author: Wachtler, J.

text:
    George Russin et al., Appellants, v Louis N. Picciano & Son et al., Defendants-Respondents and Third-Party Plaintiffs-Appellants. Village of Endicott et al., Third-Party Defendants-Respondents.
    Argued October 22, 1981;
    decided November 24, 1981

      POINTS OF COUNSEL

      Stephen D. Smyk for appellants.
    I. Sections 240 and 241 require all contractors to afford proper protection to people lawfully upon a construction site and impose upon all contractors on the construction site a nondelegable duty to afford such protection. (Allen v Cloutier Constr. Corp., 44 NY2d 290.) II. The manner in which the contracts were let for the clubhouse construction cannot circumvent the intended legislative protection afforded by the statute. (Haimes v New York Tel. Co., 46 NY2d 132; Dole v Dow Chem. Co., 30 NY2d 143.) III. Respondent Picciano had a common-law and statutory obligation to insure that its ladder would not be used in a careless or haphazard manner and its failure to take adequate steps to proscribe the improper use of that ladder creates a question of fact for a jury to resolve as' to whether good construction practices were being carried out and whether a violation of such practices was a proximate cause of Russin’s injuries. (Monroe v City of New York, 67 AD2d 89.)

      Robert H. Wedlake for Louis N. Picciano & Son, defendant-respondent and third-party plaintiff-appellant.
    I. Sections 240 and 241 of the Labor Law do not, under the facts of this case, impose any liability on def endants-respondents. (Allen v. Cloutier Constr. Corp., 44 NY2d 290; Sarnoff v Charles Schad, Inc., 22 NY2d 180; Page v La Buzzetta, 73 AD2d 483.) II. The allegations of appellant Russin in regards to the alleged “Picciano ladder” alone cannot constitute a question of fact for the trier of fact: respondent Picciano did not breach its duty to provide appellant with a safe place to work. (Hamill v Foster-Lipkins Corp., 41 AD2d 361; Reynolds v Brady & Co., 38 AD2d 746; Dittiger v Isal Realty Corp., 264 App Div 279; Persichilli v Triborough Bridge & Tunnel Auth., 16 NY2d 136; Rusin v Jackson Hgts. Shopping Center, 27 NY2d 103.) III. If appellant Russin’s cause of action is reinstated against respondent Picciano, then respondent Picciano’s third-party cause of action should be reinstated against third-party respondents Village of Endicott and A. J. Cerasaro, Inc.

      Martin J. Kane for Matco Electric Co., Inc., defendant-respondent and third-party plaintiff-appellant.
    I. There was no breach by Mateo of any duty to provide plaintiff-appellant with a safe place to work. (Dittiger v Isal Realty Corp., 264 App Div 279; Schnur v Shanray Constr. Corp., 31 AD2d 513; Dinkuhn v Western N. Y. Water Co., 279 NY 606; Rusin v Jackson Hgts. Shopping Center, 27 NY2d 103; Reynolds v Brady & Co., 38 AD2d 746.) II. Matco is not a contractor within the meaning of sections 240 and 241 of the Labor Law. (Depot Constr. Co. v City of New York, 46 NY2d 859; Allen v Cloutier Constr. Corp., 44 NY2d 290; Page v La Buzzetta, 73 AD2d 483.) III. Matco’s third-party complaint against the Village of Endicott and Cerasaro must be reinstated if the decision of the Appellate Division, Third Department, is reversed. (Allen v Cloutier Constr. Corp., 44 NY2d 290; Kelly v Diesel Constr. Div. of Carl A. Morse, Inc., 35 NY2d 1.)

      Edward B. Flink for Stellmack Air Conditioning & Refrigeration Corp., defendant-respondent and third-party plaintiff-appellant.
    I. Sections 240 and 241 of the Labor Law do not affix liability for plaintiff’s accident upon Stellmack. (Kappel v Fisher Bros., 6th Ave. Corp., 39 NY2d 1039; Tallarico v Long Is. Light. Co., 45 AD 2d 845, 38 NY2d 733; Scavone v State Univ. Constr. Fund, 46 AD2d 895; Allen v Cloutier Constr. Corp., 44 NY2d 290; Haimes v New York Tel. Co., 46 NY2d 132; Hamill v Foster-Lipkins Corp., 41 AD 2d 361; Matter of Beckwith, 57 AD2d 415.) II. Stellmack is not liable for plaintiff’s accident pursuant to section 200 of the Labor Law since there is no evi-

      dence that Stellmack controlled or supervised the dismantling operation; was negligent in respect thereto; had notice of any defect in the workplace; or did anything which in any way caused or contributed to the occurrence of George Russin’s accident. (Monroe v City of New York, 67 AD2d 89; Ramos v State of New York, 34 AD2d 1056, 28 NY2d 487; Schnur v Shanray Constr. Corp., 31 AD2d 513; Rusin v Jackson Hgts. Shopping Center, 27 NY2d 103; Persichilli v Triborough Bridge & Tunnel Auth., 16 NY2d 136; Wright v Belt Assoc., 14 NY2d 129; Zucchelli v City Constr. Co., 4 NY2d 52; Dawson v Diesel Constr. Co., 51 AD2d 397; Grant v Rochester Gas & Elec. Corp., 20 AD2d 48.) III. If plaintiffs’ amended complaint against Stellmack is reinstated by this court, Stellmack’s third-party complaint against the Village of Enclicott and Cerasaro must also be reinstated. (Allen v Cloutier Constr. Corp., 44 NY2d 290; McFall v Compagnie Mar. Beige [Lloyd Royal] S. A., 304 NY 314; Phoenix Bridge Co. v Creem, 102 App Div 354, 185 NY 580; Oceanic Steam Nav. Co. [Ltd] v Compania Transatlantica Espanola, 134 NY 461; Village of Port Jervis v First Nat. Bank of Port Jervis, 96 NY 550; Rogers v Dorchester Assoc., 32 NY2d 553.)

      Robert H. Reeder for A. J. Cerasaro, Inc., third-party defendant-respondent.
    I. The court below was correct in holding that there was no breach of any duty to provide plaintiff-appellant with a safe place to work. (Dittiger v Isal Realty Corp., 264 App Div 279; Rusin v Jackson Hgts. Shopping Center, 27 NY2d 103; Ortiz v Uhl, 39 AD2d 143; Leahy v Botnick, 35 AD2d 898; Bidetto v New York City Housing Auth., 25 NY2d 848; Mullin v Genesee County Elec. Light., Power & Gas Co., 202 NY 275; Dinkuhn v Western N. Y. Water Co., 279 NY 606; Hamill .v Foster-Lipkins Corp., 41 AD2d 361; Maceda v Ellis Chingos Constr. Corp., 12 AD2d 801; Pantori v Welsbach Corp., 43 AD2d 517.) II. The court below was correct in holding that there was no duty on behalf of defendants-respondents under the facts in this case to this plaintiff-appellant under sections 240 or 241 of the Labor Law. (Wright v Belt Assoc., 14 NY2d 129; Koenig v Patrick Constr. Corp., 298 NY 313; Joyce v Rumsey Realty Corp., 17 NY2d 118; Curtis v State of New York, 23 NY2d 976; Sarnoff v Charles

      Schad, Inc., 22 NY2d 180; Allen v Cloutier Constr. Corp., 44 NY2d 290; Haimes v New York Tel. Co., 46 NY2d 132; Reynolds v Brady & Co., 38 AD2d 746.)

      Patrick J. Leary for Village of Endicott, third-party defendant-respondent.
    I. The reinstatement of plaintiffs’ complaint against any of defendants and third-party plaintiffs would necessarily imply a finding that defendant reinstated against was acting as the agent of the village with respect to the construction detail at issue. (Allen v Cloutier Constr. Corp., 44 NY2d 290; Haimes v New York Tel. Co., 46 NY2d 132; Page v La Buzzetta, 73 AD2d 483.) II. Given the procedural framework of the instant litigation, there is no conceivable basis for any direct liability to plaintiffs on the part of the third-party defendant village. (Malette v Loblaws, Inc., 61 AD2d 1054.) III. If plaintiff sustained injury as a result of breach of statutory duty by any of defendant third-party plaintiffs to whom that duty had been delegated by the village, then the complete defense of indemnity requires that the third-party complaints against the village stand dismissed. (Kelly v Diesel Constr. Div. of Carl A. Morse; Inc., 35 NY2d 1.) IV. Because any potential liability on the part of the third-party defendant village is purely derivative and vicarious, there is no basis for reinstating any third-party complaint against the village. (Rogers v Dorchester Assoc., 32 NY2d 553.)
   OPINION OF THE COURT

Wachtler, J.

The question presented on this appeal is whether various prime contractors not in privity with the general contractor of a construction project may be held liable under sections 200, 240 and 241 of the Labor Law for construction site injuries sustained by a workman employed by the general contractor in the course of completing work for which the general contractor was solely responsible. We agree with the Appellate Division that the prime contractors incur no liability for personal injuries arising out of work not specifically delegated to them.

Plaintiff George Russin was injured in a construction site accident which occurred at the En-Joie Golf Course in the Village of Endicott, New York. At the time of the accident plaintiff was employed by the general contractor for the project, A. J. Cerasaro, Inc. (Cerasaro). The plaintiff commenced this action against defendants Mateo Electric Co., Inc. (Mateo), Louis N. Picciano & Son (Picciano) and Stellmack Air Conditioning Refrigeration Corp. (Stellmack) for personal injuries arising out of alleged violations of sections 200, 240 and 241 of the Labor Law. Neither the Village of Endicott, the owner of the golf course, nor Cerasaro, as general contractor, were named as defendants.

The construction of a new clubhouse at the En-Joie Golf Course proceeded pursuant to separate contracts between the Village of Endicott and seven individual contractors. These contracts were entered into between the owner and the various contractors, rather than between the general contractor and those contractors, and therefore constituted separate prime contracts. The plumbing contract was awarded to Picciano, the electrical contract to Mateo and the heating, ventilation and air-conditioning contract to Stellmack.

Plaintiff was injured while descending from a scaffold he was dismantling at the direction of his employer, Cerasaro. He stepped on a ladder leaning against the scaffold to negotiate the last few feet of the descent and as he did so it turned and gave way, causing him to fall. The ladder was owned by Picciano.

The general contractor, Cerasaro, was responsible for the co-ordination and execution of all the work under all the contracts. Cerasaro was also in full control of plaintiff and the area in which he was working at the time of his injury. The Appellate Division found that as prime contractors, the defendants had no contractual arrangement with the general contractor and were, therefore, not in a position to control any of the activity which generated the injury. Accordingly, the Appellate Division held that defendants could not be liable to plaintiff under sections 200, 240 and 241 of the Labor Law. We agree.

Section 200 of the Labor Law merely codified the common-law duty imposed upon an owner or general contractor to provide construction site workmen with a safe place to work (Allen v Cloutier Constr. Corp., 44 NY2d 290, 299). An implicit precondition to this duty to provide a safe place to work is that the party charged with that responsibility have the authority to control the activity bringing about the injury to enable it to avoid or correct an unsafe condition (Reynolds v Brady & Co., 38 AD2d 746). As defendants’ contracts were with the Village of Endicott and not with plaintiff’s employer, the general contractor, they had no ability to control either plaintiff or the dismantling of the scaffolding which eventuated in his injury. Without this authority to control the activity producing the injury, defendants could not be liable to plaintiff under section 200 for failure to provide a safe place to work.

Similarly, sections 240 and 241 impose no liability on defendants for plaintiff’s injury. Although the statutes appear to impose liability unequivocally on “[a] 11 contractors and owners and their agents” (Labor Law, § 240, subd 1; §241 [emphasis added]), this language must be interpreted in light of the historical development of these provisions.

It is evident from the legislative history of the 1969 amendments to sections 240 and 241 (L 1969, ch 1108, §§ 1, 3), that these revisions were intended to shift responsibility for construction site injuries from those parties without control of the injury producing activity to the general contractor and owner. Thus, the legislative memorandum supporting the 1969 amendments provides in pertinent part: “This bill places ultimate responsibility for safety practices at building construction jobs where such responsibility actually belongs, on the owner and general contractors. * * * Under the present Sections 240 and 241 of the Labor Law, the non-delegable duty has shifted from the general contractor and owner to the subcontractor, making him responsible for many things that he has no control of, such as coordination and overall supervision of the work.” (NY Legis Ann, 1969, pp 407-408 [emphasis added].)

Although sections 240 and 241 now make nondelegable the duty of an owner or general contractor to conform to the requirement of those sections (Haimes v New York Tel Co., 46 NY2d 132; Allen v Cloutier Constr. Corp., 44 NY2d 290, supra), the duties themselves may in fact be delegated (Page v La Buzzetta, 73 AD2d 483). When the work giving rise to these duties has been delegated to a third party, that third party then obtains the concomitant authority to supervise and control that work and becomes a statutory “agent” of the owner or general contractor. Only upon obtaining the authority to supervise and control does the third party fall within the class of those having nondelegable liability as an “agent” under sections 240 and 241. To hold otherwise and impose a nondelegable duty upon each contractor for all injuries occurring on a job site and thereby make each contractor an insurer for all workers regardless of the ability to direct, supervise and control those workers would lead to improbable and unjust results and would directly contravene the express legislative history accompanying the 1969 amendments to these provisions.

Our interpretation of the statutory “agent” language appropriately limits the liability of a contractor as agent for a general contractor or owner for job site injuries to those areas and activities within the scope of the work delegated or, in other words, to the particular agency created. Stellmack, for example, was the Village of Endicott’s agent with respect to the heating, ventilation and air-conditioning work. It was not the village’s agent with respect to the general construction activity which produced the plaintiff’s injury, i.e., the erection, maintenance and dismantling of the scaffolding equipment.

In the case now before us the two parties with nondelegable statutory liability for plaintiff’s injury, the general contractor and the owner, were not named as defendants in the action. The three prime contractors who were sued were only responsible for plumbing, electrical, and air-conditioning, heating and ventilation installation. Accordingly, these defendants were never delegated the general construction work in which plaintiff was engaged at the time of his injury and therefore were in no way responsible for the work giving rise to the duties referred to in and imposed by sections 240 and 241 of the Labor Law. For these reasons, the order of the Appellate Division should be affirmed.

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

Order affirmed, with costs to defendants-respondents against plaintiffs-appellants and to third-party respondents against thirty-party appellants.


source: Caselaw Access Project

license: Public Domain

text:
    The People of the State of New York ex rel. Agatha Sibley, Individually and on Behalf of Willie Sheppard, an Infant, Respondent, v Mamie Sheppard et al., Appellants.
    Submitted October 12,1981;
    decided November 19, 1981

      POINTS OF COUNSEL

      Helen L. Buttenwieser for appellants.
    I. The provision, in section 72 of the Domestic Relations Law, which permits a court to make such directions as it deems to be in the best interests of a child, without a finding that the parents of the child have neglected the child or are otherwise unfit to make determinations as to the child’s welfare is an unconstitutional invasion of familial privacy and an unconstitutional interference with a recognized liberty right of the parents and of the child. (People ex rel. Portnoy v Strasser, 303 NY 539; Meyer v Nebraska, 262 US 390; Pierce v Society of Sisters, 268 US 510; Matter of Zorach v Clauson, 303 NY 161; People ex rel. Kropp v Shepsky, 305 NY 465; People ex rel. Sisson v Sisson, 271 NY 285; Matter of Roe v Doe, 29 NY2d 188; Cleveland Bd. of Educ. v La Fleur, 414 US 632; Wisconsin v Yoder, 406 US 205; Prince v Massachusetts, 321 US 158.) II. Section 72 of the Domestic Relations Law is unconstitutional if it is interpreted to authorize interference with familial privacy and the right to bring up one’s own child, merely because the person seeking to see the child is dissatisfied with the fact that the parents of the child can control the terms, times, and occasions of the visits. III. Plaintiff-respondent’s failure to demonstrate that the best interests of the child requires court intervention, makes the court’s intervention unconstitutional. IV. Since a parent of a deceased mother is no longer a grandparent when the child is adopted, requiring the adoptive family to adhere to court-ordered visitation is unconstitutional.

      James G. Bailey, Kalman Finkel, Mary Marsh Zulack and John T. Kirklin for respondent.
    I. Section 72 of the Domestic Relations Law is plainly constitutional. (Lo Presti v Lo Presti, 40 NY2d 522; Matter of Boscia v Sellazzo, 42 AD2d 781; Matter of Scranton v Hutter, 40 AD2d 296; Smith v Organization of Foster Families, 431 US 816; Meyers v Nebraska, 262 US 390; Pierce v Society of Sisters, 268 US 510; People ex rel. Portnoy v Strasser, 303 NY 539; People ex rel. Sisson v Sisson, 271 NY 285.) II. On the facts and circumstances of this case, the lower court committed no abuse of discretion in finding that it was in the best interest of the child to grant visitation rights to the maternal grandmother after the child’s adoption by his paternal grandparents. (Lo Presti v Lo Presti, 40 NY2d 522; Matter of Scranton v Hutter, 40 AD2d 296.) III. The lower court, pursuant to section 72 of the Domestic Relations Law, had the judicial power to grant visitation rights to a maternal grandmother with her grandchild who has been adopted by his paternal grandparents. (Matter of Scranton v Hutter, 40 AD2d 296; Matter of Ehrlich v Ressner, 55 AD2d 953.)
   OPINION OF THE COURT

Chief Judge Cooke.

This opinion upholds the right of a natural grandparent to visitation rights with her grandchild, when authorized by court decree, despite an adoption of the child and the protestations of the adoptive parents.

The judgment, issued out of Supreme Court pursuant to section 72 of the Domestic Relations Law and grounded on a decision that it is in the best interest of an adopted child to allow his maternal grandmother to visit on a specified schedule, did not effect an unconstitutional intrusion into the rights of the adoptive parents, the child’s paternal grandparents.

Willie Sheppard is the grandchild of petitioner, Agatha Sibley. Respondents Mamie and Willie Sheppard are Willie’s paternal grandparents. Willie’s parents, never married, are both deceased.

Willie was born in December, 1968 and resided in petitioner’s house until early August, 1970. A neglect proceeding was instituted against Willie’s mother in October, 1969, and he was removed from petitioner’s house about a week after his mother’s death. Petitioner was neither a party to nor in any way involved in the neglect proceeding.

On removal, Willie was placed as a neglected child in the custody of Leake & Watts Children’s Home. He remained there for about a year, during which time petitioner and her family visited him regularly. In September, 1971, Willie was placed in the foster care of respondents. Petitioner continued to visit Willie regularly until October, 1972, when respondents adopted Willie. Thereafter, respondents generally interfered with and frustrated petitioner’s efforts to visit her grandson and to bring him to her home to visit with his mother’s relatives.

After six years of obstruction by respondents, petitioner commenced this action by writ of habeas corpus pursuant to section 72 of the Domestic Relations Law. Supreme Court ruled that the adoption did not extinguish petitioner’s rights as a grandparent and that the statutory scheme did not amount to an invasion of the family’s right of privacy such as would violate the Fourteenth Amendment. The court thereupon awarded visitation rights to petitioner. The Appellate Division, First Department, affirmed, without opinion. On reviewing the same issues, this court now affirms.

Section 72 of the Domestic Relations Law recognizes a grandparent’s interest in visitation and provides that, when one or both parents are deceased, a proceeding in habeas corpus may be brought against a person who has “the care, custody, and control of” the grandchild. On its face, the section encompasses the situation where the child has been adopted. Respondents urge, however, that section 117 of the Domestic Relations Law, which describes the adoption’s effect'on the rights and obligations of the natural and adoptive parents and those of the child, severs all of the child’s ties to its natural family. In respondents’ view, the natural grandparents’ status is terminated and the availability of the section 72 mechanism is limited to the nonadoptive custodial setting. This analysis, however, interprets section 117 overbroadly and would interfere with the court’s ability to protect the best interest of the child.

Section 117 itself does not pretend to discourage all contacts between an adoptive child and its natural relatives. Rather, the statute recognizes that such contacts may exist and that the natural relatives may desire to perpetuate the sense of family, for example, by bequeathing property to the adopted child (see Domestic Relations Law, § 117, subd 2). The bulk of the statute refers to intestacy and succession. Where any mention of other rights and duties is made, it is only in the context of the natural and adoptive parents’ parental duties (see, also, Domestic Relations Law, § 110). Nothing in the statute purports to abrogate the interests of the grandparents, and the child, in continued contacts.

Had the Legislature intended section 117 to limit section 72 in the manner urged by respondents, either or both sections could have expressly reflected that intention. In substance, section 117 has been a part of this State’s law since 1938 (see L 1938, ch 606). Section 72 was added in 1966 (L 1966, ch 631), the same year in which section 117 was amended to provide specifically that an adopted child retained any interest he or she might have under the will or inter vivos instrument of any member of the natural family (L 1966, ch 14). The Legislature, presumed to know what statutes are in effect when it enacts new laws (Easly v New York State Thruway Auth., 1 NY2d 374, 379), must have been aware of section 117 when it enacted section 72 and intended each to have full effect. The language of neither section supports respondents’ interpretation.

As noted, section 72 permits a proceeding against any person who has custody. Nothing in that section excludes custody obtained through adoption. The purpose of the section, as manifested by its own terms, is to facilitate maintenance of family ties between grandparents and grandchildren where one or both of the natural parents have died. This court declines to ascribe to the Legislature an intention to proscribe maintenance of such ties simply because the grandchild has been placed for adoption, particularly where the placement is with the family of one of the deceased parents. Indeed, the statute expressly accords the right to seek visitation in the event of the death of both parents, a circumstance frequently found in the adoption setting.

Respondents in effect seek to create a conflict between the two sections where none exists. Each section was designed to accomplish its own purpose. Section 117, among other things, defines the rights and obligations of the natural and adoptive parents with respect to the child’s care and custody. Section 72 simply gives to grandparents the right to seek contact with their grandchild when such contact will be in the child’s best interest and will not unduly hinder the adoptive relationship. The rights recognized under section 72 are unaffected by section 117.

An adopted child may not in all respects be isolated from his or her natural family. Some may perceive an inconsistency in the termination of some rights, but not others, between the adoptive child and the natural family. If such exists, the desire for consistency in the law should not of itself sever the bonds between the child and the natural relatives.

Having determined that petitioner’s rights under section 72 of the Domestic Relations Law were not terminated by Willie’s adoption, we now pass to the question of the procedure’s constitutionality. The essence of respondents’ challenge is that, under the circumstances, the action amounts to an unconstitutional invasion of familial privacy.

It is well settled that parents generally have a right under the Fourteenth Amendment to raise their families as they see fit (see Prince v Massachusetts, 321 US 158; Pierce v Society of Sisters, 268 US 510; Meyer v State of Nebraska, 262 US 390; People ex rel. Kropp v Shepsky, 305 NY 465; Matter of Zorach v Clauson, 303 NY 161, affd 343 US 306). As stated by the Supreme Court, “the custody, care and nurture of the child [should] reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder” (Prince v Massachusetts, swpra, at p 166). Indeed, it has been suggested that adoptive parents stand in the same legal position as natural parents (Smith v Organization of Foster Families, 431 US 816, 843, n 49, 844, n 51).

Constitutional protection notwithstanding, parents are not totally free to act as they please. “[T]he family itself is not beyond regulation in the public interest * * *. And * * * rights of parenthood are [not] beyond limitation” (Prince v Massachusetts, 321 US, at p 166, supra). In determining whether a State’s interference with the family relationship is proper, the action will not be reviewed under exacting scrutiny, but according to a less rigorous standard of whether there is a “reasonable relation to any end within the competency of the State” (Meyer v State of Nebraska, 262 US 390, 403, supra; see, also, Cleveland Bd. of Educ. v La Fleur, 414 US 632, 643; Pierce v Society of Sisters, 268 US 510, 535, supra).

Permitting grandparent visitation over the adoptive parents’ objection does not unconstitutionally impinge upon the integrity of the adoptive family. The State, in its role as parens patriae, has determined that, under certain limited circumstances, grandparents should have continuing contacts with the child’s development if it is in the child’s best interest. When one or both of the parents have died, the child usually suffers great emotional stress. By enacting section 72, the Legislature has recognized that, particularly where a relationship between the grandparents and grandchild has been established, the child should not undergo the added burden of being severed from his or her grandparents, who may also provide the natural warmth, interest and support that will alleviate the child’s misery.

Of course, adoptive parents hold many of the same rights as natural parents. The adoptive relationship, however, is solely the creature of statute, unknown to the common law (Betz v Horr, 276 NY 83). Having created the adoptive relationship, the State should be allowed to determine to what extent the child’s contacts with its natural family will be ended. The adoptive family arises out of the State’s concern for the best interest of the child (see Domestic Relations Law, §§114, 116, subd 4). Completion of the adoption process does not oust the State of all power to continue its supervision of the child’s best interest, at least insofar as the question of the natural grandparents’ access to the child is concerned.

It must be emphasized that, as was decided in Lo Presti v Lo Presti (40 NY2d 522), the grandparents do not receive an automatic right of visitation by virtue of the statute. Section 72 expressly provides that the court’s decision is to be rendered “as the best interest of the child may require”. Consequently, visitation rights may not be awarded when doing so will hinder the adoptive relationship.

Furthermore, the power to interfere is severely limited in other respects as well. It does not include any power to decide for the adoptive parents, for example, how and where the child shall be educated, what religious training shall be imposed, what hours the child may keep, or with what friends the child may associate. Nor may the court break up the family unit merely because the court disapproves of the way the adoptive parents have elected to raise the child (cf. Quilloin v Walcott, 434 US 246, 255). These aspects of family integrity remain inviolate. The court may do nothing more than execute the Legislature’s determination that, under appropriate circumstances, an adoptive child’s best interest will be served by continued visits with its natural grandparents.

The instant case exemplifies the wisdom of the policy. Willie had lived with and repeatedly visited his maternal relatives from birth until he was four years old. He continued to visit this side of his family over the next six years, albeit infrequently. He knows his relatives and enjoys playing with his cousins. He is old enough to comprehend their familial relationship and to remember them over the years. There is no concern here about embarrassment to the natural parents, conflicts between the authority of the natural and adoptive parents, or invasion of the natural or adoptive parents’ privacy. Most telling, respondents admit that it would be in Willie’s best interest to continue visiting Mrs. Sibley and her family. Recognizing the established family relationship here and the potential for psychological harm which may arise from the child’s observations of strife between the grandparents over visiting schedules, it cannot be said that ordering visitation at established times unconstitutionally interferes with the respondents’ rights to control who Willie visits and when and where.

Protecting the best interest of a child is unquestionably a proper exercise of the police power. Permitting the natural grandparents to bring the child’s custodian into court to determine whether they should be granted the right to visit the child is a procedure reasonably related to the goal of protecting the best interest of the child. It must be reiterated that this is a factual question involving as a primary consideration the avoidance of hindering the adoptive relationship. There is nothing to suggest that respondents’ authority over and relationship with the child will be improperly hindered by the order.

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

Judges Jasen, Gabrielli, Jones, Wachtler, Fuchs-berg and Meyer concur.

Order affirmed.

      . Section 72 of the Domestic Relations Law states in full:
      “§72. Habeas corpus to obtain visitation rights in respect to certain infant grandchildren
      “Where either or both of the parents of a minor child, residing within this state, is or are deceased, or where circumstances show that conditions exist which equity would see fit to intervene, a grandparent or the grandparents of such child may apply to the supreme court for a writ of habeas corpus to have such child brought before such court; and on the return thereof, the court, by order, after due notice to the parent or any other person or party having the care, custody, and control of such child, to be given in such manner as the court shall prescribe, may make such directions as the best interest of the child may require, for visitation rights for such grandparent or grandparents in respect to such child.”

      . Section 117 of the Domestic Relations Law states in full:
      §117. Effect of Adoption
      “1. After the making of an order of adoption the natural parents of the adoptive child shall be relieved of all parental duties toward and of all responsibilities for and shall have no rights over such adoptive child or to his property by descent or succession, except as hereinafter stated.
      “The rights of an adoptive child to inheritance and succession from and through his natural parents shall terminate upon the making of the order of adoption except as hereinafter provided.
      “The adoptive parents or parent and the adoptive child shall sustain toward each other the legal relation of parent and child and shall have all the rights and be subject to all the duties of that relation including the rights of inheritance from and through each other and the natural and adopted kindred of the adoptive parents or parent.
      “When a natural or adoptive parent, having lawful custody of a child, marries or remarries and consents that the stepfather or stepmother may adopt such child, such consent shall not relieve the parent so consenting of any parental duty toward such child nor shall such consent or the order of adoption affect the rights of such consenting spouse and such adoptive child to inherit from and through each other and the natural and adopted kindred of such consenting spouse.
      “The right of inheritance of an adoptive child extends to the distributees of such child and such distributees shall be the same as if he were the natural child of the adoptive parent.
      “Adoptive children and natural children shall have all the rights of fraternal relationship including the right of inheritance from each other. Such right of inheritance extends to the distributees of such adoptive children and natural children and such distributees shall be the same as if each such child were the natural child of the adoptive parents.
      “The consent of the parent of a child to the adoption of such child by his or her spouse shall operate to vest in the adopting spouse only the rights as- distributee of a natural parent and shall leave otherwise unaffected the rights as distributee of the consenting spouse.
      “2. This section shall apply only to the intestate descent and distribution of real and personal property and shall not affect the right of any child to distribution of property under the will of his natural parents or their natural or adopted kindred whether such natural parent or kindred shall have died heretofore or shall die hereafter or under any inter vivos instrument heretofore or hereafter executed by such natural parent or his or her kindred.
      “3. The provisions of law affected by the provisions of this section in force prior to March first, nineteen hundred sixty-four shall apply to the estates or wills of persons dying prior thereto and to inter vivos instruments theretofore executed which on said date were not subject to grantor’s power to revoke or amend.”

      . This State is not alone in limiting the effect of a statute such as section 117 (see Estate of Zook, 62 Cal 2d 492, 494-495; Boquemore v Boquemore, 275 Cal App 2d 912).


author: Meyer, J.

text:
    Executive Bank of Fort Lauderdale, Florida, Respondent-Appellant, v George A. Tighe et al., Appellants-Respondents.
    Argued October 13, 1981;
    decided November 23, 1981

      POINTS OF COUNSEL

      William W. Owens for appellants-respondents.
    I. No matter how close an indorser’s or a guarantor’s connection with the primary obligor may be, the Florida appellate courts hold that a creditor may never recover a deficiency judgment if he has failed to give the indorser or the guarantor the advance notice of sale of the collateral which is required by section 679.9-504 (subd 3) of the Florida Statutes Annotated, (Commercial Credit Corp. v Lane, 466 F Supp 1326.) II. Even if actual knowledge by the debtor were to excuse the failure of the creditor to give notice of the sale, the conclusion of the court below is irrational. III. Defendants were indorsers, or “accommodation parties”. IV. The provisions in the notes do not, and could not lawfully, excuse plaintiff from the usual consequences of negligent loss of the collateral. (Rentways, Inc. v O’Neill Milk & Cream Co., 308 NY 342; 67 Wall St. Co. v Franklin Nat. Bank, 37 NY2d 245; Ditmars-31’ St. Dev. Corp. v Punia, 17 AD2d 357; Eagle Star Ins. Co. v International Proteins Corp., 45 AD2d 637.) V. Defendants are entitled to the return of the certificates for Harris shares which they deposited with plaintiff at the time they indorsed the notes.

      Frank M. Headley, Jr., and Robert P. Dohn for respondent-appellant.
    I. Plaintiff’s action is not barred by subdivision 3 of section 9-504 of the Uniform Commercial Code. (Mikanis Trading Corp. v Block, 59 AD2d 689; First Nat. City Bank v Cooper, 50 AD2d 518; Stanchi v Kemp, 48 AD2d 973; Security Trust Co. of Rochester v Thomas, 59 AD2d 242; Maguire Leasing Corp. v Falb & Co., 49 AD2d 540; Long Is. Trust Co. v Porta Aluminum, 63 AD2d 670; Central Budget Corp. v Garrett, 48 AD2d 825.) II. Defendants had reasonable notice of the February 7, 1974 sale. (Chase Manhattan Bank, N. A. v Natarelli, 93 Misc 2d 78.) III. Defendants are not entitled to the return of the Harris stock until their debt is paid.
   OPINION OF THE COURT

Meyer, J.

The guarantor of a promissory note is not released by the payee bank’s failure to file a financing statement covering the collateral posted by the debtor when the note contains provisions which permit the bank to reduce or release collateral. Nor is the bank obliged, after its security interest has been invalidated in the payor’s bankruptcy proceeding, to give the guarantor notice that the intended collateral is to be sold by the trustee in bankruptcy. The judgment appealed from should be modified to grant plaintiff judgment for the full amount of the note with interest, without reduction for the value of the intended collateral, and, as so modified, affirmed, with costs to plaintiff in all courts.

I

The appeal and cross appeal are before us as of right pursuant to CPLR 5601 (subd [d]). They bring up for review, as necessarily affecting the final judgment appealed from, two prior nonfinal orders of the Appellate Division. The first of those orders, on defendant guarantors’ appeal from a judgment for plaintiff bank for the full amount of the notes sued on, reversed on the ground that by failing to perfect its security interest in the debtors’ inventory which constituted the collateral for the notes, the bank had discharged pro tanto the guarantors’ obligation (66 AD2d 70) and remitted the matter for determination of the amount of the loss suffered through that failure.

On remand Trial Term dismissed the complaint, holding that plaintiff’s proof of value (the record of the public sale in the bankruptcy proceeding, confirmed by the Bankruptcy Court) was insufficient to establish the value of the inventory, and ordered certain stock certificates put up by defendant guarantors returned to them. On second appeal by plaintiff, the Appellate Division reversed (75 AD2d 574), holding the bankruptcy record to have been prima facie proof of the value of the inventory and rejecting defendants’ contention that plaintiff’s failure to notify them of the time and place of the bankruptcy sale barred recovery by plaintiff.

On remand Trial Term after trial entered judgment for the plaintiff for the amount of the note plus interest, less the amount ($6,800) received on sale of the inventory by the Bankruptcy Court and an additional sum ($660.02) received by plaintiff as a dividend payable to it as a general creditor in the bankruptcy proceeding. The judgment also dismissed defendants’ counterclaim for return of their stock certificates. For the reasons hereafter stated we conclude that (1) plaintiff was under no duty to notify defendants of the bankruptcy sale, (2) plaintiff’s failure to perfect its security interest does not affect defendants’ obligation as guarantors, and (3) plaintiff is entitled to hold the stock certificates until the judgment in plaintiff’s favor is satisfied. We, therefore, direct modification of the judgment appealed from and affirmance as above set forth.

II

The factual setting can be quickly stated. Plaintiff loaned $15,000 on two promissory notes executed by Austin Sporting Goods, Inc., of Fort Lauderdale, Florida, and Stuart G. and Jacqueline P. Austin. Mr. Austin represented to the bank officer that the notes would be indorsed by defendants (his aunt and uncle), and after they arrived in Florida for a visit they did sign the notes. The capacity in which they signed does not appear from the face of the notes, but for purposes of this opinion it will be assumed that it was, as defendants claim, as guarantors. The loan was collateralized by the inventory and equipment of Austin Sporting Goods, Inc. The corporate stock which is the subject of the counterclaim was delivered to the bank by defendants on the day that they signed the notes. Whether it was intended to secure their own or the corporation’s obligations is not clear but as hereafter appears is not material.

A financing statement covering the inventory and equipment and naming Austin Sporting Goods as debtor was filed with the Clerk of Broward County, Florida. Some eight months later Austin Sporting Goods declared bankruptcy and the trustee, having disputed the validity of plaintiff’s security interest, was authorized to and did sell the inventory and equipment free of that interest. Ultimately, the Bankruptcy Court held plaintiff’s inventory lien void, because it should have been, but was not, filed with the Secretary of State of Florida. Plaintiff was, however, permitted to file a claim as a general creditor and as such thereafter received the $660.02 dividend referred to above.

Ill

Defendants’ claim that plaintiff was obligated to give it notice of the bankruptcy sale is predicated upon subdivision 3 of section 679.9-504 of Florida Statutes Annotated which, as it existed at the time the notes were executed, provided in pertinent part that “reasonable notification of the time and place of any public sale or reasonable notification of the time after which any private sale or other intended disposition is to be made shall be sent by the secured party to the debtor.” Though Florida holds that a guarantor is a debtor within the meaning of that provision (Barnett v Barnett Bank of Jacksonville, 345 So 2d 804 [Fla]; Hepworth v Orlando Bank & Trust Co., 323 So 2d 41 [Fla]; Turk v St. Petersburg Bank & Trust Co., 281 So 2d 534 [Fla] ; accord Chase Manhattan Bank v Natarelli, 93 Misc 2d 78; and see Ann., 5 ALR4th 1291), that holding does not help defendants for it is only a sale by a secured party of which the section requires notice to be given (Sands v Citi zens & So. Nat. Bank, 146 Ga App 853; Magnavox Fort Wayne Employees Credit Union v Benson, 165 Ind App 155). This follows from the fact that subdivision 3 is but part of a section which must be read as a whole. Clear from the caption of the section and from three of its other four subdivisions is it that the section deals only with a sale by a secured party. The caption reads in part “Secured party’s right to dispose of collateral after default”; subdivision 1 states that “A secured party after default may sell”; subdivision 2, that “the secured party must account to the debtor for any surplus”; and subdivision 4 begins “When collateral is disposed of by a secured party after default.” Thus, it is only a sale made by the secured party and not one made by a court-appointed receiver or trustee or by a prior lienholder of which the debtor or guarantor is entitled to notice (Sands v Citizens & So. Nat. Bank; supra; Magnavox Fort Wayne Employees Credit Union v Benson, supra). Plaintiff bank was under no duty to give defendants notice of the sale conducted by the bankruptcy trustee.

IV

The Appellate Division held that the proper construction of section 3-606 of the Uniform Commercial Code is that the creditor’s failure to file a lien resulting in the loss of collateral discharges the surety pro tanto, unless excused by clear and unequivocal language in the agreement between the parties, and that the provisions of the notes to which it referred were not sufficiently clear and unequivocal to constitute the necessary consent. We need not consider the effect of failure to file absent consent, for we hold the provisions of the note to- constitute consent by defendants within the meaning of the code.

Section 673.3-606 of Florida Statutes Annotated provides, in pertinent part, in subdivision (1) :

“The holder discharges any party to the instrument to the

extent that without such party’s consent the holder:

* * *

“(b) Unjustifiably impairs any collateral for the instrument given by or on behalf of the party or any person against whom he has a right of recourse.”

The purpose of the provision is as concerns a guarantor to protect him against the increase in liability he is subject to if the collateral for the guaranteed loan is not available for payment of the loan or for reimbursement, under general subrogation principles, of the guarantor after he has been required to pay the borrower’s debt. But, as we recognized in Indianapolis Morris Plan Corp. v Karlen (28 NY2d 30), a guarantor may consent to impairment of collateral and, as it noted in Official Comment 2 of the Uniform Commercial Code, such consent “operates as a waiver of the consenting party’s right to claim his own discharge.” The only limitation upon such consent is that set forth in subdivision 3 of section 671.1-102 of Florida Statutes Annotated. That subdivision provides: “The effect of provisions of this code may be varied by agreement, except as otherwise provided in this code and except that the obligations of good faith, diligence, reasonableness and care prescribed by this code may not be disclaimed by agreement but the parties may by agreement determine the standards by which the performance of such obligations is to be measured if such standards are not manifestly unreasonable.” Examining the provisions of the note against this background, we conclude that defendants did, by reason of the provisions in the notes they signed, consent to the claimed impairment.

The note provided that “Additions to, reductions or exchanges of * * * the Collateral * * * may from time to time be made without affecting the provisions of this note”, and that “All parties liable for the payment or collection hereof * * * consent to * * * the release of any obligor or collateral or any part thereof, with or without substitution.” The Appellate Division distinguished a release from a failure to file on the basis that the former is a deliberate act at a future time whereas the latter is a negligent act which occurs at the threshold of the transaction. From a guarantor’s point of view it makes no difference when or with what intent, short of bad faith, the collateral is reduced or released. From his point of view the effect (increase of his potential liability through the decrease of his source of reimbursement) is exactly the same. We agree with the holding of the Maryland Court of Appeals in Etelson v Suburban Trust Co. (263 Md 376, 378-379) that the failure to file a financing statement did not discharge the guarantors, who had consented to “release * * * of any collateral”, because “the Etelsons by agreeing to the broad language of the endorsement limited the protection to which they might have otherwise been entitled under the UCC. It is clear from the express wording of the endorsement that the Bank could have released the collateral at any time without notice to the Etelsons and without the release affecting the Etelsons’ obligation to pay. It would be illogical to rule that the Bank had a duty to file the financing statement and its failure to do so released the endorsers, when under the endorsement it could have released the collateral with impunity.” Similar holdings in American Bank of Commerce v Covolo (88 NM 405); Greene v Bank of Upson (231 Ga 287, 288); Haney v Deposit Guar. Nat. Bank (362 So 2d 1250,1252 [Miss]) ; and Lafayette Bank & Trust Co. v Silver (58 Misc 2d 891, 893; see, also, White & Summers, Uniform Commercial Code [2d ed], § 13-15, p 527) appear to us to state the better rule.

Under the foregoing provisions defendants relieved the bank of liability for its inadvertent misfiling of the financing statement with the county clerk. Plaintiff is, therefore, entitled to judgment for the full amount of the notes without reduction for loss of the collateral.

V

With respect to their counterclaim, defendants argue that the corporate shares in question were pledged solely to secure performance of their obligation as guarantors and not as collateral for the note. The Appellate Division appears to have concluded otherwise (66 AD2d 70, 71-72, supra), but the distinction is not material. Had defendants succeeded in their argument that the bank was barred by lack of notice from obtaining any judgment, they would be entitled to return of their stock because neither they nor Austin Sporting Goods, Inc., could be liable to the bank.

Defendants concede, however, that the shares were pledged “as security for the performance of their own obligations”. Until those obligations, as embodied in the modified judgment to be entered in consequence of this opinion, have been liquidated, plaintiff is entitled to retain the security pledged (Fla Stats Ann, § 679.9-105, subd [1], par [d] ; § 679.9-501, subd 1; § 679.9-506; see 72 CJS, Pledges, § 46, subd [g]; §§ 47,48, pp 86-90).

Accordingly, the judgment appealed from should be modified, as above set forth, and, as so modified, affirmed, with costs to plaintiff in all courts.

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

Judgment modified, with costs to plaintiff in all courts, in accordance with the opinion herein, and, as so modified, affirmed.

      . The section corresponds to section 9-504 of the Uniform Commercial Code. The Florida rather than the New York version of the code is referred to because there are slight differences between the two and, the notes having been executed and to be performed in Florida and all parties except defendants being resident in Florida, its version of the code governs. One of the purposes of the code being “to make uniform the law among the various jurisdictions” (Fla Stats Ann, § 671.1-102, subd 2, par c), Florida courts in the interest of achieving uniformity and in the absence of Florida authority to the contrary, review and rely upon the decisions of other code states in interpreting the code (Fritz v Belcher Oil Co., 363 So 2d 155, 158, cert den 372 So 2d 468 [Fla] ; Mason v Avdoyan, 299 So 2d 603 [Fla]), and in reaching the conclusions stated below we have done likewise.

      . In 1979 the provision was amended by inserting after the last word of the above quotation the words “if he has not signed after default a conspicuous statement renouncing or modifying his right to notification of sale”. The note contains a provision that “Bank * * * need not collect interest on or principal of any collateral or give any notice with respect to it.” We need not, in view of the conclusion we reach, decide whether prior to the 1979 amendment such a waiver provision was valid under Florida law.

      . Official Comment 1 to section 671.1-102 of the Florida Statutes Annotated states: “The text of each section should be read in the light of the purpose and policy of the rule or principle in question, as also of the Act as a whole.”

      . Section 671.1-109 of the Florida Statutes Annotated states that “Section captions are parts of this code.”

      . Section 3-606 of the Uniform Commercial Code, as enacted in New York, is identical except that it does not capitalize the word “Unjustifiably”.

      . Section 1-102 of the Uniform Commercial Code as enacted in New York is identical except for the use of the word “Act” where the Florida provision uses the word “code”. Similar language relating to collateral appears in subdivision 3 of section 679.9-501 of the Florida Statutes Annotated (and Uniform Commercial Code, § 9-501, as adopted in New York), the only difference in language being in the words underscored in the quotation that follows: “but the parties may by agreement determine the standard by which the fulfillment of these rights and duties is to be measured if such standards are not manifestly unreasonable.”

      . It is not contended that the filing of the financing statement in the wrong office was an intentional act done in bad faith.

      . Plaintiff also argues that the provision of the note which required the bank to exercise reasonable care in the preservation of collateral in its possession but further provided “no omission to do any act not requested by obligors shall be deemed a failure to exercise reasonable care” also operated to excuse its failure since the guarantors never expressly requested the bank to file the financing statement with the Secretary of State. In view of the conclusion that we have reached with respect to the reduction and release provisions of the note, we do not reach that question.


author: Jasen, J.

text:
    The People of the State of New York, Respondent, v Norman Lipton, Appellant.
    Argued October 15, 1981;
    decided November 23, 1981

      POINTS OF COUNSEL

      Herald Price Fahringer and Barbara Davies Eberl for appellant.
    I. Dr. Lipton’s conduct in merely writing illegal prescriptions does not constitute an unlawful sale of a controlled substance in violation of article 220 of the Penal Law. Therefore, his conviction must be reversed and those counts dismissed. (Matter of Tonis v Board of Regents of Univ. of State of N. Y., 295 NY 286; Matter of Albano v Kirby, 36 NY2d 526; Courtesy Sandwich Shop v Port of N. Y. Auth., 12 NY2d 379; Lederman v McLean Trucking Co., 41 AD2d 5; Zachary v Macy & Co., 39 AD2d 116, 31 NY2d 443; County of Rockland v Kolb, 90 Misc 2d 697; Matter of De Pasquale v Board of Regents of Univ. of State of N. Y., 7 AD2d 692; People v Shukla, 82 Misc 2d 912, 58 AD2d 879, 44 NY2d 756; People v Flickinger, 88 Misc 2d 64; Papchristou v City of Jacksonville, 405 US 156.) II. The court’s failure to charge that Stephen Raia and Patrick Ryder, among others, were accomplices as a matter of law, together with an inadequate definition of the term “accomplice” denied appellant a fair trial. (People v Berger, 52 NY2d 214; People v Daniels, 37 NY2d 624; People v Craft, 67 AD2d 1097; People v Tamulewicz, 73 AD2d 984; People v Cohen, 73 AD2d 603; People v Basch, 36 NY2d 154; People v Beaudet, 32 NY2d 371; People v Diaz, 19 NY2d 547; People v Werner, 55 AD2d 317.) III. The court erred in telling the jury “the law does warrant the presumption * * * that the person intended the results to follow and acts which he intentionally commits which ordinarily do follow such acts” in direct contradiction of the rule announced in Sandstrom v Montana. (Sandstrom v Montana, 442 US 510; People v Marr, 50 NY2d 456; People v Egan, 72 AD2d 239; People v Gray, 71 AD2d 295; People v Cavallerio, 71 AD2d 338; People v Getch, 50 NY2d 456; Morissette v United States, 342 US 246; United States v United States Gypsum, 438 US 422; People v Michael, 48 NY2d 1; People v Ermo, 47 NY2d 863.) IV. The imposition of a sentence of six years to life was excessive in light of the circumstances of the case. Accordingly, this court should, as a matter of discretion, reduce the minimum term to one year. (Gregg v Georgia, 428 US 153; People v Johnson, 67 AD2d 639; People v Johns, 69 AD2d 755; People v Cruz, 60 AD2d 872.)

      Richard A. Hennessy, Jr., District Attorney (John A.

      Citando and Gail N. Uebelhoer of counsel), for respondent.
    I. On the instant record, appellant’s participation in the drug conspiracy is sufficient to impose liability on him for the sale of those drugs. (People v Jones, 63 AD2d 582; People v Goetz, 77 Misc 2d 319; People v Pilgrim, 67 AD2d 554; People v Davis, 95 Misc 2d 1010; People v Lawson, 84 Misc 2d 24; Matter of Tonis v Board of Regents of Univ. of State of N. Y., 295 NY 286; Jin Fuey Moy v United States, 254 US 189; United States v Badia, 490 F2d 296; People v Atkins, 76 Misc 2d 661; People v McGee, 49 NY2d 48.) II. The courts charge to the jury was proper in all respects. (People v Liccione, 63 AD2d 305, 50 NY2d 850; People v Thomas, 50 NY2d 467; People v De Mauro, 48 NY2d 892; People v Teeter, 47 NY2d 1002; People v Gurley, 42 NY2d 1086, 43 NY2d 793; People v Patterson, 39 NY2d 288, affd sub nom. Patterson v New York, 432 US 197; Hankerson v North Carolina, 432 US 233; People v Johnson, 185 NY 219; People v McCallam, 103 NY 587; People v Leahy, 60 AD2d 558.) III. The less than maximum sentence was proper. (People v Buchanan, 57 AD2d 971; People v Harris, 57 AD2d 663; People v Valenti, 56 AD2d 957; People v Finke, 51 AD2d 1089; People v Junco, 43 AD2d 266, 35 NY2d 419, 421 US 951; People v Dittmar, 41 AD2d 788; People v Discala, 45 NY2d 38; People v Gittelson, 18 NY2d 427; People v Burke, 39 NY2d 729; People v Dullen, 60 AD2d 785.)
   OPINION OF THE COURT

Jasen, J.

We are asked to decide on this appeal whether a physician who unlawfully issues prescriptions knowing that they will be used for illicit trafficking in drugs can be found guilty of criminal “sale” of a controlled substance under article 220 of the Penal Law.

Defendant was a licensed physician who engaged in the general practice of medicine in Cazenovia, New York. Beginning in January, 1978 and continuing for an eight-month period, defendant embarked on a scheme with one Stephen Raia which eventually led to defendant’s arrest and conviction. With names supplied primarily by Raia, defendant would write prescriptions for various quantities of Demerol, quaalude, biphetamine and desoxyn. The names listed on the prescriptions were rarely those of any of defendant’s patients, and, in one instance, the name of a deceased patient was used. Information as to the number of prescriptions needed and the drugs required apparently was provided by Raia’s friend, Charles Sallin. The completed prescriptions were taken by Raia, Sallin and others to various local pharmacies to be filled. The drugs obtained were then sold by Sallin on the street or were used to “party” with by Sallin, Raia and others. For his efforts, defendant would receive half the money generated by the sale of the drugs or of the prescriptions themselves. On occasion, defendant would take back a portion of the contraband to support his own addiction to Demerol. In all, over 100 false prescriptions were issued by defendant in furtherance of this illicit scheme.

The continuous availability of. the drugs quickly led to abuse, and, on August 2, 1978, Charles Sallin died from an overdose of Demerol. Apparently prompted by the death of his friend, Raia contacted the Syracuse Police Department and informed an officer in the narcotics division of defendant’s activities. In exchange for being granted immunity from prosecution, Raia agreed to assist in the investigation and consented to having a transmitting device placed on his person.

On August 11, 1978, Raia went to defendant’s home in Manlius, New York, with a list of five names supplied by the police. Raia recited the names to the defendant, who then filled out the blank prescription slips. After Raia left defendant’s house, the five prescriptions immediately were turned over to the investigating officers. Later that day, Raia returned to defendant’s house and gave defendant $345 which also had been supplied by the Syracuse police. Raia, apparently of his own volition, then had defendant write two additional prescriptions, one for quaaludes and the other for desoxyn. It was agreed that the desoxyn was to be for defendant’s own use and the quaaludes for Raia’s. These prescriptions also were seized by the investigating officer, but, for some unexplained reason, were later returned to Raia. Raia had these prescriptions filled the next day, keeping the quaaludes for himself and returning the desoxyn to defendant.

Two weeks later, on August 24, 1978, this pattern of conduct was repeated, only this time at defendant’s office in Cazenovia. Defendant wrote three prescriptions for quaaludes using names supplied by Raia. All three prescriptions were seized by the police as Raia left defendant’s office. Later that day, Raia was given $450 which he turned over to defendant at his home in Manlius.

Five days later, on August 29, 1978, defendant was approached by Patrick Ryder and asked to write a prescription for quaaludes for Ryder’s friend, John Gory. Defendant filled out the prescription in Gory’s name and told Ryder he wanted “over $100” for it. Ryder met Gory that same day, and Gory paid $150 for the prescription. Gory then had the prescription filled and passed out the drugs to his friends. When Ryder returned to defendant’s house, defendant kept $75 for himself and gave $75 back to Ryder. On September 11, 1978, defendant was arrested.

The Onondaga Grand Jury returned a 480-count indictment against the defendant, charging him with numerous violations of the Public Health Law and the Penal Law. Pursuant to GPL 300.40 (subd 6, par [b]), the Trial Judge submitted 37 representative counts to the jury. The court also denied defendant’s motion to dismiss the four counts charging him with criminal sale of a controlled substance.

The jury found defendant guilty of nine counts of violating section 12-b of the Public Health Law, 10 counts of falsifying business records in the first degree (Penal Law, § 175.10), six counts of criminal facilitation in the first degree (Penal Law, § 115.08), one count of criminal possession of a controlled substance- in the seventh degree (Penal Law, § 220.03), one count of unlawfully growing cannabis in violation of section 3382 of the Public Health Law, two counts of criminal sale of a controlled substance in the sixth degree (Penal Law, § 220.31), one count of criminal sale of a controlled substance in the third degree (Penal Law, § 220.39), and one count of conspiracy in the first degree for agreeing to sell certain controlled substances (Penal Law, § 105.17). Defendant thereafter was sentenced to a term of imprisonment of six years to life on the conviction of criminal sale of a controlled substance in the third degree. The sentences imposed on the remaining convictions were to run concurrently, except that the one-year sentences imposed for violating section 12-b of the Public Health Law were to run consecutively to the sentences for criminal possession of a controlled substance and unlawfully growing cannabis. The Appellate Division unanimously affirmed these convictions, and defendant was granted leave to appeal.

In this court, defendant asserts that his conviction for criminal sale of a controlled substance should be reversed. He argues that his conduct in merely writing illegal prescriptions does not constitute an unlawful sale of a controlled substance in violation of article 220 of the Penal Law. For the reasons that follow, the order of the Appellate Division should be modified so as to reverse defendant’s convictions for criminal sale of a controlled substance.

We begin our analysis by reviewing the applicable statutes. Various sections of the Penal Law make it a crime to knowingly and unlawfully “sell” a controlled substance. (Penal Law, § 220.31 et seq.) The word “sell” is defined to mean “sell, exchange, give or dispose of to another, or to offer or agree to do the same.” (Penal Law, § 220.00, subd 1.) “Unlawfully” is defined as “in violation of article thirty-three of the public health law.” (Penal Law, § 220.00, subd 2.)

The Public Health Law also makes it unlawful for “any person to manufacture, sell, prescribe, distribute, dispense, administer, possess, have under his control, abandon, or transport a controlled substance except as expressly allowed by this article.” (Public Health Law, § 3304 [emphasis supplied].) The statute states that the word “ ‘prescribe’ means a direction or authorization, by prescription, permitting an ultimate user lawfully to obtain controlled substances from any person authorized by law to dispense such substances.” (Public Health Law, § 3302, subd 29.) The word “sell” is defined in the same manner as under the Penal Law. (Public Health Law, § 3302, subd 32.) Various penalties are provided for violating the provisions of the Public Health Law relating to controlled substances. (E.g., Public Health Law, §§ 3345, 3380, subd 5; § 3382.) Violation of any provision for which no specific penalty is provided is punishable under section 12-b of the statute or under the Penal Law. Section 12-b of the Public Health Law makes any violator subject to a $2,000 fine, one-year imprisonment, or both.

Although under the Penal Law the term “sell” is expanded well beyond its ordinary meaning of parting with one’s own property for consideration, it cannot be read so broadly as to encompass the act of prescribing drugs. The Legislature, by separately defining the terms “prescribe” and “sell” in the Public Health Law and cross-referencing that statute to the various sections of article 220 of the Penal Law, has made clear that the two words have a precise and distinct meaning. Indeed, in Matter of Tonis v Board of Regents (295 NY 286), this court, in interpreting provisions nearly identical to those found in the current Penal Law and Public Health Law (see former Penal Law, § 1751; former Public Health Law, §§ 421, 423), held that a doctor who, while acting outside the course of his regular practice, issued two prescriptions to a known morphine addict did not unlawfully “sell” drugs even though the addict thereafter was able to obtain the morphine sulfate from a pharmacist. Nothing in the legislative history since our decision in Tonis (see Penal Law, art 220; L 1973, ch 276; L 1965, ch 1030) indicates that a different holding should obtain today. (Accord People v Shukla, 82 Misc 2d 912, affd on other grounds 58 AD2d 879, affd 44 NY2d 756; cf. Matter of De Pasquale v Board of Regents of Univ. of State of N. Y., 7 AD2d 692.)

Nor does the People’s reliance on the rule issued by the Commissioner of Health serve to alter this result. (See 10 NYCRR 80.65.) That rule, promulgated by the commissioner pursuant to subdivision 2 of section 3308 of the Public Health Law, merely provides that a prescription issued to an addict or habitual user not in the course of professional treatment for the purpose of maintaining his or her habit “is not a prescription within the meaning of subdivision 30 of section 3302 of the Public Health Law.” This rule, assuming its applicability to the facts of this case, does nothing in terms of clarifying or reformulating the definition of the word “sell” under the Penal Law.

In short, under article 220 of the Penal Law, to “prescribe” is not to “sell”. Although to most, a physician who flagrantly disregards his sworn professional obligation and abuses the public’s trust by allowing large quantities of dangerous drugs to enter illicit channels is no less a “pusher” than the layperson on the street who does not have the benefit of a license and medical degree, under the present statutory framework, merely writing a false prescription, even with the knowledge that it is to be used for illegal purposes, does not constitute the criminal “sale” of a controlled substance. Any further criminal sanctions for this type of conduct must come from the Legislature.

This is not to say that a physician who knowingly issues an illegal prescription can never be convicted of criminal sale of a controlled substance.. Indeed, such conduct could render the physician liable as an accomplice for the subsequent sale of the drugs by another person provided it is established that the doctor (1) intentionally aided the other in the commission of the crime; and (2) acted with the mental culpability required for criminal sale of a controlled substance. (Penal Law, § 20.00.) Writing a prescription with the knowledge that it is to be used for an illicit purpose would satisfy the requirement that the physician intentionally assisted in the commission of the crime. However, it must also be shown that, by issuing the prescription, the physician had a specific interest in having the actual drugs sold to some third party. Absent such a specific intent, a physician cannot be held liable as an accomplice to a criminal sale under section 20.00 of the Penal Law even though he intentionally and unlawfully aids another person in obtaining the controlled substance. Stated another way, issuing or selling an illegal prescription with an in-, difference towards whether the person who obtains the drugs from the pharmacy subsequently sells them to others is an insufficient basis for imposing liability upon a physician under article 220 of the Penal Law.

In this case, the jury was instructed that, for purposes of the counts charging criminal sale of a controlled substance, if they found that defendant was an accomplice of Raia, Sallin and Ryder, then the acts of those individuals would be chargeable to the defendant. Nevertheless, a review of the record reveals that there is insufficient proof to sustain defendant’s three convictions for criminal sale of a controlled substance.

For his activities on August 11, 1978, defendant was found guilty of selling 2.4 grams of biphetamine and desoxyn. However, all of the first five prescriptions issued by defendant on that day, including the two prescriptions for desoxyn and biphetamine, were confiscated by the police as Raia left defendant’s house. Although there was evidence that defendant intended that Raia was to sell the drugs to others, the prescriptions were never filled and no drugs were ever obtained. Thus, no sale was ever consummated. As to the remaining prescription for desoxyn issued on August 11, although that prescription was filled, it was written by defendant, albeit in another person’s name, for his own benefit and the drugs obtained were, in fact, consumed by him. As such, this conduct constituted merely a purchase of drugs by defendant through the means of a false prescription. In so acting, defendant assumed the role of a buyer and, therefore, he cannot be convicted of a criminal sale. (See People v Lam Lek Chong, 45 NY2d 64, 73; People v Pasquarello, 306 NY 759.)

Turning to the conviction arising out of the events of August 24, 1978, a similar result obtains. Defendant was found guilty of selling quaaludes on that date. Once again, however, the three prescriptions issued by defendant were taken from Raia by the police before any drugs could be purchased, thereby preventing any subsequent sale from ever taking place.

Finally, as to the events of August 30, 1978, there was also a failure of proof that defendant sold guaaludes. Defendant’s conduct on that date merely consisted of writing, at Ryder’s behest, a prescription which was sold to Gory. Although Gory actually obtained the drugs and passed them out to his friends, there was no evidence that defendant, when he issued the prescription, had any knowledge of or interest in that sale taking place. In fact, Ryder testified that he only told defendant that the prescription was for Gory. Defendant, therefore, cannot be held liable as an accomplice to the subsequent sale of the quaaludes by Gory to his friends.

In order to dispel any possible doubts, it should be emphasized that, although not liable as a seller of drugs, a physician who engages in such activities as those undertaken by the defendant in this case is by no means immune from prosecution. In addition to violating numerous provisions of the Public Health Law for which fines and imprisonment may be imposed, a physician who issues prescriptions knowing that they will be used for illicit trafficking in drugs also can be convicted under the Penal Law for the crimes of criminal solicitation, conspiracy and criminal facilitation, to name but a few. As noted earlier, the record of convictions in this case is a testament to that fact.

Defendant’s remaining contentions merit only a brief discussion. Defendant asserts that the trial court erred by failing to charge that Raia, Ryder and another witness, Jane Otto, were accomplices as a matter of law. Although it was agreed in a conference among the trial court, defense counsel and the prosecuting attorney that said witnesses were accomplices as a matter of law, the court charged that their status was to be determined as a question of fact. This was error. However, by not requesting that the jury be instructed that these individuals were accomplices as a matter of law and then failing to object to the charge as given, defendant has not preserved this issue for appellate review. (See CPL 470.05, subd 2.) As noted by the court below, “had a proper exception been taken, or had a request been made, the court, in light of its prior agreement, would have given the appropriate charge. Moreover, at the end of the charge when the trial court had failed to so charge and at a time when the failure could readily have been corrected, counsel did not except or object to the charge as given. Such inaction under the circumstances may not serve to preserve this issue for review.” (78 AD2d 999; cf. People v Le Mieux, 51 NY2d 981.) Similarly, by not objecting to the jury charge on the ground that the Trial Judge had shifted the burden of proof on the question of his criminal intent (see Sandstrom v Montana, 442 US 510), defendant failed to preserve this issue for review (People v Thomas, 50 NY2d 467.)

Accordingly, the order of the Appellate Division should be modified so as to reverse defendant’s convictions for criminal sale of a controlled substance in the third and sixth degrees, the sentences entered there on should be vacated, and those counts of the indictment should be dismissed. As so modified, the order should be affirmed.

Chief Judge Cooke and Judges Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Order modified in accordance with the opinion herein and, as so modified, affirmed.

      . Defendant also asserts that his conduct in writing the illegal prescriptions is “too far removed” from the unlawful sale of any drugs to render him guilty of conspiracy to sell drugs. This contention is without merit. There is sufficient evidence in the record to support the jury’s verdict that defendant agreed to commit the crime of criminal sale of a controlled substance in the third degree. There is, therefore, no reason to disturb defendant’s conviction of conspiracy in the first degree.

      . Reliance by the People on such cases as United States v Roya (574 F2d 386, cert den 439 US 857) and United States v Boettjer (569 F2d 1078, cert den 435 US 976) also is misplaced. These cases were decided under the Federal controlled substances act (US Code, tit 21, § 801 et seq.). That statute makes it unlawful to “dispense” a controlled substance (US Code, tit 21, § 841, subd [a], par [1]), and the term “dispense” is expressly defined to include the act of “prescribing” a controlled substance (US Code, tit 21, § 802, subd [10]; see Jin Fuey Moy v United States, 254 US 189). As such, these Federal cases offer no guidance in the interpretation of the word “sell” under the New York Penal Law.

      . The Legislature has acted to prohibit one type of abuse in the prescribing of drugs. Section 3304 of the Public Health Law recently has been amended to make it unlawful for “any physician * * * to prescribe, dispense or administer any amphetamines or sympathomimetic amine drug or compound thereof * * * for the exclusive treatment of obesity, weight control or weight loss.” (L 1981, ch 795, eff Sept. 1, 1981.) The amendment expressly provides that its violation “shall not be grounds for prosecution under article two hundred twenty of the penal law.” By subjecting “unscrupulous physicians who continue to prescribe amphetamines indiscriminately” to disciplinary proceedings before the Board of Health, the new law seeks to prevent the widespread abuse of that particular drug. (Executive Memoranda, McKinney’s Session Laws of NY, 1981, Pamphlet No. 6, p A-485.)

      . The indictment originally charged defendant with selling 3 grams of the stimulant. However, pursuant to consent by the parties, this count was amended to charge the sale of only 2.4 grams.


text:
    Howard J. O’Brien, Jr., as Executor of Howard J. O’Brien, Deceased, et al., Appellants, v City of Syracuse et al., Respondents.
    Argued October 13, 1981;
    decided November 19, 1981

      POINTS OF COUNSEL

      Michael P. Oot for appellants.
    I. The present action, being one in trespass, alleging continuing trespass and conscious scheme on the part of defendants including a course and pattern of activity which took place subsequent to the prior article 78 proceeding and alleging a course of conduct which terminated on June 1,1977, is not barred by the doctrine of res judicata. II. The court below improperly applied the rule of law in this State regarding res judicata. (Schuylkill Fuel Corp. v Neiberg Realty Corp., 250 NY 304; Matter of O’Brien v City of Syracuse, 54 AD2d 186; Matter of McGowan v Tully, 45 NY2d 32.)

      David M. Garber, Coryoration Counsel (James L. Gelormini of counsel), for respondents.
    I. The trespass claim, being based on the same facts as the de facto taking claim, may not be asserted. (Matter of Reilly v Reid, 45 NY2d 24; Matter of McLearn v Cowen & Co., 48 NY2d 696; Matter of McGowen v Tully, 45 NY2d 32; Hyman v Hillelson, 79 AD2d 725; Vermont Constr. v Johnson Ind. Painting Contrs., 78 AD2d 317; Cowan & Co. v National Bank of North Amer., 64 AD2d 603; Smith v Kirkyatrick, 305 NY 66.) II. In the alternative, complaint’s dismissal should be affirmed as neither the summons nor the notice of claim was timely served.
   OPINION OF THE COURT

Chief Judge Cooke.

A property owner who unsuccessfully asserts against a governmental entity a claim for de facto appropriation may not later bring another action for trespass in an attempt to recover damages for the same acts as those on which the first lawsuit was grounded. The order of the Appellate Division should be affirmed.

Plaintiffs owned property in an area of Syracuse subject to urban rehabilitation. In 1973, plaintiffs commenced an article 78 proceeding against the same parties as are defendants in the present litigation. In this earlier suit, plaintiffs alleged that defendants had committed a number of acts that so seriously interfered with plaintiffs’ property rights as to amount to a de facto appropriation by the city. In a non jury trial, the 1973 suit was dismissed for failure to establish a de facto taking. The Appellate Division, Fourth Department, affirmed (Matter of O’Brien v City of Syra cuse, 54 AD2d 186, mot for lv to app den 40 NY2d 809, app dsmd 41 NY2d 1008, cert den 434 US 807).

In March, 1978, plaintiffs filed a new complaint, essentially restating the allegations of their previous petition, but with the added averment that the city had taken the property by tax deed on June 1, 1977. Defendants moved to dismiss the complaint on the ground of res judicata, which motion was granted with leave to amend. Plaintiffs then filed an amended complaint reiterating the original complaint’s allegations and adding general statements that defendants “wrongfully, unlawfully and willfully” trespassed upon the property at various times during the period 1967 to 1978, and that the property was damaged during these numerous intrusions. Defendants again moved to dismiss on the grounds of res judicata, Statute of Limitations, and failure to serve timely a notice of claim.

Supreme Court denied the motion on all three points. As to the issue of res judicata, the Trial Judge concluded that no bar existed because there were involved materially different elements of proof for the two theories of recovery, citing Smith v Kirkpatrick (305 NY 66). Specifically, the Judge indicated that an action for de facto appropriation required proof that the city owned the property, while an action for trespass required the plaintiffs to prove title in themselves. As to the two other grounds, the Judge calculated the time from June 1, 1977, when the tax deed was executed, and ruled that the action was not time-barred.

The Appellate Division, Fourth Department, reversed on the reasoning that the entire action was barred by the doctrine of res judicata. That court granted the motion and dismissed the complaint. The order should be affirmed, but on a different basis than that employed by the Appellate Division in viewing the general allegations of trespass in the instant action.

In analyzing the complaint, plaintiffs’ allegations fall into two categories: (1) those concerning activities underlying the 1973 litigation; and (2) those asserting trespass generally. Only the claims encompassed by the first category are definitely barred by res judicata.

This State has adopted the transactional analysis approach in deciding res judicata issues (Matter of Reilly v Reid, 45 NY2d 24). Under this address, once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy (id., at pp 29-30). Here, all of defendants’ conduct falling in the first category was also raised during the 1973 suit as the basis for that litigation. That proceeding having been brought to a final conclusion, no other claim may be predicated upon the same incidents.

Plaintiffs, relying on Smith v Kirkpatrick (305 NY 66, supra), urge that de facto appropriation and trespass are actions having different theoretical bases and requiring different evidentiary proof. This contention, however, erroneously characterizes the bases of the two causes. De facto appropriation does not involve a proof of title in the governmental defendant. Rather, de facto appropriation, in the context of physical invasion, is based on showing that the government has intruded onto the citizen’s property and interfered with the owner’s property rights to such a degree that the conduct amounts to a constitutional taking requiring the government to purchase the property from the owner; only at that point does title actually transfer. “[T]he taking occurs when interference with the owner’s use has occurred to such an extent that an easement by prescription will rise by lapse of time” (Dunham, Griggs v Allegheny County In Perspective: Thirty Years of Supreme Court Expropriation Law, 1962 Ct Rev 63, 87). In effect, de facto appropriation may be characterized as an aggravated form of trespass. The pertinent evidence in both actions is the same. The basic distinction lies in the egregiousness of the trespass and whether it is of such intensity as to amount to a taking.

In any event, even if it were assumed that the two actions involved materially different elements of proof, the second suit would be barred as to the claim predicated upon the first category allegations. When alternative theories are available to recover what is essentially the same relief for harm arising out of the same or related facts such as would constitute a single “factual grouping” (Restatement, Judgments 2d, § 61 [Tent Draft No. 5]), the circumstance that the theories involve materially different elements of proof will not justify presenting the claim by two different actions. Consequently, plaintiffs’ action is barred by the doctrine of res judicata insofar as the allegations in the first category are concerned.

Finally, the second category of allegations — the general trespass allegations — are not barred by res judicata to the extent that they describe acts occurring after the 1973 lawsuit. They are, however, barred by reason of plaintiffs’ failure to serve timely a notice of claim.

A notice of claim is a condition precedent to bringing a tort claim against a municipality (General Municipal Law, § 50-e, subd 1, par [a]). Among other things, the notice must state “the time when, the place where and the manner in which the claims arose” (General Municipal Law, § 50-e, subd 2). The test of the notice’s sufficiency is whether it includes information sufficient to enable the city to investigate the claim (Rivero v City of New York, 290 NY 204; see, also, Leone v City of Utica, 66 AD2d 463, affd 49 NY2d 811; Matter of Powell v Town of Gates, 36 AD2d 220).

The notice of claim preceding the instant action fails to meet this standard. Here, no mention is made of any trespassory acts other than those underlying the 1973 proceeding. Thus, the city received no indication as to when, where, or how the claim stemming from the second category of allegations arose so that it had no opportunity to investigate. Inasmuch as no notice of claim has been filed within 90 days after the alleged claim arose (General Municipal Law § 50-e, subd 1, par [a]), no action based on the second category of allegations may now be brought.

For the reasons stated, the order of the Appellate Division granting the defendants’ motion and dismissing the complaint should be affirmed, with costs.

Judges Jasen, Gabrielli, Jones, Wachtler, Fuchs-berg and Meyer concur.

Order affirmed, with costs.

      . To the extent Smith v Kirkpatrick (305 NY 66, supra) may be to the contrary, it is overruled.

      . The notice refers to the taking by tax deed in 1977. This is a transaction independent from the others and occurring after the termination of the first suit. Thus, it is not barred by the doctrine of res judicata. The taking, however, did not involve any physical intrusion on plaintiffs’ property. As a matter of law, then, it cannot provide a basis for an action in trespass (see Rager v McCloskey, 305 NY 75, 79; Restatement, Torts, § 158, Comments a, b), which is the gravamen of the complaint here.