author: Smith, J. Titone, J.

text:
    In the Matter of Jon C. Boyd, Respondent, v Thomas A. Constantine, as Superintendent of the New York State Police, Appellant.
    Argued February 9, 1993;
    decided April 8, 1993

      POINTS OF COUNSEL

      Robert Abrams, Attorney-General, Albany (Leslie B. Neustadt, Jerry Boone and Peter H. Schiff oí counsel), for appellant.
    I. The evidence suppressed in an unrelated criminal proceeding was properly admitted at petitioner’s administrative hearing because there would be no secondary deterrent effect in applying the exclusionary rule and the social cost clearly outweighs the benefits of applying the rule to this disciplinary proceeding of a State Trooper. (People v Drain, 73 NY2d 107; People v McGrath, 46 NY2d 12, 440 US 972; Matter of Mancini v Codd, 46 NY2d 12; People ex rel. Maiello v New York State Bd. of Parole, 65 NY2d 145; People v Young, 55 NY2d 419, 459 US 848; People v Johnson, 66 NY2d 398; United States v Calandra, 414 US 338; People v Adams, 53 NY2d 1, 454 US 854; Stone v Powell, 428 US 465; Matter of Stedronsky v Sobol, 175 AD2d 373, 78 NY2d 864.) II. The determination is supported by substantial evidence on the record. (People ex rel. Vega v Smith, 66 NY2d 130; Matter of Pell v Board of Educ., 34 NY2d 222; 300 Gramatan Ave. Assocs. v State Div. of Human Rights, 45 NY2d 176; Matter of Perez v Wilmot, 67 NY2d 615; Matter of Collins v Codd, 38 NY2d 269; Matter of Berenhaus v Ward, 70 NY2d 436; Matter of Silberfarb v Board of Coop. Educ. Servs., 60 NY2d 979; People v Reisman, 29 NY2d 278, 405 US 1041.) III. The penalty of dismissal is not disproportionate to the charges and the penalty should be sustained. (Trotta v Ward, 77 NY2d 827; Matter of Pell v Board of Educ., 34 NY2d 222; Matter of Riforgiato v Board of Educ., 86 AD2d 757; Matter of Egan v Newman, 92 AD2d 1007; Schaubman v Blum, 49 NY2d 375; Matter of S. & J. Pharmacies v Axelrod, 91 AD2d 1131; Matter of Alfieri v Murphy, 38 NY2d 976; Matter of Perez v Ward, 157 AD2d 609; Matter of Pachucki v Walters, 57 AD2d 1011, 42 NY2d 808; Matter of Beikrich v New York State Racing & Wagering Bd., 48 AD2d 954.)

      Lipsitz, Green, Fahringer, Roll, Salisbury & Cambria, Buffalo (John A. Collins and Vincent A. Tobia of counsel), for respondent.
    I. The Court below’s order should be affirmed, as the Court properly held that, under New York law, evidence obtained by the Buffalo police department in violation of petitioner’s right to be free of unlawful searches and seizures should not have been admitted at petitioner’s disciplinary hearing. (Matter of Finn’s Liq. Shop v State Liq. Auth., 31 AD2d 15, 24 NY2d 647, 396 US 840; Matter of Leogrande v State Liq. Auth., 25 AD2d 225, 19 NY2d 418; United States v Janis, 428 US 433; People ex rel. Piccarillo v New York State Bd. of Parole, 48 NY2d 76; People ex rel. Matthews v New York State Div. of Parole, 58 NY2d 196; People v McGrath, 46 NY2d 12, 440 US 972; Matter of McPherson v New York City Hous. Auth., 47 AD2d 828; Matter of Gaglia v Starr, 59 AD2d 839; United States v Calandra, 414 US 338; Stone v Powell, 428 US 465.) II. If the charges against petitioner are sustained, the Court should nevertheless annul so much of the determination as imposed the penalty of dismissal. (Matter of Pell v Board of Educ., 34 NY2d 222; Matter of McDermott v Murphy, 15 AD2d 479, 12 NY2d 780; Trotta v Ward, 77 NY2d 827; Matter of Berenhaus v Ward, 70 NY2d 436; Matter of Nolan v Constantine, 166 AD2d 778; Matter of Garnes v New York State Police, 156 AD2d 907.)

      O. Peter Sherwood, Corporation Counsel of New York City (Ellen B. Fishman and Leonard Koerner of counsel), for City of New York, amicus curiae.

    The exclusionary rule should not have been applied to bar consideration at a State Police disciplinary hearing of relevant, trustworthy evidence obtained by Buffalo police officers using unconstitutional methods. (People ex rel. Piccarillo v New York State Bd. of Parole, 48 NY2d 76; United States v Calandra, 414 US 338; People ex rel. Maiello v New York State Bd. of Parole, 65 NY2d 145; Mapp v Ohio, 367 US 643; Stone v Powell, 428 US 465; United

      States v Peltier, 422 US 531; Tirado v Commissioner of Internal Revenue, 689 F2d 307, 460 US 1014; United States v Janis, 428 US 433; People v Drain, 73 NY2d 107; People v McGrath, 46 NY2d 12, 440 US 972.)
   OPINION OF THE COURT

Smith, J.

The issue presented on this appeal is whether evidence that is the product of an unlawful search by the Buffalo City Police, and is suppressed in a criminal prosecution, may be used in an administrative proceeding commenced by the Division of State Police.

On September 14, 1989, at approximately 2:00 a.m., two Buffalo City police officers observed petitioner and another man in the back seat of a parked car in a parking lot. The officers ordered the men out of the car and, upon a search, retrieved a small plastic baggie of marihuana from a console between the two front seats. Petitioner then identified himself as a State Trooper and stated "I’ve got a problem. * * * [T]he grass is my girl friend’s. She smokes the stuff all the time. * * * [P]lease g[i]ve me a break.” The officers issued petitioner a summons charging him with unlawful possession of marihuana (Penal Law § 221.05) and directing him to appear in Buffalo City Court the following day. Petitioner’s superiors were advised of the charge.

On September 26, 1989, the Superintendent of State Police served petitioner with charges and specifications alleging that he had violated State Police regulations by knowingly and unlawfully possessing marihuana and by acting in a manner tending to bring discredit upon the Division of State Police. Petitioner denied the charges and requested a hearing.

Before the hearing was held, Buffalo City Court granted the motions by petitioner to suppress all of the evidence and/or information that was acquired as a result of the search of the vehicle and to dismiss the criminal charge against him.

At the administrative hearing, petitioner objected to the admission of the marihuana and to any testimony concerning it. The Hearing Officer overruled the objection, found petitioner guilty of all the charges, and recommended that petitioner be dismissed from the Division of State Police. Respondent Superintendent of State Police accepted the recommendation and dismissed petitioner. Petitioner then commenced this CPLR article 78 proceeding, seeking to annul the determination.

The Appellate Division annulled the determination, finding that it was "based upon evidence obtained through an illegal search and seizure * * * and [that] the fruits of an illegal search may not be used to support the imposition of civil penalties” (180 AD2d 186, 188). Two Justices dissented. We now reverse the judgment of the Appellate Division and reinstate the determination for the reasons that follow.

Respondent Superintendent maintains that he is not seeking a broad ruling that the exclusionary rule is not applicable to all disciplinary proceedings of police officers. Rather, respondent contends, applying the balancing approach endorsed by this Court, there would be no secondary deterrent effect in applying the exclusionary rule to this administrative proceeding, and the burden of excluding the evidence outweighs the benefit to society of obtaining the truth regarding a State Trooper’s possession of marihuana. Relying on Matter of Finn’s Liq. Shop v State Liq. Auth. (24 NY2d 647), People v McGrath (46 NY2d 12), and People ex rel. Piccarillo v New York State Bd. of Parole (48 NY2d 76), petitioner urges that unlawfully seized evidence must be excluded from police disciplinary proceedings.

This Court decided three cases in Matter of Finn’s Liq. Shop (supra). In the first case, Matter of Finn’s Liq. Shop, after unlawfully searching a coat in the back room of a bar, two investigators from the State Liquor Authority recovered sales slips indicating that liquor had been sold, impermissibly, on credit. The sales slips were admitted at a hearing before the State Liquor Authority and, relying on the evidence, the Authority suspended the petitioner’s liquor license for 10 days. This Court held that the search and seizure of the sales slips violated the Fourth Amendment and that the Authority’s determination, grounded on the evidence seized, must fall (see, id., at 658-659). In Matter of La Penta v State Liq. Auth., after using an illegal wiretap, the police procured evidence that the defendant had been involved in gambling. The evidence was admitted at a license revocation hearing held by the State Liquor Authority. CPLR 4506 expressly prohibited the use of evidence obtained through an illegal wiretap in any civil or criminal action, proceeding, or hearing. The Court concluded that evidence seized in violation of that statute is inadmissible for any purpose (see, id., at 659-661). In Matter of Malik v New York State Liq. Auth., two City of Buffalo police officers unlawfully searched the petitioner’s premises and seized evidence that bookmaking activities had taken place on the premises. The evidence, which was suppressed in an ensuing criminal action, was admitted in a hearing to revoke the petitioner’s license held before the State Liquor Authority. In concluding that the evidence was inadmissible in the administrative hearing, the Court stated that although the City of Buffalo Police and the State Liquor Authority may be treated, for other purposes, as independent parties, "this can hardly be the case where they are both seeking to use the same police officials as their agents to gather evidence” (id., at 662).

While the Court in Matter of Finn’s (supra) applied the exclusionary rule to exclude evidence that had been unlawfully seized by municipal police officers, the Court did so because the police officers were acting as agents of the State Liquor Authority. The Court noted that the State Liquor Authority has the power to revoke, suspend or cancel licenses, as well as impose penal sanctions on licensees who violate the Alcoholic Beverage Control Law (24 NY2d, at 654, n 1) and that, in two of the three cases, the municipal police officers were acting as agents of the State Liquor Authority in seeking to enforce the Alcoholic Beverage Control Law (see, id., at 654-655). The Court reasoned that if the exclusionary rule had not been applied, "there would be no way to protect licensees from abuse and harassment at the hands of [Authority’s] employees or agents” (id., at 654). The Court stated further that "[t]here can be no justification for any State agency, charged with enforcement of the law, to rely, in fulfilling its function, upon the unlawful and unconstitutional acts of its agents” (id., at 662-663).

The present case is clearly distinguishable from Matter of Finn’s (supra). Here, nothing in the record indicates that the Buffalo City Police were acting as agents of the Division of State Police. Thus, it cannot be said that the Division of State Police, in seeking to discipline petitioner for unlawful possession of marihuana, relied upon the unlawful and unconstitutional acts of its agents.

People ex rel. Piccarillo (supra) does not apply to the circumstances in this case. There, the New York City Police Department sought to admit in a parole revocation hearing evidence seized unlawfully during an automobile search. The Court likened a parole revocation hearing to a criminal action and held that "the exclusionary rule proscribes the use of illegally seized evidence at a parole revocation hearing” (id., at 83).

The deterrence analysis outlined in People v McGrath (supra), the third case relied upon by petitioner, reflects the Court’s recent approach to deciding whether the exclusionary rule should be applied in administrative proceedings. In recent cases, the Court has stated that "the application and scope of the exclusionary rule is ascertained by balancing the foreseeable deterrent effect against the adverse impact of suppression upon the truth-finding process” (People v Drain, 73 NY2d 107, 110), and has declined to suppress relevant evidence if little or no deterrent benefit could be anticipated from the exclusion (see, e.g., People v Arnau, 58 NY2d 27; People v Rogers, 52 NY2d 527).

In People v McGrath (supra), the Court considered whether in a criminal contempt proceeding the Fourth Amendment requires suppression of a defendant’s testimony before the Grand Jury as the fruit of an illegal wiretap. In the companion case, Matter of Mancini v Codd, the Court considered whether in a civil disciplinary proceeding in which a policeman is charged with perjury, the Fourth Amendment requires the suppression of his testimony before the Grand Jury, as well as the testimony of witnesses at the subsequent disciplinary hearing, as the fruit of an illegal wiretap. Balancing the probable deterrent effect of the exclusionary rule against the detrimental impact upon the truth-finding process, the Court held that "the insubstantial benefit to be gained at the expense of the truth-finding process by application of the exclusionary rule militates against suppression of [the Grand Jury] testimony” (id., at 32).

The Court also applied the deterrence analysis in People v Drain (supra). There, the defendant was arrested and charged with two counts of misdemeanor possession of a controlled substance after a State Trooper observed 13 packages containing $815,000 in cash, a checkbook, and small quantities of controlled substances in the trunk of his vehicle. The defendant was later subpoenaed to testify before a Grand Jury regarding the cash and certain checkbook entries. He was granted immunity but allegedly testified falsely before the Grand Jury. The misdemeanor charges against him were dropped after it was determined that the evidence had been unlawfully seized. He was indicted for perjury. The defendant sought to suppress the checkbook and the cash. This Court concluded that suppression was not required since "[i]t is unreasonable * * * to believe that the police, in the future, will jeopardize a direct prosecution in hopes that an immunized defendant, aware that the authorities have discovered evidence to refute his statement, will perjure himself before the Grand Jury” (id., at 112).

Applying the deterrence analysis here, we conclude that the evidence seized by the Buffalo City police officers should have been admitted in the State Police’s administrative proceeding. The Buffalo City Police could not have foreseen, when they searched the vehicle, that defendant would be subject to an administrative disciplinary proceeding by the Division of State Police. They did not know, prior to the search, that defendant was a State Trooper. Nor were the Buffalo City police officers acting as agents of the Division of State Police. Thus, only negligible deterrence would result from the exclusion of the evidence. On the other hand, the suppression of the evidence would have a significant adverse impact upon the truth-finding process in administrative proceedings concerning police officers involved in drug-related incidents. Stated differently, the benefit to be gained from precluding police officers, who unlawfully possess controlled substances, from making arrests — including arrests for drug-related offenses — clearly outweighs any deterrent effect that may arise from applying the exclusionary rule to preclude evidence unlawfully obtained by Buffalo City police officers and sought to be admitted by the Division of State Police in an administrative disciplinary proceeding.

Respondent correctly asserts that the determination that petitioner knowingly possessed marihuana is supported by substantial evidence. Substantial evidence "means such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact” (300 Gramatan Ave. Assocs. v State Div. of Human Rights, 45 NY2d 176, 180). "The presence of a controlled substance in an automobile * * * is presumptive evidence of knowing possession thereof by each and every person in the automobile at the time such controlled substance was found” (Penal Law § 220.25 [1]).

Finally, the penalty of dismissal is not so disproportionate to the offense, in light of all the circumstances, as to be shocking to one’s sense of fairness (see, Matter of Pell v Board of Educ., 34 NY2d 222).

Accordingly, the judgment of the Appellate Division should be reversed, with costs, respondent’s determination reinstated, and the petition dismissed.

Titone, J.

(dissenting). In Matter of Finn’s Liq. Shop v State Liq. Auth. (24 NY2d 647), this Court held, without equivocation, that the exclusionary rule applies to administrative proceedings as well as to criminal prosecutions. Underlying that holding was the Court’s expressed concern that the deterrent effect of the exclusionary rule would be diluted if the fruits of illegal official activity could be used "in order to impose [administrative] sanctions upon the persons whose constitutional rights have been violated” (id,., at 655). Now, a majority of the present Court has chosen to read Matter of Finn’s in the narrowest possible way, limiting its holding to cases in which the law enforcement officials who acted illegally were actually and consciously acting on behalf of, or as agents for, the administrative agency that seeks to use the tainted evidence in its civil proceeding. In so ruling, the majority has created a giant loophole in the exclusionary rule and thereby drastically undermined its salutary deterrent purposes. Because the majority’s analysis establishes yet another "silver platter” for the official use of constitutionally tainted evidence (see generally, Elkins v United States, 364 US 206), I must, respectfully, dissent.

Initially, the majority’s holding is neither compelled nor supported by the existing case law. Since the Court’s decision in Matter of Finn’s Liq. Shop v State Liq. Auth. (supra), the widely recognized general rule has been that the State may not "avail itself of the fruits of * * * unlawful activity,” even in civil disciplinary proceedings, when its agents have traversed the boundaries established by the State and Federal Constitutions (id., at 655; see, People ex rel. Piecarillo v New York State Bd. of Parole, 48 NY2d 76). As was noted by former Justice Breitel in Matter of Leogrande v State Liq. Auth. (25 AD2d 225, 232, revd on other grounds 19 NY2d 418, cited with approval in Matter of Finn’s Liq. Shop v State Liq. Auth., supra, at 655): "The exclusionary rule rests on a theory of deterrence; that policy would not be served if the illegal official activity could be used, despite unavailability in criminal proceedings, to effect parallel sanctions of forfeiture in an administrative proceeding.”

The Court recognized a narrow exception to these principles in People v McGrath (46 NY2d 12, cert denied 440 US 972), on which the majority now relies. However, the holding in McGrath and in its companion civil case, Matter of Mancini v Codd, rested on the straightforward conclusion that the connection between the illegality and the disputed evidence, i.e., certain Grand Jury testimony that was procured indirectly through the use of illegal wiretap information, was too attenuated to warrant application of the exclusionary rule (see, 46 NY2d, at 27-31). Indeed, the Court’s refusal to extend the exclusionary rule to such facts applied both to the criminal proceeding in McGrath and the civil disciplinary proceeding in Mancini. Thus, it is clear that the McGrath holding was premised on the ordinary principles of attenuation analysis that are often invoked in cases involving the scope of the exclusionary rule (see, e.g., United States v Ceccolini, 435 US 268; Brown v Illinois, 422 US 590) — and not on any special concerns about the civil use of evidence that has been suppressed in related criminal proceedings.

Significantly, the McGrath Court was at pains to distinguish the cases before it, which involved "collateral * * * proceeding^] such as * * * prosecution[s] for perjury or [evasive] contempt,” from cases such as Matter of Finn’s Liq. Shop (supra), in which the disputed evidence "consisted of proof of the underlying violation with which [the party to be administratively disciplined] was charged” (46 NY2d, at 31). The same observation can be made in this case, where the evidence petitioner seeks to exclude consists of proof of the underlying violation — possession of marihuana — with which he has been charged.

The Court’s holding in People v Drain (73 NY2d 107), the other case on which the majority relies, is equally unhelpful here. In Drain, the Court merely extended the holding in McGrath to permit the use of evidence obtained directly from police misconduct, as well as evidence indirectly resulting from such misconduct, in a collateral perjury prosecution arising out of the accused’s false Grand Jury testimony about that evidence. The Court’s decision was based on the proposition that suppression in this context would have, at best, marginal deterrent value because of the unforeseeability of the chain of events that led to the defendant’s perjury prosecution (see, 73 NY2d, at 112). In contrast, there is nothing unforeseeable about the likelihood of administrative disciplinary proceedings following a police officer's illegal arrest on drug possession charges, such as occurred in this case. Furthermore, there is nothing "collateral” about an administrative proceeding that seeks to impose civil penalties for the very misconduct for which criminal prosecution has been foreclosed by virtue of a suppression ruling.

Finally, as is apparent from a review of the relevant cases, the Court has never before suggested, as this majority now does, that the seminal decision in Matter of Finn’s (supra) was meant to be limited to situations in which the officers who conducted themselves illegally were acting as agents of the administrative agency in question. Indeed, such a view of the Court’s position would be difficult to reconcile with the holding in Matter of Malik v New York State Liq. Auth., one of the companion cases in Matter of Finn’s Liq. Shop (supra). In Malik, which also involved misconduct by the Buffalo City Police, there had been no prior contact between the municipal police department and the State licensing agency, and, as here, it was the State, not the local law enforcement authorities, who sought to admit the evidence in an administrative proceeding. Nonetheless, the Court held that the policies underlying the suppression rule foreclosed admission of the illegally obtained evidence at the State administrative hearing. Significantly, in reaching this conclusion, the Court did not rely on, or even allude to, the existence of any agency relationship between the Buffalo City Police and the State licensing entity. The omission of any discussion on the "agency” relationship question is particularly noteworthy, because Malik was clearly distinguishable from its companion cases, Matter of Finn’s and Matter of La Penta, by virtue of what is at least an apparent lack of an "agency” relationship between the officers who obtained the evidence and the entity that proposed to use it. Presumably, such a discussion would have been essential if the Matter of Finn’s Court deemed this factor to be dispositive, as the majority now contends. Given the circumstances in Malik and the absence of any analytical reference to the "agency” problem in that case, it seems clear that the statements from the Matter of Finn’s opinion that the majority quotes here (see, majority opn, at 194) are mere rhetorical flourishes that were never intended to have the critical legal significance that the majority now assigns them.

More fundamentally, the majority’s holding is jurisprudentially flawed because it drastically limits the class of administrative proceedings in which the exclusionary rule will apply in the future and reduces the general rule of suppression that was announced in Matter of Finn’s Liq. Shop (supra) to a minor footnote in the exclusionary rule’s history, having little practical significance. Indeed, the outcome in this case highlights pitfalls of the amorphous "balancing” approach, which requires the Court to measure the potential deterrent effect that a particular application of the exclusionary rule might have and then weigh the societal value of that application against the loss to society that inevitably results from the suppression of otherwise reliable evidence. Applied in certain marginal cases, this "balancing” approach can serve to weed out instances in which the deterrent value of the exclusionary rule is too insignificant to warrant the consequent impairment of the truth-finding process (see, e.g., People v Drain, supra; People v McGrath, supra). On the other hand, if applied as the sole guiding principle, the "balancing” approach, which has no real objective criteria, can lead to result-oriented decision-making and, ultimately, to the devaluation of the exclusionary rule as an important component of our system of constitutional enforcement.

The problem with a "balancing” approach is that there are no specific, uniformly applicable scales for measuring the relative weight to be assigned to the two factors that are being compared, i.e., the deterrent value of applying the exclusionary rule in the particular context and the loss to society arising from the suppression of otherwise probative evidence. The vocabulary of the "balancing” approach thus can be used to justify virtually any outcome, depending on the subjective beliefs that the individual decision-makers have about the merits of the exclusionary rule.

Furthermore, in most instances, the "balancing” approach is inherently weighted against application of the exclusionary rule, since it focuses on the facts in the individual situation before the Court rather than the broader societal concerns that led to the development of the suppression principle. As one noted commentator has observed, the exclusionary rule is aimed at general, not specific, deterrence, and its effectiveness depends upon removing the inducements to violate Fourth Amendment rights that may exist in the over-all system, rather than on sanctioning noncompliance in particular cases (1 LaFave, Search and Seizure § 1.7 [d], at 154 [2d ed], quoting United States v Peltier, 422 US 531, 557 [Brennan, J., dissenting]). A formula such as that utilized by the majority here, which weights deterrent value by considering only the likely effect of penalizing misconduct in the specific context, almost necessarily depreciates that side of the equation, making it all but impossible to overcome the self-evidently weighty value of assuring the accuracy of the truth-finding process (majority opn, at 196).

In this case, for example, the majority has focused on what these particular arresting officers "could * * * have foreseen, when they searched [petitioner’s] vehicle” (majority opn, at 196), rather than on the broader deterrent value of a rule that, in general, precludes the use of illegally obtained evidence in official proceedings aimed at penalizing the accused’s misconduct. In so doing, the majority has trivialized the exclusionary rule and completely disregarded the rule’s true purpose — to remove any significant incentives that our legal system may provide to law enforcement personnel who may be inclined to violate suspects’ constitutional rights (Mapp v Ohio, 367 US 643, 656).

Manifestly, the possibility that the fruits of illegal police conduct may be used to extract a "parallel” civil penalty despite the unavailability of criminal sanctions provides a material incentive to disobey constitutional strictures (see, Matter of Leogrande v State Liq. Auth., supra, at 231-232). It matters not that the precise civil penalty, e.g., dismissal from employment or loss of license, may not have been foreseen, "for it is nonetheless true that admission of the evidence would constitute an 'inducement to subterfuge and evasion’ ” (1 LaFave, op. cit., at 154). In this highly regulated society, the likelihood that some civil consequence will flow from a violation of penal law is sufficiently substantial to furnish an inducement to official misconduct. As the Court noted in Matter of Finn’s Liq. Shop (supra, at 653), "[t]o the extent that the State, or its agents, can bypass the deterrent effect of the exclusionary rule by using the fruits of an illegal search in a 'civil’ or 'administrative’ proceeding, the incentive for enforcement and investigative personnel to exceed constitutional limitations on their activity remains and the effectiveness of the rule as a deterrent is diminished.”

In sum, there is simply no precedent for making the availability of the exclusionary rule turn on the nature of the charged misconduct or the identity of the party to be charged. Those considerations did not play a part in the decisions in People v Drain (supra), Matter of Finn’s (supra), People v McGrath (supra) or in McGrath’s companion case, Matter of Mancini v Codd, in which the petitioner also happened to be a police officer. They should not be introduced into the analysis here, since the use of such criteria further promotes subjectivity in the decision-making process.

In sum, there has been nothing in the development of the law in the 24 years since Matter of Finn’s Liq. Shop (supra) was decided that undermines the elemental wisdom of that observation. Neither the "balancing” approach invoked in People v Drain (supra) nor the "attenuation” analysis utilized in People v McGrath (supra) diminishes the basic tenet that the purposes of the exclusionary rule are well served by its application in the administrative context. Since the majority’s holding in this case accords little weight to that important tenet and, in fact, all but overrides it, I cannot concur in the Court’s decision to reverse. In my view, the court below properly held that the evidence resulting from the unlawful search of petitioner’s car should not have been admitted at the administrative disciplinary hearing and, consequently, its judgment should be affirmed.

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

Judgment reversed, etc.


source: Caselaw Access Project

author: Bellacosa, J.

license: Public Domain

text:
    Geca Stewart et al., Respondents, v Volkswagen of America, Inc., et al., Defendants, and Volkswagen Werk Aktien-Gesellschaft, Appellant.
    Argued March 30, 1993;
    decided April 29, 1993

      POINTS OF COUNSEL

      Herzfeld & Rubin, P. C., New York City (Herbert Rubin, David B. Hamm and Linda M. Brown of counsel), for appellant.
    I. Plaintiffs’ purported service under Business Corporation Law § 307 is totally irreconcilable with the terms and intent of the statute, and should not be sustained. (Flick v Stewart-Warner Corp., 76 NY2d 50; Landsdowne Fin. Serv. v Binladen Telecommunications Co., 95 AD2d 711; Macchia v Russo, 67 NY2d 592; Feinstein v Bergner, 48 NY2d 234; Adirondack Tr. Lines v Lapaglia, 128 AD2d 228; Elliot v James, 97 AD2d 428; Newman v Searle & Co., 50 AD2d 574; Koepke v Bilnor Corp., 55 Misc 2d 928; Taca Intl. Airlines v Rolls-Royce of England, 15 NY2d 97; Rabinowitz v Kaiser-Frazer Corp., 198 Misc 707, 278 App Div 584, 302 NY 892.) II. In any event, the Court below erred in concluding that, as a matter of law, VGA is an "involuntary agent for service of process” for VWAG. (Luciano v Garvey Volkswagen, 131 AD2d 253; Kaufman v Lilly & Co., 65 NY2d 449; Derso v Volkswagen of Am., 159 AD2d 937; Roorda v Volkswagenwerk AG., 481 F Supp 868; Volkswagenwerk AG. v Beech Aircraft Corp., 751 F2d 117; Freeman v Gordon & Breach, 398 F Supp 519; Delagi v Volkswagenwerk AG, 29 NY2d 426; Suydam v Barber,
      18 NY 468; Boorman v Deutsch, 152 AD2d 48; Harvey v Amateur Hockey Assn., 171 AD2d 464.)

      Montfort, Healy, McGuire & Salley, Garden City (E. Richard Rimmels, Jr., of counsel), for respondents.
    I. The record fails to demonstrate a registered address. II. There is no priority of addresses under Business Corporatioh Law § 307. III. The mailing comported with the statute. (Delagi v Volkswagenwerk AG, 29 NY2d 426.)
   OPINION OF THE COURT

Bellacosa, J.

Appellant-defendant Volkswagen A.G. (VWAG) appeals by leave of the Appellate Division from an order of that Court which affirmed Supreme Court’s denial of its motion to dismiss the action. VWAG claimed respondents-plaintiffs failed to acquire personal jurisdiction over it in accordance with Business Corporation Law § 307 (b) (2). We conclude that plaintiffs have not satisfied the statute’s strictly specified service of process prescriptions necessary to acquire jurisdiction over a foreign corporation not authorized to do business in New York. We therefore reverse, answer the certified question in the negative, and grant the motion to dismiss the action.

Plaintiffs sued for damages for personal injuries arising out of automobile accidents, allegedly caused by the "unintended acceleration” of Audi 5000 vehicles manufactured by VWAG, a German corporation. The vehicles were exported to the United States, title was transferred to Volkswagen of America, Inc. (VGA), and they were then sold to World Wide Volkswagen Corp., which distributed them to Audi dealers, who sold them to consumers.

Plaintiffs sought to secure jurisdiction over VWAG by serving the summons and complaint on the New York Secretary of State pursuant to Business Corporation Law § 307. That jurisdiction/service of process section allows for service on the Secretary of State as the "agent” of a foreign corporation not authorized to do business in New York. The statute is precise as to the sequence of service and notice actions necessary to initiate and complete acquisition of jurisdiction. A party must first serve the Secretary of State, and then either deliver personally a copy of the process to the foreign corporation or send a copy of the process to:

• "such foreign corporation by registered mail with return receipt requested, at the post office address specified for the purpose of mailing process, on file in the department of state, or with any official or body performing the equivalent function, in the jurisdiction of its incorporation,”
"or if no such address is there specified, to its registered or other office there specified,”
"or if no such office is there specified, to the last address of such foreign corporation known to the plaintiff.” (Business Corporation Law § 307 [b] [2] [emphasis added].)

In this case, plaintiffs served the Secretary of State but did not deliver a copy personally to the foreign corporation, or send a copy to the foreign corporation in accordance with the order or specification of the statutory delineation. Instead, they mailed a summons and complaint to: "Volkswagen of America on behalf of Volkswagenwerk-Aktien Gesellschaft, 600 Sylvan Avenue, Englewood Cliffs, N.J. 07632”. The complaint indicated that VWAG "was and is a corporation organized and existing under the laws of the Federal Republic of West Germany,” and an attached rider gave the post office address of VWAG as "Rechtswesen Ausland, Wolfsburg 3180 West Germany”. Plaintiffs urge that their choice for notification to VWAG complied with Business Corporation Law § 307 (b) (2) and the courts below have sustained their jurisdiction claim.

The dispositive issues are: (1) whether plaintiffs may properly rely on and drop down to the last service completion specification in Business Corporation Law § 307 (b) (2), i.e., mailing to "the last address of such foreign corporation known to the plaintiffs],” without attempted satisfaction or explanation of the preceding service prescriptions; and (2) whether such mailing option, if authorized, complied with the direction that it be effected to the "address of such foreign corporation”.

VWAG moved pursuant to CPLR 3211 (a) (8) to dismiss the complaint against it, on the ground that plaintiffs did not secure personal jurisdiction over it because plaintiffs’ attempted service of process on it did not comply with Business Corporation Law § 307 (b) (2). VWAG further maintained that as a foreign corporation incorporated in West Germany not authorized to do business in New York, it must be served in accordance with the Hague Service Convention. Concededly this was not done, but we need not address that issue since we conclude that Business Corporation Law § 307 (b) (2) was not otherwise satisfied and the action should be dismissed.

Supreme Court denied VWAG’s motion to dismiss, stating that VO A was a proper agent for completion of service on and notice to VWAG. The Appellate Division affirmed the order, stating that personal jurisdiction is acquired over a foreign corporation pursuant to Business Corporation Law § 307 (b) (2) by service made on a local corporation so controlled by the foreign corporation that the local corporation can be deemed a mere department of the foreign corporation. The local corporation in such instance is deemed the involuntary agent of the foreign corporation, "[t]hus, if VOA is a mere department of VWAG, VWAG was properly served under Business Corporation Law § 307” (Stewart v Volkswagen of Am., 181 AD2d 4, 7). That Court then cited a number of non-New York cases, as well as Luciano v Garvey Volkswagen (131 AD2d 253) for the proposition that VOA is a mere department of VWAG. Other cases (Brandt v Volkswagen AG., 161 AD2d 1149; Derso v Volkswagen of Am., 159 AD2d 937) which support a contrary proposition were distinguished because "in each of those cases, unlike the case at bar, VWAG raised a factual question, and presented evidence, as to whether VOA was a mere department of VWAG” (Stewart v Volkswagen of Am., 181 AD2d, at 8, supra).

The incontestable starting proposition in cases of this kind is that once jurisdiction and service of process are questioned, plaintiffs have the burden of proving satisfaction of statutory and due process prerequisites (see, Lamarr v Klein, 35 AD2d 248, affd 30 NY2d 757). Business Corporation Law § 307 establishes a mandatory sequence and progression of service completion options to acquire jurisdiction over a foreign corporation not authorized to do business in New York. We have made plain that these steps are "requirements of a jurisdictional nature which must be strictly satisfied” (Flick v Stewart-Warner Corp., 76 NY2d 50, 54). Thus, when VWAG contested plaintiffs’ effort to obtain New York jurisdiction over it by service on the New York Secretary of State, plaintiffs had to demonstrate not only that notice had in some manner been mailed to VWAG or some agent, but also that the specified steps for gaining jurisdiction by service and notice were precisely followed in the delineated sequence set forth in the statute.

Plaintiffs were obligated in the first instance to ascertain that there was no post office address specified for VWAG to receive process or other registered or office address for VWAG on file with the German equivalent of the Secretary of State before descending to the next level of notification options, i.e., mailing a copy of the process to "the last address [of VWAG] known to the plaintiff” (Business Corporation Law § 307 [b] [2]). They did not do so and claim they were under no obligation to proceed in this strict sequential pattern.

We conclude that plaintiffs’ efforts in this case suffer from two key deficiencies. First, plaintiffs do not even purport to satisfy the first two statutory specifications, claiming without justification or support that they have no burden to show attempted compliance with them. In effect, they take the position that they can choose randomly from the menu of the statute. Second, even if plaintiffs, for argument’s sake, were permitted to proceed directly to the end of subdivision (b) (2)’s "last known address” option, it was not correctly utilized because plaintiffs sent the copy of the process to VO A at its office in New Jersey "on behalf of’ VWAG. That is not VWAG’s "last known address,” as prescribed and contemplated by the statute, even if VO A is a mere department of VWAG. Besides, plaintiffs’ own rider to the summons and complaint shows that they possessed an address for VWAG in Germany. When a plaintiff chooses to try to acquire personal jurisdiction pursuant to Business Corporation Law § 307, which provides for service constructively on the Secretary of State, the provisions must be strictly complied with and a second constructive service mechanism is not authorized. The statute offers no alternatives for notification through an agent, whether involuntary or not, when jurisdiction is invoked initially by service on the Secretary of State, an involuntary and legally fictional agent in the first phase (see, Newman v Searle & Co., 50 AD2d 574; Koepke v Bilnor Corp., 55 Misc 2d 928).

We should note that the agency doctrine relied on below is also flawed because it is predicated on an inapposite set of relationships. The notion that service of process in accordance with a different statutorily prescribed method on a wholly owned subsidiary will effectuate service on a parent corporation and result in jurisdiction over the parent is of no consequence or aid to plaintiffs in this case (see, Taca Intl. Airlines v Rolls-Royce of England, 15 NY2d 97). Business Corporation Law § 307 is not simply a method for service on a corporation (contrast, CPLR 311 [1]). Rather, Business Corporation Law § 307 is a distinctive jurisdictional provision mandating that where there is a basis for general jurisdiction over an unauthorized foreign corporation under CPLR article 3, "process against such foreign corporation may be served upon the secretary of state as its agent” (Business Corporation Law § 307 [a] [emphasis added]). "Because the appointment of the Secretary of State as agent is a constructive rather than an actual designation, the statute contains procedures calculated to assure that the foreign corporation, in fact, receives a copy of the process” (Flick v Stewart-Warner Corp., 76 NY2d, at 56, supra), and "strict compliance with [those procedures] is required” (id., at 57).

Assuming they could somehow overcome all the noted deficiencies, plaintiffs make a last leap argument that "the last address of such foreign corporation known to the plaintiff” can be any address of the foreign corporation or its related entities and need not be the principal place of business of that corporation or, indeed, of such foreign corporation itself. They find support for this thesis on the sandy shoals of the Appellate Division conclusion that VOA is a mere department of VWAG. For plaintiffs, the New Jersey address of VOA which they attempted to use to satisfy the statute "is just as much a last known address as an address [of VWAG] in Germany”. We cannot agree because if this argument were accepted, it would desiccate the strict prescriptions of Business Corporation Law § 307 (b) (2) and the rationale of Flick and would render the application of the statute of dubious constitutional quality.

Finally, we note that Luciano v Garvey Volkswagen (131 AD2d 253, supra), so heavily relied upon by plaintiffs, did not hold that VOA is a "mere department” of VWAG for all purposes. That case was decided on a question of liability under an express warranty and may not serve on a collateral estoppel basis to establish that VOA is an agent of VWAG for purposes of service under Business Corporation Law § 307 (b) (2). VOA has not been proven to be a mere department of VWAG in this case for purposes of this jurisdictional statute.

Plaintiffs not having satisfied their burden of establishing jurisdiction, the action should be dismissed.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the certified question should be answered in the negative and the motion to dismiss should be granted.

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

Order reversed, with costs, defendant-appellant’s motion to dismiss the complaint as against it granted and certified question answered in the negative.


author: Simons, J.

text:
    Elaine W. et al., on Behalf of Themselves and All Others Similarly Situated, Appellants, v Joint Diseases North General Hospital, Inc., Respondent, et al., Defendants.
    Argued March 24, 1993;
    decided May 6, 1993

      POINTS OF COUNSEL

      Joan E. Bertin, New York City, Isabelle Katz Pinzler, Cahill Gordon & Reindel and Oscar G. Chase for appellants.
    I. Defendant’s admitted policy of excluding all pregnant women constitutes explicit gender discrimination. (Matter of Board of Educ. v New York State Div. of Human Rights, 56 NY2d 257; Brooklyn Union Gas Co. v New York State Human Rights Appeal Bd., 41 NY2d 84; Elaine W. v Joint Diseases N. Gen. Hosp., 180 AD2d 525; Orr v Orr, 440 US 268; Automobile Workers v Johnson Controls, 499 US 187; Trans World Airlines v Thurston, 469 US 111; Matter of Bayport-Blue Point School Dist. v State Div. of Human Rights, 131 AD2d 849; Los Angeles Dept. of Water & Power v Manhart, 435 US 702; Arizona Governing Comm. v Morris, 463 US 1073; Board of Educ. v New York State Div. of Human Rights, 42 AD2d 49, 35 NY2d 673.) II. Defendant’s discriminatory policy is unlawful because the State Division of Human Rights has not granted defendant an exemption based on "bona fide considerations of public policy”. (Kahal Bnei Emunim & Talmud Torah Bnei Simon Israel v Town of Fallsburg, 78 NY2d 194.) III. The Court below’s decision must be reversed because defendant neither asserted nor proved that its policy serves "bona fide considerations of public policy”. (Price Waterhouse v Hopkins, 490 US 228; Automobile Workers v Johnson Controls, 499 US 187; Arizona Governing Comm. v Morris, 463 US 1073; Phillips v Martin Marietta Corp., 400 US 542; Trans World Airlines v Thurston, 469 US 111; Western Air Lines v Criswell, 472 US 400; Alexander v Louisiana, 405 US 625; Mississippi Univ. for Women v Hogan, 458 US 718; United States v First Natl. Bank, 386 US 361.) IV. The Court below improperly resolved issues of fact in granting summary judgment to defendant on its defense of medical judgment. (Elaine W. v Joint Diseases N. Gen. Hosp., 180 AD2d 525; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395.)

      Bower & Gardner, New York City (Nancy Ledy Gurren, Robert Iscaro and Judith A. Davidow of counsel), for respondent.
    I. The Court below correctly applied a shifting burden of proof in analyzing plaintiffs’ claim under the Executive Law. (Matter of New York City Bd. of Educ. v Batista, 54 NY2d 379;
      Matter of Pace Coll. v Commission on Human Rights, 38 NY2d 28; Ioele v Alden Press, 145 AD2d 29; Matter of National Basketball Assn. v New York State Div. of Human Rights, 115 AD2d 365, 68 NY2d 644; Matter of Miller Brewing Co. v State Div. of Human Rights, 66 NY2d 937; Brown v General Elec. Co., 144 AD2d 746; Matter of New York Roadrunners Club v State Div. of Human Rights, 55 NY2d 122; United States v University Hosp., 729 F2d 144; Matter of Antonsen v Ward, 77 NY2d 506; City of New York v State Div. of Human Rights [Granelle], 70 NY2d 100.) II. The Court below was correct in its determination that the hospital policy is not facially discriminatory. (Automobile Workers v Johnson Controls, 499 US 187.) III. Appellants improperly argue that the legal standard governing this controversy requires a showing of bona fide considerations of public policy. (Automobile Workers v Johnson Controls, 499 US 187; Price Waterhouse v Hopkins, 490 US 228; Trans World Airlines v Thurston, 469 US 111; Texas Dept. of Community Affairs v Burdine, 450 US 248; Matter of New York Roadrunners Club v State Div. of Human Rights, 55 NY2d 122; Eastern Paralyzed Veterans Assn. v Metropolitan Transp. Auth., 79 AD2d 516; Holly v Pennysaver Corp., 98 AD2d 570; Perino v St. Vincent’s Med. Ctr., 132 Misc 2d 20; Sega v State of New York, 60 NY2d 183; Anderson v Regan, 53 NY2d 356.) IV. Assuming, arguendo, this Court applies plaintiff’s legal standard to this case, North General Hospital is still entitled to summary judgment.

      Nadine Taub, of the New Jersey Bar, admitted pro hac vice, and Berle, Kass & Case, New York City (Jean M. McCarroll and Monica J. Bose of counsel), for American Public Health Association, amicus curiae.

    No bona fide considerations of public policy justify the hospital’s discriminatory practice. (Koerner v State of New York, 62 NY2d 442; Holly v Pennysaver Corp., 98 AD2d 570; New York State Div. of Human Rights v New York-Pa. Professional Baseball League, 36 AD2d 364, 29 NY2d 921; Automobile Workers v Johnson Controls, 499 US 187; Matter of Hurwitz v New York City Commn. on Human Rights, 142 Misc 2d 214, 159 AD2d 417; Matter of Stefanel Tyesha C., 157 AD2d 322; People v Morabito, 151 Misc 2d 259.)

      Lynn M. Paltrow, New York City, Carol E. Tracy, Linda J. Wharton and Susan Frietsche, of the Pennsylvania Bar, admitted pro hac vice, for the Center for Reproductive Law & Policy and others, amici curiae.

    I. Throughout American history differences in the reproductive capacity of men and women have provided a primary justification for the subordination of women. (Frontiero v Richardson, 411 US 677; Automobile Workers v Johnson Controls, 499 US 187; Bradwell v The State, 16 Wall [83 US] 130; Muller v Oregon, 208 US 412; West Coast Hotel Co. v Parrish, 300 US 379; Radice v New York, 264 US 292; Hoyt v Florida, 368 US 57; Breedlove v Suttles, 302 US 277.) II. Discriminatory assumptions and negative attitudes against pregnancy render drug treatment virtually unobtainable for pregnant women. III. The hospital’s policy of excluding women solely on the basis of pregnancy violates the clear terms of the New York Human Rights Law. (State Div. of Human Rights v Village of Spencerport, 78 AD2d 50; State Div. of Human Rights v New York State Dept. of Correctional Servs., 61 AD2d 25; Rosenfeld v Southern Pac. Co., 444 F2d 1219; Board of Educ. v New York State Div. of Human Rights, 42 AD2d 49, 35 NY2d 673; Brooklyn Union Gas Co. v New York State Human Rights Appeal Bd., 41 NY2d 84; Union Free School Dist. No. 6 v New York State Human Rights Appeal Bd., 35 NY2d 371; Board of Educ. v New York State Div. of Human Rights, 56 NY2d 257; City of New York v State Div. of Human Rights [Granelle], 70 NY2d 100; Matter of Hurwitz v New York City Commn. on Human Rights, 142 Misc 2d 214, 159 AD2d 417, 76 NY2d 702; Kahal Bnei Emunim & Talmud Torah Bnei Simon Israel v Town of Fallsburg, 78 NY2d 194.) IV. If permitted to stand, the Court below’s decision will seriously weaken the Human Rights Law and have devastating consequences for women. (Matter of Stefanel Tyesha Co., 157 AD2d 322.)

      Mayer Brown & Platt, New York City (George W. Madison and Eleanor Jackson Piel of counsel), for The Association of the Bar of the City of New York, amicus curiae.

    I. The decision below misinterprets the State’s human rights laws. (Union Free School Dist. No. 6 v New York State Human Rights Appeal Bd., 35 NY2d 371; Matter of Board of Educ. v State Div. of Human Rights, 35 NY2d 675; Brooklyn Union Gas Co. v New York State Human Rights Appeal Bd., 41 NY2d 84; Matter of Board of Educ. v New York State Div. of Human Rights, 56 NY2d 257; American Airlines v State Human Rights Appeal Bd., 50 AD2d 450; Matter of Energy Expo v New York State Div. of Human Rights, 112 AD2d 302; State Div. of Human Rights v Stromberg Carlson Corp., 66 AD2d 990; Matter of Jericho Union Free School Dist. v New

      York State Human Rights Appeal Bd., 97 AD2d 762.) II. Summary judgment should not have been granted to defendant because facts material to the defense’s theory were in dispute. (Millerton Agway Coop. v Briarcliff Farms, 17 NY2d 57; Barrett v Jacobs, 255 NY 520; Elias v Handler, 181 AD2d 656; Giambrone v New York Yankees, 181 AD2d 547; Henderson v City of New York, 178 AD2d 129; Adickes v Kress & Co., 398 US 144; Assaf v Ropog Cab Corp., 153 AD2d 520.) III. The impact of the lower court’s decision will be to authorize denial of needed services to a vulnerable and needy segment of the population, with potentially dire consequences.
   OPINION OF THE COURT

Simons, J.

Plaintiffs instituted this action claiming that defendant Joint Diseases North General Hospital engages in unlawful sexual discrimination by refusing to admit pregnant women to its drug detoxification program. North General conceded it has a policy excluding all pregnant women but sought summary judgment dismissing the complaint, claiming the policy is justified on medical grounds. The hospital was unsuccessful in the trial court but prevailed on appeal. The Appellate Division held that North General’s determination to exclude pregnant substance abusers did not constitute gender-based discrimination but, rather, was "a medical determination based on appropriate treatment for its patients” (Elaine W. v Joint Diseases N. Gen. Hosp., 180 AD2d 525, 527). The matter is before us by our leave and we now reverse. The mere proffering of a medical explanation, when disputed by other evidence, does not validate the hospital’s exclusionary policy. North General must establish at trial that its blanket exclusion of pregnant women is medically warranted.

I

Defendant North General is a voluntary, nonprofit hospital in Manhattan with 190 beds. Fifty of the beds are devoted to an in-patient detoxification program. Plaintiffs are women who were excluded from this program because they were pregnant at the time they sought treatment. North General excludes pregnant women because it believes it lacks the equipment to treat them safely, it has no obstetricians on its staff and it is not licensed to render obstetrical care. The hospital claims that its policy is not discriminatory because all seriously psychotic patients are excluded for similar reasons. In short, North General claims that it is obliged to treat only those it is equipped and staffed to treat and the Human Rights Law should not be used to compel it to do otherwise.

In opposition, plaintiffs contend that the blanket exclusion of all pregnant women is medically unwarranted, that each woman must be assessed individually to determine whether she can be treated safely for substance abuse despite the lack of on-site obstetrical services and that the failure to do so violates this State’s Human Rights Law (Executive Law art 15). Both parties have submitted affidavits of medical experts to support their positions.

II

Article 15 of the Executive Law, known as the Human Rights Law, provides that it is "an unlawful discriminatory practice for any * * * place of public accommodation * * *, because of * * * sex * * *, directly or indirectly, to * * * deny to such person any of the accommodations, advantages, facilities or privileges thereof’ (Executive Law § 296 [2] [a]). When interpreting that section, we have consistently held that distinctions based solely upon a woman’s pregnant condition constitute sexual discrimination (see, e.g., Matter of Binghamton GHS Empls. Fed. Credit Union v State Div. of Human Rights, 77 NY2d 12, 17; Matter of Board of Educ. v New York State Div. of Human Rights, 56 NY2d 257, 261-262; Brooklyn Union Gas Co. v New York State Human Rights Appeal Bd., 41 NY2d 84, 86; Board of Educ. v New York State Div. of Human Rights, 42 AD2d 49, 53, affd 35 NY2d 673; see also, Newport News Shipbuilding & Dry Dock v Equal Empl. Opportunity Commn., 462 US 669, 684 [similarly construing title VII (42 USC § 2000e et seq.) of the Federal statute]). A hospital policy which singles out pregnant women for treatment different from treatment afforded those with other medical or physical impairments is similarly suspect. Unquestionably, North General’s policy discriminates against pregnant women by treating them differently from others solely because they are pregnant and thus it constitutes facial sexual discrimination.

III

Nonetheless, North General’s policy is supportable if the hospital can establish (1) that the blanket exclusion is medically warranted, i.e., that no pregnant woman, regardless of the state of her general health, the stage of her pregnancy, or the severity of her addiction, can be treated safely, or (2) that it cannot, prior to admission, identify with reasonable medical certainty those women who might receive treatment without needing immediate, on-site obstetrical services. We approved such an analysis in an earlier sexual discrimination case in which a school board policy required any pregnant teacher to take an unpaid leave of absence no later than five months prior to her delivery date, regardless of her physical ability to continue teaching (Board of Educ. v New York State Div. of Human Rights, 35 NY2d 673, affg on opn at App Div 42 AD2d 49, supra). The "true issue” in that case, the Appellate Division stated, was whether the pregnancy-based policy could be justified by the school board’s purported objectives (see, Board of Educ. v New York State Div. of Human Rights, 42 AD2d, at 52, supra). Because the policy did not further the stated objective — securing the continuity of competent instruction— we affirmed an order upholding the Human Rights Division’s determination that the discriminatory practice had to stop (see, Board of Educ. v New York State Div. of Human Rights, 35 NY2d 673, affg 42 AD2d 49, supra).

Similarly, the exclusionary policy in this case must be evaluated in light of the explanation offered by North General that it cannot admit pregnant women because it is not equipped, staffed or licensed to provide obstetrical services. A fact finder will have to resolve whether North General’s policy is justified by sound medical opinion.

The burden rests on North General, as the actor drawing distinctions based upon pregnancy, to prove that the policy’s distinctions are based upon medical necessity, not upon generalizations associated with pregnant women (see, Board of Educ. v New York State Div. of Human Rights, 42 AD2d, at 52, supra). That its motives are benign will not relieve it of this burden (see, Automobile Workers v Johnson Controls, 499 US 187, 199-200). Many discriminatory practices develop improperly because of a paternalistic sense of what is "best” for those who are discriminated against (see, State Div. of Human Rights v New York State Dept. of Correctional Servs., 61 AD2d 25, 29). If there is no medical basis for the discrimination, the fact that it was undertaken with good intentions is irrelevant.

Nor can North General sustain its burden by showing that some, or even many, pregnant women should not be treated for substance abuse without the availability of immediate on-site obstetrical services. As the Supreme Court has said: "[e]ven a true generalization about the class is an insufficient reason for disqualifying an individual to whom the generalization does not apply” (see, Los Angeles Dept. of Water & Power v Manhart, 435 US 702, 708). If, as plaintiffs contend, some pregnant addicts can be safely treated despite the lack of immediate on-site obstetrical services, then North General’s policy excluding all pregnant women is unwarranted and the hospital must individually assess each pregnant woman seeking admission to determine whether she can be treated either without the benefit of obstetrical services or with arrangements made to obtain services at nearby, off-site facilities (see, Matter of State Div. of Human Rights [Granelle], 70 NY2d 100, 107). But we emphasize that if North General establishes it is medically unsafe to treat pregnant women at its facility, either because all pregnant addicts require immediate on-site obstetrical services or because it cannot be predicted with reasonable medical certainty which ones might require such services, the Human Rights Law does not compel it to do so.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the cross motion of defendant Joint Diseases North General Hospital, Inc. for summary judgment denied.

Chief Judge Kaye and Judges Titone, Hancock, Jr., and Smith concur; Judge Bellacosa taking no part.

Order reversed, etc.

      . The term "place of public accommodation” includes "clinics” and "hospitals” (Executive Law § 292 [9]).

      . A valid generalization might persuade the Human Rights Division to grant an exemption for "bona fide considerations of public policy” under Executive Law §296 (2) (b), but North General has not applied for an exemption and a generalization may not serve to validate prohibited discrimination.