text:
    In the Matter of William Fiedelman, Respondent, v New York State Department of Health et al., Appellants.
    Decided February 10, 1983

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (John J. O’Grady of counsel), for appellants.

      Mark Lemle Amsterdam for respondent.
   OPINION OF THE COURT

Per Curiam.

The provisions of CPLR 2103 (subd [c]) prescribing extensions of time where service on a party is made by mail do not apply to administrative proceedings.

The order of the Commissioner of Health imposing fines and suspending petitioner’s right to issue prescriptions was mailed to petitioner and his attorney by certified mail on April 3, 1981 in conformity with the provisions of subdivision 7 of section 3393 of the Public Health Law. Subdivision 1 of section 3394 of that law provides for judicial review under CPLR article 78, and subdivision 2 prescribes that application for such review must be made “within sixty days after service of the order or determination upon the person whose license, certificate, right or privilege is affected thereby or upon the attorney of record for such person”. The present proceeding was commenced by an order to show cause served on the respondents on June 4,1981, the 62nd day after the mailing of the administrative determination. The proceeding was therefore untimely unless petitioner may avail himself of the provisions of CPLR 2103 granting extensions of time in certain circumstances where service is made by mail.

Respondent’s motion to dismiss this proceeding was granted at Special Term. The Appellate Division reversed, two Justices dissenting, held the proceeding timely, and granted petitioner leave to appeal on a certified question. We now reverse.

CPLR 2103 is a carry forward of the substance of sections 163 and 164 of the former Civil Practice Act. Section 163 had provided, inter alia, that where a party had appeared in an action, a notice or other paper required to be served must be served on his attorney. Section 164 provided, inter alia, that when an adverse party had a specified time after service within which to do an act, three days were to be added to the time specified if such service was made through the post office. The extension provision of section 164 was held to be applicable to service of a paper by an administrative agency (e.g., Weingarten v Cohen, 275 App Div 253, affd 300 NY 528).

The application of CPLR 2103, however, is expressly restricted to service “in a pending action”. After providing in subdivision (a) who can make service, subdivision (b) provides:. “Except where otherwise prescribed by law or order of court, papers to be served upon a party in a pending action shall be served upon his attorney”. The manner of such service is then prescribed in paragraphs 1 through 4. In the sequential subdivision (c) provision is made for service on a party himself if the party has not appeared by an attorney or his attorney cannot be served, and the methods prescribed in paragraphs 1, 2 and 4 of subdivision (b) are incorporated by reference. Inasmuch as an administrative proceeding is not an action (see CPLR 105, subd [b]; Matter of Luoma v Spearin, Preston & Burrows, 282 App Div 612, affd 307 NY 728; Matter of Art Metal Constr. Co. v McGoldrick, 260 App Div 153; Matter of Clark, 60 Misc 2d 51) and in any event the article 78 proceeding was not pending until it had been instituted, the extension prescribed in CPLR 2103 (subd [b], par 2) is not available to extend the 60-day period prescribed in subdivision 2 of section 3394. The present article 78 proceeding was therefore not timely commenced.

No view is expressed whether service under section 3394 is deemed completed on the posting of the administrative order or on its receipt where service is made by mail inasmuch as this issue has not been raised or addressed by the parties on this appeal.

Finally, respondents did not waive their objection to the timeliness of petitioner’s article 78 proceeding as such an objection was contained in their answer (see CPLR 7804, subd [f]; 3211, subd [e]; Matter of Hans v Burns, 48 AD2d 947).

For the reasons stated, the order of the Appellate Division should be reversed, with costs, the petition dismissed and the certified question answered in the negative.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Fuchsberg, Meyer and Simons concur in Per Curiam opinion.

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order reversed, with costs, petition dismissed and question certified answered in the negative.

       The provision in effect at the time of service in this case prescribed a three-day extension. By chapter 20 of the Laws of 1982 that period was enlarged to five days effective January 1, 1983.


source: Caselaw Access Project

author: Fuchsberg, J.

license: Public Domain

text:
    Liza Tate, an Infant, by Her Mother and Natural Guardian, Susan McMahon, et al., Respondents, v Pat V. Colabello et al., Appellants.
    Decided February 10, 1983

      APPEARANCES OF COUNSEL

      E. Richard Rimmels, Jr., and Donald S. Neumann, Jr., for appellants.

      Sally Weinraub for respondents.
   OPINION OF THE COURT

Fuchsberg, J.

This appeal poses questions which commonly recur in the trial of damage issues in personal injury litigation. These arise in the context of a $320,000 jury verdict in favor of 15-year-old Liza Tate, who two years earlier had been struck by defendants’ motor vehicle, which allegedly ran a traffic light while she and three other youngsters were crossing a city street.

On defendants’ CPLR 4404 motion, the trial court, after reserving decision on a claim of excessiveness alone and expressly declining to reconsider rulings which it had made adversely to the defendants during trial, eventually granted the motion and ordered a new trial in toto. The Appellate Division thereafter modified by reinstating the verdict on liability and directing a new trial as to damages alone unless consent was given, which it was, to reduction of the verdict to $150,000. In so deciding, the court observed that “[njo cogent reason was given as to why a new trial on liability was necessary” and, concordantly, commented that it also “did not find that the verdict on liability was contrary to the weight of the evidence or that the interest of justice would be served” by disturbing it.

Defendants now pursue this further appeal from the modification as a matter of right under CPLR 5601 (subd [a], par [iii]; see Dalrymple v Shults Chevrolet, 39 NY2d 795). For, while an order of the Appellate Division which reinstates a jury verdict on a weight of evidence question is not reviewable in this court (e.g., Goehle v Town of Smith-town, 55 NY2d 995), errors of law properly preserved during the course of trial nevertheless may be reviewed (see Gutin v Mascali & Sons, 11 NY2d 97, 99; Cohen and Karger, Powers of the New York Court of Appeals [rev ed], § 148, p 588).

Turning then to the errors assigned, we initially treat with defendants’ argument that the trial court committed reversible error when it admitted what, they insist, was evidence of “a new injury” without plaintiff having first obtained leave of the court to include it in a supplemental bill of particulars (CPLR 3043, subd [c]). The “new injury” consisted of an “asymmetrical looking chest”. Served some eight months earlier than its supplement, the original bill had listed as permanent, among other things, a dislocation of the spine at the conjunction of the sixth and seventh cervical vertebrae, a displaced, overriding fracture of the midshaft of the right clavicle and resulting shoulder and clavicular “deformation” affecting the thoracic (chest) and spinal areas. Timely served more than 30 days before trial (CPLR 3043, subd [b]), in comparison, the supplemental bill, which incorporated an orthopedic surgeon’s update, spoke of stiffness and atrophy of the right shoulder, cervical muscle spasm, distortion of the right clavicle from excessive callus (new bone) formation and atrophy, with a consequent one inch lowering of the right shoulder which produced a “permanent cosmetic disfiguration” in the form of an “asymmetrical looking chest”.

Reasonably and realistically read, especially in light of the dynamics of maturing injuries, we cannot say that the later, and therefore more definitive, statement of the hardly unanticipatable sequellae of essentially the selfsame permanent injuries recited in the earlier bill could have come as a surprise (see Siegel, New York Practice, § 242, p 297). At most, it expanded on the extent of the continuing disability rather than on the nature of the injuries (see Cardone v University Hosp., 78 AD2d 645). All the more is this so since the service of the supplement was accompanied by plaintiff’s proffer of a new physical examination, an offer which the defendants, neither then nor when it was tendered again at the time of trial, ever accepted.

Nor is there any more merit to defendants’ contention that a motion for a mistrial should have been granted when plaintiff’s counsel, in summation, took the liberty to “suggest” the sum he believed appropriate compensation for the injuries sustained, the amount he thus named being within that demanded in the complaint. It goes without saying that one of the functions of the jurors in this case was to translate the value of the infant’s injuries and of her consequent pain and suffering into dollars and cents. In support of the path of reasoning by which he would persuade them on this subject, it was counsel’s privilege “to place before the jury his client’s contentions in this regard” and, to this end, he was “entitled to state the amount of damages demanded” (Rice v Ninacs, 34 AD2d 388, 392 [Del Vecchio, J. P.]). Moreover, appropriately, this was followed by an instruction during the court’s charge to the jury that the ultimate measure of damages was to be “a sum of money which will justly and fairly compensate” the plaintiff (PJI 2:280, 2:281).

Defendants further complain of the fact that plaintiff’s counsel, in the course of his summation, after referring to Ms. Tate’s life expectancy of 64 years, asked the jury a series of rhetorical questions as to the value of pain over such a period of time. This they would have us condemn as an impermissible resort to a so-called “per diem” or “unit of time” argument, under which small units of time of pain and suffering are given a specific monetary value and multiplied at this rate for the entire time for which it might be endured (Pain and Suffering Damages — Per Diem Basis, Ann., 3 ALR4th 940, 944). But review of the record discloses that counsel suggested no specific monetary value for units of time and, not having done so, perforce did not multiply them for the jury. So, while, concededly, the propriety of the unit of time approach is a subject on which the decisions of our sister States are in conflict (Ann., 3 ALR4th, at pp 944-945), and we have not had the opportunity to pass on it, this case does hot present the occasion to do so.

Accordingly, on review of the submissions pursuant to rule 500.2 (b), the order of the Appellate Division should be affirmed.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler and Meyer concur; Judge Simons taking no part.

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs.

       Any alleged excessiveness or inadequacy of the jury’s verdict is similarly beyond this court’s power of review (Zipprich v Smith Trucking Co., 2 NY2d 177, 180). The power to grant a new trial unless a party agrees to stipulate to pay a greater amount or accept a lower amount, as the case may be, is committed to the discretion of the trial court and the Appellate Division (O’Connor v Papertsian, 309 NY 465, 471).


author: Meyer, J.

text:
    In the Matter of Dumbarton Oaks Restaurant & Bar, Inc., Appellant, v New York State Liquor Authority, Respondent.
    Argued January 7, 1983;
    decided February 8, 1983

      POINTS OF COUNSEL

      Martin P. Mehler for appellant.
    I. There is no “substantial” evidence to sustain the determination of the State Liquor Authority revoking petitioner’s restaurant liquor license with $1,000 bond forfeiture and a $2,250 fine. (Edison Co. v Labor Bd., 305 US 197; Matter of Stork Rest. v Boland, 282 NY 256; Matter of Standard Food Prods. Corp. v O’Connell, 296 NY 52; Matter of Mendillo v State Liq. Auth., 31 AD2d 974; Matter of Lacqua v O’Connell, 280 App Div 31.) II. Under the circumstances involved herein, the penalty of revocation with bond forfeiture of $1,000 and a $2,250 fine is so shocking to one’s sense of justice, so excessive, harsh and severe, as to constitute an abuse of discretion on the part of the Authority. (Matter of Stolz v Board of Regents of Univ. of State of N. Y., 4 AD2d 361; Matter of Potter v New York State Liq. Auth., 37 AD2d 760; Telesco v New York State Liq. Auth., 39 AD2d 599; Matter of Goldsberg v State Liq. Auth., 42 AD2d 814; Matter of Lakeside Country Club v New York State Liq. Auth., 34 AD2d 1100; Matter of Papoutsis v State Liq. Auth., 32 AD2d 284; Matter of 230 Green Rest. v State Liq. Auth., 32 AD2d 898; Matter of Cassouteau v State Liq. Auth., 36 AD2d 644; Matter of Scult v New York State Liq. Auth., 33 AD2d 792; Matter of L’Intrigue, Inc. v State Liq. Auth., 29 AD2d 854; Matter of Manitta v State Liq. Auth., 34 AD2d 545.) III. The State Liquor Authority cannot exceed the powers granted to it by law. The Authority has no power to penalize a licensee with a fine. Therefore, the $2,250 fine in addition to the revocation and $1,000 bond claim is clearly an abuse of its powers and duties. (Mancini v McLaughlin, 54 NY2d 860; Matter of Levine v O’Connell, 275 App Div 217, 300 NY 658; Matter of Bizarre, Inc. v State Liq. Auth., 29 AD2d 500, 22 NY2d 721.)

      Michael J. Greenfeld and Stanley Stein for respondent.
    I. The record discloses substantial evidence to sustain the determination of respondent State Liquor Authority that petitioner violated the Alcoholic Beverage Control Law as charged and found. (Matter of Humphrey v State Ins. Fund, 298 NY 327; Matter of Miller v Kling, 291 NY 65; Matter of Avon Bar & Grill v O’Connell, 301 NY 150; Matter of Kopec v Buffalo Brake Beam-Acme Steel & Malleable Iron Works, 304 NY 65; Matter of Stork Rest. v Boland, 282 NY 256.) II. Revocation of petitioner’s restaurant liquor license, imposition of a $1,000 forfeiture of its bond and a fine of $2,250 was fully warranted by the violations committee and, under the circumstances revealed in the record, was not unduly harsh or excessive or an abuse of the Authority’s discretion. (Matter of C’Est Si Bon Rest. v State Liq. Auth., 9 AD2d 884; Matter of Regal Wine & Liq. v State Liq. Auth., 12 AD2d 758, 9 NY2d 609; Matter of Sforza v Epstein, 16 AD2d 930,12 NY2d 642; Matter of Ritor Rest. Corp. v New York State Liq. Auth., 27 AD2d 710; Matter of Chandelier Rest. v State Liq. Auth., 27 AD2d 902; Matter of Chaleco Rest. Corp. v New York State Liq. Auth., 27 AD2d 829; Matter of Thompson’s Beer Delivery v State Liq. Auth., 28 AD2d 822; Matter of Kaplan v State Liq. Auth., 28 AD2d 646; Matter of Oasis Rest. v State Liq. Auth., 29 AD2d 687; Matter of Stolz v Board of Regents of Univ. of State of N. Y., 4 AD2d 361.) III. The Authority did not exceed the powers granted to it by law by imposing a fine of $2,250 in connection with the refilling of liquor bottles by petitioner.
   OPINION OF THE COURT

Meyer, J.

The determination of the State Liquor Authority (Authority) that the licensee violated section 111 of the Alcoholic Beverage Control Law was supported by substantial evidence and permitted revocation of petitioner’s license and imposition of a $1,000 bond claim. However, the Authority has not been empowered to impose a fine, and its imposition of a $2,250 fine for violation of subdivision 2 of section 106 of the Alcoholic Beverage Control Law cannot, therefore, be sustained, notwithstanding petitioner’s no contest plea to that charge. The judgment of the Appellate Division should, therefore, be modified, with costs, to annul so much of the Authority’s determination as imposed the $2,250 fine on the latter charge and, as so modified, should be affirmed, thus sustaining the revocation and bond claim.

I

Petitioner is a corporate holder of a restaurant liquor license, of which Dennis V. Quirke, Jr., was, according to the papers filed with the Authority by petitioner, the sole principal. Petitioner was charged in a revocation proceeding with five separate violations of the Alcoholic Beverage Control Law: (1) permitting Quirke’s father-in-law to avail himself of the license, (2) keeping liquor in containers the contents of which were not as represented by the label, (3) purchasing liquor for resale from a person not licensed to sell for resale, (4) altering the licensed premises without permission, and (5) failing to keep and maintain on the premises accurate books and records. Having originally pleaded not guilty to all the charges, petitioner during the revocation hearing amended its plea on charge 2 to “no contest” and stipulated that there were nine bottles of liquor in question. The hearing officer held all five charges sustained and the Authority determined the “appropriate penalty [to be] revocation and $1,000 bond claim plus $2,250 fine on charge 2.”

Petitioner then sought review of that determination in this article 78 proceeding. Upon transfer of the proceeding by Supreme Court to the Appellate Division, the latter court affirmed, without opinion, and dismissed the proceeding on the merits. Petitioner appeals to us by leave of this court (56 NY2d 507). Its brief before us contests whether there was substantial evidence to sustain the availing charge and, assuming, arguendo, that there was substantial evidence to sustain charges 3, 4 and 5, the propriety and legality of the penalty imposed. We modify to annul the $2,250 fine on charge 2 and affirm.

II

There was substantial evidence to support the Authority’s determination that the licensee permitted Quirke’s father-in-law, a person not mentioned in the license, to avail himself of the license. Testifying before the hearing officer, Quirke did not know either the renewal date or the current license fee payable for the premises and acknowledged that the signature of his name to the renewal application was not in his handwriting. The frequent presence of the father-in-law on the premises and Quirke’s concession to the investigator of his father-in-law’s interest, credited by the hearing officer though denied by the licensee at the hearing, add up to evidence which “ ‘a reasonable mind might accept as adequate to support’ ” the conclusion reached by the Authority (Matter of Stork Rest. v Boland, 282 NY 256, 274). It would, therefore, not have been improper to revoke the license and impose a $1,000 bond claim on that charge alone. It being conceded by petitioner that the evidence sustained the last three charges as well, the penalty imposed on charges 1, 3, 4 and 5 was not an abuse of discretion.

Ill

The $2,250 fine on charge 2 was, however, in excess of the Authority’s jurisdiction and must, therefore, be annulled. Although subdivision 3 of section 17 of the Alcoholic Beverage Control Law empowers the Authority to revoke, cancel or suspend a license or permit for cause, it contains no authority to impose a fine or penalty. Moreover, the provision of section 112 that the bond furnished by a licensee or permittee shall be conditioned for payment of “all fines and penalties which shall accrue” cannot be read to authorize imposition of a fine by the Authority for it must be read in relation to the other sections of the law which almost uniformly use the word “fine” to mean an exaction for a criminal violation imposed by a court (see Alcoholic Beverage Control Law, §§ 65-a, 65-b, 130, subds 1, 1-a, 2, 3). That is, of course, the generally accepted meaning of the word (City of Buffalo v Neubeck, 209 App Div 386, 388 [“As generally understood in this State, a fine is a sum of money exacted of a person guilty of a crime, the amount of which may be fixed by law or left in the discretion of the court, while a penalty is a sum of money for which the law exacts payment by way of punishment for doing some act which is prohibited, or omitting to do some act which is required to be done”]; accord Village of Lancaster v Richardson, 4 Lans 136, 140; see, also, American Sur. Co. of N. Y. v Town of Islip, 268 App Div 92, 96; Matter of Sette v McCambridge, 84 Misc 2d 591, 593; City of Hudson v Granger, 23 Misc 401; Fuller v Redding, 16 Misc 634, 635; cf. Gurda v Orange County Pub. Div. of Ottaway Newspapers, 56 NY2d 705, revg on concurring in part and dissenting in part opn below 81 AD2d 120, 130).

The only contrary suggestions in the law are the use of the word “penalties” in the title of section 130 and the references in sections 91, 92 and 101-aa (subd 9, par b) to “penalties provided for in this chapter” and in section 127 to “penalty * * * it may deem appropriate.” However, a section heading “may not alter or limit the effect of unambiguous language in the body of the statute itself” (Squadrito v Griebsch, 1 NY2d 471, 475), and statutes which are penal in character should be construed in a “manner not to embrace cases which do not clearly fall within their terms” (People v Benc, 288 NY 318, 323). There being provisions in the law for “fines” in the generally accepted criminal sense, the use of the word in section 112 must be construed to be limited to such a fine and, therefore, cannot furnish a basis for implying the power in the Authority to impose a fine, as it here attempted to do.

For the foregoing reasons, the judgment of the Appellate Division should be modified, with costs, to annul the $2,250 fine imposed on charge 2 and, as so modified, should be affirmed.

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

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


author: Simons, J.

text:
    In the Matter of Mobil Oil Corporation, Appellant, v Finance Administrator of the City of New York, Respondent.
    Argued January 12, 1983;
    decided February 15, 1983

      POINTS OF COUNSEL

      Jerome R. Hellerstein and J. Dwight Evans, Jr., for appellant.
    I. Payments made by a tenant to its landlord for cleaning the premises occupied exclusively by the tenant do not constitute “rent”, because they are not consideration for “the use or occupancy of premises”. (Matter of Arcangel v Hotting, 258 App Div 180, 1031; Maloney v Celebrezze, 337 F2d 231.) II. If respondent should be justified in reading into the statute a requirement that the portion of lump-sum payments made by tenants to landlords for cleaning their premises constitutes rent, unless the charges therefor are separately stated in the lease, the payments for cleaning services under the Types A and C Leases are nevertheless not taxable, since the leases satisfy that requirement. III. In view of the disagreement between the Finance. Administrator and the Corporation Counsel as to the applicability of the local law to the cleaning service payments at issue, the tax should be annulled under the principle that “a well-founded doubt as to the meaning of the act defeats the tax.” (Matter of Good Humor Corp. v McGoldrick, 289 NY 452; Matter of American Cyanamid & Chem. Corp. v Joseph, 308 NY 259.)

      Frederick. A. O. Schwarz, Jr., Corporation Counsel (Gale Zareko and Frances Henn of counsel), for respondent.
    I. As petitioner did not elect to do its own cleaning and janitorial work, its rent was not reduced, and the tax applies to the entire rent paid. All of the rent was for use and occupancy. (Haskel v 60 West 53 St. Corp., 138 Misc 595, 231 App Div 800; Noyes Co. v Standard Ins., 85 Misc 2d 853; Bribitzer v Wahlig, 235 App Div 702; Pope v Battcock, 218 App Div 857; Knepper v Rothbaum, 104 Misc 554; Mulligan v Kraus, 88 Misc 538; Bramlette Bldg. Corp. v Commissioner of Internal Revenue, 424 F2d 751; City Markets v Commissioner of Internal Revenue, 433 F2d 1240; H & L Reid v United States, 275 F Supp 1099.) II. Even were some part of lump-sum rent excludable from taxable rent where a separate charge for cleaning and janitorial services is made or identifiable, this is not the case here.
   OPINION OF THE COURT

Simons, J.

Petitioner in this article 78 proceeding contends that the tax assessed against it under the New York City commercial rent or occupancy tax law is invalid because assessed, in part, against sums it paid to the landlord for cleaning and janitorial services, not rent. The Appellate Division held otherwise and we affirm its judgment.

Petitioner occupies New York City premises under leases containing three different clauses relating to cleaning services; In two of the leases the landlord agreed that upon payment of the agreed rent, it would supply the tenant cleaning and janitorial services but that the tenant could, if it elected, supply cleaning services at its own expense. If the tenant did so, the lease provided that the rent would abate pro rata according to formulae contained in the leases. Petitioner contends that because abatement is available to it the amount by which the rent would be reduced if it exercised the option to supply its own cleaning is payment for services which should not be taxable. Its submission proceeds along two lines. First, it contends that cleaning is not an item normally supplied by landlords and since the charge for the service can be mathematically computed and segregated it should not be taxable. Second, it contends that charges for cleaning services are specifically excluded from the taxable rent by the language of the local law.

Pursuant to title L of chapter 46 of the New York City Administrative Code business and professional tenants within the City of New York are required to pay a tax measured by their rent. “Rent” is defined as: “[t]he consideration paid or required to be paid by a tenant for the use or occupancy of premises * * * including any payment required to be made by him on behalf of his landlord for real estate taxes, water rents or charges, sewer rents or any other expenses (including insurance) normally payable by a landlord who owns the realty other than expenses for the improvement, repair or maintenance of the tenant’s premises” (Administrative Code of City of New York, § L46-1.0, subd. 6).

Preliminarily it should be noted, although this is not dispositive of the issue, that petitioner’s monthly rent is billed and paid in one lump sum, as specified in the leases and modifications, and without any breakdown for the amounts claimed to be attributable to cleaning services. The parties agreed upon this sum as rent for the leasehold and if the tenant had failed to pay it, then the tenant was subject to eviction (see, e.g., Haskel v 60 West 53 St. Corp., 138 Misc 595, affd 231 App Div 800; Pope v Battcock, 218 App Div 857). The landlord, in consideration of the sum paid, agreed to supply the tenant with a variety of services such as heat, air conditioning, window washing and garbage collection. It also agreed to supply the tenant with cleaning and janitorial services. Because the leases expressly give the tenant the option to supply its own cleaning services and a formula for abatement is stated, it is possible to compute the portion of the rent allocable to cleaning services although that for other services cannot be segregated. Petitioner contends therefore that cleaning services should be treated differently because their actual cost is subject to computation. The short answer to-that is that the formula sums in the lease do not represent the economic cost of the services supplied. Manifestly, they are bargained for elements of the rent because the abatement allowed varies from lease to lease and for different tenants in the building depending upon the negotiating position of the tenant vis-a-vis the landlord (see footnote).

Petitioner also contends that cleaning services differ from other services supplied by the landlord because cleaning services are not customarily supplied by landlords in New York City. Although the Finance Administrator did not make a specific finding to that effect, he necessarily disagreed with petitioner’s position because in paragraph 15 he found that the disputed charges are rent within the definition of the local law. There is sufficient evidence in the record to support his conclusion and we accept it.

Petitioner’s second point is that the charges should not be taxable as rent because they are maintenance expenses and the provisions of the local law exclude other “expenses for the improvement, repair or maintenance of the tenant’s premises” (Administrative Code, § L46-1.0, subd 6 [emphasis added]). Tax exclusions are never presumed or preferred and before petitioner may have the benefit of them, the burden rests on it to establish that the item comes within the language of the exclusion (Matter of Young v Bragalini, 3 NY2d 602, 605-606). While it is the general rule that a statute which levies a tax is to be construed most strongly against the government and in favor of the taxpayer (American Locker Co. v City of New York, 308 NY 264, 269; Matter of Good Humor Corp. v McGoldrick, 289 NY 452, 455), the rule is otherwise with respect to the taxpayers’ right to exclude items from taxation. In the case of statutory exclusions, the presumption is in favor of the taxing power (Matter of Schwartzman, 262 App Div 635, 636, affd 288 NY 568). Thus while maintenance of premises, in the broadest sense, may be thought to include such items, petitioner has failed to overcome the presumption that it does in this case. We conclude, as does the city, that the maintenance referred to in the local law includes only work done to prevent and cure depreciation, i.e., such things as painting, replacing window sashes, etc., not work done to maintain the cleanliness of the premises. However, even if “maintenance” expense is interpreted to include sums paid for cleaning and janitorial services the local law excludes it from rent only when paid to third parties, not when paid to the landlord (Administrative Code, § L46-1.0, subd 6).

The judgment of the Appellate Division should be affirmed.

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

Judgment affirmed, with costs.

       The Type A Lease provided that the landlord agreed to provide cleaning services for the premises occupied by petitioner but petitioner had the option to do or have done its own cleaning. If it did, it received a credit against rent of 35 cents a square foot per year for the rented space above the ground floor and 10 cents per square foot per year for the rest of the space, plus escalation or de-escalation after the first year based on increases or decreases in the landlord’s average costs therefor during the current period, as compared with the base period established by the lease for operating costs.
      Under the Type B Lease the landlord did not in the first instance agree to furnish cleaning or janitorial services for the space occupied by the tenant. The tenant could elect to have the landlord do the cleaning, however, and if the tenant exercised that election, the annual “rent” would be increased by 25 cents per square foot of the space involved. Respondent did not assess on the cost of cleaning services covered by Type B Lease and no issue is submitted to the court on rent payable for premises covered by this type lease.
      The Type C Lease provided that the landlord undertook to provide cleaning services for space rented on the second floor. If, however, the tenant exercised its right to do the cleaning of that space, the annual “rent” was to be reduced by 25 cents per square foot per year of the space in question.


author: Chief Judge Cooke.

text:
    In the Matter of Edward Feight et al., Respondents, v Richard G. Lesser, as Commissioner of the Department of Social Services of Fulton County, Respondent, and Barbara Blum, as Commissioner of the New York State Department of Social Services, Appellant.
    Argued January 10, 1983;
    decided February 15, 1983

      POINTS OF COUNSEL

      Robert Abrams, Attorney-General (Alan W. Rubenstein and Peter H. Schiff of counsel), for appellant.
    I. Petitioners lack standing to maintain this proceeding. (Matter of Peninsula Gen. Nursing Home v Sugarman, 44 NY2d 909; Matter of St. Francis Hosp. v D’Elia, 71 AD2d 110; Matter of Wood v Fahey, 62 AD2d 86; Matter of Community Hosp. at Glen Cove v D’Elia, 82 AD2d 804; Matter of Maier v Blum, 78 AD2d 901; Matter of Colon v Kirby, 81 AD2d 638; Matter of Dairylea Coop. v Walkley, 38 NY2d 6.) II. The State commissioner’s construction of the catastrophic assistance provisions of section 366 (subd 2, par [c]) of the Social Services Law is rational and reasonable; it should be sustained. (Matter of Howard v Wyman, 28 NY2d 434; Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451; Lascaris

      v Wyman, 31 NY2d 386, cert den sub nom. Chamber of Commerce of U. S. v Lavine, 414 US 832; Matter of Brown v Lavine, 49 AD2d 49.)

      Stanley D. Russell for respondents.
    I. All medical assistance sources must be exhausted before Hill-Burton program can be utilized. (Tarble’s Case, 80 US 397; Ex parte Siebold, 100 US 371; Rice v Chicago Bd. of Trade, 331 US 247; Rice v Santa Fe Elevator Corp., 331 US 218.) II. The liability for and payment of any spenddown is a matter to be resolved by the patient and hospital. (Dallas v Levine, 79 Misc 2d 395; Tarble’s Case, 80 US 397; Ex parte Siebold, 100 US 371; Rice v Chicago Bd. of Trade, 331 US 247; Rice v Santa Fe Elevator Corp., 331 US 218; Matter of Watkins v Toia, 57 AD2d 628, 46 NY2d 773.) III. Petitioner Nathan Littauer Hospital has standing to maintain this proceeding. (Matter of Peninsula Gen. Nursing Home v Sugarman, 57 AD2d 268, 44 NY2d 909.) IV. Appellant has waived the right to challenge the standing of petitioner Feight. (United States of Amer. ex rel. Matthews v Massachusetts Bonding & Ins. Co., 238 NY 334; Hirschberg v Bertal. Textile Co., 238 App Div 338; Klein-Messner Co. v Fair Waist & Dress Co., 217 App Div 647; Matter of Balducci [Rakov], 195 App Div 52; Buckley v Stansfield, 155 App Div 735; Matter of Lehrer v Michaelis, 11 Misc 2d 544; Matter of Dobler v Kaplan, 27 Misc 2d 15.)
   OPINION OF THE COURT

Chief Judge Cooke.

This proceeding involves a conflict between Federal and State laws governing the providing of assistance to the medically needy. In the present situation, the State law must defer to the Federal and the amount of State assistance should be determined without reference to the availability of Federal aid.

Section 366 of the Social Services Law prescribes New York’s eligibility requirements for receiving Medicaid benefits. Generally, a beneficiary must be financially needy to qualify for Medicaid assistance. Section 366 (subd 2, par [c]), however, provides an exception for persons, not otherwise eligible for Medicaid, who incur a “catastrophic illness”. Financial aid may be given to such persons, but “such assistance shall be limited to payment for that portion of the cost of in-patient care, services and supplies while in a medical institution which, after application of available insurance benefits and resources not exempt [as a homestead which is essential and appropriate to the needs of the household, essential personal property, certain liquid resources, and certain savings amounts], is in excess of [the lesser of 25% of the beneficiary’s annual income or the amount he or she would receive if otherwise eligible for cash public assistance]” (see Social Services Law, § 366, subd 2, pars [a], [c]).

For many years, the United States Government has provided financial assistance for the construction and modernization of hospitals and other medical facilities (see US Code, tit 42, § 291 et seq.). Commonly referred to as “Hill-Burton”, the program requires the recipients to make “available in the facility or portion thereof to be constructed or modernized a reasonable volume of services to persons unable to pay therefor” (US Code, tit 42, § 291c, subd [e]). The Secretary of Health and Human Services has promulgated certain rules regulating the delivery of uncompensated services under the Hill-Burton Act (see 42 CFR 124.501 et seq.). Of concern here, the regulations prohibit a facility from calculating as part of its uncompensated services “[a]ny amount that the facility has received, or is entitled to receive, from a third party insurer or under a governmental program, except where the person to whom the facility provides services refused to take reasonable actions necessary to obtain the entitlement.” (42 CFR 124.509 [a].)

Petitioner Feight was hospitalized November 2-9, 1979, at petitioner Nathan Littauer Hospital. On November 3, he applied for free care under the Hill-Burton Act. Feight was told that the Federal program required that he first apply for Medicaid benefits, which he did at the end of that month.

Feight’s circumstances were such that he was eligible for Medicaid assistance only under the provision for persons suffering a catastrophic illness. On December 19, the local Department of Social Services preliminarily denied his application because his monthly income exceeded by $22 per month the statutory maximum for a person in his situation. Feight was informed that if he would pay $264 toward his medical expenses, he would then be eligible for Medicaid and should thereupon contact the department. Feight never contacted the agency and his application was finally denied on January 23, 1980.

In the meantime, on January 8, the hospital found Feight to be eligible for assistance under the Hill-Burton Act. Consequently, Feight would not be personally responsible for the $1,347 in medical expenses incurred by his stay. The hospital agreed to pay the $264 “pay-down” amount from Hill-Burton assistance.

Feight requested a review of the local agency’s decision, and a fair hearing was held on July 8, 1980. Respondent State Commissioner of the Department of Social Services confirmed the denial, but on a ground different than that of the local agency. Respondent reasoned that, by virtue of being found eligible for assistance under the Hill-Burton Act, Feight had incurred no “costs” and so was ineligible for Medicaid.

Petitioners commenced this article 78 proceeding, seeking an order compelling payment of $790, the difference between the value of the services rendered, computed at State compensation rates, and the pay-down amount. Special Term dismissed the petition, and the Appellate Division unanimously reversed. This court now affirms, but on reasoning different than that of the lower court.

Respondent asserts that petitioners have no standing to bring this proceeding, it being urged that because petitioner Feight does not have any obligation to pay the medical expenses or any continuing eligibility for Medicaid, he has no injury requiring redress. This reasoning, however, would leave the matter forever unresolved, as no individual found eligible for Hill-Burton assistance would ever be able to challenge the denial of Medicaid benefits. In these circumstances, respondent’s objection to Feight’s standing must be rejected. Inasmuch as petitioner Feight does have standing and presents the same arguments as the hospital, we do not address the question of whether the hospital has standing.

In addressing the merits of the appeal, it should be noted that the Appellate Division mischaracterized the basis for respondent’s decision by describing the denial as being grounded on Feight’s failure to personally pay the $264 pay-down amount. As related above, respondent’s rationale actually was that Feight incurred no “costs” because he was found eligible for assistance under the Hill-Burton Act.

The State law should be applied first so that Hill-Burton assistance is used only to supplement the Medicaid program. The controversy involves the doctrine of Federal supremacy, which generally requires that conflicting provisions in State and Federal laws be construed so as to give effect to the latter. In the present case, the court is confronted by a situation in which both New York and the Federal Government have created schemes to assist the medically needy. In another case involving overlapping regulatory plans, the Supreme Court stated: “The test, therefore, is whether the matter on which the State asserts the right to act is in any way regulated by the Federal Act. If it is, the federal scheme prevails though it is a more modest, less pervasive regulatory plan than that of the State” (Rice v Santa Fe Elevator Corp., 331 US 218, 236). By analogy, the Hill-Burton exclusion of governmental sources should be given precedence over the State’s exclusion — i.e., Medicaid eligibility should be determined without reference to the availability of Hill-Burton assistance.

Providing free medical assistance under the Hill-Burton Act is an adjunct of the Federal Government’s funding for constructing and modernizing hospitals. A hospital must annually provide a minimum amount of uncompensated services (see 42 CFR 124.503 [a]), but no maximum amount of assistance is prescribed and nothing requires a hospital to exceed the minimum. Indirectly, then, Hill-Burton assistance involves Federal funds and represents a program “funded” by the Nation’s taxpayers. In contrast, New York’s catastrophic illness program is funded solely by State funds. Consequently, the commissioner’s decision has the effect of protecting New York taxpayers while burdening all other taxpayers — who cannot protect their interests in New York — with caring for New York’s catastrophically ill. As a matter of comity, the State aid should be provided first.

For the foregoing reasons, respondent erred when she considered Feight’s eligibility for Hill-Burton assistance in denying his application for Medicaid. These payments do not fall within the categories of section 366 (subd 2, par [c]) of the Social Services Law.

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

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

Order affirmed, with costs.

       The full text of section 366 (subd 2, par [c]) of the Social Services Law provides: “(c) Any inconsistent provision of law notwithstanding, medical assistance shall also be given in the event of catastrophic illness to any person not otherwise eligible under this section; provided, however, that such assistance shall be limited to payment for that portion of the cost of in-patient care, services and supplies while in a medical institution which, after application of available insurance benefits and resources not exempt under subparagraphs (1), (2), (3) or (4) of paragraph (a) of this subdivision, is in excess of either (i) twenty-five per centum of the recipient’s annual net income or (ii) that amount of recipient’s annual net income in excess of the applicable cash public assistance eligibility level, whichever is less. Income or resources of responsible relatives shall be deemed income or resources of the recipient for purposes of this paragraph.”
      Section 366 (subd 2, par [a], els [l]-[4]) provides:
      “(1) a homestead which is essential and appropriate to the needs of the household;
      “(2) essential personal property;
      “(3) liquid resources in the amount of five hundred dollars for each person, but not in excess of two thousand dollars per family, as a burial reserve;
      “(4) savings in amounts equal to at least one-half of the appropriate income exemptions allowed”.


author: Wachtler, J. Jones, J.

text:
    Susan R. Avitzur, Appellant, v Boaz Avitzur, Respondent.
    Argued January 3, 1983;
    decided February 15, 1983

      POINTS OF COUNSEL

      Richard A. Hanft for appellant.
    I. Execution and enforcement of the marriage contract does not constitute entanglement in a religious question. (Matter of “Rubin” v “Rubin”, 75 Misc 2d 776; Matter of Blum Folding Paper Box Co. [Raften — Friedlander], 27 NY2d 35; Board of Educ. [Auburn Teachers Assn.], 49 AD2d 35.) II. Appellant has stated a cause of action warranting a plenary trial. (Jones v Wolf, 443 US 595; Hurwitz v Hurwitz, 216 App Div 362; Serbian Orthodox Diocese v Milivojevich, 426 US 696; Beulah Wesleyan Methodist Church v Henry, 187 Misc 502; Koeppel v Koeppel, 3 AD2d 853; Margulies v Margulies, 42 AD2d 517; Waxstein v Waxstein, 90 Misc 2d 784, 57 AD2d 863; Shapiro v Shapiro, 110 Misc 2d 726; Perlstein v Perlstein, 76 AD2d 49.) III. Application of the doctrine of “unclean hands” is properly a matter for a Trial Judge. (Da Silva v Musso, 53 NY2d 543; Meyer v Nebraska, 262 US 390; Griswold v Connecticut, 381 US 479.)

      Louis-Jack Pozner for respondent.
    I. New York civil courts may not properly adjudicate religious issues. (McCollum v Board of Educ., 333 US 203; Presbyterian Church v Hull Church, 393 US 440; Jones v Wolf, 443 US 595; Sherbert v Verner, 374 US 398; Russian Church of Our Lady of Kazan v Dunkel, 33 NY2d 456.) II. This action was properly dismissed for failure of the complaint to state a cause of action. (Sivakoff v Sivakoff, 280 App Div 106; Weiss v Mayflower Doughnut Corp., 1 NY2d 310.) III. Summary judgment was properly granted to respondent dismissing the complaint. (Margulies v Margulies, 42 AD2d 517; Pal v Pal, 45 AD2d 738; Waxstein v Waxstein, 90 Misc 2d 784; Koeppel v Koeppel, 3 AD2d 853.) IV. Appellant’s relief is barred by laches. (Sherbert v Verner, 374 US 398; Elrod v Burns, 427 US 347; Wisconsin v Yoder, 406 US 205.) V. New York State has pre-empted the field of divorce by the statutory scheme of the Domestic Relations Law, and the cause of action which appellant attempts to assert herein is not properly cognizable by the courts of the State of New York.

      Nathan Lewin, Dennis Rapps, Daniel D. Chazin and Ivan L. Tillem for National Jewish Commission on Law and Public Affairs, amicus curiæ.

    I. A prenuptial agreement to submit to rabbinical arbitration any controversy between husband and wife regarding “the standards of the Jewish law of marriage” is enforceable under CPLR 7501. (Matter of Grayson-Robinson Stores [Iris Constr. Corp.], 8 NY2d 133; Lawrence Co. v Devonshire Fabrics, 271 F2d 402; Matter of Weinrott [Carp], 32 NY2d 190; Bowmer v Bowmer, 50 NY2d 288; Hirsch v Hirsch, 37 NY2d 312; Sheets v Sheets, 22 AD2d 176; Grien v Grien, 51 AD2d 543; Siegel v Ribak, 43 Misc 2d 7; Board of Educ. v Cracovia, 36 AD2d 851.) II. The parties in this case signed a binding prenuptial agreement to arbitrate any postmarital religious obligations before a specified rabbinical tribunal. (Matter of Hub Inds. [George Mfg. Co.], 183 Misc 767, 269 App Div 177, 294 NY 897.) III. Enforcement of the parties’ arbitration clause does not involve the court in religious entanglement. (Hurwitz v Hurwitz, 216 App Div 362; Berman v Shatnes Lab., 43 AD2d 736; Matter of Koslowski v Seville Syndicate, 64 Misc 2d 109; Matter of Berk, 8 Misc 2d 732;
      Serbian Orthodox Diocese v Milivojevich, 426 US 696; Jones v Wolf, 443 US 595; Maryland & Va. Churches v Sharpsburg Church, 396 US 367; Margulies v Margulies, 42 AD2d 517, 33 NY2d 894; Matter of “Rubin” v “Rubin”, 75 Misc 2d 776; Waxstein v Waxstein, 90 Misc 2d 784, 57 . AD2d 863.)

      Robert J. Jossen and Stanley J. Friedman for Jewish Theological Seminary of America, amicus curiæ.

    As a matter of law there is no proscription against specific performance of the Ketubah to require defendant to submit to the jurisdiction of a Beth Din. (Matter of Philips, 293 NY 483, 294 NY 662; Matter of Sunshine, 51 AD2d 326, 40 NY2d 875; Johnston v Spicer, 107 NY 185; Strebler v Wolf, 152 Misc 859; Hurwitz v Hurwitz, 216 App Div 362; Perlstein v Perlstein, 76 AD2d 49; Margulies v Margulies, 42 AD2d 517; Waxstein v Waxstein, 90 Misc 2d 784, 57 AD2d 863; Matter of “Rubin” v “Rubin”, 75 Misc 2d 776, Koeppel v Koeppel, 3 AD2d 853.)
   OPINION OF THE COURT

Wachtler, J.

This appeal presents for our consideration the question of the proper role of the civil courts in deciding a matter touching upon religious concerns. At issue is the enforceability of the terms of a document, known as a Ketubah, which was entered into as part of the religious marriage ceremony in this case. The Appellate Division held this to be a religious covenant beyond the jurisdiction of the civil courts. However, we find nothing in law or public policy to prevent judicial recognition and enforcement of the secular terms of such an agreement. There should be a reversal.

Plaintiff and defendant were married on May 22,1966 in a ceremony conducted in accordance with Jewish tradition. Prior to the marriage ceremony, the parties signed both a Hebrew/Aramaic and an English version of the “Ketubah”. According to the English translation, the Ketubah evidences both the bridegroom’s intention to cherish and provide for his wife as required by religious law and tradition and the bride’s willingness to carry out her obligations to her husband in faithfulness and affection according to Jewish law and tradition. By signing the Ketubah, the parties declared their “desire to * * * live in accordance with the Jewish law of marriage throughout [their] lifetime” and further agreed as follows: “[W]e, the bride and bridegroom * * * hereby agree to recognize the Beth Din of the Rabbinical Assembly and the Jewish Theological Seminary of America or its duly appointed representatives, as having authority to counsel us in the light of Jewish tradition which requires husband and wife to give each other complete love and devotion, and to summon either party at the request of the other, in order to enable the party so requesting to live in accordance with the standards of the Jewish law of marriage throughout his or her lifetime. We authorize the Beth Din to impose such terms of compensation as it may see fit for failure to respond to its summons or to carry out its decision.”

Defendant husband was granted a civil divorce upon the ground of cruel and inhuman treatment on May 16, 1978. Notwithstanding this civil divorce, plaintiff wife is not considered divorced and may not remarry pursuant to Jewish law, until such time as a Jewish divorce decree, known as a “Get”, is granted. In order that a Get may be obtained plaintiff and defendant must appear before a “Beth Din”, a rabbinical tribunal having authority to advise and pass upon matters of traditional Jewish law. Plaintiff sought to summon defendant before the Beth Din pursuant to the provision of the Ketubah recognizing that body as having authority to counsel the couple in the matters concerning their marriage.

Defendant has refused to appear before the Beth Din, thus preventing plaintiff from obtaining a religious divorce. Plaintiff brought this action, alleging that the Ketubah constitutes a marital contract, which defendant has breached by refusing to appear before the Beth Din, and she seeks relief both in the form of a declaration to that effect and an order compelling defendant’s specific performance of the Ketubah’s requirement that he appear before the Beth Din. Defendant moved to dismiss the complaint upon the grounds that the court lacked subject matter jurisdiction and the complaint failed to state a cause of action, arguing that resolution of the dispute and any grant of relief to plaintiff would involve the civil court in impermissible consideration of a purely religious matter. Plaintiff, in addition to opposing the motion, cross-moved for summary judgment.

Special Term denied defendant’s motion to dismiss, noting that plaintiff sought only to compel defendant to submit to the jurisdiction of the Beth Din, an act which plaintiff had alleged defendant bound himself to do. That being the only object of the lawsuit, Special Term was apparently of the view that the relief sought could be granted without impermissible judicial entanglement in any doctrinal issue. The court also denied plaintiff’s motion for summary judgment, concluding that issues concerning the translation, meaning and effect of the Ketubah raised factual questions requiring a plenary trial.

The Appellate Division modified, granting defendant’s motion to dismiss. Inasmuch as the Ketubah was entered into as part of a religious ceremony and was executed, by its own terms, in accordance with Jewish law, the court concluded that the document constitutes a liturgical agreement. The Appellate Division held such agreements to be unenforceable where the State, having granted a civil divorce to the parties, has no further interest in their marital status.

Accepting plaintiff’s allegations as true, as we must in the context of this motion to dismiss, it appears that plaintiff and defendant, in signing the Ketubah, entered into a contract which formed the basis for their marriage. Plaintiff has alleged that, pursuant to the terms of this marital contract, defendant promised that he would, at plaintiff’s request, appear before the Beth Din for the purpose of allowing that tribunal to advise and counsel the parties in matters concerning their marriage, including the granting of a Get. It should be noted that plaintiff is not attempting to compel defendant to obtain a Get or to enforce a religious practice arising solely out of principles of religious law. She merely seeks to enforce an agreement made by defendant to appear before and accept the decision of a designated tribunal.

Viewed in this manner, the provisions of the Ketubah relied upon by plaintiff constitute nothing more than an agreement to refer the matter of a religious divorce to a nonjudicial forum. Thus, the contractual obligation plaintiff seeks to enforce is closely analogous to an antenuptial agreement to arbitrate a dispute in accordance with the law and tradition chosen by the parties. There can be little doubt that a duly executed antenuptial agreement, by which the parties agree in advance of the marriage to the resolution of disputes that may arise after its termination, is valid and enforceable (e.g., Matter of Sunshine, 40 NY2d 875, affg 51 AD2d 326; Matter of Davis, 20 NY2d 70). Similarly, an agreement to refer a matter concerning marriage to arbitration suffers no inherent invalidity (Hirsch v Hirsch, 37 NY2d 312; see Bovomer v Bowmer, 50 NY2d 288, 293). This agreement — the Ketubah — should ordinarily be entitled to no less dignity than any other civil contract to submit a dispute to a nonjudicial forum, so long as its enforcement violates neither the law nor the public policy of this State (Hirsch v Hirsch, supra, at p 315).

Defendant argues, in this connection, that enforcement of the terms of the Ketubah by a civil court would violate the constitutional prohibition against excessive entanglement between church and State, because the court must necessarily intrude upon matters of religious doctrine and practice. It is urged that the obligations imposed by the Ketubah arise solely from Jewish religious law and can be interpreted only with reference to religious dogma. Granting the religious character of the Ketubah, it does not necessarily follow that any recognition of its obligations is foreclosed to the courts.

It is clear that judicial involvement in matters touching upon religious concerns has been constitutionally limited in analogous situations, and courts should not resolve such controversies in a manner requiring consideration of religious doctrine (Presbyterian Church v Hull Church, 393 US 440, 449; Serbian Orthodox Diocese v Milivojevich, 426 US 696, 709; Jones v Wolf, 443 US 595, 603; see, e.g., Reardon v Lemoyne, _ NH _ [Dec. 23, 1982]). In its most recent pronouncement on this issue, however, the Supreme Court, in holding that a State may adopt any approach to resolving religious disputes which does not entail consideration of doctrinal matters, specifically approved the use of the “neutral principles of law” approach as consistent with constitutional limitations (Jones v Wolf, supra, at p 602). This approach contemplates the application of objective, well-established principles of secular law to the dispute (id., at p 603), thus permitting judicial involvement to the extent that it can be accomplished in purely secular terms.

The present case can be decided solely upon the application of neutral principles of contract law, without reference to any religious principle. Consequently, defendant’s objections to enforcement of his promise to appear before the Beth Din, based as they are upon the religious origin of the agreement, pose no constitutional barrier to the relief sought by plaintiff. The fact that the agreement was entered into as part of a religious ceremony does not render it unenforceable. Solemnization of the marital relationship often takes place in accordance with the religious beliefs of the participants, and this State has long recognized this religious aspect by permitting duly authorized pastors, rectors, priests, rabbis and other religious officials to perform the ceremony (Domestic Relations Law, § 11, subds 1, 7). Similarly, that the obligations undertaken by the parties to the Ketubah are grounded in religious belief and practice does not preclude enforcement of its secular terms. Nor does the fact that all of the Ketubah’s provisions may not be judicially recognized prevent the court from enforcing that portion of the agreement by which the parties promised to refer their disputes to a nonjudicial forum (see Ferro v Bologna, 31 NY2d 30, 36). The courts may properly enforce so much of this agreement as is not in contravention of law or public policy.

In short, the relief sought by plaintiff in this action is simply to compel defendant to perform a secular obligation to which he contractually bound himself. In this regard, no doctrinal issue need be passed upon, no implementation of a religious duty is contemplated, and no interference with religious authority will result. Certainly nothing the Beth Din can do would in any way affect the civil divorce. To the extent that an enforceable promise can be found by the application of neutral principles of contract law, plaintiff will have demonstrated entitlement to the relief sought. Consideration of other substantive issues beaming upon plaintiff’s entitlement to a religious divorce, however, is appropriately left to the forum the parties chose for resolving the matter.

Accordingly, the order of the Appellate Division should be reversed, with costs, and defendant’s motion to dismiss the complaint denied.

Jones, J.

(dissenting). We are of the opinion that to grant the relief plaintiff seeks in this action, even to the limited extent contemplated by the majority, would necessarily violate the constitutional prohibition against entanglement of our secular courts in matters of religious and ecclesiastical content. Accordingly, we would affirm the order of the Appellate Division.

We start on common ground. Judicial intervention in disputes with respect to religious and ecclesiastical obligation is constitutionally proscribed, save with respect to a narrow class of issues, as to which, under “neutral principles of law”, the secular component of the religious and ecclesiastical rights and obligations may be resolved without impermissible trespass on or even reference to religious dogma and doctrine (pp 114-115). We depart from the conclusion of the majority that in this case the courts may discern one or more discretely secular obligations which may be fractured out of the “Ketubah”, indisputably in its essence a document prepared and executed under Jewish law and tradition.

We are constrained, as is the majority, by the allegations of the complaint. Plaintiff therein alleges: that the parties were married on May 22, 1966 in a religious ceremony in accordance with Jewish law and tradition; that pursuant to the terms and conditions of the religious ceremony they entered into a contract known as a “Ketubah”; that under the Ketubah the husband declared and contracted with the wife to be her husband according to the law of Moses and Israel and to honor and support her, faithfully cherishing her and providing for her needs as Jewish husbands are required to do pursuant to Jewish religious law and tradition; that pursuant to the Ketubah the parties agreed to recognize the Beth Din of the Rabbinical Assembly and the Jewish Theological Seminary of America as having authority to summon either party at the request of the other and further agreed that in the event of any civil divorce decree the husband would grant and the wife accept a Jewish divorce (“get”) in accordance with the authority vested in the Beth Din; that under the law of Moses should the husband arbitrarily refuse to give a “get” the wife, such as plaintiff in this case, is known and referred to as an “Aguna” which is a state of limbo wherein the wife is considered neither married nor divorced; that a judgment of civil divorce of the parties was entered on May 16, 1978 in the Albany county clerk’s office; that the wife has requested and summoned the husband to appear before the Beth Din of the Rabbinical Assembly pursuant to the terms of the Ketubah but that he has willfully and intentionally refused to appear before the assembly in violation of his contractual obligations; that in consequence the wife is consigned to the status of “Aguna” and is barred from remarrying within the context of a Jewish religious ceremony. The wife demands judgment against the husband: declaring “the rights and other legal relation of the plaintiff and defendant in the marriage contract (Ketubah), created by reason of the written instrument”; declaring that the husband specifically perform pursuant to the terms and conditions of the Ketubah in that he appear before the Beth Din of the Rabbinical Assembly and the Jewish Theological Seminary of America or its duly appointed representatives pursuant to the wife’s request; declaring that failure of the husband so to appear constitutes a breach of contract; and for other incidental relief.

Determination whether judicial relief may be granted the wife without constitutionally impermissible interjection of the court into matters of religious and ecclesiastical content requires examination of the English translation of the Ketubah in the context of the wife’s allegation that this document was made and entered into as part of the religious ceremony in accordance with Jewish law and tradition:

“On the First Day of the Week, the 3rd Day of the Month Sivan, 5726, corresponding to the 22nd Day of May, 1966, Boaz Avitzur, the bridegroom, and Susan Rose Wieder, the bride, were united in marriage in Old Westbury, N.Y. The bridegroom made the following declaration to his bride: ‘Be thou my wife according to the law of Moses and Israel. I shall honor and support thee, faithfully I shall cherish thee and provide for thy needs, even as Jewish husbands are required to do by our religious law and tradition.’

“In turn, the bride took upon herself the duties of a Jewish wife, to honor and cherish her husband, and to carry out all her obligations to him in faithfulness and affection as Jewish law and tradition prescribe.

“And in solemn assent to their mutual responsibilities and love, the bridegroom and bride have declared: As evidence of our desire to enable each other to live in accordance with the Jewish law of marriage throughout our lifetime, we, the bride and bridegroom, attach our signatures to this Ketubah, and hereby agree to recognize the Beth Din of the Rabbinical Assembly and the Jewish Theological Seminary of America, or its duly appointed representatives, as having authority to counsel us in the light of Jewish tradition which requires husband and wife to give each other complete love and devotion, and to summon either party at the request of the other, in order to enable the party so requesting to live in accordance with the standards of the Jewish law of marriage throughout his or her lifetime. We authorize the Beth Din to impose such terms of compensation as it may see fit for failure to respond to its summons or to carry out its decision.

“This Ketubah was executed and witnessed this day in accordance with Jewish law and tradition.

“Boaz Avitzur bridegroom Susan Wieder bride Melvin Kieffer rabbi Abraham Weisman witness Melvin Kieffer witness.”

At the outset we observe that the complaint contains no allegation that the parties intended that the Ketubah should manifest secular promises or have any civil or secular status or any legal significance independent of the religious ceremony between them of which it was an integral part. Nor is any such assertion advanced in the papers submitted by the wife in support of her cross motion for summary judgment.

Moreover, it appears evident to us that any determination of the content and particulars of the rights of the wife or the obligations of the husband under this document cannot be made without inquiry into and resolution of questions of Jewish religious law and tradition. We think it inaccurate to identify the relief sought by plaintiff, as does the majority, as “simply to compel defendant to perform a secular obligation to which he contractually bound himself.” (At p 115.)

The complaint’s first request for relief paints with a broad brush, asking that the court “declare the rights and other legal relation of the plaintiff and defendant in the marriage contract” created by reason of the Ketubah. That such an all-encompassing declaration of rights exceeds the authority of the civil court seems to be implicitly conceded by the majority’s attempt to limit its consideration to enforcement of an obligation characterized as “secular” — the alleged obligation of the husband to appear before the Beth Din.

The wife’s pleading itself, however, not to mention the affidavits submitted by her, makes it clear that even a definition of the purported “secular obligation” requires an examination into the principles and practice of the Jewish religion. Although the English translation of the Ketubah attached to the complaint recites that the parties “recognize the Beth Din * * * as having authority * * * to summon either party at the request of the other”, the complaint seeks a declaration that the husband specifically perform “in that he appear before the Beth Din * * * pursuant to the request of the plaintiff”. Thus, the wife tenders her construction of the document, which in turn presumably is predicated on what she contends is tradition in the faith, i.e., that there is an obligation imposed by the agreement to appear before the Beth Din at the summons alone of the other party to the marriage despite the facial reference to a summons by the Beth Din. The husband, tendering his own construction of the document, denies that he is under any obligation to appear before the Beth Din because an earlier request by him for convocation of such a body was refused. Thus, it appears evident that any judicial determination whether the husband is obligated to appear before the Beth Din, or what nature of summons is required to call such obligation into play, necessarily involves reference to substantive religious and ecclesiastical law.

The unsoundness of the position espoused by the majority to justify judicial action to compel the husband to appear before the Beth Din, is revealed by projection of the course the continuing litigation will take in this case. The motion to dismiss and the cross motion for summary judgment having both been denied, the case will be set down for trial. The evidence which the wife may be expected to introduce is revealed by examination of the affidavits she submitted in opposition to the motion to dismiss and in support of her cross motion for summary judgment. Her affidavit conveys information furnished her by Rabbi Mordecai Kieffer who in his accompanying affidavit describes himself as “qualified to render an expert opinion concerning matters of Jewish laws and custom”. She relies on his affidavit to support her claim that there was “good and legal consideration” for the Ketubah and that the Beth Din presently has no authority to compel the husband to submit to its jurisdiction. The rabbi, predicated on what he offers as a more accurate translation of the Ketubah into English, expresses the opinion that “good and legal consideration” is to be found in the document itself. Then, describing in detail the procedures incident to the issuance of a “get”, the rabbi concludes that the husband was obligated to submit to the jurisdiction of the Beth Din without the issuance of any summons by it. Accordingly, it is evident that the wife and her counsel are themselves of the view that substantiation of her position will depend on expert opinion with respect to Jewish law and tradition.

The majority’s reference to the fact that marriage relationships solemnized within a religious context are recognized by the civil law is not determinative of the question here presented where what is sought to be enforced is an aspect of the relationship peculiar to the religion within which the ceremony creating it took place. No authority is cited in which a civil court has enforced a concomitant undertaking required by the ecclesiastical authority under which the marriage ceremony was solemnized. That no such civil enforcement of the obligation to appear before the Beth Din was contemplated either by the drafter of the Ketubah or by the parties as its signatories is evident from the inclusion of explicit authorization to the Beth Din “to impose such terms of compensation as it may see fit for failure to respond to its summons or to carry out its decision”. Nothing in the record suggests that it was the intention of the parties when they signed this religious document that the civil courts of the State of New York were to have jurisdiction to determine the substantive rights created thereby or to invoke civil procedures and remedies for the enforcement of such rights. Indeed, any conclusion on the part of our courts that this express provision was not intended by the parties as the exclusive remedy available to them for any breach of their obligations under the Ketubah would itself necessarily entail examination of Jewish law and tradition.

Finally, the evident objective of the present action — as recognized by the majority and irrefutably demonstrated by the complaint — even if procedural jurisdiction were to be assumed, is to obtain a religious divorce, a matter well beyond the authority of any civil court. (Again supplying her own interpretation of the Ketubah, the wife alleges: “That pursuant to the terms of the Ketubah, the plaintiff and defendant agreed that in the event of any civil divorce decree that the husband grant and the wife accept a Jewish divorce decree in accordance with the authority vested in the Beth Din of the Rabbinical Assembly”.) As was noted at the Appellate Division, the interest of the civil authorities of the State of New York in the status of the marriage between these parties was concluded when the final judgment of divorce was entered in 1978.

Chief Judge Cooke and Judges Fuchsberg and Meyer concur with Judge Wachtler; Judge Jones dissents and votes to affirm in a separate opinion in which Judges Jasen and Simons concur.

Order reversed, etc.

       The recital in the testimonium clause itself is indicative — “this Ketubah was executed and witnessed this day in accordance with Jewish law and tradition.”


text:
    The People of the State of New York, Respondent, v Richard J. Rickert, Jr., Appellant. The People of the State of New York, Respondent, v Richard A. Boyer, Eugene W. Black, Fred O. T. Agyeman and Robert L. Brown, Appellants.
    Argued January 11, 1983;
    decided February 15, 1983

      POINTS OF COUNSEL

      Thomas D. Keleher for appellant in the first above entitled action.
    I. The County Court’s scope of review is limited to determining whether the City Court abused its discretion in granting appellant’s motion to dismiss in the interest of justice. (People v Chillis, 79 AD2d 872; People v Kidd, 76 AD2d 665; People v Keller, 67 AD2d 153; People v Christmas, 72 AD2d 664.) II. The City Court did not abuse its discretion in granting appellant’s motion to dismiss in the interest of justice. (People v Wingard, 33 NY2d 192; Smith & Sons Carpet Co. v Ball, 137 App Div 100; People v Eubanks, 108 Misc 2d 108.)

      Susan R. Horn, Robert H. Whorf and Gerald T. Barth for Richard A. Boyer and others, appellants in the second above-entitled action. Joseph J. Heath for Robert L. Brown, appellant in the second above-entitled action.
    I. The scope of review of the intermediate appellate court in dismissals in the furtherance of justice pursuant to CPL 170.40 is limited to a finding of abuse of discretion. (Feldsberg v Nitschke, 49 NY2d 636; Vanderbilt v Schreyer, 81 NY 646; Delaware, Lackawanna & Western R. R. Co. v Slocum, 299 NY 496, revd on other grounds sub nom. Slocum v Delaware, L. & W. R. R. Co., 339 US 239, 301 NY 661; Rosen Trust v Rosen, 53 AD2d 342; Seigler v Massachusetts Acc. Co., 255 App Div 1031; Matter of Sondheim, 69 App Div 5; People v Wooster, 17 NY2d 893; People v Stromberg, 17 NY2d 892; People v Wingard, 33 NY2d 192; People v Belge, 41 NY2d 60; People v Hirsch, 85 AD2d 902.) II. The County Court went beyond the proper scope of review in its reversal of the trial court’s dismissals in the interests of justice. (People v Hicks, 287 NY 165; People v Williams, 20 AD2d 963; People v Weis, 32 AD2d 856; People v Brown, 33 AD2d 735; People v Duncan, 75 AD2d 823; Steinleger v Frankel, 117 Misc 693.) III. The trial court properly dismissed the accusatory instruments in the furtherance of justice pursuant to CPL 170.40 and the County Court erred in finding an abuse of discretion. (People v Quill, 11 Misc 2d 512; People v James, 98 Misc 2d 755; People v Wingard, 33 NY2d 192; People v Kwok Ming Chan, 45 AD2d 613; People v Dibono, 82 Misc 2d 177; People v Davis, 55 Misc 2d 656; People v Collier, 85 Misc 2d 529; People v Joseph P., 106 Misc 2d 1075; People v Eubanks, 108 Misc 2d 108; People v Belge, 41 NY2d 60.)

      Richard A. Hennessy, Jr., District Attorney (John A. Cirando and Gail N. Uebelhoer of counsel), for respondent in the first and second above-entitled actions.
    I. An intermediate appellate court may exercise its own discretion when reviewing a trial court’s dismissal in the interest of justice. (People v Coppa, 45 NY2d 244; People v Williams, 31 NY2d 151.) II. The intermediate appellate court acted within its permissible scope of review and correctly determined that the trial court improperly dismissed the informations in the interest of justice. (People v Wingard, 33 NY2d 192; People v Novack, 74 AD2d 652; People v Trait, 70 AD2d 1057; People v Mitchell, 64 AD2d 1012; People v Belkota, 50 AD2d 118; People v Marco, 44 AD2d 574; People v Di Falco, 44 NY2d 482; Matter of Cosgrove v La Mendola, 73 AD2d 810; People v Izsak, 99 Misc 2d 543.)
   OPINION OF THE COURT

Fuchsberg, J.

The questions posed in common by these five appeals call upon us to interpret CPL 170.40 for the first time since it was amended in 1979 (L 1979, ch 216, § 1, eff Jan. 1,1980). Particularly, these probe a local criminal court’s authority to dismiss an information in the interest of justice.

In each case, the Onondaga County Court, in the exercise of its appellate jurisdiction (CPL 450.60, subd 3), reversed an order of the Syracuse City Court, which, acting under CPL 170.40, dismissed an information charging a father with nonsupport of his child in violation of section 260.05 of the Penal Law. Because, in each instance, we do not agree with the County Court’s conclusion that the City Court abused its discretion as a matter of law, we now, in turn, reverse the County Court’s orders. Our reasons follow.

Although the current version of CPL 170.40 is, in substantial part, the product of its recent amendment, the inherent power it bespeaks has ancient roots. Its New York legislative antecedents alone go back more than a century to the adoption, in 1881, of sections 663, 664 and 671 of the former Code of Criminal Procedure. But long before then, it had a respected place in the common law (People v Clayton, 41 AD2d 204, 206 [Hopkins, J.]; see People v Quill, 11 Misc 2d 512, 513 [Sobel, J.]). Throughout this history, and no less today, its thrust, even to the disregard of legal or factual merit, has been “to allow the letter of the law gracefully and charitably to succumb to the spirit of justice” (People v Davis, 55 Misc 2d 656, 659). Indeed, it may not be too much to say that, in a broad sense, the idea was to introduce into the criminal law a flexibility somewhat akin to that equity essayed on the civil side (see Matter of Lessig, 168 Misc 889, 890 [“equity” and “justice” substantially equivalent]).

The generality and exquisiteness of the interest of justice ideal was not intended, however, to convey an untrammeled right to act on purely subjective considerations. Required, rather, was a sensitive balancing of the interests of the individual and of the People (People v Belkota, 50 AD2d 118, 120 [Simons, J.]). Discomfited that, nevertheless, CPL 170.40 and 210.40 (as these existed prior to 1979) prescribed neither specification of “criteria for the responsible exercise” of interest of justice discretion nor articulation of “the manner and extent to which a particular case meets such criteria”, this court, in People v Belge (41 NY2d 60, 62), expressed concern that, absent such guidelines, whether judicially or legislatively declared, effective appellate review was, to say the least, difficult. Indicating a decided preference for legislative correction, we expressly invited the attention of the Legislature “to this predicament”.

That the 1979 amendment was a direct response to the Belge invitation is acknowledged (see Governor’s Memorandum on Approval, 1979 McKinney’s Session Laws of NY, p 1775; Memorandum of Office of Court Administration, 1979 McKinney’s Session Laws of NY, p 1879; Memorandum of Office of Special Prosecutor in support of A 682, to become CPL 170.40, as amd). Set out in subdivision 1 of the section, the new matter provided that, in determining whether “the existence of some compelling factor, consideration or circumstance clearly demonstrated]” that “dismissal is required as a matter of judicial discretion”, a court “must, to the extent applicable, examine and consider, individually and collectively, the following:

“(a) the seriousness and circumstances of the offense;

“(b) the extent of harm caused by the offense;

“(c) the evidence of guilt, whether admissible or inadmissible at trial;

“(d) the history, character and condition of the defendant;

“(e) any exceptionally serious misconduct of law enforcement personnel * * *;

“(f) the purpose and effect of imposing upon the defendant a sentence * * *;

“(g) the impact of a dismissal on the safety or welfare of the community;

“(h) the impact of a dismissal upon * * * confidence * * * in the criminal justice system;

“(i) * * * the attitude of the complainant or victim with respect to the motion;

“(j) any other relevant fact indicating that * * * conviction would serve no useful purpose”.

In addition, under the statute’s re-enacted subdivision 2, a court, upon issuing a CPL 170.40 order of dismissal, “must set forth its reasons therefor upon the record”.

Scrutinizing these provisions, we see that, while a Judge who grants a 170.40 motion is mandated to state reasons for this action, whether recited in “written or orally-delivered-on-the-record” form (Bellacosa, Practice Commentary, McKinney’s Cons Laws of NY, Book 11 A, CPL 210.40, p 156), there is no comparable requirement that the Judge’s equally mandatory “examination” and “consideration” of each of the decalogue of possible determinants which make up paragraphs (a) through (j) of subdivision 1 be spelled out in so many words. As a practical matter, though, vague or conclusory reasons, unsupported by a record which gives them enough substance to “clearly demonstrate” the actual existence of at least “some compelling factor, consideration or circumstance”, will not make for the intended meaningful appellate review. Without more, then, the “manner and extent to which a particular case” accords with the criteria which the framers of the statute provided (People v Belge, supra; Bellacosa, Practice Commentary, op. cit.) will not have been met.

Thus, while the statute does not compel catechistic on-the-record discussion of items (a) through (j), useful as that would be to indicate that in fact all applicable items have been considered, the need to show that the ultimate reasons given for the dismissal are both real and compelling almost inevitably will mean that one or more of the statutory criteria, even if only the catchall (j), will yield to ready identification.

So tested, it is apparent that in none of the cases before us can it be said as a matter of law that the Syracuse City Court abused its discretion.

In the Rickert case, for instance, the record reveals that, after a hearing, the City Court came to the conclusion that the defendant was not the “ ‘recalcitrant parent’ the penal statute is designed to seek out”. For, as the court expressly found from the evidence, the defendant, who candidly conceded his arrears, was also, during the period for which he was being criminally charged with nonsupport, financially burdened by responsibility to his wife and their child and the effects of a prior “lengthy period of unemployment during which the defendant reasonably incurred a large number of debts”. Moreover, as borne out by testimony, he nonetheless “did make payments at various times when he was employed”, on occasions even prevailed upon his wife, when she earned any money, to assist in meeting this obligation and had “resumed his regular payments upon stabilizing his financial situation, months prior to institution of these charges” (emphasis added). Finally and confirmatorily, the Social Services Department’s support enforcement officer assigned to monitor defendant’s payments advised the court that the defendant’s co-operation had made it unnecessary for the agency to resort to Family Court collection facilities. On these facts, acting under CPL 170.40, the City Court reasoned that “no useful purpose to society will be served by continuance of this prosecution” (see CPL 170.40, subd 1, par [j]).

For its part, the County Court, in a brief memorandum, premised its determination that the dismissal was an abuse of discretion on no more than the assertion that, though the City Court had articulated its “no useful purpose” rationale, it had not “indicate[d]” that it found a “compelling factor which would cause injustice”. Nor, though the undisputed facts, in greater or lesser degree, could in fact be found supportive of all the statutory criteria but (f), did the County Court advantage itself in the slightest of the standards the amendment had made available to ease appellate review. So, whether this holding was meant to say that the lower court decision was deficient for failing to incant the “compelling factor” phraseology or that, however labeled, the record was insufficient to sustain the exercise of discretion, it cannot stand.

The City Court’s joint opinion in the other four cases is even more replete with consideration of relevant factors. Employing a realism especially suitable in the context of an interest of justice determination, it informs us that three of the defendants, Boyer, Black and Agyeman, were in such indigent circumstances that whatever opportunity there may have been to treat constructively with their support obligations through the Family Court would have been destroyed by their incarceration. One of these three was a student dependent for his own sustenance on part-time work and grants. The fourth one, Brown, who had suffered a heart attack, had attempted to clear up his support arrears only to be repulsed by the District Attorney’s insistence on a finding of guilt.

The opinion further advises that, except for Black, who in the past had once been held in contempt in the Family Court, the defendants had no previous involvement with the criminal justice system so that convictions would tend to stigmatize them and their families, discourage vocational rehabilitation, eliminate the prospect of restitution and, counterproductively, visit much of the burden of these handicaps on their families. Moreover, it took account of the fact that the indigencies would foist the cost of defense counsel upon the People. To boot, in a detailed analysis, the opinion points out that, what with dismissible accusatory instruments which had already required substitution by misdemeanor complaints, disputed payments which defendants claimed the mothers of the children had not reported to welfare authorities and the burden on the People to prove ability to provide support or disprove the other defenses raised by the defendants, conviction was less than certain.

Further, the opinion, among other things, found it significant that the Department of Social Services, given its expertise in such cases, did not regard the circumstances of these defendants as deserving of even the quasi-criminal action available in the Family Court. Finally, after considering both the statutory and decisional criteria relating to interest of justice dismissals, and quoting legislative commentary suggesting that the “optimum solution” for the problems, presented in nonsupport cases “is a judicial and administrative framework such as is found in the Family-Court Act” (Hechtman, Practice Commentary, McKinney’s Cons Laws of NY, Book 39, Penal Law, § 260.05, p 404), the City Court concluded that the “specific facts of these cases, combined with the inappropriateness of the criminal forum at this time, serve as the bases for the Court granting these motions to dismiss”.

In finding an abuse of discretion in these four cases too, the County Court grants that the City Court “clearly gives reasons for its decision”, but conclusorily goes on to say that “these reasons are neither of such a nature nor magnitude as to rise to the level of a Clayton dismissal”. To this, noting that the City Court’s opinion had included “a lengthy discussion of whether Criminal Court is the proper forum for these cases”, the County Court added that “the Court cannot use itself as a springboard for legislative reform”, “it is the prerogative of the District Attorney to prosecute people who fail to support their children under this statute” and “[i]t is not within the province of the trial court to determine that all non-support cases are to be handled by Family Court”. We comment briefly on each of these matters.

First, that a court directs the attention of the Legislature to what it conceives to be an urgent need for legislative reform is neither uncommon, improper nor, for that matter, disqualifying (e.g., People v Belge, 41 NY2d 60, supra; see Witkin, Manual on Appellate Court Opinions, p 160).

Second, while it is the prerogative of a District Attorney to prosecute people who commit crimes (see People v Zimmer, 51 NY2d 390, 394), the three City Court Judges who issued the opinion, describing the problem somewhat differently, put it that the District Attorney pursuant to a “blanket policy of insisting on full payment of Family Court arrears, in addition to a plea of guilty to the charge, fails to recognize that every case must be dealt with on an individual basis”. Belatedly, it is to be remembered that one of the reforms effected through the years in the procedure to dismiss accusatory instruments in the interest of justice was to remove the power to do so from the offices of District Attorney and Attorney-General and lodge it, instead, in the courts alone (Matter of McDonald v Sobel, 272 App Div 455, 461, affd 297 NY 679; People v Quill, 11 Misc 2d 512, 513, supra).

Third, the City Court, in its opinion, did not determine that all nonsupport cases are to be handled by Family Court and that it was within the City Court’s province to so decide. To the contrary, whatever their views on the social wisdom of our prevailing system, the three Judges, overtly conscious of their judicial obligations, took the pains to state: “The adjudication herein is based upon the particular facts before us”.

Fourth, and most important, as to the adequacy of the City Court’s justification for its decision, suffice it that the reasons developed in its opinion come well within the compass of CPL 170.40 (subd 1, pars [a], [b], [c], [d], [f], [i]) and, keeping in mind that the statutory criteria are to be considered collectively as well as individually, may be said to be within paragraphs (g) and (h) as well. All the more is this so since, consistent with common sense, “the less serious nature of the criminal conduct affected by the procedure governed by * * * section [170.40], should make the more particularized and reviewable exercise of interest-of-justice discretion even more available here than in the felony-governing section 210.40” (Bellacosa, Practice Commentary, McKinney’s Cons Laws of NY, Book 11A, CPL 170.40, p 77; e.g., People v Davis, 55 Misc 2d 656, supra [marihuana acquired by student out of curiosity]; People v Campbell, 48 Misc 2d 798 [charge of abduction against defendant dismissed where complainant, two days before her 18th birthday, went to another State to marry without parental permission]).

Holding, therefore, that it cannot be said that in any of these cases the City Court, “in exercising its discretion, fail[ed] to take into account all the various factors entitled to consideration” (Varkonyi v S. A. Empresa De Viacao Airea Rio Grandense [Varig], 22 NY2d 333, 337, mot for rearg den 22 NY2d 973), we turn to the corrective action required by our Criminal Procedure Law.

Unlike this court, which is limited to reviewing questions of law in noncapital cases (People v Tyler, 46 NY2d 264, 267), an intermediate appellate tribunal, here the County Court (CPL 1.20, subd 22), in an appropriate case possesses the power to review the facts and substitute its discretion for that of nisi prius even in the absence of abuse (CPL 470.15, subd 3, par [c]; People v Cona, 49 NY2d 26, 33; People v Alfonso, 6 NY2d 225, 229). When, however, as in the case before us now, the intermediate appellate court has not stated that it reviewed the facts upon which the criminal court’s order was based, it must be presumed that no such review was undertaken (CPL 470.25, subd 2, par [d]). Under these circumstances, CPL 470.40 (subd 2, par [b]) directs us to remit the case to the intermediate appellate court to enable it to do so (People v Berkowitz, 50 NY2d 333, 347).

Accordingly, in each of these cases, the order from which the appeal is taken should be reversed and the case remitted to County Court, Onondaga County, for further proceedings in accordance with this opinion.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer and Simons concur.

In each case: Order reversed, etc.

      . As relevant here, section 260.05 of the Penal Law, violation of which is a misdemeanor, provides that “A [father] is guilty of non-support of a child when * * * he fails or refuses without lawful excuse to provide support for such child when he is able to do so”.

      . In the defendant Rickert’s case, the motion to dismiss was heard and decided separately. In the other four, those of Boyer, Black, Agyeman and Brown, while each one’s motion was addressed on its own facts to an individual Judge (two to one Judge and one each to two others), each case was decided in a “comprehensive” 40-page opinion signed by all three Judges. As the opinion explained, this procedure was adopted both because of the similarity of the issues raised and a felt “need for uniformity and guidelines in effectively dealing with the numerous prosecutions for non-support”. Individual orders of dismissal were entered.

      . CPL 170.40 applies to “[a]n information, a simplified traffic information, a prosecutor’s information or a misdemeanor complaint” before a local criminal court (CPL 170.30, subd 1, par [g]). A parallel provision, CPL 210.40, governs accusatory instruments filed in superior courts (CPL 210.20, subd 1, par [i]). Both statutes received identical amendments in 1979.

      . On this point, People v Wingard (33 NY2d 192) is not to be taken as authority to the contrary. The opinion there does not disclose why the court made what, without more, must be regarded as a procedural deviation.