author: Chief Judge Cooke.

text:
    Teitelbaum Holdings, Ltd., Appellant, v David C. Gold, Respondent, et al., Defendant.
    Argued September 4, 1979;
    decided October 16, 1979

      POINTS OF COUNSEL

      Allen Green for appellant.
    I. The trial court properly ordered the enforcement of the stipulation upon motion. The stipulation expressly provided that a stipulation of discontinuance would not be executed until full payment had been made by respondent. (Matter of New York, Lackawanna & Western R. R. Co., 98 NY 447; Yonkers Fur Dressing Co. v Royal Ins. Co., 247 NY 435; Allard v Allard, 27 AD2d 776; Axin r

      Delibab Corp., 24 AD2d 974; Tirado v Gong Cab Corp., 66 Misc 2d 215; Matter of Longwood Assoc. v Board of Assessors, 58 AD2d 581; Greenberg v New York City Planning Comm., 48 AD2d 830.) II. Respondent clearly defaulted in making the payments owed pursuant to the stipulation of settlement and is not entitled to any offset. III. Respondent Gold was in default pursuant to the stipulation virtually from the execution thereof.

      Emanuel Thebner for respondent.
    I. The Court of Appeals lacks jurisdiction to entertain this appeal. The prior sua sponte dismissal for nonfinality is res judicata. (Matter of Haverstraw Park v Runcible Props. Corp., 33 NY2d 637; Ocean Acc. & Guar. Corp. v Otis Elevator Co., 291 NY 254; City Bank Farmers Trust Co. v Cohen, 300 NY 361; Jackson v National Grange Mut. Liab. Co., 299 NY 333; Matter of Loewy v Binghamton Housing Auth., 4 NY2d 1036.) II. Certification by the court below is improper, not only as the order is untimely, but permits a "plenary trial” of a disputed factual issue, not reviewable by this court. (Yonkers Fur Dressing Co. v Royal Ins. Co., 247 NY 435.) III. The rule of Yonkers Fur Dressing Co. v Royal Ins. Co. (247 NY 435) is sound and viable, fully expressive of the governing principle herein; and no recall nor other change thereof is required or desirable.
   OPINION OF THE COURT

Chief Judge Cooke.

At issue here is an important procedural question concerning whether a stipulation settling a lawsuit may be enforced by way of motion or plenary action. Plaintiff moved for enforcement of the settlement agreement, and Special Term granted the requested relief. On appeal, a closely divided Appellate Division reversed, holding that a plenary action was necessary, inasmuch as the underlying suit had terminated (64 AD2d 568).

There should be a reversal. A settlement agreement entered into by parties to a lawsuit does not terminate the action unless there has been an express stipulation of discontinuance or actual entry of judgment in accordance with the terms of the settlement. Absent such termination, the court retains its supervisory power over the action and may lend aid to a party who had moved for enforcement of the settlement.

Plaintiff, Teitelbaum Holdings, Ltd., commenced an action for breach of contract and fraud arising from the purchase of an apartment building from defendants, David Gold and 73-74 Straw Corp. After impaneling a jury, the parties reached a settlement which was dictated into the record in open court. Under the express terms of that agreement, Gold was to pay to plaintiff five installments of $1,500 and two installments of $3,750 during the period from August 1, 1977 to March 1, 1979. Upon full payment, the parties were to execute a stipulation of discontinuance of the lawsuit. In the event of a default, however, plaintiff would be entitled to accelerate all unpaid installments, on 10 days’ notice to defendants.

A dispute arose between the parties as to the meaning of paragraph 5 of the settlement, which afforded Gold a limited right to set off unpaid installments against amounts due him as third mortgagee of the building. Defendant, purporting to exercise this right, ceased making payments on the settlement. Notice of default was then served by Teitelbaum followed by a motion for judgment in accordance with the acceleration clause. Finding that Gold was not entitled to a setoff, Special Term granted plaintiff’s motion and awarded judgment for the remaining amount owed under the stipulation. The Appellate Division reversed, reasoning that since the settlement did not expressly empower a court to enforce it on motion, the action was "in effect” terminated. The court gave no weight to the "mere fact that the terms of the [settlement] provided for a written stipulation of discontinuance to be executed upon full payment” (64 AD2d, at p 568). In any event, the court found the stipulation too ambiguous for summary enforcement.

The power of a trial court to exercise supervisory control over all phases of pending actions and proceedings has long been recognized (e.g., Barry v Mutual Life Ins. Co., 53 NY 536, 539). Incident to this general authority, a court possesses discretionary power to relieve parties from the consequences of a stipulation effected during litigation (e.g., Matter of Frutiger, 29 NY2d 143, 149-150; Yonkers Fur Dressing Co. v Royal Ins. Co., 247 NY 435, 445; Barry v Mutual Life Ins. Co., supra, at pp 539-540). Such relief usually may be sought, at the option of the parties, by motion interposed in the underlying action or by a plenary action grounded upon the stipulation (see, e.g., Mutual Life Ins. Co. v O’Donnell, 146 NY 275, 279-280; Potter v Rossiter, 109 App Div 737, 739-740; see, also, 2A Weinstein-Korn-Miller, NY Civ Prac, par 2104.06). Because of its relative simplicity and lesser burden upon the litigants and the court, the motion has proven to be the favored procedural mode (see, generally, Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, § 3217:10, at pp 1012-1013).

As a limited exception to this practice, however, it was held in Yonkers Fur Dressing Co. v Royal Ins. Co. (247 NY 435, supra) that a plenary suit is required where the stipulation relates to an action which has previously terminated. Disposition of the present case turns upon the breadth to be accorded the Yonkers rule.

Preliminarily, we recognize that the Yonkers case has been criticized as a vestige of the past which is not in harmony with modern procedural tenets (see, e.g., Matter of Longwood Assoc. v Board of Assessors of County of Nassau, 58 AD2d 581, 582-583 [dissenting opn]; see, generally, Greenberg v New York City Planning Comm., 48 AD2d 830, 831 [dissenting opn]; Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, § 3217:10, at pp 1012-1013). Whatever its theoretical underpinnings, the Yonkers rule drew its justification from the practical notion that there must ultimately be an end to litigation (see 247 NY, at pp 445-446). Compelling as this rationale might have been at the time of that decision, it has been substantially eroded over the intervening decades. Numerous postjudgment remedies are available to litigants upon a properly interposed motion (see, e.g., CPLR 317, 5015). That the existence of these motions has produced no untoward consequences to our jurisprudential scheme is manifest. Nor is it possible to differentiate, in a meaningful respect, motions relating to enforcement of stipulations from other postjudgment relief. Given these factors, there is little basis for refusing to extend the motion procedure, with its ease, simplicity and minimal drain of judicial resources, to the Yonkers situation.

It would be inadvisable, therefore, to apply the Yonkers rule in situations where the parties have not unequivocally terminated their lawsuit. Rather, the presumption in the normal case should be that an action is not automatically terminated merely because an agreement to settle has been made.. This presumption may be overcome only upon a showing that the parties have executed an express, unconditional stipulation of discontinuance, or have entered judgment in accordance with the terms of the settlement. Such a rule will render the salutary features of motion practice more widely available to litigants, at the same time conserving our increasingly precious judicial resources.

In the present case, the parties have not yet executed a stipulation of discontinuance and have not entered judgment pursuant to the terms of the settlement. Indeed, the agreement expressly contemplated discontinuance of the action only after defendant had made payment in full. Enforcement of the settlement by motion was thus warranted.

Turning to the merits, it cannot be said that Special Term erred in its construction of paragraph 5 of the stipulation. Interpretation of an unambiguous contract provision is a function for the court, and matters extrinsic to the agreement may not be considered when the intent of the parties can be gleaned from the face of the instrument (see, e.g., West, Weir & Bartel v Carter Paint Co., 25 NY2d 535, 540). Here, the stipulation afforded defendants a right of setoff in only one instance, namely, where the first and second mortgages were being paid while the third was not. There simply is no basis for viewing this language as ambiguous or as covering situations not expressly mentioned. But even if there had been uncertainty as to the meaning of the settlement, the proper approach would have been to hold an evidentiary hearing and not to relegate the parties to a plenary action (see n 2, supra).

Accordingly, the order of the Appellate Division should be reversed, with costs, the judgment of Special Term reinstated, and the question certified answered in the negative.

Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Order reversed, etc.

      . Paragraph 5 of the stipulation states in pertinent part: "5. Provided plaintiff shall pay all the charges due the first and second mortgagee covering the subject property but shall default in paying the carrying charges of the third mortgagee, then in that event any and all unpaid installments due on the account of the within settlement shall be used as an offset against such default. Except as herein provided for no other offsets shall be valid.”

      . One concern voiced by a number of authorities — and perhaps tacitly underlying the Yonkers decision — is that where the facts relating to the validity of the stipulation are voluminous, or not otherwise ripe for summary disposition, resort to motion practice may be cumbersome (see, e.g., Hallock v State of New York, 58 AD2d 67, 71; Potter v Rossiter, 109 App Div 737, 740, supra). This problem may be obviated by the simple expedient of holding an evidentiary hearing in conjunction with the motion (CPLR 2218; Mutual Life Ins. Co. v O’Donnell, 146 NY 275, 280, supra; Matter of Longwood Assoc. v Board of Assessors of County of Nassau, 58 AD2d 581, 582-583 [dissenting opnj, supra). In this manner, many of the procedural advantages associated with an action may be obtained without the resultant burden upon the parties or drain of judicial resources. If issues are presented as to which there would be a constitutional right to jury trial, that, too, could be assured.


source: Caselaw Access Project

author: Jones, J.

license: Public Domain

text:
    In the Matter of Janice Gunn et al., Appellants, v Barbara Blum, as Acting Commissioner of the New York State Department of Social Services, et al., Respondents.
    Argued September 5, 1979;
    decided October 16, 1979

      POINTS OF COUNSEL

      Frank A. Clark for appellants.
    I. The evidence adduced by respondents at the fair hearing was insufficient to establish (a) that appellants actually own the automobile in question, or (b) that sale of the vehicle would result in a cash surplus sufficient to meet their needs. (Pugh v Hartford Ins. Group, 68 Misc 2d 1014; Britt v Perry, 64 Misc 2d 655; Boyle v Judy Cab Corp., 24 Misc 2d 746; Musso v American Lumberman’s Mut. Cas. Co. of Ill., 14 Misc 2d 450; Matter of Stork Rest, v Boland, 282 NY 256; Matter of Borek v Toia, 56 AD2d 727; Matter of 125 Bar Corp. v State Liq. Auth., 24 NY2d 174; Matter of Lausell v Lavine, 55 AD2d 649; Matter of Luks v Levine, 45 AD2d 801; Matter of Privitera v Lavine, 45 AD2d 915.) II. Termination of public assistance benefits to appellants’ children on the basis of their parents’ failure to dispose of an "available automobile” is contrary to Federal and State law. (Lewis v Martin, 397 US 552; King v Smith, 392 US 309; Van Lare v Hurley, 421 US 338; Cooper v Laupheimer, 316 F Supp 264; Matter of Payne v Sugarman, 39 AD2d 720, 31 NY2d 845; Matter of Ryan v New York State Dept. of Social Servs., 40 AD2d 867; Edwards v Toia, 61 AD2d 1089, 44 NY2d 649; Matter of Franqui v Toia, 62 AD2d 926; Matter of Derocha v

      Berger, 55 AD2d 1042; Matter of Palermo v Toia, 56 AD2d 889.)

      Robert Abrams, Attorney-General (Anne S. Meadvin, Shirley Adelson Siegel and Alan W. Rubenstein of counsel), for Acting Commissioner, New York State Department of Social Services, respondent.
    I. The State commissioner’s determination that the local agency properly discontinued appellants’ grant of public assistance because appellant Thomas Gunn failed to utilize an available, nonessential and valuable resource in order to reduce or eliminate the need for public assistance is supported by substantial evidence. (Landing Estates v Jones, 67 Misc 2d 354; Matter of Hamer v Urstadt, 74 Misc 2d 719; Matter of Pell v Board of Educ., 34 NY2d 222; Matter of Barton Trucking Corp. v O’Connell, 7 NY2d 299; Matter of Neet v Hults, 26 AD2d 970; Matter of Borek v Toia, 56 AD2d 727; Matter of Champion v Lavine, 50 AD2d 183; Ferris v Sterling, 214 NY 249; Shuba v Greendonner, 271 NY 189; McCann v Davison, 145 App Div 522.) II. The New York State Department of Social Services can discontinue assistance to appellants and their children in accordance with State and Federal law for appellants’ failure to liquidate a nonessential automobile which is a resource available to reduce their need for public assistance. (Lavine v Milne, 424 US 577; Wyman v James, 400 US 309; Snell v Wyman, 281 F Supp 853, 393 US 323; Matter of Leiner v Lavine, 52 AD2d 624; Matter of Reynolds v Berger, 54 AD2d 910; Matter of Hagood v Berger, 52 AD2d 584; Matter of Donato v Wyman, 32 AD2d 1061; Matter of Lia v Berger, 57 AD2d 838; Payne v Sugarman, 39 AD2d 720.)

      Nancy S. Jones and James H. Hughes for John Lascaris, respondent.
    I. The determination of an administrative tribunal must stand if based on substantial evidence. II. The evidence presented at the fair hearing was sufficient to establish that (a) appellants own the vehicle in question, (b) the vehicle was not essential to the family’s needs, (c) sale of the vehicle would result in a cash surplus. (Matter of Knowles v Lavine, 34 NY2d 721; Bornhurst v Massachusetts Bonding & Ins. Co., 21 NY2d 581.) III. Failure to dispose of a nonessential automobile will result in reduction or termination of public assistance benefits to entire family. (Friend v Fahey, 57 AD2d 1033; King v Smith, 392 US 309; Matter of Reed v Toia, 63 AD2d 814; Tucker v Toia, 43 NY2d 1.)
   OPINION OF THE COURT

Jones, J.

In the absence of a demonstration of a lack of need, financial assistance directed to dependent children in the form of a grant under the Aid to Families with Dependent Children program may not be discontinued or reduced because their parents have refused to comply with instructions from the Department of Social Services with respect to the disposition of certain nonessential assets belonging to the parents.

Petitioners and their six minor children were the recipients of public assistance pursuant to an Aid to Families with Dependent Children (AFDC) grant. On December 1, 1976 the parents were advised by respondent Onondaga County Department of Social Services that an automobile registered in the name of the husband had been found to be a nonessential resource; accordingly, the department instructed the husband to sell the automobile within 30 days or face discontinuance of the entire grant. The husband failed to dispose of the vehicle and the department, pursuant to its "Notice of Intent to Discontinue Public Assistance” dated December 21, 1976 discontinued the grant as to both parents and all six children effective January 1, 1977.

At the parents’ request, a fair hearing was held before the State commission on January 10, 1977. At the hearing, the husband, appearing without counsel, testified that although the automobile in question was registered in his name it was actually owned and used by his son who had purchased it two years earlier for approximately $1,500. According to the father, the son had transferred the car to his father’s name when he entered into service with the Air Force to be used by the father during the period of the son’s military service. The father further testified that he had been paying all expenses and costs incidental to the operation of the automobile, including insurance payments, but that he did not "use [the car] that much right now”.

By decision dated January 28, 1977 the State commissioner affirmed the discontinuance of the entire grant stating that "[Appellant’s contention that he is not the actual owner of said vehicle is contrary to the credible evidence presented at the hearing. The credible evidence does establish that appellant, the owner of a 1969 Mercury which is not essential to his family’s needs, failed to utilize such resource in order to reduce or eliminate his need for public assistance.”

The parents thereupon commenced the instant article 78 proceeding asserting that the administrative determination was not supported by substantial evidence; that termination of the grant without the prior determination of the value of the Mercury and whether its sale would result in a cash surplus sufficient to meet their needs was error; and finally that termination of assistance to the children based on the parents’ failure to dispose of available resources was error. The Appellate Division confirmed the commissioner’s determination finding it supported by substantial evidence and concluding that the "determination that this resource should have been utilized to reduce public assistance to petitioners and their children was proper”. Leave to appeal was granted by this court, and we now modify the disposition below.

At the outset we note our agreement with the Appellate Division that there was substantial evidence to sustain the commissioner’s findings that the husband was the owner of the automobile and that it was not essential to his family’s needs. The evidence presented demonstrated that he was the registered owner of the vehicle and that he paid all costs relating to its operation. Moreover, while the husband testified that the car was used by the family to purchase groceries and to obtain his unemployment check he also stated that the grocery store was located near his home and that public transportation was available. Accordingly, the record contained evidence sufficient to support the administrative determination in these respects.

It is within the framework of these affirmed factual findings —that the parents failed to utilize a nonessential resource for their, and their children’s, support — that we turn to the issue on which we predicate our modification. At all levels below, once these facts were determined or sustained, the sanction imposed was termination of the entire AFDC grant, to the parents as well as to their children. We now hold that without an additional determination of a present lack of need on the part of the children it was error to discontinue assistance to them.

Our analysis begins with the recognition that we are not here presented with the issue of whether the State and local welfare departments may compel a parent receiving AFDC benefits to apply nonessential resources to his or her own support and that of his or her child who is also receiving AFDC benefits. With this proposition we have no quarrel. Instead, this case presents the question of how this objective is to be accomplished, i. e., whether by the imposition of familiar sanctions against the parent or as well by withholding benefits from the child.

The AFDC program is a joint Federal and State operation designed to provide financial assistance to families with needy children. Its express purpose is to provide aid to dependent children. (Social Services Law, § 343; US Code, tit 42, § 601.) That the protection of dependent children is the paramount goal of the program has often been expressed. Indeed, as recently stated by the Supreme Court of the United States: "The public’s interest in this particular segment of the area of assistance to the unfortunate is protection and aid for the dependent child whose family requires such aid for that child. The focus is on the child and, further, it is on the child who is dependent * * * The dependent child’s needs are paramount”. (Wyman v James, 400 US 309, 318.)

Recognition that the needy child is the primary beneficiary of the AFDC program has most often found articulation in cases similar to the one at bar — where termination or reduction of benefits to the child is sought because of some wrong committed by the parent. Commencing with King v Smith (392 US 309) numerous courts have held that needy children may not be penalized by loss of public assistance on the basis of their parents’ conduct. (See, e.g., Rush v Smith, 573 F2d 110, 118; Bradford v Juras, 331 F Supp 167, 170; Cooper v Laupheimer, 316 F Supp 264, 269.) In King v Smith (supra) the Supreme Court held invalid an Alabama "substitute father” regulation which required the disqualification of otherwise eligible children if their mother "cohabited” with any single or married able-bodied man regardless of the existence of any obligation on the part of that man to support the mother’s children. The court stated that "Congress must have intended that the children in such a situation remain eligible for AFDC assistance notwithstanding their mother’s impropriety”. (392 US 309, 329.)

The lower courts of this State have been equally vigilant in assuring the continued protection of needy children despite the "sin of the parent”. (Rush v Smith, 573 F2d 118, supra.) For example in Payne v Sugarman (39 AD2d 720, affd on other grounds 31 NY2d 845), the Second Department held that notwithstanding the refusal of the parent to comply with a local agency’s demand to execute a bond and mortgage pursuant to section 360 of the Social Services Law, the benefits to the children could not be terminated. Decisions in the First and Third Judicial Departments of the Appellate Division are to similar effect. (See, e.g., Matter of Foster v Blum, 71 AD2d 758 [3d dept]; Matter of Mitchell v Toia, 63 AD2d 890 [1st dept]). Only the Fourth Department has taken a contrary view. In Foster, the Third Department, when confronted with a factual situation indistinguishable from the present, concluded that "Children’s ADC grants cannot be reduced absent a showing of lack of need, notwithstanding the parents’ willful actions which render the parents ineligible for such benefits”. (Matter of Foster v Blum, supra, p 757; see, also, Matter of Paskoff v Toia, 56 AD2d 631.)

We agree. Our decision is premised on several policy considerations. First, in view of the primary goal of the AFDC program, protection of the needy child, any reduction in assistance directed to a dependent child without a corresponding decrease in that child’s need, plainly thwarts the purpose of the program. There is no provision of statute or regulation which provides authority for the actions taken by respondent. To the contrary, we find support for our present conclusion in the fact that several of the State commissioner’s own regulations, dealing with instances of parental misconduct analogous to the present case, specifically provide that benefits to the remaining members of the family shall continue despite the actions of the parent. (See, e.g., 18 NYCRR 351.2 [e] [2] [iv] [failure to co-operate in obtaining child support]; 18 NYCRR 352.30 [d] [noncompliance with the employment training and rehabilitation requirements of State law]; 18 NYCRR 352.30 [f] [refusal to co-operate in applying for SSI benefits].)

Second, while we recognize the department’s obligation to preserve the public fisc by compelling recipients of public assistance to utilize their own resources for their support, we are persuaded that there are alternative means available to accomplish that objective without resorting to terminating aid to needy children. The department can, as they did here, discontinue benefits to the culpable parent while continuing assistance to the innocent children. As previously noted, respondent’s own regulations dealing with other instances of parental misconduct specifically provide for this sanction. A second possible option available to respondents would be to institute support proceedings in Family Court to compel the parents to apply their assets to the support of the child.

Accordingly, for the reasons stated the judgment of the Appellate Division should be modified, without costs, to the extent of vacating that portion of the order of the Appellate Division which confirmed the determination of the commissioner terminating the AFDC grant to the children.

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

Judgment modified, without costs, in accordance with the opinion herein and, as so modified, affirmed.

      . Pursuant to both judicial and statutory stays, respondents have continued to provide assistance to the children pending the ultimate determination of this proceeding. As to the parents, however, no assistance has been awarded since January, 1977.

      . Moreover we note that the issue we now address involves the termination of benefits to a child previously determined to be in need of support. To be distinguished are the procedures available to welfare officials when parent and child first seek to establish eligibility for AFDC benefits. The proper disposition in such instances is not addressed or considered. (Cf. Goldberg v Kelly, 397 US 254.)

      . Charleston v Wohlgemuth (332 F Supp 1175, affd 405 US 970), relied on by respondents, does not require a contrary result. In Charleston a three-Judge District Court sustained a Pennsylvania regulation which denied AFDC benefits to welfare recipients who owned certain types of real estate and who refused to sign a lien agreement giving the State a mortgage interest in that property. The court noted that the "duty to execute the forms rests with adults; the denial of benefits extends to the entire family unit.” (Id., at p 1181.)
      Insofar as pertinent here, the decision in Charleston was predicated on a determination that the Pennsylvania regulatory scheme did not run counter to the provisions of the Federal Social Security Act. Our decision in the instant case, however, is premised not on a finding of inconsistency with Federal statute or policy, but instead on a recognition that, taken in the absence of any authorizing statute or regulation, the department’s actions were unauthorized.

      . Inasmuch as we are not now confronted with either statute or regulation authorizing termination of benefits to an entire family unit based on parental refusal to apply nonessential resources to the support obligation, we need not address the constitutional issue tendered by petitioners (cf. Tucker v Toia, 43 NY2d 1). Accordingly, we express no view on whether such a statute or regulation, if adopted, would pass constitutional muster.

      . It appears from the record that the saving to the State in consequence of the termination of the parents’ grant far exceeds the value of the 1969 Mercury.


text:
    In the Matter of Civil Service Employees Association, Inc., Westchester Chapter, Local 860, et al., Appellants, v Town of Harrison et al., Respondents.
    Argued September 4, 1979;
    decided October 16, 1979

      POINTS OF COUNSEL

      Arthur H. Grae and James M. Rose for appellant.
    I. A collective bargaining agreement in which an employer agrees to promote a senior qualified employee does not violate public policy. (Matter of City of Albany v Helsby, 38 NY2d 778; Matter of Schmidt v Leonard, 77 Misc 2d 435; Orange County Police Benevolent Assoc. v Fischer, 87 Misc 2d 73; People ex rel. Balcom v Mosher, 163 NY 32; Matter of Niagara Wheatfield Administrators Assn. [Niagara Wheatfield Cent. School], 44 NY2d 68; Matter of Cohoes City School Dist. v Cohoes Teachers Assn., 40 NY2d 774.) II. The contentions asserted by respondent, to wit, that the clause in the collective bargaining agreement offering promotional opportunities to the senior most qualified member and that the creation of the job of draftsman was improperly accomplished are both barred by the doctrine of collateral estoppel. (Matter of American Ins.

      Co. [Messinger — Aetna Cas. & Sur. Co.], 43 NY2d 184; Matter of Wolff & Munier [Diesel Constr. Co.], 36 NY2d 750; Matter of Raisler Corp. [New York City Housing Auth.], 32 NY2d 274; Matter of Professional Staff Congress/City Univ. of N. Y. v Board of Higher Educ., 39 NY2d 319; Matter of Aimcee Wholesale Corp. [Tomar Prods.], 26 AD2d 915; Matter of A. R. La Mura, Inc. [Rochelle Arms Apts.], 281 App Div 683; Rochester City School Dist. v Rochester Teachers Assn., 41 NY2d 578; Matter of Gotham Hotel Realty Co. [Ross], 51 Misc 2d 85; Schuylkill Fuel Corp. v Neiberg Realty Corp., 250 NY 304.) III. The court improperly vacated the arbitrator’s award. An analysis of the opinion of Special Term leads to inevitable conclusion that the order was improperly vacated because the court did not agree with the arbitrator’s determination. (Palmer v Board of Educ., 276 NY 222; Matter of Corwin v Farrell, 303 NY 61; Matter of Mandel v Brown, 5 NY2d 51; Matter of Cook v Kern, 278 NY 195; Matter of Mendelson v Kern, 278 NY 568; Rochester City School Dist. v Rochester Teachers Assn., 41 NY2d 578; Matter of Associated Teachers of Huntington v Board of Educ., 33 NY2d 229; Story v Craig, 231 NY 33.)

      Albert J. Pirro, Jr., Town Attorney, for Town of Harrison, respondent.
    I. The New York State Constitution and the Civil Service Law of the State of New York vests exclusive authority in the personnel officer of the county to create new civil service positions for the Town of Harrison and an arbitrator exceeds his powers where the award usurps the statutory and constitutional duty of the county personnel officer. (Petrucci v Hogan, 5 Misc 2d 480; Uniformed Fireman’s Benevolent Assn. v Herten, 23 AD2d 788; Matter of Bates v Lang, 26 AD2d 462; Matter of O’Brien v Lang, 18 AD2d 140, 13 NY2d 688, 375 US 905; People ex rel. Langdon v Dalton, 49 App Div 71, 163 NY 556; Matter of Petrone v Miller, 77 Misc 2d 1028; Matter of Giordano v Henry, 44 AD2d 835.) II. Where, as here, the arbitration award contravenes a clear public policy and authorizes and directs the doing of an act prohibited by statute, the award exceeds the power of the arbitrator. (Matter of Petrone v Miller, 77 Misc 2d 1028; Matter of Cohoes City School Dist. v Cohoes Teachers Assn., 40 NY2d 774; People ex rel. Balcom v Mosher, 163 NY 32; Matter of Giordano v Henry, 44 AD2d 835; Palmer v Board of Educ., 276 NY 222; Matter of National Equip. Rental [American Pecco Corp.], 35 AD2d 132, 28 NY2d 639; Matter of Allied Van Lines [Hollander Express & Van

      Co.], 29 NY2d 35; Garrity v Lyle Stuart, Inc., 40 NY2d 354; Board of Educ. v Associated Teachers of Huntington, 36 AD2d 753, 30 NY2d 122.) III. It is beyond the power of the public employer to delegate by contract to an arbitrator its statutory duty to determine new positions, appointments and promotions in civil service positions and a collective bargaining agreement which usurps this duty is void as against public policy and nonarbitrable in the first instance. (Matter of Petrone v Miller, 77 Misc 2d 1028; Matter of Cohoes City School Dist. v Cohoes Teachers Assn., 40 NY2d 774; Matter of Niagara Wheatfield Administrators Assn. [Niagara Wheatfield Cent. School Dist.], 44 NY2d 68; People ex rel. Balcom v Mosher, 163 NY 32; Matter of Cassidy v Municipal Civ. Serv. Comm. of City of New Rochelle, 37 NY2d 526; Mills v Bahou, 55 AD2d 57; Matter of Board of Educ. v Yonkers Federation of Teachers, 40 NY2d 268; Matter of Selover v Civil Serv. Comm. of State of N. Y., 61 Misc 2d 688; Kenmore Club Police Benevolent Assn. v Civil Serv. Comm. of State of N. Y., 61 Misc 2d 685; Matter of Port Washington Union Free School Dist. v Port Washington Teachers Assn., 45 NY2d 746.) IV. The doctrine of collateral estoppel has no application to a motion to vacate an arbitrator’s award and the claimed waiver of a right which is charged with the public interest is ineffective. (Matter of American Ins. Co. [Messinger — Aetna Cas. & Sur. Co.], 43 NY2d 184; Matter of Kavares [MVAIC], 29 AD2d 68; Matter of Argus Co. v Manning, 138 NY 557; Rochester City School Dist. v Rochester Teachers Assn., 41 NY2d 578; Matter of Associated Teachers of Huntington v Board of Educ., 33 NY2d 229; Matter of Niagara Wheatfield Administrators Assn. [Niagara Wheatfield Cent. School Dist.], 44 NY2d 68; Garrity v Lyle Stuart, Inc., 40 NY2d 354; O'Mara v Dentinger, 271 App Div 22.) V. Where a collective bargaining agreement fails to evidence any language with regard to the obligations of the parties for the creation of new jobs, the arbitrator has, in excess of his powers, rewritten the agreement when he mandates that duty to one of the parties; and his order should be vacated. (Matter of National Cash Register Co. [Wilson], 8 NY2d 377.) VI. Where the subject is nonarbitrable, to remit would be a useless act.

      Samuel S. Yasgur, County Attorney (Lester D. Stinman and Jonathan Lovett of counsel), for County of Westchester, respondent.
    I. The courts below properly determined that the arbitrator exceeded his authority. (Matter of Cohoes City

      School Dist. v Cohoes Teachers Assn., 40 NY2d 774; Matter of Union Free School Dist. No. 2 of Town of Cheektowaga v Nyquist, 38 NY2d 137; Matter of Susquehanna Val. Cent. School Dist. at Conklin [Susquehanna Val. Teachers’ Assn.], 37 NY2d 614; Syracuse Teachers Assn. v Board of Educ., 35 NY2d 743; Matter of Candor Cent. School Dist. [Candor Teachers Assn.] 42 NY2d 266; Matter of Acting Supt. of Schools of Liverpool Cent. School Dist. [United Liverpool Faculty Assn.] 42 NY2d 509; People ex rel. Langdon v Dalton, 49 App Div 71, 163 NY 556; Matter of Petrone v Miller, 77 Misc 2d 1028; Matter of Bates v Lang, 26 AD2d 462; Uniformed Fireman’s Benevolent Assn. v Herten, 23 AD2d 788.) II. Subdivision B of section 9 of article X of the collective bargaining agreement is unenforceable. (Matter of Cassidy v Municipal Civ. Serv. Comm. of City of New Rochelle, 37 NY2d 526; People ex rel. Balcom v Mosher, 163 NY 32; People ex rel. Bolton v Albertson, 55 NY 50; Matter of Niagara Wheatfield Administrators Assn. [Niagara Wheatfield Cent. School Dist.] 44 NY2d 68; Matter of Kepp v Springville-Griffith Cent. School Dist., 43 NY2d 767; Matter of Acting Supt. of Schools of Liverpool Cent. School Dist. [United Liverpool Faculty Assn.] 42 NY2d 509; Matter of Cohoes City School Dist. v Cohoes Teachers Assn., 40 NY2d 774; Matter of Board of Educ. v Yonkers Federation of Teachers, 40 NY2d 268; Board of Educ. v Areman, 41 NY2d 527.)
   OPINION OF THE COURT

Jones, J.

While the arbitrator in this case was authorized to make a factual determination that the Town of Harrison had created a "new” position in December, 1975, he was precluded from according any legal recognition thereto or granting any relief with respect thereto because of the town’s failure to have complied with the mandate of section 22 of the Civil Service Law.

Prior to December, 1975, Christopher Badolato was employed by the Town of Harrison as a junior engineering aide under the supervision of the town engineer, and James Calandruccio (who had seniority over Badolato) was employed as draftsman under the supervision of the town assessor. On December 17, 1975 for reasons of economy and efficiency the town board abolished the position of junior engineering aide and terminated the services of Badolato as of December 31, 1975. At the same time the duties of that position were consolidated with the duties of draftsman and assigned to Calandruccio in the town engineer’s department.

The union contended that in effecting these rearrangements the town had failed to observe the provisions of sections 7, 8 and 9 of article X of the applicable collective bargaining agreement:

"Section 7. Neither the employer, nor CSEA, through their officers, members, representatives, agents or committees, shall engage in any subterfuge of any kind for the purpose of defeating or evading the terms of this Agreement.
"Section 8. There shall be no discrimination, interference, restraint or coercion by the employer or any of its officers or agents against any employee, because of any lawful activity on behalf of the CSEA or because of membership in the CSEA and the CSEA, its officers or agents shall not coerce employees into membership in the CSEA in an unlawful manner.
"Section 9. A. The CSEA president shall be notified in writing of any and all promotional opportunities, job openings, and/or creation of new job titles as soon as such opportunities, openings or creations are known. Upon receipt of such notification in writing, the Town Board obligations cease. From the time the CSEA President receives such notification, ten (10) working days will be allowed for posting, circulating and receiving acknowledgements.
"B. Promotional opportunities, job openings, and/or creation of new job titles are to be given to the senior qualified employee(s) within the department whenever they occur and second opportunities are to be given to employees in other departments. Vacancies are to be filled from the outside only after exhausting the abovementioned opportunities.”

The union sought arbitration of its claims that the town had violated the terms of their agreement both when it terminated Badolato and when it thereafter failed to offer him the newly created position. The town moved to stay arbitration on the ground that Badolato had instituted an article 78 proceeding for similar relief. The motion to stay was denied on the ground that the article 78 proceeding brought by Badolato constituted no waiver of the union’s right to arbitration.

After hearings the arbitrator handed down a decision on September 29, 1976 in which he determined that the town had not violated sections 7 and 8 when it terminated Badolato but had violated section 9 of the collective bargaining agreement in appointing Calandruccio to the new position. This latter conclusion was based on the arbitrator’s factual findings that the town was organized by departments, that by its actions on December 17 it had created a new position, and that this resulted in the establishment of a promotional opportunity within the meaning of section 9. The arbitrator then determined that under the provisions of subdivision B of section 9 Badolato should have been given this job, and in addition, that the failure of the town to notify him as union president of the opening and to follow the other provisions of subdivision A of section 9 violated that subdivision as well. The arbitrator expressly rejected the town’s contention that subdivision B of section 9 violated the provisions of the Civil Service Law. He further expressly noted that the "issue of Mr. Calandruccio’s status is not before the Arbitrator in this case”. In the award the town was directed to place Badolato in the position of draftsman in the town engineer’s department effective January 1, 1976, with entitlement to all salary and benefits properly pertaining to that position to commence on that date.

The union moved to confirm the arbitrator’s award, and the town cross-moved to vacate the award. Special Term granted the cross motion to vacate and dismissed the motion to confirm. The Appellate Division affirmed, and we now announce our agreement with the dispositions below.

Special Term based its decision on two alternative grounds: first, that subdivision B of section 9 of article X of the collective bargaining agreement violates constitutional and civil service requirements that appointments and promotions be made according to merit and fitness to be determined by competitive examinations as far as practicable, and, second, that the purported creation of a new job was invalid as in contravention of the provisions of section 22 of the Civil Service Law. The Appellate Division affirmed on the opinion at Special Term, adding, inter alia, that the town’s failure to seek a stay of arbitration on these grounds could not be deemed a waiver of such fundamental public policy restrictions. We base our affirmance on our agreement that the award of the arbitrator was properly vacated because it conflicts with the provisions of section 22 of the Civil Service Law. Accordingly, we do not reach or consider the contentions of the parties with respect to the relation of subdivision B of section 9 with section 52 of the Civil Service Law and section 6 of article V of our State Constitution.

At the outset we note that the contentions of the town that it was not departmentalized and that no new position was in fact created must be rejected. These questions, involving factual determinations, were within the scope of the issues properly submitted to the arbitrator and his determinations are accordingly binding and conclusive on the parties.

Turning then to the significance to be accorded section 22 of the Civil Service Law, we iterate what we have recently said, "there are now but a few matters of concern which have been recognized as so intertwined with overriding public policy considerations as to either place them beyond the bounds of the arbitration process itself or mandate the vacatur of awards which do violence to the principles upon which such matters rest.” (Matter of Sprinzen [Nomberg], 46 NY2d 623, 630.) This case presents one of those exceptions to the general rule.

Section 22 provides as follows:

"Certification for new positions.
"Before any new position in the service of a civil division shall be created, the proposal therefor, including a statement of the duties of the position, shall be referred to the municipal commission having jurisdiction and such commission shall furnish a certificate stating the appropriate civil service title for the proposed position. Any such new position shall be created only with the title approved and certified by the commission.”

In this case it is conceded that the mandate of this section was wholly ignored; the county personnel officer, acting as the municipal civil service commission, upon whom the statute conferred exclusive jurisdiction, was in no way involved in the creation of the new position nor was the position approved or certified by him. Thus, we agree with both courts below that there can be no recognition of the creation of the new position.

The public policy manifested in the Civil Service Law is very strong indeed (e.g., Matter of Maloney v Nassau County Civ. Serv. Comm., 46 NY2d 1003; Matter of Canfield v Mealy, 288 NY 149). The statutory prescription that new positions can be created only by the municipal civil service commission is a specific instance of such strong public policy. It reflects the fact that the public has an interest in the creation of new positions which the municipality and its employees, whether represented by a union or otherwise, are not at liberty to ignore and may not circumvent. Section 22 states a statutory imperative which "is beyond the power of the parties to alter or modify * * * by collective bargaining, agreement to arbitrate or otherwise.” (Matter of Union Free School Dist. No. 2 of Town of Cheektowaga v Nyquist, 38 NY2d 137, 144.) Thus, while the arbitrator did have authority to make a binding factual determination that a new job had been created, it was beyond his power, or any power conferred on him by the parties, to give legal recognition or to attach legal significance to that determination.

We agree, too, with the courts below that this trespass on public policy was not waived by the failure of the town to raise it on the motion to stay arbitration. In this connection we observe additionally that there was no comparable inhibition on the reference to arbitration of so much of the union’s claims as related to sections 7 and 8 of article X of the collective bargaining agreement.

Inasmuch as the arbitrator has denied those portions of the union’s grievance claiming violation of sections 7 and 8 of article X no purpose would now be served by remitting those matters to him. With respect to the union’s claims under section 9, the arbitrator would be without power to fashion any remedy with respect to Badolato’s claim of entitlement to appointment to the "new” position. Accordingly, no purpose would be served by any remittal to the arbitrator as requested by the union.

In making the disposition we do, we note expressly, as did the arbitrator, that Mr. Calandruccio’s status is not before us, and we intimate no adjudication with respect thereto.

For the reasons stated, the order of the Appellate Division should be affirmed, with costs.

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

Order affirmed.

      . Badolato, the union president, had commenced a proceeding under article 78 alleging that the town had violated section 80 of the Civil Service Law and requesting a judgment directing his reinstatement as a junior engineering aide and a review of the town’s determination which abolished his position. On June 17, 1976 Supreme Court, Westchester County, found that Badolato had failed to establish bad faith on the part of the town board. It held that no violation of the Civil Service Law had been demonstrated and dismissed the petition. In so doing the court expressly noted that it did not "pass on the question of whether or not a contract violation has occurred. * ** * This decision is limited to a holding that petitioner may not at this time invoke article 78 on the grounds that his position was eliminated in bad faith.” No appeal was taken from that disposition.

      . This section was amended in 1978 to extend its restrictions to reclassification of existing positions as well (L 1978, ch 99).


author: Jasen, J.

text:
    The People of the State of New York ex rel. Salvatore Piccarillo by Steve Sandler, Respondent, v New York State Board of Parole et al., Appellants.
    Argued September 13, 1979;
    decided October 18, 1979

      POINTS OF COUNSEL

      Robert Abrams, Attorney-General (Steven A. Marcus, A. Seth Greenwald and George D. Zuckerman of counsel), for appellants.
    I. The introduction of improperly obtained evidence at a parole revocation hearing against a parolee does not violate his rights as a parolee. (People v Huntley, 43 NY2d 175; Morrissey v Brewer, 408 US 471.) II. Parolees have limited Fourth Amendment protection. (People ex rel. Rainone v Murphy, 1 NY2d 367; People ex rel. Natoli v Lewis, 287 NY 478; Morrissey v Brewer, 408 US 471; Bricker v Michigan Parole Bd., 405 F Supp 1340; Latta v Fitzharris, 521 F2d 246, 423 US 897; United States ex rel. Santos v New York State Bd. of Parole, 441 F2d 1216; People v Adams, 36 AD2d 784; People v Santos, 31 AD2d 508, 25 NY2d 704, 976, 397 US 969; United States ex rel. Randazzo v Follette, 418 F2d 1319; Lewis v United States Parole Comm., 448 F Supp 1327.) III. The later suppression of the evidence in criminal court does not vitiate the Parole Board action. (Matter of Finn’s Liq. Shop v State Liq. Auth., 24 NY2d 647; People ex rel. Walsh v Vincent, 40 NY2d 1049.) IV. The appeal below was moot and should have been dismissed. The failure to rule on the motion to dismiss was error.

      Steve Sandler, William E. Hellerstein and Donald H. Zuckerman for respondent.
    The court below was correct in holding that the Division of Parole could not base the revocation of respondent’s parole solely on evidence seized in violation of his Fourth Amendment constitutional rights. (People v McGrath, 46 NY2d 12; Matter of Finn’s Liq. Shop v State Liq. Auth., 24 NY2d 647; People v Jackson, 46 NY2d 171; Matter of Gaglia v Starr, 59 AD2d 839; Matter of McPherson v New York City Housing Auth., 47 AD2d 828; Morrissey v Brewer, 408 US 471; People v Huntley, 43 NY2d 175; People v Candelaria, 63 AD2d 85; People ex rel. King [Sandler] v New York State Bd. of Parole, 65 AD2d 465; United States ex rel. Sperling v Fitzpatrick, 426 F2d 1161.)
   OPINION OF THE COURT

Jasen, J.

Presented for our determination on this appeal is the question whether the exclusionary rule proscribes the use of evidence at a parole revocation hearing when such evidence is determined by a court to be the fruit of an illegal search and seizure.

The facts are not in dispute and, for purposes related to this appeal, may be simply stated. On January 12, 1977, petitioner Piccarillo, who was serving three concurrent sentences for attempted robbery, was released on parole. Thereafter, in the early morning hours of May 22, 1977, petitioner, while proceeding south on Coney Island Avenue, was stopped by a New York City police officer for driving a motor vehicle without operational taillights. A subsequent search of the vehicle revealed a container of pills lodged under the armrest and petitioner was arrested and charged with possession of a controlled substance.

At a preliminary parole revocation hearing held on July 1, 1977, probable cause to revoke parole was found. The final hearing was conducted on August 31, 1977, and petitioner’s parole was revoked based upon the finding that petitioner had "failed to lead a law-abiding life in that on [May 22, 1977 petitioner’s] behavior was such as it constituted an act of criminal possession of a controlled substance, possession of 595 alleged [amphetamine] pills.”

At the commencement of the final parole revocation hearing, petitioner moved to suppress the evidence obtained during the search of his automobile alleging that the search had been conducted in violation of his constitutional rights. Petitioner also requested that the charge predicated on the discovery of the amphetamine pills be "dismissed” pending the outcome of his criminal trial. Both of these motions were denied. As a result, the hearing proceeded and the arresting officer testified as to the discovery of the pills and a police department laboratory report was introduced into evidence confirming that the pills were, in fact, amphetamines. Solely on the basis of this evidence, petitioner’s parole was revoked.

Thereafter, on October 21, 1977, petitioner’s motion to suppress the evidence in the criminal case was heard. The court, concluding that the search of the automobile was conducted illegally, granted petitioner’s motion to suppress. Petitioner then initiated this habeas corpus proceeding contending that the Board of Parole should not have considered the suppressed evidence in arriving at its determination and requested that he be restored to parole status. Supreme Court denied the requested relief reasoning that "[t]he underlying facts which were the basis for revoking the parole status of the petitioner, were a proper subject of consideration by the Parole Board regardless of whether or not they were suppressed in the criminal proceedings”. On appeal, a unanimous Appellate Division reversed and restored petitioner to parole holding, in essence, that the exclusionary rule applies to parole revocation hearings. There should be an affirmance.

Our initial task in resolving the issue presented on this appeal is to define the nature of a parole revocation hearing. It is immediately apparent that such hearing cannot be characterized as a criminal trial conducted to. determine the guilt or innocence of an individual accused of committing a criminal offense. (People ex rel. Maggio v Casscles, 28 NY2d 415, 418.) Rather, a parole revocation hearing is in the nature of an administrative proceeding at which it is determined whether a parolee has transgressed the conditions of his or her parole. (Id.; People ex rel. Menechino v Warden, 27 NY2d 376, 382.)

Although parole revocation hearings are classified as administrative proceedings, courts must, nonetheless, remain sensitive to the serious, if not irreparable, consequences which may befall a parolee if the charges of misconduct are sustained by the Board of Parole. Indisputably, "[w]hen all the legal niceties are laid aside a proceeding to revoke parole involves the right of an individual to continue at liberty or to be imprisoned. It involves a deprivation of liberty just as much as did the original criminal action”. (People ex rel. Combs v La Vallee, 29 AD2d 128, 131, app dsmd 22 NY2d 857.)

With this background in mind, we now address the specific issue raised on this appeal, to wit: whether the exclusionary rule prohibits the consideration of evidence at a parole revocation hearing when such evidence is found by a court of law to be seized illegally.

It can no longer be disputed that the exclusionary rule is applicable to administrative as well as criminal proceedings in New York. (See People v McGrath, 46 NY2d 12, 21, cert den 440 US 972; Matter of Finn’s Liq. Shop v State Liq. Auth., 24 NY2d 647, supra; Matter of Leogrande v State Liq. Auth., 25 AD2d 225, revd on other grounds 19 NY2d 418; Matter of McPherson v New York City Housing Auth., 47 AD2d 828.) The rationale for applying the exclusionary rule to administrative proceedings is simple and direct. As former Chief Judge Fuld cogently stated: "To the extent that the State, or its agents, can bypass the deterrent effect of the exclusionary rule by using the fruits of an illegal search in a 'civil’ or 'administrative’ proceeding, the incentive for enforcement and investigative personnel to exceed constitutional limitations on their activity remains and the effectiveness of the rule as a deterrent is diminished.” (Matter of Finn’s Liq. Shop v State Liq. Auth., 24 NY2d, at p 653, supra; see Matter of Leogrande v State Liq. Auth., 25 AD2d, at pp 231-232, supra.) In short, the exclusionary rule — a sanction predicated on a theory of deterrence and fashioned by the judiciary to compel respect for constitutionally guaranteed rights — may not be subverted by permitting illegally seized evidence, unavailable in criminal actions, to be used in an administrative proceeding.

Respondents would now have this court carve from this rule prohibiting the introduction of illegally seized evidence at an administrative proceeding an exception when the target of the illegal activity of the police officers is a parolee and the administrative proceeding involved is a parole revocation hearing. This, we decline to do.

It is beyond dispute that an individual, upon acquiring his status as a parolee, does not relinquish all constitutionally guaranteed rights. (See Morrissey v Brewer, 408 US 471; cf. Gagnon v Scarpelli, 411 US 778.) Although a parolee is legally in custody and subject to supervision, his right to be free from unreasonable searches and seizures, guaranteed by both Federal and State Constitutions (US Const, 4th Amdt; NY Const, art I, § 12), remains inviolate. (See People v Jackson, 46 NY2d 171, 174; People v Huntley, 43 NY2d 175, 180-181.) While the law is certainly well settled that a person’s status as a parolee bears upon the issue of whether a particular search or seizure is unreasonable (see, e.g., People v Huntley, 43 NY2d, at p 181, supra; United States ex rel. Santos v New York State Bd. of Parole, 441 F2d 1216, 1218), this consideration is germane only to an evaluation of whether a parolee’s constitutional rights have been violated by the alleged illegal conduct of public officials and has little, if any, relevance to the issue whether the exclusionary rule should serve to proscribe the use of evidence at a parole revocation hearing when such evidence is determined by a court to be the fruit of an unreasonable search and seizure.

Having concluded that a parolee’s status per se does not justify departure from the settled rule in this State that the exclusionary rule is applicable to administrative proceedings— here, a parole revocation hearing — one further consideration requires discussion. It has been suggested that any deterrent effect which may be achieved by applying the exclusionary rule to parole revocation hearings is outweighed by the pressing need of Parole Boards, charged with both the responsibility of protecting society and the rehabilitation of those persons placed in their custody, to possess all relevant information when rendering the sensitive decision as to a convicted criminal offender’s parole status. (See, e.g., United States ex rel. Sperling v Fitzpatrick, 426 F2d 1161; Matter of Martinez, 1 Cal 3d 641, supra.) While the need to preserve and enhance the effectiveness of the Parole Board’s function is certainly a worthwhile objective, we disagree with the conclusion that this concern renders the exclusionary rule inapplicable to parole revocation hearings. The exclusionary rule is addressed to the insidiousness of unreasonable searches and seizures, and the theory upon which it rests, namely deterrence, "would not be served if the illegal official activity could be used, despite unavailability in criminal proceedings, to effect parallei sanctions * * * in an administrative proceeding.” (Matter of Leogrande, 25 AD2d 225, 232, supra.)

In sum, our decision today holding that the exclusionary rule proscribes the use of illegally seized evidence at a parole revocation hearing is predicated both upon the recognition that a parolee’s right to be free from unreasonable searches and seizures, guaranteed by both Federal and State Constitutions, remains inviolate and upon the well-established policy in this State prohibiting the use of illegally seized evidence at an administrative proceeding when such evidence is determined by a court to be unavailable in a criminal action. To draw a distinction between criminal actions and parole revocation hearings when applying the exclusionary rule would, in our opinion, serve only to undermine the effectiveness of the rule as a deterrent.

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

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

Order affirmed, without costs.

      . Petitioner was subsequently indicted for a misdemeanor violation.

      . The proper procedure to be followed where there is a criminal proceeding pending and a parolee seeks to suppress evidence at a parole revocation hearing would be for the Board of Parole to adjourn the hearing pending the determination of the parolee’s application to the court for an order to suppress. This is, of course, not to say that the Board of Parole is precluded from continuing the parole revocation hearing if only evidence, which is not the subject of the suppression motion, is considered.

      . We conclude that these motions, promptly interposed by petitioner’s attorney at the commencement of the parole revocation hearing, serve to preserve the issue presented herein for our review. (Compare Matter of Finn’s Liq. Shop v State Liq. Auth., 24 NY2d 647, cert den 396 US 840, with Matter of Leogrande v State Liq. Auth., 19 NY2d 418.)

      . The criminal charges pending against petitioner were dismissed on November 21, 1977.

      . Supreme Court, Kings County, dismissed the petition on the condition that a new final hearing be scheduled by the Board of Parole within a specified time period. Although neither the record nor Supreme Court’s decision indicates the reason adopted by the court in ordering a new hearing, it can be assumed that Supreme Court accepted one or more of petitioner’s alternate contentions. Petitioner argued, inter alia, that it was error for respondent Board of Parole not to disclose either the recommendation section of the parole analysis or petitioner’s parole file.
      Thereafter, on January 10, 1978, the subsequent parole revocation hearing was held. Petitioner once again moved to have the evidence pertaining to the car search suppressed, such motion being denied on the ground that the Board of Parole was bound by the decision of Supreme Court holding that the evidence was admissible. After the hearing, the board adhered to its prior determination revoking parole. Petitioner initiated another habeas corpus proceeding in Supreme Court, Westchester County, apparently alleging grounds similar to those set forth in his prior petition. This petition was sustained on the ground that petitioner was denied proper discovery, and a new hearing was again ordered. Respondent Board of Parole’s appeal from this latter judgment was dismissed as moot in light of the Appellate Division’s disposition of petitioner’s appeal from the judgment of Supreme Court, Kings County. Respondent has not appealed from this dismissal.

      . In so holding, we recognize that other courts have held that the exclusionary rule need not be applied to parole revocation hearings (e. g., United States ex rel. Sperling v United States, 426 F2d 1161; Matter of Martinez, 1 Cal 3d 641, cert den 400 US 851), or to probation revocation hearings (e.g., United States v Vandemark, 522 F2d 1019; United States v Farmer, 512 F2d 160; see, generally, Admissibility, in State Probation Revocation Proceedings, of Evidence Obtained Through Illegal Search and Seizure, Ann., 77 ALR3d 636, 641-643).


author: Wachtler, J.

text:
    Jack E. Post et al., Appellants, v Merrill Lynch, Pierce, Fenner & Smith, Inc., et al., Respondents.
    Argued September 5, 1979;
    decided October 18, 1979

      POINTS OF COUNSEL

      Benedict Ginsberg and Milton B. Franklin for appellants.
    I. Plaintiffs were discharged as employees of Merrill Lynch after the vesting of their pensión rights. Accordingly, Merrill Lynch could not properly forfeit those rights. Even if the hearsay evidence submitted by it that plaintiffs had voluntarily resigned is considered as raising a factual issue, the court could not properly determine that issue by summary judgment. (Kristt v Whelan, 4 AD2d 195, 5 NY2d 807; Friedman v Romaine, 77 Misc 2d 134; Smith v Meyer, 78 Misc 2d 711, 44 AD2d 778, 34 NY2d 517; Titus v Glens Falls Ins. Co., 81 NY 410; Cox v McElligott, 163 Misc 619, 276 NY 604, 304 US 564; Feiger v Iral Jewelry, 85 Misc 2d 994, 52 AD2d 524, 41 NY2d 928; Walker v Phoenix Ins. Co. of Hartford, Conn., 156 NY 628.) II. Additional reasons why the order of the court below should be reversed. (Titus v Glens Falls Ins. Co., 81 NY 410; Hedeman v Fairbanks Morse & Co., 286 NY 240; Utica Sheet Metal Corp. v Schecter Corp., 25 AD2d 928; Cox v McElligott, 163 Misc 619, 276 NY 604, 304 US 564.)

      Roger J. Hawke and Thomas J. Mullaney for respondents.
    I. The court below properly awarded summary judgment dismissing plaintiffs’ pension plan claim. (Kristt v Whelan, 4 AD2d 195, 5 NY2d 807; Kidd v Oakes, 39 Misc 2d 100, 645; Kerpen v First Investors Corp., 45 Misc 2d 793, 26 AD2d 620; Silfen v United Whelan Corp., 30 AD2d 523; Matter of Kumm v Allen, 36 Misc 2d 816; Smith v Meyer, 78 Misc 2d 711, 44 AD2d 778, 34 NY2d 517; Stover v Gamewell Fire Alarm Tel. Co., 164 App Div 155; Martin v Bankers Trust Co., 417 F Supp 923, 565 F2d 1276; Nolan v Meyer, 520 F2d 1276, 423 US 1034; Keller v Graphic Systems of Akron, Employees Profits-haring Plan, 422 F Supp 1005.) II. Plaintiffs- have no claim under the profit-sharing plan.
   OPINION OF THE COURT

Wachtler, J.

The narrow issue presented by this appeal from a grant of summary judgment for the defendant is the efficacy of a private pension plan provision permitting the employer to forfeit pension benefits earned by an employee who competes with the employer after being involuntarily discharged.

We begin with the premise that "powerful considerations of public policy * * * militate against sanctioning the loss of a man’s livelihood” (Purchasing Assoc. v Weitz, 13 NY2d 267, 272). So potent is this policy that covenants tending to restrain anyone from engaging in any lawful vocation are almost uniformly disfavored and are sustained only to the extent that they are reasonably necessary to protect the legitimate interests of the employer and not unduly harsh or burdensome to the one restrained. (Columbia Ribbon & Carbon Mfg. Co. v A-1-A Corp., 42 NY2d 496, 499; Reed, Roberts Assoc. v Strauman, 40 NY2d 303, 307; see, also, 6A Corbin, Contracts, § 1394, at p 100.)

Merrill Lynch employed Post and Maney as account executives at its Rochester offices beginning April 20, 1959 and May 15, 1961, respectively. Both men elected to be paid a salary and to participate in the firm’s pension and profit-sharing plans rather than take a straight commission, which would have returned approximately twice the amount they earned in salary during the period in question.

The employment of both plaintiffs by Merrill Lynch terminated August 30, 1974. On September 4, 1974 both began working for Bache & Company, admittedly a competitor of Merrill Lynch, in Rochester. Merrill Lynch learned about their new employment in September, 1974.

Fifteen months after their termination, and following repeated inquiries by the plaintiffs into the status of their pensions, the plaintiffs were informed by Merrill Lynch that all of their rights in the company-funded pension plan had been forfeited pursuant to a provision of the plan which permitted forfeiture in the event that an employee directly or indirectly competed with the firm.

Plaintiffs brought this action against Merrill Lynch for conversion and breach of contract, to recover amounts allegedly owed them on account of the pension plan and for punitive damages. They aver that they were discharged by Merrill Lynch without cause. Merrill Lynch does not, for the purpose of this motion, dispute plaintiffs’ version, contending, rather, that for this purpose the reason for termination is irrelevant.

The Appellate Division granted Merrill Lynch’s motion for summary judgment and dismissed the complaint, relying principally on the Appellate Division decision in Kristt v Whelan (4 AD2d 195, 199, affd 5 NY2d 807) to sustain the validity of the forfeiture provision. As the Appellate Division in Kristt held: "It is no unreasonable restriction of the liberty of a man to earn his living if he may be relieved of the restriction by forfeiting a contract right or by adhering to the provisions of his contract [citations omitted]. The provision for forfeiture here involved did not bar plaintiff from other employment. He had the choice of preserving his rights under the trust by refraining from competition with [his former employer] or risking forfeiture of such rights by exercising his right to compete with [him].”

Now, in determining the effect to be accorded a forfeiture-for-competition provision in an employees’ pension, we are for the first time invited to distinguish between voluntary and involuntary termination of employment of the affected employee. Examination of our cases discloses no prior instance in which enforcement of such a forfeiture clause has been sought in circumstances where the employment has been terminated by the employer without cause. Rather, as in Kristt, they have involved claims by an employee who sought pension benefits from his former employer despite having voluntarily left the employer and joined forces with a competitor. In such situations effect has been given to the forfeiture-for-competition provision, and the employee’s claim has been rejected.

Not only do we find no dispositive judicial precedent in our State where the employee has been terminated by the employer without cause. Now we also must take into account the declaration of a strong public policy against forfeiture of employee benefits manifested by the Employee Retirement Income Security Act of 1974 (ERISA) (US Code, tit 29, § 1001 et seq.). Indeed, had the relevant provisions of ERISA been in effect at the time of termination of these appellants’ employment, its mandatory provisions might well have been dispositive in this case and have precluded the forfeiture countenanced by the court below.

Impelled as we are then by that powerfully articulated congressional policy, and confronted with no decisions which command a contrary result, we now conclude that our own policies — those in favor of permitting individuals to work where and for whom they please, and against forfeiture— preclude the enforcement of a forfeiture-for-competition clause where the termination of employment is involuntary and without cause.

In the case at bar we note that the particular provision in the pension plan was not drawn explicitly to cover employees whose employment had been involuntarily terminated; it indiscriminately mandates forfeiture by any "Participant who enters employment or engages directly or indirectly in any business deemed by the Committee to be competitive”. Therefore we need not consider now what would have been our decision had the draftsman of this pension plan manifested an unmistakable intention to impose the heavy penalty of forfeiture for engaging in competition even after discharge of an employee without cause.

Acknowledging the tension between the freedom of individuals to contract, and the reluctance to see one barter away his freedom, the State enforces limited restraints on an employee’s employment mobility where a mutuality of obligation is freely bargained for by the parties. An essential aspect of that relationship, however, is the employer’s continued willingness to employ the party covenanting not to compete. Where the employer terminates the employment relationship without cause, however, his action necessarily destroys the mutuality of obligation on which the covenant rests as well as the employer’s ability to impose a forfeiture. An employer should not be permitted to use offensively an anticompetition clause coupled with a forfeiture provision to economically cripple a former employee and simultaneously deny other potential employers his services.

Under the circumstances of the case at bar it would be unconscionable to tolerate a forfeiture, precipitated as it is by the unwarranted action of the employer. We find, therefore, that in the case of an involuntary discharge, the rule stated in Kristt v Whelan (4 AD2d 195, affd 5 NY2d 807, supra) does not apply. Further, we hold, that where an employee is involuntarily discharged by his employer without cause and thereafter enters into competition with his former employer, and where the employer, based on such competition, would forfeit the pension benefits earned by his former employee, such a forfeiture is unreasonable as a matter of law and cannot stand.

The question to be resolved concerning whether plaintiffs’ termination was voluntary is not appropriate for resolution on a motion for summary judgment. Therefore the order, insofar as appealed from, should be reversed, the motion for summary judgment denied and the complaint reinstated.

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

Order, insofar as appealed from, reversed, with costs, defendants’ motion for summary judgment denied and the complaint reinstated.

       Several States control covenants not to compete by statute. (See, e.g., Ware v Merrill Lynch, Pierce, Fenner & Smith, 24 Cal App 3d 35, affd 414 US 117; Blake, Employee Agreements Not to Compete, 73 Harv L Rev 625, 648.)


text:
    The People of the State of New York, Appellant, v Francis Potwora, Respondent.
    Argued September 10, 1979;
    decided October 18, 1979

      POINTS OF COUNSEL

      Edward C. Cosgrove, District Attorney (John J. De Franks, Judith Blake Manzella and James E. Hughes of counsel), for appellant.
    The dual issues presented on an application to search for obscene materials may be made by separate Magistrates. (Marcus v Search Warrant, 367 US 717; Quantity of Books v Kansas, 378 US 205; People v Abronovitz, 31 NY2d 160; Johnson v United States, 333 US 10.)

      Paul J. Cambria, Jr., Herald Price Fahringer and Barbara J. Davies for respondent.
    I. The search warrant was properly invalidated by the trial and appellate courts since the procedure employed violated the most fundamental constitutional principles which underpin the protections afforded by the First and Fourth Amendments to the United States Constitution. (People v Abronovitz, 31 NY2d 160; Marcus v Search Warrant, 367 US 717; People v Rothenberg, 20 NY2d 35; Aguilar v Texas, 378 US 108; Heller v New York, 413 US 483; Lee Art Theatre v Virginia, 392 US 636; Quantity of Books v Kansas, 378 US 205; Perial Amusement Corp. v Morse, 482 F2d 515.) II. The search warrant issued for 35 Main Street, Village of Depew, was issued in the absence of a legally sufficient showing of probable cause. (Spinelli v United States, 393 US 410; Aguilar v Texas, 378 US 108; People v Wirchansky, 41 NY2d 130; Sgro v United States, 287 US 206; People v Loewel, 50 AD2d 483, 41 NY2d 609.)
   OPINION OF THE COURT

Wachtler, J.

This appeal presents the question as to whether a determination of probable cause requisite to the issuance of a warrant may be delegated in part to someone other than the issuing Magistrate.

The essential facts are not in dispute.

On September 10, 1975 State Police applied to the Depew Village Justice for a warrant authorizing a search of premises and a van owned by Imperial News Co., Inc., and the seizure of business records and certain magazines alleged to be obscene.

The affidavits of two Rochester policemen supporting the warrant application described their observations of the delivery of cardboard boxes — presumably containing magazines — to various locations in Rochester from a van owned by Imperial News, as well as the purchase by an officer of three magazines from among those presumably delivered by Imperial News.

One of the affidavits stated that two different Judges of the Rochester City Court "did find probable cause that the material, contained in [each of two separate magazines] was obscene” and that a Judge of the Buffalo City Court had drawn a similar conclusion of obscenity with respect to the third magazine. Neither copies of the magazines, nor certificates from the three Judges as to their findings, were attached to the warrant application.

Based on the police affidavits, the Depew Village Justice issued a warrant authorizing seizure of four named magazines, and related business records. The police, accompanied by the Village Justice, then conducted a raid of the Imperial News Co. premises in Depew and seized three copies of each of the four magazines named in the warrant, as well as miscellaneous notebooks and business records recording dealings with magazine outlets in Rochester.

In addition, apparently relying on an on-the-scene determination by the Village Justice, police seized one copy of each of 71 other magazines, two films which they "viewed” and "various” others which they did not as well as "Numerous other magazines too much time to look through” [sic]. The police also are alleged to have rummaged through a private office on the premises and to have photographed other papers having no relation to the matter at hand.

Based on the seized material, the defendant was charged with obscenity in the first degree (Penal Law, § 235.06), a class D felony. The defendant’s motion to suppress the material seized was granted on the ground that the warrant procedure and the entire search were invalid. The Appellate Division affirmed, without opinion. The People now appeal contending that no rule of law or policy prohibits a bifurcated determination of probable cause.

With its origins in the Colonials’ abhorrence of the general warrant and writ of assistance, the warrant requirement of the State and Federal Constitutions was designed to interpose "the detached and independent judgment of a neutral Magistrate” between police officers and citizenry (People v Hanlon, 36 NY2d 549, 558; see, also, United States v Lefkowitz, 285 US 452, 464). The issuing Magistrate must also be capable of determining whether probable cause exists (Shadwick v City of Tampa, 407 US 345).

It is clear that the issuing Magistrate himself, if he is to fulfill the constitutionally mandated function of interposing an independent intelligence between the law enforcement officer and the citizen, must actually and in fact, draw the inferences from the evidence presented to him. It is for this reason the courts have insisted that the full facts from which inferences might be drawn, and information necessary to determine their reliability, be placed before the issuing Magistrate (Aguilar v Texas, 378 US 108), and that the language of the warrant issued not be so broad as to impermissibly delegate to the executing officer the determination of whether a particular publication is obscene (People v Rothenberg, 20 NY2d 35). As this court noted in People v Hanlon (supra), where the Magistrate conducts a measured and comprehensive examination into the basis for the warrant, the factual determination as to probable cause will be given substantial deference on review. By the same token, where the Magistrate merely acts as a rubber stamp, the validity of the warrant will be suspect.

In accepting the police officer’s statement that other Judges had concluded that the named magazines were probably obscene, the issuing Magistrate made no attempt to learn whether the entire publication or merely a portion of each had been reviewed. He failed to test the manner in which the absentee Judges reached their conclusions, to learn who presented the materials and how, or even to discover whether the purpose of the purported determinations was known to the Judges passing on the materials.

The cursory nature of the issuing Magistrate’s inquiry is demonstrated by the fact that he demanded no independent evidence of the findings made by the other Judges, if any. Indeed, the record indicates that the very identity of one of the absentee Judges was unknown to the issuing Magistrate.

Even if the issuing Magistrate had made such inquiries the warrant would fail because he did not personally exercise his own faculties to draw whatever inferences were permissible from the facts presented to him. Where the issue is as fundamental and sensitive as whether the police shall be permitted to rummage through one’s home and personal effects, or to make an arrest, it is clearly desirable that the person who possesses the authority be answerable for its exercise. Putting the reins in a single pair of hands should also tend to minimize mistakes of oversight of the type demonstrated by this case, where one magazine was named in the warrant for seizure although it apparently had never been reviewed by any Judge anywhere.

It follows from these principles that the fundamental requirement that a neutral and detached Magistrate make an independent determination of probable cause is not fulfilled unless the issuing Magistrate himself conducts a full and searching inquiry into the facts on which the warrant application is based. The obligation is one which may not be delegated, in part or in whole, regardless of the qualifications of the person on whom reliance is placed. Thus it would be improper to share the required determination even with another Judge of the same jurisdiction who, if application was properly made, would be equally empowered to issue the warrant sought.

We conclude that because in the case at bar the Justice failed to personally conduct the searching inquiry necessary to a proper determination of probable cause the warrant issued was invalid, all the materials seized were properly suppressed, and the order of the Appellate Division should be affirmed.

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

Order affirmed.

       Because we find the issuance of the warrant illegal, everything which flows from it is tainted. Therefore, we do not have occasion to consider the seizure by the on-the-spot direction or authorization of the Village Justice of volumes of material not listed in the warrant. See Marcus v Search Warrant (367 US 717) and Huckle v Money (2 Wilson 205, 207 KB [1763], 95 Eng Rep 768: "To enter a man’s house by virtue of a nameless warrant, in order to procure evidence, is worse than the Spanish Inquisition; a law under which no Englishman would wish to live an hour; it was a most daring public attack made upon the liberty of a subject”). Nor does the mere fact that the Magistrate joined the police validate the otherwise invalid warrant (Lo-Ji Sales v New York, 442 US 319).


author: Fuchsberg, J.

text:
    In the Matter of the Board of Education of the City of Rochester et al., Appellants, v Ewald B. Nyquist, as Commissioner of Education of the State of New York, et al., Respondents.
    Argued September 10, 1979;
    decided October 18, 1979

      POINTS OF COUNSEL

      Adam D. Kaufman and Michael B. Kirschen for appellants.
    I. The decision of the Commissioner of Education in appeal No. 9227 is subject to review by this court on the ground that it was affected by an error of law and as such was arbitrary, illegal and capricious. (Matter of Mugavin v Nyquist, 48 AD2d 727, 39 NY2d 1003; Matter of Duncan v Nyquist, 43 AD2d 630; Matter of Zunic v Nyquist, 48 AD2d 378, 40 NY2d 962; Matter of Strongin v Nyquist, 54 AD2d 1031; Matter of Jerry v Board of Educ., 35 NY2d 534; Board of Educ. v Associated Teachers of Huntington, 30 NY2d 122.) II. Appellants have the authority, based upon contracts and statute, to collectively bargain with a teachers’ union and the right to suspend without pay a tenured teacher pending a final determination of the charges against that teacher. (Matter of Board of Educ.

      v Yonkers Federation of Teachers, 40 NY2d 268; Matter of Susquehanna Val. Cent. School Dist. at Conklin [Susquehanna Val. Teachers’ Assn.], 37 NY2d 614; Matter of Jerry v Board of Educ., 35 NY2d 534; Board of Educ. v Lakeland Federation of Teachers, Local 1760, American Federation of Teachers, AFL-CIO, 51 AD2d 1033; Antinore v State of New York, 49 AD2d 6, 40 NY2d 921; Matter of Kavoukian v Bethlehem Cent. School Dist., 63 AD2d 767.) III. The decision of the court below overlooked and misapprehended facts and law in interpreting the relevant provisions of the collective bargaining agreement, and incorrectly reversed the judgment of Special Term. (Matter of Nash v Board of Educ., 38 NY2d 686.) IV. Appellant board of education is entitled to summary judgment against respondent Ungerer because of her failure to satisfy the notice requirements of subdivision 1 of section 3813 of the Education Law. (Board of Educ. v New York State Div. of Human Rights, 44 NY2d 902; Union Free School Dist. No. 6 of Towns of Islip & Smithtown v New York State Human Rights Appeal Bd., 35 NY2d 371; Kinner v Board of Educ., 6 AD2d 204, 9 NY2d 845.)

      Judith M. Hecker, Robert D. Stone and Jean M. Coon for Ewald B. Nyquist, respondent.
    I. The decision of the commissioner is final unless shown to be arbitrary, unreasonable or an abuse of discretion. (Matter of Swalbach v State Liq. Auth. of State of N. Y., 7 NY2d 518; Matter of Sullivan County Harness Racing Assn. v Glasser, 30 NY2d 269; Matter of Pell v Board of Educ., 34 NY2d 222; Matter of Chauvel v Nyquist, 43 NY2d 48; Matter of Strongin v Nyquist, 44 NY2d 943.) II. The construction of the court below of the collective bargaining agreement is proper. (Matter of Jerry v Board of Educ., 35 NY2d 534; Matter of Bott v Board of Educ., 41 NY2d 265; Syracuse Teachers Assn. v Board of Educ., 35 NY2d 743; Matter of Susquehanna Val. Cent. School Dist. at Conklin [Susquehanna Val. Teachers’ Assn.], 37 NY2d 614.) III. The provisions of section 3813 of the Education Law are inapplicable to this case. (Bullock v Cooley, 225 NY 566; Matter of Lezette v Board of Educ., 35 NY2d 272; Matter of Chauvel v Nyquist, 43 NY2d 48; Schneps v Nyquist, 58 AD2d 151, 42 NY2d 808; Lombardi v Nyquist, 63 AD2d 1058; Matter of Grey v Board of Educ., 60 AD2d 361, 44 NY2d 645; Union Free School Dist. No. 6 of Towns of Islip & Smithtown v New York State Human Rights Appeal Bd., 35 NY2d 371; Matter of Flanagan v Board of Educ., 63 AD2d 1013.)
   OPINION OF THE COURT

Fuchsberg, J.

In this article 78 proceeding, the petitioner Board of Education of the City of Rochester sought to vacate and annul a decision of the respondent Commissioner of Education determining that the payless suspension of a tenured teacher pending resolution of disciplinary charges against her violated section 3020-a of the Education Law.

On December 4, 1975, petitioner’s superintendent of schools notified the teacher that she had been suspended without pay pursuant to section 41 of the collective bargaining agreement between the Rochester Teachers’ Association and the school district. The relevant portion of that section stated, at subdivision 3: "No eligible teacher within the bargaining unit shall be discharged without good and sufficient cause. If the City School District determines that there is good and sufficient cause for discharge, the teacher and the Association shall be notified in writing. Notification shall also include whether or not the teacher has been suspended with or without pay pending an investigation and recommendation by the Superintendent to the Board of Education ” (emphasis supplied).

The subdivision further provided that, within seven days thereafter, the superintendent was to file a written statement of the charges to the board of education, which would then vote on whether probable cause for discharge existed. If so, subdivision 3 of section 41 required the board to notify the teacher that she could choose to proceed in one of three ways: she could elect not to challenge the board at all, to convene a hearing as provided by section 3020-a of the Education Law, or to invoke the grievance and arbitration process spelled out elsewhere in the collective bargaining agreement. If the statutory route were chosen, the agreement stipulated that "all applicable provisions of section 3020-a shall apply”.

In due course, upon the superintendent’s recommendation of discharge, the board’s vote of probable cause, and the notification of the teacher of her options, the teacher elected to proceed in accordance with section 3020-a. Her suspension without pay was continued by the board. After the conclusion of the hearings, nearly 10 months later, the hearing panel found the teacher guilty of the charges and unanimously recommended her dismissal. The board of education terminated the teacher’s employment on December 16, 1976.

While the disciplinary proceeding was progressing, the teacher appealed the board’s action in suspending her pay to the Commissioner of Education under section 310 of the Education Law. In sustaining the appeal, the commissioner relied on Matter of Jerry v Board of Educ. (35 NY2d 534) for the proposition that section 3020-a forebade the withholding of pay during a period of suspension pending the outcome of disciplinary proceedings (15 Ed Rep 415). The board then commenced this proceeding, in which Special Term, on the rationale that neither the statute nor Matter of Jerry prohibited a contractual provision for payless suspensions, annulled the commissioner’s decision. For its part, the Appellate Division reversed and reinstated the commissioner’s decision. Though it agreed that section 3020-a did not bar a suspension without pay if clearly and expressly provided by contract, the court found the agreement in this case was not specific enough to authorize one (62 AD2d 265).

We modify and hold that, although a provision for a payless suspension may properly be a term of a negotiated agreement, the contractual clause relied upon by the board here does not permit any provisional discontinuance of pay except in conformance with its terms, namely "pending an investigation and recommendation by the Superintendent to the Board”.

Preliminarily, we dispose of respondent’s contention that the decision of the commissioner sustaining the teacher’s appeal under section 310 was neither arbitrary nor capricious and, hence, not one which was judicially reviewable. True it is, at the time of this proceeding, that section described decisions of the commissioner in section 310 appeals as "final and conclusive, and not subject to question or review in any place or court whatever”. And, it is also a fact that this restrictive language, seemingly bespeaking an unchallengeable power, continued to remain part of the statute until October 26, 1976 (L 1976, ch 857, § 1), when it was withdrawn, specifically to broaden the scope of judicial review (see Matter of Ward v Nyquist, 43 NY2d 57, 61; Governor’s Memorandum of Approval, NY Legis Ann, 1976, p 407). But, even without the change wrought by the statutory amendment, our courts have not hesitated to exercise a reviewing function when, in their opinion, the commissioner had erroneously decided issues involving statutes and questions of law, on the theory that determinations so flawed fell within the rubric of arbitrariness (Matter of Mugavin v Nyquist, 48 AD2d 727, 728, affd 39 NY2d 1003; see Matter of Ross v Wilson, 308 NY 605, 615-617; Matter of Zunic v Nyquist, 48 AD2d 378, 380, affd 40 NY2d 962). Thus, as the courts below recognized, judicial scrutiny was here proper.

Turning now to the substantive issues, we focus first on section 3020-a. As only recently noted, that section serves as "a critical part of the system of contemporary protections that safeguard tenured teachers from official or bureaucratic caprice” (Matter of Abramovich v Board of Educ., 46 NY2d 450, 454; see Ricca v Board of Educ., 47 NY2d 385, 391). Yet, the withholding of a teacher’s pay during a period of suspension is nowhere proscribed, despite the fact that the statute expressly contemplates that a teacher "may be suspended pending a hearing on the charges and the final determination thereof’ (§ 3020-a, subd 2). In fact, a proviso in subdivision 4 of the section impliedly suggests the contrary: "If the employee is acquitted [of the charges], he shall be restored to his position with full pay for any period of suspension.” Reading the statute as a whole, and in the face of an expressed concern for merited restoral of pay, the omission of an explicit term that preserves a teacher’s right to receive compensation during a predetermination suspension cannot be viewed as unintended. Rather, it signals that the right to receive pay is not so inviolable as to withstand abridgment no matter the circumstances (cf. Estro Chem. Co. v Falk, 303 NY 83, 86-87).

Nor is Matter of Jerry v Board of Educ. (35 NY2d 534, supra), inconsistent with this view. In Matter of Jerry, we rejected a school board’s contention that it was empowered by section 3020-a to suspend a teacher without pay pending resolution of the disciplinary proceedings against him. Though we there stated that the statute itself did not authorize the board’s action, we recognized that the Constitution, at least, posed no impediment to a payless suspension. Matter of Jerry, therefore, is not to be read to stand for the proposition that section 3020-a absolutely forbids the withholding of pay during such a suspension.

However, the critical factor here, not present in Jerry, is that a negotiated agreement provides for a provisional interruption of pay (see Board of Educ. v Lakeland Federation of Teachers, 51 AD2d 1033, 1034).

It is no longer to be disputed that, through the process of collective bargaining, a board of education may voluntarily negotiate all matters in controversy unless plainly and clearly prohibited either by statute, by controlling decisional law or by public policy (Matter of Board of Educ. v Yonkers Federation of Teachers, 40 NY2d 268, 273; Matter of Susquehanna Val. Cent. School Dist. at Conklin [Susquehanna Val. Teachers’ Assn.], 37 NY2d 614; Board of Educ. v Associated Teachers of Huntington, 30 NY2d 122, 130). As we have seen, neither statute nor decisional law forbids the imposition of the payless suspension here. Nor has public policy been held to impede parties from agreeing to modification of section 3020-a rights in other respects (see Board of Educ. v Associated Teachers of Huntington, supra [collective bargaining contract provision for arbitration in lieu of review procedures of subd 5]; cf. Matter of Abramovich v Board of Educ., 46 NY2d 450, supra [waiver of right to hearing as provided in subd 3]). Somewhat relatedly, other public employees, operating in the context of section 75 of the Civil Service Law, have been permitted to substitute for certain statutory protections a negotiated agreement which provides for a suspension without pay until a determination of charges (see Antinore v State of New York, 49 AD2d 6, affd 40 NY2d 921).

Nevertheless, modification or supplementing of a protective statutory scheme, even though not inconsistent with its clear terms, has only been sanctioned by our courts when the explicit language of the parties’ agreement unquestionably manifests their intent to effect such a change (cf. Matter of Board of Educ. v Yonkers Federation of Teachers, 40 NY2d 268, 275, supra; Yonkers School Crossing Guard Union v City of Yonkers, 39 NY2d 964). And, since it is the contention of the board that the agreement before us contemplates something which the statute does not, the board bears the burden of demonstrating what the contract provides (cf. Board of Educ. v Associated Teachers of Huntington, 30 NY2d 122, 130, supra).

These factors in mind, we examine the board’s claims that subdivision 3 of section 41 clearly authorizes a continuous suspension without pay from the time of the teacher’s notification by the superintendent to the ultimate determination on the charges, which in this case occurred approximately one year later. The provision itself, however, states only that a suspension without pay may be imposed "pending an investigation and recommendation by the Superintendent to the Board of Education”, a period section 41 defines as not to exceed seven days. Thus, far from intending to permit the withholding of pay until an eventual resolution of the disciplinary proceeding, this provision narrowly circumscribes the time during which pay may be interrupted.

This hardly appears to have been an unintended result; recognizing that the disciplinary process could be prolonged, the parties might not have wished an individual teacher, whose guilt of the charges had yet to be established, to be compelled to forego his or her salary for such a duration. And, the parties having considered the subject, we must presume that, if they had intended the suspension without pay to continue, "it would have been a simple matter * * * to have said so in so many words” (Mount Vernon Fire Ins. Co. v Travelers Ind. Co., 47 NY2d 575, 580). So, we reject as the merest speculation the argument that the substitution of the phrase "pending a determination of the charges” in place of the agreement’s explicit language would more accurately reflect the true intention of the parties. In sum, we cannot say the collective bargaining agreement makes provision for a suspension without pay after the superintendent’s investigation and recommendation. Therefore, there is no authorization for the board’s action beyond this period.

It follows that the teacher is entitled to back pay, but only from the date of the superintendent’s recommendation to the board. Accordingly, the order of the Appellate Division should be modified in conformity with this opinion and, as so modified, affirmed.

Chief Judge Cqoke and Judges Jasen, Gabrielli, Jones, Wachtler and Meyer concur.

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

      . The section delineates the procedural protections to be afforded a tenured teacher in the event disciplinary charges are brought. Among its requisites is a hearing, which may be public or private at the discretion of the teacher, at which the teacher has the right to be represented by counsel, to testify, to subpoena and cross-examine witnesses and to be furnished with a copy of the transcript (Education Law, § 3020-a, subd 3).

      . The teacher, though served, did not answer or appear and has not participated in either of the appeals.

      . Section 310, as it then read, provided that:
      "Any person conceiving himself aggrieved may appeal or petition to the commissioner of education who is hereby authorized and required to examine and decide the same * * * and his decision in such appeals, petitions or proceedings shall be final and conclusive, and not subject to question or review in any place or court whatever. Such appeal or petition may be made in consequence of any action: * * *

      "4. By the trustees of any district in paying or refusing to pay any teacher * * *
      "7. By any other official act or decision of any officer, school authorities, or meetings concerning any other matter * * * pertaining to common schools.”

      . We may also treat briefly appellant’s contention, raised for the first time in this court, that the teacher’s failure to file a notice of claim as required by subdivision 1 of section 3813 of the Education Law, bars her right to relief. Though the notice of claim provision is a statutory condition precedent to the prosecution of any action or proceeding against a school district, a defense based on subdivision 1 of section 3813 nevertheless is waived if not raised in the court of original jurisdiction (Flanagan v Board of Educ., 47 NY2d 613, 617; Matter of Schlosser v Board of Educ., 47 NY2d 811).