balancing inquiry the Court has undertaken and demonstrates the need to accord more serious weight to the privacy side of the equation, even in the context of a school search.

Finally, even if it is assumed that some lesser showing than the reasonable suspicion approved by the Supreme Court is permissible in these circumstances, the majority has not given any indication of the nature of that showing or of what the lower limits of that showing might be. Even those who advocate a "flexible balancing of expectations” in Fourth Amendment analysis would acknowledge that "flexibility” does not sanction the elimination of any and all articulable standards.

As the majority concedes, a metallic "thud” is not in itself a suspicious occurrence, and in this case there were no other "surrounding circumstances” to elevate the level of founded suspicion that the security guard had before he undertook a search of the outside of appellant’s book bag. If, as the majority admits, the "thud” was not sufficient to furnish reasonable suspicion that the bag contained a gun, it is difficult to see how that "thud” could have "evidently suggested] to the school security officer the possibility that [the bag] might contain a weapon” (majority opn, at 593). The distinction between a "reasonable suspicion” and an "evident suggestion” is not at all clear to me and will probably be even less meaningful to the school authorities who have to implement this new standard. The significance of the majority’s reference to a "premonition” that is "less rigorous” than reasonable suspicion is even more opaque.

The closest the majority has come to actually objectifying the standard it has used is its characterization of the "thud” the guard heard as " 'unusual’ ” (majority opn, at 593). However, what made this sound so "unusual” is far from clear. Students’ book bags routinely contain such unexceptional items as make-up cases, portable cassette players and other consumer electronic devices, all of which would likely produce a metallic "thud” when dropped on a hard surface such as a counter.

Even more importantly, the "unusual” nature of an event or circumstance does not provide a sound basis for a search of an individual’s personal effects. Without more, such an amorphous touchstone would permit intrusions on the most arbitrary of predicates, including a student’s "unusual” manner of dress, gait or speech.

In the final analysis, there really is no constitutionally acceptable predicate here for the investigative search of the outside of appellant’s book bag. The fact that the search eventually led to the discovery of a gun is certainly not a sound basis for upholding the search and, indeed, to the extent the majority relies on that circumstance, its analysis begs the question. While we all have a vital interest in preventing weapons from entering our public school classrooms, that interest could have been served in this case without seriously undermining the student’s constitutional rights by either asking the student about the contents of his bag upon his return (see, Matter of Marrhonda G., supra, at 945) or by insisting that he empty it or leave it with the guard before re-entering the building. In any event, while I do not advocate anything as sweeping as an over-all constitutional floor of "reasonable suspicion” that would be applicable in all situations (see, majority opn, at 594), I cannot concur in the majority’s decision to sustain this search on a showing that falls well below the minimum requirements approved by the Supreme Court for searches conducted on school premises.

Accordingly, I dissent and vote to reverse the judgment and Appellate Division order brought up for review.

Chief Judge Kaye and Judges Simons, Hancock, Jr., Bellacosa and Smith concur with Judge Levine; Judge Titone dissents in a separate opinion.

Judgment of Family Court appealed from and order of the Appellate Division brought up for review affirmed, without costs.

      . The majority’s extended discussion of Terry, Diaz and Marrhonda G. (majority opn, at 594-595) is puzzling. Diaz did not apply Terry but rather held that the Terry justification for a limited patdown is inapplicable once a frisk of the suspect discloses that no weapons are concealed on his or her person (81 NY2d, at 109). While Diaz may not apply to the touching of the outside of a book bag after possession has been relinquished (majority opn, at 595), Marrhonda G., which involved precisely that situation, certainly does. The remaining variable, i.e., the school setting in which the present search took place, may serve to eliminate the need for a warrant and to reduce the level of individualized suspicion required, but it does not alter the character of the intrusion as a search.

      . Camara v Municipal Ct. (supra), which the majority cites as an example of the Supreme Court’s rejection of the reasonable suspicion requirement, is unhelpful in this context. That case merely held that a showing of something less than probable cause is permissible for an inspection of premises where the intrusion is "neither personal in nature nor aimed at the discovery of evidence of crime” (id., at 537).

      . The majority’s assertion that this search was undertaken for the "special needs of school security and not for a criminal investigative purpose” (majority opn, at 594) is insupportable in view of the fact that the school officials suspected the presence of a gun or other weapon whose possession would clearly be outlawed under the provisions of the Penal Law.

      . It is unclear what precise legal significance the majority attaches to the T. L. O. Court’s decision to leave open the question whether "individualized suspicion is an essential element of the reasonableness standard * * * adoptfed] for searches by school authorities” (469 US, at 342, n 8; see, majority opn, at 593). The majority’s own suggestion that it may not require such individualized suspicion either in a school setting or, indeed, in any other Fourth Amendment context, is extremely disturbing because it is both so sweeping and so unnecessary to the analysis herein. I fear that this obiter dictum, which is introduced as mere makeweight here, will be seized upon and cited in future cases to justify even further invasions of citizens’ privacy rights.