author: Gabrielli, J. Fuchsberg, J.

text:
    Michele Feinstein et al., as Administrators of the Estate of Martin H. Wilensky, Deceased, Appellants, v David C. Bergner, Respondent.
    Argued September 7, 1979;
    decided October 23, 1979

      POINTS OF COUNSEL

      Herbert M. Horowitz, Gustave G. Rosenberg, Lawrence M. Rosenberg and David Jaroslawicz for appellants.
    I. Service of process was properly had upon defendant when with due diligence personal service could not be made, a copy of the summons was affixed to the door of defendant’s usual place of abode and a copy mailed to him at that same address which was his last known residence. (Rich Prods. Corp. v Diamond, 51 Misc 2d 675; Cohen v Levy, 50 AD2d 1039.) II. CPLR 308 (subd 4) should not be construed in such a stringent fashion that the slightest deviation therefrom should make service void, despite the fact that defendant had full and fair notice that the action was pending and a proper opportunity to appear and defend. (Hiller v Burlington & Mo. Riv. R. R. Co., 70 NY 223; Dobkin v Chapman, 21 NY2d 490; Walker v Hutchinson City, 352 US 112; Marcy v Woodin, 18 AD2d 944; Erale v Edwards, 47 Misc 2d 213; Green v Morningside Hgts. Housing Corp., 13 Misc 2d 124, 7 AD2d 708; du Pont, Glore Forgan & Co. v Chen, 41 NY2d 794; Caffaro v Trayna, 35 NY2d 245.)

      Michael Wolpinsky and Vincent A. Di Blasi for respondent.
    I. No jurisdiction was obtained over the person of David C. Bergner inasmuch as the purported service herein was in contravention of the provisions of CPLR 308 (subd 4) and furthermore no basis for an estoppel exists to create jurisdiction, notwithstanding the improper service of process. (McCoon v Schoch, 30 AD2d 768; Eisenhoffer v New Yorker Zeiting Pub. & Print. Co., 91 App Div 94; Ranieri v Wilson, 34 AD2d 1084; Korn v Lipman, 201 NY 404; Italian Colony Rest, v Wershals, 45 AD2d 841; Blatz v Benschine, 53 Misc 2d 352; Zinger v Zinger, 78 Misc 2d 197; Mittelman v Mittelman, 45 Misc 2d 445; Furey v Milgrom, 44 AD2d 91, 34 NY2d 517; Levin v McGovern, 53 AD2d 1042.) II. The insertion and reference to a board of elections document which matter and issue were not submitted at Special Term is proscribed; and furthermore, the overwhelming evidence before the court requires an affirmance of the findings and the decision of the court below. (Rentways, Inc. v O’Neill Milk & Cream Co., 308 NY 342; Amsterdam Sav. Bank v City View Mgt. Corp., 45 NY2d 854; Kahn v City of New York, 37 AD2d 520; Wright v Wright, 226 NY 578; American Ind. Contr. Co. v Travelers Ind. Co., 54 AD2d 679, 42 NY2d 1041; Matter of Niagara Co. Water Dist. v Board of Assessors of City of Lockport, 31 AD2d 1004, 36 AD2d 236, 29 NY2d 705; Flombenbaum v Drug Abuse Control Comm., 50 AD2d 20; Dixon v La Guardia, 277 NY 84; Cohn v Goldman, 76 NY 284; Matter of Angel Fabrics [Cravat Pierre Ltd.], 51 AD2d 951.)
   OPINION OF THE COURT

Gabrielli, J.

Plaintiffs appeal from an order of the Appellate Division which dismissed their complaint for failure properly to serve the defendant with process. The outcome of their appeal depends upon the correct interpretation of CPLR 308 (subd 4), which permits substitute service by "affixing the summons to the door of either the actual place of business, dwelling place or usual place of abode * * * of the person to be served” and by "mailing the summons to such person at his last known residence”.

The case arises out of an automobile accident which occurred on April 2, 1972. Plaintiff Pauline Wilensky and her husband, Martin Wilensky, who died on the day of the accident, were injured when they were struck by a car owned and operated by defendant Bergner. At the time of the accident, Bergner was residing with his parents at 76 Aster Court, Brooklyn, the address he gave at the accident scene.

Some 30 months after the accident, plaintiff Pauline Wilensky and the administrator of the deceased Martin Wilensky’s estate attempted to commence an action against Bergner for conscious pain and suffering and wrongful death. Plaintiffs’ process server made two visits to the Aster Court address before affixing the summons and complaint to the door on August 27, 1974 and mailing copies of the papers to the Aster Court address on August 29.

Unbeknown to plaintiffs, however, defendant Bergner had moved from his parents’ home in February of 1973, having married and established a household of his own at 2729 West 33rd Street in Brooklyn. Although he returned to his parents’ home for a brief period in February of 1975, when his mother died, Bergner did not regularly frequent the Aster' Court address. Thus, at the time the summons and complaint were affixed to the door at 76 Aster Court, that address was not and could no longer be considered defendant’s dwelling place.

Bergner ultimately received notice that a suit was pending against him when his father mailed copies of the summons and complaint to his home. He thereafter timely moved to have the action dismissed on the ground that the attempted service was ineffective. Special Term denied the motion, finding at the outset that plaintiff had exercised "due diligence” in attempting to effect personal service before resorting to the substitute "nail and mail” method of service authorized by CPLR 308 (subd 4). As to defendant’s contention that plaintiff had failed to comply with the CPLR 308 (subd 4) requirement of affixing process to the door of the "dwelling place” or "usual place of abode”, Special Term concluded that defendant should be estopped from raising such a defense since his father’s actions in mailing the summons and complaint to his new address rather than returning them to plaintiffs through the mails "effectively concealed” from plaintiffs the fact that Bergner had moved. On appeal to the Appellate Division, however, this determination was reversed. Although the Appellate Division agreed that due diligence had been exercised in the plaintiffs’ preliminary efforts to effect service by personal delivery, it found the purported substitute service defective and, concluding that there could be no estoppel in the absence of fraud or misrepresentation on the part of defendant, granted Bergner’s motion to dismiss.

At the outset, we note that we leave undisturbed the lower courts’ findings that "due diligence” was exercised in the first instance, as we are unprepared to say that the finding was erroneous as a matter of law. We accordingly assume that the use of substitute service under CPLR 308 (subd 4) was authorized in this case and we address only the question whether the purported service conformed to the requirements of the statute. We conclude that it did not.

The "nail and mail” provision of the CPLR permits a plaintiff to mail duplicate process to the defendant at his last known residence, but clearly requires that the "nailing” be done at the defendant’s "actual place of business, dwelling place or usual place of abode”. While there may be some question as to whether there is a distinction between "dwelling place” and "usual place of abode”, there has never been any serious doubt that neither term may be equated with the "last known residence” of the defendant (Chalk v Catholic Med. Center of Brooklyn & Queens, 58 AD2d 822; Polansky v Paugh, 23 AD2d 643; Entwistle v Stone, 53 Misc 2d 227; McLaughlin, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 308:4, p 208; see Siegel, New York Practice, § 72, p 78). Indeed there are cogent reasons for preserving the distinction, apart from the obvious principle that where the Legislature has used different words in a series, the words should not be construed as mere redundancies (see McKinney’s Cons Laws of NY, Book 1, Statutes, § 231).

Under the original version of CPLR 308, service by any method other than personal delivery to the defendant was impermissible unless prior "diligent” efforts had been made to serve the defendant in person. Many commentators, however, criticized this requirement as overly stringent, contending that it was the primary cause of the disreputable practice known as "sewer service” (Sixteenth Ann Report of NY Judicial Conference, 1971, p A38; see McLaughlin, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 308:2, p 206; 1 Weinstein-Korn-Miller, NY Civ Prac, par 308.13). Accordingly, when the statute was revised in 1970 (L 1970, ch 852), the Legislature attempted to strike a balance between the need to ensure that defendants receive actual notice of the pendency of litigation against them and the need to build into the statute sufficient flexibility to discourage cynical practices such as "sewer service”. To accomplish this goal, the Legislature enacted an amendment which permitted plaintiffs to serve by delivering process to "a person of suitable age and discretion” at the defendant’s dwelling place or usual place of abode and mailing copies of the papers to the defendant’s "last known residence” without first having to attempt to effect service by personal delivery (CPLR 308, subd 2). The Legislature stopped short, however, of making any substantive changes in the "nail and mail” method of substitute service. Significantly, in both the "leave and mail” and "nail and mail” subdivisions, the Legislature retained both the requirement that the summons be delivered or affixed to the defendant’s actual place of business, dwelling place or usual place of abode and the additional requirement that the summons be mailed to the defendant’s last known residence. Presumably, the Legislature left these aspects of CPLR 308 intact in the belief that a further liberalization of the requirements for service would jeopardize the primary statutory purpose of ensuring that defendants receive actual notice of the pendency of litigation against them. In light of the Legislature’s continued adherence to these dual requirements, we cannot and should not blur the distinction between "dwelling place” and "last known residence”, since to do so would be to diminish the likelihood that actual notice will be received by potential defendants. While a rule which permits both the "nailing” and "mailing” steps to be completed at a defendant’s last known residence would make it infinitely easier to serve the "hard-to-find” defendant, such a rule would not ensure that a readily accessible defendant is given adequate notice. Hence, we find the construction of CPLR 308 (subd 4) proposed by the plaintiffs to be unacceptable (see Mullane v Central Hanover Trust Co., 339 US 306).

Nor do we find any "inherent inconsistency” in requiring the "affixing” to be done at the actual dwelling place or usual place of abode while permitting the "mailing” to be completed by mailing to the defendant’s last known residence. Of course, we assume that plaintiffs will mail copies of the summons to the defendant’s actual residence where that address is known (see Siegel, New York Practice, § 72, at pp 77-78). Indeed, in cases where the defendant’s residence is known, the actual dwelling place and the last known residence would be the same location by definition. Nevertheless, we decline to view the "last known residence” clause as a mere redundancy or as evidence of inartful draftsmanship because we believe that the clause was inserted primarily to address those situations in which the defendant’s residence is unknown, but his "actual place of business” is known to the plaintiff. In such cases, service would be literally impossible if the statute did not allow the second step of "mailing” to be completed by sending the papers to the defendant’s last known residence. Thus, when the statute is read in its entirety, as it must be, it becomes clear that the Legislature deliberately used the term "last known residence” as a means of encompassing cases where only the actual place of business is known as well as cases where the defendant’s current residence is known.

Turning to the facts in this case, we find that the purported service was ineffective, since the plaintiff failed to comply with the specific mandates of CPLR 308 (subd 4). The summons here was affixed to the door of defendant’s last known residence rather than his actual abode. That Bergner subsequently received actual notice of the suit does not cure this defect, since notice received by means other than those authorized by statute cannot serve to bring a defendant within the jurisdiction of the court (see, e.g., McDonald v Ames Supply Co., 22 NY2d 111). Nor may Bergner be estopped from raising the defect in service as a defense, since plaintiffs here have failed to demonstrate that Bergner engaged in conduct which was calculated to prevent them from learning of his new address (see Cohen v Arista Truck Renting Corp., 70 Misc 2d 729). Since potential defendants ordinarily have no affirmative duty to keep those who might sue them abreast of their whereabouts (cf. Dobkin v Chapman, 21 NY2d 490, 504), we can find no basis for invoking the estoppel doctrine here.

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

Fuchsberg, J.

(dissenting). As I read it, CPLR 308 (subd 4)’s use of diverse terms to specify the locations at which the two steps of "nailing” and "mailing” must take place renders the statute ambiguous. Therefore, until such time as the Legislature sees fit to revamp its confusing verbiage, I believe we should wield our well-recognized prerogative of construing procedural statutes so as not to foreshorten the legitimate claims and expectations of litigants (see CPLR 104; McKinney’s Cons Laws of NY, Book 1, Statutes, § 325). The present case, in which there is a common view of the essential facts, is illustrative.

In this action for wrongful death of the surviving plaintiff’s husband and for serious personal injuries to herself, the majority accepts Special Term’s finding that the "due diligence” which is the prerequisite to resort to substitute service under CPLR 308 (subd 4) was fulfilled. And, I agree with the majority that the claimed estoppel on which, in part, Special Term relied in reaching its decision is not at the heart of the problem in this case. Nor is it disputed that plaintiff, complying with CPLR 308 (subd 4), mailed the summons to the defendant at the last address at which she had reason to believe the defendant resided, i.e., in terms of the statutory language, "at his last known residence”. Consequently, in the end, the issue is simply whether plaintiff also met the remaining requirement, i.e., "affixing the summons to the door of either the actual place of business, dwelling place or usual place of abode * * * of the person to be served”, when she did so at the same address rather than at the one to which it later turned out defendant, unbeknownst to the plaintiff and without leaving a postal forwarding address, had moved his actual residence.

I am of the opinion that the service satisfied the legislative mandate. This conclusion flows from the ensuing rationale. Start by adopting as apropos Professor David Siegel’s comment that "the precise meaning of the phrases used [in the statute] has yet to be discerned” (Siegel, New York Practice, § 72, p 78). Note then that, consistently with this observation, commentators have cautiously found it safest to describe it largely in haec verbae (McLaughlin, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C308:2, C308:4, pp 207-208; Siegel, New York Practice, §§ 72, 74, pp 77-78, 80; 1 Weinstein-Korn-Miller, NY Civ Prac, pars 308.13a, 308.14). Add to this the fact that, as the majority recognizes, CPLR 308 in its present form was intended to lessen the difficulty in obtaining jurisdiction over hard-to-find defendants, in response to which some frustrated process servers had developed an unfortunate and scandalous penchant for "sewer service”; indeed, procedural scholars, who, in contrast with the sparseness of their commentary on the statutory language itself, speak freely of its purpose, emphasize that its latest amendment, enacted in 1971, proceeded on the theory that a less demanding statute, by simplifying the path to substituted service, would destroy the incentive for such slipshod or unlawful conduct (New York State Judicial Conference Report to the 1970 Legislature in Relation to the CPLR 32-37; Weinstein-Korn-Miller, op cit., par 308.13; Siegel, op cit, § 71, p 76).

In this light, it seems to me that the appearance of any internal inconsistency that may be created by the imprecise phraseology of CPLR 308 (subd 4), absent legislative correction, should be resolved by reading its various references to the place where a prospective defendant lives — "dwelling place”, "usual place of abode”, "last known residence” — as though they were essentially synonymous (see CPLR 104). In handling the seeming redundancies, we would be merely viewing the work of the legislative draftsmen as of a part with the drafting of legal documents in which a series of words of varying shades of meaning are commonly utilized to make certain that an intended single meaning is included.

Moreover, I suggest that, consistent with the expressed intent of the legislation’s sponsors to liberalize substituted service procedure, the word "actual” should be taken as intended to qualify only a single alternative — "place of business”, rather than all the phrases which follow it. This would accord with accepted principles for statutory interpretation (see McKinney’s Cons Laws of NY, Book 1, Statutes, § 254).

Those who sponsored this legislative reform could hardly have had in mind that a plaintiff would do his "mailing” to a place where he had reason to believe a defendant no longer lived, especially when in fact a more current location had become known to him. Pragmatically, then, "the last known” residence to which "mailing” is to be directed must be taken to be no different than the defendant’s "place of usual abode” or "dwelling place” at which the statute variably tells us the "nailing” to the door is to take place. After all, the "mailing” and "nailing”, both ways of bringing home the fact of commencement of suit, are most effectively directed to the place where a defendant is most likely to receive the first and see the second.

I would, therefore, reinstate the order denying defendant’s motion to dismiss the complaint for lack of personal jurisdiction.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler and Meyer concur with Judge Gabrielli; Judge Fuchsberg dissents and votes to reverse in a separate opinion.

Order affirmed.

      . [1] Orders setting aside service of process are ordinarily considered nonfinal and hence are not appealable to this court as a matter of right (e.g., Theaman v Hindels, 300 NY 673; see NY Const, art VI, § 3, subd b, par [1]). Where, as here, the complaint is dismissed in connection with the order setting aside service, however, the order is deemed final and an appeal may be taken pursuant to CPLR 5601 (subd a) (Cohen and Karger, Powers of the New York Court of Appeals, § 41, p 163, n 25).

      . Although there would appear to be some question regarding the timeliness of plaintiffs’ wrongful death cause of action (see EPTL 5-4.1), that question is not presented to us in this appeal.

      . Plaintiffs contend that, even if the summons and complaint were not affixed at defendant’s "dwelling place”, service should nonetheless be deemed proper because the papers were "nailed” to the door of Bergner’s "usual place of abode”, his parent’s home. While we agree in principle that there may be a distinction between "dwelling place” and "usual place of abode” (see Rich Prods. Corp. v Diamond, 51 Misc 2d 675; McLaughlin, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 308:2, p 207; 1 Weinstein-Korn-Miller, NY Civ Prac, par 308.13), we need not decide that question here, since plaintiffs’ allegations are not sufficient to support the conclusion that defendant had a "usual place of abode” at the Aster Court address separate from his "dwelling place” at the West 33rd Street address. Plaintiffs have alleged only that Bergner voted from the Aster Court address in 1974 and returned there for a brief period in 1975. Such facts, however, are not sufficient to establish the degree of permanence and stability that is necessarily implied by the term "usual place of abode” (see Smithtown Gen. Hosp. v Quinlivan, 88 Misc 2d 1031; 1 Weinstein-Korn-Miller, NY Civ Prac, par 308.13).

      . The 1970 revision of CPLR 308 required the summons to be mailed to the defendant’s "last known address” (L 1970, ch 852). The word "residence” was substituted for the word "address”, however, in 1971 (L 1971, ch 176). No substantive change in the meaning of the statute was intended (Seventeenth Ann Report of NY Judicial Conference, 1972, p A38).

      . We note that, in cases where neither the "actual place of business” nor the "dwelling place” or "usual place of abode” is known, the plaintiff may nonetheless serve the defendant, provided there is a jurisdictional basis, by obtaining a court order pursuant to CPLR 308 (subd 5) (see Dobkin v Chapman, 21 NY2d 490).

       The defendant and his parents had resided together at this address. However, after his departure from the household, the name on the door, as seen by the process server and as confirmed by a neighbor who subsequently testified to that effect, did not reflect this change. As it happens, when the summons mailed to that address arrived for the defendant, it was taken in hand by the father, who, though not on speaking terms with his son, had it delivered to him.


source: Caselaw Access Project

author: Gabrielli, J.

license: Public Domain

text:
    The People of the State of New York, Respondent, v David B. Mayo, Appellant.
    Submitted October 12, 1979;
    decided November 15, 1979

      POINTS OF COUNSEL

      Douglas P. Rutnik, Public Defender (James E. Banagan of counsel), for appellant.
    It was error to retry appellant for the offense of robbery in the first degree, and such retrial was violative of the double jeopardy clauses of the Federal and State Constitutions. (People v Brown, 40 NY2d 381, 433 US 913; Matter of Di Lorenzo v Murtagh, 36 NY2d 306; Benton v Maryland, 395 US 784; Robinson v Neil, 409 US 505; People ex rel. Pendleton v Smith, 54 AD2d 195, 40 NY2d 809; Green v United States, 355 US 184; Price v Georgia, 398 US 323; United States ex rel. Hetenyi v Wilkins, 348 F2d 844, cert den sub nom. Mancusi v Hetenyi, 383 US 913.)

      Sol Greenberg, District Attorney (F. Patrick Jeffers of counsel), for respondent.
    The retrial of defendant for robbery in the first degree does not warrant the reversal of his conviction for robbery in the second degree. (Robinson v Neil, 409 US 505; People ex rel. Pendleton v Smith, 54 AD2d 195; Green v United States, 355 US 184; Price v Georgia, 398 US 323; United States ex rel. Hetenyi v Wilkins, 348 F2d 844.)
   OPINION OF THE COURT

Gabrielli, J.

Following a trial court’s decision to dismiss a charge of first degree robbery on grounds of insufficient evidence, defendant Mayo was again brought to trial for the same offense in clear violation of his rights under the double jeopardy clause of the United States Constitution. The novel question presented upon this appeal is whether reversal of his conviction of a lesser included offense is required even though the jury in the second trial was instructed not to consider the original first degree robbery charge, the sole count in the indictment. After examining the relevant principles and precedents, we conclude that the conviction must be reversed.

Defendant Mayo was initially brought to trial under a single-count indictment charging him with having committed robbery in the first degree in violation of subdivision 3 of section 160.15 of the Penal Law. At the close of the trial, defendant moved to have the sole charge against him dismissed on the ground that the People had failed to establish an essential element of the crime, the use or threatened use of a dangerous weapon (see Penal Law, § 160.15, subd 3). Although the Trial Judge declined to dismiss the indictment outright, he indicated his agreement with defendant’s position and instructed the jury that it could find defendant guilty only of the lesser included offense of robbery in the second degree or, in the alternative, robbery in the third degree (see CPL 300.30, subd 1; 300.50, subd 1). The proceedings ultimately terminated in the declaration of a mistrial after the jury was unable to reach agreement as to defendant’s guilt on these lesser charges.

Rather than obtaining a new indictment charging defendant with the less serious crimes of robbery in the second and third degrees, the People elected to bring defendant to trial a second time under the original indictment. Defendant promptly objected to being retried on the first degree robbery count and moved to dismiss the indictment, but the trial court concluded that retrial was not proscribed by the double jeopardy clause of the the Fifth Amendment and, accordingly, permitted the trial to go forward.

Notwithstanding this determination, the Trial Judge subsequently decided that the first degree robbery charge should be withdrawn from the jury’s consideration. Consequently, before sending the jurors out to deliberate, the Trial Judge informed them that although defendant had been indicted for first degree robbery, they were not to consider that charge in arriving at their verdict "for legal reasons” with which they need not concern themselves. The jurors were further instructed that they should consider defendant Mayo’s guilt only in relation to the lesser included offenses of robbery in the second and third degrees, which were not specifically charged in the indictment. This time, the jury found the defendant guilty of robbery, second degree.

On appeal from the judgment of conviction, the Appellate Division determined that the trial court had erred in permitting defendant to be tried a second time for first degree robbery. Nonetheless, applying a "harmless error” analysis, the Appellate Division held that reversal was not warranted, since the jury was not permitted to consider the improperly raised first degree robbery charge and, in fact, had been made aware of it only through "fleeting” references. Because we find the application of "harmless error” analysis wholly inappropriate in this context, we are constrained to reverse the Appellate Division’s determination and dismiss the underlying indictment.

We note at the outset that the Appellate Division was correct in concluding that defendant Mayo’s rights under the double jeopardy clause of the Fifth Amendment were violated in the most fundamental manner when he was haled into court and made to answer the charge of first degree robbery for the second time. Although, the jury in the first trial was not permitted to consider that charge, the trial court’s decision to withdraw the first degree robbery count from the jury’s consideration on the ground of insufficient evidence was equivalent to an acquittal and therefore operated as a bar to any further prosecution of that charge (People v Key, 45 NY2d 111; accord United States v Martin Linen Supply Co., 430 US 564; see Burks v United States, 437 US 1).

It may be that defendant could have been retried and convicted under a properly drawn indictment charging him only with the lesser included crimes of robbery in the second and third degrees. As to these charges, the proceedings were inconclusively terminated by the declaration of a mistrial following the jury’s inability to reach a verdict, and, under settled double jeopardy principles, there could be no objection to the bringing of a second criminal proceeding (United States v Perez, 9 Wheat [22 US] 579; see United States v Scott, 437 US 82, 92-94; Arizona v Washington, 434 US 497; Matter of Nolan v Court of Gen. Sessions, 11 NY2d 114, 119). The fact remains, however, that here the People did not choose to limit the charges in the second proceeding to the permissible counts of second and third degree robbery. Instead, they opted to proceed under the original indictment, thereby placing defendant once again at risk of being convicted of first degree robbery, a crime of which he had previously been, in effect, acquitted. It is precisely this type of imposition that the double jeopardy clause of the Fifth Amendment was calculated to prevent.

That defendant Mayo was not actually convicted of first degree robbery upon retrial does not undermine our conclusion that his second trial was constitutionally prohibited. As we have noted on several occasions, the evil to which the double jeopardy clause is addressed occurs when a defendant is brought into court to defend against a criminal charge for the second time and is again subjected to the attendant expense, personal anxiety and social opprobrium (People v Michael, 48 NY2d 1, 7-8; Matter of Nolan v Court of Gen. Sessions, 11 NY2d 114, 119, supra; accord Crist v Bretz, 437 US 28, 35; Green v United States, 355 US 184, 187-188). The effect of such a burden simply cannot be rectified by the defendant’s subsequent exoneration.

This principle was the basis of the United States Supreme Court’s decision in Price v Georgia (398 US 323). The appellant in Price initially had been tried on a murder charge, but had been convicted only of the lesser included offense of voluntary manslaughter. Although this conviction constituted an implied acquittal on the more serious murder charge, the State sought to try the appellant once again on that count after his voluntary manslaughter conviction was set aside on appeal. Once again, the appellant was convicted only of the lesser charge of voluntary manslaughter. The Supreme Court reversed the appellant’s conviction on double jeopardy grounds, even though the crime for which the appellant had been convicted was not the crime for which he had been twice placed in jeopardy. In so doing, the Price court rejected the contention that the violation of the appellant’s rights under the double jeopardy clause could be considered harmless and stated (p 331): "The Double Jeopardy Clause * * * is cast in terms of the risk or hazard of trial and conviction, not of the ultimate legal consequences of the verdict. To be charged and to be subjected to a second trial * * * is an ordeal not to be viewed lightly. Further, and perhaps of more importance, we cannot determine whether or not the murder charge against petitioner induced the jury to find him guilty of the less serious offense * * * rather than to continue to debate his innocence”.

Notwithstanding the clear import of this language, we are urged to distinguish Price from the case presently before us on the ground that in Price the jury was permitted to consider the more serious charge of which the appellant had previously been exonerated, while here the first degree robbery count, which was barred under the. double jeopardy clause, was withdrawn from the jury before it began its deliberations. Hence, it is argued, the potential for contamination of the jury’s deliberations that concerned the Supreme Court in Price was not present in defendant Mayo’s second trial and, consequently, there is no need for reversal of Mayo’s conviction.

While we recognize the existence of a factual distinction between the two cases, we do not agree that the distinction is of such analytical significance as to justify a departure in this case from the rationale articulated , in Price. On one level, it is apparent that the trial court’s removal of the first degree robbery count from the case just prior to the jury’s retiring did not ensure that the verdict was not in some way influenced by the looming presence of that charge throughout the trial. The jurors were informed at the outset that defendant Mayo was on trial for first degree robbery and they presumably evaluated the evidence as it was being presented in light of that charge. Moreover, it cannot be doubted that defendant’s trial strategy was affected, perhaps to his ultimate detriment, by the need to present an effective defense to the more serious first degree robbery charge. Thus, even if we were to apply traditional "harmless error” analysis to this case, we could not conclude beyond a reasonable doubt that defendant’s position was not prejudiced by the introduction of a constitutionally impermissible charge at his second trial (see Harrington v California, 395 US 250; Chapman v California, 386 US 18; People v Crimmins, 36 NY2d 230).

More importantly, however, we reject the reasoning of the Appellate Division in this case because we find the harmless error rule to be particularly ill-suited for analyzing problems of the type presented here. As we recently observed in People v Felder (47 NY2d 287), there are some errors of constitutional magnitude that are so fundamental that their commission serves to invalidate the entire trial. These errors are simply not amenable to traditional harmless error analysis, which has its most convincing application in the area of trial errors concerning the admissibility of evidence under the Fourth and Fifth Amendments. In Felder, we held that the right to the assistance of counsel at trial is so basic to the concept of a fair trial that its denial can never be treated as "harmless error”. We analogized the denial of the right to counsel there to other constitutional infractions that impugn the very integrity of the criminal proceeding. While the issue in Felder is not directly apposite to that presented in this case, we think that the Felder rationale may be applied with equal, if not greater, force in cases such as this, where the constitutional error involves a violation of the defendant’s right not to be twice placed in jeopardy for the same offense.

Accordingly, we eschew the "harmless error” approach adopted by the Appellate Division and instead base our holding on the fundamental principles inherent in the double jeopardy clause itself. It has been observed that "[t]he guarantee against double jeopardy is significantly different from [other] procedural guarantees * * * While this guarantee, like the others, is a constitutional right of the criminal defendant, its practical result is to prevent a trial from taking place at all, rather than to prescribe procedural rules that govern the conduct of the trial” (Robinson v Neil, 409 US 505, 509). When a defendant is brought to trial in violation of his rights under the double jeopardy clause of the Fifth Amendment, the very power of the court to try him is implicated (see People v Michael, 48 NY2d 1, 7; accord Blackledge v Perry, 417 US 21, 30-31). Thus, while a double jeopardy claim may be waivable under certain limited circumstances (e.g., People v Coppa, 45 NY2d 244; see Menna v New York, 423 US 61, 62-63, n 2; People v Michael, 48 NY2d 1, 7, supra), it cannot be gainsaid that, absent such a waiver, a trial held in violation of the double jeopardy clause must be deemed to be a nullity having no legal effect (see People ex rel. Zakrezewski v Mancusi, 22 NY2d 400, 404-405). Any less exacting standard would contravene the clear purpose of the double jeopardy clause, to deprive the State of the power to subject a citizen to the risk of trial after he has been exonerated of the charges against him.

In this case, defendant Mayo objected to being tried a second time for first degree robbery at the earliest possible point in the proceedings. His motion to dismiss the flawed indictment was erroneously denied by the trial court. Under these circumstances, the ensuing criminal proceeding should be deemed to have been a nullity and it follows that the conviction for second degree robbery must be reversed.

Finally, we hold that the pending indictment for first degree robbery must be formally dismissed. Since the sole count it contains is not prosecutable under settled double jeopardy principles, nothing remains to support further criminal proceedings under that accusatory instrument (see People ex rel. Poulos v McDonnell, 302 NY 89). We note, however, that our holding, which is based solely on legal grounds, does not foreclose further prosecution of the defendant pursuant to a new indictment containing such criminal charges as were not barred by the double jeopardy rule immediately after the jury in the first trial was discharged.

For the reasons stated, the order of the Appellate Division should be reversed and the indictment dismissed.

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

Order reversed, etc.

      .  In denying defendant Mayo’s motion to dismiss the indictment on double jeopardy grounds, the trial court relied upon CPL 310.60 (subd 2), which provides that a defendant may be retried under the original indictment following the declaration of a mistrial. Under the statute, all counts that were contained in the indictment are automatically revived, including those that were dismissed by the Trial Judge prior to the termination of the proceedings in a mistrial. However, the trial court’s reliance on this provision as a basis for reinstating the first degree robbery count in this case was' misplaced. Although the statute may be valid with respect to counts that are dismissed on grounds that do not preclude reprosecution (cf. People v Key, 45 NY2d 111, 119), it cannot constitutionally be applied in cases where the count was dismissed on the ground of insufficient evidence. In such cases, the dismissal constitutes an adjudication of the facts tantamount to an acquittal and thus operates as a bar to retrial notwithstanding the provisions of CPL 310.60 (subd 2) (see People ex rel. Poulos v McDonnell, 302 NY 89).

      . Defendant concedes that the People could have brought him to trial again after the mistrial if they had obtained a new indictment containing only the second and third degree robbery counts. While the posture in which this case is presented does not require us to address this point, we note our belief that there would have been no constitutional or statutory bar to a retrial under such circumstances.


author: Chief Judge Cooke.

text:
    Harry O. Spears et al., Respondents, v Peter A. A. Berle, as Commissioner of Environmental Conservation of the State of New York, et al., Appellants.
    Argued September 6, 1979;
    decided October 18, 1979

      POINTS OF COUNSEL

      Robert Abrams, Attorney-General (Peter G. Crary and Stanley Fishman for appellants.
    I. Denial of respondents’ interim permit application did not trigger the "taking” provision of the Freshwater Wetlands Act since it is clear from the record that respondents failed to satisfy their heavy burden of demonstrating beyond a reasonable doubt that such denial deprives them of all reasonable use of the wetland portions of their property. (Modjeska Sign Studios v Berle, 43 NY2d 468; French Investing Co. v City of New York, 39 NY2d 587, 429 US 990; Penn Cent. Transp. Co. v City of New York, 42 NY2d 324, 438 US 104; Salamar Bldrs. Corp. v Tuttle, 29 NY2d 221; Stevens v Town of Huntington, 20 NY2d 352; Vernon Park Realty v City of Mount Vernon, 307 NY 493; Matter of National Merritt v Weist, 41 NY2d 438; Williams v Town of Oyster Bay, 32 NY2d 78; Matter of Crossroads Recreation v Broz, 4 NY2d 39.) II. Even if respondents had introduced sufficient evidence to establish deprivation of all reasonable use of the wetland portions of their property, denial of their application for untrammeled use thereof would not constitute a "taking”, since the record establishes that significant portions of respondents’ property are not regulated by the act and are thus freely available for income productive use. (Koff v Village of Flower Hill, 29 AD2d 655, 28 NY2d 694; Matter of Pecora v Gossin, 78 Misc 2d 698, 49 AD2d 668; Penn Cent. Transp. Co. v New York City, 438 US 104.) III. Moreover, even assuming that respondents had satisfied their burden of proof, the court below nevertheless erred in holding that denial of an interim permit under the Freshwater Wetlands Act constitutes an unreasonable exercise of the police power, without having taken into account the critical fact that the denial occurred during an interim regulatory period and thus imposes only a temporary restriction on the use of respondents’ property. (Matter of Charles v Diamond, 41 NY2d 318; Matter of Golden v Planning Bd. of Town of Ramapo, 30 NY2d 359, 409 US 1003; Westwood Forest Estates v Village of South Nyack, 23 NY2d 424; Arverne Bay Constr. Co. v Thatcher, 278 NY 222; Matter of Rubin v McAlevey, 54 Misc 2d 338, 29 AD2d 874; Matter of Baycrest Manor v Commissioner of Environmental Conservation Dept. of State of N. Y., 58 AD2d 601; Matter of Marine Equities Corp. v Biggane, 49 AD2d 907, 38 NY2d 937; Matter of New York City Housing Auth. v Commissioner of Environmental Conservation Dept. of State of N. Y., 83 Misc 2d 89; Lake Illyria Corp. v Town of Gardiner, 43 AD2d 386.)

      William A. Glass for respondents.
    I. The wetlands statute is unconstitutional as a denial of the equal protection provisions of the Constitution of the United States and the Constitution of the State of New York. (Tucker v Toia, 89 Misc 2d 116; Rinaldi v Yeager, 384 US 305; Board of Educ. v New York State Div. of Human Rights, 42 AD2d 49, 35 NY2d 673.) II. The Freshwater Wetlands Act is an avowed taking statute. (Forster v Scott, 136 NY 577; Matter of Keystone Assoc. v Moerdler, 19 NY2d 78; City of Buffalo v Clement Co., 28 NY2d 241; Lutheran Church in Amer. v City of New York, 35 NY2d 121; Rappl & Hoenig Co. v New York State Dept. of Environmental Conservation, 88 Misc 2d 541, 61 AD2d 20; Goldblatt v Hempstead, 369 US 590.) III. The denial of the permit was arbitrary and capricious and was not supported by substantial evidence. (Gilpin v Mutual Life Ins. Co. of N. Y., 299 NY 253, 301 NY 731; Matter of Boardwalk & Seashore Corp. v Murdock, 286 NY 494; Bradford v County of Suffolk, 283 NY 503.) IV. The denial of the permit constituted a taking as it deprived respondents of all reasonable economic use of their land. (French Investing Co. v City of New York, 39 NY2d 587; Salamar Bldrs. Corp. v Tuttle, 29 NY2d 221; Lutheran Church in Amer. v City of New York, 35 NY2d 121; Vernon Park Realty v City of Mount Vernon, 307 NY 493; Penn Cent. Transp. Co. v City of New York, 42 NY2d 324; Armstrong v United States, 364 US 40; Forster v Scott, 136 NY 577; Pennsylvania Coal Co. v Mahon, 260 US 393.) V. Use of the nonwetland portion of. respondent’s property does not effect the taking of the wetlands. (Farr v Newman, 14 NY2d 183; Telaro v Telaro, 25 NY2d 433; People v Chappie, 38 NY2d 112; Schillawski v State of New York, 9 NY2d 235; Penn Cent. Transp. Co. v New York City, 438 US 104; French Investing Co. v City of New York, 39 NY2d 587.) VI. Denial of an interim permit constitutes an unconstitutional taking of respondents’ property as the denial is permanent and not temporary. (Farr v Newman, 14 NY2d 183; Telaro v Telaro, 25 NY2d 433; People v Chappie, 38 NY2d 112; Schillawski v State of New York, 9 NY2d 235; Matter of Golden v Planning Bd. of Town of Ramapo, 30 NY2d 359; Matter of Russo v New York State Dept. of Environmental Conservation, 55 AD2d 935.)

      Laurance Rockefeller and Drayton Grant for Natural Resources Council, Inc., amicus curiae.

    I. Unreasonable use of property may be restrained under the police power of the State and need not be compensated. (Fertilizing Co. v Hyde Park, 97 US 659; Penn Cent. Transp. Co. v City of New York, 42 NY2d 324, 438 US 104; Town of Hempstead v Goldblatt, 9 NY2d 101, 369 US 590; Hadacheck v Los Angeles, 239 US 394; Mugler v Kansas, 123 US 623; Barrett v State of New York, 220 NY 423; Geer v Connecticut, 161 US 519; Manchester v Massachusetts, 139 US 240; Zabel v Tabb, 430 F2d 199.) II. The restraint of mining wetlands does not unfairly burden the wetland owners. (Penn Cent. Transp. Co. v New York City, 438 US 104; Matter of Golden v Planning Bd. of Town of Ramapo, 30 NY2d 359; Modjeska Sign Studios v Berle, 43 NY2d 468; Goldblatt v Hempstead, 369 US 590; Matter of National Merritt v Weist, 41 NY2d 438; Matter of Clark v Board of Zoning Appeals of Town of Hempstead, 301 NY 86.)
    . Madonna S. Ghandhi for New York State Landowners for Constitutional Rights, Inc., amicus curiae.

    I. The Legislature intended that respondents should be compensated. II. The burden of going forward must be carried by appellants.
   OPINION OF THE COURT

Chief Judge Cooke.

Petitioners own two parcels of land. One, known as the "Culver” property, contains 38 acres of freshwater wetland out of a total of approximately 51 acres. The second tract has an area of about 43 acres and an 8-acre wetland referred to as "Spears’ Bog”. Both properties were classified as wetlands, the first because of its size, the second because it was determined by the Commissioner of Environmental Conservation (the Commissioner) to be an area of unusual local importance (ECL 24-0301, subd 1).

In March of 1977 petitioners applied to the Commissioner for a permit allowing extraction of humus, sand and stone from the wetlands. After a public hearing, where undisputed evidence showed that the proposed mining activities would lead to all but complete destruction of the wetlands, the Commissioner denied the application. Although petitioners conceded during the hearing that a grant of the permit would be inconsistent with the purposes of wetland regulation, Richard A. Spears, the sole witness for petitioners, voiced his opinion that mining was the only use of the property which would produce a reasonable economic return.

Petitioners commenced this proceeding, seeking an order directing the Commissioner to issue the permit, or institute condemnation proceedings. Supreme Court, Sullivan County, transferred the proceeding to the Appellate Division. Finding that petitioners had been deprived of all reasonable return on their property, a divided Appellate Division granted the requested relief. We now reverse and remit to Supreme Court for an evidentiary hearing.

The Freshwater Wetlands Act, enacted in 1975, was designed "to secure the natural benefits of freshwater wetlands, consistent with the general welfare and beneficial economic, social and agricultural development of the state” (ECL 24-0103). Thus, a balance is struck between ecological and economic considerations by preserving and protecting freshwater wetlands while permitting reasonable economic use and development. To that end the Commissioner was empowered to identify the freshwater waterlands of the State (ECL 24-0301). Property so designated becomes subject to rigorous regulation, with certain uses permitted as of right and others permissible only by permit. As of right uses include recreational or commercial fishing, shell-fishing, aquaculture, hunting and trapping (ECL 24-0701, subd 3). Other permitted activities are grazing and watering livestock, harvesting natural products of the land, selective cutting of timber, and draining and other use of the land for growing agricultural products (ECL 24-0701, subd 4). Activities not expressly permitted may be conducted only if a permit is granted (ECL 24-0701, subd 1). A permit may issue upon a showing by the applicant that the proposed use is "in accord with the policies and provisions of’ the act (ECL 24-0703, subd 4; 24-0705, subd 3). Until the final wetland classifications are promulgated by the Commissioner, interim permits are available on generally the same basis as final permits (6 NYCRR Part 662).

To render the act free from constitutional infirmities, the Legislature included section 24-0705 which affords a property owner judicial review of a decision denying a permit. Within the context of the review proceeding, a court is authorized to determine whether denial of the permit was proper and, if so, whether the regulation of the particular land has become so rigorous as to amount to a taking without just compensation (ECL 24-0705, subd 7). Hence, each aggrieved landowner is entitled to a day in court, at which time it may be determined if application of the act to the land is consistent with constitutional strictures. If application of the wetland regulations to a particular parcel would result in a taking, the remedy is to direct the Commissioner to either grant the requested permit or institute condemnation proceedings. Given this remedy, a formal declaration as to the constitutionality of the act in any particular instance is unnecessary (compare French Investing Co. v City of New York, 39 NY2d 587, 594-595).

A proceeding by a wetlands owner under section 24-0705 (subd 7) is somewhat novel and possesses a dual nature. First, the reviewing court must determine whether the denial of the permit had a rational basis and was supported by substantial evidence (cf. Matter of Fuhst v Foley, 45 NY2d 441, 444; Matter of Cowan v Kern, 41 NY2d 591, 598-599). If the administrative decision is sustained, it then becomes necessary to evaluate whether the wetlands regulations, considered together with the denial of the permit, would work an unconstitutional taking of petitioner’s property. For the latter aspect of the proceeding, there must be an evidentiary hearing at which the landowner and the State may produce expert testimony and other evidence bearing upon the regulation’s effect on the value of the subject parcel (see, e.g., Matter of Charles v Diamond, 41 NY2d 318, 326-328). It is only after such a hearing that the extent of the financial hardship, if any, may be meaningfully assessed.

On the merits, then, the threshold issue is whether the denial of the interim permit had a rational basis and was supported by substantial evidence. In the present case, little discussion of this point is necessary. At the hearing, petitioners conceded, in essence, that the proposed mining activity would virtually destroy the wetlands. Thus, issuance of a permit by the Commissioner was proscribed by the act itself (ECL 24-0705, subd 3). But even if this were not so, petitioners’ failure to supply the data required to support its application might have constituted an independent ground for the denial. In these circumstances, therefore, we cannot conclude that the Commissioner’s decision was unwarranted or improper.

Proceeding to the second tier of analysis, it must be determined whether the wetlands act, coupled with the denial of the interim permit, has placed such an onerous burden on the property that a taking must be deemed to have occurred. The notion that there are limits beyond which even the most exemplary regulatory scheme may not tread is not new. Indeed, this court has not hesitated to condemn statutes or ordinances which completely deprive the owner of the beneficial use of private property under the guise of regulation (see, e.g., Lutheran Church in Amer. v City of New York, 35 NY2d 121, 130; Vernon Park Realty v City of Mount Vernon, 307 NY 493, 498-499). The evil in such a case, although often referred to as a taking, lies not in an actual physical entry but rather in regulation which results in economic destruction (see, e.g., French Investing Co. v City of New York, 39 NY2d 587, 594-597, supra). At the same time, of course, it is important to recognize the breadth of the State’s police power and the means by which that power may be exercised. In view of these conflicting considerations, courts have encountered difficulty in formulating a bright-line standard for differentiating permissible police power measures from overly vigorous and hence unconstitutional impositions (see, e.g., Penn Cent. Transp. Co. v New York City, 438 US 104, 123-124, affg 42 NY2d 324; compare Pennsylvania Coal Co. v Mahon, 260 US 393, with Goldblatt v Hempstead, 369 US 590; see, generally, Sax, Takings and the Police Power, 74 Yale LJ 36).

Nonetheless, there has evolved from our decisions a standard which, while retaining an element of flexibility, is capable of practical application. Under this test, a land use regulation — be it a universally applicable local zoning ordinance or a more circumscribed measure governing only certain designated properties — is deemed too onerous when it "renders the property unsuitable for any reasonable income[,] productive or other private use for which it is adapted and thus destroys its economic value, or all but a bare residue of its value” (French Investing Co. v City of New York, 39 NY2d 587, 596, supra; see, e.g., Marcus Assoc. v Town of Huntington, 45 NY2d 501, 506; Modjeska Sign Studios v Berle, 43 NY2d 468, 474-475; Penn Cent. Transp. Co. v City of New York, 42 NY2d 324, 329-331, 336, affd 438 US 104, supra; McGowan v Cohalan, 41 NY2d 434, 436; Williams v Town of Oyster Bay, 32 NY2d 78, 82; see, also, Lutheran Church in Amer. v City of New York, 35 NY2d 121, 130, supra). Although the particulars of this rule have been considered elsewhere (see, e.g., Penn Cent. Transp. Co. v City of New York, supra, at pp 330-331, 333; McGowan v Cohalan, supra, at pp 432-438; Matter of National Merritt v Weist, 41 NY2d 438, 445-446; see, generally, 1 Anderson, New York Zoning Law and Practice, §§ 2.13-2.16), a few points bear emphasis. A petitioner who challenges land regulations must sustain a heavy burden of proof, demonstrating that under no permissible use would the parcel as a whole be capable of producing a reasonable return or be adaptable to other suitable private use (see Penn Cent. Transp. Co. v New York City, 438 US 104, 130-131, supra; McGowan v Cohalan, supra, at pp 436-438; Williams v Town of Oyster Bay, supra, at p 82). To carry this burden, the landowner should produce "dollars and cents” evidence as to the economic return that could be realized under each permitted use (Matter of National Merritt v Weist, 41. NY2d 438, 445-446, supra; see Megin Realty Corp. v Baron, 46 NY2d 891, 892-893; Marcus Assoc. v Town of Huntington, 45 NY2d 501, 506, supra). Only when the evidence shows that the economic value, or all but a bare residue of the value, of the parcel has been destroyed has a "taking” been established (e.g., French Investing Co. v City of New York, 39 NY2d 587, 596, supra). This is not to say, of course, that the State may blithely sit back in every instance and rely upon the burden of proof. Rather, if the landowner adduces proof of sufficient quality and weight to make out his case, the burden falls upon the State to go forward and rebut petitioner’s evidence or otherwise justify application of the statute. Thus, should the State fail to put in any evidence, it may, in some cases, run an appreciable risk.

In the present circumstances, the record is insufficient on the taking issue. Perhaps this is a result of the novelty of the procedure, and the fact that no judicial hearing has yet been held. Indeed, the only relevant evidence is testimony at the permit hearing, given at a time when the taking issue had not even emerged. In essence, the testimony consists of petitioner Richard A. Spear’s bare conclusions that no activity, other than the proposed mining, would afford a reasonable return on the property. Standing alone, this is insufficient to make out a case of confiscatory application of the act (see Matter of Charles v Diamond, 41 NY2d 318, 327-328, supra). Conspicuously absent from the record is any evidence concerning the value of the properties, their purchase price, the uses to which they may be adapted, or the return which may be realized from permitted uses or even from the proposed mining. In view of the inadequacy of. the record, and the lack of a trial or hearing on the taking question, there should be a remittal. In this manner, the parties can be afforded a reasonable opportunity to litigate the issue in the proper forum.

Finally, we note that the Appellate Division in this case had remitted to the Commissioner for further proceedings as to costs, rendering its order nonfinal (cf. Cohen and Karger, Powers of the New York Court of Appeals, § 11, at p 43). Thus, although the appeal taken as of right must be dismissed, the court, on its own motion, grants leave to appeal.

Accordingly, the appeal taken as of right should be dismissed, without costs, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution. On the court’s own motion, leave to appeal should be granted (CPLR 5602, subd [a], par 2). The order of the Appellate Division should be reversed, without costs, and the matter remitted to Supreme Court, Sullivan County, for a hearing in that court on the taking issue.

Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Appeal taken as of right dismissed, without costs, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution. On the court’s own motion, leave to appeal granted (CPLR 5602, subd [a], par 2). Order reversed, without costs, and the matter remitted to Supreme Court, Sullivan County, for a hearing in accordance with the opinion herein.

      . Petitioners admitted that their application was not accompanied by the detailed plans and maps, contemplated by statute (ECL 24-0703, subd 1) and regulation (6 NYCRR 662.5 [b]).

      . The legislative findings underlying the act state that "[t]he freshwater wetlands of the state of New York are invaluable resources for flood protection, wildlife habitat, open space and water resources” (ECL 24-0105, subd 1). The Legislature concluded that loss of freshwater wetlands would deprive the people of the State of some or all of the following benefits: flood and storm control; wildlife habitat; protection of subsurface water resources; recreational areas for hunting, fishing, boating, camping and other uses; natural pollution treatment; erosion control; open space for aesthetic appreciation; and sources of nutrients in freshwater food cycles (ECL 24-0105, subd 7).

      . Evidence pertaining to the taking issue would not be relevant to the question to be decided at the permit hearing and thus would not be contained on the record made at the administration level. This is especially so since an applicant no longer needs to demonstrate hardship, i.e., economic damage, to obtain an interim permit (see L 1977, ch 654, § 9).

      . One difficulty faced under the act by both the landowner and the Commissioner should be identified. Since the statute contains a catalogue of uses permitted as of right, and also allows the Commissioner to issue permits for other uses, the landowner may not initially know the full spectrum of possible uses to which his evidentiary proof must be addressed. The availability of uses not permitted as of right will depend upon the scope of permits which the Commissioner is willing to grant. While the property owner should not, for this reason, be relieved of his heavy burden of proof, he should be afforded a reasonable opportunity to obtain notice of the uses, if any, for which the Commissioner would issue a permit. The manner in which this notice may be provided will vary with the circumstances of each case, and the hearing court should, in the first instance, be free to fashion an acceptable remedy. In some instances, it may be appropriate, for example, to require the Commissioner to come forward prior to the hearing with some indication of the uses which he would permit. In other cases, where the extent of permitted uses becomes evident at the hearing, it may. suffice to grant the landowner a continuance, if otherwise warranted, to allow him an opportunity to address his burden of proof.

      . At the hearing, in attempting to establish eligibility for an interim permit, petitioners endeavored to show financial hardship. Hardship had been a statutory prerequisite to the issuance of an interim permit, but has since been eliminated. (L 1977, ch 654, § 9). The State did not rebut the evidence of hardship, concentrating instead on the merits of the application.


text:
    In the Matter of Harry G. Gordon for Admission to the Bar, Appellant. Committee on Character and Fitness, Respondent.
    Argued October 15, 1979;
    decided November 13, 1979

      POINTS OF COUNSEL

      John Cary Sims, Alan B. Morrison, of the Bar of the District of Columbia, admitted on motion pro hac vice and Daniel Riesel for appellant.
    I. The residence requirement violates the privileges and immunities clause of section 2 of article IV of the United States Constitution. (Toomer v Witsell, 334 US 385; Austin v New Hampshire, 420 US 656; Hicklin v Orbeck, 437 US 518; Baldwin v Montana Fish & Game Comm., 436 US 371; Golden v State Bd. of Law Examiners, 452 F Supp 1082; Ward v Maryland, 12 Wall [79 US] 418; Mullaney v Anderson, 342 US 415; Richardson v Brooklyn City & Newtown R. R. Co., 22 How Prac 368; Park Lane Commercial Corp. v Travelers Ind. Co., 50 Misc 2d 231.) II. The challenged residence requirement violates the commerce clause of the Constitution. (Goldfarb v Virginia State Bar, 421 US 773; A&P Tea Co. v Cottrell, 424 US 366; Boston Stock Exch. v State Tax ’Comm., 429 US 318; Pike v Bruce Church, 397 US 137; Philadelphia v New Jersey, 437 US 617; Hunt v Washington Apple Adv. Comm., 432 US 333; Salla v County of Monroe, 64 AD2d 437.) III. The residence requirement also violates the due process and equal protection clauses. (Schware v Board of Bar Examiners, 353 US 232; Shapiro v Thompson, 394 US 618; Dunn v Blumstein, 405 US 330; Keenan v Board of Law Examiners of State of N. C., 317 F Supp 1350; Webster v Wofford, 321 F Supp 1259; Lipman v Van Zant, 329 F Supp 391; Smith v Davis, 350 F Supp 1225; Sufñing v Bondurant, 339 F Supp 257, affd sub nom. Rose v Bondurant, 409 US 1020; Wilson v Wilson, 416 F Supp 984, 430 US 925.)

      Robert Abrams, Attorney-General (Daniel M. Cohen of counsel), in his statutory capacity under section 71 of the Executive Law and CPLR 1012 (subd [b]).
    I. In Matter of Lotsof (34 NY2d 952 [1974]), this court did not deem it essential to reach the question of the validity of a durational residence requirement for Bar applicants, upon the instant record, that precedent should be followed. (Matter of Bricker, 24 NY2d 1022; Matter of Hannafin, 20 NY2d 660; Matter of Scharf, 279 App Div 919; Matter of Tang, 39 AD2d 357; Matter of Pirie, 64 AD2d 110.) II. The New York residency requirements have been sustained as reasonable under the due process and equal protection provisions of the Federal Constitution. Petitioner’s invocation of the privileges and immunities clause of section 2 of article IV, the commerce clause and the Fourteenth Amendment of the United States Constitution does not sustain his position, since the recent Federal cases upon which he relies do not impair the State’s power to regulate admission to professional practices, but relate to matters of trade or commerce. The Supreme Court has not yet divested the States of their power to regulate professional admissions or professional conduct. (Suffling v Bondurant, 339 F Supp 257, affd sub nom. Rose v Bondurant, 409 US 1020; Kline v Rankin, 352 F Supp 392; Brown v Supreme Ct. of Va., 359 F Supp 549; Memorial Hosp. v Maricopa County, 415 US 250; Dunn v Blumstein, 405 US 330; Sosna v Iowa, 419 US 393; Matter of Tang, 39 AD2d 357; Tang v Appellate Div. of N. Y. Supreme Ct., First Dept., 373 F Supp 800, 487 F2d 138, 416 US 906; Baldwin v Montana Fish & Game Comm., 436 US 371.)
   OPINION OF THE COURT

Chief Judge Cooke.

Appellant, a resident of North Carolina, mounts this challenge to the constitutionality of CPLR 9406 (subd 2). That rule provides that a person may not be admitted as a member of the Bar of this State unless he furnishes proof "that he has been an actual resident of the state of New York for six months immediately preceding the submission of his application for admission to practice”. Among other infirmities, it is claimed that the rule is violative of the privileges and immunities clause of article IV of the Federal Constitution. We agree with that contention.

A graduate of the University of Virginia Law School and member of the Bars of Virginia and North Carolina, appellant was employed as in-house counsel to Western Electric Company in New York City. After working in New York for over two years, appellant qualified for, took and passed the New York State Bar Examination in July, 1977. Before he was notified of the results of the examination, however, appellant was unexpectedly transferred to North Carolina by his employer, where he presently resides.

Apparently under the dual impression that his prior New York residence qualified him for admission to the Bar and that, by virtue of his employment, he was engaged in the practice of law in New York, appellant filed an application for admission to practice with the Committee on Character and Fitness of the First Department (Judiciary Law, § 90, subd 1; CPLR 9402; 22 NYCRR 520.9). In view of appellant’s North Carolina residence, the committee deferred action on his application. Appellant thereupon challenged the residency requirement by petitioning the Appellate Division for admission without certification of the Committee on Character and Fitness (CPLR 9404). The Appellate Division denied the application, holding CPLR 9406 (subd 2) constitutional (67 AD2d 215). Although appellant relies upon a number of constitutional provisions in support of his claim that the residence requirement for admission to the Bar is unconstitutional, it is necessary only to address the claim that the rule denies nonresidents the same privileges and immunities accorded residents.

The principal purpose of the privileges and immunities clause, like the commerce clause, is to eliminate protectionist burdens placed upon individuals engaged in trade or commerce by confining the power of a State to apply its laws exclusively to nonresidents (Paul v Virginia, 8 Wall [75 US] 168, 180; Tribe, American Constitutional Law, § 6-32, p 406). In essence, the clause prevents a State from discriminating against nonresidents merely to further its own parochial interests or those of its residents (Hicklin v Orbeck, 437 US 518; Mullaney v Anderson, 342 US 415; Toomer v Witsell, 334 US 385). While the precise reach of the clause must await further clarification, it is settled that a State may not premise an individual’s right to engage in his chosen occupation within its borders solely on residence. Thus, the clause has been consistently interpreted to prevent a State from imposing discriminatory burdens on nonresidents, whether by means of artificial trade barriers in the form of unequal licensing fees (Toomer v Witsell, supra), taxes imposed on out-of-State vendors (Ward v Maryland, 12 Wall [79 US] 418), or employment preferences granted only to residents (Hicklin v Orbeck, supra).

This is not to say, of course, that the privileges and immunities clause forbids a State from ever differentiating between residents and nonresidents. Matters which directly implicate its sovereignty, such as voting (Dunn v Blumstein, 405 US 330) or entitlement to public office (Chimento v Stark, 414 US 802), furnish ready examples of areas in which a State may constitutionally condition eligibility upon residence. Moreover, where the disparate treatment does not implicate "those 'privileges’ and 'immunities’ bearing upon the vitality of the Nation as a single entity”, there is no requirement that the State treat resident and nonresident alike (Baldwin v Mon tana Fish & Game Comm., 436 US 371, 383). But those areas exempt from privileges and immunities protection are narrow and do not embrace the grant of a license to practice law.

No extended discussion is necessary to demonstrate that the right to pursue one’s chosen occupation free from discriminatory interference is the very essence of the personal freedom that the privileges and immunities clause was intended to secure (Hicklin v Orbeck, 437 US 518, 524-525, supra; Ward v Maryland, 12 Wall [79 US] 418, 430, supra). It is now beyond dispute that the practice of law, despite its historical antecedents as a learned profession somehow above that of the common trades, is but a species of those commercial activities within the ambit of the clause (cf. Bates v State Bar of Ariz., 433 US 350, 371-372; Goldfarb v Virginia State Bar, 421 US 773, 788). From the standpoint of both the public and the legal profession itself, the practice of law is analogous to any other occupation in which an independent agent acts on behalf of a principal.

Nor can it be maintained that CPLR 9406 (subd 2) works no invidious discrimination against nonresidents. An attorney admitted to practice in one State who desires to practice in New York must often give up an established practice and residence, move to New York and forfeit the right to engage in his or her chosen occupation for at least six months and often appreciably longer. One who desires to engage in a multistate practice, concentrating on a particular area of expertise, is effectively foreclosed from doing so by the requirements of CPLR 9406 (subd 2). Those attorneys now employed by large corporations, currently comprising more than 10% of the legal profession (Yovovich, The Tense Marriage Between Business and Lawyers, Barrister, Spring 1979, p 43), whose duties entail frequent interstate relocation are similarly penalized by the operation of the rule. The disparity of treatment between residents of the State and nonresidents is manifest: given two equally qualified candidates who have passed the Bar examination (or, for that matter, meet the other requirements for admission on motion) and possess the requisite character and fitness, the rule would deny one admission based solely upon residence.

Where the State imposes a wide-ranging restriction which significantly impairs the efforts of nonresidents to earn a livelihood, the discriminatory action must surmount two distinct hurdles. First the governmental interest claimed to justify the discrimination must be carefully examined to determine whether that interest is substantial, that is, whether "non-citizens constitute a peculiar source of the evil at which the statute is aimed” (Toomer v Witsell 334 US 385, 398, supra). Assuming that nonresidents do indeed present a problem with which the State may legitimately address, the inquiry then focuses upon whether the means adopted to achieve that goal are narrowly drawn and are the least restrictive alternatives available (Hicklin v Orbeck, 437 US 518, 528, supra).

It is undisputed that New York has a constitutionally permissible interest to assure that those admitted to the Bar possess knowledge of the law as well as the character and fitness requisite for an attorney (Judiciary Law, § 90; Law Students Research Council v Wadmond, 401 US 154, 159; Schware v Board of Bar Examiners, 353 US 232, 239). But appellant has not been excluded from membership in the Bar due to any challenge to his knowledge of the law of this State or to his good character. Rather, the exclusion is based solely upon his residence in North Carolina — a criterion which serves no purpose other than to deny persons the right to pursue their professional career objectives because of parochial interests.

There is nothing in the record to indicate that an influx of nonresident practitioners would create, or even threaten to create, a particular evil [within the competence of the State] to address. No valid reason is proffered as to why admission to practice law before the courts of this State must be made dependent upon residency. Indeed, aside from an oblique reference to the purported "dangers” said to be inherent in the licensing of nonresident lawyers, the State is at a complete loss to justify the blanket discrimination against nonresidents arising from the operation of CPLR 9406 (subd 2). Nevertheless, some have attempted to identify reasons supporting residency requirements for admission to the Bar (see Note, 92 Harv L Rev 1461, 1480). On the whole, however, these justifications serve only administrative convenience and thus are not closely tailored to serve a legitimate State interest (cf. Sosna v Iowa, 419 US 393, 406).

The rationale most often used to uphold residency requirements is the need of Bar admission authorities to observe and evaluate the applicant’s character (cf., e.g., Lipman v Van Zant, 329 F Supp 391, 402; Webster v Wofford, 321 F Supp 1259, 1262; Note, 71 Mich L Rev 838, 850-852). But in this State, the applicant himself, in submitting his application for admission, is available to the Committee on Character and Fitness and is personally interviewed by one of its members. In some cases, nonresidents are permitted to furnish affidavits attesting to the applicant’s character and fitness to practice law. Nor may the discrimination visited upon nonresidents be justified upon the ground that only resident attorneys will be amenable to the supervision of our courts (67 AD2d 215, 217; Matter of Tang, 39 AD2d 357, 360, app dsmd 35 NY2d 851). To be sure, the State has a legitimate interest in controlling the attorneys who appear in its courts. Again, however, there are alternatives which are less restrictive than denial of admission to practice which would further this interest. For example, nothing prevents the State from enacting legislation requiring nonresident attorneys to appoint an agent for the service of process within the State (cf. Hess v Pawloski, 274 US 352; Doherty & Co. v Goodman, 294 US 623). Moreover, remedies currently available to safeguard against abuses by resident attorneys — contempt, disciplinary proceedings and malpractice actions — could be applied with equal force against miscreant nonresident attorneys.

That the State has an obligation to ensure the competency and rectitude of its counselor at law is a proposition with which none may quarrel (Matter of Griffiths, 413 US 717). This obligation, however, may not be fulfilled at the expense of constitutionally protected rights (see Konigsberg v State Bar, 366 US 36). By denying otherwise qualified applicants their right to practice their chosen occupation based solely on their State of residence, CPLR 9406 (subd 2) works an unconstitutional discrimination against nonresidents. Any interest the State may have in regulating nonresident attorneys is ill served by the onerous burden imposed by the rule. A number of less drastic, and constitutionally permissible, alternatives are readily available to protect the interest of the State in supervising those who practice in its courts (see, e.g., Note, 92 Harv L Rev 1461, 1487-1489).

Accordingly, the order of the Appellate Division should be reversed, without costs, and the matter remitted to the Appellate Division, First Department, for further proceedings on petitioner’s application for admission to the Bar.

Judges Jasen, Gabrieuj, Jones, Wachtler, Fuchsberg and Meyer concur.

Order reversed, without costs, and matter remitted to the Appellate Division, First Department, for further proceedings in accordance with the opinion herein.

      . In addition to those who are actual residents of New York, section 464 of the Judiciary Law provides that a person otherwise eligible for certification by the Board of Law Examiners for admission to the Bar shall be considered to be an actual resident and citizen of the State during any period of time in which he is employed full time within the State of New York.

      . "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States” (US Const, art IV, § 2, cl 1).

      . At the time this controversy arose, eligibility to take the Bar examination, like eligibility for admission to Bar, was premised, at least in part, upon the residency of the applicant (22 NYCRR 520.2 [a] [3]).

      . Actually, appellant was required to satisfy two six-month durational residency requirements: one to take the Bar examination (22 NYCRR 520.2 [a] [3]; the other to satisfy the admission requirements of CPLR 9406 (subd 2).

      . In addition to meeting two durational residency requirements (n 4, supra), three other conditions must be satisfied. Unless waived, the applicant must pass an examination conducted, semiannually, by the State Board of Law Examiners. Second, the applicant must possess the requisite character and fitness consistent with that required of an attorney. To assist in this evaluation, the applicant must furnish the Committee on Character and Fitness with affidavits attesting to his good moral character, fill out a detailed questionnaire and undergo a personal interview with a committee member. Finally, the applicant must swear that he will support the Federal and State Constitutions (see, generally, Law Students Research Council v Wadmond, 401 US 154, 156-157).

      . It is asserted that CPLR 9406 (subd 2) denies appellant equal protection and due process of law (US Const, 14th Amdt). Although unnecessary to pass upon these claims, we note that similar challenges to six-month durational residency requirements have been rejected in the past (Matter of Tang, 39 AD2d 357, app dsmd 35 NY2d 851; Tang v Appellate Div. of N. Y. Supreme Ct., First Dept., 373 F Supp 800, affd 487 F2d 138, cert den 416 US 906; Wilson v Wilson, 416 F Supp 984, affd 430 US 925; Suffling v Bondurant, 339 F Supp 257, affd sub nom. Rose v Bondurant, 409 US 1020).

      . Many have recognized the "mutually reinforcing relationship” between the privileges and immunities and the commerce clauses (Hicklin v Orbeck, 437 US 518, 531, supra; Toomer v Witsell, 334 US 385, 407-409 [Frankfurter, J., concurring], supra; Tribe, American Constitutional Law, § 6-32, at p 404). The manifest distinction between the two is that the privileges and immunities clause is an affirmative grant of rights to individuals whereas the commerce clause has been read to limit the power of the individual States to restrict the free flow of goods and services across State lines (see Philadelphia v New Jersey, 437 US 617, 621-622).

      . At one time, the privileges and immunities clause was thought to recognize what, within the philosphical terminology of the day, were termed "natural rights” (see Corfield v Coryell, 6 Fed Cas 546 [No. 3230]). Under this earlier theory, the purpose of the clause was to guarantee every citizen a group of fundamental rights which no State could transgress (see Calder v Bull, 3 Dallas [3 US] 386, 388). With the passage of time, however, it has become settled that the clause does not import that a citizen carries with him a set of well-defined privileges and immunities no matter where he may travel. Rather, the clause is meant "to insure to a citizen of State A who ventures into State B the same privileges which the citizens of State B enjoy” (Toomer v Witsell, 334 US 385, 395, supra).

      . As noted, the breadth of the privileges and immunities clause is presently unclear. In any event, there are certain rights deemed fundamental for privileges and immunities purposes which severely limit the power of the State to discriminate against nonresidents. In addition to the right to engage in one’s chosen occupation, these fundamental rights include the right to own and alienate property within the State (Blake v McClung, 172 US 239), the right to equal treatment in the courts (Canadian Northern Ry. Co. v Eggen, 252 US 553) and the right to seek services available in the State (Doe v Bolton, 410 US 179). A nonresident wishing to exercise at least these rights in a foreign State is entitled to the same privileges and immunities a resident of that State receives.

      . These considerations, together with an often unstated feeling that durational residency requirements constitute protectionist trade barriers for the economic protection of local interests, have given rise to numerous calls to nationalize admission to the Bar (e.g., Smith, Time for a National Practice of Law Act, 64 ABAJ 557; Brakel & Loh, Regulating the Multistate Practice of Law, 50 Wash L Rev 699; Note, 56 Cornell L Rev 831).


author: Fuchsberg, J.

text:
    State Office of Drug Abuse Services et al., Respondents, v State Human Rights Appeal Board, Respondent, and James Gresham, Appellant.
    Argued October 8, 1979;
    decided November 15, 1979

      POINTS OF COUNSEL

      Gregg L. Fishman and Lawrence E. Pierce for appellant.
    I. Judicial review should not be had before administrative remedies were exhausted. (State Div. of Human Rights v Commissioner of N. Y. State Dept. of Civ. Serv., 57 AD2d 699; Matter of Kramarsky v City of New York Police Dept., 90 Misc 2d 733; Matter of Board of Educ. v State Div. of Human Rights, 65 Misc 2d 679, 38 AD2d 245, 33 NY2d 946; Tessy Plastics Corp. v State Div. of Human Rights, 62 AD2d 36.) II. The court below erred in finding that the record does not contain substantial evidence to support the findings of the State Human Rights Appeal Board. III. Based upon this record and the delays and actions of employer and division this court should order that discrimination has been found and direct an assessment of damages before a court, or, alternatively, before the division, including restoral of employment and all job benefits lost. (Hillside Housing Corp. v State Div. of Human Right, 44 AD2d 539; Matter of Liverpool Cent. School Dist. v State Div. of Human Rights, 46 AD2d 1004; State Div. of Human Rights v Board of Educ., 53 AD2d 1043, affd sub nom. Board of Educ. v State Div. of Human Rights, 42 NY2d 862; State Div. of Human Rights v Great Atlantic & Pacific Tea Co., 46 AD2d 1001.)

      Arthur A. Seif and Douglas A. Eldridge for State Office of Drug Abuse Services, respondent.
    I. This case is reviewable at this stage. (Matter of New York City Housing Auth. v State Div. of Human Rights, 53 AD2d 844; Wyckoff Hgts. Hosp. v State Div. of Human Rights, 38 AD2d 596; Matter of State Comm. for Human Rights v Lieber, 23 NY2d 253; State Div. of Human Rights v State of New York, Executive Dept., Div. of State Police, 62 AD2d 617; United Federation of Teachers Welfare Fund v Kramarsky, 451 F Supp 333.) II. The board has limited review powers and exceeded them herein. (State Div. of Human Rights v Columbia Univ. in City of N. Y., 39 NY2d 612, 40 NY2d 846, cert den sub nom. Gilinsky v Columbia Univ., 429 US 1096; Nassau County Civ. Serv. Comm. v Shea, 60 AD2d 598; State Div. of Human Rights v Merchants Mut. Ins. Co., 59 AD2d 1054; Merrill Lynch, Pierce, Fenner & Smith v State Div. of Human Rights, 48 AD2d 391; State Div. of Human Rights v City of Niagara Falls, 52 AD2d 1065, 42 NY2d 875; Matter of New York Tel. Co. v Wethers, 30 NY2d 791; State Div. of Human Rights v County of Monroe, 64 AD2d 846; Matter of Winthrop Labs. Div of Sterling Drug v New York State Human Rights Appeal Bd., 64 AD2d 725; Putnam Community Hosp. v New York State Human Rights

      Appeal Bd., 63 AD2d 1017.) III. The office in continuing Van Asco as the air-conditioner instructor at Queensboro did so based on rational criteria. The division acted reasonably in issuing its no probable cause order. (Matter of Short v State Div. of Human Rights, 44 AD2d 557; Jowers v State of New York Executive Dept., 42 AD2d 523, 34 NY2d 601; Matter of Eastern Greyhound Lines Div. of Greyhound Lines v New York State Div. of Human Rights, 27 NY2d 279; Matter of Sperry Rand Corp. v State Human Rights Appeal Bd., 46 AD2d 678; Matter of Board of Educ. v State Div. of Human Rights, 38 AD2d 657, 30 NY2d 925; Matter of New York Tel. Co. v Wethers, 36 AD2d 541, 30 NY2d 791; State Div. of Human Rights v Eastman Kodak Co., Kodak Apparatus Div., 55 AD2d 842; Matter of Semimetals, Inc. v State Div. of Human Rights, 50 AD2d 925, 43 NY2d 883; Matter of Nescott of East Islip v State Div. of Human Rights, 35 AD2d 573, 27 NY2d 787.)
   OPINION OF THE COURT

Fuchsberg, J.

In a proceeding pursuant to section 298 of the Executive Law to review an order of the State Human Rights Appeal Board, we are called upon to decide the recurring threshold issue whether judicial review is available to a party aggrieved by a nonfinal order of the board. Since we hold that it is, we must also determine whether the board, within the scope of its own powers of review as governed by section 297-a of the Executive law, was warranted in setting aside a State Division of Human Rights’ finding that there was no probable cause to believe race or color discrimination had occurred in this case. For the reasons that follow, we conclude that the board was in error and that, consequently, the division’s order of dismissal should not have been disturbed.

Complainant, James Gresham, who is black, was employed by the State Office of Drug Abuse in the civil service classification of vocational instructor IV (electrical). When fiscal strictures compelled the closing of the rehabilitation center at which he taught, he was first transferred to a companion facility; shortly thereafter, because no additional electrical instructor was needed, he was laid off. Gresham claims that, instead, he should have replaced Thomas Van Asco, a white employee of the second facility who, though of identical formal grade, enjoyed less seniority. But, Van Asco, albeit Gresham’s junior in service, had accumulated a somewhat different pedagogical experience. Unlike Gresham, whose teaching had been confined to conventional electrical work, Van Asco, from the very beginning, had always been assigned classes in the more specialized electrical fields of air conditioning, refrigeration and heating. Indeed, while there was at the time no separate official classification to cover these subspecialities, Van Asco had been hired only after the rehabilitation center’s director, Charles King, who is black, had obtained the approval of the commissioner of his agency to fill an opening then available with one so qualified. Against this background, before the office’s denial of Gresham’s request that he be permitted to take over Van Asco’s job, King requested that the status quo be maintained with regard to the air-conditioning course at his facility. And his agency was informed by the State Department of Civil Service that, in determining who had "bumping” rights, it need not be bound by the classification title alone, but could take into account the speciality that was taught as. well. These facts are all covered by the record on which the division, and later the. board, were to act.

In any event, Gresham’s subsequent complaint to the State Division of Human Rights alleged that race and color discrimination was the root of the failure to prefer him over Van Asco. His employer countered that its action had been taken solely in the best interests of its rehabilitation facility. After investigation, the division reached the conclusion that the termination was legitimately motivated, there being no probable cause to believe that Gresham had been the victim of an unlawful discriminatory practice. Accordingly, it dismissed the complaint.

Dissatisfied, Gresham appealed to the board, which reversed, vacated the division’s order and remanded the matter for a public hearing. As the board saw it, a finding of probable cause was mandated, without more, by the record’s disclosure that the employing agency had "failed to make inquiry into whether complainant could also have qualified for the air conditioning, refrigeration and heating speciality”. In its view, the division’s order therefore represented "an arbitrary capricious and unwarranted exercise of discretion”. On an appeal the employer then took to the Appellate Division under section 298 of the Executive Law, the court annulled the board’s decision and reinstated the determination of the division, although with the somewhat convoluted observation that "the record does not contain substantial evidence to support the appeal board’s finding that there was probable cause” (65 AD2d 621). From the order entered on this last decision, Gresham, in turn, now appeals to our court pursuant to CPLR 5601 (subd [a], par [ii]).

This factual and procedural outline before us, we at once consider the contention that the Appellate Division lacked jurisdiction to hear the appeal from the board’s order. Doing so, we note that whether finality constitutes a jurisdictional predicate for appeal to the Appellate Division is purely a statutory matter. Thus, while such a precondition has been imposed by statute, for example in article 78 proceedings (CPLR 7801, subd 1), by dint of other statutory provisions appeals may be taken as of right to the Apellate Division from a spectrum of interlocutory orders (see, e.g., CPLR 5701, subd [a], par 2; 7 Weinstein-Korn-Miller, NY Civ Prac, par 5701.03). Overall, these, in essence, do no more than embody varying legislative decisions on whether and how it is best to conserve judicial effort (see Cohen and Karger, Powers of the New York Court of Appeals, § 9, p 38).

For its part, section 298 leaves no uncertainty as to where it falls. In unembroidered prose, it allows any "person aggrieved by any order of the board [to] obtain judicial review thereof’ (emphasis ours). If further support for a literal reading of its expansive language were needed, it is to be found in the preceding section (Executive Law, § 297-a, subd 7) which, though defining the scope of the board’s authority as including the power to "remand the matter to the division for further proceedings”, makes no attempt to distinguish these orders of remand from others which are reviewable.

The policy section 298 bespeaks is, of course, consonant with its unmistakably remedial intent to combat the pernicious effects of discrimination (see Executive Law, §§ 290, 300; New York Inst. of Tech. v State Div. of Human Rights, 40 NY2d 316, 324-325; State Div. of Human Rights v Kilian Mfg. Co., 35 NY2d 201, 207, 211). To that end, the Legislature appears to have intended to provide more expedient means than might otherwise exist for the resolution of any dispute surrounding an order of the division (cf. Labor Law, § 624 [providing for direct appeals from Unemployment Insurance Appeal Board]). In this connection, it hardly needs saying that early access to legal definition of the rights of those involved in the sensitive and sometimes volatile controversies which the division and, in turn, the board so often address may be thought to serve a pressing public purpose.

Finally, there is not the slightest indication of a legislative disposition to cut back on the interpretation accorded the predecessor version of present section 298 under which an appeal could lie from an intermediate order (see Matter of State Comm. for Human Rights v Lieber, 23 NY2d 253, 255 [in proceeding brought by commission to enforce its order under section 298, appeal could be taken from order of Supreme Court which vacated the commissioner’s order and remitted the matter for a new proceeding]). And, while we have not had the occasion to meet the question foursquare before today, our own opinion is confirmed by the fact that the Appellate Divisions have uniformly rejected jurisdictional challenges based on lack of finality (see, e.g., Wyckoff Hgts. Hosp. v State Div. of Human Rights, 38 AD2d 596, 597; Matter of New York City Housing Auth. v State Div. of Human Rights, 53 AD2d 844, 845; Winthrop Labs. Div. of Sterling Drug v New York State Human Rights Appeal Bd., 61 AD2d 848).

Having upheld the respondent employer’s right to a review from the board’s order, we now affirm the Appellate Division’s reversal of that order.

Under subdivision 7 of section 297-a of the Executive Law, the reviewing function of the appeal board is narrowly channeled to the issue of "whether the order of the division is * * * supported by substantial evidence on the whole record” (subd d), or "not arbitrary, capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion” (subd e). Inclusion of these standards makes clear beyond doubt that the appeal board was meant to exercise the same limited scope of review that a court ordinarily does when passing on the determination of an administrative agency (State Div. of Human Rights v Columbia Univ. in City of N. Y., 39 NY2d 612, 616; Matter of Mize v State Div. of Human Rights, 33 NY2d 53, 57). Under neither the standard of substantial evidence nor that of arbitrariness and caprice can the board’s overturning of the division’s order be justified.

In reversing, the board’s order recited that the division’s ruling was arbitrary, capricious and an unwarranted exercise of discretion. There was no basis for this determination. We first emphasize that the division’s expertise in evaluating discrimination claims and formulating appropriate remedies may not be lightly disregarded in view of its wide discretion, legislatively endowed, to weigh and assess the conduct of the parties and to reach conclusions based on what is fairly inferable from the facts (see Hudson Tr. Lines v State Human Rights Appeal Bd., 47 NY2d 971, 973; Kaval Constr. Corp. v State Div. of Human Rights, 39 AD2d 347, 348).

This said, the division’s action in this case cannot be considered to have been devoid of a rational basis, the touchstone of arbitrary and capricious agency action (see Matter of Pell v Board of Educ., 34 NY2d 222, 231). Specifically, Van Asco’s resume disclosed that besides having earned a diploma in heating and ventilation and having been licensed by the State in refrigeration and air conditioning, he had well over 15 years of air-conditioning and refrigeration employment experience to qualify him as an instructor in those fields. In sharp contrast, the division unearthed nothing in Gresham’s personal history report that would qualify him in these subjects. And, the facility to which Gresham was to be assigned and at which Van Asco was already an instructor faced a growing demand for vocational training in the subspecialties of air conditioning, refrigeration, and heating. In addition, after the appointments of both men, though their civil service titles appear never to have been changed, the job classifications themselves were expanded so that air conditioning, refrigeration and heating became a separate instructional title. Thus, even granting the almost universal difficulty encountered in attempting to prove discrimination by direct and irrebuttable evidence (cf. Matter of Axel v Duffy-Mott Co., 47 NY2d 1, 10), a factor which the division .is presumably particularly qualified to weigh, there was ample evidence from which to conclude that Gresham’s termination was in no way actuated by racial discrimination (see State Div. of Human Rights v City of Niagara Falls, 42 NY2d 875, affg 52 AD2d 1065).

On the foregoing analysis, it follows that the board’s decision trammeled on the preserve of the division. And, this remains so even though it be measured, as Gresham would have us do, against the additional statutory basis for appeal board review in this case, that of substantial evidence (Executive Law, § 297-a, subd 7, par d). Taken against the background in which the employer was found to have acted, we therefore cannot say that the division’s finding of no probable cause was divorced from "such relevant proof as a reasonable mind may accept as adequate to support [the] conclusion or ultimate fact” (300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 180; see Matter of Stork Rest. v Boland, 282 NY 256, 273-274).

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

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

Order affirmed, with costs.

      . As of April 1, 1978, the name of this agency was changed to the Division of Substance Abuse Services [L 1977, ch 978],

      .  Whether or not the appeal board’s decision was supported by substantial evidence, of course, was not the issue. The appropriate point of reference for the invocation of the substantial evidence rule (or the test of arbitrariness) was the division’s ruling, not the board’s (see Executive Law, § 297-a, subd 7, par d).

      .  Appellant also argues that the appeal to the Appellate Division is barred by subdivision 9 of section 297 and section 300 of the Executive Law. However, these statutes prohibit separate plenary discrimination actions in the courts only when a charge on the same grievance is pending before the division.

      .  While Gresham did have seniority in the vocational instructor IV title, and the practical effect of its broadening to include the subspecialties is not adequately explored either in the record or the briefs, we note that the case before the division and the board was not an article 78 proceeding to challenge the action on civil service requirements, but a proceeding under the Human Rights Law. Neither the division nor the board has general article 78 jurisdiction. The bar of the Human Rights Law is not applicable to right every wrong, but applies only where "the employment decision was in fact actuated by discrimination” (Matter of Eastern Greyhound Lines Div. of Greyhound Lines v New York State Div. of Human Rights, 27 NY2d 279, 283).