author: Hancock, Jr., J.

text:
    The People of the State of New York, Respondent, v Lewis Slaughter, Appellant.
    Submitted and argued October 11, 1991;
    decided November 21, 1991

      POINTS OF COUNSEL

      Marianne Karas for appellant.
    I. The hearing court denied appellant the effective assistance of counsel at the suppression hearing when it forced appellant to proceed through major portions of the suppression hearing with an attorney not authorized to represent his interests, relieved counsel at a crucial portion of the hearing without warning appellant of the risks inherent in proceeding pro se, and failed to afford appellant any meaningful opportunity to conduct his own defense by refusing to allow appellant to review belatedly produced Rosario material in order to make a determination of when to cross-examine the People’s police witness. (People v Leisner, 73 NY2d 140; Gideon v Wainwright, 372 US 335; People v Medina, 44 NY2d 199; People v Droz, 39 NY2d 457; People v LaBree, 34 NY2d 257; (People v Bennett, 29 NY2d 462; People v Brabson, 9 NY2d 173, 369 US 879; People v Ranghelle, 69 NY2d 56; People v Jackson, 157 AD2d 126.) II. The evidence adduced at trial was legally insufficient to support appellant’s guilt of felony murder. (People v Gladman, 41 NY2d 123; Jackson v Virginia, 443 US 307; People v Carter, 63 NY2d 530; Matter of Anthony M., 63 NY2d 260; People v Contes, 60 NY2d 620; People v Cavagnaro, 99 AD2d 534.)

      John J. Santucci, District Attorney (Michael O’Brien of counsel), for respondent.
    I. Defendant sustained no deprivation of his right to counsel. (People v Rodriguez, 50 NY2d 553; People v Medina, 44 NY2d 199; People v Navarro, 96 AD2d 1126; People v Vivenzio, 62 NY2d 775, 103 AD2d 1044; People v Smith, 68 NY2d 737; People v Graham, 120 AD2d 674, 68 NY2d 757; Johnson v Zerbst, 304 US 458; People v Allgood, 70 NY2d 812; People v Gustafson, 110 AD2d 1055; People v Leisner, 73 NY2d 140.) II. The evidence establishes defendant’s guilt beyond a reasonable doubt. (People v Gladman, 41 NY2d 123; People v Giro, 197 NY 152; People v Walsh, 262 NY 140; People v Jackson, 20 NY2d 440; People v Carter, 50 AD2d 174; People v Belton, 55 NY2d 49; People v Kravetz, 42 Misc 2d 28; People v De Maio, 52 AD2d 893; People v Jejfries, 122 AD2d 281; Matter of Anthony M., 63 NY2d 270.)
   OPINION OF THE COURT

Hancock, Jr., J.

After a jury trial, defendant was convicted of felony murder, attempted robbery in the first degree, and related crimes. The felony murder count arose from a high-speed chase, following the attempted robbery, which resulted in the getaway vehicle crashing into and killing a passenger in another vehicle. Defendant’s appeal presents two issues: (1) whether the evidence adduced at trial was legally sufficient to support defendant’s guilt of felony murder as a homicide occurring during the immediate flight from the attempted robbery and (2) whether the suppression hearing court’s failure to undertake a sufficiently searching inquiry of defendant to be reasonably certain that he understood the dangers and disadvantages of proceeding pro se requires reversal. The jury here could properly have found that the homicide occurred in the immediate flight from the attempted robbery. However, the failure of the court below to make the required inquiry before defendant proceeded pro se is not harmless error; therefore, we reverse.

I

A brief summary of the facts and of the procedural history is necessary. Defendant, along with three accomplices, allegedly attempted to rob a warehouse. The robbery failed when one of the warehouse employees called the police, and defendant and his accomplices fled in a green van. Police responded to the report of the crime and, about 10 minutes after the crime began, a description of the van including the license plate number was broadcast over the police radio. Approximately 15 minutes after the broadcast and 1 Vi to 2 miles from the warehouse, police saw the van. A high-speed chase ensued and ended when the van collided with another vehicle, resulting in the death of a passenger. Defendant was immediately apprehended.

After the indictment, a suppression hearing was commenced on February 26, 1987 to determine whether statements made by defendant to the police could be admitted against him at trial. Before the hearing began, defendant expressed a lack of confidence in his court-appointed attorney and requested new counsel. He acknowledged that his attorney had visited him three times and had discussed the case with him. The court refused to appoint new counsel "in view of the fact that this case is ready for hearing” and told defendant that it would rehear his application after the hearing was concluded.

On March 18, 1987, the third day of the hearing, defendant made a written application to the hearing court for the appointment of new counsel. Upon the court’s inquiry, counsel said that he had visited defendant on various occasions, made motions on his behalf, and reviewed all the hearing minutes and police reports. The hearing court denied defendant’s application stating that it would be unfair to defendant to relieve counsel in the middle of a hearing and reserved ultimate decision on defendant’s request until the. hearing’s conclusion.

On April 8, 1987, the fourth day of the hearing, Police Officer Murray revealed during cross-examination that he had 50 to 60 pages of handwritten notes relating to the investigation of defendant’s case which the prosecution had not yet provided to the defense. Defendant’s counsel was given a brief opportunity to review 10 pages of the notes regarding Officer Murray’s interview of defendant; the court directed that the balance should be provided after the prosecutor had redacted information identifying witnesses. Defendant’s counsel reserved his right to recall Officer Murray after he had the chance to review the redacted notes, remarking that defendant had not yet decided whether to testify but would do so before the next hearing date.

On April 27, 1987, the fifth and final day of the hearing, defense counsel stated that defendant had refused to discuss the case with him. He noted that he had received Officer Murray’s notes but, because defendant would not talk to him, he could not determine whether to cross-examine Officer Murray on the notes or whether defendant would testify. The hearing court then informed defendant that if he no longer wanted to be represented by his assigned counsel, he could represent himself. It told defendant that he would get no assistance from the court in questioning witnesses nor with regard to his constitutional rights, that he could ask any legally permissible question, but that the court would not appoint new counsel at that stage of the hearing. The court requested that defendant’s released attorney remain present to offer defendant advice if requested.

Proceeding pro se, defendant requested time to review the recently provided notes of Officer Murray, which defendant had never seen, so that he could decide whether further cross-examination was necessary. The court responded: "You want to ask Sergeant Murphy [sic] any questions, you want to take the stand on your own behalf? You make that decision now. We are not going any further with this beyond today.” Defendant reiterated that he was unable to make these decisions without reviewing the officer’s notes. The hearing court stated that the papers had been in the hands of his attorney for a week, and summarily ruled that the hearing was concluded. Thereafter, it denied the suppression of both sets of statements allegedly made by defendant.

After trial, at which defendant was represented by new counsel, a jury convicted defendant of murder in the second degree, attempted robbery in the first degree, criminal possession of a weapon in the second degree and the third degree, reckless endangerment in the first degree, and leaving the scene of an accident. Thereafter, the Appellate Division affirmed, holding, in part, that the hearing court’s failure to conduct a searching inquiry of defendant — to be reasonably certain that he knowingly and intelligently chose to proceed pro se — was harmless error. That court also concluded that the evidence was sufficient for the jury to determine that the homicide occurred in the immediate flight from the attempted robbery and unanimously affirmed the conviction for felony murder. A Judge of this Court granted leave, and we now reverse.

II

Defendant contends that the evidence adduced at trial was legally insufficient to support his guilt of felony murder because the homicide did not occur during the immediate flight from the alleged attempted robbery. He notes that when the van was first observed by the police, it was turning towards, not fleeing from, the warehouse and was traveling at a legal speed; two of the accomplices had been dropped off; and defendant had stopped to buy a soda and some cigarettes — all indicating that the flight from the crime had been completed prior to the start of the high-speed chase. We disagree.

A felony murder is committed when a person, acting alone or in concert with others, commits or attempts to commit certain predicate felonies, including robbery, and "in the course of and in furtherance of such crime or of immediate flight therefrom, he * * * causes the death of a person other than one of the participants” (Penal Law § 125.25 [3] [emphasis added]; People v Gladman, 41 NY2d 123, 125). Whether the homicide occurred in "immediate flight” from a felony is generally a question of fact for the jury and is one of law for resolution by the court only where the record compels the inference that the actor was not in immediate flight (People v Gladman, 41 NY2d 123, 129, supra). Relevant factors which the jury should be instructed to consider are: "whether the homicide and the felony occurred at the same location or, if not, * * * the distance separating the two locations[,] * * * whether there is an interval of time between the commission of the felony and the commission of the homicide[,] * * * whether the culprits had possession of the fruits of criminal activity, whether the police * * * were in close pursuit, and whether the criminals had reached a place of temporary safety” (id., at 129).

Here, the van was first observed only IV2 to 2 miles away from and 15 to 20 minutes after the occurrence of the crime. Upon observing the police, defendant and codefendant drove away at a high speed to avoid apprehension. At the time of the homicide, defendant and one of his accomplices were still driving in the getaway vehicle, had not reached a place of temporary safety, and were speeding to escape pursuing police who sought to arrest them for the felony which serves as the predicate for the murder conviction. Given the circumstances and particularly the proximity in time and distance between the robbery and. the homicide, we cannot say that the brief interruption in the flight from the crime scene and the van’s direction toward the scene when first observed by police were sufficient, as a matter of law, to preclude a conclusion that when the homicide occurred defendant and his accomplice were still in the course of "immediate flight”. This question was properly submitted to the jury as a factual matter.

Ill

The hearing court’s failure to warn defendant of the risks inherent in proceeding pro se requires a new suppression hearing, however. By representing himself, a defendant is necessarily foregoing the benefits associated with the right to counsel (see, People v McIntyre, 36 NY2d 10, 17; Faretta v California, 422 US 806). For such a waiver to be effective, the court must be satisfied that it was unequivocal, voluntary and intelligent (see, People v McIntyre, supra; People v Sawyer, 57 NY2d 12, 21). To ascertain that it is, the "court should undertake a sufficiently 'searching inquiry’ of the defendant to be reasonably certain that the 'dangers and disadvantages’ of giving up the fundamental right to counsel have been impressed on the defendant (see Faretta v California, 422 US 806, 835, supra; People v White, 56 NY2d 110, 117)” (People v Sawyer, supra, at 21; see, People v Smith, 68 NY2d 737, 738; People v Mitchell, 61 NY2d 580, 584; People v Kaltenbach, 60 NY2d 797, 798-799).

In this case, the record amply demonstrates that the hearing court failed to make the required searching inquiry of defendant to insure that he was aware of the dangers and disadvantages of proceeding without counsel. Indeed, the court made no inquiry but merely informed defendant that he would get "no assistance from the [c]curt”. Thus, defendant’s waiver of his right to counsel was ineffective (see, People v Mitchell, supra; People v Sawyer, supra).

Nonetheless, the People contend that defendant abandoned his claim of ineffective waiver of counsel because his new counsel failed to seek reopening of the suppression hearing. We disagree. The court left no doubt that it considered the matter completed and that it perceived no error in its summary conclusion of the hearing. There is no suggestion that prior to trial, the trial court (the same Justice who conducted the hearing) asked defendant’s new counsel whether he would seek reopening of the hearing. It is speculative, at best, whether the court would have granted a motion to reopen the hearing had it been made. We decline to hold that, of itself, the lack of a request to reopen constitutes an abandonment of defendant’s preserved constitutional claim (see, People v Leisner, 73 NY2d 140, 147).

The People also argue that the hearing court’s failure to warn defendant about the dangers of proceeding pro se was harmless error. Again, we disagree. Assuming, without deciding, that harmless error analysis applies here (cf., People v Hilliard, 73 NY2d 584, 587 [harmless error doctrine does not apply to an affirmative denial of the constitutional right to counsel]), we hold that defendant’s ineffective waiver of counsel was not harmless.

Because of the hearing court’s denial of defendant’s repeated requests for new counsel, he was compelled to proceed pro se without the required inquiry by the court. At this point in the hearing defendant was faced with deciding whether to testify at the hearing and whether to continue cross-examinatian of the People’s key police witness on the belatedly supplied Rosario material and conducting these critical proceedings if warranted. The Appellate Division held that the court’s error "did not serve to deprive the defendant of a fair hearing since the hearing was for all intents and purposes completed, and the defendant also had counsel available to him for consultation” (162 AD2d 640, 641). This holding ignores the facts that it was the court which had summarily terminated the hearing over defendant’s protests and that defendant had no confidence in his former counsel and had repeatedly refused to consult with him. In sum, a reasonable possibility existed that defendant’s ineffective waiver of his constitutional right to counsel might have contributed to defendant’s conviction; thus, the error was not harmless (see, People v Crimmins, 36 NY2d 230, 237-238).

Accordingly, the order of the Appellate Division should be reversed and the case remitted to Supreme Court, Queens County, for a new suppression hearing, and, in the event that defendant prevails thereon, for a new trial.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone and Bellacosa concur.

Order reversed and case remitted to Supreme Court, Queens County, for further proceedings in accordance with the opinion herein.


source: Caselaw Access Project

author: Bellacosa, J.

license: Public Domain

text:
    In the Matter of Clifford Randall, Respondent, v Harold Rothwax, a Justice of the Supreme Court of the State of New York, Respondent, and Robert M. Morgenthau, as District Attorney of New York County, Appellant.
    Argued October 11, 1991;
    decided November 21, 1991

      POINTS OF COUNSEL

      Robert M. Morgenthau, District Attorney (Marc Frazier Scholl and Mark Dwyer of counsel), appellant pro se.

    Randall’s decision to terminate his trial was not coerced, that is, brought about by intentional force or pressure. Therefore, there is no double jeopardy bar to his retrial. (United States v Dinitz, 424 US 600; Wade v Hunter, 336 US 684; Oregon v Kennedy, 456 US 667; United States v Perez, 9 Wheat [22 US] 579; United States v Green, 636 F2d 925, 451 US 929; United States v Tateo, 377 US 463; People v Ressler, 17 NY2d 174; People v Ferguson, 67 NY2d 383; People v Key, 45 NY2d 111; People ex rel. Stabile v Warden, 202 NY 138.)

      Michael Handwerker for Clifford Randall, respondent.
    The decision of the court below granting the petition should be affirmed in all respects and the indictment dismissed. (Wade v Hunter, 336 US 684; People v Jones, 63 AD2d 1008; United States v Tateo, 377 US 463; United States v Dinitz, 424 US 600; Oregon v Kennedy, 456 US 667; United States v Scott, 437 US 82; People v Michael, 48 NY2d 1; Arizona v Washington, 434 US 497; People v Isaacson, 44 NY2d 511; People v Marks, 127 Misc 2d 591.)
   OPINION OF THE COURT

Bellacosa, J.

The Appellate Division judgment, premised on a Federal double jeopardy bar, grants prohibition against further criminal proceedings on an indictment (161 AD2d 70) and should be affirmed. The unusual developments of this case do not lend themselves to neat categorization within double jeopardy parlance or principles.

The 17-year-old defendant was tried for attempted murder in the second degree and related offenses. After eight hours of deliberation which included a dinner break, the jury reported to the trial court that it was deadlocked. The court gave a "mild Allen” charge (Allen v United States, 164 US 492) and the jurors resumed deliberations. The Trial Justice then conveyed to defendant’s counsel what he characterized as "reliable” information: that the jury was voting to convict by a 10-to-2 margin. In fact, the opposite was true: the jury was 10-to-2 to acquit. The misinformation, it was later learned, was reported to the Trial Justice by a court officer who had accompanied the jurors to dinner and concluded, based on observations alone, that they were split 10 to convict and 2 to acquit. The Trial Justice, while cautioning defendant that the information was speculative, nonetheless named the two jurors he believed were leaning towards acquittal. The court suggested that it would be a "long night” and that the parties might wish to talk about a guilty plea.

Defendant conferred with his counsel and parents. His lawyer advised him — based on the erroneously and improperly conveyed information regarding the still deliberating jury’s reported tentative vote — that the two "acquittal” jurors could change their vote and convict on the highest count. Counsel advised that it was more likely that the jury would remain deadlocked or would render a compromise verdict. Counsel also advised defendant that if at any time the deliberating jury returned a verdict while he was considering the plea, the plea option and the accompanying potential for a shorter sentence would be lost.

Defendant continued to assert his innocence but believed that he had no chance for an acquittal and that he was facing a lengthy prison sentence. He agreed to plead guilty to the third count, criminal use of a firearm in the first degree, in full satisfaction of the indictment. The Trial Justice refused to accept an Alford plea (North Carolina v Alford, 400 US 25), but executed what he termed a "painless allocution” requiring that defendant merely say "Yes” to the court’s questions to obtain court approval of the plea bargain. The late night guilty plea was then recorded. After the jury was discharged, the foreperson reported promptly and later provided an affidavit that the jury had actually been leaning 10-to-2 in favor of acquittal. A second juror confirmed this vote status in an affidavit, emphasizing that "[t]he overwhelming sentiment was for acquittal.” Defendant immediately moved to withdraw his guilty plea two days after the trial was aborted, at which time the same Trial Justice admitted that defendant and his counsel "may have been misled” by the court’s inaccurate communication. The motion was granted and the plea vacated.

Defendant later moved also to preclude retrial on double jeopardy and due process grounds. The same Trial Justice, in denying this motion, conceded that his communication during the jury’s deliberation regarding the tentative vote had been "ill-advised,” but explained he had thought the information would be "useful” and "helpful” to the defendant.

These facts and this case are resolved under elemental double jeopardy principles and are not controlled by any particular precedent. Defendant was unquestionably placed in jeopardy by the trial and deliberation of the particular jury which had held his fate in its hands (United States v Jorn, 400 US 470, 479-480; Green v United States, 355 US 184, 188; Wade v Hunter, 336 US 684, 688). Defendant was constitutionally entitled to that jury’s resolution of his guilt or innocence (Wade v Hunter, supra, at 689; United States v Jorn, 400 US, at 484-485, supra). Defendant did nothing to set in motion the interruption and termination of that fundamental right (compare, Oregon v Kennedy, 456 US 667; United States v Dinitz, 424 US 600). The court, by its own explanation, initiated the termination of the right to a verdict from that particular jury.

The trial court’s candid acknowledgement of inadvertent error and attempt to rectify the harm done, by vacatur of the guilty plea and judgment of conviction on which the plea was based did not and could not restore the defendant to the status quo ante. Defendant’s right to have the particular deliberating jury resolve his fate was forever lost. The vacatur of a guilty plea in this circumstance is not at all similar to other typical relief sought by and granted to defendants from trial or appellate courts, which permit further proceedings on an indictment (compare, United States v Ball, 163 US 662; United States v Dinitz, 424 US 600, 607-610, supra).

This egregious situation, it must be stressed, does not present a dry, theoretical or academic discourse about double jeopardy principles. This case keys into the most sensitive, highly pressurized moment of a hotly contested trial: a deliberating, tentatively deadlocked, about-to-be-sequestered-overnight jury, presided over by a highly experienced Justice. The "spontaneous” plea "offer” in these circumstances, delivered with incorrect data about the tentative 10-to-2 conviction vote of the deliberating jury, when bolstered by the full weight and authority of the court, was an offer that defendant could not seriously refuse. Defendant, deprived of the freedom of will necessary for a knowing and voluntary plea, was unquestionably entitled to vacatur of his guilty plea.

The termination of a trial without a defendant’s request or consent triggers the double jeopardy bar against reprosecution except in those exceptional cases where "manifest necessity” compelled the termination (Oregon v Kennedy, 456 US, at 672, supra; Arizona v Washington, 434 US 497, 509; Illinois v Somerville, 410 US 458, 463; United States v Jorn, 400 US, at 481, supra; Gori v United States, 367 US 364; United States v Perez, 9 Wheat [22 US] 579). No one dares claim that this trial was interrupted by a "manifest necessity”. Rather, like a court’s sua sponte declaration of mistrial, the invalidly induced guilty plea here deprived defendant of his fundamental right to have the particular deliberating jury determine his fate (see, United States v Jorn, supra, at 484).

United States v Tateo (377 US 463) does not compel a contrary conclusion. In Tateo, the Supreme Court determined that defendant’s guilty plea — later vacated — had been coerced by the Trial Judge’s midtrial threats that if defendant were convicted by the jury he would impose a life sentence (id., at 464). The Supreme Court concluded that the case was controlled by the principles in United States v Ball (163 US 662, 671-672) and its progeny which permit retrial where defendant prevails on appeal, reasoning in Tateo that "[a] defendant is no less wronged by a jury finding of guilt after an unfair trial than by a failure to get a jury verdict at all” (377 US, at 467). Subsequent Supreme Court cases cast considerable doubt on the generality of that assertion. What has emerged as the "important consideration, for purposes of the Double Jeopardy Clause, is that the defendant retain primary control over the course to be followed in the event of [judicial or prosecutorial] error” (United States v Dinitz, 424 US 600, 609, supra). Indeed, in United States v Jorn (400 US 470, supra), the Supreme Court emphasized that "the crucial difference between reprosecution after appeal by the defendant and reprosecution after a sua sponte judicial mistrial declaration is that in the first situation the defendant has not been deprived of [the] option to go to the first jury and, perhaps, end the dispute then and there with an acquittal [whereas, in the second situation] where the judge, acting without the defendant’s consent, aborts the proceeding, the defendant has been deprived of [the] 'valued right to have [the] trial completed by a particular tribunal’ ” (id., at 484). The Supreme Court concluded that Tateo fits into the first category and, thus, made a distinction between "voluntariness” for purposes of assessing the validity of a guilty plea and for purposes of assessing reprosecutability under the Double Jeopardy Clause (400 US, at 484-485, n 11, supra).

In the case before us, the trial court’s inducement of defendant’s guilty plea so completely deprived defendant of the option to take his chances with the particular jury that the termination of his trial while the jury was deliberating his fate is the legal equivalent of the situation in Jorn for purposes of assessing reprosecutability under the Double Jeopardy Clause. In both instances, the trial courts eliminated the defendants’ fundamental right to have their trials completed by their particular tribunals (United States v Jorn, 400 US, at 484, supra; Wade v Hunter, 336 US, at 689, supra).

Because the guilty plea in this case inextricably and necessarily cut off any chance for defendant to obtain a resolution from that jury, and because a new trial cannot restore that fundamental right, vacatur alone of the guilty plea did not and could not proportionately remedy the violation. The Trial Justice’s statements to defendant and his counsel so thoroughly permeated defendant’s assessment of his chance for resolution from that jury that he was left bereft of his constitutionally protected option.

An overarching feature of this case is also concern for the integrity of the jury deliberation process. It was adversely affected here, at least perceptually. The information imparted by the Trial Justice gave the erroneous impression that the confidentiality of the deliberations had in some manner been officially penetrated. Such activity cannot be countenanced (People v Bouton, 50 NY2d 130).

The Appellate Division correctly concluded that a separate, successive prosecution could not be allowed in the circumstances of this case. We emphasize that we do not, by this decision, intend to engender any disincentive to Trial Justices fulfilling their sworn duty as they see fit — as the Trial Justice did here in vacating a patently improper guilty plea — regardless of the eventual and potential constitutional consequences and legal denouement.

Accordingly, the judgment of the Appellate Division should be affirmed, without costs.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone and Hancock, Jr., concur.

Judgment affirmed, without costs.


author: Chief Judge Wachtler.

text:
    Incorporated Village of Nyack, Appellant, v Daytop Village, Inc., et al., Respondents.
    Argued October 17, 1991;
    decided November 25, 1991

      POINTS OF COUNSEL

      Linda Christopher for appellant.
    I. No express language in article 19 of the Mental Hygiene Law or in Division of Substance Abuse Services regulations authorizes the preemption of local zoning powers, which are otherwise expressly accorded to the Village under section 10 of the Statute of Local Governments, section 7-700 of the Village Law, and section 10 (1) of the Municipal Home Rule Law. (Matter of Frew Run Gravel Prods. v Town of Carroll, 71 NY2d 126.) II. Article 19 of the Mental Hygiene Law shows no implicit intent by the Legislature to preempt local zoning laws affecting the siting of residential drug treatment facilities. (Jancyn Mfg. Corp. v County of Suffolk, 71 NY2d 91; New York State Club Assn. v City of New York, 69 NY2d 211, 487 US 1; People v St. Agatha Home for Children, 47 NY2d 46, 444 US 869.) III. In finding implicit preemption and inconsistency, the Second Department ignored both (a) the Fourth Department’s prior contrary interpretation, in Matter of Ibero-American Action League v Palma (47 AD2d 998), that zoning law was not preempted either explicitly or implicitly in prior relevant provisions of the Mental Hygiene Law and (b) the Legislature’s failure to expressly override said decision in subsequent revisions of the Mental Hygiene Law. IV. Other regulations by DSAS and the Mental Hygiene Department expressly respect or override land use control; accordingly, absolute preemption of the zoning field is not implicitly present in article 19 of the Mental Hygiene Law. V. Article 19 of the Mental Hygiene Law and its regulations can be harmonized with local zoning laws. Sites used for private State-licensed residential drug treatment facilities should be obliged to meet local zoning requirements. (People v Renaissance Project, 36 NY2d 65.)

      Richard I. Cantor for respondents.
    I. New York State has adopted a comprehensive, State-wide, legislative plan and detailed regulatory scheme for the issuance of licenses or certificates of approval for substance abuse treatment facilities. (Albany Area Bldrs. Assn. v Town of Guilderland, 74 NY2d 372.) II. The implementation of the State scheme by DSAS involves a detailed and thorough investigation of the proposed program and facility. III. The judicially established standards for implied preemption in New York State support preemption in this case. (Consolidated Edison Co. v Town of Red Hook, 60 NY2d 99; New York State Club Assn. v City of New York, 69 NY2d 211; Jancyn Mfg. Corp. v County of Suffolk, 71 NY2d 91; Albany Area Bldrs. Assn. v Town of Guilderland, 74 NY2d 372; Wambat Realty Corp. v State of New York, 41 NY2d 490; Ba Mar v County of Rockland, 164 AD2d 605.)

      Dennis E. A. Lynch for Coalition for the Preservation of the Greater Nyack Area, Inc., amicus curiae.

    I. The issue of preemption need not be considered in this appeal. (Group House v Board of Zoning & Appeals, 45 NY2d 266; People v Town of Clarkstown, 160 AD2d 17.) II. The Legislature has not expressly or by implication preempted local zoning power. (People v Renaissance Project, 36 NY2d 65; People v St. Agatha Home for Children, 47 NY2d 46; Matter of Ibero-American Action League v Palma, 47 AD2d 998.)

      Lydia R. Marola for the New York State Conference of Mayors and Municipal Officials, amicus curiae.

    I. Preemption in the area of substance abuse programs is not implied. (Diocese of Buffalo v Buczkowski, 112 Misc 2d 336, 90 AD2d 994.) II. It is imperative that municipalities be able to enforce their zoning laws. (Euclid v Ambler Co., 272 US 365; Adler v Deegan, 251 NY 467.)

      Robert Abrams, Attorney-General (O. Peter Sherwood and Harvey M. Berman of counsel), for the New York State Division of Substance Abuse Services, amicus curiae.

    The Village of Nyack may not require a State-approved residential drug treatment facility to comply with its local zoning code. (Kamhi

      v Town of Yorktown, 74 NY2d 423; Matter of Town of Islip v Caviglia, 73 NY2d 544; Turnpike Woods v Town of Stony Point, 70 NY2d 735; New York State Club Assn. v City of New York, 69 NY2d 211; Consolidated Edison Co. v Town of Red Hook, 60 NY2d 99; Albany Area Bldrs. Assn. v Town of Guilderland, 74 NY2d 372; Robin v Incorporated Vil. of Hempstead, 30 NY2d 347; Matter of Ibero-American Action League v Palma, 47 AD2d 998.)

      Terry Rice for New York Planning Federation, amicus curiae.

    Absent a clear expression of preemptive intent or irreconcilable inconsistency, local land use regulations should not be nullified to permit a private concern licensed by a State agency to operate wherever it chooses in a community. (Jancyn Mfg. Corp. v County of Suffolk, 71 NY2d 91; New York Club Assn. v City of New York, 69 NY2d 211, 487 US 1; McMinn v Town of Oyster Bay, 66 NY2d 544; Matter of Wulfsohn v Burden, 241 NY 288; Euclid v Ambler Co., 272 US 365; Marcus Assocs. v Town of Huntington, 45 NY2d 501; Village of Belle Terre v Boraas, 416 US 1; Matter of Headley v Fennell, 124 Misc 886, 214 App Div 810; Udell v Haas, 21 NY2d 463; Albright v Town of Manlius, 34 AD2d 419, 28 NY2d 108.)
   OPINION OF THE COURT

Chief Judge Wachtler.

In this case, we consider whether the operator of a residential substance abuse facility that has been duly licensed by the State must nonetheless comply with applicable local zoning laws. Because we conclude that State oversight of the location and operation of substance abuse facilities pursuant to the Mental Hygiene Law does not preempt the operation of local zoning laws, the order of the Appellate Division should be reversed.

Daytop Village, Inc. and Daytop Village Foundation, Inc. (collectively Daytop), are not-for-profit corporations organized under the laws of New York. On February 2, 1990, Daytop submitted an application to the New York State Division of Substance Abuse Services (DSAS) for a certificate of approval to operate a residential substance abuse treatment program at 21 Mountainview Avenue in the Incorporated Village of Nyack, Rockland County. Daytop Village Foundation, Inc. is the owner of the premises, and Daytop Village, Inc. was prepared to operate the treatment facility.

The proposed site, which had previously housed a hotel, was located within the Village’s C-2 commercial zone. The Nyack Zoning Code explicitly prohibited residential uses within the C-2 zone. Despite this apparent conflict, Daytop did not seek either a variance or a certificate of occupancy from the Village.

Upon receipt of Daytop’s application, DSAS conducted an evaluation of the proposed treatment facility. This evaluation included consideration of the adequacy of the physical plant, the location of the facility, and the different procedures and services that Daytop planned to put into place there. On June 28, 1990, Daytop’s application was partially approved, with final approval contingent upon the resolution of certain outstanding matters. DSAS and Daytop settled these matters in a memorandum of understanding dated July 26, 1990. DSAS issued Daytop the final certificate of approval four days later, on July 30, 1990.

Meanwhile, the Village of Nyack, by order to show cause dated July 20, 1990, sought a temporary injunction staying Daytop from operating the facility pending application for and receipt of a variance and a certificate of occupancy from the Village of Nyack. Daytop cross-moved for an order dismissing the complaint and vacating the temporary restraining order contained in the order to show cause. A hearing on the motion was held in Supreme Court, Rockland County, on July 27, 1990. The court granted Nyack’s motion for a preliminary injunction, denied Daytop’s cross motion for a dismissal of the complaint, and gave Daytop until September 27, 1990 to apply to Nyack for a variance and a certificate of occupancy.

Daytop appealed, and the Appellate Division reversed, with one Justice dissenting. The Appellate Division concluded that article 19 of the Mental Hygiene Law implemented a comprehensive State-wide policy for the treatment of substance abuse. The majority held that operation of the local zoning laws in this instance tended to thwart the implementation of articulated policy concerns by placing additional restrictions on rights granted by State law. Thus, citing the doctrines of inconsistency and preemption, the Appellate Division held that Daytop would not be required to comply with Nyack’s zoning laws in order to operate the treatment facility. Because we agree with the dissenting Justice that there is no inherent inconsistency and that the local zoning laws and the applicable State law can be harmonized, we now reverse.

Section 7-700 of the Village Law and section 10 (6) of the Statute of Local Governments explicitly authorize villages to enact zoning laws. Additionally, section 10 (1) (ii) (a) (11) of the Municipal Home Rule Law gives counties, cities, towns and villages the power to enact local laws for the "protection and enhancement of [their] physical and visual environment,” while section 10 (1) (ii) (a) (12) grants these localities the power to pass laws for "[t]he government, protection, order, conduct, safety, health and well-being of persons or property therein.” Yet while local governments do possess broad authority to enact legislation that promotes the welfare of their citizens, it is well established that they cannot adopt laws that are inconsistent with the Constitution or with any general law of the State (see, NY Const, art IX, § 2 [c]; Municipal Home Rule Law § 10 [1] [i], [ii]; see also, Matter of Ardizzone v Elliott, 75 NY2d 150, 155; Albany Area Bldrs. Assn. v Town of Guilderland, 74 NY2d 372, 377). The question now before us is whether the Zoning Code of the Village of Nyack is inconsistent with, and consequently, must give way to, article 19 of the Mental Hygiene Law.

Where the State has demonstrated its intent to preempt an entire field and preclude any further local regulation, local law regulating the same subject matter is considered inconsistent and will not be given effect (see, e.g., Jancyn Mfg. Corp. v County of Suffolk, 71 NY2d 91, 97; People v Cook, 34 NY2d 100, 109). This finding of preemption is justified by the belief thát "[s]ueh laws, were they permitted to operate in a field preempted by State law, would tend to inhibit the operation of the State’s general law and thereby thwart the operation of the State’s overriding policy concerns” (Jancyn Mfg. Corp. v County of Suffolk, supra, at 97; see also, New York State Club Assn. v City of New York, 69 NY2d 211, 217). The Legislature’s intent to so preempt a particular area can be inferred from a declaration of policy or from a comprehensive or detailed scheme in a given area (New York State Club Assn. v City of New York, supra; see also, Consolidated Edison Co. v Town of Red Hook, 60 NY2d 99, 105). "[T]hat the State and local laws touch upon the same area is insufficient to support a determination that the State has preempted the entire field of regulation in a given area,” however (Jancyn Mfg. Corp. v County of Suffolk, supra, at 99).

Daytop argues, and the Appellate Division agreed, that the comprehensiveness of the State’s efforts to deal with substance abuse is evidence of the Legislature’s intent to preempt local oversight of the location of residential treatment facilities. Daytop contends that the Village, if permitted to enforce its zoning laws, will impose additional burdens that will stifle the operation of New York State’s general laws. This, according to Daytop, compels a finding that Nyack’s zoning laws are preempted by the Mental Hygiene Law.

Article 19 indeed represents a sweeping effort to address the myriad problems that have flowed from the scourge of substance abuse in this State. In section 19.01 (b), the Legislature explicitly stated that "it is the policy of the state to conduct coordinated research and to develop programs to further the prevention and early detection of * * * substance abuse and substance dependence and to develop a comprehensive system of services to serve the full range of needs of * * * substance abusers and substance dependent persons.” To that end, DSAS is charged with the responsibility for establishing procedures and setting standards for the approval of substance abuse programs (Mental Hygiene Law § 23.01). DSAS is also empowered to "cooperate with and assist local agencies and community service boards in the development and periodic review of local comprehensive plans and programs for substance abuse services and approve such plans and programs” (Mental Hygiene Law § 19.07 [b] [4]). As part of this approval process, DSAS must "inspect and approve or disapprove the facilities of and the services provided by substance abuse programs” (Mental Hygiene Law § 19.07 [b] [5]).

Detailed regulations, found in 14 NYCRR parts 1010 through 1030, set out the scope of the approval process and the factors that must be considered in reviewing an application. For example, DSAS must consider "the safety and adequacy of the physical plant for the program” (14 NYCRR 1010.4 [b] [1]), as well as "the suitability and adequacy of the program based on appropriate criteria for the conduct of substance abuse services” (14 NYCRR 1010.4 [b] [2]). There are detailed regulations setting out the physical specifications for each facility (see, e.g., 14 NYCRR 1030.1 [g]), screening and admission procedures (14 NYCRR 1030.1 [c], [d]), and the type of services that are to be provided (14 NYCRR 1030.1 [e]).

None of this, though, leads inexorably to the conclusion that the State’s commitment to fighting substance abuse preempts all local laws that may have an impact, however tangential, upon the siting of substance abuse facilities. We note first that unlike the portion of the Mental Hygiene Law which regulates the siting of community residential facilities for the mentally disabled, article 19 does not expressly withdraw the zoning authority of local governments (see, Mental Hygiene Law § 41.34). Thus, our analysis necessarily revolves around whether there is implied preemption of the local zoning power. The Legislature’s use of the word "comprehensive” in describing the State’s policy toward substance abuse does not, in and of itself, resolve that question. The analysis is considerably more complex and must take into effect the interplay between State and local authority in this area. Both the State and the Village have important interests at stake in this controversy — the State in promoting its substance abuse policy, the Village in controlling its present shape and future growth. But these interests are not necessarily contradictory. While it is true that in this case there is unquestionably a potential for some conflict if a variance and certificate of occupancy, once applied for, are not granted, there will not be inconsistency in every case. State and local regulation of the placement of substance abuse facilities will not by their very nature produce conflict and inconsistency. Two separate levels of regulatory oversight can coexist. This, we believe, is one argument against a finding of preemption in this case.

Further, having examined the statute, the legislative history, and the applicable regulations, we simply cannot conclude that the Legislature intended the aspirational language of the declaration of policy to trump local efforts to regulate the location of facilities through the application of zoning laws. In fact, as noted by the Village on this appeal, the substance abuse programs set into motion by the language of the Mental Hygiene Law are largely cooperative in nature and look toward a joint effort by State and local officials to address the problems posed by substance abuse (see, e.g., Mental Hygiene Law § 19.07 [b] [4], [8]). In his memorandum approving a 1980 recodification of the Mental Hygiene Law, Governor Carey noted that "the legislation emphasizes the importance of community-based programs, whether residential or non-residential * * * [and] establishes procedures to facilitate the development of community-based treatment programs.” (1980 McKinney’s Session Laws of NY, at 1875.) Thus, despite the fact that final approval power rests with DSAS, the statute clearly contemplates that officials from all levels of government will come together in designing programs for the treatment of substance abuse.

As we noted in People v Cook (supra) the test is not whether the local law prohibits conduct which is permitted by State law, because that test is much too broad (id., at 109; see also, New York State Club Assn. v City of New York, supra, at 221). Rather, as noted above, we look to whether the State has acted upon a subject, and whether "in so acting has evidenced a desire that its regulations should pre-empt the possibility of varying local regulations” (People v Cook, supra, at 109). While the State has expressed its recognition that substance abuse is a State-wide problem and has instituted a comprehensive policy for the treatment of this problem on both the State and local levels, we simply do not consider this sufficient to warrant a finding of preemption under the facts present in this case.

There is no showing here that the Village of Nyack has effectively tailored its zoning laws to block the placement of substance facilities within its borders; in fact, two drug treatment programs are already in place there — a drug counseling program for youths and an in-patient drug treatment center offered by the local hospital. The Village is simply demanding that placement of the facility conform with regulations that are well within the Village’s authority to impose (see, Matter of Ibero-American Action League v Palma, 47 AD2d 998). The Village has a legitimate, legally grounded interest in regulating development within its borders. Because we find that this interest is not preempted by State regulation of the licensing of substance abuse facilities, Daytop must apply for a variance and a certificate of occupancy and otherwise comply with the Village’s zoning process.

We have considered Daytop’s remaining arguments, and we find them to be without merit. Accordingly, the order of the Appellate Division should be reversed, with costs, and the order of Supreme Court, Rockland County, reinstated.

Judges Simons, Kaye, Alexander, Hancock, Jr., and Bellacosa concur; Judge Titone taking no part.

Order reversed, etc.


text:
    Donald Rocovich, Appellant, v Consolidated Edison Company, Respondent. (And a Third-Party Action.)
    Argued October 10, 1991;
    decided November 25, 1991

      POINTS OF COUNSEL

      Charles A. Giulini, Jr., and Michael Joseph J. Barnas for appellant.
    I. The incongruity of its construction by the courts as requiring a fall from the heights or at least an elevation, being incompatible with the legislative history, with basic tenets of statutory construction and with the modern-day industrial scene, and leading to irreconcilable decisions and illogical distinctions, mandates that the interpretation of Labor Law § 240 (l)’s application be abrogated in favor of a flexible and harmonious extrahazardous work talisman. (Staples v Town of Amherst, 146 AD2d 292; Wingert v Krakauer, 76 App Div 34; Caddy v Interborough R. T. Co., 195 NY 415; Broderick v Cauldwell-Wingate Co., 301 NY 182; Muench v Steel & Masonry Contr. Co., 155 App Div 409; Guigliano v Seaport Mkt. Place, 160 AD2d 258; Teska v Camperlino & Fatti Bldrs., 163 AD2d 868; Koenig v Patrick Constr. Corp., 298 NY 313; Smith v Hooker Chems. & Plastics Corp., 89 AD2d 361; Quigley v Thatcher, 207 NY 66.) II. The fall from a height requirement was met. (Allied Stores of Ohio v Bowers, 358 US 522; Trump v Chu, 65 NY2d 20; Wegman’s Food Mkts. v State of New York, 76 AD2d 95.)

      John J. Reilly and Patricia A. Corry for respondent.
    I. Neither the statutory language nor the legislative history and intent provide that a worker injured by the slipping of one of his feet into a trough comes within the class for whose benefit the absolute liability protection of section 240 (1) of the Labor Law was enacted since such a foreseeable risk and protection therefrom can be provided for by protective clothing, not any of the devices under section 240 (1), and adequate protection is provided in section 241 (6) of the Labor Law. (Bland v Manocherian, 66 NY2d 452; Koenig v Patrick Constr. Corp., 298 NY 313; Wright v State of New York, 66 NY2d 452; Staples v Town of Amherst, 146 AD2d 292; Fox v Jenny Eng’g Corp., 122 AD2d 532, 70 NY2d 761; Armenti v Brooklyn Union Gas Co., 157 App Div 276; Allen v City of Buffalo, 161 AD2d 1134; Spinelli v St. John Nepomucene R. C. Church, 140 AD2d 427; Kahn v Gates Constr. Corp., 103 AD2d 438; Yaeger v New York Tel. Co., 148 AD2d 308.) II. Since there is evidence to support that there were safety devices in the form of planking across the trough and a suitable ladder nearby, any violation of section 240 (1) found should be remanded to the lower court for a jury determination of proximate cause. (Witherel v Balling Constr., 99 AD2d 646; Vencebi v Waldorf Astoria Hotel Corp., 143 AD2d 1004; Mack v Altmans Stage Light. Co., 98 AD2d 468; Margolin v Friedman, 43 NY2d 982; Sheehan v City of New York, 40 NY2d 496.)

      Richard L. O’Hara, Edward J. Groarke and Scott P. Shelkin for New York State AFL-CIO, amicus curiae.

    Sound public policy and adherence to precedent require a liberal construction of Labor Law § 240 (1) thereby making it applicable to the case at bar. (Wingert v Krakauer, 76 App Div 34; Zimmer v Chemung County Performing Arts, 65 NY2d 513; Mordkofsky v V.C.V. Dev., 76 NY2d 573; Tracey v Williams, 127 App Div 126; Madden v Hughes, 104 App Div 101, 185 NY 466; Rocha v State of New York, 45 AD2d 633; Van Slyke v Niagara Mohawk Power Corp., 93 AD2d 990; Siragusa v State of New York, 117 AD2d 986, 68 NY2d 602; Staples v Town of Amherst, 146 AD2d 292; Klien v General Foods Corp., 148 AD2d 968.)
   OPINION OF THE COURT

Hancock, Jr., J.

The question in this personal injury action is whether Labor Law § 240 (1) applies to the particular activity in which plaintiff was injured. Plaintiff was • employed by third-party defendant King Insulation Company which had contracted to remove and repair insulation covering pipes on the roof of defendant’s power plant. The pipes were in a recessed area which ran the entire length of the roof. In the center of this recess was a trough, 18 to 36 inches wide and 12 inches deep, carrying a stream of hot oil, 4 to 5 inches in depth. As plaintiff was about to step across this trough, he slipped and fell backward causing his right foot and ankle to become immersed in the oil. For reasons which follow, we hold that the accident was not covered by section 240 (1).

I

At the close of the evidence in the jury trial, plaintiff moved for a directed verdict on the issue of liability upon the ground that defendant had violated section 240 (1) in failing to provide required safety devices and that under that section his culpable conduct, if any, could not be considered. The court denied this motion and also refused plaintiff’s request that it submit the case to the jury as being covered by section 240 (1). Instead, the court submitted the case under section 241 (6) which places upon owners and contractors the duty of providing reasonable and adequate protection and safety to persons working on the job. Under section 241 (6) — as contrasted with section 240 (1) — culpable conduct of the injured person is relevant. Accordingly, the jury considered plaintiff’s comparative fault and returned a verdict apportioning 10% of the fault for the accident to defendant and 90% to plaintiff. Plaintiff’s damages were thus reduced by 90%. On plaintiff’s appeal to the Appellate Division, that court held that the trial court had properly submitted the case to the jury as being governed by section 241 (6) rather than section 240 (1), as plaintiff had requested. The Appellate Division unanimously affirmed the judgment insofar as it reflected the reduction in plaintiff’s award and modified in other respects (167 AD2d 524). We granted plaintiff leave to appeal and now affirm.

II

Section 240 (1) of the Labor Law, entitled "Scaffolding and other devices for use of employees”, requires that all contractors and owners "in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed” (emphasis added). The legislative purpose behind this enactment is to protect "workers by placing 'ultimate responsibility for safety practices at building construction jobs where such responsibility actually belongs, on the owner and general contractor’ (1969 NY Legis Ann, at 407), instead of on workers, who 'are scarcely in a position to protect themselves from accident’ (Koenig v Patrick Constr. Co., 298 NY 313, 318)” (Zimmer v Chemung County Performing Arts, 65 NY2d 513, 520).

It is settled that section 240 (1) " 'is to be construed as liberally as may be for the accomplishment of the purpose for which it was thus framed’. (See Quigley v. Thatcher, 207 N. Y. 66, 68.)” (Koenig v Patrick Constr. Corp., 298 NY 313, 319.) Thus, we have interpreted the section as imposing absolute liability for a breach which has proximately caused an injury. Negligence, if any, of the injured worker is of no consequence (see, Bland v Manocherian, 66 NY2d 452, 459-461; Zimmer v Chemung County Performing Arts, supra, at 521; Koenig v Patrick Constr. Corp., supra). In furtherance of this same legislative purpose of protecting workers "against the known hazards of the occupation” (Koenig v Patrick Constr. Corp., supra, at 319), we have determined that the duty under section 240 (1) is nondelegable and that an owner is liable for a violation of the section even though the job was performed by an independent contractor over which it exercised no supervision or control (see, Haimes v New York Tel. Co., 46 NY2d 132, 136-137).

This appeal turns on a question that we have not yet fully addressed: the nature of those occupational hazards which the Legislature intended should warrant the absolute protection that the statute affords. Manifestly, a violation of the statute cannot "establish liability if the statute is intended to protect against a particular hazard, and a hazard of a different kind is the occasion of the injury” (DeHaen v Rockwood Sprinkler Co., 258 NY 350, 353). To ascertain the sort of risk contemplated by section 240 (1), we look first to the statutory wording (see, Price v Price, 69 NY2d 8, 15). While section 240 (1) does not purport to specify the hazards to be avoided, it does specify protective means for the hazards’ avoidance. The types of devices which the statute prescribes "shall be so constructed, placed and operated” (emphasis added) as to avoid the contemplated hazards are: "scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices” (id.). Some of the enumerated devices (e.g., "scaffolding” and "ladders”), it is evident, are for the use or protection of persons in gaining access to or working at sites where elevation poses a risk. Other listed devices (e.g., "hoists”, "blocks”, "braces”, "irons”, and "stays”) are used as well for lifting or securing loads and materials employed in the work.

The various tasks in which these devices are customarily needed or employed share a common characteristic. All entail a significant risk inherent in the particular task because of the relative elevation at which the task must be performed or at which materials or loads must be positioned or secured. The contemplated hazards are those related to the effects of gravity where protective devices are called for either because of a difference between the elevation level of the required work and a lower level or a difference between the elevation level where the worker is positioned and the higher level of the materials or load being hoisted or secured. It is because of the special hazards in having to work in these circumstances, we believe, that the Legislature has seen fit to give the worker the exceptional protection that section 240 (1) provides. Consistent with this statutory purpose we have applied section 240 (1) in circumstances where there are risks related to elevation differentials (see, e.g., Bland v Manocherian, 66 NY2d 452, supra; Zimmer v Chemung County Performing Arts, 65 NY2d 513, supra; Izrailev v Ficarra Furniture, 70 NY2d 813; Koenig v Patrick Constr. Corp., supra; Haimes v New York Tel. Co., supra). In cases such as these, the proper "erection”, "construction”, "placement” or "operation” of one or more devices of the sort listed in section 240 (1) would allegedly have prevented the injury (see also, DeHaen v Rockwood Sprinkler Co., supra, at 354).

Ill

In the case before us, the question is whether the circumstances surrounding plaintiff’s work subjected him to the sort of risk which section 240 (1) was intended to obviate. Plaintiff contends that there was some elevation-related risk inherent in having to work near the 12-inch trough and that "a slip and fall, be it only a matter of inches, into a highly caustic substance such as heated industrial oil should * * * be deemed within section 240(l)’s embrace”. We disagree. While the extent of the elevation differential may not necessarily determine the existence of an elevation-related risk, it is difficult to imagine how plaintiff’s proximity to the 12-inch trough could have entailed an elevation-related risk which called for any of the protective devices of the types listed in section 240 (1).

Plaintiff urges, nevertheless — assuming that we conclude that the hazard he faced was not elevation-related — that we should adopt a construction of section 240 (1) which focuses "upon the degree rather than the type of hazard” involved. He maintains that the case should have been submitted to the jury under section 240 (1) because the trough carrying the hot oil through the slippery, oil-covered area where he was required to walk presented a particularly dangerous condition. He argues that the "fluid approach [he would have us adopt] comports * * * with the statutory purpose of protecting workers in 'dangerous employment’ ” and is consistent with the legislative history of section 240 (1). Again, we disagree.

Plaintiff’s proposed construction conflicts with the thrust of section 240 (1) in mandating devices having a specific purpose: the protection against risks due in some way to relative differences in elevation. Moreover, as defendant points out, adopting plaintiff’s "degree of hazard” interpretation would have the effect of making Labor Law § 241 (6) — the general provision requiring owners and contractors to provide safe working conditions — virtually useless. Cases involving injuries due to allegedly dangerous working conditions, such as plaintiff’s — which are now governed by section 241 (6) — would properly be brought under the far more stringent provisions of section 240 (1) where absolute liability could result. It is an accepted rule that all parts of a statute are intended to be given effect and that a statutory construction which renders one part meaningless should be avoided (see, Matter of Albano v Kirby, 36 NY2d 526, 530).

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

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone and Bellacosa concur.

Order affirmed, with costs.

       The modification consisted of a reversal of the defendant’s recovery in its third-party action against King Insulation Company and a dismissal of the third-party complaint. Defendant has not cross-appealed.


author: Simons, J. Hancock, Jr., J.

text:
    Sallie Massie, Respondent, v David B. Crawford, Jr., Appellant, et al., Defendant.
    Argued October 8, 1991;
    decided November 25, 1991

      POINTS OF COUNSEL

      Francis B. Mann, Jr., for appellant.
    I. Plaintiff failed to come forth with proof of a continuous course of treatment prior to the two-year, 10-month "gap”. (Connell v Hayden, 83 AD2d 30; Zuckerman v City of New York, 49 NY2d 557; Megginson v Rose, 121 AD2d 608; Barrella v Richmond Mem. Hosp., 88 AD2d 379; Werner v Kwee, 148 AD2d 701; Eagleston v Mt. Sinai Med. Center, 144 AD2d 427, 74 NY2d 601; Ciciless v Lane, 129 AD2d 759; Maresca v Berson, 84 AD2d 760; Davis v City of New York, 38 NY2d 257; Charalambakis v City of New York, 54 AD2d 553, 46 NY2d 785.) II. Plaintiff failed to come forth with any evidence linking treatment rendered in 1984 with office visits in 1981 and prior thereto, and failed to controvert Dr. Crawford’s opinion that there was no linkage. (Brown v St. Barnabas Hosp., 159 AD2d 674; Weinblatt v Lydia Hall Hosp., 105 AD2d 781; Delaney v Muscillo, 138 AD2d 258, 72 NY2d 807, 73 NY2d 852; Matott v Ward, 48 NY2d 455; Kulak v Nationwide Mut. Ins. Co., 40 NY2d 140; Hartley v Szadkowski, 32 AD2d 550; Corcoran Group v Morris, 107 AD2d 622, 64 NY2d 1034; Smith v Johnson Prods. Co., 95 AD2d 675; Gitlin v Cassell, 107 AD2d 636; Frimmerman v Bernstein, 107 AD2d 795.) III. Continuous treatment is not established merely by reason of plaintiff’s continued reliance on defendant’s advice or her continued use of a prescribed device. (DeJurenev v Robins Co., 114 AD2d 333; Goldsmith v Howmedica, Inc., 67 NY2d 120; Szakalski v Aubry, 148 AD2d 972; McDermott v Torre, 56 NY2d 399; Fox v Glens Falls Hosp., 129 AD2d 955; Parrott v Rand, 126 AD2d 621, 69 NY2d 611; Bikowicz v Nedco Pharmacy, 114 AD2d 708, 68 NY2d 641; Bernardo v Ayerest Labs., 99 AD2d 430.) IV. Unless there is continuity of treatment the mere continuation of a physician-patient relationship will not toll the Statute of Limitations. (Richardson v Orentreich, 64 NY2d 896.)

      Thomas P. Valet and Paul D. Rheingold for respondent.
    The court below properly determined that respondent presented sufficient proof of continuous treatment to defeat the motion for summary judgment. (McDermott v Torre, 56 NY2d 399; Coyne v Bersani, 61 NY2d 939; Richardson v Orentreich, 64 NY2d 896; Cannon v Pfleider, 19 AD2d 625; Patrolman’s Benevolent Assn. v City of New York, 27 NY2d 410; Rizk v Cohen, 73 NY2d 98; Curcio v Ippolito, 63 NY2d 967.)
   OPINION OF THE COURT

Simons, J.

Plaintiff instituted this action in 1985 seeking to recover damages for personal injuries, sustained in January 1984, which allegedly were caused by the presence of an intrauterine birth control device (IUD). The action is against Ortho Pharmaceutical Corporation, the manufacturer of the IUD, and defendant Crawford, the gynecologist who inserted it in 1969. Defendant gynecologist moved for partial summary judgment contending that claims of malpractice occurring more than two years and six months prior to January 1984 were time barred. The courts below denied the motion, holding that the continuous treatment exception applied and presented a question of fact for the jury. The appeal is before us by leave of the Appellate Division. We now reverse.

Plaintiff’s claim of continuous treatment rests upon her allegation that when defendant inserted the IUD, he advised her that it "could remain in place indefinitely, but that [she] should return to [him] periodically for routine gynecologic examinations.” Plaintiff followed that advice and returned to defendant periodically. The examinations were unremarkable until March 1981 when a vulva-vaginal infection, apparently unrelated to the IUD, was discovered and successfully treated. Plaintiff’s next contact with defendant was on January 30, 1984 when she telephoned him to complain of abdominal pain and fever. Defendant examined her the next day and discovered that she was suffering from pelvic inflammatory disease (PID) which required a hysterectomy.

Plaintiff alleges that the pelvic inflammatory disease was caused by the IUD and she asserts that defendant was negligent in providing follow-up care following insertion of the IUD, in performing periodic examinations, in permitting the IUD to remain in place for an extensive period of time, in failing to timely remove the IUD and in failing to timely diagnose and treat the PID. Defendant claims that the PID was separate and discrete from the initial treatment and that claims predicated on conduct occurring more than two years and six months prior to 1984 were barred.

An action for medical malpractice must be commenced within two years and six months of the date of accrual (CPLR 214-a). A claim accrues on the date the alleged malpractice takes place (Nykorchuck v Henriques, 78 NY2d 255, 258; Matter of Daniel J. v New York City Health & Hosps. Corp., 77 NY2d 630, 634-635). The statute is tolled until after a plaintiffs last treatment, however, " 'when the course of treatment which includes the wrongful acts or omissions has run continuously and is related to the same original condition or complaint’ ” (McDermott v Torre, 56 NY2d 399, 405, quoting from Borgia v City of New York, 12 NY2d 151, 155).

Defendant established that more than two years and six months had elapsed between January 1984 and plaintiff’s last previous visit, in March 1981. That interval between visits is not per se dispositive of defendant’s claim that the statute has run, but because of it the burden shifted to plaintiff to establish that her examinations constituted "continuous treatment” and that the tolling exception was applicable (Rizk v Cohen, 73 NY2d 98; and see, Werner v Kwee, 148 AD2d 701, 702; Valenti v Trunfio, 118 AD2d 480, 483; Barrella v Richmond Mem. Hosp., 88 AD2d 379, 380).

We have held that "continuous treatment” involves more than a physician-patient relationship (McDermott v Torre, supra, at 405; Borgia v City of New York, supra, at 157). There must be ongoing treatment of a medical condition. The doctrine rests on the premise that the trust and confidence that marks such relationships puts the patient at a disadvantage in questioning the doctor’s skill because to sue while undergoing treatment necessarily interrupts the course of treatment. "It would be absurd”, we stated, "to require a wronged patient to interrupt corrective efforts by serving a summons on the physician” under those circumstances (Borgia v City of New York, supra, at 156 [emphasis added]). A patient is not entitled to the benefit of the toll in the absence of continuing efforts by a doctor to treat a particular condition because the policy reasons underlying the continuous treatment doctrine do not justify the patient’s delay in bringing suit in such circumstances (Nykorchuck v Henriques, supra, at 259; see also, Grellet v City of New York, 118 AD2d 141, 147-148). Thus, we have emphasized that continuous treatment "does not contemplate circumstances where a patient initiates return visits merely to have * * * her condition checked” (McDermott v Torre, supra, at 405). Routine examinations of a patient who appears to be in good health or diagnostic examinations, even when conducted repeatedly over a period of time, are not "a course of treatment” (Charalambakis v City of New York, 46 NY2d 785, 787; see also, Nykorchuck v Henriques, supra; Davis v City of New York, 38 NY2d 257).

The present action does not come within the exception. The single procedure defendant performed for plaintiff was the insertion of the IUD: her subsequent visits to him were for routine gynecological examinations, not therapy to correct a medical condition. Consequently, these visits may not serve as a basis for applying the continuous treatment exception because plaintiff could have interrupted the services and switched physicians at any time without jeopardizing her health.

The point is illustrated by the dissent’s hypothetical in support of its position that a patient visiting a physician for checkups following surgery is undergoing continuous treatment (see, dissenting opn, at 521). Manifestly, there is continuing treatment involved in overseeing a patient’s recovery following surgery. Assuming visits for that purpose could legitimately last more than the statutory period, the patient could not reasonably be expected to terminate aftercare and sue for malpractice while the physician was still checking the wounds and monitoring the healing process. Here, by contrast, the dissenters would extend the exception to cover a relationship over 15 years, and conceivably for the remainder of the patient’s life, when there was no treatment to continue and the plaintiff would jeopardize nothing by instituting suit at any time if she believed defendant guilty of malpractice.

Accordingly, the order of the Appellate Division should be reversed, with costs, the motion for partial summary judgment granted, and the certified question answered in the negative.

Hancock, Jr., J.

(dissenting). The order should be affirmed. As the majority at the Appellate Division properly held (160 AD2d 447, 448-449), the record presents "issues of fact * * * regarding the application of the continuous treatment doctrine” (id., at 449) warranting denial of summary judgment.

It is not disputed that the insertion of the IUD was a medical treatment or that the continued presence of the device in plaintiffs body constituted a medical condition (see, CPLR 214-a). Nor can it be questioned that plaintiff had an ongoing relationship of trust and confidence with Dr. Crawford who continued as her only gynecologist and saw her frequently over a 15-year period. The decisive question pertains to the purpose and nature of plaintiffs visits to Dr. Crawford after the procedure in 1969 when the IUD was implanted. If, as the majority opinion suggests, the purpose of plaintiffs subsequent visits was solely for "routine gynecological examinations, not therapy to correct a medical condition” (majority opn, at 520), the continuous treatment doctrine would not be applicable. For then it could not be said that the subsequent visits were referable to the initial medical treatment in implanting the IUD and plaintiffs subsequent medical condition in having it remain in her body (see, e.g., McDermott v Torre, 56 NY2d 399, 405; Charalambakis v City of New York, 46 NY2d 785, 787). But it is not that simple.

Plaintiff states that her subsequent visits were referable to the continued implantation of the IUD. These visits, she maintains, were made at the instance of Dr. Crawford who instructed her to return for follow-up visits in accordance with her "understanding that during this entire course of treatment by defendant that he was supervising the care of the IUD, and that these routine examinations included check-ups for the IUD”. That these visits may have included general examinations or other medical services in addition to IUD care certainly does not, as a matter of law, make them "discrete, complete and routine” examinations unrelated to defendant’s follow-up care of plaintiffs IUD condition. Her relationship with Dr. Crawford with respect to the IUD, she says, continued through her last visit to him in 1984. Indeed, plaintiffs medical records confirm that plaintiff reported to defendant 22 times over the 15 years after defendant inserted the IUD. If plaintiffs factual assertions concerning Dr. Crawford’s continued supervision and care concerning the implanted IUD are accepted as true, the continuous treatment doctrine would apply. Her allegations describe a situation that is no different from when a patient consults a surgeon for a surgical procedure and then returns for follow-up care.

Thus, there are factual questions pertaining, at least, to Dr. Crawford’s instructions concerning follow-up care for the IUD, the understanding as to Dr. Crawford’s continued responsibility for supervision for the IUD, the motivating factor for the visits, and the nature of the medical services rendered on those visits. These questions should not be decided on motion but in a trial (see, Richardson v Orentreich, 64 NY2d 896, 898-899; Gudmundson v Axelrod, 57 NY2d 930, 932). As our Court has often pointed out, " 'issue-finding, rather than issue-determination, is the key to the [summary judgment] procedure’ ” (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404, quoting Esteve v Abad, 271 App Div 725, 727).

Our recent decision in Nykorchuck v Henriques (78 NY2d 255), cited by the majority, is plainly distinguishable and demonstrates precisely why summary judgment is not called for here. In Nykorchuck, the original services constituting the alleged malpractice pertained to an examination of a lump in the patient’s breast. The Court dismissed the subsequent services claimed to constitute the continuous treatment "related to a separate medical condition, endometriosis” (id., at 259 [emphasis added]). Here, of course, the subsequent services, according to plaintiff, related to the same medical condition — the implanted IUD. Nor does it matter, as the Appellate Division pointed out, that there was a two-year and 10-month gap between the 1981 and 1984 visits. It "cannot be found as a matter of law that an ongoing physician-patient relationship was not contemplated nor that the trust and confidence involved in such relationship no longer existed” (160 AD2d 447, 449, supra; see, Richardson v Orentreich, 64 NY2d 896, 898-899, supra).

The issue is not whether Dr. Crawford is ultimately responsible but simply whether plaintiff should have a chance to prove that he is. In my opinion, depriving plaintiff of this right in the face of the factual questions presented in this record is not consistent with basic summary judgment law or with our decisions pertaining to continuous treatment. I, therefore, dissent.

Judges Alexander, Titone and Bellacosa concur with Judge Simons; Judge Hancock, Jr., dissents and votes to affirm in a separate opinion in which Chief Judge Wachtler and Judge Kaye concur.

Order reversed, etc.


text:
    Thomas A. Parkin et al., Appellants, v Cornell University, Inc., et al., Respondents.
    Argued October 10, 1991;
    decided November 26, 1991

      POINTS OF COUNSEL

      Raymond M. Schlather for appellants.
    I. The holding of the court below that "no material factual issues were in dispute in relation to a probable cause determination”, and that "probable cause to arrest and/or prosecute plaintiffs was established as a matter of law” was in error. (Mullen v Sibley, Lindsay & Curr Co., 51 NY2d 924; Munoz v City of New York, 18 NY2d 6; Martin v City of Albany, 51 AD2d 596, 42 NY2d 13; Smith v County of Nassau, 34 NY2d 18; People v Gaimari, 176 NY 84; Colon v City of New York, 60 NY2d 78; Colegrove v City of Corning, 54 AD2d 1093, 41 NY2d 807.) II. The court below misconstrued the "improper use” requirement of abuse of process; plaintiffs did plead and prove at trial actual or special damages. (Curiano v Suozzi, 63 NY2d 113; Board of Educ. v Farmingdale Classroom Teachers Assn., 38 NY2d 397; Williams v Williams, 23 NY2d 592; Dean v Kochendorfer, 237 NY 384; Hauser v Bartow, 273 NY 370; Drago v Buonagurio, 61 AD2d 282, 46 NY2d 778; Foy v Barry, 87 App Div 291; Freidus v Eisenherg, 71 NY2d 981.) III. The court below exceeded its review authority. (Kobylack v Kobylack, 62 NY2d 399; Lane—Real Estate Dept. Store v Lawlet Corp., 28 NY2d 36; Imbrey v Prudential Ins. Co., 286 NY 434; York Mtge. Corp. v Clotar Constr. Corp., 254 NY 128; duPont, Glore Forgan & Co. v Chen, 41 NY2d 794; Caldwell v Nicolson, 235 NY 209; Blum v Fresh Grown Preserve Corp., 292 NY 241; Thompson v City of New York, 60 NY2d 948; Matter of Whipple, 294 NY 292.)

      Nelson E. Roth, Walter J. Relihan, Jr., and Thomas Mead Santoro for respondents.
    I. The court below properly found that no material issues of fact existed, and that the issue of probable cause should have been decided as a matter of law. (Colon v City of New York, 60 NY2d 78; Heller v Ingber, 134 AD2d 733; Feldman v Town of Bethel, 106 AD2d 695; Maddox v City of New York, 66 NY2d 270; Weingarten v Halfpenny Auto Parts, 138 AD2d 373; Veras v Truth Verification Corp., 87 AD2d 381, 57 NY2d 947; Tyson v Bauland Co., 68 App Div 310; Giorgio v Batterman, 134 App Div 139; Berson v City of New York, 122 AD2d 7, 69 NY2d 606.) II. The court below properly held that appellants failed to prove a claim of abuse of process. (Curiano v Suozzi, 63 NY2d 113; Drago v Buonagurio, 61 AD2d 282, 46 NY2d 778; Hauser v Bartow, 273 NY 370, 274 NY 489; Metromedia, Inc. v Mandel, 21 AD2d 219, 15 NY2d 616; Dean v Kochendorfer, 237 NY 384; Frank v Coe, 51 AD2d 992; Marks v Marks, 113 AD2d 744; 305 E. 24th Owners Corp. v Parman Co., 122 AD2d 684, 69 NY2d 991; Wolpert v First Natl. Bank, 60 AD2d 577, 46 NY2d 798; Osinoff v Muchnick, 53 AD2d 858.) III. The court below did not fail to make findings of fact required by the uncontroverted evidence and consequently its determination should be in all respects affirmed.
   OPINION OF THE COURT

Chief Judge Wachtler.

This case comes to us on appeal, by leave of this Court, from an order of the Appellate Division which reversed, on the law, a judgment entered upon a jury verdict awarding damages to plaintiffs for false arrest, malicious prosecution and abuse of process. The Appellate Division dismissed the complaint, concluding that plaintiffs had failed to establish necessary elements of each of the three causes of action. We disagree with the Appellate Division’s conclusions and accordingly reverse.

To set aside a jury verdict and enter judgment as a matter of law, "[i]t is necessary to first conclude that there is simply no valid line of reasoning and permissible inferences which could possibly lead rational [persons] to the conclusion reached by the jury on the basis of the evidence presented at trial” (Cohen v Hallmark Cards, 45 NY2d 493, 499). Because the jury returned a verdict in favor of plaintiffs, we must evaluate the evidence in the record in the light most favorable to the plaintiffs.

At the relevant times, plaintiffs were both employees of defendant Cornell University. Plaintiff John Cleveland had worked as a mail courier for over 20 years and had an unblemished employment record. Plaintiff Thomas Parkin had worked for more than eight years as a delivery driver for the university’s print shop with one minor reprimand in his record. Both Parkin and Cleveland were visible and vocal members of the local United Auto Workers Union which, at the time these events occurred, was in the midst of long and bitter negotiations with the university administration. This action was instituted after plaintiffs were arrested and charged by university officials with stealing four boxes of envelopes from the print shop. Plaintiffs claimed that the criminal charges were brought to punish them for their union activities.

The envelopes were delivered at Parkin’s direction to the building in which Cleveland worked and left with Cleveland’s supervisor with instructions to give them to Cleveland. The supervisor did so but, apparently concerned that the envelopes were not accompanied by delivery slips, he also notified his supervisor, defendant John Cerio. Cerio, in turn, notified the print shop manager, who stated that he had not authorized the delivery. When confronted by Cerio, Cleveland explained that he had simply requested samples of envelopes from the print shop on behalf of an Alumni House employee whom he had encountered on his mail route. He had relayed the request to Parkin and some other print shop employees, who had mistakenly sent cartons of envelopes instead of individual samples.

At the time, Cerio removed two of the four boxes from Cleveland’s mail truck. Cleveland later testified that Cerio had assented to his request to retain the other two boxes to show the Alumni House employee. Cerio, on the other hand, claimed that he allowed Cleveland to take a few individual envelopes from the boxes that he had seized, but that he was not then aware of the other two boxes and that Cleveland had concealed their existence.

When Parkin and the other print shop employees involved were questioned by the print shop manager, they confirmed Cleveland’s story that he had requested samples of envelopes on behalf of a woman who worked at Alumni House.

University officials discussed the matter and ordered an investigation by the university’s public safety department. The officer assigned to the investigation spent approximately 15 to 20 minutes interviewing four Alumni House employees to determine whether someone in that office had requested envelope samples and an additional two hours reviewing Cerio’s written statements and meeting with defendant Ronald Mathews, the director of support services. That was apparently the extent of the investigation.

Two weeks later, just two days after Parkin and Cleveland participated in a major job action, including picketing, a "dine-in” and a rally at which Parkin spoke, plaintiffs were separately arrested, taken to the public safety offices, and confronted by Mathews. Mathews told them that if they did not resign, they would be fired and prosecuted for the theft of the envelopes. Plaintiffs refused to resign. They were then fired, fingerprinted, photographed and given appearance tickets to appear in Town Court on September 2. Both were charged with petit larceny; Cleveland was additionally charged with possession of stolen property. They appeared in Town Court on the scheduled date and again a week later. Both appearances resulted in adjournment.

Following their discharge from employment, Parkin and Cleveland filed grievances through their union. By decision dated September 3, an associate university vice-president sustained their grievances to the extent of withdrawing the termination letters and reinstating them both with back pay, but ordered that written warnings be placed in both of their personnel files. On September 30, the criminal charges were dismissed at the instance of the university.

Thereafter, plaintiffs commenced this action asserting, insofar as relevant here, causes of action for false arrest, malicious prosecution, and abuse of process. The central issue at trial was whether, at the time the charges were brought against plaintiffs, defendants had probable cause to believe that the crimes charged had been committed by plaintiffs. Defendants contended that this issue presented a question of law to be determined by the court. The trial court ruled, however, that the question should be determined by the jury.

Much of the testimony in this regard focused on the delivery slip system used by the university for routing materials throughout the campus. For their part, plaintiffs and witnesses testifying on their behalf claimed that deliveries without slips were commonplace and that, in fact, delivery slips were infrequently used by the print shop in connection with supplies like envelopes, as distinguished from printing work ordered by customers. These witnesses also testified that they were not aware of any employee being disciplined for failing to use delivery slips. Defendants, on the other hand, claimed that it was highly unusual for materials to be delivered without documentation.

At the close of plaintiffs’ evidence and again after the completion of all evidence, defendants moved for directed verdicts dismissing the complaint. These motions were denied and the jury, as noted, found in favor of plaintiffs on the three relevant causes of action. The jury awarded each plaintiff $100,000 in compensatory damages and $100,000 in punitive damages. In response to written interrogatories, the jury specifically found that defendants lacked reasonable cause to believe that plaintiffs had committed a crime, that defendants acted maliciously in initiating the prosecution and that defendants used the legal process for a purpose other than that for which it was intended. It is clear that the jury believed, in the words of the court’s instruction, that the charges were brought by defendants "for the purpose of interference with and obstruction of legitimate union activities, to punish union members’ activities”.

On defendants’ appeal, the Appellate Division reversed and dismissed the complaint (164 AD2d 240). That court concluded that no material issues of fact were in dispute on the question of probable cause and that the issue, therefore, should not have been submitted to the jury. Instead, the court held, probable cause was established as a. matter of law and a directed verdict in defendants’ favor should have been ordered at the close of plaintiffs’ case with respect to the false arrest and malicious prosecution claims. As for the abuse of process claim, the court held that plaintiffs failed to plead or prove actual or special damages and additionally failed to show improper use of process after its issuance.

We conclude first that the Appellate Division erred in dismissing plaintiffs’ causes of action for false arrest and malicious prosecution. In this context, the issue of probable cause is a question of law to be decided by the court only where there is no real dispute as to the facts or the proper inferences to be drawn from such facts (Veras v Truth Verification Corp., 87 AD2d 381, 384, affd 57 NY2d 947). Where there is "conflicting evidence, from which reasonable persons might draw different inferences * * * the question [is] for the jury” (id., at 384).

In the present case, the evidence at trial gave rise to a number of factual disputes bearing on the issue of probable cause, notably the question whether and to what degree departures from the university’s delivery slip system were commonplace and, consequently, what inference should reasonably have been drawn by defendants from plaintiff Cleveland’s possession of four boxes of university-owned envelopes without the appropriate documentation.

Also relevant to the issue and disputed at trial was whether, after two of the boxes were retrieved by Cerio, Cleveland had concealed the other two boxes or had, instead, retained them with Cerio’s permission. Both of these factual disputes bear directly on whether reasonable persons would have concluded from the circumstances known to defendants that plaintiffs harbored the intent required to establish petit larceny — the "intent to deprive another of property or to appropriate the same to himself or to a third person” (Penal Law § 155.05 [1]) —or whether instead, reasonable persons would have concluded that plaintiffs, as they claimed, intended to return the envelopes after accommodating another university employee’s unremarkable request to view samples.

It is noteworthy in this regard that the public safety officer assigned to the case explained his less than diligent efforts to investigate the plaintiffs’ story by stating his erroneous belief that the plaintiffs’ intentions were irrelevant. In his view, plaintiffs’ removal of the envelopes from the print shop without authorization constituted larceny regardless of their innocent intentions.

Given these factual disputes and the variety of inferences that could be drawn from them, the issue of probable cause could not be resolved as a matter of law and Supreme Court properly submitted the question to the jury.

We also conclude that the Appellate Division erred in dismissing plaintiffs’ cause of action for abuse of process. We note first our disagreement with that court’s conclusion that plaintiffs failed to plead and prove actual or special damages. To the contrary, both plaintiffs testified that they had incurred legal expenses in connection with their defense of the criminal charges brought against them.

The Appellate Division’s alternative holding that abuse of process requires some improper conduct after issuance of process finds support in the language of several of our cases. We have noted several times that "[t]he gist of the action for abuse of process lies in the improper use of process after it is issued” (Dean v Kochendorfer, 237 NY 384, 390; see, Curiano v Suozzi, 63 NY2d 113, 117; Hauser v Bartow, 273 NY 370, 373). It is not clear, however, whether this language should be viewed as a strict and limiting definition of the tort or whether it is merely illustrative.

In none of the cases from this Court cited by the Appellate Division or by defendants was an otherwise viable abuse of process claim defeated simply because no improper conduct occurred after issuance of the process. Thus, nothing in this Court’s holdings would seem to preclude an abuse of process claim based on the issuance of the process itself. We leave the question open for the present, however, because we conclude that this issue was not properly before the Appellate Division and could not serve as a predicate for dismissing the abuse of process cause of action.

Defendants never claimed at trial or in their posttrial motion that plaintiffs’ proof was deficient because it failed to establish improper conduct after process was issued. Defendants’ motions all focused on the probable cause issue. The court’s instruction on the abuse of process cause of action, which was taken verbatim from defendants’ request to charge, required the jury to find only that defendants brought the charges "for the purpose of interference with and obstruction of legitimate union activities, to punish union members’ activities.” No exception to the charge on abuse of process was registered by defendants.

Under these circumstances, defendants cannot be heard to argue on appeal nor can the Appellate Division or this Court determine that plaintiffs were required to prove more (see, Bichler v Lilly & Co., 55 NY2d 571, 584). Inasmuch as plaintiffs’ evidence was sufficient to support the jury’s verdict under the law as charged, without objection, in this case, there is no basis for dismissing this cause of action (id.).

For these reasons, the Appellate Division erred in dismissing the complaint with respect to all three causes of action, and the case must be remitted for that court to consider issues raised but not previously considered on the appeal to that court.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the case remitted to the Appellate Division for further proceedings in accordance with this opinion.

Judges Simons, Kaye, Alexander, Titone and Bellacosa concur; Judge Hancock, Jr., taking no part.

Order reversed, etc.

      . Plaintiffs also asserted causes of action for libel and slander, but the jury found in favor of defendants on those counts.

      . In connection with its holding that plaintiffs had not established improper use of process after its issuance, the Appellate Division stated that "[p]laintiffs never appeared in Town Court.” (164 AD2d, at 245.) As noted above, however, plaintiffs testified otherwise.