author: Meyer, J.

text:
    Kenneth Maines, Appellant, v Cronomer Valley Fire Dept., Inc., et al., Defendants, and Dale Kluger et al., Respondents.
    Submitted April 22, 1980;
    decided June 12, 1980

      POINTS OF COUNSEL

      Sheila Callahan and Howard Karger for appellant.
    A finding by the Workers’ Compensation Board that claimant was acting in the line of duty in a volunteer fireman’s benefits case at the time he was negligently injured by a fellow volunteer fireman does not act as collateral estoppel warranting dismissal of claimant’s common-law negligence action commenced as against his fellow firemen. (Matter of Crohn v Firemen’s Benevolent Fund Assn. of City of Mount Vernon, 79 Misc 2d 536; Matter of Davis v Newsweek Mag., 305 NY 20; Wright v Day, 26 NY2d 905; Matter of Rigali v Town of Colonie, Verdoy Fire Dist., 47 AD2d 507; Matter of Sullivan v Delphi Falls Fire Co., 29 AD2d 584; Pollini v Fuller Rd. Fire Dept., 34 NY2d 744; Giuliano v Town of Brunswick, 32 AD2d 705; O’Rourke v Long, 41 NY2d 219; Mazarredo v Levine, 274 App Div 122; Lundberg v State of New York, 25 NY2d 467.)

      Bertram W. Eisenberg for Dale Kluger, respondent.
    The action was properly dismissed. (Moakler v Blanco, 47 AD2d 614.)

      Monte J. Rosenstein for Stewart Stellwagon, respondent.
    I. A volunteer fireman who applies for and accepts workers’ compensation benefits pursuant to the Volunteer Firemen’s Benefit Law is estopped and precluded from later bringing an action against a fellow fireman for common-law negligence. (Naso v Lafata, 4 NY2d 585; Garcia v Iserson, 42 AD2d 766, 33 NY2d 421; Moakler v Blanco, 47 AD2d 614; Matter of Doca v Federal Stevedoring Co., 308 NY 44; Matter of Tannenbaum v Perfect Tailoring Co., 243 NY 577; Matter of Torres v Triangle Handbag Mfg. Co., 13 AD2d 559; Kolmer-Marcus, Inc. v Winer, 32 AD2d 763, 26 NY2d 795.) II. The decision of the Workers’ Compensation Board finding that plaintiff was injured in the course of his firemanic duties by a fellow fireman bars the present action. (O’Rourke v Long, 41 NY2d 219; Finch v Swingly, 42 AD2d 1035; Matter of Myslborski v Greenport Fire Dist., Volunteer Firemen’s Co., 38 AD2d 646; Durso v Modern Biscuit Corp., 11 AD2d 1036.)

      Joseph L. Canino for Mike Presutti, respondent.
    I. Plaintiff’s complaint does not allege intentional injury, therefore he is bound as a matter of law by sections 19 and 20 of the Volunteer Firemen’s Benefit Law barring this claim. (Finch v Swingly, 42 AD2d 1035; Moakler v Blanco, 47 AD2d 614; Hopkins v East Syracuse Fire Dept., 49 Misc 2d 197; Cavanaugh v Peck, 71 Misc 2d 1; Durso v Modern Biscuit Corp., 11 AD2d 1036.) II. Plaintiff’s complaint contains formal judicial admissions conclusively establishing that defendants were in the course of firemanic duties when plaintiff was injured. III. Plaintiff’s injuries were accidental as distinguished from intentional, and not legally sufficient for a tort claim against the individual named defendants. (Matter of Commissioner of Taxation & Fin. v Bronx Hosp., 276 App Div 708; Jones v Kent, 35 AD2d 622; Fetteroff v Western Block Co., Div. of Amer. Hoist & Derreck Co., 49 AD2d 1001; Moakler v Blanco, 47 AD2d 614; Finch v Swingly, 42 AD2d 1035; Artonio v Hirsch, 3 AD2d 939; Matter of Leonbruno v Champlain Silk Mills, 229 NY 470; Matter of Mason v Nassau Riding Academy, 250 App Div 802; Matter of Industrial Comr. v McCarthy, 295 NY 443; Matter of Burns v Merritt Eng. Co., 302 NY 131.) IV. The doctrines of collateral estoppel and res judicata apply to tort claims by a volunteer fireman who has received benefits, irrespective of the substantive criteria determining eligibility for benefits. (Kuhlman v Village of Farnham, 40 AD2d 933; Cavanaugh v Peck, 71 Misc 2d 1; Pollini v Fuller Rd. Fire Dept., 39 AD2d 554; La Malfa v Denny, 34 AD2d 709; Giuliano v Town of Brunswick, 32 AD2d 705; Holland v Baker, 61 Misc 201; Rosenberger v State of New York, 46 Misc 2d 194; Matter of Myslborski v Greenport Fire Dist., Volunteer Firemen’s Co., 38 AD2d 646; Rochester Coca-Cola v Rios, 68 Misc 2d 520.) V. The pleadings and proof below raised issues determined adversely to plaintiff and such determinations of fact, affirmed on appeal by a unanimous court below, are now beyond review by the Court of Appeals. (Matter of Bair v Feer Realty Corp., 279 NY 590; Matter of Burns v Merritt Eng. Co., 302 NY 131; Matter of Leigh v J. J. Dix, Inc., 284 App Div 919; Matter of Robinson v Village of Greenport, 27 AD2d 599; Matter of Clark v J. S. S. Realty Co., 26 AD2d 877; Mayer v Temple Props., 307 NY 559; Gluckstern v Gluckstern, 4 NY2d 521; Gutin v Mascali & Sons, 11 NY2d 97; Gabriel Inds. v Defiance Inds., 22 NY2d 405.) VI. Plaintiffs have misinterpreted certain cases cited in their brief. (Matter of Crohn v Fire Benevolent Fund Assn. of City of Mount Vernon, 79 Misc 2d 536; Matter of Davis v Newsweek Mag., 305 NY 20; Matter of Rigali v Town of Colonie, Verdoy Fire Dist., 47 AD2d 507; Matter of Sullivan v Delphi Falls Fire Co., 29 AD2d 584; Pollini v Fuller Rd. Fire Dept., 34 NY2d 744; Giuliano v Town of Brunswick, 32 AD2d 705; Matter of Malacarne v City of Yonkers Parking Auth., 41 NY2d 189; Matter of Heitz v Ruppert, 218 NY 148; Matter of Industrial Comr. v McCarthy, 295 NY 443; Read v Sacco, 49 AD2d 471.)

      John E. Boeggeman and Kevin D. Moloney for Francis Wrightmeir, respondent.
    Compensation benefits are appellant’s exclusive remedy. (Matter of Lepow v Lepow Knitting Mills, 288 NY 377; Matter of Corrina v De Barbieri, 247 NY 357; Matter of Tannenbaum v Perfect Tailoring Co., 243 NY 577; Matter of Torres v Triangle Handbag Mfg. Co., 13 AD2d 559; Fellows v Seymour, 171 Misc 833; Naso v Lafata, 4 NY2d 585; Rauch v Jones, 4 NY2d 592; Durso v Modern Biscuit Corp., 11 AD2d 1036; Matter of Myslborski v Greenport Fire Dist., Volunteer Firemen’s Co., 38 AD2d 646.)

      Joseph A. Catania, Jr., for Richard Patterson, respondent.
    I. A volunteer fireman who applies for and accepts workers’ compensation benefits pursuant to the Volunteer Firemen’s Benefit Law waives his common-law remedies against a fellow volunteer fireman. (Pollini v Fuller Rd. Fire Dept., 66 Misc 2d 523; Rauch v Jones, 4 NY2d 592; Holland v Baker, 61 Misc 201; Matter of Doca v Federal Stevedoring Co., 308 NY 44; Burgess v Tryde Mfg. Co., 20 Misc 2d 875; Moakler v Blanco, 47 AD2d 614.) II. Plaintiff’s application for workers’ compensation benefits resulting in a decision by the board that he sustained injury in the course of firemanic duties now estoppes him from contesting the applicability of sections 19 and 20 of the Volunteer Firemen’s Benefit Law. (Schwartz v Public Administrator of County of Bronx, 24 NY2d 65; Matter of Myslborski v Greenport Fire Dist., Volunteer Firemen’s Co., 38 AD2d 646; Drier v Randforce Amusement Corp., 14 Misc 2d 362.)
   OPINION OF THE COURT

Meyer, J.

Section 19 of the Volunteer Firemen’s Benefit Law does not bar an action by an injured fireman plaintiff who has accepted compensation benefits against defendant fellow firemen whose injury-causing acts were outside the scope of defendants’ employment. The order of the Appellate Division affirming dismissal of plaintiff Maines’ complaint should, therefore, be reversed insofar as appealed from, with costs, and summary judgment as to the individual defendants should be denied.

The papers on defendants’ motions to dismiss establish that on June 12, 1975 plaintiff attended the regular monthly meeting of the Cronomer Valley Fire Department at the company meeting hall, during part of which he and another junior fireman were inducted as senior members. After the meeting formally ended plaintiff remained in the building with others for at least an hour to watch a game of cards. Another group of volunteer firemen left the meeting hall and went to a different building on the premises, referred to as the truckhouse. At about 11:30 p.m. one of the firemen returned from the truckhouse and told plaintiff to come with him because one of the members wanted to speak with him. On their way to the truckhouse, Maines, who had been hazed when he was inducted to junior membership and thus suspected that some type of horseplay awaited him, told the other fireman that "if they were going to do any fooling around not to do it today because [he had his] good clothes on.” No response was made. Immediately upon entering the truckhouse a bedsheet was pulled over plaintiffs head, a leather belt was tied to his waist, his feet were bound together with three-quarter-inch rope, and his arms were held to restrain him from struggling loose. Maines was then carried outside to the parking lot and thrown into a garbage dumpster. Once in the dumpster, grease was thrown at him, he was hosed with water for several minutes, and despite his protestations that he had landed on broken glass and had been severely cut, the lid to the dumpster was closed and he was kept inside for several minutes more. The dumpster was then turned on its side and as plaintiff rolled out the other firemen saw that he had in fact been hurt. They administered first aid and rushed him to the hospital for treatment of his seriously gashed left hand and fingers and injuries to his right wrist. That same night the department chief fined each of the individual defendants $5 for costs, suspended them for 54 days and placed them on probation for six months. One defendant, who was a first lieutenant, lost his rank for a year.

The fire department chief filed notice of the accident with the Workers’ Compensation Board. Though plaintiff did not attend the first hearing held by the board, he ultimately did attend at least one later hearing and was awarded and accepted benefits in the amount of $8,332 for the injuries sustained. The decision stated simply that claimant "sustained injury to his left hand in the course of firematic [sic] duties.”

Whether compensation is plaintiffs exclusive remedy turns on the interpretation of sections 19 and 20 of the Volunteer Firemen’s Benefit Law and of related sections of the Workers’ Compensation Law. Section 19 of the former law provides in relevant part that: "The benefits provided by this chapter shall be the exclusive remedy of a volunteer fireman * * * for * * * injury * * * in the line of duty * * * as against * * * (3) any person or agency acting under governmental or statutory authority in furtherance of the duties or activities in relation to which any such injury resulted” and section 20, which is entitled "Other remedies of volunteer firemen; subrogation,” states that: "The provisions of section twenty-nine of the workmen’s compensation law to the extent that such provisions are not inconsistent with the provisions of this chapter, shall be applicable as fully as if set forth in this chapter.” Section 29 of the Workers’ Compensation Law provides, so far as here relevant, in subdivision 1 that "If an employee entitled to compensation under this chapter be injured or killed by the negligence or wrong of another not in the same employ, such injured employee * * * may take such compensation and medical benefits and * * * pursue his remedy against such other,” and in subdivision 6 that the right to compensation is the exclusive remedy of an employee injured "by the negligence or wrong of another in the same employ.”

Viewed solely on the basis of the words used, section 29 of the Workers’ Compensation Law, which turns on whether plaintiff and defendant were "in the same employ,” gives a coworker greater protection than does section 19 of the firemen’s law, which protects only a person acting "in furtherance of the duties or activities in relation to which” the injury resulted, for our decisions have long recognized that an employee may be within the course of employment (and thus in "the same employ”) even though not acting strictly in furtherance of his duties or his employer’s objectives (see, generally, 1A Larson, Workmen’s Compensation Law, §§ 20-23). On its wording section 19 affords no basis for dismissal of the complaint, for a jury could find, there being evidence (both in the disciplining of defendant firemen and in testimony of individual witnesses that such initiation or hazing activities were not an accepted practice in the fire department) that in fact defendants were not acting "in furtherance of the duties or activities” in relation to which plaintiff’s injuries resulted (Matter of Ognibene v Rochester Mfg. Co., 298 NY 85; see Matter of Heitz v Ruppert, 218 NY 148, 152-153; cf. 1A Larson, Workmen’s Compensation Law, § 23.41). Likewise the disparate wording of the two laws would make section 29 of the Workers’ Compensation Law inapplicable because section 20 of the firemen’s law applies section 29’s exclusivity provision only to the extent not inconsistent with the firemen’s law. Nor would the referee’s finding estop plaintiff collaterally, for the only finding required by subdivision 3 of section 3 and section 6 of the firemen’s law, and indeed the only finding made, was that Maines had been injured "in line of duty.”

We prefer not to predicate our ruling on the difference in wording between the two laws, however, because the Memorandum of the Joint Legislative Committee on Fire Laws which accompanied the bill which became the Volunteer Firemen’s Benefit Law (NY Legis Doc, 1956, No. 45, reprinted at McKinney’s Cons Laws of NY, Book 63B, p 17) contains language suggesting that section 19 was intended to follow the exclusivity rule of the Workers’ Compensation Law (NY Legis Doc, 1956, No. 45, p 26; McKinney’s Cons Laws of NY, Book 63B, p 12, see, also, p 29), a conclusion which is consistent with the result we reached in Pollini v Fuller Rd. Fire Dept. (34 NY2d 744). We leave the question open also because, though the word "employ” does not necessarily import employment for hire, it may be argued that section 19’s "furtherance of the duties or activities” phrasing was simply the scrivener’s effort to transpose "in the same employ” to a law relating to volunteers, and because, in final analysis, we conclude that even under the broader wording of the Workers’ Compensation Law, defendants were not "in the same employ” as that phrase has been construed and, therefore, plaintiff is not barred from suing them.

That plaintiff was "in line of duty” at the time he was summoned to the truckhouse is not open to question. Section 5 of the Volunteer Firemen’s Benefit Law includes within the "duties and activities” for which benefits are to be paid "attending or working at meetings of his fire department” (subd 1, par f), and the frequent holding of this and other courts has been that the interpretation of such a provision must not be restricted to the exact hours of the event in question, but should be reasonably, and sometimes liberally, construed in reference to the particular factual context (Wright v Day, 26 NY2d 905; Doyle v Jennings, 26 NY2d 957; Matter of Myslborski v Greenport Fire Dist., Volunteer Firemen’s Co., 38 AD2d 646). There is nothing in the instant record to suggest that the board was not wholly justified in finding plaintiff to have been in course of duty when injured, and in any event there has been no appeal from that finding.

But the words "in the same employ” as used in the Workers’ Compensation Law are not satisfied simply because both plaintiff and defendant have the same employer; a defendant, to have the protection of the exclusivity provision, must himself have been acting within the scope of his employment and not have been engaged in a willful or intentional tort. Though the cases cited by the courts below (Doca v Federal Stevedoring Co., 280 App Div 940, affd 305 NY 648; Meaney v Keating, 200 Misc 308, affd 279 App Div 1030, affd 305 NY 660; Moakler v Blanco, 47 AD2d 614; Durso v Modern Biscuit Corp., 11 AD2d 1036, 1037) all infer that a common-law action by an injured employee who has accepted a compensation award is available only if the complaint alleges commission of a willful or intentional act, they are distinguishable because defendant in each, except Moakler, was the employer, and it does not appear from the Moakler opinion that the question whether defendant employee was acting within the scope of his employment was raised as it has been here.

The policy considerations involved in the two situations differ greatly (see, generally, 2A Larson, Workmen’s Compensation Law, §§ 71, 72). While compensation law is designed to insure that an employee injured in course of employment will be made whole and to protect a coemployee who, acting within the scope of his employment caused the injury, it has not protected the coemployee, even though the injured employee has accepted compensation benefits, when the coemployee was not acting within the scope of his employment at the time he inflicted the injury (D’Agostino v Wagenaar, 183 Misc 184, affd 268 App Div 912, mot for lv to app den 294 NY 640; Ventrone v Tarancki, 32 AD2d 738; Artonio v Hirsch, 3 AD2d 939; Bonadonna v Barry, 28 Misc 2d 454, affd 13 AD2d 890; Helmic v Paine, 369 Mich 114; Williams v Bebbington, 247 SC 260; see Costanzo v Mackler, 34 Misc 2d 188, affd 17 AD2d 948; 2A Larson, op. cik, § 72.20, pp 14-39 ["the immunity attaches to the co-employee only when the co-employee is acting in the course of his employment”]).

The facts of the D’Agostino case are illustrative. There plaintiff was employed as a gardener at a country club and was engaged in mowing grass near the curb of a driveway on the club premises when injured. Defendant was employed by the club as a night watchman at a wage which included room and board. Defendant’s hours were from 10 p.m. to 7:30 a.m. The accident occurred at 2 p.m. While defendant was driving his private automobile, kept on the premises with the club’s permission, on a personal errand, he ran off the driveway into plaintiff. Defendant’s motion to set aside the jury’s verdict for plaintiff and dismiss plaintiff’s negligence complaint, because barred by the exclusivity provision of subdivision 6 of section 29 of the Workers’ Compensation Law, was denied on the ground that defendant was not within the scope of his employment at the time of injury and, therefore, the parties were not "in the same employ.”

In the instant case, defendants had so far departed from the "duties and activities” of their positions as volunteer firemen that a jury may find, the more so in light of defendants’ suspensions and other discipline, that they were not acting in furtherance of those duties (or in the "same employ”) when plaintiff was injured.

A further basis for our conclusion exists in that the complaint liberally construed may be interpreted as alleging that the individual defendants in throwing plaintiff into the dumpster committed an intentional assault upon him. While the complaint alleges negligence and carelessness, it also charges that defendants "in concert with one another * * * caused the plaintiff to be physically restrained,” recklessly "failed to discontinue their actions upon plaintiff’s resistance, requests and cries,” and "used physical force on the plaintiff for no legitimate or lawful purpose.” As the First Department held in Mazarredo v Levine (274 App Div 122, 126-127):

"Assuming, however, that the plaintiff was not the aggressor and that the assault arose out of a quarrel between coemployees relating to matters connected with the employment so as to make the plaintiff’s injuries compensable as an industrial accident insofar as the employer is concerned, we find nothing in the statute that requires us to construe it as affording to the perpetrator of the assault a defense based on the exclusive remedy of compensation provided for one injured by the negligence or wrong of another in the same employ (Workmen’s Compensation Law, § 29, subd. 6).

* * *

"The commission of an assault by one employee upon another in the course and arising out of the employment may properly be deemed accidental from the standpoint of the employer as an untoward event not expected or intended. The same, however, can hardly be said for the perpetrator of the assault. It seems unreasonable to suppose that the Legislature intended to give statutory protection in the form of immunity from suit for a deliberate and intentional wrongful act.”

(See Matter of Berenberg v Park Mem. Chapel, 286 App Div 167, 169; cf. Matter of Goldfine v Barsol [Parson] Cab Operating Co., 19 AD2d 672; Lavin v Goldberg Bldg. Material Corp:, 274 App Div 690, mot for lv to app dsmd 304 NY 738; Le Pochat v Pendleton, 271 App Div 964; De Coigne v Ludlum Steel Co., 251 App Div 662; see, also, Ann., 21 ALR3d 845, 880.) Moreover, we reject defendants’ suggestion that plaintiff must allege that defendants intended to bring about the harmful consequences that ensued. Whatever may be the rule in an action against an employer (compare Finch v Swingly, 42 AD2d 1035, with Matter of Ward v Typhoon Air Conditioning Co., 27 AD2d 785, 786, mot for lv to app den 19 NY2d 582), the complaint in an action against a coemployee (or fellow fireman) for an assault committed outside the scope of the coemployee’s employment (or not in furtherance of the duties of the fellow fireman) need only allege deliberate intent or conscious choice to do the act which results in the injury (see Masters v Becker, 22 AD2d 118; Baldinger v Banks, 26 Misc 2d 1086; Lamhertson v United States, 528 F2d 441, 444, cert den 426 US 921; 2 NY PJI 584).

In reaching our conclusion, we are not unmindful of the provisions of section 205-b of the General Municipal Law. That section did not bar a common-law action against a fellow fireman before enactment of the Volunteer Firemen’s Benefit Law (Ottman v Village of Rockville Centre, 275 NY 270), nor does it do so when read with that law. Section 205-b, which provides that: "Members of duly organized volunteer fire companies in this state shall not be liable civilly for any act or acts done by them in the performance of their duty as volunteer firemen, except for wilful negligence or malfeasance”, by its own terms is not in point. It applies only to acts done "in the performance of * * * duty as volunteer firemen.” Here, as already noted, in order to escape the exclusive remedy provisions of section 19 of the Volunteer Firemen’s Benefit Law, plaintiff must show that his fellow firemen in fact were not acting "in furtherance of their duties and activities.”

For the foregoing reasons, the order of the Appellate Division should be reversed insofar as appealed from, with costs, and the motions of the individual defendants for summary judgment should be denied.

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

Order, insofar as appealed from, reversed, etc.

      . The orders affirmed by the Appellate Division granted summary judgment to defendant fire department as well. Plaintiff on appeal to us has limited his argument to the contention that summary judgment was improperly granted the individual defendants.

      . The complaint is technically defective in failing to allege that the individual defendants were not acting within the scope of their employment (Murray v City of New York, 43 NY2d 400, 407), but plaintiffs brief notes that if the complaint is reinstated he will move at Special Term to amend (CPLR 3025). The defect has not been argued by defendants and for purposes of this appeal is not material.

      . Note, however, that Pollini dealt not with the present issue but with whether the defendant, Hicksville Fire Department, was a "person or agency” within the meaning of subdivision 3 of section 19.


source: Caselaw Access Project

author:
      Per Curiam.
     Meyer, J. Chief Judge Cooke

license: Public Domain

text:
    The People of the State of New York, Respondent, v Jose Manuel Pollock, Appellant.
    Argued May 1, 1980;
    decided June 12, 1980

      POINTS OF COUNSEL

      Gerald B. Lefcourt and Richard Ware Levitt for appellant.
    I. Defendant’s judgment of conviction must be reversed and a new trial ordered where the Trial Judge, in denying defendant’s pretrial Sandoval motion, failed to consider and balance in any fashion whatever the factors this court has repeatedly held to be crucial to a lawful exercise of discretion, and in fact set forth on the record and applied its own criteria, which clearly contradicted the Sandoval parameters. (People v Kennedy, 47 NY2d 196; People v Davis, 44 NY2d 269; People v Mayrant, 43 NY2d 236; People v Caviness, 38 NY2d 227; People v Sandoval, 34 NY2d 371; People v Ocasio, 47 NY2d 55; People v Rahman, 46 NY2d 882.) II. Defendant was denied his right to a public trial where the trial court twice sealed the courtroom upon the unsubstantiated representations of the Assistant District Attorney. (People v Jones, 47 NY2d 409.)

      Robert M. Morgenthau, District Attorney (Mark Dwyer and
      Robert M. Pitler of counsel), for respondent.
    I. Defendant’s guilt was proved beyond a reasonable doubt. II. The trial court properly ruled that defendant could be cross-examined at trial about prior acts which demonstrated his pronounced willingness to place his own self-interest ahead of the interests of society. (People v Sandoval, 34 NY2d 371; People v Duffy, 36 NY2d 258, 423 US 861; People v Ocasio, 47 NY2d 55; People v Hendrix, 44 NY2d 658; People v Greer, 42 NY2d 170; People v Brown, 48 NY2d 921; People v Rahman, 46 NY2d 882; People v Kennedy, 47 NY2d 196; People v Davis, 44 NY2d 269; People v Mayrant, 43 NY2d 236; People v Caviness, 38 NY2d 227.) III. Defenant’s claim that a hearing should have been held before a minority of the spectators was excluded from the courtroom does not present a question of law. (People v Jones, 47 NY2d 409; People v Hinton, 31 NY2d 71, 410 US 911; People v Cona, 49 NY2d 26; People v Tutt, 38 NY2d 1011; People v Patterson, 39 NY2d 288, 432 US 197; Matter of Gannett Co. v De Pasquale, 43 NY2d 370.)
   OPINION OF THE COURT

Per Curiam.

The record demonstrates that the trial court exercised its discretion when it ruled that the prosecution would be permitted to impeach the credibility of the defendant, if he took the stand, by confronting him with his prior criminal acts. Indeed, the court, in its opinion carefully balanced the probative worth of the tendered proof against the risk of prejudice and it cannot be said that the court’s ruling which would have permitted cross-examination as to these acts constituted an abuse of discretion as a matter of law (People v Mackey, 49 NY2d 274, 281; People v Sandoval, 34 NY2d 371, 378).

The position advanced by the dissent calls for a reaffirmation that our decision in People v Sandoval (34 NY2d 371, supra) did not change the pre-existing law as to the permitted scope of cross-examination for impeachment purposes (e.g., People v Schwartzman, 24 NY2d 241, cert den 396 US 846; People v Sorge, 301 NY 198). It prescribed a procedural vehicle by means of which a defendant could obtain an advance ruling as to the scope of cross-examination which would be permitted if he were to take the witness stand. The determination of that scope remained, as it always had been, committed to the sound discretion of the trial court. We explored considerations pertinent to the exercise of that discretion; we did not, however, as the dissent suggests, mandate the application of any particular balancing process. We have subsequently indicated that in the usual case, appellate review of the exercise of discretion by the trial court in any particular instance ends in the intermediate appellate court (People v Mackey, 49 NY2d 274, 281, supra). It is only when the ruling of the trial court has been based on an error of law in the pre-Sandoval sense that reversal in our court is warranted (e.g., People v Davis, 44 NY2d 269 [Trial Judge in a pre-Sandoval case erroneously held that he was barred from exercising normal discretionary supervision of scope of cross-examination]; People v Mayrant, 43 NY2d 236 [cross-examination as to prior violent acts admitted as evidence in chief to establish propensity to commit such acts]; cf. People v Kennedy, 47 NY2d 196, 205 ["considerations we reiterated in People v Sandoval (34 NY2d 371) for determining when such cross-examination should be allowed” not applicable to convictions alone but applied as well to alleged immoral, vicious or criminal acts regardless of whether those acts resulted in convictions]).

Nor does the other issue tendered by defendant call for a reversal of his conviction. The attorney for the defendant voiced a general objection to the People’s request to close the courtroom during the testimony of the undercover detective and an informant. However, defense counsel made no request for a hearing nor did she dispute the People’s contention that the witnesses would be in danger if the general public was not excluded. Consequently it cannot be said that the court erred in granting the People’s request for closure.

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

Meyer, J.

(dissenting). There should be a reversal and a new trial.

On the Sandoval issue it is clear that the Trial Judge used the wrong criteria and thus did not properly exercise his discretion in determining the extent of permissible cross-examination (People v Kennedy, 47 NY2d 196; People v Davis, 44 NY2d 269; People v Mayrant, 43 NY2d 236). Admission of evidence of prior crime on the issue of defendant’s credibility has, as the majority notes, always been essentially a matter for the Trial Judge’s discretion. But the thrust of Sandoval is that because a jury may be led by such evidence to infer criminal propensity and convict a defendant in fact innocent of the particular crime, defendant is in effect denied his constitutional right to be a witness in his own behalf unless he knows before he takes the stand what evidence of prior crime he will face. Sandoval spells out the factors on which the determination turns: how long a time has elapsed, was the crime deliberate or one of impulse or addiction, how relevant is it on credibility. The hearing, mandated by Sandoval so that there can be appellate review of the Trial Judge’s determination, is of little value if the issue can be decided by the Trial Judge in his unfettered discretion. The irreducible minimum is that the determination be made on a reasoned basis, measuring propensity for conviction against relation to credibility.

Judged by that standard the hearing in this case failed to meet Sandoval’s requirement that the Trial Judge consider both "the interests of the People and the rights of the defendant” (People v Sandoval, 34 NY2d 371, 375). This is evident from his categorical statements, first, that "As long as the crime involved does entail moral turpitude, it seems to me that the jury has a right to know about it”; second, that he was not sympathetic to the argument that cross-examination about a crime which tended to indicate a predisposition could by its prejudicial effect outweigh its materiality, because that would reward one who specialized in a particular type of crime; and, third, that it would be misleading to the jury and unfair to the People to permit defense counsel to cross-examine the informant about past crimes and not have defendant similarly questioned. Since his denial of the Sandoval motion was "for all of these reasons”, it is clear that there was more dogma than discretion in the ruling.

While the ruling closing the courtroom is more debatable, I would reverse as to that also. Defendant’s attorney having objected, even though indicating that she was not sanguine of a favorable ruling, the court, in order to assure "that the defendant’s right to a public trial is not being sacrificed for less than compelling reasons” (People v Jones, 47 NY2d 409, 414-415), should have required the People to present more than the prosecutor’s conclusory statement that "I think it would be dangerous, if not to his health, to possible future investigations of this [undercover police] officer, to have the courtroom open”.

Chief Judge Cooke

(dissenting). I agree with the result reached by Judge Meyer in dissent, but do so only insofar as it rejects the notion that a defendant who objects to closure must also specifically request a hearing before the court is required to conduct an appropriate inquiry (see People v Jones, 47 NY2d 409).

Judges Jasen, Gabrielli, Jones and Wachtler concur in Per Curiam opinion; Judge Meyer dissents and votes to reverse in an opinion in which Judge Fuchsberg concurs and in which Chief Judge Cooke concurs in part in a separate dissenting memorandum.

Order affirmed.


author: Fuchsberg, J.

text:
    The People of the State of New York, Respondent, v Walter Rodriguez, Appellant.
    Argued May 1, 1980;
    decided June 12, 1980

      POINTS OF COUNSEL

      Nancy S. Hobbs and William E. Hellerstein for appellant.
    I. Appellant was denied his right to a speedy trial as guaranteed under CPL 30.30. When the People were unready for trial for 29 months and where over 9 months of that pretrial delay were not excludable under any provision of the statute. (People v Sturgis, 38 NY2d 625; People v McLaurin, 38 NY2d 123; People v McBride, 44 NY2d 1001; People v Sims, 59 AD2d 546; People v Perez, 57 AD2d 560; People v Scott, 56 AD2d 667; People v Hamilton, 46 NY2d 932; People v Dean, 45 NY2d 651; People v De Cicco, 62 AD2d 1001.) II. The evidence was insufficient to prove an essential element of attempted robbery, that appellant used force or threats of force for the purpose of overcoming resistance to the taking or retention of property: his conviction of attempted robbery therefore violated his Fourteenth Amendment right to due process of law. (People v Koerber, 244 NY 147; People v Santiago, 62 AD2d 572; People v Banks, 55 AD2d 795; People v Woods, 41 NY2d 279; People v Rudelt, 6 AD2d 640.)

      Mario Merola, District Attorney (Daniel Taub and Timothy J. McGinn of counsel), for respondent.
    I. Appellant’s guilt was proven by overwhelming evidence. II. Appellant was afforded a speedy trial. (People v Adams, 38 NY2d 605; People Johnson, 38 NY2d 271; People ex rel. Franklin v Warden, Brooklyn House of Detention for Men, 31 NY2d 498; People v Lieberman, 47 NY2d 931; People v Dodson, 48 NY2d 36; People v Williams, 56 AD2d 667; People v Mainor, 77 Misc 2d 946; People v Tolkow, 80 Misc 2d 1051; Barker v Wingo, 407 US 514; People v Taranovich, 37 NY2d 442.)
   OPINION OF THE COURT

Fuchsberg, J.

On this appeal, defendant relies in the main on his contention that he was deprived of a speedy trial. For the reasons which follow, we conclude that, under the circumstances, that claim must be deemed abandoned and the order of the Appellate Division which affirmed the conviction must be upheld.

In the summer of 1972, defendant, Walter Rodriguez, was arrested and charged with various counts of burglary, robbery, grand larceny, assault and possession of a weapon. The case remained untried for more than two years, delays having been occasioned at times by defense requests for postponements and at others under circumstances chargeable to the People.

Crucial here are the litigation events of early fall, 1974. On September 23, defendant moved to dismiss the indictment on the ground that he had been denied his constitutional right to a speedy trial (US Const, 6th Arndt). Ten days later, the defense was granted a six-week adjournment of the trial in order to alleviate conflicts in counsel’s schedule. On October 8, the trial court, construing the motion as one within the compass of both CPL 30.30 and CPL 30.20, ordered a hearing on the extent and reasonableness of the delay.

For reasons undisclosed by the record, no speedy trial hearing was held. When the prearranged trial date, November 18, arrived, defendant neither asked for an opportunity to have such a hearing slated nor reiterated his contention that the delay entitled him to a dismissal. And he in no way indicated that the passage of 40 days since the hearing had been ordered was other than volitional on his part. Instead, the defense indicated without qualification that it was ready to proceed to trial and, in its sole fleeting allusion to the speedy trial problem, informed the court that the case had been advanced beyond several older ones because the order emanating from the speedy trial motion commanded the People to "try it or get a dismissal”.

No more eifective an assertion of the right to a resolution of the speedy trial issue took place the next day, when a Wade identification hearing was scheduled. Indeed, when the court referred to an understanding that, as soon as the reliability of certain identification testimony was resolved, the case would be tried, counsel encouraged that proposed course by agreeing that "[t]here is no reason other than getting [a transcript of the hearing] not to proceed.”

And proceed the trial did, again without mention of the speedy trial issue either before the jury rendered its guilty verdict or by postconviction motion. In fact, it was never heard of again until appeal, whereupon the Appellate Division directed that a fact-finding hearing be held on defendant’s claim. When Trial Term then found that less than six months of the delay was attributable to the People and that, therefore, defendant was not entitled to a dismissal, the Appellate Division affirmed the judgment of conviction. We agree that the conviction must be upheld, but, because of his surrender of his claim of excessive delay, find no occasion to address the merits of defendant’s speedy trial position.

Turning now to the constitutional claim, unlike claims "so fundamentally basic” to our system of jurisprudence as to be exempt from the general doctrine of waiver, we hold that the constitutional right to a speedy trial is one that may be surrendered (compare, e.g., Barker v Wingo, 407 US 514, 525, and People v White, 32 NY2d 393 [speedy trial constitutionally considered], with People v Michael, 48 NY2d 1, 6 [double jeopardy], and Cancemi v People, 18 NY 128 [trial by jury of 12]). However, especially in light of the protected position occupied by even a waivable constitutional right in our hierarchy of values, ordinarily only "an intentional relinquishment or abandonment” will suffice (Johnson v Zerbst, 304 US 458, 464). In such a case, a record that is simply silent on the question will not overcome the "presumption against waiver”, however denominated (Carnley v Cochran, 369 US 506; Pitler, NY Criminal Practice Under CPL, § 1.24).

The record here is far from silent; in fact, it figuratively shouts out the knowing nature of the decision to abandon the speedy trial claim. For one thing, it was defendant alone who characterized the initial order to hold a hearing on the question as presenting an option to the People of going to trial immediately or suffering a dismissal. In essence, the defense apparently preferred to use its right to press for the hearing as leverage with which to compel an immediate trial on the merits. Whether this reflected a cocksure attitude concerning how the case would be decided or, perchance, an undisclosed plan to utilize the speedy trial issue as a fallback position in the event the trial result was adverse, or some other strategy best known to the defendant, in charting this course, he consciously abandoned his quest for a speedy trial dismissal (cf. People v Piazza, 48 NY2d 151, 158). Under such circumstances, courts are loath to second-guess a litigant’s "highly judgmental function” of deciding when and to what end to assert a right or to forego reliance on it (see Salesian Soc. v Village of Ellenville, 41 NY2d 521, 525).

Also noteworthy is the defendant’s express representation to the Wade hearing court that no obstacle beyond the preparation of a hearing transcript stood in the way of swearing in a jury and proceeding as scheduled. In view of the utter failure to reassert the speedy trial right, this act constituted an affirmative election of the alternative of an immediate trial. Since defendant’s awareness of his rights is incontestable — the motion asserting them had been, after all, only recently filed —there can be no other conclusion but that his objection to the tardiness of the prosecution, whether measured by the statutory standards enunciated in CPL 30.30 or the constitutional ones processed under CPL 30.20, had been knowingly and voluntarily abandoned (People v Adams, 38 NY2d 605, 607).

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.

      . We have considered the other points raised by defendant and find them without merit.

      . Among the possible motives for such a decision must also be included skepticism as to the merits of the speedy trial claim itself. Even now it is not denied that no more than half the time which elapsed between arrest and trial was attributable to the People. And, in the last few months before trial, the defense occasioned at least two extensive postponements of the proceedings. (See, generally, People v White, 2 NY2d 220, app dsmd 353 US 969; People ex rel. Lewis v McMann, 28 NY2d 496.)

      . We do not more precisely delineate the requirements for waiver of a CPL 30.30 claim, since, a fortiori, evidence sufficient to establish the waiver of a constitutional claim will suffice to establish one under CPL 30.30 as well.


text:
    Westinghouse Credit Corporation, Respondent, v James Talcott, Inc., Appellant.
    Argued May 29, 1980;
    decided July 1, 1980

      POINTS OF COUNSEL

      Gabriel B. Schwartz, T. Gorman Reilly and Jerald E. Podair for appellant.
    I. Under the plain meaning of the participation agreement, Talcott is entitled to its full 21.74% share of the principal collections without diminution for interest payments received. (Bank of Cal. v Webb, 94 NY 467; Davison v Klaess, 280 NY 252; General Stencils v Chiappa, 18 NY2d 125.) II. Westinghouse Credit Corporation’s contentions are refuted by its own course of dealing and its practical interpretation of the participation agreement. (Halperin v McCrory Stores Corp., 207 App Div 448, 239 NY 547.) III. Talcott was entitled to summary judgment for the amount withheld. (Hartford Acc. & Ind. Co. v Wesolowski, 33 NY2d 169.)

      Joseph H. Einstein for respondent.
    The court below correctly held that Westinghouse was entitled to credit for the interest payments previously received by Talcott. The position urged by Talcott would, if adopted, place it in an unfairly advantageous position. (Aron v Gillman, 309 NY 157; Brown v McGraw-Hill Book Co., 25 AD2d 317, 20 NY2d 826; Rush v Rush, 19 AD2d 846; Chemung Canal Trust Co. v Montgomery Ward & Co., 4 AD2d 95, 4 NY2d 1017; Gearns v Commercial Cable Co., 293 NY 105; Allied Chem. Corp. v Alpha Portland Inds., 58 AD2d 975; Portsmouth Baseball Corp. v Frick, Comr. of Baseball, 278 F2d 395, 364 US 831; Utilities & Inds. Corp. v Palisades Interstate Park Comm., 45 Misc 2d 1014.)
   OPINION OF THE COURT

Fuchsberg, J.

This appeal calls upon us to interpret a loan participation agreement between two large commercial lenders, plaintiff-respondent Westinghouse Credit Corporation and defendant-appellant James Talcott, Inc. The essential facts are undisputed.

The participation agreement, entered into in 1974, incorporated the terms of a pre-existing line of credit agreement between Westinghouse and the developers of a Texas land project known as Padre Island. Under the arrangement Westinghouse had agreed to extend loans up to a total of $32,000,-000 in amounts geared to accounts receivable generated by the land sales consummated by Padre, who would thus be put in a position to finance its own sales on an installment basis. Padre, in turn, was to apply any payments received from its purchasers to reduce the outstanding balance of principal and interest due under its line of credit. The Westinghouse loans were secured by deeds of trust on the land and a security interest in the installment purchase contracts. The Padre-Westinghouse agreement was renewable annually at Padre’s option providing the latter was not in default either in making the money payments or in implementing the security arrangements it had undertaken.

Under the separate agreement by which Talcott became a participant, Westinghouse sold it an undivided 21.74% share (but not to exceed $5,300,000) in the loans and advances made or to be made to Padre. Paragraph 4 of the contract between the lenders also tells us that "the funds advanced by Talcott * * * [were to] bear interest at the rate of five and one-half percent (5A%) per annum in excess of the 'prime rate’ ”. Pertinent too, for our purposes, is that paragraphs 5 and 8 specified that these sums were to be repaid, with interest and in proportion to Talcott’s capital contribution, out of any sums paid by Padre to Westinghouse pursuant to the terms of the contract setting up the line of credit. In addition, the loan participation agreement, by its paragraph 9, provided for certain priorities in the event of liquidation. It is around this provision that the dispute between the parties now revolves.

The genesis of the controversy was Padre’s failure, in 1976, to adhere to a prescribed plan for improving its land. This default rendered the installment land sales contracts Padre had negotiated with purchasers unenforceable, in consequence of which the value of the collateral for the WestinghouseTalcott loans was impaired. It is undisputed that by its terms the financing contract between Padre and Westinghouse would therefore have expired on September 15, 1976. Nevertheless, Westinghouse, as managing or, as otherwise described, originating lender of the participating group, took it upon itself to extend the line of credit agreement. Talcott, however, unwilling to consent to this waiver of the default, refused to continue and insisted instead on repayment of the advances it had already made.

For a time, Westinghouse, though knowing full well of course that Talcott would not participate in the new loans which were to be advanced under the now continuing line of credit agreement with Padre, remitted to Talcott its share of Padre’s payments of both principal and interest as these were received on the outstanding advances made before the withdrawal.

But, half a year later, in March, 1977, Westinghouse brought suit, claiming that Talcott had breached the participating agreement by failing to acquiesce in the renewal of the Padre credit. In its answer, Talcott counterclaimed for the amounts it had advanced up to September 15, 1976 together with interest and sought an accounting. In due course, on cross motions for summary judgment, Special Term, in effect finding that Westinghouse was without power to negate Talcott’s refusal to continue to be bound by the agreement with Padre, held that Talcott was entitled to its pro rata share of all collections received by Westinghouse after September 15, 1976 against the loans in which Talcott had participated.

Subsequently, presumably in compliance with the judgment entered on this decision, Westinghouse made all the payments it had withheld from Talcott in the interim, except that it set off approximately $800,000 to reflect an amount Westinghouse now claimed represented the accrued interest erroneously sent to Talcott after its role as a participant had come to an end in September, 1976.

It is in this connection that paragraph 9 of the loan participation agreement takes center stage. For Westinghouse’s rationale for making the deduction for the interest payments was premised on its position that Talcott’s election to withdraw from participation in any further loans meant that all moneys it was to receive thereafter were to be paid out in accord with this provision, which reads: "9. In the event of default by Borrower [Padre], or if * * * [Westinghouse] shall deem it otherwise advisable, to liquidate the respective investment of [Westinghouse] and Talcott in the loans and advances made pursuant to the Agreement, all sums collected and received by [Westinghouse and Talcott] thereon shall be applied ratably as follows: (a) to costs and expenses, including reasonably [sic] attorneys’ fees, court costs and other like items; (b) to the unpaid principal amount of the loans and advances in proportion to the respective investments of [Westinghouse] and Talcott therein; and (c) to the respective accrued interest and other charges of [Westinghouse] and Talcott.”

Using it as the prime support for a motion to resettle the order and judgment of Special Term to allow it to credit itself with the interest payments which, as Westinghouse contended, Talcott was paid in error after September, 1976, Westinghouse urged that paragraph 9 meant that Talcott was not entitled to receive interest until such time, if ever, when the full amount of the principal of the Padre loans had been repaid. For its part, Talcott, who cross-moved for summary judgment in its favor on the same question, argued that paragraph 9 was inapplicable because no "liquidation” had occurred and that Talcott, therefore, was entitled to its share of the interest on the pre-September, 1976 loans to Padre as received.

Denying plaintiff’s motion and granting the cross motion, Special Term held that "[u]nder the plain meaning of the Participation Agreement Talcott is entitled to its full share of payments on account of principal and interest until the principal amount of its participation is paid in full.” On Westinghouse’s appeal, however, the Appellate Division reversed, concluding that paragraph 9 mandated the deferral of any interest payments to Talcott until contributions of principal made by the other participants had been repaid. For the reasons that follow, we disagree.

Preliminarily, putting aside paragraph 9, essentially the sole underpinning on which Westinghouse and the Appellate Division relied, we note that the other paragraphs that could be said to come into play in this case, i.e., paragraphs 4 and 5, leave little room for conjecture.

Thus, paragraph 4 unequivocally announces that "the funds advanced by Talcott pursuant to this participation agreement shall bear interest” (emphasis supplied). Although it would have been a simple matter for these sophisticated lenders to have expressed such an intention if the provision for interest, after all a basic term in the world of finance, was to be read more or less than literally, this commitment by Westinghouse to Talcott is not qualified in any way. Nor can the application of its explicit undertaking be avoided because Talcott did not participate in any further loans made by Westinghouse and its other cohorts after September 15, 1976 since, on that date and during the ensuing period, "funds advanced by Talcott” were still outstanding. Consequently, so far as paragraph 4 is concerned, Talcott was no less entitled to collect interest than were the other participants in these loans, including Westinghouse itself, which in fact did continue to draw interest on amounts advanced prior to September 15, 1976. Notably, during the entire period after this date, Padre’s obligation to pay both interest and principal to Westinghouse, the lead lender, continued undiminished. Under paragraph 5, therefore, Westinghouse had to "make proportionate distribution to Talcott of all payments actually received by it for application on account of principal [and] interest” (emphasis supplied).

Turning then to paragraph 9, we begin with the observation that its proviso that the accrual of interest be postponed until the principal will have been recovered is not decisive of the issue which confronts us. Such provisions are consistent with accepted accounting practice pursuant to which they are frequently inserted in loan or other investment agreements. Their recognized purpose, when economically prudent, is to allocate cash flow to principal in order to forestall tax liability for what otherwise in the end may turn out to have been interest income on advances of money which, because of an ultimate shortfall in recoupment of the principal, will be but a way station to an ultimate net loss (Statement of Position on Accounting Practices of Real Estate Investment Trusts [SOP 75-2, June 27, 1975]).

Moreover, to focus on the order of the priorities assigned by paragraph 9 reveals that its dominant note is a concern with allocation as between the participants of any sums received upon a "liquidation”. Without essaying an exact definition of that term in other contexts, it seems obvious that, whatever it may otherwise mean, in this case it clearly contemplated a situation involving retrieval of all or the salvageable part of the investment of both Westinghouse and Talcott. Indeed, in the relatively short, one-sentence paragraph that is paragraph 9, in spelling out the disposition of sums received in "liquidation”, reference is twice made to the participants. It does so once with respect to principal and once with respect to interest. Each time, Westinghouse and Talcott are referred to by name and each time in the conjunctive.

Obviously, it was antithetical to a "liquidation” for Westinghouse to reach its decision to continue to carry out its commitment to Padre, actually increasing its advances under the line of credit agreement, not an unusual attitude for a lead lender intent on trying to resuscitate its larger investment and maintain its relationship with its borrower (see Simpson, Loan Participations: Pitfalls for Participants, 31 Bus Law 1977, 1981, 2019-2020). But, however, motivated, it simply was not a "liquidation”.

All the more was this so when Talcott exercised its right to withdraw. Then, Westinghouse having chosen to continue without Talcott, "liquidation” under paragraph 9, however defined, became an impossibility. There no longer could be, to quote paragraph 9, any "liquidation] [of] the respective investment of [Westinghouse] and Talcott” (emphasis supplied). In short, with Talcott no longer in, the clause was out.

It is therefore bootless to make the further argument, as Westinghouse does, that payment of interest to Talcott unfairly allows Talcott to extricate itself from the venture at the expense of the other lending participants. There having been no decision to liquidate within the unambiguous language of the agreement, there was no need for the prioritization of receipts among investors in order to guarantee that the principal at least would be recovered. Whatever inequity may be said to result stems rather from Westinghouse’s position that it has the right to withhold interest payments from any participant who declines to participate in another, albeit less secure, series of loans in contravention of the participation agreement.

All in all, the unambiguous terms of the loan participation agreement leave us with the conviction that the only construction which can fairly be placed on the agreement entitles Talcott to the interest payment.

Accordingly, the order of the Appellate Division should be reversed and the order and the judgment of the Supreme Court should be reinstated.

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

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

      . Apparently there were other lenders to whom Westinghouse had separately sold other participating interests.

      . The payments of interest and principal to Talcott continued through December, 1977 although modification in the contractual arrangements between Westinghouse and Padre resulted in the borrower’s remitting Talcott’s pro rata share directly to it.

      . The punctuation of paragraph 9 is somewhat awkward largely because of a seemingly unnecessary comma after the word "advisable”. While most probably this is a printing error, whether the comma is present or absent, it makes no difference to our construction of the paragraph as requiring liquidation of Westinghouse’s investment as well as Talcott’s.


author:
      Per Curiam.
     Fuchsberg, J.

text:
    In the Matter of Arthur W. Lonschein, a Justice of the Supreme Court, Queens County, Petitioner. State Commission on Judicial Conduct, Respondent.
    Argued May 27, 1980;
    decided July 3, 1980

      POINTS OF COUNSEL

      J. Irwin Shapiro for petitioner.
    I. The findings of fact to which petitioner’s cross motion was addressed directly contradicted all of the testimonial evidence adduced at the hearing. II. The conduct of petitioner was not improper and did not involve the prestige of his office. (Matter of Filipowicz [Temporary State Comm, on Judicial Conduct], 54 AD2d 348; Matter of Schwerzmann, 44 NY2d [a]; Matter of Schamel, 46 AD2d 236; Matter of Jordan, 47 NY2d [xxx]; Matter of Sarisohn, 27 AD2d 466; Matter of Pfingst, 33 NY2d [a]; Matter of Jones, 47 NY2d [mmm]; Matter of Mertens, 56 AD2d 456; Matter of Spector v State Comm. on Judicial Conduct, 47 NY2d 462; Matter of Bloodgood, Lipton, Polonsky, Longo, Kuehnel, Rosinski, Lahey, Mills, Thompson, Wittenberg, 45 NY2d [y].) III. Should a Judge be disciplined for actions which are not improper when done by a private individual.

      Gerald Stern, Jeanne O’Connor and Robert Straus for respondent.
    I. Petitioner’s conduct violated established ethical standards, is properly subject to discipline and should be condemned. (Sharisohn v Appellate Div., 2d Dept., Supreme Ct. of State of N. Y, 265 F Supp 455; Matter of Feinberg, 39 NY2d [a]; Matter of Maidman, 42 AD2d 44; Matter of Kuehnel v State Comm. on Judicial Conduct, 49 NY2d 465.) II. All factual findings are supported by the record.
   OPINION OF THE COURT

Per Curiam.

Petitioner, a Justice of the Supreme Court, Eleventh Judicial District, seeks review pursuant to subdivision 7 of section 44 of the Judiciary Law of a determination that he be censured for certain actions undertaken while a Judge of the Civil Court of the City of New York.

The determination is based upon two sustained charges that petitioner used the prestige of his office on behalf of a close personal friend who had applied for a lease and licenses from various New York City administrative agencies. In connection with Charge I, it was established that petitioner requested a member of the New York City Council to meet with one of his constituents, petitioner’s close friend, John Mazzuka, to assist Mazzuka in clearing up administrative difficulties encountered with various administrative agencies in connection with a lease of a private car service base station. Petitioner testified that he had long-standing social and professional relationships with both the council member and Mazzuka although the two had never met. As Mazzuka was a constituent of the council member, it was to the latter that Mazzuka would naturally be expected to go in order that any problems with city agencies would be resolved. The two ultimately met, eventuating with the council member’s office writing two letters on Mazzuka’s behalf.

Charge II dealt with petitioner’s contact with a deputy counsel of the New York City Taxi and Limousine Commission in connection with a license application Mazzuka had pending before that body. Mazzuka had informed petitioner that a lucrative contract hinged upon the license being granted by a certain date and that various impediments were thwarting approval. Petitioner phoned the deputy counsel and informed him that Mazzuka believed that the agency was giving him "a runaround”. In the same conversation, petitioner asked the counsel to "See what you can do for this fellow”. At a subsequent chance meeting between petitioner and the deputy counsel, petitioner mentioned that "a friend of mine * * * has a case before your Commission that deserves to be heard”. Soon thereafter, a conditional license was granted.

Analysis begins with recognition of the fact that no Judge should ever allow personal relationships to color his conduct or lend the prestige of his office to advance the private interests of others (Rules Governing Judicial Conduct, 22 NYCRR 33.2 [b] [c]). Members of the judiciary should be acutely aware that any action they take, whether on or off the bench, must be measured against exacting standards of scrutiny to the end that public perception of the integrity of the judiciary will be preserved (Matter of Kuehnel v State Comm. on Judicial Conduct, 49 NY2d 465, 469). There must also be a recognition that any actions undertaken in the public sphere reflect, whether designedly or not, upon the prestige of the judiciary. Thus, any communication from a Judge to an outside agency on behalf of another, may be perceived as one backed by the power and prestige of judicial office. That is not to say, of course, that Judges must cloister themselves from the day-to-day problems of family and friends. But it does necessitate that Judges must assiduously avoid those contacts which might create even the appearance of impropriety.

Tested by this yardstick, we perceive nothing improper about petitioner requesting the council member to see one of his constituents in these circumstances and, accordingly, dismiss Charge I. That the request of the council member was made as a favor to petitioner forms no basis for disciplinary action. It is not suggested by the commission that in requesting that the council member meet with Mazzuka, petitioner utilized the prestige of his office in any manner. Indeed, specific findings of the referee to that effect were not disturbed by the commission. Nor could such a claim be made on this record. Petitioner simply directed one friend to another whom he believed could be of assistance and broached the subject with the council member. The council member, in turn, acted as he would have acted upon any legitimate constituent complaint. While there may be some instances in which such conduct could lead to disciplinary sanction, no appearance of impropriety has been demonstrated here.

The facts underlying Charge II, however, are a different matter. In requesting the deputy counsel of the Taxi and Limousine Commission to expedite the processing of Mazzuka’s license application petitioner placed the prestige of his office behind the request. Indeed, the referee and the commission made specific findings, which find ample support in the record, that the petitioner was aware that his judicial position would affect the subsequent conduct of the deputy counsel. To be sure, petitioner never asserted his judicial office in seeking special consideration on Mazzuka’s behalf. Yet, petitioner was aware that the deputy counsel knew of his position and should have realized that his requests would be accorded greater weight by an administrative official that they would have been had petitioner not been a Judge. In assessing the propriety of the sanction imposed, we note that there has been no finding that petitioner acted under anything but a sincere, albeit misguided, desire to accommodate a dear friend. There is no suggestion of malevolent or venal motive but a strongly felt desire to remedy a perceived injustice to a friend at the hands of an administrative agency. Mazzuka’s perceived plight, however, can in no way justify petitioner’s loss of perspective and his actions constitute misconduct under the rules. In these circumstances, the penalty of censure is excessive and admonishment is the more appropriate sanction.

Accordingly, the determined sanction should be rejected, Charge I dismissed and the sanction of admonishment imposed with respect to Charge II.

Fuchsberg, J.

(dissenting in part). As no two people are alike, so no two cases are alike. Only in that sense do the two charges on which this complaint was lodged differ from one another.

In each instance, the close friend and long time neighbor at whose behest the petitioner communicated with a third person was the same. In each, the one to whom the communication was made was an acquaintance of long standing. Each, in his own right a public official of some prominence, was not likely to be overawed by petitioner’s then relatively modest judicial rank; there is not the slightest indication in the record that they were and, in any event, since the condition of which Mazzuka was complaining was administrative inertia with regard to a ministerial bureaucratic matter, it could have had no substantive effect. Indeed, in each, the record is uncontradicted that no substantive benefit was sought or received by the friend, but only that his matter be processed without undue delay. And Deputy Director Basora of the License Department, who had personal responsibility for the matter on which the Per Curiam now admonishes the petitioner and whom the referee characterized as "credible”, testified without contradiction that he was unaware that the petitioner was involved in any way. Finally, in neither did the petitioner purport to act as a Judge; as the commission’s determination agrees, he never "expressly asserted his judicial office”, so that its language that he "knew or should have known” that his judicial position would carry weight, no matter how sincerely employed, is necessarily limited in its import by its conclusory nature (emphasis added).

Understandably then, the court now finds it necessary to dismiss the first charge and reduce the sanction on the very parallel second charge. In this connection, I would have thought that the fact that the petitioner is found blameless in the one instance would have served as proof positive of a standard of personal conduct that would dissipate any different assumption as to the very similar second one. One cannot help but reflect on the opposite inferences that may have flowed if the situation had been reversed.

Moreover, in this day, when, unfortunately; the moorings the teacher, the preacher and the pater once provided no longer hold sway, a Judge at times may find himself the Nestor to whom community friends will turn for wise direction.

If, on a single occasion — on which, concededly, here no substantive harm was done — 20-20 hindsight finds that, no matter with what innocent intentions, he strayed from the broad standards which are made more particular today, the taint of a sanction is not necessarily in order. For Judges are but men and women who are nonetheless worthy though, like all human beings, they are sometimes less than perfect.

Therefore, employing the extraordinary power the State Constitution grants to this court to act in such cases on both the facts and the law, I vote to dismiss the second count as well (NY Const, art VI, § 20, subd b; Matter of Spector v State Comm. on Judicial Conduct, 47 NY2d 462, 465-466).

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones and Wachtler concur in Per Curiam opinion; Judge Fuchsberg dissents in part and votes to reject the determined sanction and dismiss both charges, in a separate opinion; Judge Meyer taking no part.

Determined sanction rejected, without costs, Charge I dismissed and the sanction of admonishment imposed with respect to Charge II.


text:
    In the Matter of Westchester Rockland Newspapers, Inc., Respondent, v Lester M. Kimball, as Clerk and Records Access Officer of the Village of Ossining, et al., Appellants.
    Argued May 27, 1980;
    decided July 3, 1980

      POINTS OF COUNSEL

      Hugh A. La very, Jr., for appellants.
    I. The documents sought to be produced are not subject to disclosure in a proceeding brought under article 6 of the Public Officers Law (Freedom of Information Law). (Matter of Westchester Rockland Newspapers v Mosczydlowski, 58 AD2d 234; Houseman v Miller, 14 Misc 2d 93.) II. The modification of the court below is violative of appellants’ rights under the Freedom of Information Law. (Matter of Westchester Rockland Newspapers v Mosczydlowski, 58 AD2d 234; Young Men’s Christian Assn. v Rochester Pure Waters Dist., 37 NY2d 371; Matter of Marcellus, 165 NY 70; Matter of Whitman, 225 NY 1.)

      Charles M. Feuer and Arthur D. Brennan for respondent.
    I. The requested documents are subject to public inspection pursuant to section 51 of the General Municipal Law, as recognized by article 6 of the Public Officers Law. (Estate of Canale v Binghamton Amusement Co., 37 NY2d 875.) II. The public, as represented by petitioner, has the right to inspect the fiscal records relating to this public lottery. (Matter of Doolan v Board of Coop. Educational Servs., 2d Supervisory Dist. of Suffolk County, 48 NY2d 341; Matter of Miracle Mile Assoc. v Yudelson, 68 AD2d 176.) III. The court below properly directed that respondents submit the fiscal records to the court for an in camera inspection. (Matter of Fink v Lefkowitz, 47 NY2d 567; Church of Scientology of N. Y. v State of New York, 46 NY2d 906; Matter of Miracle Mile Assoc. v Yudelson, 68 AD2d 176.)
   OPINION OF THE COURT

Fuchsberg, J.

In the context of a request for disclosure of records of a volunteer fire department, this appeal calls upon us to further explore the reach of the Freedom of Information Law (Public Officers Law, art 6). A subsidiary question treats with the exemption the statute provides for matters constituting an unwarranted invasion of privacy (Public Officers Law, § 87, subd 2, par [b]).

The controversy out of which this case arose began when a staff writer for the Ossining Citizen Register, a subsidiary of petitioner Westchester Rockland Newspapers, called upon the chief of the volunteer fire department of the Village of Ossining and the heads of its fire companies for access to the records of a public lottery sponsored by the department. The chief of the department forwarded the inquiry to the village, whose records access officer denied the request on the ground that the department’s fund-raising activities were not related to its fire-fighting functions and thus not within the embrace of article 6. There then ensued an unsuccessful administrative appeal to the village’s corporation counsel, who raised the further objection that, since part of the proceeds of the lottery were disbursed to the families of needy or deceased firemen, disclosure would invade their privacy.

There followed this suit, styled as an article 78 proceeding against the records access officer and the Mayor and trustees of the village. In their opposing petition, the respondents not only reiterated the reasons they already had advanced for refusing to open the records but added that these were then no longer in their custody and control, but in that of the District Attorney of Westchester County; it appears that the latter’s possession was incident to an investigation of what all parties concede was the lottery’s violation of article 225 of the Penal Law. In due course, Special Term handed down its decision granting inspection, but effective as of the time the District Attorney returned the records to the village. Moreover, the order contained an exception. It permitted the village, before making the records available to the public, to delete details which would identify those who had received any of the funds on the basis of economic need. On cross appeals, the Appellate Division has since modified the order by removing the duty of deletion from the village and placing it in the hands of Special Term, where it was to be carried out in camera. On the appeal to us, taken by the village officials alone, we see no reason to disturb the amended disposition. Our reasons follow.

We begin by rejecting respondents’ contention that, in applying the Freedom of Information Law, a distinction is to be made between a volunteer organization on which a local government relies for the performance of an essential public service, as is true of the fire department here, and on the other hand, an organic arm of government, when that is the channel through which such services are delivered. Key is the Legislature’s own unmistakably broad declaration that, "[a]s state and local government services increase and public problems become more sophisticated and complex and therefore harder to solve, and with the resultant increase in revenues and expenditures, it is incumbent upon the state and its localities to extend public accountability wherever and whenever feasible” (emphasis added; Public Officers Law, § 84).

True, the Legislature, in separately delineating the powers and duties of volunteer fire departments, for example, has nowhere included an obligation comparable to that spelled out in the Freedom of Information statute (see Village Law, art 10; see, also, 39 NY Jur, Municipal Corporations, §§ 560-588). But, absent a provision exempting volunteer fire departments from the reach of article 6 — and there is none — we attach no significance to the fact that these or other particular agencies, regular or volunteer, are not expressly included. For the successful implementation of the policies motivating the enactment of the Freedom of Information Law centers on goals as broad as the achievement of a more informed electorate and a more responsible and responsive officialdom. By their very nature such objectives cannot hope to be attained unless the measures taken to bring them about permeate the body politic to a point where they become the rule rather than the exception. The phrase "public accountability wherever and whenever feasible” therefore merely punctuates with explicitness what in any event is implicit.

Further light is cast on this question by the all-encompassing definition of what constitutes a governmental arm within the context of the statute. In this connection, subdivision 3 of section 86 of the Public Officers Law includes "any state or municipal department, board, bureau, division, commission, committee, public authority, public corporation, council, office or other governmental entity performing a governmental or proprietary function for the state or any one or more municipalities thereof’.

The village officials nonetheless insist that, because the fire department engages in both governmental and private activities, the records of its nongovernmental functions in any event are unavailable to Freedom of Information requestors. Further examination of the statute readily refutes that notion.

As presently constituted, article 6 declares all agency records open to the public unless they fall within one of eight categories of exemptions (Public Officers Law, § 87, subd 2). Thus, in contrast to earlier versions of the statute, the burden of demonstrating that the material requested is exempt now falls squarely on the shoulders of the one who asserts it (Matter of Fink v Lefkowitz, 47 NY2d 567, 571). Put another way, in the absence of specific statutory protection for the requested material, the Freedom of Information Law compels disclosure, not concealment.

So measured, we first note that none of the enumerated exemptions are availing: No State or Federal statute specifically exempts the records from disclosure; there is no danger of impairment of contract awards or collective bargaining negotiations; they are not trade secrets; they were not compiled for law enforcement purposes; their disclosure would not endanger the life or safety of any person; they are not inter- or intra-agency materials of the type specified in section 87; and they are not examination questions or answers. And, beyond such information as identifies the recipients of lottery funds as economically needy — data which petitioner no longer argues should be released — the "unwarranted invasion of personal privacy” exemption is not challenged.

Nor has the village pointed to anything in the balance of the statute to support its nongovernmental function theory. The statutory definition of "record” makes nothing turn on the purpose for which a document was produced or the function to which it relates. This conclusion accords with the spirit as well as the letter of the statute. For not only are the expanding boundaries of governmental activity increasingly difficult to draw, but in perception, if not in actuality, there is bound to be considerable crossover between governmental and nongovernmental activities, especially where both are carried on by the same person or persons. The present case provides its own illustration. If we were to assume that a lottery and fire fighting were genetically separate and distinct activities, at what point, if at all, do we divorce the impact of the fact that the lottery is sponsored by the fire department from its success in soliciting subscriptions from the public? How often does the taxpayer-lottery participant view his purchase as his "tax” for the voluntary public service of safeguarding his or her home from fire? And what of the effect on confidence in government when this fund-raising effort, though seemingly an extracurricular event, ran afoul of our penal law?

Having thus dissolved the governmental versus nongovernmental dichotomy the respondents urged upon us, we turn our attention to the village’s insistence that the proceeding should have been dismissed because the records were in the possession of the District Attorney and not of either the village or its volunteer fire department. But, temporary possession in another does not necessarily oust a permanent possessor of the control which would make it subject to the responsibilities imposed by the Freedom of Information Law (cf., e.g., 3 Powell, Real Property, par 428 [rights of licensor in property subject to license at will]; 5 NY Jur, Bailment [rev], §§ 33, 34 [rights of bailor in bailed property]). Without more, here the village’s admission that it expected the return of the records fully justifies the prospective aspect of Special Term’s order, granting petitioner a right of inspection upon their retransfer to the village’s custody. Even if the same law were applicable, this case would be distinguishable from Kissinger v Reporters Committee (445 US 136), in which the agency had permanently surrendered control over its records and had no reason to expect their return.

Finally, we comment on the direction that Special Term conduct an in camera hearing to excise privacy impinging references to needy recipients of the lottery funds. This presents no new problem. Though the Freedom of Information Law specifies no procedures for implementing its guarantees, decisional law has repeatedly acknowledged the efficacy of this technique in appropriate circumstances (see Matter of Fink v Lefkowitz, 47 NY2d 567; Church of Scientology v State of New York, 46 NY2d 906; Matter of Westchester Rockland Newspapers v Mosczydlowski, 58 AD2d 234). Specifically, we find no abuse of discretion as a matter of law in withholding the prerogative of deletion from the village. It had its opportunity to do so before the commencement of this litigation, but refused, and it was well within the discretion of the Appellate Division to order the sensitive references to be deleted in as cool and uncontentious an atmosphere as possible.

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

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

Order affirmed.

      . This is the wording of the present version of the statute, which, though not in effect at the inception of suit, is now controlling (see Matter of Doolan v Board of Coop. Educational Servs., 2d Supervisory Dist. of Suffolk County, 48 NY2d 341, 344, n 1). However, the definition has been broad from the beginning (see former § 87 of L 1974, ch 578).

      . Until its revision in 1977, the statute merely listed specific kinds of documents that agencies were affirmatively required to disclose (see former Public Officers Law, § 88, repealed L 1977, ch 933, § 1). Among these was one relating to records made available to the public by any other provision of law (former Public Officers Law, § 88; subd 1, par i). At Special Term petitioner placed particular emphasis on this provision, citing section 51 of the General Municipal Law to establish an independent right to disclosure.

      . Subdivision 4 of section 86 of the Public Officers Law reads: "4. 'Record’ means any information kept, held, filed, produced or reproduced by, with or for an agency or the state legislature, in any physical form whatsoever including, but not limited to, reports, statements, examinations, memoranda, opinions, folders, files, books, manuals, pamphlets, forms, papers, designs, drawings, maps, photos, letters, microfilms, computer tapes, or discs, rules, regulations or codes.”

      . The respondents’ brief makes no point of the distinction between possession of records by the village and possession by the fire department (see Village Law, § 10-1008). We therefore treat the two entities as one for the purposes of access under the Freedom of Information Law.