author: Simons, J. Chief Judge Cooke

text:
    Niagara Mohawk Power Corporation, Respondent, v City School District of the City of Troy, Appellant.
    Argued April 16, 1983;
    decided June 14, 1983

      POINTS OF COUNSEL

      Anne Reynolds Copps and Thomas J. O’Connor for appellant.
    I. Compliance with the notice of claim requirements in subdivision 1 of section 3813 of the Education Law is a condition precedent to the maintenance of an action for refund of taxes. (Republic of Argentina v City of New York, 25 NY2d 252; Rynders v City School Dist. of City of Geneva, 78 AD2d 1021; Cecere v City School Dist. of Geneva, 84 AD2d 913; Camarella v East Irondequoit Cent. School Bd., 34 NY2d 139; P. J. Panzeca, Inc. v Board of Educ., 29 NY2d 508; Matter of Geneseo Cent. School [Perfetto & Whalen Constr. Corp.], 53 NY2d 306; Public Improvements v Board of Educ., 81 AD2d 537, 56 NY2d 850; Crescent Elec. Installation Corp. v Board of Educ., 50 NY2d 780; Amsterdam Wrecking & Salvage Co. v Greater Amsterdam School Dist., 56 NY2d 828; Press v County of Monroe, 50 NY2d 695.) II. The letters of John H. Dickleman, dated July 30, 1974 and July 30, 1976 do not constitute substantial compliance with the notices of claim provisions of subdivision 1 of section 3813 of the Education Law. (Matter of Kingston City Schools Cons. v Sheraden, 76 AD2d 993; P. J. Panzeca, Inc. v Board of Educ., 29 NY2d 508; Matter of Baker [Board of Educ.], 309 NY 551; Hines v City of Buffalo, 79 AD2d 218; Bethlehem Steel Corp. v Board of Educ., 44 NY2d 831; Doundoulakis v Town of Hempstead, 42 NY2d 440; Colena v City of New York, 68 AD2d 898; Matter of Ringgold v New York City Tr. Auth., 286 App Div 806; Camarella v East Irondequoit Cent. School Bd., 34 NY2d 139.)

      David J. Calverley, Adelbert Fleischmann and Philip H. McIntyre for respondent.
    I. Unconstitutionally void taxes may be recovered without compliance with restrictive notice statutes such as section 3813. (Bethlehem Steel Corp. v Board of Educ., 44 NY2d 831; City of Rochester v Waldert, 439 US 922; Central Buffalo Project Corp. v City of Buffalo, 74 AD2d 336, 52 NY2d 986; Aetna Ins. Co. v Mayor of City of N. Y., 153 NY 331; Horne v Town of New Lots, 83 NY 101; Matter of First Nat. City Bank v City of New York Fin. Admin., 36 NY2d 87; People ex rel. Erie R. R. Co. v State Tax Comm., 246 NY 322; Matter of Building Contrs. Assn. v Tully, 65 AD2d 199, 47 NY2d 903; Matter of Hospital Tel. Systems v New York State Tax Comm., 41 AD2d 576; Matter of State Ins. Fund v Boyland, 282 App Div 516, 309 NY 1009; Watergate II Apts. v Buffalo Sewer Auth., 91 Misc 2d 133, 60 AD2d 778, 46 NY2d 52.) II. Section 3813 does not apply because plaintiff seeks the return of its own money as a matter of equity, not to recover damages or affect any interest of the school district. (Ruocco v Doyle, 38 AD2d 132; Matter of Di Sano v Storandt, 43 Misc 2d 272, 22 AD2d 6; Matter of Randall v Hoff, 4 Misc 2d 376; Redner v City of New York, 53 Misc 2d 148; Matter of First Nat. City Bank v City of New York Fin. Admin., 36 NY2d 87; Maisel v Schwartzbaum, 30 Misc 2d 880; Pink v Title Guar. & Trust Co., 274 NY 167, 610; Peyser v Mayor of City of N. Y., 70 NY 497; People ex rel. First Nat. Bank of Jeffersonville v Schadt, 237 App Div 233.) III. Section 3813 does not apply here because of the public interest nature of this action. (Union Free School Dist. No. 6 of Towns of Islip & Smithtown v New York State Human Rights Appeal Bd., 35 NY2d 371, 36 NY2d 807; Matter of Feinberg v Board of Educ., 78 AD2d 889; Valhalla Union Free School Dist. v Somers Cent. School Dist., 98 Misc 2d 365; National Bank of Chemung v City of Elmira, 53 NY 49; Matter of Pulver v Board of Educ., 80 AD2d 833; Matter of Weisberth v Board of Educ., 76 AD2d 841; Gross v Board of Educ., 73 AD2d 949, 49 NY2d 707; Matter of Tadken v Board of Educ., 65 AD2d 820, 46 NY2d 711; Mancuso v Board of Educ., 282 App Div 1097, 283 App Div 839.) IV. Section 3813 should be held not to apply because there is no indication that the Legislature intended it to apply to tax refund actions. (Matter of Albano v Kirby, 36 NY2d 526; Lincoln First Bank of Rochester v Rupert, 60 AD2d 913; Matter of Pell v Coveney, 37 NY2d 494; Essenfeld Bros. v Hostetter, 14 NY2d 47; Matter of Town of Smithtown v Moore, 11 NY2d 238; Salesian Soc. v Village of Ellenville, 41 NY2d 521; National Bank of Chemung v City of Elmira, 53 NY 49; H & J Floor Covering v Board of Educ., 66 AD2d 588; Matter of Board of Educ. [Wager Constr. Corp.], 37 NY2d 283.) V. Section 3813 does not apply here because Niagara Mohawk complied with an alternative procedure which serves the same purpose. (Union Free School Dist. No. 6 of Towns of Islip & Smithtown v New York State Human Rights Appeal Bd., 35 NY2d 371, 36 NY2d 807; Newburgh Nursery v Board of Educ., 41 Misc 2d 997; Mercury Mach. Importing Corp. of City of New York, 3 NY2d 418.) VI. Niagara Mohawk substantially complied with section 3813, and it was proper for the court below to permit verification nunc pro tunc. (Frink v Town of Amenia, 91 Misc 2d 491; Eggleston v Town of Chautauqua, 90 App Div 314, 183 NY 514; Matter of Batavia Enterprises v Assessor of Town of Batavia, 72 AD2d 912; Allen v Board of Assessors of Town of Mendon, 57 AD2d 1036; Carthage Cent. School Dist. No. 1 v Reddick & Sons of Gouverneur, 67 AD2d 808; Matter of Kingston City Schools Cons. v Sheraden, 76 AD2d 993, 51 NY2d 709; Matter of Belluardo v Board of Educ., 68 AD2d 887; Matter of Baker [Board of Educ.], 309 NY 551; People ex rel. Denney v Clark, 257 App Div 905.)

      Robert J. Rader and Norman H. Gross for the New York State School Boards Association, Inc., amicus curiae.

    I. Compliance with the notice of claim requirements in section 3813 of the Education Law is necessary in this action to recover taxes. (Matter of First Nat. City Bank v City of New York Fin. Admin., 36 NY2d 87; Republic of Argentina v City of New York, 25 NY2d 252; Rynders v City School Dist. of City of Geneva, 78 AD2d 1021; Cecere v City School Dist. of Geneva, 84 AD2d 913; Munroe v Booth, 305 NY 426; Matter of Board of Educ. [Wager Constr. Corp.], 37 NY2d 283; Matter of Board of Educ. [Great Neck Teachers Assn.], 69 Misc 2d 1061, 40 AD2d 950; Amsterdam Wrecking & Salvage Co. v Greater Amsterdam School Dist., 56 NY2d 828; Public Improvements v Board of Educ., 56 NY2d 850; Crescent Elec. Installation Corp. v Board of Educ., 50 NY2d 780.) II. Because the instant action was brought to enforce alleged private rights, the “vindication of a public interest” exception to section 3813 is inapplicable. (Union Free School Dist. No. 6 v Towns of Islip & Smithtown v New York State Human Rights Appeal Bd., 35 NY2d 371; Cecere v City School Dist. of Geneva, 84 AD2d 931; Rynders v City School Dist. of City of Geneva, 78 AD2d 1021; Board of Educ. vNew York State Div. of Human Rights [Arluck], 44 NY2d 902; Bethlehem Steel Corp. v Board of Educ., 44 NY2d 831; City of Rochester v Waldert, 439 US 922; Matter of Coger v Davidoff, 71 AD2d 1044; Matter of Grey v Board of Educ., 60 AD2d 361.)

   OPINION OF THE COURT

Simons, J.

Plaintiff seeks to recover a portion of real property taxes paid defendant claiming the levies were illegal because they exceeded the 2% constitutional limitation on taxation of real property (see NY Const, art VIII, § 10; Hurd v City of Buffalo, 34 NY2d 628, affg 41 AD2d 402; Bethlehem Steel Corp. v Board of Educ., 44 NY2d 831, affg 61 AD2d 147). Its complaint asserts four causes of action involving sums paid for the tax years commencing on July 1, in 1974, 1975, 1976 and 197.7. It alleges that the taxes were paid under protest, but it does not allege compliance with the provisions of section 3813 of the Education Law. The issue is whether the complaint states valid causes of action.

Before service of an answer, defendant served a notice of motion to dismiss pursuant to CPLR 3211 (subd [a], par 7), without accompanying affidavits, alleging that the complaint failed to state the statutory requirement of service of a written verified claim on defendant and its neglect or refusal to adjust or pay the claim (see P. J. Panzeca, Inc. v Board of Educ., 29 NY2d 508). Plaintiff responded by serving affidavits in which it alleged that the taxes were paid under protest. Annexed were checks and letters indicating that the taxes referred to in the first cause of action, paid for the tax year 1974-1975, and part of those referred to in the third cause of action, paid for the tax year 1976-1977, were paid under protest. This motion presents only the sufficiency of the complaint, however, and for that purpose we must assume the truth of the allegations contained in it, without reference to the allegations in plaintiff’s responding papers (cf. CPLR 3211, subd [c]).

Special Term held that a notice of claim was a necessary condition precedent to maintenance of the action and that plaintiff’s letters substantially complied with the service requirement. It granted plaintiff leave to verify them nunc pro tunc. It denied the motion to dismiss the complaint holding that although compliance with the statute was required to maintain the action, compliance need not be pleaded. The parties filed cross appeals and the Appellate Division modified Special Term by striking that part of the order which permitted plaintiff to verify the letters nunc pro tunc. The majority held that compliance with section 3813 was not required to sustain the cause of action but that even if it was, plaintiff was excused under the judicially recognized public interest exception (see Union Free School Dist. No. 6 of Towns of Islip & Smithtown v New York State Human Rights Appeal Bd., 35 NY2d 371, 379-380). The dissenter voted to grant defendant’s motion to dismiss the complaint (see Niagara Mohawk Power Corp. v City School Dist. of City of Troy, 88 AD2d 167). The Appellate Division granted leave to appeal to this court on a certified question.

There should be an affirmance. Taxes assessed and collected in violation of the constitutional authority granted the school district or otherwise void for want of jurisdiction may be recovered by the taxpayer in a plenary action for moneys had and received (Matter of First Nat. City Bank v City of New York Fin. Admin., 36 NY2d 87, 93; New York R. T. Corp. v City of New York, 275 NY 258, 264, affd 303 US 573). The taxes must be paid involuntarily (City of Rochester v Chiarella, 58 NY2d 316; Mercury Mach. Importing Corp. v City of New York, 3 NY2d 418, 426; and see Bethlehem Steel Corp. v Board of Educ., 44 NY2d 831, 835, supra), but a complaint alleging the involuntary payment of a void tax may not be dismissed for insufficiency because of the taxpayer’s failure to plead compliance with the provisions of subdivision 1 of section 3813 of the Education Law (see Matter of Troy Towers Redevelopment Co. v City of Troy, 51 AD2d 173, 176, affd 41 NY2d 816).

Central to our decision is the distinction between conduct of the taxing authority which is erroneous and conduct which is illegal, .between a special proceeding instituted to correct action the taxing authority is empowered to perform but which it has performed imperfectly, and a plenary action attacking action which exceeds the taxing authority’s powers.

Article 7 of the Real Property Tax Law applies to taxes collected because of erroneous assessments. It is the exclusive procedure for review of property assessments “unless otherwise provided by law” (Real Property Tax Law, § 700, subd 1; see City of Mount Vernon v State Bd. of Equalization & Assessment, 44 NY2d 960; Sikora Realty Corp. v City of New York, 262 NY 312, 318; United States Trust Co. of N. Y. v Mayor, Aldermen & Commonalty of City of N. Y., 144 NY 488). No notice of claim is necessary or required in a special proceeding instituted under article 7 because it must be commenced promptly by service of a petition and notice for review or, in New York City, by a petition alone (Real Property Tax Law, § 702, subds 2, 3; § 704, subd 1) after petitioner has exhausted his administrative grievance remedies (see Young Men’s Christian Assn. v Rochester Pure Waters Dist., 37 NY2d 371, 375; Matter of Grossman v Board of Trustees of Vil. of Geneseo, 44 AD2d 259, 263; and see People ex rel. Erie R. R. Co. v State Tax Comm., 246 NY 322, 325). The statute thus contains provisions calculated to give the taxing authority prompt notice of the claimed error and an opportunity to investigate and correct it before litigation results. These special procedures and time limits permit a measure of expedition in establishing the tax roll and stabilizing municipal finances. Section 3813 serves purposes similar to those of article 7 in nontax related claims (Matter of Board of Educ. [Wager Constr. Corp.], 37 NY2d 283; Board of Educ. v Great Neck Teachers Assn., 69 Misc 2d 1061, affd 40 AD2d 950).

When the taxing authority exceeds its power, however, the taxpayer may challenge its levy collaterally in a plenary action. It need not meet statutory conditions precedent or follow the procedures set forth in the Real Property Tax Law because the assessment is void (Matter of First Nat. City Bank v City of New York Fin. Admin., 36 NY2d 87, supra; Dun & Bradstreet, Inc. v City of New York, 276 NY 198, 206; New York R. T. Corp. v City of New York, 275 NY 258, 264, affd 303 US 573, supra; People ex rel. Erie R. R. Co. v State Tax Comm., 246 NY 322, 325-326, supra). In such case, a legal issue is critical, the power to tax not the facts underlying the tax, and thus there is little need for the taxing authority to investigate or to attempt to adjust the claim. This jurisdictional issue, as in most legal proceedings, may be raised collaterally without regard to the normal procedures or the necessity of complying with conditions precedent.

Defendant, in support of its contention that section 3813 applies to this claim, relies principally upon the decision in Republic of Argentina v City of New York (25 NY2d 252). In that case, plaintiff contended its consular offices were exempt from real property taxation under international law, “the customs and practices of nations”, which it alleged was binding on local governments. It sought to recover taxes paid, most of them voluntarily, over an 18-year period. The city acknowledged that it was bound by international law but disputed the existence of any established rule exempting consular offices from local taxation. The court, noting the lack of a clear-cut rule and that a treaty embodying the exemption had been recently drafted and was awaiting ratification in the Senate, held for the taxpayer. It permitted only partial recovery of back taxes, however, because of the taxpayer’s failure to file timely claims as required by the city’s Administrative Code. The case may be distinguished because there the assessors had authority to tax under State and Federal law (indeed, the right to exemption was not acknowledged by the Federal Government until two years before the proceeding commenced), and they had acted within their jurisdiction. The rationale was much the same as that which places the burden on a taxpayer to establish its right to an exemption. By contrast, in this case it is claimed that the school district had no power to levy the tax.

Notwithstanding all of this, the school district contends that even if a plenary action may be maintained, a notice of claim is still required under subdivision 1 of section 3813.

There are two Appellate Division decisions affirming, without opinion, judgments of Small Claims Court in which compliance with the statute was required (see Cecere v Geneva Enlarged City School Dist., 84 AD2d 913; Rynders v City School Dist. of City of Geneva, 78 AD2d 1021) but, as plaintiff notes, several similar actions to recover illegally levied taxes have proceeded to successful conclusions without plaintiff’s pleading compliance with section 3813 and without the defendant asserting the statute as a defense (see Bethlehem Steel Corp. v Board of Educ., 44 NY2d 831, supra; Jones v City School Dist. of City of Geneva, 44 NY2d 831; Somarelli v Port Jervis Cent. School Dist., 71 AD2d 992; American-Russian Aid Assn. v City of Glen Cove, 41 Misc 2d 622, affd 23 AD2d 966). These actions were brought against school districts for refunds of void taxes and judgments were obtained in all of them without any mention of section 3813. The only express ruling on the subject by an appellate court is found in Matter of Troy Towers Redevelopment Co. v City of Troy (51 AD2d 173, supra), in which the court held without discussion that section 3813 did not apply in an action brought against this same school district for the recovery of a void tax levied against a redevelopment corporation. We affirmed on the opinion at the Appellate Division (41 NY2d 816, supra).

The legislative history of section 3813 supports what these decisions suggest. It is reviewed extensively in H & J Floor Covering v Board of Educ. (66 AD2d 588) and it indicates that the legislation was originally meant to apply to negligence actions in which the school districts could be surprised by suits to recover for unknown accidental injuries or faced with stale claims. In addition, we have held that the statute applies to contract claims (Matter of Board of Educ. [Wager Constr. Corp.], 37 NY2d 283, 289, supra). They also raise factual issues which a school district needs to investigate and which it should have an opportunity to compromise following investigation and before litigation. But because an action for the return of a void tax raises only a legal issue for the court, there is no need for a prior notice of claim to allow for investigation, adjustment or administrative action (see Matter of Hospital Tel. Systems v State Tax Comm., 41 AD2d 576; Dun & Bradstreet, Inc. v City of New York, 276 NY 198, 206, supra). Indeed, it is inconsistent to insist that the taxpayer pursue an administrative remedy, thereby impliedly recognizing the jurisdiction of the district, at the same time it challenges the legality of the district’s action (see Matter of Diocese of Rochester v Planning Bd. of Town of Brighton, 1 NY2d 508, 519-520). The only purpose section 3813 can serve in an action such as this is to give the district notice of a claim of illegality and a potential lawsuit, and that is accomplished by the requirement that the taxpayer’s payment must be involuntary (see City of Rochester v Chiarella, 58 NY2d 316, supra; Mercury Mach. Importing Corp. v City of New York, 3 NY2d 418, 426, supra).

Accordingly, the order of the Appellate Division should be affirmed and the certified question answered in the affirmative.

Chief Judge Cooke

(dissenting). I respectfully dissent. There is no quarrel with the majority’s proposition that a taxpayer need not pursue the exclusive remedy provided in a tax statute challenged as unconstitutional. When that taxpayer elects to challenge the tax statute through a collateral plenary action, however, the procedural conditions precedent, which are not part of the allegedly invalid statute, must be satisfied.

The action here is for money had and received. It is an “action or special proceeding, for any cause whatever * * * relating to district property or property of schools * * * or claim against the district or any such school, or involving the rights or interests of any district or any such school” (Education Law, § 3813, subd 1). The statute admits of no distinction between claims involving factual disputes and those raising purely legal issues. Under the majority’s reasoning, the question whether section 3813 must be satisfied might not be answered until trial ends and it can be determined that there were no factual controversies. Of course, it follows that school districts may have to undergo the substantial expense of trial preparation when the entire matter could have been summarily terminated at the outset. The unambiguous language of the statute obviates the need to consult legislative history. Moreover, when the Legislature wished to limit the scope of a notice-of-claim statute, it knew how to do so (see, e.g., General Municipal Law, § 50-e).

Matter of Troy Towers Redevelopment Co. v City of Troy (51 AD2d 173, affd on opn below 41 NY2d 816) is not to the contrary. That decision did not hold section 3813 inapplicable, but ruled that compliance was excused because the suit vindicated a public interest (51 AD2d, at p 176, citing Union Free School Dist. No. 6 of Towns of Islip & Smithtown v New York State Human Rights Appeal Bd., 35 NY2d 371). That exception does not apply here (see Mills v County of Monroe, 59 NY2d 307).

Plaintiff failed to comply with the strictures specifically set forth in section 3813. Accordingly, the complaint should be dismissed.

Judges Jones, Wachtler and Meyer concur with Judge Simons; Chief Judge Cooke dissents and votes to reverse in a separate opinion; Judge Jasen taking no part.

Order affirmed, with costs, and question certified answered in the affirmative.

       “No action or special proceeding, for any cause whatever, * * * relating to district property or property of schools * * * or claim against the district * * * or involving the rights or interests of any district * * * shall be prosecuted or maintained * * * unless it shall appear by and as an allegation in the complaint or necessary moving papers that a written verified claim upon which such action or special proceeding is founded was presented to the governing body of said district * * * within three months after the accrual of such claim, and that the officer or body having the power to adjust or pay said claim has neglected or refused to make an adjustment or payment thereof for thirty days after such presentment.”


source: Caselaw Access Project

author: Chief Judge Cooke.

license: Public Domain

text:
    The People of the State of New York, Respondent, v John A. Whalen, Appellant.
    Argued May 3, 1983;
    decided June 16, 1983

      POINTS OF COUNSEL

      E. Stewart Jones, Jr., and Robert M. Cohen for appellant.
    I. The court’s bare bones instructions to the jury were inadequate and prejudicial, failing (a) to assist the jury in its evaluation of the identification testimony, and (b) to explain in appropriate depth the nature of an alibi defense and the People’s burden to disprove it beyond a reasonable doubt. (United States v Wade, 388 US 218; Gilbert v California, 388 US 263; Stovall v Denno, 388 US 293; People v Diaz, 8 AD2d 732; People v Carney, 73 AD2d 972; People v Best, 73 AD2d 651; People v Daniels, 88 AD2d 392; People v Terry, 83 AD2d 844; People v Bacon, 84 AD2d 680; People v Gaines, 80 AD2d 561.) II. The prosecution improperly and prejudicially undermined the alibi defense by: (a) cross-examining John Whalen as to his failure to assert his alibi when questioned by police; (b) cross-examining John Whalen, and eliciting other testimony, about his desire to seek advice of counsel during police questioning; (c) failing to lay a proper foundation for the impeachment of the key alibi witness, appellant’s wife, and (d) arguing in summation that the alibi had been concocted at the time of trial even though the prosecutor knew that the alibi notice had been served some eight months before the trial. (Doyle v Ohio, 426 US 610; United States v Hale, 422 US 171; People v Conyers, 52 NY2d 454; People v Von Werne, 41 NY2d 584; People v Christman, 23 NY2d 429; People v Petersen, 4 NY2d 992; People v Gilmore, 76 AD2d 548; People v Hyman, 284 App Div 347, 308 NY 794; People v White, 57 NY2d 129; People v Rivera, 56 AD2d 701.) III. The impermissibly suggestive photo array irreparably tainted complainant’s in-court identification, and should have resulted in a suppression of that identification. (Simmons v United States, 390 US 377; Stovall v Denno, 388 US 293; People v Hall, 81 AD2d 644; People v Robinson, 37 AD2d 944; People v Ballott, 20 NY2d 600; People v Jackson, 39 AD2d 557; People v Castillo, 62 AD2d 938.) IV. In the face of the People’s violation of their obligation to provide statements allegedly attributable to the accused, the court erred when it permitted such statements to be used. (People v Couch, 74 AD2d 582; People v Ludolph, 63 AD2d 77; People v Boone, 51 AD2d 25; People v Fraser, 79 AD2d 686.)

      Sol Greenberg, District Attorney (F. Patrick Jeffers of counsel), for respondent.
    I. The trial court’s instructions on alibi and identification were proper. (People v Feldt, 26 AD2d 743, 22 NY2d 839; People v Harris, 69 AD2d 843; People v Sharp, 71 AD2d 1034; People v Russell, 266 NY 147; People v Rabinowitz, 290 NY 386; People v Barboto, 254 NY 170; People v Jones, 74 AD2d 515; People v Brown, 62 AD2d 715.) II. There was no error in the prosecution’s discrediting of defendant’s alibi. (Harris v New York, 401 US 22; People v Washington, 51 NY2d 214; Oregon v Hass, 420 US 714; People v Williams, 6 NY2d 18; People v La Brake, 51 AD2d 609; People v Conyers, 52 NY2d 454; People v Savage, 50 NY2d 673; People v Von Werne, 41 NY2d 584.) III. The trial court properly denied defendant’s motion to suppress complainant’s in-court identification. (People v Williams, 6 NY2d 18; People v La Brake, 51 AD2d 609; United States v Simmons, 390 US 377; People v Rahming, 26 NY2d 411; Neil v Biggers, 409 US 188; Crump v Riddle, 408 F Supp 975; People v Hazelton, 75 AD2d 694; People v Adams, 53 NY2d 241.) IV. The People properly impeached defendant within the context of the court’s ruling. (Harris v New York, 401 US 222; People v Washington, 51 NY2d 214; People v Savage, 50 NY2d 673.)
   OPINION OF THE COURT

Chief Judge Cooke.

At about 10:00 p.m. on July 4, 1979, Deborah C. was walking to her work at Cohoes Memorial Hospital. A man passed her going in the other direction. He turned, came up behind her, covered her eyes and mouth, and told her not to scream. Deborah was pushed down a slight embankment into some bushes and raped. After the attacker left, Deborah put her clothes back on and ran to the hospital’s emergency room.

While receiving treatment, the victim described her attacker as having “long blond hair.” When an officer arrived to take a report, Deborah elaborated, stating that the assailant had shoulder-length blond hair, weighed about 150-160 pounds, and was 5 feet 8 inches to 5 feet 9 inches tall. She repeated her description once more 16 hours after the attack.

At trial, in December, 1980, defendant proceeded on a “mistaken identification” defense, and sought to establish an alibi. To controvert the victim’s identification, he presented evidence that his hair was red; that, on the day of the attack, it could not have been the length claimed by the victim; and that he was six feet tall. Defendant’s alibi, corroborated by his wife, was that he was at home, ill, when the rape occurred. This evidence conformed to a notice of alibi served by defendant more than eight months before the trial.

Defendant’s wife testified on his behalf. She was cross-examined about her statements made to the police on October 5,1979, when she said that defendant had been at a party the night of the rape and that he could prove it by a receipt for a keg of beer that he had purchased. The prosecutor asked Mrs. Whalen why she had not come forward before trial with her information that defendant actually was at home that night. An examination outside the jury’s presence revealed that defendant’s attorney had instructed Mrs. Whalen not to speak to the police. The Judge instructed the jury that a citizen has no civic or moral duty to contact law enforcement officials with exculpatory information. When the Assistant District Attorney resumed his cross-examination, he abandoned his line of questioning as to Mrs. Whalen’s failure to contact the authorities. On redirect, defense counsel elicited the fact of the lawyer’s advice not to speak with the police.

During summation, the prosecutor repeatedly sought to color defendant’s alibi as a recent fabrication. In the course of argument, the following exchange occurred:

“Prosecutor: The first we hear of the defendant being home that night is today in court. But she was so positive.

“Defense Counsel: I object to that misstatement. Judge, that’s a boldfaced [sic] misstatement.

“The Court: Just a moment.

“Defense Counsel: Long ago the District Attorney was put on notice.

“Prosecutor: Untrue, your Honor.”

Defendant unsuccessfully moved for a mistrial, partly on the basis of this exchange.

At trial, defendant requested an expansive charge on identification testimony that would emphasize its unreliability and the close scrutiny that should be given to such evidence. The Trial Judge declined to grant the request, instead delivering a minimal instruction that the prosecutor had the burden of proving identification beyond a reasonable doubt. Defendant also requested an instruction that the prosecutor had the burden of disproving an alibi beyond a reasonable doubt. The court acceded to this, but, in delivering the charge, declared, “If the evidence as to the alibi, if believed by you, when taken into consideration with all the other evidence raises a reasonable doubt as to the defendant’s guilt, he is entitled to an acquittal” (emphasis added).

Defendant was convicted of rape in the first degree. The Appellate Division affirmed, and leave to appeal was granted by a Judge of this court. We now reverse.

Defendant challenges the jury charge on two grounds. First, he argues that the court’s refusal to give the expansive identification instruction was error. Second, defendant asserts that, as given, the charge on alibi improperly shifted the burden of proof to him.

As noted above, defendant unsuccessfully requested that the jury be instructed “that identification testimony should be received with caution and scrutinized with care.” Instead, in response the court charged, “It is the obligation of the People in this case to prove each and every element of each and every crime charged beyond a reasonable doubt, and this includes the identity of the defendant.” After the entire charge was given, defendant renewed his request for a more detailed instruction.

The essence of defendant’s argument is that identification evidence is always suspect, so that, when a trial involves a close question of identity, the jury should receive an instruction emphasizing the scrutiny to be given to such evidence. The potential for inaccuracy in visual identification evidence is well known to the legal community (see, e.g., McGowan, Constitutional Interpretation and Criminal Identification, 12 Wm & Mary L Rev 235; Note, Did Your Eyes Deceive You? Expert Psychological Testimony on the Unreliability of Eyewitness Identification, 29 Stan L Rev 969), and has been recognized by the Supreme Court (see United States v Wade, 388 US 218).

Although aware of the problem raised by defendant, this court does not find legal error in the minimal charge that was technically correct. A Judge who gives a general instruction on weighing witnesses’ credibility and who states that identification must be proven beyond a reasonable doubt has made an accurate statement of the law. No cognizable prejudice accrues to any party.

Although no error occurred, this court considers it advisable to comment that the better practice is to grant a defendant’s request and give the expanded charge. Mistaken identity will often be intertwined with an alibi. The latter also may be expected to involve testimony by a defendant’s family or friends (see, e.g., People v Dawson, 50 NY2d 311) — witnesses whose personal interest will be drawn to the jury’s attention as possibly injecting bias into their testimony. Out of a sense of fairness, attention should also be drawn to the possible unreliability of identification testimony. The First and Second Departments have held that a detailed charge should be given when identification is in controversy (see, e.g., People v Rodriquez, 61 AD2d 914 [1st dept]; People v Gardner, 59 AD2d 913 [2d dept]). Indeed, after deciding the present case, the Third Department considered another identity/alibi case and concluded, “We deem the court’s instructions on identification to be legally sufficient but, upon the retrial, which we determine to be necessary, it is indicated that a more thorough instruction on identification be given in the interest of justice.” (People v Landor, 92 AD2d 625, 626.) New York’s trial courts are encouraged to exercise their discretion by giving a more detailed identification charge when appropriate. Certainly, no undue burden is placed on the court in complying with a defendant’s request for such a charge.

Defendant’s other objection to the jury charge goes to the court’s alibi instruction. As given, the charge may be perceived as improperly shifting the burden of proof to defendant. For the reasons that follow, it is held that the matter is not preserved for this court’s review.

Any party may make oral or written requests to charge, before or after the charge, and the court must rule promptly on each request; a failure to rule is deemed a denial (CPL 300.10, subd 5). The Legislature has specially provided for preserving such issues for appellate review: “In addition, a party who without success has either expressly or impliedly sought or requested a particular ruling or instruction, is deemed to have thereby protested the court’s ultimate disposition of the matter or failure to rule or instruct accordingly sufficiently to raise a question of law with respect to such disposition or failure regardless of whether any actual protest thereto was registered.” (CPL 470.05, subd 2.)

In People v Le Mieux (51 NY2d 981), this court held that an objection was preserved when the court did not grant a written request and no specific objection was stated after the jury charge. Defense counsel there prefaced his specific objections with a reiteration that all “previously requested” instructions be given. This court concluded that there was no “clear intent to waive a position already preserved” (id., at p 983).

Different circumstances prevail here. Rather than denying defendant’s request, the Trial Judge granted it, but then delivered a charge on alibi that was not to defendant’s satisfaction. Afterwards, defense counsel stated, “I would respectfully renew at this time the request to charge the language which I used prior to the Court’s instructions to the jury, prior to the summations; specifically, the request I made pursuant to identification.” When a Judge grants a request to charge and then fails to deliver the charge as requested, the requesting party has an obligation to draw the error to the Judge’s attention. Inasmuch as defendant’s request was initially granted and his comments after the charge did not alert the Trial Judge to the error so as to afford an opportunity to correct himself, defendant must be deemed to have waived any objection to the alibi instruction.

Defendant, however, raises another argument that does require reversal. The prosecutor’s conduct during summation was improper and prejudicial to defendant. The prosecutor repeatedly characterized defendant’s alibi as a fabrication concocted during trial, notwithstanding the notice received months earlier and his knowledge that both defendant and his wife had been advised by counsel not to discuss anything with the police. This in itself violated the prosecutor’s obligation to seek justice, rather than conviction (see Code of Professional Responsibility, EC 7-13). The prosecutor did not stop there, however. He then made himself a witness before the jury, expressly and falsely denying that notice had been given. This was completely unjustified, going far beyond any bounds of proper advocacy. Defendant’s request for a mistrial should have been granted.

One other matter should be noted. At trial, the prosecutor was precluded on the basis of CPL article 240 from asking defendant about a prior inconsistent statement that he had given to the police as to his whereabouts on July 4. The prosecutor was permitted to ask defendant whether he had told police that he was at home when the rape occurred. In light of the reversal based on prosecutorial misconduct, this court does not reach the question whether the cross-examination was proper.

Defendant’s other arguments have been considered and are either unpreserved or without merit.

Accordingly, the order of the Appellate Division should be reversed and the case remitted to County Court, Albany County, for a new trial.

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

Order reversed, etc.


author: Jasen, J.

text:
    The People of the State of New York, Respondent, v Frank Pavao, Appellant.
    Argued May 5, 1983;
    decided June 16, 1983

      POINTS OF COUNSEL

      Spiros A. Tsimbinos and Hyman J. Greenberg for appellant.
    I. The People’s proof as to the two counts of assault in the second degree was insufficient as a matter of law especially in light of the specific testimony of the complainants that appellant was not the one who committed the crimes. (People v Abdullah, 30 AD2d 960; People v Phillips, 263 App Div 994; People v Hutchinson, 88 AD2d 921; People v Oden, 36 NY2d 382; People v Dlugash, 41 NY2d 725; People v Stewart, 40 NY2d 692; People v Santos, 38 NY2d 173.) II. The court below improperly refused to allow defense counsel to impeach the credibility of a key prosecution witness. (People v Crimmins, 36 NY2d 230; People v Melendez, 55 NY2d 445; People v Mendez, 57 NY2d 764.) III. The court below committed reversible error by refusing to grant defense counsel’s request to prohibit the prosecutor from cross-examining appellant with respect to a pending indictment. (People v Molineux, 168 NY 264; People v Zackowitz, 254 NY 192; People v Schwartzman, 24 NY2d 241; People v Carborano, 301 NY 39; People v Fiore, 34 NY2d 81; People v Branch, 34 AD2d 541, 27 NY2d 834; People v Reyes, 48 AD2d 632; People v Dellarocco, 86 AD2d 720; People v Neumuller, 29 AD2d 886; People v Williams, 56 NY2d 236.) IV. The prosecution’s tactics and remarks were purposely calculated to create improper and prejudicial inferences so as to deny appellant a fair trial. (People v Hearns, 18 AD2d 922; People v Green, 89 AD2d 874; People v Burris, 19 AD2d 557; People v Matthews, 33 AD2d 679; People v Burney, 20 AD2d 617; People v Brown, 26 AD2d 614; People v Von Werne, 41 NY2d 584; People v Al-Kanani, 26 NY2d 473; People v Rutigliano, 261 NY 103; United States v Hale, 422 US 171.) V. The record reveals that the interpreter assigned to interpret the testimony of an important prosecution witness was unqualified to perform that task.

      John J. Santucci, District Attorney {Jeanette Lifschitz and Richard G. Denzer of counsel), for respondent.
    I. Defendant’s guilt was proved beyond a reasonable doubt. II. The court’s rulings upon the Sandoval motion were proper. (People v Duffy, 36 NY2d 258, 857, 423 US 861; People v Schwartzman, 24 NY2d 241, 396 US 846; People v Mayrant, 43 NY2d 236; People v Caviness, 38 NY2d 227; People v Sandoval, 34 NY2d 371; People v Rahman, 62 AD2d 968, 46 NY2d 882.) III. The prosecutor’s conduct was proper. (People v Von Werne, 41 NY2d 584; People v Al-Kanani, 26 NY2d 473; People v Quiles, 59 AD2d 950; People v Galloway, 54 NY2d 396.) IV. The court’s refusal to permit testimony that a prosecution witness had a bad reputation with respect to veracity was not prejudicial. (Spira v Holoschutz, 38 Misc 754; People v Hinksman, 192 NY 421; Carlson v Winterson, 147 NY 652; People v Loris, 131 App Div 127; Elmendorf v Ross, 221 App Div 376; People v Zabrocky, 26 NY2d 530; People v Crimmins, 36 NY2d 230.) V. The interpreter was qualified.
   OPINION OF THE COURT

Jasen, J.

On this appeal we are asked to consider whether the trial court erred in refusing to allow a defense witness to testify, for purposes of impeachment, that a key prosecution witness had a bad reputation in the community for truth and veracity. Also presented for our consideration is the sufficiency of the evidence to support the convictions for assault in the first and second degrees.

In the early morning hours of December 14,1979, a fight broke out in “Pop’s Bar” in Queens. According to the prosecutor, defendant Frank Pavao, accompanied by Joseph Pavao and Pasquale Tridico, approached James Irwin and John Staganelli, who were sitting at the bar, and, for no apparent reason, struck both men in the face with a pistol. The ensuing fight spilled out onto the sidewalk in front of the tavern where Patricia Pittman and Thomas Walters happened to be passing by. As Irwin and Staganelli walked away, defendant began cursing and hurling racial slurs at Pittman and Walters, both of whom are black. A fight ensued, during the course of which Walters was beaten and knocked to the ground by defendant and his two companions. Defendant then produced a pistol and shot Walters. The three men fled while Pittman called for help.

The police arrived shortly thereafter and Pittman furnished them with a description of the man who shot Walters, to wit: a young white male, 5 feet 3 inches to 5 feet 5 inches tall, weighing 150 pounds, with short curly hair, a beard and moustache and wearing a beige turtleneck sweater and black hat. She then accompanied the police officers as they patrolled the neighborhood in search of the suspects. At 97th Street and Sutphin Boulevard, about two blocks from the scene of the shooting, Pittman saw three men being detained by two other police officers and immediately identified the men as Walters’ assailants. She specifically pointed out defendant as the man who had shot Walters.

Defendant was arrested and charged with attempted murder in the second degree and assault in the first degree with respect to the attack on Walters and two counts of assault in the second degree with respect to the attacks on Irwin and Staganelli. After a jury trial, defendant was found not guilty of attempted murder, but was convicted of the remaining charges. Defendant appealed and the Appellate Division affirmed, without opinion.

Defendant, on this appeal, contends that there was insufficient evidence to sustain his convictions. He also contends that various trial errors require that his convictions be reversed and a new trial ordered.

Initially, we hold that the evidence adduced at trial was insufficient as a matter of law to sustain defendant’s conviction on the two counts of second degree assault. With respect to these charges, both of the complainants, Irwin and Staganelli, testified that the defendant was not the person who assaulted them. Additionally, the barmaid on duty the night of the attack, Elizabeth Lerch, testified that she knew defendant and that he was not in the bar that night. In view of this evidence, Patricia Pittman’s testimony that she saw the defendant push Irwin and Staganelli out of the bar immediately before the fight with Walters broke out does not constitute proof beyond a reasonable doubt that defendant pistol-whipped Irwin and Staganelli inside the bar. Pittman’s eyewitness account of the shooting and her positive identification of defendant as the man who shot Walters did, however, provide the jury with sufficient evidence to convict defendant of the first degree assault charge.

Defendant also contends that various trial errors deprived him of his right to a fair trial and that his conviction of first degree assault should be reversed accordingly and a new trial ordered. We agree.

Defendant’s principal argument for reversal focuses on the trial court’s refusal to allow defendant to call a witness to testify that one of the prosecution’s witnesses had a bad reputation in the community for truth and veracity.

At the trial, the prosecutor called as a witness, Serafim Pelarigo, an employee of a Portuguese social club located at 95-41 Sutphin Boulevard, one block from the scene of the shooting. Pelarigo testified that defendant entered the club at approximately 1:00 a.m. on December 14,1979 and said that he had just shot a black man in a bar. Pelarigo further testified that he told the defendant to leave and that when they met again on August 20,1980, Pavao asked him why he had not helped him the night of the incident. On cross-examination, Pelarigo admitted that although he had told his wife about the shooting, he failed to notify the police or anyone else of defendant’s admission. Pelarigo also admitted that he had had a fight with defendant subsequent to December 14.

Defense counsel then called James Velasquez as a witness for the purpose of impeaching Pelarigo’s credibility. Velasquez testified that he knew Pelarigo personally. Further questioning, however, was interrupted by the prosecutor’s repeated objections. A side bar conference was held, at which defense counsel made an offer of proof stating that “I am putting — I am putting him on the stand for the sole purpose and I am leading into it as to the reputation of Serafim Pelarigo in the community and in him being able to tell the truth.” The court ruled that this was a collateral issue which could not be inquired into because Velasquez had nothing to do with the shooting. Thereupon, Velasquez was dismissed and the jury was instructed to disregard all of the questions asked of the witness and the answers given by him.

The general rule of evidence in this State concerning the impeachment of witnesses with respect to collateral matters is that “the cross-examiner is bound by the answers of the witness to questions concerning collateral matters inquired into solely to affect credibility.” (Richardson, Evidence [Prince, 10th ed], § 491, p 477.) It is well established that the party who is cross-examining a witness cannot introduce extrinsic documentary evidence or call other witnesses to contradict a witness’ answers concerning collateral matters solely for the purpose of impeaching that witness’ credibility. (People v Zabrocky, 26 NY2d 530, 535; People v Schwartzman, 24 NY2d 241, 245, cert den 396 US 846; People v Duncan, 13 NY2d 37, 41; People v Sorge, 301 NY 198, 201.) This rule is premised on sound policy considerations for if extrinsic evidence which is otherwise inadmissible is allowed to be introduced to contradict each and every answer given by a witness solely for the purpose of impeaching that witness, numerous collateral minitrials would arise involving the accuracy of each of the witness’ answers. The resulting length of the trial would by far outweigh the limited probative value of such evidence. (See People v Schwartzman, 24 NY2d 241, 245, cert den 396 US 846, supra.)

Where, however, the cross-examiner does not seek to contradict specific answers given by a witness, but, rather, attempts only to show that the witness has a bad reputation in the community for truth and veracity, the rule is different. The rule in such cases is that other qualified witnesses may be called to testify with respect to the witness’ reputation for untruthfulness. (People v Hinksman, 192 NY 421, 432; Richardson, Evidence [Prince, 10th ed], § 494, p 479; Fisch, New York Evidence, § 452, p 259; 65 NY Jur, Witnesses, § 75, p 238.)

In People v Hinksman (supra), we limited the use of extrinsic impeaching testimony to attack on the witness’ reputation for truth and veracity; in so doing, we held that evidence of the witness’ general reputation is inadmissible for purposes of impeaching his credibility. (People v Hinksman, supra, at pp 433, 435.) The rule set forth in Hinksman is not in conflict with the policy considerations which preclude parties from introducing for purpose of impeachment extrinsic evidence to contradict a witness’ answers.

When the use of extrinsic impeaching testimony is limited to a general statement that the witness’ reputation in the community for truth and veracity is bad, there is no fear that trials will become unnecessarily protracted affairs involving numerous minitrials over whether or not a witness’ answer was accurate or whether a witness did a particular act. Nor will the introduction of this evidence divert the jury’s attention from the main issues involved in the trial. Thus, we see no reason why such evidence which is probative of a witness’ credibility (McCormick, Evidence [2d ed], § 41, p 81), should not be admissible. To hold otherwise would be to deny the jury an effective means of testing and assessing the credibility of witnesses and reaching a proper verdict. We hold, therefore, that a party has a right to call a witness to testify that a key opposing witness, who gave substantive evidence and was not called for purposes of impeachment, has a bad reputation in the community for truth and veracity. Whether the opposing party may call witnesses to rebut the impeaching witness’ statement is a question best left to the discretion of the Trial Judge for it is he who can best assess whether doing so may result in confusion or cause the trial to be unduly extended in length.

Turning then to the facts of the case on appeal, we note the highly damaging nature of witness Pelarigo’s testimony that the defendant came into the club on the night in question and told him “he had just shot a black man in a bar”. The opportunity to impeach the credibility of this witness was, therefore, crucial to the defendant, especially in light of the contradictory testimony as to whether defendant was at Pop’s Bar on the night in question. Consequently, the trial court’s refusal to allow James Velasquez, who presumably knew Pelarigo and his reputation in the community, to testify as to his reputation for honesty and truth, was error requiring a new trial, since we believe that there was a significant probability that the jury would have acquitted defendant were it not for this error. (People v Crimmins, 36 NY2d 230, 242.)

The prosecutor all but concedes that the trial court erred in disallowing this testimony, but seeks to justify the ruling by arguing that the rule should no longer be followed because “its vegetating and non-utilitarian status over the past five decades or so indicate^] a tacit recognition that this type of evidence is generally ineffective and insignificant from the standpoint of influencing the trier of facts.” We find this argument unpersuasive.

Initially, we note that the weight to be given evidence presented at trial is a matter for the jury. The known reputation of a key witness for honesty and truth should be considered in testing his credibility. The court’s action, however, in denying the defendant an opportunity to challenge the veracity of a key prosecution witness who had testified to a purported damaging admission, deprived the jury of evidence which would assist them in evaluating the credibility of this important witness. Furthermore, an examination of existing law indicates that the majority of jurisdictions follow this or a less restrictive rule in allowing a key witness to be impeached. (McCormick, Evidence [2d ed], § 44, p 90; 98 CJS, Witnesses, § 512, p 417.) Additional evidence of the continuing value of this type of impeachment evidence is found in rule 608 (subd [a], par [1]) of both the Federal Rules of Evidence and the Proposed Code of Evidence for the State of New York, which provide, inter alia, that the credibility of a witness may be attacked by extrinsic testimony that the witness’ reputation in the community for truth and veracity is bad.

We reaffirm today the rule first established in People v Hinksman (supra) which permits the introduction of relevant evidence which is probative of a witness’ credibility (McCormick, Evidence [2d ed], § 41, p 81) but does not carry with it the danger that numerous collateral issues will have to be resolved, causing the trial to become unnecessarily protracted and clouding the main issues. In light of this, defendant’s conviction for assault in the first degree should be reversed and a new trial ordered.

While it is unnecessary to determine whether defendant’s remaining allegations of error constitute an independent basis for reversal, we briefly address them for purposes of providing guidance to the trial court at defendant’s new trial.

At a Sandoval hearing prior to trial, the court ruled that three of defendant’s prior convictions could not be offered in evidence against him in the event he chose to testify. The court also ruled, however, that defendant could be questioned with respect to his indictment on charges of attempted murder, assault in the second degree and criminal possession of a weapon in the fourth degree, all of which were allegedly committed after the incident at issue here. While evidence of other crimes cannot be proffered solely for the purpose of showing that a defendant is of such a criminal bent that he is likely to have committed the crime charged (People v Sandoval, 34 NY2d 371, 375; People v Schwartzman, 24 NY2d 241, 247, cert den 396 US 846, supra), it is within the discretion of the Trial Judge to decide whether the probative worth of evidence of other crimes on the issue of defendant’s credibility outweighs the risk of unfair prejudice to him (People v Williams, 56 NY2d 236; People v Pollock, 50 NY2d 547). Furthermore, questioning concerning other crimes is not automatically precluded simply because the crimes to be inquired about are similar to the crimes charged. (People v Rahman, 46 NY2d 882; People v Sorge, 301 NY 198, 200, supra; cf. People v Williams, supra, at p 239.)

Inasmuch as the Trial Judge precluded the prosecutor from questioning defendant about three prior convictions and specifically stated that the pending charges could be inquired into “as far as credibility is concerned and only for the purpose of credibility”, it cannot be said that the court abused its discretion in ruling as it did. (People v Pollock, supra.)

With respect to the actions of the prosecutor during the course of the trial, two errors were committed. The question put to Officer O’Connor by the prosecutor as to whether defendant refused to make a statement after being read his rights was clearly improper and violative of defendant’s right to remain silent. (People v Von Werne, 41 NY2d 584; cf. People v Al-Kanani, 26 NY2d 473.) While the trial court properly sustained defense counsel’s objections prior to the question being answered, it denied defendant’s request for curative instructions. Such curative instructions should have been given.

The more egregious error committed by the trial court was in permitting the prosecutor, over objection, to assert in his summation that James Irwin and John Staganelli testified that defendant pistol-whipped them when, in fact, Irwin and Staganelli testified that defendant was not one of the persons who attacked them. Defendant’s remaining allegations of improper prosecution tactics are either unpreserved or without merit.

Finally, defendant assigns as error the fact that the person assigned to interpret the testimony of witness Pelarigo was not qualified to perform the task. The record reveals that the interpreter conceded that Pelarigo’s accent was different than that used in Brazil where she learned to speak Portuguese. Moreover, in response to the question whether she had any special training with regard to the Portuguese language as spoken in Portugal, the interpreter replied: “Well, we understand it, it’s the same language, but sometimes like I said before, it may be a little difficult for the person to understand. This gentleman, he speaks a very difficult Portuguese and I almost can’t understand what he is talking about. That is why I ask him to repeat what he is telling me.” Then, when asked if she could interpret Pelarigo’s testimony without deviation, she repeated: “It depends if I understand very well what he is saying.” Under these circumstances, it was error, as a matter of law, for the court to deny defendant’s motion to disqualify the interpreter and appoint a new one.

Accordingly, the order of the Appellate Division, affirming a judgment of the Supreme Court, Queens County, convicting the defendant of one count of assault in the first degree, should be reversed and a new trial ordered in respect thereto, and as to the conviction of the defendant of the two counts of assault in the second degree, those counts of the indictment should be dismissed.

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

Order reversed, the counts of the indictment charging assault in the second degree dismissed and case remitted to Supreme Court, Queens County, for a new trial in accordance with the opinion herein.

      . On January 29, 1981, Joseph Pavao and Pasquale Tridico were acquitted of all charges following a nonjury trial.

      . While inartfully worded, we believe this statement was sufficient to alert the Trial Judge to the fact that Velasquez was going to testify concerning Pelarigo’s reputation for truthfulness and not simply to show that Pelarigo’s general reputation was bad.

      . The fact that the crimes sought to be used to impeach defendant’s credibility were allegedly committed after the shooting involved in the present case occurred is irrelevant. A defendant who acts in a manner demonstrating that he is willing to place his own self interests ahead of the interests of society, whether he has done so before or after the crime he is facing trial on was committed, may be willing to do so again on the witness stand. We also note, however, that defendant made no objection to the court’s ruling on the ground of self incrimination. That issue is, therefore, not preserved for our review. (People v Martin, 50 NY2d 1029; People v Tutt, 38 NY2d 1011.)


author: Wachtler, J. Meyer, J.

text:
    The People of the State of New York, Appellant, v Alfred Berg and Camillo Lovacco, Respondents.
    Argued April 27, 1983;
    decided June 9, 1983

      POINTS OF COUNSEL

      Elizabeth Holtzman, District Attorney {Jason L. Shaw and Barbara D. Underwood of counsel), for appellant.
    The prosecutor questioned the complaining witness with the approval of the trial court and solely in a good-faith effort to elicit testimony. The finding of the court below of prosecutorial misconduct creates an unwarranted per se rule that limits a trial court’s discretion and ignores the realities of trial practice. (Rado v State of Connecticut, 607 F2d 572; United States v Mayes, 512 F2d 637, 422 US 1008, cert den sub nom. Cook v United States, 423 US 840; United States v Brickey, 426 F2d 680; Branzburg v Hayes, 408 US 665; United States v Bryan, 339 US 323; United States v Vandetti, 623 F2d 1144; United States v Quinn, 543 F2d 640; People v Thomas, 51 NY2d 466; Namet v United States, 373 US 179; United States v Maloney, 262 F2d 535.)

      Harvey L. Greenberg and Joseph J. McCarthy, Jr., for Alfred Berg, respondent.
    The trial court was in error when it permitted a fearful complaining witness to refuse to testify before the jury after the court and prosecutor had been notified of his intentions. (Namet v United States, 373 US 179; People v Pollock, 21 NY2d 206; People v Thomas, 51 NY2d 466; People v Wheatman, 31 NY2d 12, cert den sub nom. Marcus v New York, 409 US 1027.)

      Gino Josh Singer and Ronald M. Kleinberg for Gamillo Lovacco, respondent.
    I. The circumstantial evidence adduced at trial was insufficient to prove respondent’s guilt beyond a reasonable doubt. (People v Jackson, 55 AD2d 961; People v Gwynn, 53 AD2d 565; People v Eastman, 50 AD2d 1065; People v Taddio, 292 NY 488; People v Cleague, 22 NY2d 363; People v Weiss, 290 NY 160; People v Argon, 10 NY2d 130; People v Washington, 18 NY2d 366; People v Beaudet, 31 AD2d 705.) II. Respondent was denied his constitutional right to a fair trial when the trial court erroneously permitted the victim to refuse to answer questions properly put to him in the presence of the jury. (United States v Beechum, 582 F2d 898; United States v Maloney, 262 F2d 535; People v Schneider, 36 NY2d 708; People v De Tore, 34 NY2d 199; People v Pollock, 21 NY2d 206; People v Sifford, 76 AD2d 937; People v Razezicz,, 206 NY 249; People v Paulino, 60 AD2d 769; Namet v United States, 373 US 179; Douglas v Alabama, 380 US 415.)
   OPINION OF THE COURT

Wachtler, J.

Defendants were convicted, following a jury trial, of assault in the second degree and criminal possession of a weapon in the fourth degree. Their convictions were reversed and a new trial was ordered, the Appellate Division having concluded that the trial court erred in permitting the People to put a witness before the jury who had already indicated that he would refuse to testify. We now reverse and hold that, although the better practice would have been to avoid exposing the witness’s reticence to the jury, nevertheless under the circumstances of this case the trial court did not abuse its discretion in permitting the witness to be called.

The primary evidence against defendants came from the testimony of a police officer who happened upon the scene. He testified that, while on motor patrol, he observed three men striking another person who was lying on the ground. As the officer approached, the assailants fled in a car parked nearby. Following a brief chase, the assailants’ car stopped, and the driver and another ran off on foot. Defendant Lovacco was apprehended as he attempted to flee from the rear seat. A few minutes later, defendant Berg was arrested nearby by other officers and taken to the station house where he was positively identified as one of the assailants by the officer who had witnessed the incident. The assault victim, Ronald Iovino, was found not far from the scene of the assault, with his mouth taped and his hands bound behind him with handcuffs.

Although Iovino had been in court for much of the trial, he unexpectedly failed to appear on the day he was scheduled to testify. He was thereafter brought to court under a material witness order. At defense counsel’s request, the court interviewed Iovino in camera, to determine the reason for his apparent reluctance to testify. The court ascertained that Iovino had not been threatened or intimidated, but, nevertheless, appointed counsel to represent him. It is noteworthy that, during this interview, Iovino never indicated that he would refuse to testify; he merely expressed an inability to remember very much about the incident. Thereafter, during proceedings to determine whether Iovino should be held as a material witness, he gave the court every reason to believe that he intended to appear and testify the next day.

Prior to Iovino’s being called to the witness stand, defense counsel requested that the court first ascertain whether the witness intended to testify, expressing concern for the possibility of prejudice to defendants should the refusal to testify occur in front of the jury. An in camera meeting attended by the Trial Judge, the prosecutor and Iovino’s assigned counsel was then held. After being assured that Iovino was not suspected of any criminal activity in connection with the incident and that immunity would be granted if he invoked his Fifth Amendment privilege against self incrimination, Iovino’s attorney informed the court that his client would not testify. No reason was offered for this refusal.

Thereafter, defense counsel were informed that Iovino had indicated that he would not answer any questions, but that the court would nevertheless allow the People to call him as a witness. When Iovino took the witness stand, he refused to answer the question put to him by the prosecutor concerning his whereabouts at the time of the assault. Despite several directions by the court and admonitions regarding the consequences of his refusal, the witness steadfastly refused to answer. The jury was then excused, and having continued his refusal to respond, Iovino was held in contempt. Certain items of evidence, which had been admitted subject to this witness’s testimony, were then excluded. When the jury returned, the court admonished the jurors not to speculate as to the reasons for the exclusion of that evidence or the failure of Iovino to testify, or to consider those events in any way during their deliberations.

Defendants’ convictions were reversed by the Appellate Division, which concluded that the trial court erred in permitting the People to call Iovino as a witness once he had made clear that he would not testify. This refusal, it was believed, gave rise to the natural inference that Iovino feared reprisal if he testified against defendants. There should be a reversal.

The decision to permit the People to call a witness who has already indicated that he or she will refuse to testify is one resting within the sound discretion of the trial court (United States v Vandetti, 623 F2d 1144, 1149; United States v Quinn, 543 F2d 640, 650; see People v Thomas, 51 NY2d 466, 472). Once a witness has communicated that intent, the trial court must determine whether any interest of the State in calling the witness outweighs the possible prejudice to defendant resulting from the unwarranted inferences that may be drawn by the jury from the witness’s refusal to testify. The trial court’s exercise of discretion is subject to review by this court only on the basis of whether that discretion was abused. Two bases for ascertaining whether reversible error has occurred have been advanced in the somewhat analogous context of a witness’s invocation of the Fifth Amendment privilege against self incrimination. The first focuses upon the prosecutor’s motive in calling the reticent witness, in an effort to determine whether the witness’s refusal to testify was deliberately demonstrated to the jury for the purpose of having it draw unwarranted inferences against the defendant. The second basis for finding error exists when it appears that the inferences from such a refusal to testify added critical weight to the prosecution’s case in a form not subject to cross-examination (Namet v United States, 373 US 179, 186-187; United States v Maloney, 262 F2d 535, 537).

We conclude that neither theory of reversible error has been demonstrated in the present case. An examination of the proceedings relative to the witness Iovino makes clear that the sole motive of the prosecutor in calling this witness was a good-faith effort to elicit his testimony; particularly where, as noted, the prosecutor offered to grant immunity to Iovino. The prosecutor was faced with a complaining witness who had been fully cooperative right up until the day he was to testify, and who even then merely expressed reservations about his ability to recall the incident but nevertheless assured the court that he would appear on the rescheduled date. Indeed, until just prior to the time Iovino was actually called as a witness, he had never indicated that he would refuse to answer questions put to him. Under the circumstances, it was not unreasonable for the prosecutor to attempt to induce the witness to again change his mind about testifying by putting him before the jury and having him admonished regarding the court’s contempt power. Although the prosecutor was no doubt concerned over the unfavorable inference to be drawn against the People if he failed to produce the victim of the assault, it nevertheless does not appear that he intended, by putting Iovino before the jury to take advantage of the inference to be drawn by his refusal to testify. The case against defendants had been fully established by the testimony of other witnesses, one of whom had witnessed the assault. The prosecutor never commented upon nor in any way attempted to exploit the fact that Iovino had refused to testify (Rado v State of Connecticut, 607 F2d 572, 581). Clearly, the actions of the prosecutor do not support the conclusion that he was guilty of misconduct.

Moreover, any unfavorable inferences that the jury may have drawn from Iovino’s refusal to testify would have had little bearing upon the jury’s resolution of any direct issue raised on the trial. As noted, the People’s case was strong, and no factual issues or defenses were raised as to which the witness’s refusal to testify supplied the key or even provided corroboration (cf. People v Pollock, 21 NY2d 206; see Rado v State of Connecticut, supra, at p 582). It is urged that the only possible inference to be drawn from Iovino’s refusal to testify is that he did so out of fear or because he had been threatened, an inference that would, no doubt, result in unfair prejudice to defendants. We believe, however, that the court’s careful curative instruction to the effect that the jurors must refrain from speculation about Iovino’s reasons for refusing to testify and must not allow his conduct to enter into their deliberations, given to the jury immediately upon its return to the courtroom after the incident, was sufficient to dispel the formulation of such an unwarranted inference (United States v Maloney, supra, at p 538). The importance, as well as the effect, of curative instructions in such a case cannot be underestimated, as we depend, for the integrity of the jury system itself, upon the willingness of jurors to follow the court’s instructions in such matters.

Thus, given the State’s strong interest both in attempting to induce this witness to testify and to avoid the unfavorable inference arising from a failure to produce the victim of the assault, coupled with the curative instruction concerning Iovino’s refusal to testify, it cannot be said that the trial court abused its discretion in allowing the People to call him as. a witness. We have examined defendants’ contentions concerning the sufficiency of the evidence and find them to be without merit.

Accordingly, the order of the Appellate Division should be reversed and the judgments of Supreme Court, Kings County, reinstated.

Meyer, J.

(dissenting). I could, perhaps, accept the majority’s rationale had the witness not clearly stated before being called to testify that he would refuse to do so and had the witness not been the victim. Because he was the victim and because the Trial Judge knew when he permitted Iovino to be called that he would refuse notwithstanding the court’s direction and admonition, I would hold it an abuse of discretion as a matter of law to permit him to be called, for the jury can have derived no other impression from the performance they witnessed than that the refusal resulted from intimidation of the victim-witness by defendants.

The question turns not alone on whether the prosecutor was guilty of misconduct; important also is whether defendant has been fairly tried. That the People had been misled by the victim’s prior professed willingness to testify into introducing evidence for which he was a necessary connection warranted an instruction to the jury, after his recalcitrance became apparent to the court, that the evidence was being stricken because the connecting witness was not available and that they should disregard the evidence and should not speculate upon the reason for his unavailability as a witness. By such an instruction the interests of the People could have been protected without giving rise to improper speculation unfair to defendants. Nothing but unfair speculation could result, however, from the charade of putting Iovino on the stand only to have him adamantly defy the court.

Nor, under the circumstances of this case, can I share the majority’s faith in the curative instruction given. Learned Hand in United States v Maloney (262 F2d 535, 538), upon whose decision the majority relies, expressed doubt “whether such admonitions are not as likely to prejudice the interest of the accused as to help them, imposing, as they do, upon the jury a task beyond their powers * * * which it is for practical purposes absurd to expect of them.” He accepted the curative instruction given in Maloney only on constraint of earlier Supreme Court rulings and expressly rested his decision “upon the fact that the accredited ritual was not followed” (emphasis supplied). Justice Robert Jackson, a trial lawyer of note, concurring in Krulewitch v United States (336 US 440, 453), made indelibly clear his view: “The naive assumption that prejudicial effects can be overcome by instructions to the jury [citation omitted], all practicing lawyers know to be unmitigated fiction.”

The implication that defendants frightened Iovino into refusing to testify, like the suggestion in People v Levan (295 NY 26, 36) that Levan was an army deserter, was a “virus * * * implanted in the minds of the jury” which, in my view, a curative instruction could not extract (see, also, People v Carborano, 301 NY 39, 42). I would, therefore, affirm.

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

Order reversed, etc.


text:
    Lisa Bottalico et al., Respondents, v State of New York et al., Appellants. Bruce Minckler et al., Appellants, v State of New York, Respondent.
    (Claim No. 62254.)
    (Claim No. 60914.)
    Argued April 25, 1983;
    decided June 9, 1983

      POINTS OF COUNSEL

      Robert Abrams, Attorney-General (Michael S. Buskus and Peter H. Schiff of counsel), for appellants in the first above-entitled action and for respondent in the second above-entitled action.
    The State owes no duty to maintain highway shoulders. (Ireland v Oswego, Hannibal & Sterling Plank Rd. Co., 13 NY 526; King v Village of Fort Ann, 180 NY 496; Flansburg v Town of Elbridge, 205 NY 423; Sharot v City of New York, 177 App Div 869, 226 NY 679; Goodwin v State of New York, 274 App Div 824, 298 NY 873; Brown v State of New York, 284 App Div 1014, 308 NY 980; Guyotte v State of New York, 22 AD2d 975, 15 NY2d 483; Rolando v State of New York, Dept. of Transp., 58 AD2d 694, 43 NY2d 746; McCauley v State of New York, 9 AD2d 488, 8 NY2d 938; Matter of Steinhardt v Johns-Manville Corp., 54 NY2d 1008.)

      Ronald G. McCormack for respondents in the first above-entitled action.
    The State’s duty to maintain its highways in a reasonably safe condition encompasses the obligation to maintain the area immediately adjacent to the travel way for the protection of motorists. Circumstances which may bring a motorist off the travel way, whether emergency or otherwise, may constitute fault for which apportionment of damages may be had. (Rinaldi v State of New York, 49 AD2d 361; La Rue v Tiernan, 268 App Div 337; Wagner v State of New York, 257 App Div 580; Nelson v State of New York, 105 Misc 2d 107; Taylor v State of New York, 262 App Div 657; Russell v State of New York, 268 App Div 585; Sletten v State of New York, 282 App Div 751; Murphy v New York State Thruway Auth., 23 Misc 2d 1078; Sher v State of New York, 194 Misc 172; Wilke v State of New York, 178 Misc 765.)

      Dominick Toed for appellants in the second above-entitled action.
    I. The State was negligent in the maintenance of this highway. (Boyce Motor Lines v State of New York, 280 App Div 693; Louden v State of New York, 181 Misc 139; Retzel v State of New York, 94 Misc 2d 562; Bottalico v State of New York, 87 AD2d 807; Buffington v State of New York, 2 Misc 2d 496; Gruneisen v State of New York, 14 Misc 2d 373; Waterman v State of New York, 24 Misc 2d 783; Cooper v State of New York, 273 App Div 1039, 298 NY 663.) II. The State was negligent in failing to give adequate warning of the dangerous condition of Route 97 at the site of the accident. (McDevitt v State of New York, 1 NY2d 540; Veit v State of New York, 192 Misc 205; Le Boeuf v State of New York, 256 App Div 798, 281 NY 737; Goldfarb v State of New York, 178 Misc 180, 264 App Div 976; Tremble v State of New York, 263 App Div 233; Gurevitch v State of New York, 284 App Div 717, 309 NY 711.) III. The aforesaid negligence of the State was the sole and proximate cause of the accident. IV. The State may be liable as a joint tort-feasor.
   OPINION OF THE COURT

Chief Judge Cooke.

When the State or one of its governmental subdivisions undertakes to provide d paved strip or shoulder alongside a roadway, it must maintain the shoulder in a reasonably safe condition for foreseeable uses, including its use resulting from a driver’s negligence. Injuries arising from a traveler’s use of an improperly maintained roadway shoulder may be compensable through application of general principles of negligence and comparative negligence.

Claimants brought these actions to recover for injuries sustained when the automobiles in which they were riding went out of control after encountering precipitous drops from the roadways onto the shoulders. In each case, the Court of Claims found that the State had negligently maintained the shoulder and that this was a proximate cause of plaintiffs’ injuries. The plaintiffs were also found to be negligent in driving off the roadway. Liability was apportioned according to fault.

The sole question on these appeals is whether the State may be held liable for resulting injuries caused in part when a traveler negligently drives off the roadway onto a shoulder maintained in a dangerous condition. In providing a roadway itself, the State has a duty to maintain it in a reasonably safe condition (see Gutelle v City of New York, 55 NY2d 794, 795; Tomassi v Town of Union, 46 NY2d 91, 97; Annino v City of Utica, 276 NY 192, 196). A comparable duty exists when the State undertakes to provide a shoulder adjacent to the roadway. It must maintain the shoulder in a reasonably safe condition for the foreseeable uses of it.

In Tomassi v Town of Union (supra), a municipality was held to be not liable for injuries caused when an automobile was negligently driven off a paved roadway into a drainage ditch. Implicit in that decision was that the municipality had no duty to improve and maintain the land abutting the roadway in a reasonably safe condition for passage by automobiles. Given that the road itself was adequately constructed, it was held that travel on adjacent land unimproved for use by automobiles was “neither contemplated nor foreseeable” (Tomassi v Town of Union, supra, at p 97; see, also, Flansburg v Town of Elbridge, 205 NY 423; King v Village of Fort Ann, 180 NY 496).

It is, however, both foreseeable and contemplated that, once provided, an improved shoulder at times will be driven upon. A shoulder may be described as that land immediately adjacent to and running alongside the main or paved portion of the highway, improved for limited purposes such as for allowing distressed automobiles to move out of the flow of traffic (see Webster’s Third New International Dictionary [1963 ed], p 2104). Although constructed for limited purposes, the very existence of the shoulder alters a driver’s sense of safety and of the caution needed when traveling along the roadway. The driver may have no reason to expect that moving from the roadway to the shoulder might expose him or her to a grave risk of danger (see Taylor v State of New York, 262 App Div 657, 658). Accordingly, the State has been held to owe a duty of maintaining a shoulder in a safe condition to travelers seeking refuge on a shoulder in an emergency situation (see, e.g., Brown v State of New York, 284 App Div 1014, affd no opn 308 NY 980; Goodwin v State of New York, 274 App Div 824, affd no opn 298 NY 873). No meaningful legal distinction can be made between a traveler who uses a shoulder with justification and one who uses it negligently insofar as how such conduct relates to whom a duty is owed to maintain the shoulder. The comparative fault of the driver, of course, is relevant to apportioning liability.

Accordingly, in Bottalico v State of New York, the order of the Appellate Division should be affirmed, with costs. In Minckler v State of New York, the order of the Appellate Division should be reversed, with costs, and the matter remitted to the Appellate Division for review of the facts (see CPLR 5613).

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

In Bottalico v State of New York: Order affirmed, with costs.

In Minckler v State of New York: Order reversed, with costs, and case remitted to the Appellate Division, Third Department, for further proceedings in accordance with the opinion herein.

       This court’s decision in McCauley v State of New York (8 NY2d 938), is not to the contrary. In that case, although the State maintained a roadway shoulder so that it was 2 to 5 inches lower than the paved roadway, the complaint was dismissed because this condition was held not to be the proximate cause of the accident. In addition, decisions that have exonerated the State of liability under circumstances similar to the cases at bar were decided under the since abandoned rule of contributory negligence and have no bearing on the State’s duty to maintain an existing roadway shoulder in reasonably safe condition (see, e.g., Rolando v Department of Transp. of State of N. Y., 58 AD2d 694; Guyotte v State of New York, 22 AD2d 975).


text:
    Chau Mills, Appellant, v County of Monroe, Respondent.
    Argued April 27, 1983;
    decided June 9, 1983

      POINTS OF COUNSEL

      Paul A. Fischer for appellant.
    I. The notice of claim provisions of section 52 of the County Law do not apply to an action under section 296 of the Executive Law alleging unlawful racial discrimination and retaliation in employment. (Union Free School Dist. No. 6 of Towns of Islip & Smithtown v New York State Human Rights Appeal Bd., 35 NY2d 371.) II. The notice of claim provisions of section 52 of the County Law do not apply to an employment discrimination action brought under section 1981 of title 42 of the United States Code. (Paschall v Mayone, 454 F Supp 1289; Glover v City of New York, 401F Supp 632, 446 F Supp 110; Laverne v Corning, 316 F Supp 629.)

      John D. Doyle, County Attorney {Joseph C. Pilato of counsel), for respondent.
    I. Plaintiff in a court action for money damages only under section 296 of the Executive Law and section 1981 of title 42 of the United States Code must file a notice of claim pursuant to section 52 of the County Law and sections 50-e and 50-i of the General Municipal Law as a prerequisite to commencing suit. (Union Free School Dist. No. 6 of Towns of Islip & Smithtown v New York State Human Rights Appeal Bd., 35 NY2d 371; Matter of Lindsey v Board of Educ., 64 AD2d 856; Board of Educ. v New York State Div. of Human Rights, 44 NY2d 902; Doran v Town of Cheektowaga, 54 AD2d 178; Staffen v City of Rochester, 80 AD2d 16.) II. Given that plaintiff’s State cause of action is dismissed, her solely Federal claim must likewise be dismissed for lack of jurisdiction. (Mine Workers v Gibbs, 383 US 715; Federman v Empire Fire & Mar. Ins. Co., 597 F2d 798.)
   OPINION OF THE COURT

Chief Judge Cooke.

When an employment discrimination action is brought against a county under the State or Federal civil rights statutes, the failure to timely file a notice of claim shall be fatal unless the action has been brought to vindicate a public interest or leave to serve late notice has been granted by the court. Inasmuch as plaintiff never filed a notice of claim and her action was brought to enforce merely a private right, her complaint was properly dismissed.

For six years, plaintiff had been a key-punch operator for the County of Monroe when, on August 13, 1980, her employment was terminated. After unsuccessfully pursuing arbitration under her union’s collective bargaining agreement with the county, plaintiff commenced this action. Plaintiff alleged that the county had terminated her employment on the basis of her race and national origin and thereby violated section 296 of the Executive Law and section 1981 of title 42 of the United States Code.

At no time did plaintiff file a notice of claim. The county unsuccessfully moved for summary judgment of dismissal, the application having been based on plaintiff’s failure to give notice. The Appellate Division reversed and dismissed the complaint. This court now affirms.

On this appeal, plaintiff contends that the notice of claim requirement contained in section 52 of the County Law does not apply to either her Federal or State civil rights claims. With respect to her Federal claim, plaintiff argues that imposition of the notice of claim requirement is inconsistent with the remedial and deterrent policies of the civil rights law. Although Congress established no timeliness or notice requirements to apply to section 1981 actions brought in Federal court, these courts have been instructed that, when interstices or voids occur in the Federal law, they should borrow the applicable State rule of law so long as it is not “inconsistent with the Constitution and laws of the United States” (US Code, tit 42, § 1988; see Board of Regents v Tomanio, 446 US 478; Johnson v Railway Express Agency, 421 US 454). It is true that the Federal District Courts in New York have not applied the State’s notice of claim statutes in civil rights actions brought under section 1981 (see Paschall v Mayone, 454 F Supp 1289 [SDNY]; Glover v City of New York, 401 F Supp 632 [EDNY]) or section 1983 (see Brandon v Board of Educ., 487 F Supp 1219 [NDNY], affd 635 F2d 971, cert den 454 US 1123; Davis v Krauss, 478 F Supp 823 [EDNY]). This court, however, does not find that the State’s notice requirements are antithetical to the policy underlying the civil rights laws.

The Supreme Court has held that, in applying a State Statute of Limitations to a civil rights action, the State statute “ ‘cannot be considered “inconsistent” with federal law merely because the statute causes the plaintiff to lose the litigation. If success of the §1983 action were the only benchmark, there would be no reason at all to look to state law, for the appropriate rule would then always be the one favoring the plaintiff, and its source would be essentially irrelevant.’” (Board of Regents v Tomanio, 446 US 478, 488, supra, quoting Robertson v Wegmann, 436 US 584, 593.) Accordingly, that court has upheld the application of a State’s one-year Statute of Limitations to civil rights actions brought in Federal court (see Johnson v Railway Express Agency, 421 US 454, supra).

In Johnson v Railway Express (supra), the court noted that “[i]n borrowing a state period of limitation for application to a federal cause of action, a federal court is relying on the State’s wisdom in setting a limit, and exceptions thereto, on the prosecution of a closely analogous claim.” (Id., at p 464.) The notice of claim requirements in this State serve an important State interest. Requiring notice allows a governmental subdivision a meaningful opportunity to investigate in a timely manner the circumstances that gave rise to a claim. “ ‘The requirement of notice is one of the safeguards devised by the law to protect municipalities against fraudulent and stale claims for injuries to person and property’ ” (see Sandak v Tuxedo Union School Dist. No. 3, 308 NY 226, 232, quoting Tenth Ann Report of NY Judicial Council, 1944, p 265). Therefore, the general restrictive effect of a State notice of claim requirement does not of itself bar its application to Federal civil rights actions.

Moreover, the flexibility with which the timeliness requirement of the notice statute may be applied and the existence of a judicially created exception to the notice requirement indicate that the statute causes no undue inhibition to the bringing of civil rights actions. In the area of civil rights, this court has recognized an important exception to the notice requirement. In Union Free School Dist. No. 6 of Towns of Islip & Smithtown v New York State Human Rights Appeal Bd. (35 NY2d 371, 380), it held that notice of claim requirements do not apply to actions brought “to vindicate a public interest.” All actions brought to enforce civil rights can be said to be in the public interest (see Newman v Piggie Park Enterprises, 390 US 400, 402). But, actions that are brought to protect an important right, which seek relief for a similarly situated class of the public, and whose resolution would directly affect the rights of that class or group are deserving of special treatment. The interests in their resolution on the merits override the State’s interest in receiving timely notice before commencement of an action (see Union Free School Dist. No. 6 of Towns of Islip & Smithtown v New York State Human Rights Appeal Bd., 35 NY2d 371, 379-380, supra; Board of Educ. v New York State Div. of Human Rights, 44 NY2d 902, 903-904; cf. Alyeska Pipeline Co. v Wilderness Soc., 421 US 240, 285 [Marshall, J., dissenting]).

Even if a civil rights action seeks to enforce only the private or personal rights of the plaintiff (see Board of Educ. v New York State Div. of Human Rights, supra), the statute itself permits relief from the notice requirement through an application to the court to serve late notice (see General Municipal Law, § 50-e, subd 5). Although the notice requirement relevant to this action provides generally that a plaintiff must file notice within 90 days after the claim arises (see County Law, § 52; General Municipal Law, § 50-e, subd 1, par [a]), “[u]pon application, the court, in its discretion, may extend the time to serve a notice of claim,” so long as the extension does not exceed the time limit for commencement of the action (General Municipal Law, § 50-e, subd 5). The court, in deciding whether to grant leave, will consider various factors, including when the governmental subdivision had acquired knowledge of the relevant facts and whether the delay had caused the defendant substantial prejudice in maintaining its defense (id.). For these reasons, application of the relevant notice provision to actions brought under the Federal civil rights laws cannot be said to offend the Federal policy underlying those laws.

Consideration now turns to whether plaintiff is entitled to relief from the notice requirement with respect to either her State or Federal civil rights claim. Because plaintiff never applied for leave to file late notice, her ability to maintain this action is contingent upon it being characterized as an attempt to vindicate a public interest.

Although such characterization is an ad hoc determination to which precise guidelines cannot be drawn, it is clear that plaintiff’s action was not brought to vindicate a public interest, insofar as that principle would entitle her to a complete waiver of the notice requirement. Her allegations of actionable conduct on the part of the county refers only to conduct that, relates to her. Although plaintiff does aver that the county had engaged generally in unlawful discriminatory practices, her action seeks relief only for her termination, which she alleges resulted from her opposition to the county’s discriminatory practices and her race and national origin. The relief she seeks is money damages for her loss of wages and damage to her reputation. Inasmuch as the disposition of plaintiff’s claim was not intended to nor could it directly affect or vindicate the rights of others, her action is properly characterized as one seeking the enforcement of private rights.

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

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

Order affirmed, with costs.

       Subdivision 1 of section 52 of the County Law provides: “Any claim or notice of claim against a county for damage, injury or death, or for invasion of personal or property rights, of every name and nature, and whether casual or continuing trespass or nuisance and any other claim for damages arising at law or in equity, alleged to have been caused or sustained in whole or in part by or because of any misfeasance, omission of duty, negligence or wrongful act on the part of the county, its officers, agents, servants or employees, must be made and served in compliance with section fifty-e of the general municipal law. Every action upon such claim shall be commenced pursuant to the provisions of .section fifty-i the general municipal law. The place of trial shall be in the county against which the action is brought.” Section 50-e (subd 1, par [a]) of the General Municipal Law provides: “(a) In any case founded upon tort where a notice of claim is required by law as a condition precedent to the commencement of an action or special proceeding against a public corporation, as defined in the general construction law, or any officer, appointee or employee thereof, the notice of claim shall comply with and be served in accordance with the provisions of this section within ninety days after the claim arises”.