author: Gabrielli, J.

text:
    In the Matter of Veronica O’Rourke, Appellant, v James E. Kirby, as Commissioner of Social Services, Suffolk County, Respondent. (And Another Proceeding.)
    Argued August 31, 1981;
    decided October 22, 1981

      POINTS OF COUNSEL

      Charles H. Rosen and Steven Tomanelli for appellant.
    I. The best interest of Stephanie P. require that she remain with appellant so that she may petition to adopt her. (Matter of Spence-Chapin Adoption Serv. v Polk, 29 NY2d 196; State of New York ex rel. Wallace v Lhotan, 51 AD2d 252;
      Matter of Jewish Child Care Assn. of N. Y. [Sanders], 5 NY2d 222; Matter of Bennett v Jeffreys, 40 NY2d 543; People ex rel. Ninesling v Nassau County Dept, of Social Servs., 46 NY2d 382; Matter of Alan D. M. v Nassau County Dept. of Social Servs., 58 AD2d 111.) II. The courts below have abrogated their inherent power in this custody-proceeding by limiting their review with this administrative agency to an arbitrary and capricious standard rather than the “best interest of the child”. (Matter of Santacose, 271 App Div 11; Matter of Spence-Chapin Adoption Serv. v Polk, 29 NY2d 196; People ex rel. Anonymous v Anonymous, 10 NY2d 332; Matter of Bennett v Jeffreys, 40 NY2d 543; Matter of Benitez v Llano, 39 NY2d 758; Matter of Catherine S., 74 Misc 2d 154; Matter of Lang v Lang, 9 AD2d 401, 7 NY2d 1029; Matter of Roy, 90 Misc 2d 35; “Doe” v “Roe”, 37 AD2d 433; Matter of Caroline R., 99 Misc 2d 114.)

      David J. Gilmartin, County Attorney (Paul G. Costello, Daniel Martin and Hertha C. Trotto of counsel), for James E. Kirby, respondent.
    I. The administrative and judicial review afforded appellant in this case provided a sufficient and proper forum for the consideration of the best interests of the child and the interests of appellant to satisfy the demands of due process. (People ex rel. Ninesling v Nassau County Dept, of Social Servs., 46 NY2d 382; Matter of Mundie v Nassau County Dept, of Social Servs., 88 Misc 2d 273; Matter of Ida Denise W., 77 Misc 2d 374; Matter of Fitzsimmons v Liuni, 51 Misc 2d 96; Wilcox v Wilcox, 14 NY 575.) II. The affirmance by the court below of the administrative and judicial determinations below was proper, justified and in the best interests of the child. (People ex rel. Ninesling v Nassau County Dept, of Social Servs., 46 NY2d 382.)

      Robert Abrams, Attorney-General (Robert J. Schack, Shirley Adelson Siegel and Maryellen Weinberg of counsel), for State Commissioner of Department of Social Services, respondent.
    I. Based on substantial evidence before her, State commissioner properly determined that the child’s best interests would be served by removal from the foster home where the foster parent had been denied consent to adopt, other adoptive placements were available and desirable, and the trauma of removal would be of short duration and eased with supportive services. II. The court below properly considered State respondent’s determination with respect to the child’s best interests as part of its review of the sufficiency of the evidence supporting removal of the child. The court was not required to make its own de novo determination of the child’s best interests. (Matter of Fitzsimons v Liuni, 51 Misc 2d 96; Matter of Mundie v Nassau County Dept, of Social Servs., 88 Misc 2d 273; Parham v J. R., 442 US 584; Matter of Jewish Child Care Assn. [Sanders], 5 NY2d 222; People ex rel. Riesner v New York Nursery & Child’s Hosp., 230 NY 119; Mormon Church v United States, 136 US 1; O’Connor v Donaldson, 422 US 563; Hawaii v Standard Oil Co., 405 US 251.)
   OPINION OF THE COURT

Gabrielli, J.

In this proceeding, appellant, a foster parent who has had continuous care of the child, Alexia Stephanie P. (Stephanie) for approximately six years, seeks judicial review, by way of an article 78 proceeding, of a determination of respondent, Suffolk County Commissioner of Social Services (local agency), denying his consent to adopt Stephanie, and also of a determination of respondent, State Commissioner of Social Services (State agency), to remove the child from appellant’s foster care for purposes of adoption.

Stephanie, born June 24, 1975, was surrendered to the care and custody of the local agency shortly after her birth, and was subsequently placed in appellant’s foster care. Based upon the death of Stephanie’s natural mother in 1977, the local agency obtained guardianship and custody of the child in May of 1978. As Stephanie had been freed for adoption, this agency sought an adoptive resource. Appellant, having had the care of Stephanie for an extended period of time, was given first consideration as Stephanie’s adoptive parent. Having considered information related to Stephanie’s physical and emotional condition, appellant’s health, financial resources, age, and numerous other factors, the local agency denied its consent to adopt Stephanie, stating the belief that the child’s needs would be better served by a younger, two-parent family.

After a conference at which appellant and her attorney appeared, the agency reaffirmed its denial of appellant’s request to adopt Stephanie, and thereafter served appellant with a 10-day notice of removal. Subsequently, at appellant’s request, a fair hearing was conducted by respondent State agency on the issue of Stephanie’s removal. This agency affirmed the local agency’s determination to remove Stephanie from appellant’s care. While the State agency recognized that Stephanie might suffer some trauma as a result of the removal, it also found that the trauma would be of short duration, and would be eased by supportive services.

Appellant then commenced two article 78 proceedings, one to review the local agency’s denial of its consent to adopt, and the other to review the determination of the State and local agencies to remove the child from her care. The proceedings were consolidated, and following a hearing, Special Term upheld the determination of the local agency and referred the proceeding brought against the State agency to the Appellate Division, as it involved a “substantial evidence” question (CPLR 7804, subd [g]). The Appellate Division affirmed the judgment of Special Term, finding that the local agency’s denial of its consent to adopt was not arbitrary and capricious, and unanimously confirmed the determination of the State agency which affirmed the local agency’s decision to remove Stephanie from foster care, finding that this determination was supported by substantial evidence. There should be an affirmance.

An important threshold question on this appeal concerns the appropriate standard of review of the agency determinations in this proceeding. Appellant would have the courts undertake a de novo review of the agencies’ actions, to determine what course of action would be in the “best interests of the child”. While “best interests” is the standard of review in an adoption proceeding, it is only peripherally involved in the judicial review of the determinations which this appeal concerns — the agency’s denial of consent to adopt and the direction to remove Stephanie from appellant’s care.

Appellant’s contrary argument is based upon the provisions of subdivision 3 of section 383 of the Social Services Law, which entitles appellant to a “preference and first consideration” based upon her continuous care of Stephanie for a period of two years or more. She fails to distinguish, however, between review of denial of agency consent to her request that she be permitted to adopt and the adoption proceeding itself. The last sentence of the first paragraph of the subdivision makes clear that “the propriety of * * * adoption” is “within the sole discretion of the court,” a discretion which is to be exercised on a “best interests” basis. Section 383 does not, however, speak to review of denial of consent to adopt. Had the agency given its consent to appellant’s request to adopt Stephanie, the court would approve the adoption only if it were in Stephanie’s best interests. Here, however, we review not the propriety of an adoption but the local agency’s denial of consent to adopt, and the State agency’s subsequent decision to remove the child from foster care. On such review, subdivision 3 of section 383 does not require a de novo judicial review of the “best interests of the child”. Rather, the usual article 78 standards of review are applicable (CPLR 7803, subds 3,4).

Nor does our decision in People ex rel. Ninesling v Nassau County Dept, of Social Servs. (46 NY2d 382) compel a different conclusion. In Ninesling (at p 389), this court, in the context of a removal proceeding, set forth the burden of proof which foster parents must meet when they seek to retain custody of a child. In so doing, we noted that in considering the future viability of the foster care program, we were not abdicating our “duty as parens patriae to determine custody on the basis of the best interests of the child”. It must also be noted, however, that in considering the best interests of the child, we did not fashion a new standard of judicial review for article 78 proceedings involving child custody. Rather, we exercised our role as parens patriae to the extent that we set forth a burden of proof which the foster parents must meet before the adoption agency itself when they seek consent to adopt or attempt to forestall proposed removal of a child from foster care. We concluded that foster parents seeking to retain custody of the child in their care must satisfy the adoption agency not only that they would make suitable adoptive parents, but must also demonstrate that they would provide a better adoptive home than one that might be planned by the adoption agency. The court recognized that this burden could not easily be met, because the foster parents have no medium in which to demonstrate that they would provide a more suitable home than the as yet undetermined adoptive parents. That appellant is entitled to a “preference and first consideration” and thus a corresponding reduction in her burden of proof before the agency regarding her suitability as an adoptive parent as established in Ninesling, merely alters her burden of proof at the administrative level. It does not change the standard to be applied by this court in reviewing the agency’s determination. Rather, we must make a determination of whether respondents’ actions were irrational, i.e., “arbitrary and capricious” or unsupported by “substantial evidence”, which involves consideration of whether appellant was held by the agency only to a lesser burden of proof.

The discussion in Ninesling recognizes that an article 78 proceeding is the proper procedural mechanism by which to review agency action in relation to removal. It is also the appropriate vehicle for review of an agency determination denying consent to adoption by foster parents (see Social Services Law, § 372-e, as added by L 1979, ch 611, § 5). However, we note that a de novo review of Stephanie’s best interests will take place in the eventual adoption proceeding. Indeed, it is the adoption proceeding, in which appellant has a right to intervene (Social Services Law, § 383, subd 3), which is the appropriate forum for the ascertainment of the child’s best interests. Of course, in any adoption proceeding, the prime consideration is always the best interests of the child (Domestic Relations Law, §§ 114,116, subd 2; cf. “Doe” v “Roe”, 37 AD2d 433, 435). As appellant has the right to intervene in that proceeding, she will not be foreclosed by the agency’s prior denial of consent (nor by judicial affirmance of such a denial) from once again presenting to the adoption court the claim that the child’s best interests mandate adoption by appellant rather than the proposed adoptive parents. At that point, appellant will not be faced with the dilemma, which we noted in Ninesling (46 NY2d, at p 390) and which she faced in the instant proceeding, that the proposed adoptive parents are as yet undetermined. Further, the adoption court, in whose discretion lies the propriety of the proposed adoption, may, after de novo review of Stephanie’s best interests, approve adoption by the proposed adoptive parents or by the foster parent, or reject adoption by either.

Given that appellant’s entitlement to a “preference and first consideration” lessens her burden of proof before the agency with regard to establishing that she could provide a better adoptive home than that planned by the agency, we must determine whether the denial of consent to adopt by the local agency was “arbitrary and capricious”, because the agency either failed to base its determination on what it rationally concluded was in Stephanie’s best interests or failed to give appellant the consideration she was due as one entitled to a preference. The agency’s denial of appellant’s application was based on its belief that a younger, two-parent family would better serve Stephanie’s needs. Appellant, on the other hand, believes that her long period of care for Stephanie and the trauma that would result from her removal from appellant’s home require that her adoption application be approved. Without expressing any view as to whether the agency’s belief was enough to justify its denial of appellant’s adoption application, we note that the agency’s decision was also based upon appellant’s health, financial difficulties, the fact that she had no real system within her immediate family to provide for Stephanie if appellant were to become ill or pass away and the fact that appellant’s daughter-in-law expressed doubt concerning appellant’s ability to deal with the problems of older children. Further, the agency had evidence before it that the relationship between appellant and Stephanie was not particularly healthy for Stephanie, given her special needs. It cannot be said, given the investigation by respondent and the information before it, and in spite of the fact that the evidence as to appellant’s qualifications as an adoptive parent conflicted in some respects, that respondent acted in an arbitrary and capricious manner. Indeed, the agency considered all relevant factors pertaining to appellant’s qualifications as an adoptive parent, before it considered any other adoptive resource, and concluded that appellant failed to meet what it believed to be the minimum standard for an adoptive resource for Stephanie. Although the agency recognized that Stephanie would suffer some amount of trauma by her removal, it also determined that the trauma would be of short duration and eased by supportive services. Thus, it appears that the agency, having due regard for appellant’s entitlement to a preference and first consideration, considered appellant not to be a suitable adoptive parent, much less a better adoptive parent than other potential adoptive resources. We cannot say, on this record, that the local agency failed in its responsibility to act in Stephanie’s best interests or in its duty to accord appellant a preference and first consideration.

Turning next to respondent State agency’s actions, we must determine whether its decision to remove Stephanie from foster care was based upon substantial evidence that removal was in her best interests, inasmuch as this decision was rendered after a fair hearing. The State agency determined that the local agency had denied appellant’s application for adoption on the basis of her age, single parenthood, and financial difficulties, that the local agency believed Stephanie to be a highly adoptable child, and that several adoptive resources were available for her placement. Under these circumstances, the State agency found removal of Stephanie from foster care to be both proper and necessary, in spite of the fact that trauma would result from the removal. In this regard, most staff members of the local agency ultimately expressed their opinion that the removal trauma could be eased by supportive services. We cannot say that the State agency’s decision to remove Stephanie was unsupported by substantial evidence.

We emphasize, as did the courts below and the two respondent agencies, that at all times appellant has given Stephanie love, warmth and considerate care. Her desire to adopt Stephanie is obviously sincere. As has been noted previously by this court, however, the legal qualifications required by the courts of prospective adoptive parents differ from those required of foster parents, the latter committing themselves only to temporary care of the child (Matter of Spence-Chapin Adoption Serv. v Polk, 29 NY2d 196, 204).

Respondents’ actions in refusing to allow appellant to adopt Stephanie cannot be termed “arbitrary and capricious” or unsupported by “substantial evidence”. In this regard, we note again that in the eventual adoption proceeding, in which appellant has a right to intervene (Social Services Law, § 383, subd 3), the court will undertake a de novo review of Stephanie’s best interests, at a point when the adoption agency’s plan will be available to the court, and the determination can thus be properly made.

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

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

Order affirmed.

      . This time requirement was changed to 18 months by section 6 of chapter 611 of the Laws of 1979.

      . Even in the instant proceedings, Stephanie’s best interests have great relevance. It is respondents’ duty to act in the best interests of the children who are placed in their care; if they do not so act, their actions must be deemed “arbitrary and capricious”, or not based on “substantial evidence”. To the exent that we adopt a more restrictive standard of review, we do not ignore the child’s best interests, rather, we simply recognize that it is not our proper role to substitute our judgment here for that of the agencies in resolving the issue of “best interests”, notwithstanding the fact that we might have acted differently in some circumstances.


source: Caselaw Access Project

license: Public Domain

text:
    Julia Loomis, Appellant, v Civetta Corinno Construction Corp., Respondent, et al., Defendants. (And a Third-Party Action.)
    Argued September 3, 1981;
    decided October 22, 1981

      POINTS OF COUNSEL

      Lawrence N. Chanen and Allen A. Hans for appellant. The trial court had the power and authority to grant plaintiff’s motion to amend the ad damnum clause to conform to the proof pursuant to CPLR 3025 (subd [c]).

      (Murray v City of New York, 43 NY2d 400; Gershunoff v Panov, 77 AD2d 511, 51 NY2d 875; Sheldon Elec. Co. v Oriental Blvd.

      Corp., 56 AD2d 886; Finn v Crystal Beach Tr. Co., 55 AD2d 1001; Dreschsel v Loblaw, Inc., 64 AD2d 1022; Hrusko v Public Serv. Coordinated Transp. Corp., 40 AD2d 659; Natale v Great Atlantic & Pacific Tea Co., 8 AD2d 781; Soulier v Harrison, 21 AD2d 725; Matter of McNally v Mosbacher, 36 AD2d 522; Wyman v Morzone, 33 AD2d 168.)

      Robert Markewich and Gary Brown for respondent. I. The trial court erred in awarding damages in excess of those prayed for.

      (Michalowski v Ey, 7 NY2d 71; Piccinich v Grace Lines, 62 AD2d 974; Litcom Div., Litcom Systems v Suffolk Roofing Co., 52 AD2d 593; Naujokas v Carey High School, 33 AD2d 703; Wyman v Morone, 33 AD2d 168; Young v Wallace, 284 App Div 929; Roe v City of Middletown, 262 App Div 231; Stebbins v Frisbie & Stansfield Knitting Co., 201 App Div 477; De Sappio v Brostrom & Son, 93 Misc 2d 623; George v County of Erie, 66 Misc 2d 871.) II. The trial court erred in granting plaintiff’s motion to amend the ad damnum clause to conform to the proof at the conclusion of the inquest, especially after having denied such a motion as untimely at the outset of the inquest. (Mykulak v New York Journal Amer., 44 AD2d 791; Coleman v New York City Tr. Auth., 44 AD2d 673; Galarza v Alcoa S. S. Co., 34 AD2d 907; Frank P. McNally, Inc. v Ontario Frgt. Lines Corp., 29 AD2d 678; Gershunoff v Panov, 77 AD2d 511, 51 NY2d 875.)
   OPINION OF THE COURT

Gabrielli, J.

It has been the rule in New York that a party cannot recover more in a monetary judgment than is requested in his demand for relief (see, e.g., Michalowski v Ey, 7 NY2d 71, 75). Today we re-examine this principle and conclude that a motion made by a plaintiff to increase the amount of relief requested in the ad damnum clause of the complaint, whether made before or after the verdict, may be granted in the absence of prejudice to the defendant.

Plaintiff, the owner of a town house in Manhattan, alleged in her complaint that defendant Civetta Corinno Construction Corporation entered upon her rear yard in 1976 and removed her patio, a brick wall and certain shrubbery in connection with its construction of a luxury highrise apartment building on the adjacent property. Damages on plaintiff’s third cause of action, sounding in trespass, were estimated in the ad damnum clause at $15,000.

In 1978, Special Term granted plaintiff’s motion for summary judgment against defendant Civetta on the third cause of action and directed that an assessment of damages be held. Following several adjournments, the hearing to assess damages was held in January, 1980. In the interim period, apparently in response to a request by defendant for an itemization of damages, plaintiff’s attorneys, by a writing dated March 19, 1979, detailed the elements of damages, stating, among other things, that total damages ; for the third cause of action were conservatively estimated ' at approximately $23,000. Thereafter, and some six months i prior to the hearing, defendant’s expert personally examined plaintiff’s property and received open responses to his inquiries of plaintiff and her attorneys concerning the elements and extent of the damage claimed.

At the outset of the hearing for assessment of damages plaintiff moved to amend the ad damnum clause “to the extent your Honor determines that the proof here today is greater than the ad damnum clause”. This motion was denied at that time. Later, and before the hearing concluded, plaintiff renewed her motion to conform the pleadings to the proof. It is claimed that the court’s response was unclear, but it is evident that the court reserved decision on the motion and concluded the hearing. Thereafter, Trial Term entered judgment in the amount of $26,118. On appeal the Appellate Division modified the judgment, on the law, by reducing the award to $15,000, the amount originally claimed, the court concluding that postverdict motions to amend the ad damnum clause are prohibited.

In general, the courts have permitted amendments to the ad damnum clause prior to trial where no prejudice accrues to the opposing party (see, e.g., Zoizack v Holland Hitch Co., 58 AD2d 980; Hrusko v Public Serv. Coordinated Transp. Corp., 40 AD2d 659). However, even these pretrial motions have encountered some resistance over the years (see, e.g., Peterson v Spartan Inds., 64 AD2d 958; Jimenez v Seickel & Sons, 22 AD2d 643; Koi v P. S. & M. Catering Corp., 15 AD2d 775). Postverdict motions to amend the ad damnum clause, on the other hand, uniformly have been denied (see Naujokas v Carey High School, 33 AD2d 703; Wyman v Morone, 33 AD2d 168; Silbert v Silbert, 22 AD2d 893, affd 16 NY2d 564). But, these denials have not been immune from criticism (see Wyman v Morone, supra [Cooke, J, dissenting]; Naujokas v Carey High School, 57 Misc 2d 175, revd 33 AD2d 703, supra-, Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 3017:7, p 116).

Few valid rationales have been advanced in support of the claimed general prohibition of postverdict ad damnum amendments. It has been suggested that one of the reasons behind this rule concerns the problem of a partially insured defendant (Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 3017:7, p 117). Under this theory, if the original demand for relief does not exceed the ceiling amount of defendant’s coverage, then the defendant is unlikely to retain his own attorney, but will instead permit the attorney furnished by the insurance company to conduct his entire defense. However, if plaintiff seeks an amount in excess of the defendant’s insurance coverage, then the defendant might be inclined to retain his own counsel. In such a case, if a postverdict change is made in the ad damnum clause, raising the amount sought above the limits of insurance coverage* it is of course too late for the named defendant to substitute or supplement trial counsel. Also possibly underlying the argument made against postverdict ad damnum amendments is the concern that the specification of a comparatively small sum in the original ad damnum clause might lull the defendant and his counsel into a false sense of security. We conclude today, however, that these difficulties, which may be present in only a small minority of cases, may not continue to serve as a justification for the blanket denial of all postverdict amendments to the ad damnum clause.

One of the obvious goals of the CPLR was to liberalize the practice relating to pleadings. This notion is embodied in the language of CPLR 3017 (subd [a]), which provides in pertinent part that “ [e] xcept as provided in section 3215, the court may grant any type of relief within its jurisdiction appropriate to the proof whether or not demanded, imposing such terms as may be just”. In the circumstances presented, the clear language of this section and CPLR 3025 (subd [c]), which provides that “[t]he court may permit pleadings to be amended before or after judgment to conform them to the evidence”, compels the conclusion that a court has discretionary power to permit the amendment herein granted and to allow an award in excess of the original ad damnum clause. We have recently held that motions to conform the pleadings to the evidence, made under CPLR 3025 (subd [c]) before or after judgment, are a matter within “the sound discretion of the court and should be determined in the same manner and by weighing the same considerations as upon a motion to amend pursuant to subdivision (b), except that under (c) the possibly increased effect on orderly prosecution of the trial might be a factor to be taken into account (see 3 Weinstein-Korn-Miller, NY Civ Prac, par 3025.26). Where no prejudice is shown, the amendment may be allowed ‘during or even after trial’ (Dittmar Explosives v A. E. Ottaviano, Inc., 20 NY2d 498, 502; Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 3205:15, p 487; cf. Brecher v Brecher, 27 NY2d 986, 987; Dransfield v Eastern Seaboard Warehouse Corp, 43 AD2d 569, 570)” (Murray v City of New York, 43 NY2d 400, 405). The principle laid down in Murray is, of course, equally applicable to amendments to the ad damnum clause. Thus, in the absence of prejudice to the defendant, a motion to amend the ad damnum clause, whether made before or after the trial, should generally be granted.

Prejudice, of course, is not found in the mere exposure of the defendant to greater liability. Instead, there must be some indication that the defendant has been hindered in the preparation of his case or has been prevented from taking some measure in support of his position (Wyman v Morone, 33 AD2d 168, 172 [Cooke, J, dissenting], supra). In the present case it is abundantly clear that no such prejudice existed. Several months before the hearing on damages defendant was informed by letter that plaintiff considered her damages to be well in excess of the amount first specified in the ad damnum clause. In addition, and also in advance of the hearing, defendant’s expert was granted access to plaintiff’s premises to inspect the items of damage claimed. Furthermore, defendant has failed utterly to indicate that any significant prejudice eventuated. We must conclude, therefore, that Trial Term did not abuse its discretion, as a matter of law, in entering judgment in excess of the amount originally set forth in the ad damnum clause.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the case remitted to the Appellate Division for a review of the facts.

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

Order reversed, with costs, and case remitted to the Appellate Division, First Department, for further proceedings in accordance with the opinion herein.

       By so entering judgment in this amount, the court obviously considered and granted the motion upon which it had reserved decision.


author: Meyer, J.

text:
    In the Matter of Edward Dunay, Respondent, v Stephen S. Weisglass et al., Appellants, and Ladenburg, Thalmann, & Co., Inc., Respondent.
    Argued September 15,1981;
    decided October 22, 1981

      POINTS OF COUNSEL

      Steven J. Glassman and Barry P. Schwartz for appellants. I. The present dispute is subject to arbitration under the constitution and rules of the New York Stock Exchange.

      (Muh v Newburger, Loeb & Co., 540 F2d 970; Coenen v Pressprich & Co., 453 F2d 1209, 406 US 949; Brown v Gilligan, Will & Co., 287 F Supp 766; Isaacson v Hayden, Stone, 319 F Supp 929; Osborne & Thurlow v Hirsch & Co., 10 Misc 2d 225; Matter of Sartorius [Filston], 265 App Div 997; Mobil Oil Indonesia v Asamera Oil [Indonesia], 43 NY2d 276; Matter of Prinze [Jonas], 38 NY2d 570.) II. Dunay is also required to arbitrate the stock dispute under the October 1, 1977 stockholders agreement, pursuant to which he asserts ownership and seeks payment of the stock. III. Respondents-appellants are not precluded from seeking arbitration of their stock claim by virtue of a separate action commenced by Dunay. (Rosenblum v Steiner, 43 NY2d 896; City Trade & Inds. v New Cent. Jute Mills Co., 25 NY2d 49; Matter of Haupt v Rose, 265 NY 108; International Modular Housing v Atlanta Shipping Corp., 61 AD2d 941, 46 NY2d 1016; Hamilton & Co. v American Home Assur. Co., 21 AD2d 500, 15 NY2d 595; Matter of Hosiery Mfrs. Corp. v Goldston, 238 NY 22 ;Plateis v Flax, 54 AD2d 813; Kalin Contr. Co. v Picram Constr. Corp., 8 AD2d 637.)

      Richard J. Weisberg and Laurence May for Edward Dunay, respondent. I. The Exchange constitution is not an agreement between Dunay and appellants to arbitrate the dispute.

      (Brown v Gilligan, Will & Co., 287 F Supp 766; Muh v Newburger, Loeb & Co., 540 F2d 970; Coenen v Pressprich & Co., 453 F2d 1209, 406 US 949; Bowmer v Bowner, 50 NY2d 288; Matter of Marlene Inds. Corp. [Carnac Textiles], 45 NY2d 327; Matter of Acting Supt. of School of Liverpool Cent. School Dist. [ United Liverpool Faculty Assn.], 42 NY2d 509; Matter of Riverdale Fabrics Corp. [Tillinghast-Stiles Co.], 306 NY 288; Schubtex, Inc. v Allen Snyder, Inc., 49 NY2d 1; Matter of General Silk

      Importing Co. [Gerseta Corp.], 200 App Div 786, 234 NY 513; Gangel v De Groot, 41 NY2d 840; Shuffman v Rudd Plastics Fabric Corp., 64 AD2d 699). II. The shareholders agreement is not an agreement between Dunay and appellants to arbitrate the dispute. (Matter of Kaye Knitting Mills v Prime Yarn Co., 37 AD2d 951; Cored Panels v Meinhard Commercial Corp., 72 AD2d 544; Areata Graphics Corp. v Silin, 59 AD2d 1007; Matter of Firedoor Corp. of Amer. v R. K. & A. Jones, 47 AD2d 878; Matter of American Silk Mills Corp. [Delaware] [Meinhard-Commercial Corp.], 38 AD2d 695, 31 NY2d 777; Howard & Assoc, v Shelter Programs, 57 AD2d 886; County of Broome v Deputy Sheriffs Benevolent Assn. of Broome County, 57 AD2d 496; Candid Prods, v SFM Media Serv. Corp., 51 AD2d 943; Ayres v Merrill Lynch, Pierce, Fenner & Smith, 538 F2d 532.) III. Arbitration of the dispute will violate the public policy against multiplicity of litigation.
   OPINION OF THE COURT

Meyer, J.

Arbitration is required, under both the member-member and the member-nonmember clauses of the arbitration provision of the New York Stock Exchange constitution, of a dispute concerning the ownership of shares in a member corporation obtained by, and held in the name of, an allied member before his membership lapsed, where the parties thereafter demanding arbitration, though not members at any time that the shareholder was, have since become allied members, and acquisition of the shares was, at least in part, for the purpose of affecting the management and control of the member corporation by whom all of the parties to the arbitration demand were employed. The order of the Appellate Division should, therefore, be reversed.

In May, 1974, appellants Koenig and Weisglass orally agreed with respondent Dunay to establish an unincorporated brokerage firm and divide the profits and losses equally. The resulting joint venture affiliated in May, 1974 with respondent Ladenburg, Thalmann & Co., Inc., an already established brokerage firm and a, member of the New York Stock Exchange. Dunay became the president of Ladenburg and an allied member of the Exchange. Allied membership is available to any principal executive officer of a member corporation who agrees to abide by the Exchange constitution (New York Stock Exchange Constitution, art 1, § 3, subd [d]).

In the fall of 1975, Dunay purchased in his own name 13,500 shares of Ladenburg stock which, through the declaration of a dividend, subsequently increased to 16,200 shares. A written memorandum of understanding, addressed by Dunay to Koenig and Weisglass on October 15, 1975 and accepted by them, provided: “In view of the fact that you and we share equally in the monies earned by the Institutional Sales Department of Ladenburg, Thalmann & Co. Inc. allocated to our group, this will confirm that I intend to share equally with you any gain realized upon any sale of these shares (it being understood that the timing and terms of any such sale shall be in my sole discretion) on condition that at the time of any such sale you and I continue to be employed by Ladenburg and that the arrangements by and among us are substantially the same at such time.” An October, 1977 agreement entered into by shareholders of Ladenburg, and signed by Dunay and Weisglass, but not by Koenig, restricted sale or transfer of Ladenburg shares and recited that it was intended “to assure the continued orderly management and growth” of the corporation.

Dunay’s employment with Ladenburg and his allied membership in the Exchange ended in May, 1979. He then instituted an action against Koenig, Weisglass and others, for an accounting of the joint venture’s assets. That action is still pending in Supreme Court. One month later, in June, 1979, Dunay tendered more than 21,000 Ladenburg shares to the corporation for repurchase in accordance with the shareholders agreement. Koenig and Weisglass, however, informed Ladenburg that 16,200 out of the 21,000 shares had been held by Dunay on behalf of the joint venture and requested an adjustment of corporate records to show ownership by them of two thirds of the stock so held, or 10,800 shares.

After Ladenburg refused to comply with that request, Koenig and Weisglass, who had become allied members of the Exchange after Dunay’s membership terminated, demanded arbitration of their claim against Dunay and Ladenburg pursuant to the arbitration provision contained in the Exchange constitution. Specifically, they alleged that they had been misled into signing the October 15, 1975 memorandum, that the memorandum did not reflect the understanding of the parties that they shared equally in the stock, and that the stock had been purchased in Dunay’s name merely as an administrative convenience.

Dunay then initiated this proceeding to stay arbitration. Koenig and Weisglass submitted a cross application to compel arbitration. Ladenburg took no position. Supreme Court dismissed Dunay’s application, granted the application of Koenig and Weisglass and directed all parties to proceed to arbitration. The Appellate Division unanimously reversed and granted the stay. Koenig and Weisglass appealed as of right to our court. We, in turn, reverse the Appellate Division and reinstate Supreme Court’s order directing the parties to arbitrate.

The sole issue before us concerns the right of Koenig and Weisglass to demand arbitration under the New York Stock Exchange constitution, section 1 of article VIII of which provides: “Any controversy between parties who are members, allied members * * * or member corporations shall, at the instance of any such party, and any controversy between a non-member and a member or allied member * * * or member corporation arising out of the business of such member, allied member * * * or member corporation * * * shall, at the instance of such non-member, be submitted for arbitration, in accordance with the provisions of the Constitution and the rules of the Board of Directors.” Under the principles declared in Crawford v Merrill Lynch, Pierce, Fenner & Smith (35 NY2d 291, 300) and Matter of Willard Alexander, Inc. (Glasser) (31 NY2d 270), such a clause in the Exchange constitution constitutes a written agreement to submit to arbitration before the Exchange. Moreover, its “any controversy” language characterizes it as a broad rather than a limited arbitration clause (Matter of Acting Supt. of Schools of Liverpool Cent. School Dist. [United Liverpool Faculty Assn.], 42 NY2d 509, 514; Matter of Weinrott [Carp], 32 NY2d 190, 199). Although those words are narrowed in scope as to member-nonmember arbitration by the additional requirement that the controversy be one “arising out of the business of” the member, we conclude, for the reasons hereafter stated that arbitration of the instant controversy is required whichever provision is applied.

I

Dunay contends, and the Appellate Division agreed, that the “are members” language of the Exchange arbitration provision requires a period of mutual membership to invoke member-member arbitration. If this were correct, of course, the present dispute would not be subject to arbitration as a dispute between members because it is uncontested that Koenig and Weisglass, although allied Exchange members at the time they demanded arbitration, did not become allied members until after Dunay’s allied membership had lapsed.

In support of his position, Dunay admits that when he joined the Exchange, he agreed to arbitrate any controversy with persons who were already members or who would become members during the period of his membership. He argues, however, that when his membership terminated he, in effect, “revoked” this agreement to arbitrate any controversy with persons who had not yet attained Exchange membership but would in the future do so. Consequently, as to persons who joined the Exchange after he left, Dunay submits that only the narrower member-nonmember clause of the arbitration provision could arguably apply.

We reject Dunay’s position. Nothing in the arbitration provision limits Dunay’s agreement to arbitrate any controversy with members to those who attain membership contemporaneously with Dunay. To construe the provision to impose such a limitation would be inconsistent with the fact that Dunay had no more power to approve or veto Exchange membership when he was himself a member than after his membership had lapsed. It would also be inconsistent with both the Exchange policy, as evidenced by the broad arbitration provision drafted into its constitution, and our policy (see Mobil Oil Indonesia v Asamera Oil [Indonesia], 43 NY2d 276, 281-282) favoring arbitration, and inconsistent, as well, with Coenen v Pressprich & Co. (453 F2d 1209, cert den 406 US 949).

In Coenen, plaintiff charged defendants with conspiracy to force him to sell stock at an unconscionably low price under a prior agreement, by refusing to allow him to transfer, rather than sell, the stock. The agreement had been entered into in 1968, and the forced sale took place in September, 1970, at a time when plaintiff' was not a member of the Exchange. Plaintiff applied for and became a member in December, 1970, and filed suit. One of the defendants, a member of the Exchange, then sought arbitration of the controversy. The Court of Appeals for the Second Circuit, interpreting the very same arbitration provisions at issue here, held that the claim was arbitrable as a member controversy under the Exchange constitution: “[Plaintiff’s] argument that the New York Stock Exchange arbitration clause only applies to ‘future’ disputes that arise after both parties have become members of the Exchange need not detain us long. As an implementation of the statutory policy of self-regulation, we think the clause is clear on its face. It reads ‘any controversy’ between members. And that is precisely what it must mean if controversies between members are to be kept out of the courts. Had those who drafted the clause intended otherwise they doubtless would have used language plainly stating that ‘any future controversy’ or any controversy between members ‘arising after both parties to the dispute have become’ members” (453 F2d, at p1212).

Put another way, Dunay concedes, as he must, that his obligations under the- arbitration provision survived the termination of his Exchange membership with respect to business engaged in while a member (see Muh v Newburger, Loeb & Co., 540 F2d 970, 972-973; Isaacson v Hayden, Stone, 319 F Supp 929, 930; Osborne & Thurlow v Hirsch & Co., 10 Misc 2d 225, 226). We hold that what survived included Dunay’s obligation to arbitrate any controversy with any future member with respect to their business dealings undertaken while Dunay was a member, whether or not such future membership was obtained before Dunay’s membership had terminated. In thus rejecting the “mutality of membership” theory relied upon by the Appellate Division, we note that Isaacson v Hayden, Stone (319 F Supp 929, supra), cited by that court to support that theory, is inapposite despite some factual similarities.

In that case, one Isaacson had purchased an interest in a brokerage firm during a period in which he was a corporate officer of that firm and an allied member of the Exchange. After his resignation, however, Isaacson sought to have the corporation repurchase those shares. Although he had agreed, as an allied member of the Exchange, to submit any controversy to arbitration, he maintained that he did not have to arbitrate because the specific subject of the action— the supposed obligation of the corporation to repurchase the shares — did not arise until after he ceased being an allied member. After noting that the corporation’s Exchange membership had also lapsed since Isaacson’s demand for repurchase had been made, the court rejected Isaacson’s position and reasoned: “[T]he controversy flows from and is predicated upon the business relationship between the parties which arose during their mutual membership in the Exchange. If the obligation then undertaken by the defendant persists for the purpose of enforcement after termination of those memberships, it also persists as a membership obligation subject to the Constitution of the Exchange. * * * The fact that the plaintiff commenced this action after he ceased to be a member of the Exchange does not impair or destroy the obligation to arbitrate his controversies with the defendant concerning their business relationship assumed by him while he was a member of the Exchange” (319 F Supp, at p 930).

Thus, in Isaacson, unlike the present case, both parties’ membership had lapsed. It was in that context that the court, holding that arbitration was still required, noted the parties’ prior “mutual membership” in the Exchange. That factual reference, however, had no relevance to the court’s legal conclusion that Isaacson’s obligation to arbitrate arose from business activity undertaken while he was a member of the Exchange.

II

The result is the same even if this dispute is governed by the member-nonmember clause of the Exchange constitution, for the controversy is one “arising out of the business” of Dunay. Dunay’s contrary argument is that the controversy arises solely out of his position as a joint venturer. That argument, however, ignores the fact that it was for business reasons that the joint venture became closely associated with Ladenburg and Dunay assumed Ladenburg’s presidency. As president of a member corporation, Dunay became an allied Exchange member. While president and while an allied member, Dunay purchased closely held Ladenburg shares and agreed to restrictions placed upon their sale or transfer in the interest of assuring the “continued orderly management and growth of the corporation.” On these uncontested facts, we find it impossible to conclude, as did the Appellate Division, that the present dispute over stock ownership does not arise from Dunay’s business as president of Ladenburg. To the contrary, Dunay held Ladenburg stock, not as an ordinary investment vehicle for himself or for the joint venture, but in close connection with his efforts on behalf of himself and the joint venture to have input into the management and control over Laden-burg (see Kelleher v Reich, Fed Sec L Rep [CCH], par 98.-040 [SDNY, June 19, 1981]). That being the case, he held the stock, at least in part, in his capacity as manager and controller of Ladenburg — that is, as its president — and not exclusively in his capacity as a joint venturer investing joint venture funds.

Accordingly, for the reasons expressed above, the order of the Appellate Division should be reversed, with costs.

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

Order reversed, with costs, and the judgment of Supreme Court, New York County, reinstated.

       The shareholders agreement also contained a provision requiring arbitration of “[a]ny controversy or claim arising out of or in connection with this [a]greement” in accordance with Exchange arbitration procedures. Because the arbitration demand made no reference to the shareholders agreement, we do not consider its arbitration provision further.


author:
      Per Curiam.
     Jones, Fuchsberg and Meyer, JJ.

text:
    The People of the State of New York, Respondent, v Ronald Monroe, Appellant.
    Argued September 15, 1981;
    decided October 27, 1981

      POINTS OF COUNSEL

      Joseph A. Cascione and George R. Spitz for appellant. There was an intrinsic conflict of interest arising out of the joint representation in this case.

      (People v Gonzalez, 30 NY2d 28, 409 US 859; Glasser v United States, 315 US 60; People v Gomberg, 38 NY2d 307; United States v Wisniewski, 478 F2d 274; People v Coleman, 42 NY2d 500; People v Rivera, 62 AD2d 767; People v Kerr, 61 AD2d 762; People v Allini, 60 AD2d 886; People v Ortiz, 49 NY2d 718.)

      Mario Merola, District Attorney (Alan D. Kaplan and Billie Manning of counsel), for respondent.
    No significant possibility of a conflict of interest existed as a result of defense counsel’s joint representation of appellant and his codefendant. (People v Monroe, 73 AD2d 563; People v Alexander, 37 NY2d 202; People v McRay, 51 NY2d 594; People v Clements, 37 NY2d 675; People v Gonzalez, 30 NY2d 28; People v Gomberg, 38 NY2d 307; People v Burwell, 53 NY2d 849; People v Crump, 53 NY2d 824; People v Macerola, 47 NY2d 257.)
   OPINION OF THE COURT

Per Curiam.

The issue presented on this appeal is whether defendant was deprived of effective assistance of counsel by reason of his attorney’s joint representation of both defendant and his codefendant in negotiating a plea bargaining agreement. While we hold today that in accepting a guilty plea from a jointly represented defendant, the court must act to safeguard a defendant’s right to effective assistance of counsel, we conclude, on the facts of this case, that defendant has not established that a significant possibility of a conflict of interest existed as to warrant a reversal of his conviction.

Defendant was indicted along with his codefendant for the crimes of attempted murder in the second degree, assault in the first degree, and two counts of criminal possession of a weapon in the second degree. Pursuant to a plea bargaining agreement negotiated by the attorney for both defendants, defendant pleaded guilty to attempted assault in the first degree. While the court determined at the time of defendant’s plea that it was made in a knowing and voluntary manner, it did not ascertain whether defendant perceived the risks involved in representation of himself and his co-defendant by the same attorney.

Prior to sentencing, defendant retained separate counsel and moved to withdraw his guilty plea on the ground that his former attorney’s representation involved a conflict of interest. The court conducted a full hearing on this motion. Defendant claimed that his former attorney had told, him that if he pleaded guilty, his codefendant would be treated more leniently. That attorney denied ever having made such a statement. Substituted counsel argued that an “intrinsic conflict of interest” existed, because defendant had not been advised of the possibility of success if his case went to trial.

The court, in denying the motion, found that original counsel had properly and fully advised his two clients as to their alternatives, that defendant’s plea was knowingly and voluntarily made, and that no adequate showing had been made that defendant had been deprived of effective assistance of counsel. Finally, the court, after reviewing the evidence in the People’s possession, noted that defendant’s attorney had negotiated a very fair disposition of the charges against defendant. Thereafter, the court sentenced defendant to an indeterminate sentence not to exceed four years, pursuant to the plea bargaining agreement. The Appellate Division unanimously affirmed the judgment of conviction, without opinion. There should be an affirmance.

Initially, we deal with the question of whether our prior holdings in the area of joint representation, to the effect that the trial court must ascertain on the record whether jointly represented defendants perceive the risks of that representation (People v Macerola, 47 NY2d 257; People v Gomberg, 38 NY2d 307), should be applied in a case where one attorney negotiates a plea bargain for multiple defendants. While we adhere to our belief that joint representation is not per se violative of a defendant’s right to effective assistance of counsel (People v Macerola, 47 NY2d 257, 264, supra), we hold that prior to accepting a guilty plea from a jointly represented defendant, the court must ascertain, on the record, whether the “defendant’s decision to proceed with his attorney is an 'informed decision” (People v Gomberg, 38 NY2d 307, 313, supra) The problems of joint representation are no less acute at the plea bargaining stage than at the trial (see, generally, Girgenti, Problems of Joint Representation of Defendants in a Criminal Case, 54 St John’s L Rev 55).

However, in a case where the court has accepted a guilty plea without first assuring that the defendant understands the risks of joint representation, a reversal of defendant’s conviction on appeal will result only when there is a “significant possibility” that a conflict of interest existed (People v Macerola, 47 NY2d 257, 264, supra).

In the present case, the court did not ascertain, prior to accepting defendant’s plea, that his decision to proceed with joint representation was an informed decision. However, on the presentencing motion to withdraw the plea, the court did hold a hearing to determine whether a conflict of interest existed. While this is not the preferred procedure, the findings of fact made by the court after this hearing and affirmed by the Appellate Division, are entitled to great weight on review in this court. Thus, the court below found that original counsel had properly apprised defendant of the alternatives open to him, and that defendant was not subjected to any undue pressures in accepting the plea bargain arranged by that counsel.

The court thus did not credit defendant’s claim that prior counsel had induced him to plead guilty to help his codefendant. While defendant’s substituted counsel argued that an intrinsic conflict of interest existed, because prior counsel did not inform defendant of the possibility of success if he went to trial, the court found that counsel had in fact fully apprised defendant of all of his alternatives. Where, as here, defendant has had an opportunity to establish, on the record, the basis for his claim of a conflict of interest and has failed to do so, it cannot be said that it was error as a matter of law for the Appellate Division to have affirmed the decision of Supreme Court concluding that no significant possibility of a conflict of interest existed.

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

Jones, Fuchsberg and Meyer, JJ.

(dissenting). The order of the Appellate Division should be reversed, the plea vacated and the case remitted to the Supreme Court for further proceedings. A postplea inquiry does not satisfy the requirement that, before accepting a plea from a defendant who is jointly represented, the court must ascertain on the record whether the defendants perceive the risk of such representation. Such queries are of a kind with those which are called for when a defendant desires to exercise .the right to proceed pro se (see People v Kelly, 44 NY2d 725, affg 60 AD2d 220, 223; People v McIntyre, 36 NY2d 10, 17); both are rooted in the key role the right to counsel plays under our adversary system, something which lay defendants usually will not fully appreciate. And, even more so than on a disposition after trial, whose fuller record will have illumined the possibility of prejudice more adequately, post hoc rationalization of the harmlessness of a court’s failure to make inquiry when a plea is taken contains a substantial risk of unreliability (cf. People v Purdy, 53 NY2d 806; People v Rolston, 50 NY2d 1048; People v Grant, 45 NY2d 366, 377-380; cf. People v Hodge, 53 NY2d 313, 321 [right to counsel at preliminary hearing]; People v Jones, 47 NY2d 409, 417 [right to public trial]).

The difficulty with a retrospective hearing to determine whether there was in fact a conflict is that it requires not only the recapture of the dynamics of the plea bargaining (or when the issue is raised after trial, of the trial), in itself a difficult enough pursuit, but also the persuasion of the Judge who failed to see the possibility of conflict in the first place and the attorney whose acumen, if not integrity, may be at stake, that they were in error and should admit it. True, in any particular case, including the instant case, the fact may, indeed, be that there was no conflict, but the odds against a finding of conflict resulting from such a hearing are so great and the effect upon the appearance of justice of a procedure which appears to pit lawyer and Judge against client is so devastating that we can no longer agree to use of the procedure. The alternative is entirely free of such flaws and is simple in both operation and concept : a Trial Judge faced with two defendants represented by the same attorney must inform each of his right to separate counsel and that, if he cannot afford counsel, the court will appoint counsel to advise him concerning the possibility of conflict and to represent him if a real possibility of conflict exists. Advised of his rights before the conflict arises, each defendant can make an intelligent choice. Should he elect to proceed with joint counsel after being so informed by the court or after consultation with separate counsel, he would then be foreclosed by his choice from thereafter raising the issue of conflict. The only difference between the present rule and that suggested is that the latter is mandatory, but the instances in which the present rule is honored in the breach make clear that justice requires no less.

Chief Judge Cooke and Judges Jasen, Gabrielli and Wachtler concur in Per Curiam opinion; Judges Jones, Fuchsberg and Meyer dissent and vote to reverse in a memorandum.

Order affirmed.

      . The codefendant pleaded guilty to assault in the first degree and was sentenced to an indeterminate term not to exceed nine years.

      . The rule under the Federal Constitution differs, as the Supreme Court recently held (Cuyler v Sullivan, 446 US 335). Under the Sixth Amendment to the United States Constitution, the trial court need not initiate an inquiry of jointly represented defendants unless it has reason to know that a conflict may actually exist. Further, a defendant who raises no objection to multiple representation at trial must demonstrate that an actual conflict of interest existed to adversely affect his lawyer’s performance, to establish a violation of the Sixth Amendment.


text:
    The People of the State of New York, Respondent, v Lymus Middleton, Appellant.
    Argued September 14, 1981;
    decided October 27, 1981

      POINTS OF COUNSEL

      Harvey J. Michelman and Perry S. Reich for appellant. I. The impressions made of appellant's teeth were inadmissible at trial.

      (Gerstein v Pugh, 420 US 103; Schmerber v California, 384 US 757; Fisher v United States, 425 US 391; Matter of Barber v Rubin, 72 AD2d 347; Matter of Mackell v Palermo, 59 Misc 2d 760; Matter of Alphonso C. [.Morgenthau], 50 AD2d 97, 38 NY2d 923; Matter of District Attorney of Kings County v Angelo G., 48 AD2d 576, 38 NY2d 923; People v Vega, 50 AD2d 1103; Matter of Mollis v Cawse, 38 Misc 2d 179.) II. Appellant should be given the opportunity to establish that the statements taken from him were obtained during a period of illegal detention. (People v Misuis, 47 NY2d 979; People v Dunaway, 38 NY2d 812, 61 AD2d 299, 44 NY2d 930, revd sub nom. Dunaway v New York, 442 US 200; People v Thomas, 50 NY2d 467; People v Morales, 42 NY2d 129, 434 US 1018; People v Patterson, 39 NY2d 288, affd sub nom. Patterson v New York, 432 US 197.)

      Robert M. Morgenthau, District Attorney (Victoria Lea Smith and Robert M. Pitler of counsel), for respondent.
    I. Defendant’s guilt was proved beyond a reasonable doubt. II. Defendant was arrested on the basis of probable cause. Also, he waived the right to judicial review of the issue and has not preserved the issue for appeal. (People v Patterson, 39 NY2d 288, affd sub nom. Patterson v New York, 432 US 197; People v Samuels, 49 NY2d 218; Dunaway v New York, 442 US 200; United States v Tucker, 610 F2d 1007; People v Thomas, 50 NY2d 467.) III. Defendant’s incarceration between arrest and indictment was lawful, hence the dental impressions obtained during that time were not the fruit of an illegal detention. Also, the dental impressions were obtained independently of any alleged illegality in the detention and so were not suppressible as fruit of the detention. (People v Olivo, 52 NY2d 309; Wong Sun v United States, 371 US 471; United States v Rowell, 612 F2d 1176; United States v Jarvis, 560 F2d 494, 435 US 934.) IV. The issuance of the dental examination order was a valid exercise of statutory and constitutional powers of the Supreme Court. (People v Darling, 50 AD2d 1038; People v Perri, 72 AD2d 106, 53 NY2d 957; Matter of Hynes v Lerner, 44 NY2d 329 ; Matter of District Attorney of Kings County v Angelo G., 48 AD2d576, 38 NY2d 923; Katz v United States, 389 US 347; United States v Dionisio, 410 US 1; United States v Mara, 410 US 19; United States v Holland, 378 F Supp 144, affd sub nom. Appeal of Ehly, 506 F2d 1050, 420. US 994; People v Allah, 84 Misc 2d 500.) V. The bite mark evidence was properly admitted as reliable scientific evidence which has been recognized as such by the relevant scientific community. (People v Goldfaden, 52 AD2d 790; People v Allweiss, 48 NY2d 40; People v Leone, 25 NY2d 511; Lindsay v People, 63 NY 143; People v Rivera, 75 AD2d 1027, 51 NY2d 775; People v Jackson, 71 AD2d 1065.)

      . The conclusion reached makes it unnecessary to consider the People’s argument (supported not by their affidavit on the motion in question, but by an affidavit made some nine months later in answer to a speedy trial motion) that the application was first made to and granted by the criminal court and that it was defendant who refused to comply with that order and sought to have the issue determined by the Supreme Court.

   OPINION OF THE COURT

Meyer, J.

The reliability of bite mark evidence as a means of identification is sufficiently established in the scientific community to make such evidence admissible in a criminal case, without separately establishing scientific reliability in each case, but subject, of course, to the establishment by foundation evidence of the authenticity of the materials used and propriety of the procedure followed in the particular case and to cross-examination intended to test the reliability of the conclusion reached in that case. The order of the Appellate Division should, therefore, be affirmed.

Defendant Middleton worked in the maintenance engineering department at Mount Sinai Hospital in New York City. His supervisor, Gladstone Scale, was found on the floor of his office on December 16, 1976 at about 9:30 p.m. and pronounced dead at 10:00 P.M. Defendant was arraigned at 9:00 a.m. the next morning on a felony complaint. Four days thereafter his attorney demanded a preliminary hearing pursuant to GPL 180.60. The hearing was several times adjourned on the representation of the People that the case was being prepared for presentation to the Grand Jury.

Autopsy made by the chief medical examiner, Dr. Dominick Di Maio, revealed five distinct bite marks on Scale’s back. Though the matter was then still pending in the Criminal Court, the People by motion returnable January 10, 1977 in Supreme Court sought an order directing defendant to submit to examination of his mouth and the making of a cast or mold by Dr. Lowell J. Levine, a dentist associated with the office of the chief medical examiner. Defendant’s attorney opposed that motion on the grounds that the Supreme Court was without jurisdiction, that the People had failed to establish probable cause to believe defendant had committed the crime, and that the examination and casting would violate defendant’s Fifth Amendment rights. Those objections having been overruled, the examination and casting took place and the Grand Jury after presentation to it of that as well as other evidence indicted. A motion addressed to the sufficiency of the Grand Jury minutes was then made and denied for failure to make the requisite factual showing that there was reasonable cause to believe the evidence before the Grand Jury insufficient. Several months thereafter, defendant’s attorney sought suppression of admissions made by defendant in a statement to the District Attorney during the early morning hours of December 17,1976, and, after hearing, that motion was denied. No pretrial motion for suppression of the bite mark evidence was ever made.

During the course of the trial defendant argued for suppression of the casts of defendant’s teeth on the ground that the order for the taking of them violated defendant’s “Fifth and Fourteenth Amendment rights against self-incrimination”, for a hearing with respect to the reliability of testimony concerning bite marks and for the exclusion of Dr. Levine’s testimony' on the latter ground. At the end of the People’s case defendant moved to strike Dr. Levine’s testimony on the ground that it lacked scientific validity, and to dismiss the indictment for insufficiency of evidence on the ground that Dr. Levine’s testimony should not have been submitted to the Grand Jury. The Trial Judge ruled that no hearing on reliability was required in light of decisions and literature on the subject, that the suppression motion was governed by the order for examination of defendant and the taking of a cast as the law of the case, and the sufficiency of the indictment, by the denial of so much of the omnibus motion as sought inspection of the Grand Jury minutes.

Convicted of manslaughter in the first degree after a jury trial, defendant appealed to the Appellate Division, First Department, which, affirming the suppression court’s findings, held defendant’s statements to the District Attorney voluntary, and the bite mark order proper nothwithstanding that there had not yet been a preliminary probable cause hearing or an indictment, because defendant was under arrest and in custody, his arrest having been based upon evidence and information which clearly amounted to probable cause to arrest. On appeal by permission to this court defendant argues, with respect to the bite mark evidence, (1) that the Supreme Court was without jurisdiction to make the order requested, (2) that the order was in any event improper absent a showing of probable cause, and (3) that in any event the evidence should have been excluded because its reliability had not been established either generally or with respect to the comparisons to which Dr. Levine testified. For the reasons hereafter stated, we disagree with the first and third contentions, and find that the second was not properly preserved.

I

When the application was made for an order permitting examination and the taking of bite impressions, defendant had been arraigned and preliminary hearing had been adjourned for presentation of the matter to the Grand Jury. The Supreme Court has the authority to issue an order in furtherance of a Grand Jury investigation even though no arrest or indictment has yet occurred (Matter of District Attorney of Kings County v Angelo G., 48 AD2d 576, app dsmd 38 NY2d 923; see People v Perri, 72 AD2d 106, 112, affd 53 NY2d 957). Nor was it ousted of jurisdiction because defendant had been arraigned in Criminal Court, for CPL 10.10 (subd 3, par f) recognizes the authority of a Supreme Court Justice to sit “as a local criminal court”, subdivision 3 of section 10.30 of that law gives a superior court Judge sitting as a local criminal court preliminary jurisdiction, and subdivision 2 of that section makes the preliminary jurisdiction of a local criminal court “subject to divestiture thereof in any particular case by the superior courts and their grand juries.” Whether the Supreme Court order be regarded as made by that court sitting as a local criminal court or by a superior court in aid of a Grand Jury proceeding it was, therefore, properly made.

II

The People advance several reasons why the Fourth Amendment issue is not properly before us. They argue first from the fact that defendant was arraigned and held without bail and the presumption of regularity that, defendant having failed to supply the arraignment minutes, it must be presumed that probable cause was found on arraignment. The difficulty with that argument is that the People do not contest that a preliminary hearing request was made after arraignment and was adjourned rather than denied as it would have been had probable cause been found as the result of an evidentiary hearing at arraignment.

More fruitful is the People’s second argument that, though, as defendant’s motion to suppress his statements shows, he was familiar with the general rule (CPL 710.40) that a motion to suppress evidence be made prior to trial, no such motion was here made. Though CPL 710.40 (subd 4) permits such a motion to be made during trial under proper circumstance and defendant did, just before Dr. Levine testified, move to suppress the bite mark evidence, he did so on Fifth Amendment grounds and made no mention of probable cause or the Fourth Amendment. Defendant seeks to circumvent that omission by pointing to his objection, made to and tacitly overriden by the Judge who heard the motion to examine and take impressions of his mouth, that the court was without authority to grant such an order until probable cause had been shown. That ruling, says defendant, became the law of the case and preserved the Fourth Amendment issue for him. The short answer is that by failing to challenge the admissibility of the bite mark evidence on Fourth Amendment grounds, defendant waived any objection on that score. The purpose of the procedure established by CPL article 710 is not only to protect the defendant against the use against him of illegally obtained evidence but also to give the People the opportunity, by showing the information in the possession of the police at the time the evidence was obtained, to contest the claim of illegality. Had defendant sought by pretrial motion (and even during trial, if the Trial Judge found the delay not unreasonable) to suppress the evidence on Fourth Amendment grounds and had the suppression Judge then ruled that the earlier ruling was the law of the case, the issue would have been preserved, not because of the contention advanced on the prior motion, but because it had been again advanced with respect to the admission of the evidence. But a defendant may not, having failed to object to the admission of evidence on Fourth Amendment grounds, point to the fact that the issue had been raised in some other context earlier in the proceeding as preserving the evidence question (see People v Miguel, 53 NY2d 920, 922; People v Gates, 24 NY2d 666, 670). To hold otherwise would lend an unwarranted degree of gamesmanship to the trial process.

Ill

Identification through configuration of and marks upon teeth has long been permitted in New York (Lindsay v People, 63 NY 143, 152 [1875]). Bite mark evidence, however, requires comparison of impressions made upon a victim’s body with a suspect’s dentition as a means of identifying him as the perpetrator of a crime. Defendant argues that the procedure, while it may be a valid means of excluding suspects from consideration, has not been sufficiently accepted by the scientific community to permit its use as a means of identifying a perpetrator. But the test is not whether a particular procedure is unanimously indorsed by the scientific community, but whether it is generally acceptable as reliable. The techniques employed (photography, freezing of tissue specimens, the taking of dental molds, visual observation) are accepted and approved by the majority of the experts in the field (see, e.g., Beckstead, Ronson & Giles, Review of Bite Mark Evidence, 99 J Am Den Assn 69 et seq.; Harvey, Dental Identification and Forensic Odontology [1976]; and MacDonald, Bite Mark Recognition and Interpretation, 14 J Forens Science Soc 229 [1974]; cf. Moenssens & Inbau, Scientific Evidence in Criminal Case, ch 16 [2d ed, 1978]). The reliability of the procedures has, moreover, been accepted by all of the appellate courts that have addressed the issue (see, e.g., State v Garrison, 120 Ariz 255; People v Slone, 76 Cal App 3d 611; People v Watson, 75 Cal App 3d 384; People v Marx, 54 Cal App 3d 100; People v Milone, 43 Ill App 3d 385; Niehaus v State, 265 Ind 655, cert den 434 US 902; State v Peoples, 227 Kan 127; State v Kleypas, 602 SW2d 863 [Mo]; State v Sager, 600 SW2d 541 [Mo], cert den 450 US 910; State v Temple, 302 NC 1; State v Routh, 30 Ore App 901; United States v Holland, 378 F Supp 144, affd sub nom. Appeal of Ehly, 506 F2d 1050, cert den sub nom. Ehly v United States, 420 US 994; State v Jones, 273 SC 723; Patterson v State, 509 SW2d 857 [Tex]; and see Ann., 77 ALR3d 1122). It was not error, therefore, for the Trial Judge, without a hearing concerning the scientific principles involved, to hold the evidence generally reliable (People v Magri, 3 NY2d 562, 566).

The only remaining question, then, is whether the accepted techniques were employed by the experts in this case in reaching the conclusion that the bite marks on the decedent’s back were made by defendant’s teeth. Dr. Di Maio testified that there were fresh hemorrhages beneath the bite marks on Scale’s back indicating that they had been made no longer than three hours before death, that he first photographed and measured the bite mark areas and then removed the skin and nailed the pieces to a board in conformance with the measurements taken and placed them in a deep freeze. Approximately one week later, when Dr. Levine examined the specimens, Dr. Di Maio found little or no variation in the specimens before and after freezing.

Dr. Levine testified, with a reasonable degree of medical certainty, that the bite wounds had been inflicted by defendant. Conceding that the accuracy of the comparison could be affected by the quality of the specimen, the number of marks on the skin and distortions in the skin, Dr. Levine noted that segments of the 12 teeth identifiable from the five wounds were perfectly consistent with defendant’s teeth, that indeed he could find no inconsistency despite the fact that teeth have unique characteristics of arrangement, shape, angle and size, and that the odds against the characteristics found identifying defendant being duplicated in any other person’s mouth were “astronomical”. While the weight of that evidence was, of course, for the jury there clearly was proper foundation for its admissibility.

For the foregoing reasons, the order of the Appellate Division should be affirmed.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones and Wachtler concur; Judge Fuchsberg taking no part.

Order affirmed.

      . He points to Glaister, Medical Jurisprudence and Toxicology (13th ed, 1973) ; Fernhead, Factors for Forensic Odontology (1 Med Science Law 273); and Note, Admissibility of Bite Mark Evidence (51 So Cal L Rev 309), in this respect.


author: Jasen, J.

text:
    Terrance Shanley, Appellant, v Callanan Industries, Inc., Defendant-Respondent and Third-Party Plaintiff-Respondent. Kenneth E. James, Third-Party Defendant-Respondent.
    Argued September 9, 1981;
    decided October 27, 1981

      POINTS OF COUNSEL

      E. Stewart Jones, Jr., E. Stewart Jones and Robert M. Cohen for appellant. I.
    The doctrine of collateral estoppel may not be invoked in this case. (Schwartz v Public Administrator of County of Bronx, 24 NY2d 65; Commissioners of State Ins. Fund v Low, 3 NY2d 590; Gramatan Home Investors Corp. v Lopez, 46 NY2d 481; Julien J. Studley, Inc. v Lefrak, 66 AD2d 208; Matter of Morgen v CBS, Inc., 54 AD2d 523; Murphy v Erie County, 28 NY2d 80; Smith v Kirkpatrick, 305 NY 66; State of New York v County of Sullivan, 54 AD2d 29; Newin Corp. v Hartford Acc. & Ind. Co., 37 NY2d 211; Matter of Reilly v Reid, 45 NY2d 24.) II. Defendant did not meet its burden on a motion for summary judgment. (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395; Rotuba Extruders v Ceppos, 46 NY2d 223; Andre v Pomeroy, 35 NY2d 361; Millerton Agway Coop, v Briarcliff Farms, 17 NY2d 57; C. A. S. Enterprises v Newman, 70 AD2d 981; Nesbitt v Nimmich, 34 AD2d 958, 30 NY2d 622; Stelick v Gangl, 47 AD2d 789; Monroe Abstract &

      Tit. Corp. v Giallombardo, 54 AD2d 1084; Greenberg v Manlon Realty, 43 AD2d 968.)

      Warner M. Bouck, Donald Gulling, Jr., and Seale W. Tuttle for defendant-respondent and third-party plaintiff-respondent.
    The court below found that plaintiff-appellant
    is precluded from litigating again the question of his own negligence because he had a full and fair opportunity to litigate all the issues during a prior jury trial. (Matter of Reilly v Reid, 45 NY2d 24; B. R. De Witt, Inc. v Hall, 19 NY2d 141; Good Health Dairy Prods. Corp. of Rochester v Emery, 275 NY 14; Israel v Wood Dolson Co., 1 NY2d 116; Cummings v Dresher, 18 NY2d 105; Schwartz v Public Administrator of County of Bronx, 24 NY2d 65; Gramatan Home Investors Corp. v Lopez, 46 NY2d 481; James v Shanley, 73 AD2d 752; Huston v De Leonardis, 44 AD2d 110.)

      H. Ward Hamlin, Jr., and Hubert D. Miles for third-party defendant-respondent.
    The appeal herein should be dismissed as against third-party defendant-respondent James.
   OPINION OF THE COURT

Jasen, J.

Kenneth James and Terrance Shanley were involved in a head-on automobile collision on September 10, 1976. Two separate actions in negligence were brought as a result. These actions were originally joined for trial, but were severed immediately prior to trial, without opposition. In the first action, the jury found Shanley 100% at fault and awarded James $65,000 in damages. In this second action, Shanley seeks damages from Callanan Industries (Callanan) , claiming a hazardous condition created by Callanan caused the accident. The issue presented on this appeal is whether the judgment in the first action collaterally estops plaintiff Shanley from pursuing this second action.

Callanan moved for summary judgment in this second action, arguing that the question of liability had been completely resolved against Shanley in the prior action between James and Shanley. Judge Miner, who had also presided at the prior trial, denied the motion and held that the question of Callanan’s possible negligence had not been litigated. On appeal, the Appellate Division modified and granted Callanan’s motion to dismiss. Noting that a prior judgment binds the litigants as to issues which could have been litigated as well as those that were litigated (Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306), the Appellate Division held that the jury’s verdict, applying 100% of the negligence to Shanley, necessarily implied a determination that Shanley’s negligence was the proximate cause of the accident. This reasoning led the court to assume that Shanley had been given the opportunity to litigate the question of causation and to present evidence on all causal factors, including the condition of the highway at the scene of the accident. Thus, the court concluded, collateral estoppel should be invoked. We disagree.

It has long been the rule in New York that “there are but two necessary requirements for the invocation of the doctrine of collateral estoppel. There must be an identity of issue which has necessarily been decided in the prior action and is decisive of the present action, and, second, there must have been a full and fair opportunity to contest the decision now said to be controlling.” (Schwartz v Public Administrator of County of Bronx, 24 NY2d 65, 71.)

In a case such as this, where one accident gives rise to several claims in negligence, there is potentially a common question of causation. Therefore, it is necessary to determine whether the issue was necessarily decided in the previous action and whether there was a full and fair opportunity to litigate the claim made in the present action.

Recently, in considering the use of collateral estoppel by defendants who were not parties to the prior action, this court stated that it must be clear “that the prior determination squarely addressed and specifically decided the issue.” (O’Connor v G & R Packing Co., 53 NY2d 278, 280.) In O’Connor v G & R Packing Co., we distinguished the case in which it is clear that the first litigation considered the issue fully and made a determination (Malloy v Trombley, 50 NY2d 46), even if in the alternative, from the case where it is unclear, because of the nature of the decision, that the litigant was afforded his day in court. (O’Connor v G & R Packing Co., supra, at pp 282-283.)

The test of a full and fair opportunity to litigate is designed to assure that the party against whom collateral estoppel is being invoked has had an opportunity to present his case. In determining whether this test has been met, the court must conduct “an exploration of the various elements which make up the realities of litigation.” (Schwartz v Public Administrator of County of Bronx, 24 NY2d 65, 72, supra.) Among the elements to be considered is the “foreseeability of future litigation”. (Schwartz v Public Administrator of County of Bronx, supra, at p 72.) In this case, all the parties knew of the pending action between Shanley and Callanan, which, prior to its severance, was calendared for joint trial. Counsel did not present the issue of or any evidence as to Callanan’s potential negligence relative to the condition of the highway at the scene of the accident, nor was the jury instructed that it could apportion the negligence among nonparties as well as Shanley and James. The first action was tried, according to Judge Miner, the Trial Judge, “upon the assumption that he [Shanley] would have the opportunity to litigate his claim against Callanan” in the severed action between those parties. Thus, the jury’s determination that Shanley was 100% at fault as between Shanley and James did not necessarily decide the issue of negligence as it exists between Shanley and Callanan. Nor can we say, as a matter of law, that the jury verdict in the first action necessarily precludes a different determination of negligence in a second litigation between different parties based upon a different claim of negligence even though both cases arose as a result of the same accident.

While it has been said in the past that a determination finding the defendant in the first action to be negligent barred a relitigation of the issue of negligence arising out of the same accident when the defendant then brought a suit against a third party (Albero v State of New York, 31 AD2d 694, affd 26 NY2d 630), that rule is applicable only where contributory negligence is a full defense. Under the doctrine of contributory negligence, a determination that a party was negligent to any degree would bar that party from relitigating the question of his negligence in an action against any other party arising out of the same accident. It was not necessary to determine the negligence of such other party as the adjudicated negligence of the party bringing the action would bar his recovery.

Since the Albero case, our State had adopted the comparative negligence rule. (CPLR 1411.) With the adoption of this statute, it is now the rule that a determination between two parties on the issue of negligence no longer necessarily bars recovery against a stranger to the first action unless the issue was litigated on the merits in the prior trial.

The doctrine of collateral estoppel is not applicable in this case. The issue of Callanan’s negligence simply was not litigated or necessarily decided in the first action.

Finally, we note that this entire appeal arises only as a result of the severance of the two actions immediately prior to trial. Although it is within a trial court’s discretion to grant a severance, this discretion should be exercised sparingly. Where complex issues are intertwined, albeit in technically different actions, it would be better not to fragment trials, but to facilitate one complete and comprehensive hearing and determine all the issues involved between the parties at the same time. Fragmentation increases litigation and places an unnecessary burden on court facilities by requiring two separate trials instead of one.

Accordingly, on plaintiff’s appeal as against third-party defendant James: appeal should be dismissed, without costs. On plaintiff’s appeal as against defendant Callanan Industries, Inc.: order, insofar as appealed from, should be reversed, with costs, and defendant’s motion for summary judgment against plaintiff should be denied.

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

On plaintiff’s appeal as against third-party defendant James: Appeal dismissed.

On plaintiff’s appeal as against defendant Callanan Industries, Inc.: Order, insofar as appealed from, reversed, etc.

       Callarían had impleaded J ames for full or partial indemnity or contribution. James’ motion for summary judgment was granted by Special Term and Shanley did not appeal this order. The validity of that part of the order cannot be raised for the first time on appeal to this court (Cohen and Karger, Powers of the New York Court of Appeals, § 94, pp 404-405) and, therefore, we dismiss the appeal purportedly taken by Shanley as to James.