text:
    In the Matter of New York Telephone Company, Respondent, v Public Service Commission, Appellant.
    Argued March 27, 1984;

      decided May 10, 1984

      POINTS OF COUNSEL

      Charles R. Gibson and David E. Blabey for appellant.
    I. .Petitioner failed to demonstrate that the rates allowed in the proceeding under review were unjust or unreasonable. CMatter of St. Lawrence Gas Co. v Public Serv. Comm., 42 NY2d 461; Power Comm, v Hope Gas Co., 320 US 591; Matter of New York Tel. Co. v Public Serv. Comm., 64 AD2d 232, 46 NY2d 710; West Ohio Gas Co. v Commission [No. 1], 294 US 63; Matter of Long Is. Light. Co. v Maltbie, 249 App Div 918; Matter of City of New York v Public Serv. Comm., 17 AD2d 581, 13 NY2d 594; Banton v Belt Line Ry., 268 US 413.) II. The Commission’s disallowance of the revised operator work times was reasonable and lawful. v Federal Power Comm., 425 US 662; Matter of Long Is. Water Corp. v Public Serv. Comm., 49 AD2d 392; Matter of National Fuel Gas Distr. Corp. v Public Serv. Comm., 90 AD2d 605; Matter of New York State Council of Retail Merchants v Public Serv. Comm., 45 NY2d 661.)

      John M. Clarke, Gerald E. Murray, Campbell L. Ayling and Richard Pu for respondent.
    I. The court below did not err when it held that the Commission acted arbitrarily and capriciously by ignoring the Federal scheme for separating interstate and intrastate costs. (North Carolina Utilities Comm, v Federal Communications Comm., 552 F2d 1036, 434 US 874; New York Tel. Co. v Federal Communications Comm., 631 F2d 1059; Matter of New York Tel. Co. v Public Serv. Comm., 77 AD2d 332, 52 NY2d 1072, 53 NY2d 605, 838; Matter of New York Tel. Co. v Public Serv. Comm., 309 NY 569; City of New York v United States, 346 F Supp 151; Minnesota Rate Cases, 230 US 352; Smith v Illinois Bell Tel. Co., 282 US 133; Matter of Sapolin Paints v Tully, 55 AD2d 759, 44 NY2d 865; Matter of Lefrak Forest Hills Corp. v Galvin, 40 AD2d 211, 32 NY2d 796, cert den sub nom. Baum v Lefrak Forest Hills Corp., 414 US 1004; Matter of Italian Sons & Daughters v Common Council of Buffalo, 89 AD2d 822.) II. The court below did not err when it rejected the request by Commission counsel to sustain the Commission’s arbitrary and capricious determination on grounds not adopted or relied on by the Commission. (New York Tel. Co. v Public Serv. Comm., 29 NY2d 164; Matter of New York Tel. Co. v Public Serv. Comm., 309 NY 569; Matter of Cohalan v Gioia, 88 AD2d 722; Rochester Gas & Elec. Corp. v Public Serv. Comm., 64 AD2d 345, 47 NY2d 800, 51 NY2d 823, 450 US 961; Matter of New York Tel. Co. v Public Serv. Comm., 77 AD2d 332, 52 NY2d 1072, 53 NY2d 838; Matter of New York Tel. Co. v Public Serv. Comm., 64 AD2d 232, 46 NY2d 710; Matter of Pavilion Natural Gas Co. v Public Serv. Comm., 56 AD2d 413;
      Matter of New Rochelle Water Co. v Public Seru. Comm,., 38 AD2d 375, 31 NY2d 397; Matter of New York Edison Co. u Maltbie, 244 App Div 436; Matter of St. Lawrence Gas Co. v Public Serv. Comm., 42 NY2d 461.)
   OPINION OP THE COURT

Meyer, J.

The determination of the Public Service Commission that because the New York Telephone Company had not used studies based on seven-calendar-day holding time in its rate request it could not use updated operator work time studies covering the five days of the business week is arbitrary because without rational basis. The order of the Appellate Division should, therefore, be affirmed, with costs.

New York Telephone Company (NYT) services customers who make both interstate and intrastate calls. The Federal Communications Commission (FCC) sets rates for interstate service, and the Public Service Commission (PSC) fixes intrastate rates. To provide for the required separation of expenses between interstate and intrastate Operations (see Smith v Illinois Bell Tel. Co., 282 US 133, 149-151), the Congress has established the Federal-State Joint Board (US Code, tit 47, § 410, subd [c]), composed of three FCC commissioners and four State commissioners. The State commissioners must be approved by the FCC but are nominated by the national organization of State commissioners, of which the PSC is a member. The Joint Board has issued a Separations Manual establishing procedures for division of expenses, which has the force of Federal regulation (47 CFR 67.1).

Two of the expense factors requiring division between interstate and intrastate calls involve the time spent by operators in relation to calls (operator work time [OWT]) and the time the company’s equipment is in use while the customer dials and converses after the desired connection is made (holding time). Until the PSC raised the issue in the present rate proceeding, both have been allocated on the basis of studies of the five days of the business week rather than the seven days of the calendar week, those studies being updated periodically when they revealed significant changes in the process. From 1971 to 1978 the OWT factor remained fairly constant, but in 1978, 1979, 1980 and 1981 updated OWT factors were used, reflecting the decrease in operator time devoted to interstate calls resulting from the electronic handling of such calls and consequent greater amount of operator work time spent on intrastate calls.

In its 1981 filing to establish 1982-1983 rates NYT used updated OWT costs. The PSC, however, disallowed their use and required the use of the 1971 OWT factors, the effect of which was to disallow in fixing the intrastate rate $11.3 million of traffic expenses that would have been allowed had the updated OWT factors been used. That sum cannot be recovered in interstate rates which are fixed by the FCC on the basis of the updated five-day OWT studies which allocated less operator time to interstate calls. The PSC does not controvert that the $11.3 million of traffic expenses disallowed by it cannot be recovered from interstate traffic, nor does it dispute that all other regulatory bodies, Federal and State, allow the use of updated OWT factors, or that it has allowed 12 other New York telephone companies to use 1978 and later updated OWT factors in computing their rates. It justifies its requirement that NYT rates be computed on the basis of 1971 factors without updating on the ground that NYT seeks to use updated studies only where they show a shift of expense to intrastate operations and thus is manipulating data to support the increase of such rates. The only example offered by the PSC, however, is in holding time studies. Although holding time is currently divided between interstate and intrastate traffic on the basis of five-day business week studies, the PSC position is that recent technological developments have made seven-day studies feasible, that such studies would be more accurate than five-day studies, and would show a shift to interstate operations even greater than the shift to intrastate traffic that would result from use of updated OWT data. Because NYT does not use seven-day studies for any purpose, the PSC refuses to allow it to use OWT five-day studies made after 1971.

Although at first blush the PSC position appears logical, that appearance does not withstand closer scrutiny. First, it is arbitrary and irrational, when the use of updated five-day OWT studies is allowed by every other regulatory body in the country, and by the PSC itself in fixing the New York rates of 12 other companies, none of which uses seven-day holding time studies, to deny NYT the right to use updated five-day OWT studies. Particularly is this so when, as detailed below, the FCC has issued a formal opinion forbidding reliance on seven-day studies until it and the Joint Board has completed their studies of the use of seven-day data, and in light of the fact that the PSC has offered no meaningful explanation for the disparity between its treatment of NYT and other New York companies (see Matter of New York Tel. Co. v Public Serv. Comm., 64 AD2d 232, 244-246, mot for Iv to app den 46 NY2d 710).

Second, NYT’s use of updated five-day OWT studies and failure to use seven-day holding time studies is in full accord with FCC rulings and may well be mandated by preemptive Federal law. Although section 11.212 of the Separations Manual provides that only the studies upon which the separations are based must cover “a representative period,” in practice, such periods have been five-day, business week units (see Establishment of Interstate Toll Settlements and Jurisdictional Separations Requiring the Use of Seven Calendar Day Studies [hereinafter “Jurisdictional Separations”], FCC 83-180). Five-day studies with respect to holding time have been regularly updated, resulting in apportionment of more holding time expense to interstate operations. Five-day OWT studies, though showing no significant change until 1978, have thereafter been updated elsewhere, but the PSC has denied NYT permission to use any later OWT study than 1971.

The rationale offered for that ruling is that updated studies and seven-day studies must be treated alike. Either the use of both is authorized by the Separations Manual, or neither can be used until the Joint Board has approved a Manual change, but NYT cannot use one (updated OWT studies) without the other (seven-day studies). The difficulty with that position is that the FCC has taken the opposite view. In a letter dated January 31,1984 addressed to the general attorney of Southwestern Bell, it has settled a dispute between that company and the Arkansas Public Service Commission by ruling that “updated studies of OWT are required to assure representativeness” and that to freeze OWT at the 1970 level “would be arbitrary and contrary to providing proper consideration to relative occupancy and time.” In Jurisdictional Separations (FCC 83-180, pp 17-19), a formal opinion, it has, however, held that seven-day studies may not be used until approved by the Joint Board because such studies would shift costs to interstate operations, thereby disrupting the balance established by the Separations Manual, which is already deliberately weighted to shift costs away from intrastate operations. Thus, the FCC requires NYT to divide expenses in a manner which the PSC refuses to permit.

The PSC argues that its exclusive control over intrastate telephone rates may not be pre-empted by the FCC. The FCC has taken a directly contrary position in Jurisdictional Separations (op. cit.). More importantly, the PSC’s position ignores the motivating force behind creation of the Joint Board and adoption of the Separations Manual: a uniform nationwide system of allocation of expenses that will assure that service providers will neither recover from interstate and intrastate operations more than their costs, nor fail to recover all of the costs incurred (Jurisdictional Separations, op. cit., p 19; American Tel. & Tel., 9 FCC 2d 30, 90-91). Here, as the Commission concedes, NYT has been deprived of recovery of $11.3 million of its costs which it cannot recover from interstate rates. Pre-emption aside, it is irrational for the PSC to apply the Separations Manual methodology but do so in a manner inconsistent with FCC rulings and which denies NYT all possibility of recovering part of the expense incurred by it in providing telephone service (Matter of New York Tel. Co. v Public Serv. Comm., 98 AD2d 535, 537-538; Matter of New York Tel. Co. v Public Serv. Comm., 77 AD2d 332, 335-336, app dsmd 52 NY2d 1072, mot for lv to app den 53 NY2d 605).

Finally, the PSC contends that even if it erred in refusing to accept updated OWT studies, NYT cannot be granted relief unless it establishes that the 1982-1983 rate fixed is confiscatory. A rate which is confiscatory is constitutionally infirm (Power Comm. v Hope Gas Co., 320 US 591, 601), but a demonstration of unconstitutionality is not a sine qua non of the overturning of a PSC rate determination. Subdivision 1 of section 97 of the Public Service Law mandates that the PSC “determine * * * just and reasonable rates” with “due regard * * * to a reasonable average return upon the value of the property actually used in the public service”, and we have had occasion in Matter of New York Tel. Co. v Public Serv. Comm. (309 NY 569, 576-578) to comment upon the difference between constitutional and statutory considerations. Having determined that NYT should be allowed the “reasonable average return” of 15.42% and admitted that if it erred in relation to use of updated OWT studies that return would be reduced to 15.23%, the PSC has acknowledged, in effect, that the statutorily mandated reasonable return will not have been provided unless its error, as we hold it to be, in refusing to allow use of updated five-day OWT studies is corrected. Moreover, in arguing as it does, it seeks to uphold its determination on a basis other than that on which it acted (Matter of Trump-Equitable Fifth Ave. Co. v Gliedman, 57 NY2d 588, 593).

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

Chief Judge Cooke and Judges Jasen, Jones, Wacht-ler, Simons and Kaye concur.

Order affirmed, with costs.


source: Caselaw Access Project

author: Wachtler, J.

license: Public Domain

text:
    Banco Ambrosiano, S.p.A., Respondent, v Artoc Bank & Trust Limited, Appellant.
    Argued March 28, 1984;
    decided May 10, 1984

      POINTS OF COUNSEL

      Carl F. Goodman and Barry R. Satine for appellant.
    I. The United States Constitution precludes compelling a Bahamian bank from defending an action in New York, based on quasi-in-rem jurisdiction, where the only contact such bank has with New York is the maintenance of a correspondent account. (Shaffer v Heitner, 433 US 186; Rush v Savchuk, 444 US 320; International Shoe Co. v Washington, 326 US 310; Hanson v Denckla, 357 US 235, 358 US 858; World-Wide Volkswagen Corp. v Woodson, 444 US 286; Amigo Foods Corp. v Marine Midland Bank, 39 NY2d 391, 61 AD2d 896, 46 NY2d 855; Nemetsky v Banque de Developpement de la Republique du Niger, 64 AD2d 694, 48 NY2d 962; J. S. Serv. Center Corp. v Banco Cont., 103 Mise 2d 325.) II. Assuming that the Constitution does not preclude New York from entertaining jurisdiction, the Legislature has refrained from exercising quasi-in-rem jurisdiction in the circumstances presented. (Donawitz v Danek, 42 NY2d 138.) III. Assuming, arguendo that New York has jurisdiction over defendant Artoc, the court below should have exercised its discretion under the doctrine of forum non conveniens and dismissed the action. (Gulf Oil Corp. v Gilbert, 330 US 501; Silver v Great Amer. Ins. Co., 29 NY2d 356; Bata v Bata, 304 NY 51; Islamic Republic of Iran v Pahlavi, 94 AD2d 374; Piper Aircraft Co. v Reyno, 454 US 235; Fertel v Resorts Int., 35 NY2d 895; Babcock v Jackson, 12 NY2d 473; Auten v Auten, 308 NY 155; Obex Trading Corp. v Maraven, S.A., 68 AD2d 841.) IV. As an unlicensed bank, Ambrosiano Milan may not maintain this suit. (Wirth v Prenyl, S.A., 29 AD2d 373; Hubbard, Westervelt & Mottelay v Harsh Bldg. Co., 28 AD2d 295; Plaza Realty Investors v Bailey, 484 F Supp 335.) V. Attachment based upon affidavits submitted by counsel without personal knowledge and without disclosing the source of information and belief is inappropriate. (.Reitmeister v Reitmeister, 273 App Div 652; Swiss Bank Corp. v Eates-sami, 26 AD2d 287; Buell v Van Camp, 119 NY 160.)

      Edward R. Korman, Franklin Feldman, Ronald A. Schwartz and James Falick for respondent.
    I. The exercise of quasi-in-rem jurisdiction in the circumstances here does not violate the due process clause. (Unitech USA v Pon-soldt, 91 AD2d 903; Shaffer v Heitner, 433 US 186; Amigo Foods Corp. v Marine Midland Bank, 39 NY2d 391; Masonite Corp. v Hellenic Lines, 412 F Supp 434; Sterling Nat. Bank & Trust Co. v Fidelity Mtge. Investors Co., 510 F2d 870; Parke-Bernet Galleries v Franklyn, 26 NY2d 13; Benedict Corp. v Epstein, 47 Mise 2d 316; Hubbard, Westervelt & Mottelay v Harsh Bldg. Co., 28 AD2d 295; Bankers Commercial Corp. v Alto, Inc., AD2d 517; China Union Lines v American Mar. Underwriters, 454 F Supp 198.) II. Quasi-in-rem jurisdiction may be exercised in the circumstances here. (.Donawitz v Danek, 42 NY2d 138; Katz v Liston, 22 AD2d 205; Shaffer v Heitner, 433 US 186; Rush u Savchuk, 444 US 320.) III. The courts below had power, under New York rules as to forum non conveniens, to take this case. (.Martin v Mieth, 35 NY2d 414; Silver v Great Amer. Ins. Co., 29 NY2d 356; Bata v Bata, 304 NY 51; Gulf Oil Corp. v Gilbert, 330 US 501; Ehrlich-Bober & Co. v University of Houston, 49 NY2d 574; Unitech USA v Ponsoldt, 91 AD2d 903; Trujillo-M v Bank of Nova Scotia, 51 Mise 2d 689, 29 AD2d 847.) IV. Plaintiff is authorized to commence this proceeding pursuant to section 200-b of the Banking Law. V. The critical facts on which the attachment order was issued are supported by competent evidence and are conceded by defendant. (Swiss Bank Corp. v Eatessami, 26 AD2d 287; Zuckerman v City of New York, 49 NY2d 557.)
   OPINION OF THE COURT

Wachtler, J.

Plaintiff commenced this action by the attachment of approximately $8 million, representing the balance of defendant’s account with its New York correspondent bank. Defendant’s appeal, taken pursuant to leave granted by the Appellate Division, focuses primarily on the question of whether this attempted assertion of quasi-in-rem jurisdiction over defendant’s property is consistent with due process. We agree with the lower courts that the contacts among defendant, the forum and the litigation are sufficient to render this limited exercise of jurisdiction inoffensive to principles of due process.

Plaintiff Banco Ambrosiano (Ambrosiano) is an Italian banking corporation, the principal office of which is in Milan. Prior to being placed in liquidation, Ambrosiano was involved in the international banking business and, in this connection, maintained a representative office in New York City. Defendant Artoc Bank and Trust Limited (Ar-toc), also a banking corporation, is organized under the laws of Nassau, Bahamas, and regularly engages in international transactions. Many of these transactions involve the borrowing and lending of United States dollars, which requires that the transfers be handled through a United States bank. For this purpose, Artoc utilizes an account with its New York correspondent bank, Brown Brothers Harriman and Co. (Brown Brothers). Neither Ambrosiano nor Artoc is authorized to engage in the banking business in this State.

Ambrosiano brought this action to recover $15 million which it allegedly loaned to Artoc, and which has not been repaid. Three transactions, each involving $5 million, were entered into by the parties. The memoranda drawn by Artoc indicate that Ambrosiano was to deposit these sums in Artoc’s account with Brown Brothers, and that repayment was to be made to Ambrosiano’s account with its New York correspondent bank. Artoc contends, in its defense, that the purpose of the transaction was to reloan the funds to Ambrosiano’s controlled subsidiary in Peru and that it was understood that Artoc was to repay these sums only if and when the ultimate recipient repaid them.

With respect to the jurisdictional issue, it appears that all negotiations concerning this agreement were made outside of New York and all communications took place among the Bahamas, Italy, and Peru. The only connection with New York is that the funds were deposited to a New York bank account, were to be repaid to another New York bank account, and apparently were transferred to a New York account on behalf of the ultimate recipient. Artoc argues that the sole reason New York banks were utilized is that the transaction was to be in United States dollars and therefore had to be handled through such clearing accounts. In any event, it is clear that Artoc’s sole contact with this State was its maintenance of the correspondent bank account with Brown Brothers.

Ambrosiano commenced this action by obtaining an ex parte restraining order, enjoining Brown Brothers from transferring the funds in Artoc’s account. Ambrosiano’s motion to confirm the attachment was granted over Artoc’s challenge to the exercise of jurisdiction over its property. Special Term, noting that Ambrosiano conceded the lack of in personam jurisdiction, found that the property bore a reasonable relationship to the cause of action and that this relationship was sufficient to form the basis for quasi-in-rem jurisdiction. The Appellate Division unanimously affirmed.

Prior to the Supreme Court’s expansion of the recognized bases for extraterritorial jurisdiction over a nondomicili-ary, those who wished to sue in this State often resorted to the doctrine of quasi-in-rem jurisdiction to force a nondom-iciliary defendant to litigate a claim in a forum where the defendant happened to own property. The conceptual basis for the State’s power to adjudicate the claim was defendant’s property, which was brought before the court by virtue of its seizure or attachment. Any resulting judgment was viewed as a judgment against the property only.

With the holding in International Shoe Co. v Washington (326 US 310), the approach to jurisdictional analysis was greatly altered. While jurisdictional power had been a function of the defendant’s presence, actual or constructive, in the forum State, International Shoe shifts the focus of the inquiry to the nature and quality of the defendant’s contacts with the State. Those contacts must be such as to “make it reasonable and just, according to our traditional conception of fair play and substantial justice” to require the defendant to litigate the claim in the particular forum (id., at p 320). Where the cause of action arises out of the defendant’s activities in or contacts with the State, the extraterritorial exercise of jurisdiction is deemed reasonable.

The long-arm jurisdiction legitimized by the International Shoe court was implemented in this State by statute. When the CPLR took effect in 1963, it contained two relevant sections. CPLR 301 preserves all previously existing jurisdictional bases, providing that the courts “may exercise such jurisdiction over persons, property, or status as might have been exercised heretofore”. The long-arm statute, CPLR 302, provides that when a cause of action arises out of certain activities either occurring within the State or having an impact within the State, jurisdiction may be exercised over a nondomiciliary. Importantly, in setting forth certain categories of bases for long-arm jurisdiction, CPLR 302 does not go as far as is constitutionally permissible. Thus, a situation can occur in which the necessary contacts to satisfy due process are present, but in personam jurisdiction will not be obtained in this State because the statute does not authorize it (Siegel, NY Prac, § 84, p 95; Note, Minimum Contacts and Jurisdictional Theory in New York: The Effect of Shaffer v. Heitner, 42 Alb L Rev 294, 306).

Even with the adoption of the long-arm statute, quasi-in-rem jurisdiction, which had been carried forward by virtue of CPLR 301, remained a viable method for subjecting a nondomiciliary to suit in this State. The use of this doctrine was drastically limited, however, by the Supreme Court’s decision in Shaffer v Heitner (433 US 186). There, the court held that the minimum contacts analysis set forth in International Shoe is applicable to actions involving quasi-in-rem as well as in personam jurisdiction (id., at p 207). Thus, when the property serving as the jurisdictional basis has no relationship to the cause of action and there are no other ties among the defendant, the forum and the litigation, quasi-in-rem jurisdiction will be lacking (id., at pp 208-209).

Although it may appear, at first blush, that the usefulness of quasi-in-rem jurisdiction has been eliminated by Shaffer, inasmuch as the minimum contacts necessary to support it will also generally provide in personam jurisdiction, that is not the case, at least in New York. As noted above CPLR 302 does not provide for in personam jurisdiction in every case in which due process would permit it. Thus, a “gap” exists in which the necessary minimum contacts, including the presence of defendant’s property within the State, are present, but personal jurisdiction is not authorized by CPLR 302. It is appropriate, in such a case, to fill that gap utilizing quasi-in-rem principles (Siegel, NY Prac, § 104, p 124; Note, Minimum Contacts and Jurisdictional Theory in New York: The Effect of Shaffer v. Heitner, 42 Alb L Rev 294, 306).

Whether quasi-in-rem jurisdiction exists in a given case involves an inquiry into the presence or absence of the constitutionally mandated minimum contacts (Intermeat, Inc. v American Poultry, 575 F2d 1017 [2d Cir]; Drexel Burnham Lambert v D'Angelo, 453 F Supp 1294 [SDNY]; Unitech USA v Ponsoldt, 91 AD2d 903; Majique Fashions v Warwick & Co., 67 AD2d 321; see Porcello v Brackett, 85 AD2d 917, 918, affd 57 NY2d 962). Given this limited inquiry, cases in which we have determined that a given set of facts is insufficient for the exercise of personal jurisdiction, will not necessarily be dispositive (see Nemetsky v Banque De Developpement De La Republique Du Niger, 48 NY2d 962, affg 65 AD2d 748; Amigo Foods Corp. v Marine Midland Bank, 39 NY2d 391, after remittitur 46 NY2d 855, affg 61 AD2d 896; Faravelli v Bankers Trust Co., 59 NY2d 615, affg 85 AD2d 335).

Turning to the facts of the present case, we hold that the relationship between the defendant Artoc, the litigation and this State is sufficient to make it fair that Artoc be compelled to defend here. Artoc stresses that its only contact with New York is the maintenance of its correspondent bank account and urges that the mere presence of this property is insufficient to sustain jurisdiction. What Artoc appears to overlook is the quality of this contact and its significance in the context of this litigation. This is not a case in which property is coincidentally located within the State’s borders and forms the only relevant link to defendant; rather, Artoc’s account with Brown Brothers is closely related to plaintiff’s claim. It is the very account through which Artoc effectuated the transaction at issue, directing Ambrosiano to pay funds to the account and presumably directing Brown Brothers to transfer the funds out of this account to their ultimate recipient. Nor is this transaction an isolated one, for it appears that Artoc utilizes this account regularly to accomplish its international banking business, communicating with Brown Brothers for disbursements of funds on its behalf and directing others to deposit funds there. Finally, with respect to performance of the agreement which forms the basis for Ambrosiano’s claim, Artoc not only directed that the funds be deposited in its New York account, but it also agreed to repay these amounts (according to Artoc, only if Ambrosia-no’s Peruvian subsidiary repaid them) to Ambrosiano’s New York account. These factors — the relationship between the cause of action and the property, the activities to be performed in New York under the parties’ agreement, and Artoc’s other ties with New York — combine to render the exercise of quasi-in-rem jurisdiction appropriate in this case. The dictates of due process are not offended by requiring Artoc to defend this claim in New York, as it has maintained a significant connection with the State and undertaken purposeful activity here (see Sterling Nat. Bank & Trust Co. v Fidelity Mtge. Investors, 510 F2d 870 [2d Cir] [finding personal jurisdiction on somewhat similar facts]; Federal Deposit Ins. Corp. v Interbanca-Banca Per Finanziamenti a Medio Termine, 405 F Supp 1118 [SDNY] [same]).

Artoc also argues that the courts below erred in refusing to dismiss this action on the ground of forum non conveniens. Although a New York court may have jurisdiction over a claim, it is not, of course, compelled to retain jurisdiction if the claim has no substantial nexus with New York (Silver v Great Amer. Ins. Co., 29 NY2d 356, 361; Martin v Mieth, 35 NY2d 414, 418). The question whether jurisdiction should be retained in a given case involves a balancing of several factors, including the difficulties for defendant in litigating the claim in this State, the burden on the New York courts in entertaining the suit and the availability of another more convenient forum in which plaintiff may obtain redress (Varkonyi v Varig, 22 NY2d 333; Irrigation & Ind. Dev. Corp. v Indag S.A., 37 NY2d 522). Once the lower courts have considered all relevant factors, however, this court will not disturb their determination, unless it appears that they have abused their discretion as a matter of law.

No such abuse of discretion occurred in this case. Artoc had the heavy burden of demonstrating that the forum chosen by Ambrosiano is an inappropriate one (Bata v Bata, 304 NY 51). Although Artoc has identified some indications that New York may be an inconvenient forum, the circumstances are not so compelling as to warrant rejecting Ambrosiano’s choice of forum. Broad allegations that issues of Bahamian law will arise or that witnesses and documents are located outside New York are not sufficient for this purpose, at least in the absence of more specific information. Artoc simply did not establish, to the satisfaction of the lower courts, that there is another forum “which will best serve the ends of justice and the convenience of the parties” (Silver v Great Amer. Ins. Co., 29 NY2d 356, 361, supra), and there is no basis for disturbing the determination that jurisdiction should be retained.

Finally, Artoc’s argument that as a foreign banking corporation Ambrosiano may not maintain this action must be rejected. Pursuant to section 200-b (subd 2, par [a]) of the Banking Law, an action against a foreign banking corporation may be maintained by another foreign banking corporation “where the action is brought to recover damages for the breach of a contract made or to be performed within this state”. Given that the contract which is the basis of Ambrosiano’s claim calls for several activities to be performed in this State, the action is properly brought under the statute.

We have considered the remaining points argued by Artoc and find them to be without merit.

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

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

Order affirmed, with costs. Question certified answered in the affirmative.


author: Kaye, J.

text:
    In the Matter of M. Farbman & Sons, Inc., Appellant, v New York City Health and Hospitals Corp. et al., Respondents.
    Argued March 23, 1984;
    decided May 10, 1984

      POINTS OF COUNSEL

      Thomas G. DeLuca for appellant.
    I. A party may properly employ the Freedom of Information Law to examine public records even if it anticipates, or is actually engaged in, litigation with the public agency. (.Matter of John P. v Whalen, 54 NY2d 89; Matter of Burke v Yudelson, 51 AD2d 673; Matter of D’Alessandro u Unemployment Ins. Appeal Bd., 56 AD2d 762; Arzuaga v New York City Tr. Auth., 73 AD2d 518; Brady & Co. v City of New York, 84 AD2d 113.) II. Respondents failed to meet their burden to demonstrate convincingly that the requested documents fall within a statutory exemption. CMatter of Fink v Lefkowitz, 47 NY2d 567; Matter of Westchester Rockland Newspapers v Kim-ball, 50 NY2d 575; Church of Scientology u State of New York, 46 NY2d 906; Matter of Miracle Mile Assoc, v Yudel-son, 68 AD2d 176; Contracting Plumbers Coop. Restoration Corp. v Ameruso, 105 Mise 2d 951.) III. The instant Freedom of Information Law request was not overly broad. (Matter of Zanger v Chinlund, 106 Mise 2d 86; Matter of Johnson Newspaper Corp. v Stainkamp, 94 AD2d 825.)

      Frederick A. O. Schwarz, Jr., Corporation Counsel CHelen P. Brown and Michael Gage of counsel), for respondents.
    I. The court below properly dismissed petitioner’s demand for documents under the Freedom of Information Law. Petitioner may not employ FOIL to obtain documents for its private contract action which it would be barred from receiving under the discovery provisions of the CPLR. Moreover, the documents in the remaining categories of the FOIL request are exempt from disclosure as inter- or intra-agency materials under FOIL. (Arzuaga v New York City Tr. Auth., 73 AD2d 518; Brady & Co. v City of New York, 84 AD2d 113, 56 NY2d 711; Matter v Unemployment Ins. Appeal Bd., 56 AD2d 762; Matter of Fitzpatrick v County of Nassau, Dept, of Public Works, 83 Mise 2d 884, 53 AD2d 628; Matter of Sea Crest Constr. Corp. v Stubing, 82 AD2d 546; Matter of Westchester Rock-land Newspapers v Mosczydlowski, 58 AD2d 234; Matter of JohnP. v Whalen, 54 NY2d 89; Matter of Doolanv Board of Coop. Educational Servs., 48 NY2d 341; NLRB v Sears, Roebuck & Co., 421 US 132; Renegotiation Bd. v Banner-craft Co., 415 US 1.) II. The court below correctly held that the remaining categories of documents in the Freedom of Information Law request are exempt from disclosure as inter- or intra-agency materials. (Sinicropi u County of Nassau, 76 AD2d 832; Matter of Miracle Mile Assoc, v Yudelson, 68 AD2d 176, 48 NY2d 706; Matter ofMcAulay v Board ofEduc., 61 AD2d 1048, 48 NY2d 659.)
   OPINION OF THE COURT

Kaye, J.

Access to records of a government agency under the Freedom of Information Law (FOIL) (Public Officers Law, art 6) is not affected by the fact that there is pending or potential litigation between the person making the request and the agency. Because the court below erroneously concluded that FOIL is unavailable to a litigant, and that CPLR article 31 is a blanket exemption from FOIL, we reverse the dismissal of the petition, with costs, and reinstate Special Term’s order calling for an in camera inspection to test the agency’s claimed exemptions.

In 1977, appellant, M. Farbman & Sons, Inc., contracted with the New York City Health and Hospitals Corporation (HHC), to perform plumbing work at Harlem Hospital. Although the work was to be finished by May, 1979, completion was delayed until November 12, 1980, evidently resulting in cost overruns. On April 13,1981, Farb-man made a FOIL request for 14 categories of records, encompassing most of the documents relating to the construction project. The HHC records access officer denied the request because its scope was “beyond the limits and objectives of the Freedom of Information Law.” Pursuant to section 89 (subd 4, par [a]) of the Public Officers Law, Farbman appealed to respondent Stanley Brezenoff, HHC president, who affirmed the denial on the ground that the request was “so encompassing and unspecific that it is not in keeping with the spirit or the letter” of FOIL.

Farbman then commenced this article 78 proceeding to compel production in accordance with its request. HHC claimed in response that the petition should be dismissed because Farbman was using FOIL in an effort to gather material for litigation in circumvention of the CPLR, and because requested documents were exempt from disclosure under section 87 (subd 2, par [g]) of the Public Officers Law as inter-agency or intra-agency materials. Special Term held that HHC had not established an exemption from FOIL’S disclosure requirements and ordered an in camera inspection of the documents as to which an exemption was claimed. Before any decision, however, Farbman filed a notice of claim and commenced a breach of contract action against HHC. In view of the litigation HHC moved to reargue and renew, but Special Term adhered to its determination. On appeal, the Appellate Division reversed and dismissed the petition, citing its “continually unanimous position against the use of FOIL to further in-progress litigation.” (94 AD2d, p 578.) The Appellate Division further determined that the five requests that remained unsatisfied, three of which it concluded were exempt from FOIL as inter-agency or intra-agency materials, would be improper as discovery requests under CPLR 3120, and “this test of specificity is equally applicable to petitioner’s request, made pursuant to FOIL”. (94 AD2d, p 579.) We now reverse this order.

FOIL implements the legislative declaration that “government is the public’s business” (Public Officers Law, § 84), and imposes a broad standard of open disclosure upon agencies of the government. The statute “proceeds under the premise that the public is vested with an inherent right to know and that official secrecy is anathematic to our form of government.” (Matter of Fink v Lefkowitz, 47 NY2d 567, 571.) In furtherance of the legislative objective, all records of an agency are presumptively available for public inspection and copying, unless they fall within one of eight categories of exemptions. (Public Officers Law, § 87, subd 2.) To give the public maximum access to records of government, these statutory exemptions are narrowly interpreted, and the burden of demonstrating that requested material is exempt from disclosure rests on the agency. (Matter of Washington Post Co. v New York State Ins. Dept., 61 NY2d 557.) FOIL does not require that the party requesting records make any showing of need, good faith or legitimate purpose; while its purpose may be to shed light on government decision-making, its ambit is not confined to records actually used in the decision-making process. (Matter of Westchester Rockland Newspapers v Kimball, 50 NY2d 575, 581.) Full disclosure by public agencies is, under FOIL, a public right and in the public interest, irrespective of the status or need of the person making the request.

CPLR article 31 proceeds under a different premise, and serves quite different concerns. While speaking also of “full disclosure,” article 31 is plainly more restrictive than FOIL. Access to records under the CPLR depends on status and need. With the goals of promoting both the ascertainment of truth at trial and the prompt disposition of actions (Allen v Crowell-Collier Pub. Co., 21 NY2d 403, 407), discovery is at the outset limited to that which is “material and necessary in the prosecution or defense of an action.” (CPLR 3101, subd [a].) Broad, unparticularized document demands are improper. (Compare CPLR 3120 and Public Officers Law, § 89, subd 3.) On its own initiative or on motion of any party or witness, a court may issue a protective order denying or regulating document production, to prevent unreasonable annoyance, expense, embarrassment, disadvantage or other prejudice to any person or the courts (CPLR 3103). Unlike the right of a member of the public to inspect and copy the files of government under FOIL, a litigant has no presumptive right under the CPLR to its adversary’s files.

When, as here, a government agency is involved in litigation, is its adversary, for purposes of access to the agency’s records, a litigant governed by article 31, or a member of the public under FOIL? Recognizing that compelling policy considerations support either position, we hold that FOIL’s mandate of open disclosure requires that an agency’s public records remain as available to its litigation adversary as to any other person. Contrary to the conclusion reached by the court below, and urged by respondents, we hold that CPLR article 31 is not a statute “specifically exempting]” public records from disclosure under FOIL (Public Officers Law, § 87, subd 2, par [a]).

Given FOIL’s purpose, its broad implementing language, and the narrowness of its exemptions, article 31 cannot be read as a blanket exception from its reach. While an express statement, such as found in subdivision (7) of section 171-a of the Tax Law, is not necessary to establish an exemption from FOIL under a State statute, what is required is clear legislative intent to establish and preserve confidentiality. (Matter of John P. v Whalen, 54 NY2d 89, 96-98; Matter of Short v Board of Managers of Nassau County Med. Center, 57 NY2d 399.) No such intention can be gleaned from the declaration of CPLR 3101 (subd [a]) that only evidence “material and necessary” to an action be produced. In the absence of indication from the Legislature, we refuse to read into FOIL the restriction that, once litigation commences, a party forfeits the rights available to all other members of the public and is confined to discovery in accordance with article 31. If the Legislature had intended to exempt agencies involved in litigation from FOIL, it certainly could have so provided. Nowhere in FOIL, enacted 11 years after the CPLR, is there specific reference to records already subject to production under article 31, and no provision of FOIL bars simultaneous use of both statutes. When FOIL was amended in 1977 (see L 1977, ch 933, § 1), issues regarding the interplay between the two statutes already simmered in the courts (see, e.g., Matter of D‘Alessandro v Unemployment Ins. Appeal Bd., 56 AD2d 762; and Matter of Burke v Yudelson, 51 AD2d 673), yet the Legislature made no reference to article 31 document production in FOIL, but only broadened public access to documents.

An article 31 exemption from FOIL, moreover, would be unique among FOIL exemptions in that it would depend not on the need to maintain individual privacy or the government’s need for confidentiality of the records but on the status of the party making the request. Though denied to a litigant, these records would remain available to the public. As we have stated in Matter of John P. v Whalen (54 NY2d 89, 99, supra), “the standing of one who seeks access to records under the Freedom of Information Law is as a member of the public, and neither enhanced (Matter of Fitzpatrick v County of Nassau, Dept. of Public Works, 83 Misc 2d 884, 887-888, affd 53 AD2d 628) nor restricted (Matter of Burke v Yudelson, 51 AD2d 673, 674) because he is also a litigant or potential litigant.” To be distinguished of course would be claimed exemptions from FOIL on the basis of privilege (CPLR 3101, subd [b]), attorney’s work product (CPLR 3101, subd [c]), and material prepared for litigation (CPLR 3101, subd [d]), none of them tied to the particular status of the party making the request. Since respondents have made no claim that any of its records are being withheld for these reasons, we have no occasion to consider whether these categories would be “specifically exempted” from disclosure by virtue of section 87 (subd 2, par [a]) of the Public Officers Law.

That FOIL may be used during litigation for improper purposes, such as harassment and delay, is a genuine concern. We note that the Appellate Divisions have addressed such problems as they have arisen in particular cases. In Brady & Co. v City of New York (84 AD2d 113), for example, the court struck an action from the trial calendar where the plaintiff filed a note of issue and statement of readiness without having conducted discovery under the CPLR, and thereafter submitted a FOIL request. (See, also, Moussa v State of New York, 91 AD2d 863.) The potential for abuse through FOIL is in a sense a price of open government, and should not be invoked to undermine the statute.

Turning now to the request itself, the court below concluded that appellants’ request was not sufficiently specific to meet the requirements of CPLR 3120, and this same test of specificity should apply to FOIL requests. While appellant’s request may well have been insufficient under CPLR 3120, which demands that documents be “specifically designated,” that standard is inapplicable under FOIL, which requires only that the records be “reasonably described” (Public Officers Law, § 89, subd 3) so that the respondent agency may locate the records in question. (Matter of Johnson Newspaper Corp. v Stainkamp, 94 AD2d 825, affd 61 NY2d 958.) While complaining that the request is so broad as to require thousands of records, respondents have not established that the descriptions were insufficient for purposes of locating and identifying the documents sought.

Respondents’ final argument is that the five remaining items of appellant’s FOIL request are exempt from production under section 87 (subd 2, par [g]), which protects inter-agency or intra-agency materials. Where an exemption is claimed, the burden lies with the agency “to articulate particularized and specific justification”, and to establish that “the material requested falls squarely within the ambit of [the] statutory exemptions.” (Matter of Fink v Lefkowitz, 47 NY2d 567, 571, supra.) Respondents have not demonstrated as a matter of law that all of the records requested by appellant are in fact inter-agency or intra-agency materials or, even if so, that they are not statistical or factual tabulations, or instructions to staff that affect the public, or final agency policy or determinations. The proper procedure for reaching a determination is the in camera inspection ordered by Special Term. (See Church of Scientology v State of New York, 46 NY2d 906, 908.)

Accordingly, the order of the Appellate Division should be reversed, with costs, and the order of Special Term reinstated.

Chief Judge Cooke and Judges Jasen, Jones, Wacht-ler, Meyer and Simons concur.

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


author: Per Curiam.

text:
    In the Matter of Abraham G. Gerges et al., Appellants, v Edward Koch, as Mayor of the City of New York, et al., Respondents.
    Argued May 10, 1984;
    decided May 11, 1984

      POINTS OP COUNSEL

      Abraham G. Gerges, pro se, and Thomas M. Kennedy for Abraham G. Gerges and others, appellants.
    I. The 1975 New York City Charter was primarily intended to empower local Community Boards. The City acted unlawfully by failing to submit the selection of this site for capital expenditures to Uniform Land Use Review Procedures. (Matter of Industrial Comr. v Five Corners Tavern, 47 NY2d 639.) II. The City acted unlawfully and in violation of its Charter provisions by failing to submit its acquisition of control over this property by purported license for use as a jail to the Uniform Land Use Review Procedures. {Maul-din v New York City Tr. Auth., 64 AD2d 114; Miller v City of New York, 15 NY2d 34; Gushee v City of New York, 42 App Div 37.) III. An injunction is appropriate halting use and further construction of this facility until the Board of Estimate considers the community’s recommendations and the Uniform Land Use Review Procedures are given an opportunity to be meaningful. IV. The court below erred by dismissing this petition. The petition should have been remanded for a review of the arbitrariness of the “negative declaration”. An injunction preventing use and further construction of this facility should be granted pending determination on remand. {Matter of Cohalan v Carey, 88 AD2d 77; Matter of Board of Visitors — Marcy Psychiatric Center v Coughlin, 60 NY2d 14.)

      Frederick A. O. Schwarz, Jr., Corporation Counsel {Stephen P. Kramer, Leonard Koerner, Susan D. Wagner and Paul F. Marks of counsel), for respondents.
    I. The emergency provisions in the applicable environmental regulations and this court’s decision in Marcy Center explicitly authorize the procedure utilized by the City in this case. {Matter of Board of Visitors — Marcy Psychiatric Center v Coughlin, 60 NY2d 14; Gaynor v Rockefeller, 21 AD2d 92, 15 NY2d 120; Matter of Town of Henrietta v Department of Environmental Conservation, 76 AD2d 215.) II. Neither the acceptance of a revocable license from the Federal Government to use and renovate real property nor the use of capital funds to renovate real property triggers the Uniform Land Use Review Procedures set forth in section 197-c of the New York City Charter. (.Mauldin v New York City Tr. Auth., 64 AD2d 114; Gushee v City of New York, 42 App Div 37; Blank u Browne, 217 App Div 624; Matter of Marine Park Boats v Halberg, 58 Mise 2d 938,33 AD2d 732; Ziegele v Richelieu & Ontario Nav. Co., 3 App Div 77; Miller v City of New York, 15 NY2d 34; Schulman v People, 10 NY2d 249; Matter of Piazza v Lindsay, 24 NY2d 186; Matter of 78th St. Assn, v City of New York, 33 AD2d 545, 25 NY2d 662.) III. Mandamus is a discretionary remedy. The court should refrain from exercising its equitable powers to enjoin a project which is clearly in the public interest when this court has held that the prison crisis warrants departure from ordinary procedure, the Board of Estimate has approved the renovation, Uniform Land Use Review Procedure will be completed prior to any purchase, and appellants have shown no irreparable injury. (.Railroad Comm, v Pullman Co., 312 US 496; Matter of Sheerin v New York Fire Dept. Arts. 1 & IB Pension Funds, 46 NY2d 488; Matter of Coombs u Edwards, 280 NY 361; Matter of Andresen u Rice, 277 NY 271; Legal Aid Soc. v Ward, 61 NY2d 744; Lowe v Reynolds, 75 AD2d 967.)
   OPINION OF THE COURT

Per Curiam.

We are urged on this appeal to reverse the determination of the Appellate Division and to enjoin respondents from implementing their proposal to convert and use the Brig at the Brooklyn Navy Yard as a medium security prison.

After a Federal District Court order enforcing capacity limits on detention facilities of the City of New York had resulted in the premature release by the City Department of Correction of 613 detainees in November, 1983, in early December the City embarked on a plan by which it would add 1,400 beds to its facilities during the year 1984 by establishing 400 spaces in a Federal Government-owned facility known as “the Brig” (opposite the Brooklyn Navy Yard), then being used by the United States Immigration and Naturalization Service for the detention of illegal aliens, together with the construction of 760 units in prefabricated modular buildings on Rikers Island and the expansion of existing Rikers Island dormitories by 240 units. The United States Government had indicated its willingness to grant the City a short-term license on space at the Brig looking toward sale of the facility to the City.

Conscious of the existence of a need rapidly to effectuate the expansion of detention facilities in order to prevent further premature release of detainees as a result of prison overcrowding and determining that the shortage of detention facilities created a hazard to life and safety, on December 30,1983 the Board of Estimate approved an emergency construction program involving the award of contracts for necessary renovation of the Brig at a cost of $20,915,000, voting to exempt the contracts from public bid requirements in order to expedite the program. On February 1, 1984 the City Department of Correction officially declared the existence of an emergency as to detention facilities. On the same day the City obtained from the United States Government a revocable license permitting it to have access to the Brig for a six-month period commencing January 27,1984 for the purpose of renovation and temporary occupancy of the facility pending the anticipated negotiated sale of the property to the City Department of Correction at its assessed value. The license was made subject to the continuing needs of the Immigration and Naturalization Service, the operations of which were not to be disrupted by the City as long as the Service continued to occupy and operate portions of the property. It was also made terminable upon 30 days’ notice.

On February 15, 1984 the City filed a project data statement with respect to its purchase of the Brig, a first step under the City Environmental Quality Review procedures (CEQR), and on February 23,1984 a land use review application under the Uniform Land Use Review Procedure (ULURP), was filed with the Department of City Planning and on March 5,1984 was forwarded to Community Planning Board No. 2.

During the period of these filings and from the day following receipt of the license to use the Brig, renovation work has been carried forward with the objective of making 200 beds available by May 1 and an additional 200 beds available by June 1. On March 2, 1984 this article 78 proceeding was instituted against the Mayor and various City officials by residents and three associations of the area near the Brig and the Community Board within whose jurisdiction the facility is located, seeking to prevent further work on the project. The petition alleged that the action of the Board of Estimate on December 30, 1983 approving the project was in excess of authority and illegal because of a failure by the City to have completed procedures said to be required by ULURP and CEQR. Specifically, petitioners claimed that the City had gone ahead with the project, which they asserted was a “[s]ite selection for capital projects” under section 197-c (subd a, par [5]) of the New York City Charter, which ULURP required to be submitted for consideration and hearing by the Community Board, followed by submission of its written recommendations to the City Planning Commission, before approval of the project could be given by the Board of Estimate. With respect to CEQR, it was petitioners’ position that the City had acted without filing a necessary environmental impact statement. Ancillary to the article 78 proceeding petitioners sought a preliminary injunction to halt further work on the project.

A week after the proceeding had been instituted a “negative declaration” as to the project was issued by the City’s Department of Environmental Protection and the Department of City Planning, declaring that the renovation and use of the Brig would not have a significant effect on the environment, which under CEQR had the effect of eliminating any need for the filing of an environmental impact statement.

This litigation came on for expedited consideration on March 16, 1984, and on April 19, 1984 Special Term of Supreme Court issued an order enjoining further activities in furtherance of the renovation until completion of procedures under ULURP and CEQR, finding that the City could not properly continue with the project until it had “been aired through the procedural labyrinth mandated by law”. The court concluded that, as to ULURP, the Community Board had not been allowed an opportunity to make its recommendations known prior to approval of what the court regarded as a site selection for a capital project within the provisions of ULURP. As to the environmental review provided for by CEQR, the court found that the absence of an environmental impact statement barred continuation of work on the renovation. With respect to the negative declaration which had been issued on March 9, it observed that there was nothing in the record to indicate that an evaluation of relevant factors had preceded the issuance of that declaration.

On the City’s appeal, the Appellate Division unanimously reversed the judgment of Supreme Court and dismissed the proceeding on the merits. It concluded that the declaration of emergency issued by the Department of Correction on February 1, 1984 — which it characterized as “clearly not irrational, arbitrary or capricious”, given the critical jail capacity situation — served to permit renovation work pending completion of CEQR procedures in view of a provision of CEQR authorizing commencement of work in such circumstances. It also noted its disagreement with Supreme Court’s finding that the negative declaration was deficient, although it expressly made no determination as to the reasonableness of the declaration.

As to compliance with ULURP, the court found that the revocable license received by the City from the Federal Government and its use of the Brig prior to the impending sale did not fall within the matters subject to ULURP, either as a disposition of real property to the City under section 197-c (subd a, par [10]) of the New York City Charter or as a site selection for a capital project under paragraph (5) of the same subdivision. It also observed that, in any event, as to the proposed purchase of the property, the ULURP application had already been submitted to the local Community Board.

Petitioners are now before us on an appeal as of right.

ULURP

The principal argument advanced by petitioners in our court as ground for reversal of the order of the Appellate Division and for the issuance of injunctive relief in their favor is the asserted failure of respondents to have complied with the requirements of ULURP. It is acknowledged, as it must be, that if compliance with the procedural mandates of ULURP is required with respect to the license obtained by the City from the Federal Government to occupy, renovate, and use the Brig and for the renovation so far completed, there has been a failure of compliance. It is respondents’ contention that these actions on their part do not fall within the embrace of ULURP. Petitioners, on the other hand, ground their arguments to the contrary on either or both of paragraphs (5) and (10) of subdivision a of section 197-c of the Charter. Paragraph (5) extends the mandates of ULURP to “Site selection for capital projects”; paragraph (10), so far as presently pertinent, extends those mandates to “Sale, lease, other than the lease of office space, exchange, or other disposition of real property to the city”.

We agree with the Appellate Division that the license obtained by the City from the Federal Government for occupancy and use by the City of the Brig is not a “lease” or such a “disposition of real property to the city” as to fall within the scope of paragraph (10) (cf. Mauldin v New York City Tr. Auth., 64 AD2d 114).

Whether the execution of that license falls within the ambit of paragraph (5) as a “[s]ite selection for capital projects” is a much more troublesome problem. Supreme Court answered the question in the affirmative; the Appellate Division, in the negative.

The Board of Estimate approved the award of contracts for the project on December 30, 1983, in an amount of $20,915,000. We are informed that by administrative action the City later allocated this amount to line items in the capital budget, principally those of the Correction Department.

The Charter defines a capital project as “[ajny physical public betterment or improvement or any preliminary studies and surveys relative thereto” (§ 211, subd 1, par [a]). The argument of respondents that there must be an acquisition of land to come within paragraph (5) must be rejected; if this were so there would be no occasion for the provisions of that paragraph in view of the provisions of paragraph (10).

We perceive no escape from the conclusion that the execution of the license for occupancy of the Brig by the City for the purposes intended constituted a “[s]ite selection for [a] capital project”, thereby activating the obligation of respondents to comply with the mandates of ULURP.

CEQR

In our court petitioners do not press their earlier contentions that respondents are in violation of the prescriptions of the CEQR procedures established by New York City Executive Order No. 91 of August 24,1977 to parallel and implement the provisions of the State Environmental Quality Review Act (ECL 8-0101 et seq.). As stated above, when the proposed project for conversion of the Brig was initiated, respondents sought to bring themselves within the prescriptions, including the emergency section (Executive Order No. 91, § 4 [h]), of CEQR. On March 9, 1984, shortly after the institution of the present proceeding, however, the Departments of Environmental Protection and of City Planning, the two lead agencies, filed a negative declaration manifesting their determination that the proposed project is not an exempt action or a Type II action pursuant to sections 4 and 5 of Executive Order No. 91 and that it will not have a significant effect on the environment (Executive Order No. 91, § 7 [b] [1]). By that action respondents changed their course from one of proceeding in asserted conformity with CEQR to one of declaring that the proposed project was not subject to the environmental assessment procedures of CEQR.

In view of this development, judicial examination of steps earlier taken in purported compliance with the requirements of CEQR has in effect been rendered academic. Respondents are now proceeding on the asserted premise that they are excused from further compliance with CEQR mandates. Judicial scrutiny as to petitioners’ right to in-junctive relief can only be focused, therefore, on the validity of the negative declaration.

The present proceeding, however, was instituted prior to the issuance of the negative declaration and, as the Appellate Division recognized, the record before us is wholly insufficient for any judicial determination of petitioners’ challenge to that declaration. Petitioners have not established their right to injunctive relief at the present time on this ground, nor could they in view of the state of the record and the procedural posture in which this case reaches us. Our disposition of the present appeal, therefore, is without prejudice to petitioners’ right, if they be so advised, to institute another proceeding to obtain judicial scrutiny of the validity of the negative declaration of March 9, 1984.

THE REMEDY

At the outset of our consideration of the remedies to which petitioners may be entitled in the circumstances, we observe that with respect to the acquisition of title to the Brig and the permanent aspects of the project, respondents are now proceeding with due respect for the mandates of CEQR and ULURP. As to CEQR, a negative declaration has been issued as permitted by Executive Order No. 91, and respondents take the position that in consequence thereof they are free from the environmental assessment procedures of the Order. As stated above, the merit of their position in that regard — beyond the reach of the present proceeding — can be subjected to judicial review in another proceeding if that be desired. As to ULURP, on March 5 the Department of City Planning forwarded a land use review application with respect to the outright purchase of the Brig from the Federal Government to Community Planning Board No. 2 for hearing and comment in conformity with the requirement of ULURP (NY City Charter, § 197-c, subd b). We have no reason to believe that having duly started on their ULURP course respondents will not now continue to conform to the requirements of the Charter.

There then remains for our consideration what relief, if any, petitioners are entitled to at this time in this proceeding in consequence of our conclusion that the execution of the preliminary license for use of the Brig was in violation of ULURP prescriptions. Before us, petitioners seek “an order * * * restraining the City from utilizing or further constructing this jail until such time as it has complied with its lawful obligations.”

Injunctive relief, which had its origins in the courts of equity, has always been perceived as discretionary, to be granted or withheld by our courts in the exercise of responsible judicial discretion (Kane v Walsh, 295 NY 198, 205). The determination of the availability of such relief depends not alone on the right of the party seeking it but as well on the appropriateness of its issuance in the circumstances in which it is sought.

We turn then to the present circumstances in which petitioners seek injunctive relief at our hands. The City’s license of the Brig is an accomplished fact, fully recognized by both the City and the Federal Government. Similarly, we are informed that renovation of the Brig for the receipt of 200 prisoners has now been completed and that their transfer is held up only in consequence of the outstanding stay issued by our court on May 10, 1984. We take note that respondents are confronted, in consequence of orders of the Federal courts and otherwise, with an emergency of compelling and dangerous dimension and seriousness. That this emergency might have been foreseen and that municipal officials may have been derelict in not earlier having made appropriate provision for its resolution and having assured the availability of adequate detention facilities does not negate the existence of the present crisis. Inaction of the past may have been justifiable or at least explainable; in any event the calendar cannot be turned back. It would serve no appropriate or useful purpose now to fashion relief as a sanction for action and inaction beyond recall.

Focusing on the present compelling need of the City to make additional detention facilities immediately available and the evident desire on all sides to avoid a repetition of the premature release in November, 1983 of 613 detainees, it would be an abuse of discretion on our part to preclude the immediate use by the City of detention facilities which are now ready and available. For us to mandate that such facilities stand vacant pending resolution of the continuing controversy between the parties would be judicially irresponsible in view of the dangerously close approach of the inmate population to mandated limits. We recognize the fact that “the dynamics and freedom of decision-making with respect to a proposal to rescind a prior action are significantly more constrained than when the action is first under consideration for adoption” (Matter of Tri-County Taxpayers Assn. v Town Bd., 55 NY2d 41, 46), and that full and fair evaluation of the merits of any project may be more difficult after that project has been permitted to progress through substantial implementation. Nonetheless, in the singular circumstances with which we are all confronted on this appeal, we conclude that injunctive relief should be denied and petitioners relegated to seek such judicial review and relief as they may desire and as may be available with respect to the negative declaration of March 9, 1984 and the land use review application forwarded to Community Planning Board No. 2 on March 5, 1984.

For the reasons stated, the order of the Appellate Division which denied petitioners’ prayer for injunctive relief and dismissed the petition should be affirmed, without costs, and the stay previously granted vacated.

Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye concur in Per Curiam opinion; Chief Judge Cooke taking no part.

Order affirmed, without costs, and the stay issued by this court on May 10, 1984 is vacated.

       We observe that no exceptional provisions for emergency situations are to be found in ULURP comparable to those in CEQR (Executive Order No. 91, § 4 [h]).


author: Simons, J.

text:
    The People of the State of New York, Respondent, v David Pelchat, Appellant.
    Argued March 23, 1984;
    decided May 15, 1984

      POINTS OF COUNSEL

      Michael Young and David Breitbart for appellant.
    The District Attorney’s failure to advise the court, the defense and the Grand Jury, once he had learned that the indictment as to appellant Pelchat was based entirely on false, misleading and legally insufficient evidence and that the officers who. witnessed the commission of the crimes charged had in fact not seen Mr. Pelchat commit any crime, violated appellant’s constitutional and statutory rights and requires that his guilty plea be vacated and the charges against him be dismissed. (United States v Ba-surto, 497 F2d 781; Stirone v United States, 361 US 212; Berger v United States, 295 US 78; People v Isaacson, 44 NY2d 511; People v Rao, 73 AD2d 88; United States v Módica, 663 F2d 1173; United States v Estepa, 471 F2d 1132; United States v Di Re, 332 US 581; People v Martin, 32 NY2d 123; People v Battaglia, 56 NY2d 558.)

      Patrick Henry, District Attorney (Mark D. Cohen of counsel), for respondent.
    The trial court properly denied appellant Pelchat’s motion to withdraw his plea. (People v Di Raffaele, 55 NY2d 234; People v Thomas, 53 NY2d 338; People v Evans, 58 NY2d 14; People v Dunbar, 53 NY2d 868; People v Kazmarick, 52 NY2d 322; People v Mosher, 81 AD2d 684; United States v Basurto, 4Q1 F2d 781; United States v Estepa, 471 F2d 1132; Costello v United States, 350 US 359; Communist Party v Control Bd., 351 US 115.)
   OPINION OF THE COURT

Simons, J.

Defendant has been convicted of criminal possession of marihuana in the first degree after pleading guilty to the indictment. He now seeks reversal of the judgment contending that the indictment was fatally defective because the only evidence before the Grand Jury connecting him with the crime was the testimony of a police officer who subsequently told the prosecutor that he was unable to identify defendant as a participant in the crime and that he had misunderstood the question which caused him to do so. Defendant contends that because the prosecutor knew of this mistake before defendant’s plea, he should have resubmitted the matter and corrected the proceedings and that his failure to do so mandates that the conviction be reversed and the indictment dismissed. We agree. The Grand Jury could indict only upon legally sufficient evidence and when the prosecutor learned of the error while the proceedings were still pending, before defendant’s plea, he was obliged to correct the error by obtaining a new accusatory instrument.

The charge arose out of an intensive drug investigation which resulted in the arrest and indictment of 33 defendants for criminal possession of marihuana. The crimes were committed during the early morning hours of September 3, 1981, when a vessel known as the “Miss Marge” sailed into Gardiner’s Bay, Long Island, and dropped anchor off shore from the premises at 51 Milina Drive, Easthampton. Over the next several hours, some 72 bales of marihuana were removed from “Miss Marge”, transported to shore by smaller boats, and then loaded onto a truck parked on the Milina Drive premises. These activities, both on and off shore, were observed by police officers from 2:00 a.m. until approximately 5:30 a.m. through a night scope. After the unloading was completed, at approximately 6:00 a.m., the officers arrested everyone in the house at 51 Milina Drive. Twenty-one persons were inside, including defendant. Other defendants were arrested subsequently in the boats. It was later to develop that none of the officers were able to identify defendant as having participated in any part of the unloading operation or any other criminal activity that evening. He was arrested because he was in the house with other defendants.

The case was handled by two Assistant District Attorneys. The ADA in charge of the prosecution was on vacation when the case went before the Grand Jury on September 9, 1981, and an associate who had no prior connection with it made the presentment. The only evidence relating to defendant appears during the following testimony by Officer Tuthill:

Q. Did there come a time when a number of individuals were arrested within that house?
A. Yes, there were.
Q. Approximately, how many, do you know?
A. I’d say approximately, twenty-one.
Q. Those twenty-one individuals, were they under your observations with respect to off-loading the Unapplied Times, off-loading the four Zodiac rafts and transporting the bales of what you suspected to be marijuana into the truck located on the east side of 51 Milina Drive?
A. Yes, they were.
Q. Do you know the names of those twenty-one individuals you made those observations of?
A. Yes.
Q. Would you please indicate to the Grand Jury the names of those twenty-one individuals?
A. * * * P-E-L-C-H-A-N-T, David R. [sic].

In late October or early November, 1981, before defendant’s plea, the prosecutor in charge of the case was told by Officer Tuthill that he had not observed defendant engage in any criminal activity and that he had misunderstood the questions asked by the prosecutor’s associate before the Grand Jury. The prosecutor testified that from that moment on he knew that “the only testimony I had about Pelchat was that he was carrying a football jersey, dungarees and sneakers; or he was fully dressed with a football jersey on, in the ground floor of the house [when he was arrested].” Nevertheless, the prosecutor failed to disclose Tuthill’s admissions or make any effort to correct the Grand Jury proceedings, leaving both the Grand Jury and the court with the false impression that Officer Tuthill had actually observed defendant engage in some criminal activity when in fact he had never made any such observation and had not intended to testify that he had. Defendant subsequently pleaded guilty to the indictment immediately before trial. Before he was sentenced Officer Tuthill appeared as a witness at the trial of the remaining defendants. After first testifying that he “thought” he had seen defendant carrying a bale of marihuana but wasn’t sure, he then admitted that neither he nor his partner, Officer Lia, had observed defendant participating in any criminal activity. He testified that he had advised the Assistant District Attorney of this and that he had explained to him that he understood his associate’s questions before the Grand Jury as merely a request for a list of the persons arrested that night and not a request for the names of the individuals he had actually observed engaging in criminal activity:

Q. How about a Mr. Pelchat? Did you have a discussion on the front lawn with regard to a Mr. Pelchat?
A. Yes.
Q. And was that with regard to what you had observed Mr. Pelchat do that night?
A. I thought I saw Mr. Pelchat carrying a bale of marijuana but I wasn’t quite sure it was him. And Lia told me he didn’t see him doing anything. And I wasn’t absolutely positive that it was Pelchat.
Q. You weren’t positive?
A. I wasn’t absolutely positive it was Pelchat.
Q. And did Lia dissuade you from the fact that Pelchat had done anything?
A. No. But I’m not going to implicate the man if I partially saw him. And Lia didn’t see him at all.
Q. You wouldn’t do that?
A. No. I wouldn’t.
Q. Did you testify under oath in a grand jury, sir?
A. Yes, I did.
Q. Were you asked these questions and did you give these answers, sir? Under oath in the grand jury. Which led to these proceedings.
[reads Grand Jury testimony quoted above]
A. I believe so.
Q. You just told this jury that you didn’t see Gregorek do anything, did you?
A. I was giving the men [sic] a list of the names of the individuals that were arrested from 51 Milina Drive.
Q. You were giving the man a list of names?
A. Yes.
Q. Did you just tell us a couple of moments ago that you understood the question?
A. I do now.
Q. Did you understand the implications of your testimony in the grand jury?
A. I thought the ADA was asking for the subjects that were arrested from 51 Milina Drive. And that’s what I gave him. I wasn’t trying to mislead anyone.
Q. Did you also indicate, sir, that you observed Pelchat, David R.?
A. I don’t know, did I?
Q. And were you asked, sir, by Mr. Castellano where [sic] in fact individuals who you were about to name were observed by you off-loading zodiacs, carrying bales and moving marijuana on the morning of September 3rd?
A. The first question that Mr. Castellano asked me was to name the 21 — to me, I thought he said name the 21 people that are arrested from the house. And that’s what I did.
Q. At any time did you tell the Assistant District Attorney Pelchat did nothing? Did you tell him that?
A. Yes, I did.
Q. Would it be fair to say, sir, that neither you nor Lia which you deduced from talking to him, had seen any of those four men do anything?
A. Like I said, I hadn’t seen Pelchat, Gregorek or Segal do anything.

Upon learning of this testimony, prior to sentencing, defendant moved to withdraw his guilty plea and to dismiss the indictment. On the return date, March 16, 1982, the trial court ruled, as it had on defendant’s preplea motion to dismiss, that the evidence before the Grand Jury was sufficient. It also ruled that by pleading guilty defendant had waived his right to challenge the indictment or to challenge the prosecutor’s failure to disclose the Tuthill statements as Brady material (see Brady v Maryland, 373 US 83). The court ordered a hearing, however, to determine whether the prosecutor had known prior to the Grand Jury presentation of Tuthill’s inability to connect defendant with the crime.

After the hearing, the trial court concluded that “the District Attorney * * * did not seek to indict the defendant by the knowing use of perjurious or mistaken testimony. He was not aware of the limited notice of the Police Officer’s observation as to this defendant until after the indictment had been handed up.” The Appellate Division affirmed, holding that defendant had waived any objections to the indictment and that the information was not Brady material.

We accept the finding of the courts below that the record does not support any claim that the prosecutor knew of the deficiency in the evidence before presenting the case. Indeed, it appears that the presenting attorney knew very little about the case. He had not seen defendant’s arrest report (which apparently stated only that defendant was arrested in the house) and he had a relatively brief conversation with the police officers to obtain an “overview” of the crime before they testified about these several arrests. He later testified at a posttrial hearing:

Q. [Interposing] Well, in the grand jury, in your mind, Tuthill told you he saw Pelchat doing something inculpatory; is that right?
A. In the grand jury, in my mind, he indicated to me that Mr. Pelchat, along with the other individuals, was participating in some aspect of the off-loading.
Q. What aspect did he indicate to you Pelchat was involved in?
A. He did not indicate that to me. Nor did I inquire, sir.

The court made no findings on the prosecutor’s subsequent discovery of Officer Tuthill’s mistaken testimony but the evidence on the point is undisputed.

Resolution of the appeal depends upon fundamental considerations governing the operation of two integral parts of the criminal justice system: the Grand Jury’s constitutional function to indict and the prosecutor’s duty of fair dealing.

The Constitution mandates that no person shall be held to answer for an infamous crime unless upon indictment of the Grand Jury (NY Const, art I, § 6). The section is similar in form and purpose to that contained in the Fifth Amendment to the United States Constitution. The idea underlying both these provisions was to preserve on the English model a fair method for instituting criminal proceedings against persons believed to have committed crimes. The Grand Jury was created as an investigative and accusatory body made up of laymen from the general population and given the function of assessing the sufficiency of the prosecutor’s case, thus insulating the innocent from governmental excesses. Unhampered by technical legal rules of procedure and evidence and divorced from the control of the government, the grand jurors were free to make their presentments and indictments as they deemed satisfactory, “pledged to indict no one because of prejudice and to free no one because of special favor” (Costello v United States, 350 US 359, 362; and see People v Glen, 173 NY 395, 401; United States v Umans, 368 F2d 725, 730). The Grand Jury’s role and procedures are now defined by statute (CPL art 190). It remains the exclusive judge of the facts with respect to any matter before it (CPL 190.25, subd 5) and it may indict for an offense only if the evidence spells out a legally sufficient case and reasonable grounds to believe defendant committed the offense charged (CPL 190.65, subd 1). “Legally sufficient evidence” means competent evidence which, if accepted as true, would establish every element of the offense and the defendant’s commission of it (CPL 70.10, subd 1; People v Haney, 30 NY2d 328, 335-336). The test is whether the evidence before the Grand Jury if unexplained and uncontradicted would warrant conviction by a trial jury (People v Valles, 62 NY2d 36; People v Dunleavy, 41 AD2d 717, affd 33 NY2d 573). It is this judgment of the Grand Jury, expressed in an indictment, which provides the predicate for the court’s jurisdiction (CPL 100.05; Matter of Simonson v Cahn, 27 NY2d 1).

The other subject for consideration is the prosecutor’s responsibility under the circumstances presented. It is familiar doctrine that a prosecutor serves a dual role as advocate and public officer. He is charged with the duty not only to seek convictions but also to see that justice is done. In his position as a public officer he owes a duty of fair dealing to the accused and candor to the courts, a duty which he violates when he obtains a conviction based upon evidence he knows to be false. Such misconduct may impair a defendant’s due process rights and require a reversal of the conviction (see, e.g., People v Robertson, 12 NY2d 355; People v Savvides, 1 NY2d 554; People v Creasy, 236 NY 205, 221; Napue v Illinois, 360 US v Texas, 355 US 28). It goes without saying that this duty also rests upon the prosecutor during pretrial proceedings (see, e.g., People v Geaslen, 54 NY2d 510; People v Cwikla, 46 NY2d 434) and the proceedings relating to indictment both at presentment and afterwards. “It is a serious matter for any individual to be charged with crime whether the charge be true or false” and it is as important “ ‘that he be fairly and justly accused * * * as that he be fairly and impartially (People v Minet, 296 NY 315, 322-323, quoting Matter of Gardiner, 31 Misc 364, 375). Thus we have held a defendant has a procedural right to challenge an indictment founded upon inadequate or improper evidence which is of constitutional dimension (Matter of Jaffe v Scheinman, 47 NY2d 188, 194; People v Sexton, 187 NY 495, 511-512).

Indictments are presumed to be valid (People v Bergerson, 17 NY2d 398, 402; People v Howell, 3 NY2d 672, 675; People v Sexton, supra), and they are rarely open to attack on grounds of inadequacy after a conviction because such attacks lend themselves to abuses (see Costello v United States, supra; Holt v United States, 218 US 245; and see CPL 210.30). However, courts have exercised their inherent powers to dismiss an indictment, even then, when there was a total lack of evidence before the Grand Jury (see People v Glen, 173 NY 395, 400, supra), when the quality of the evidence is challenged because the witness’s testimony was perjured (United States v Basurto, 497 F2d 781; cf. United States v Flaherty, 668 F2d 566; United States v Kennedy, 564 F2d 1329, cert den sub nom. Myers v United States, 435 US 944), or when the indictment is founded on hearsay testimony which the Grand Jury may not have understood as such (United States v Estepa, 471 F2d 1132). Courts have dismissed in these circumstances even though there was sufficient other reliable evidence presented, or the prosecutor acquired the knowledge of the false evidence after the indictment was handed up, or the prosecutor made a full disclosure of the falsity after discovering it (United States v Basurto, supra; cf. People v Leary, 305 NY 793). Indeed, courts have stated that indictments may be dismissed solely because they were obtained by the prosecutor for improper motives (see, e.g., United States v DeMarco, 401 F Supp 505, affd 550 F2d 1224; People v Tyler, 46 NY2d 251; Matter of Cunningham v Nadjari, 39 NY2d 314, 318).

This conviction must be reversed and the indictment dismissed because the evidence before the Grand Jury failed to meet legal standards and the prosecutor knew that when he permitted the court to take defendant’s plea to the full indictment. Whatever the presenting prosecutor and the Grand Jury believed Officer Tuthill meant to say when he testified before them, he subsequently made clear to the prosecutor, in private conversations and sworn statements, that he had not observed defendant engage in criminal conduct and that he had not intended to testify that he had. Tuthill’s evidence was not only material to the charges against defendant, it was the only evidence linking him to the unlawful possession of marihuana; defendant’s presence at the scene of arrest, standing alone, would not support the indictment (People v Martin, 32 NY2d 123; United States v Di Re, 332 US 581). That being so, the indictment was fatally defective because the Grand Jury had no evidence before it worthy of belief that defendant had committed a crime. Possessing the knowledge he did before the entry of the plea, the prosecutor was duty bound to obtain a superseding indictment on proper evidence or to disclose the facts and seek permission from the court to resubmit the case (see CPL 200.80,210.20, subd 4). Just as he could not sit by and permit a trial jury to decide a criminal action on evidence known to be false, he could not permit a proceeding to continue on an indictment which he knew rested solely upon false evidence (cf. People v Robertson, 12 NY2d 355; supra; People v Savvides, 1 NY2d 554, supra; Napue v Illinois, 360 US 264, supra).

To be distinguished is Grand Jury testimony sufficient when given but which through change of circumstances, such as the death of the witness (see People v Jones, 44 NY2d 76, cert den 439 US 846), or the witness’s uncertainty at trial may lose its force. Such testimony, when given, is given as intended and the minds of the prosecutor, the witness and the grand jurors understand its import. The evidence may subsequently fail its purpose for many reasons but the integrity of the Grand Jury’s fact-finding process has not been undermined because of that. Also to be distinguished are situations in which there may be latent weaknesses in the Grand Jury evidence unknown to the prosecutor and only discovered subsequent to conviction. There exists an infirmity in the Grand Jury’s indictment but the prosecutor knew none of it and the conviction based on defendant’s plea may stand. The cardinal purpose of the Grand Jury, however, is to act as a shield against prosecutorial excesses and this protection is destroyed and the integrity of the criminal justice system impaired if a prosecution may proceed even after the District Attorney learns that jurisdiction is based upon an empty indictment.

The People contend and the court below held that defendant waived his right to challenge the proceedings preliminary to conviction when he pleaded guilty (see People v Evans, 58 NY2d 14; People v Di Raffaele, 55 NY2d 234; People v Thomas, 53 NY2d 338; People v Lynn, 28 NY2d 196). We have held that a defendant who accepts a bargained plea to a lesser included offense may not challenge the sufficiency of the Grand Jury evidence supporting the charge in the indictment (People v Kazmarick, 52 NY2d 322, 326; People v Clairborne, 29 NY2d 950) and that is so even if there are technical defects in the proceedings, if the defects do not impair the integrity of the Grand Jury process (see People v Dunbar, 53 NY2d 868). By pleading, defendant has elected a trial strategy. He has determined, for whatever reason, that he will not litigate the question of guilt. Having made that bargain he necessarily surrenders certain rights including the right to challenge the factual basis for the plea (see People v Foster, 19 NY2d 150, 151; People v Griffin, 7 NY2d 511, 515). He does not, however, forfeit all right to challenge the court’s jurisdiction (People v Harper, 37 NY2d 96; People v Koffroth, 2 NY2d 807; People v Miles, 289 NY 360) or raise arguments of a constitutional dimension (see People v Lee, 58 NY2d 491 [constitutionality of statute]; People v Blakley, 34 NY2d 311 [speedy trial rulings]; People v Francabandera, 33 NY2d 429 [defendant’s competence to stand trial]; People v Lynn, 28 NY2d 196, supra [right to be informed of right to appeal]; see, also, Pitler, NY Crim Prac Under the CPL, § 9.11, pp 453-454; cf. Boykin v Alabama, 395 US 238). Falling into the same category is a challenge based upon a guilty plea to an accusatory instrument which is void because of the prosecutor’s knowledge that the only evidence to support it is false (see People v Peetz, 7 NY2d 147; People v Koffroth, supra; People v Sexton, 187 NY 495, 511, supra).

The People refer to the limiting provisions of CPL 210.30. That section provides that the validity of an order denying a motion to dismiss an indictment for insufficiency is not re viewable upon an appeal from an ensuing judgment of conviction based upon legally sufficient trial evidence. It was enacted in response to People v Nitzberg (289 NY 523) and similar cases (see Bellacosa, Practice Commentary, McKinney’s Cons Laws of NY, Book 11 A, CPL 210.30, p 93; see, also, 34 NY Jur 2d, Criminal Law, § 2283). In Nitzberg, defendant was convicted of murder after a jury trial. The judgment was reversed on appeal because of an error in the charge, not because of the insufficiency of the evidence. After the reversal defendant moved, for the first time, to inspect the Grand Jury minutes and dismiss the indictment for insufficiency because it was based solely on accomplice testimony. The trial court denied the motion but on appeal to this court, after the second trial, the judgment was reversed and the motion to dismiss granted.

CPL 210.30 changed the Nitzberg rule but it did not similarly restrict the authority of the court to review the validity of the evidence supporting an indictment after a plea of guilty. The statutory differentiation between the two situations is logical because the sufficiency of the evidence to convict following a trial is manifest from the record.

In view of our decision it is unnecessary to address defendant’s contention that the prosecutor promised to deliver all Brady material to him (see Brady v Maryland, 373 US 83, supra) and that he failed to honor that promise, and therefore violated defendant’s due process rights, by not revealing Officer Tuthill’s conversation.

Accordingly, the order of the Appellate Division should be reversed and the indictment dismissed with leave to the prosecutor to move before Supreme Court for permission to resubmit the case to the Grand Jury.

Chief Judge Cooke and Judges Jasen, Jones, Wacht-ler, Meyer and Kaye concur.

Order reversed and indictment dismissed with leave to move for permission to resubmit the case to the Grand Jury.