text:
    In the Matter of Gilbert Derle, Appellant-Respondent, v North Bellmore Union Free School District, Respondent-Appellant.
    Argued February 12, 1991;
    decided March 27, 1991

      POINTS OF COUNSEL

      Richard A. Shane and James R. Sandner for appellant-respondent.

      William H. Englander and Peter G. Albert for respondent-appellant.

      Jay Worona and Joseph B. Porter for New York State School Boards Association, Inc., amicus curiae.

   OPINION OF THE COURT

Per Curiam.

Gilbert Derle was for more than 30 years a tenured teacher in the North Bellmore School District. In November of 1984, the District’s Board of Education charged Derle with misconduct and he requested a hearing on these charges pursuant to Education Law § 3020-a. Derle ultimately resigned from the District. On this appeal, we consider whether Derle’s request for an adjournment of the hearing pending the disposition of parallel criminal charges effectively disqualified him from receiving his pay during the nine months between the adjournment request and the effective date of his resignation. Based on our decision in Matter of Jerry v Board of Educ. (35 NY2d 534), we hold that the District had no authority to suspend payments during the period in question.

Derle joined the North Bellmore School District in 1952. In addition to serving as a teacher, Derle was also an assistant principal and later the principal of one of the District’s elementary schools. On November 13, 1984, Derle was notified that the District’s Board of Education had determined that probable cause existed to charge him with misconduct (see, Education Law § 3020-a [2]). Derle duly requested a hearing on the charges and the hearing was scheduled for March 21, 1985. In February of 1985, Derle was arrested by Nassau County Police and was charged with three counts of sexual abuse in the second degree (Penal Law § 130.60) and three counts of endangering the welfare of a child (Penal Law § 260.10). Derle entered a plea of not guilty to these charges. The criminal prosecution and the section 3020-a charges involved the same allegations of misconduct.

On March 6, 1985, Derle made a motion for adjournment of the section 3020-a hearing pending the determination of the criminal charges. In the affirmation accompanying Derle’s notice of motion, his attorney argued that Derle’s right to defend himself and his privilege against self-incrimination would be compromised if he were forced to proceed with the section 3020-a hearing. On March 21, the parties argued the merits of this motion. The panel took the motion under advisement, and, in a written opinion dated April 12, 1985, granted the motion for an adjournment. The panel chairman noted that it was "conceivable that what takes place in that administrative hearing could have an influence on his [Derle’s] ability to utilize all avenues of defense available to him in a criminal proceeding.” The chairman also noted that precedent in this area weighed in favor of granting the adjournment. The District had given Derle his final paycheck on March 22, 1985 and thereafter ceased making any salary payments.

On August 11, 1985, the panel reversed itself and ordered the hearing reopened, based in part upon its review of a recent decision from the Commissioner of Education denying adjournment under circumstances similar to those present in the Derle case. The hearing was never held, however, and the parties entered into a settlement agreement in November that provided for Derle’s resignation effective December 15, 1985.

In the meantime, by service of a supplemental notice of petition and amended verified petition dated May 1, 1985, Derle commenced a CPLR article 78 proceeding seeking reinstatement of his salary with full back pay and benefits retroactive to March 21, 1985, and an order declaring the District’s action in cutting off his salary and benefits null and void. Supreme Court, Nassau County, dismissed the petition and Derle appealed to the Appellate Division. On November 2, 1987, the Appellate Division modified, with two Justices dissenting in part, remanding the matter to the Supreme Court for a new determination regarding Derle’s entitlement to salary and benefits for the period between August 11, 1985 and December 15, 1985, and as so modified, affirmed (134 AD2d 257). Derle’s appeal to this Court as of right based on the double dissent in the Appellate Division (see, CPLR 5601 [a]) was dismissed sua sponte for lack of finality (71 NY2d 890).

Thereafter, Derle moved the Supreme Court for salary and benefits for the period between August 11, 1985 and December 15, 1985. Supreme Court subsequently dismissed Derle’s application for salary and benefits for that period and Derle again appealed to the Appellate Division. On February 5, 1990, the Appellate Division reversed, holding that the petitioner was entitled to salary and benefits for that four-month period. The Appellate Division noted that there was no evidence that Derle was responsible for any delay in reconvening the hearing after August 11, 1985, and thus there was no basis for denying him salary and benefits for that period (158 AD2d 456, 457). Derle appeals from the February 5, 1990 Appellate Division order to bring up for review that portion of the prior nonfinal November 2, 1987 order that denied him salary and benefits for the period between March 21, 1985 and August 11, 1985. The District cross-appeals from the February 5, 1990 order.

In Jerry (supra) we held that Education Law § 3020-a, as worded at that time, did not authorize the withholding of a teacher’s pay during a period of suspension. "Compensation is a matter of such substantive right on the part of the teacher that we conclude that it cannot be taken away from him except pursuant to explicit statutory authorization.” (Id., at 541-542; see also, Matter of Adlerstein v Board of Educ., 64 NY2d 90, 98.) In the intervening 16 years, the Legislature has not amended the Education Law to authorize school districts to withhold compensation from suspended teachers pending final determination of charges in a section 3020-a hearing. For that reason, our reasoning in Jerry has no less force today than it did in 1974. Derle was entitled to compensation for the entire period at issue on this appeal because the District had no authority to withhold his pay pending the outcome of the hearing. Again, as in Jerry, we must leave it to the Legislature to determine whether the Education Law should be amended in such a way as to grant local school districts the authority they currently lack.

Despite Jerry, the District argues that Derle is not entitled to compensation because he occasioned the delay by requesting an adjournment of the section 3020-a hearing pending the disposition of the criminal charges against him. In support of its argument, the District cites Matter of Belluardo v Board of Educ. (68 AD2d 887), in which the Appellate Division held that "[i]f the teacher obstructs the proceedings, or obtains frivolous adjournments in bad faith, then he will forfeit his salary for the period of the delay”. Even under the Belluardo standard, however, Derle would be entitled to compensation, because there is absolutely no evidence in the record that he engaged in obstructionist conduct or acted in bad faith when he requested an adjournment of the hearing. At the time that the request was made, there was legal precedent supporting Derle’s position (see, e.g., Corodimas v Ralston, 76 Civ 426, [ND NY, Nov. 4, 1976, Foley, J.]). Although the Commissioner of Education later held that the adjournment of a section 3020-a hearing is not required when parallel criminal proceedings are underway (see, Matter of Board of Educ. [Avino], 24 Ed Dept Rep 466), this decision in a wholly separate case in no way establishes that Derle’s request to adjourn the hearing in his own case was a bad-faith attempt to obstruct the hearing process. That the panel chair found good cause to adjourn the hearing sine die (see, 8 NYCRR 82.11 [c]) buttresses Derle’s contention that he did not act frivolously in requesting the adjournment.

Because we hold that the District was not empowered to withhold compensation from Derle pending the final determination of the charges against him in the section 3020-a hearing, we need not consider the issue of whether the superintendent, acting alone and without the authority of the Board of Education, could properly terminate Derle’s salary payments. Accordingly, the order of the Appellate Division appealed from and the order of the Appellate Division brought up for review should be modified in accordance with this opinion, and, as so modified, affirmed, with costs to petitioner.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur in Per Curiam opinion.

Order of the Appellate Division appealed from and order of the Appellate Division brought up for review modified, etc.


source: Caselaw Access Project

author: Bellacosa, J. Kaye, J.

license: Public Domain

text:
    Pearce, Urstadt, Mayer & Greer Realty Corp., Respondent, v Atrium Development Associates et al., Defendants, and Vlastimil Koubek, Appellant.
    Argued February 5, 1991;
    decided March 27, 1991

      POINTS OF COUNSEL

      Douglas B. Mishkin and Warren K. Kaplan, of the District of Columbia Bar, admitted pro hoc vice, and Susan L. Sommer for appellant.

      Mark L. Kalish for respondent.
   OPINION OF THE COURT

Bellacosa, J.

Plaintiff Pearce, Urstadt, Mayer & Greer Realty Corp. (PUMG) procured a construction loan commitment for defendant Atrium Development Associates (Atrium) and now sues to recover its claimed brokerage commission. PUMG argues that Atrium’s abandonment of the entire development project and consequent failure to close on the loan commitment because it did not need the proceeds constituted a "willful default” within the meaning of the brokerage agreement between them and that this triggered PUMG’s entitlement to its quarter of a million dollar commission. We hold that PUMG should not have been granted summary judgment because issues of fact exist which require a trial. Thus, the order of the Appellate Division should be reversed.

Atrium is a Virginia partnership which was formed in 1983 to purchase a nine-acre parcel of vacant land in Henrico County, Virginia, and to construct a five-story office and retail building on the site. PUMG was retained to arrange financing for the project. Atrium purchased the parcel in 1983 for $1.5 million and the construction cost of the project was originally estimated at $11.5 million.

On April 24, 1984, the parties executed a loan brokerage agreement which authorized PUMG to negotiate a $15 million loan commitment to Atrium from Carteret Savings and Loan Association, F.A. (Carteret). Paragraph 1 of the agreement provided that PUMG waived its claim to any commission if "such commitment fails to be executed by all parties and delivered, or if such commitment is executed and delivered and the initial disbursement thereunder fails actually to be delivered, received and accepted in accordance with the terms of such commitment for any reason whatsoever, except the willful default of Atrium” (emphasis added). In paragraph 2, PUMG agreed to the \Vi% commission ($225,000) "[i]f and only in the event that the Loan closes and the initial disbursement thereunder is actually delivered, received and accepted in accordance with the terms of such commitment”. On October 2, 1984, PUMG and Atrium confirmed their brokerage agreement in a second document which repeated and continued these provisions.

By letter dated July 19, 1984, Carteret issued its conditional commitment to lend $13.5 million to Atrium. Atrium accepted the commitment on August 21, 1984 and forwarded a deposit check in the amount of $150,000 to Carteret. The commitment letter was amended on September 12, 1984 to increase the construction loan amount to $14.25 million and to require that the over-all construction budget be under $15.75 million; otherwise, Carteret reserved the right to require additional security.

Revised estimates of the cost of the construction project revealed that the project could not be built within budget and Atrium decided, apparently for business and finance reasons, to abandon it entirely. The need for financing having evaporated, Atrium did not close on the Carteret loan commitment, forfeited the $150,000 deposit, and refused to pay PUMG a brokerage commission. This lawsuit followed.

PUMG emphasizes as the pivotal allegation that Atrium "willfully defaulted” under the terms of the brokerage agreement. The trial court’s grant of summary judgment to PUMG sprang from its acceptance of that approach and a conclusion that Atrium’s decision not to proceed with the project was a voluntary act, constituting a "willful default” within the meaning of the brokerage agreement. The Appellate Division affirmed and this Court granted leave to appeal. Our reversal and denial of summary judgment are premised on discernible issues of fact regarding the import and effect of key, interrelated provisions and terminology in this brokerage agreement.

PUMG contends that it earned its commission as soon as it did what Atrium retained it to do: procure a loan commitment which Atrium accepted. An initial hitch, as PUMG concedes, is that the brokerage agreement does not state that PUMG’s commission would be earned simply upon execution, delivery and acceptance of a loan commitment (compare, Midland Mortgagee Corp. v Kazarnovsky, 128 AD2d 595).

On the contrary, the brokerage agreement can be interpreted as imposing certain conditions on PUMG’s entitlement to a commission, even after execution and acceptance of the commitment. Paragraph 2 of the brokerage agreement — containing all the brokerage commission terms — provides in specific and restrictive language that PUMG will "accept” its commission '[i]f and only in the event that the Loan closes and the initial disbursement thereunder” is made (emphasis added). This language suggests that PUMG’s entitlement to its commission was conditioned on closing the loan and making an initial disbursement — events which did not occur here.

PUMG counters that the language in paragraph 2 merely states when its commission is payable, and that paragraph 1 of the brokerage agreement — which on its face purports to deal only with waiver of, not entitlement to, the commission— fixes its entitlement to a commission. Thus, PUMG argues that its commission was earned and must be paid because it procured a commitment which Atrium accepted but "the initial disbursement under the commitment [was] not delivered, received or accepted” due to Atrium’s "willful default”. PUMG’s argument, however, highlights the ambiguity of the language in the two key paragraphs of the agreement under analysis. Even assuming Atrium’s actions could be deemed a "willful default” within the meaning and usage of that clause in paragraph 1, the loan did not close and the terms of the commission referred to in paragraph 2, which was keyed to the closing of the loan, were not triggered with the kind of certainty and clarity necessary to support a grant of summary judgment. To enjoy that substantial procedural advantage and remedy, the sophisticated parties here, both of them, could surely have specified the timing sequences and events applicable to the earning and the payment of PUMG’s commission more plainly and certainly. Taken in its entirety with its related yet unsynchronized provisions, this brokerage agreement does not unambiguously resolve the lawsuit and the question, within a summary judgment framework, of when PUMG would earn its commission.

Further assuming, as did the lower courts, that the closing of the loan was not a condition of PUMG’s entitlement to an earned commission, we cannot jump to the further conclusion on this record that Atrium’s actions constituted a willful "default” as a matter of law and as that term is used in this brokerage agreement. In Graff v Billet (64 NY2d 899), we construed a similar key phrase in a lawsuit to recover a commission under an agreement which provided that the real estate broker’s commission from the seller was due and payable when title passed, except for willful default. We held that the seller’s refusal to enter into a sales contract with a prospective buyer produced by the real estate broker was not a default within the meaning of the commission agreement because the agreement did not legally commit the seller to enter into a sales contract.

Atrium argues, paralleling the Graff rationale, that as a matter of law prospective borrowers — in this case, Atrium— cannot be charged with "defaulting” from loan "commitments” that do not obligate them to borrow and are unilateral in their juridical nature and effect until a loan closing occurs. Atrium contends that the willful default provision in its brokerage agreement with PUMG, by its usual commercial sense and intendment, applied only in the event the loan commitment PUMG eventually obtained for Atrium obligated Atrium to proceed with the loan. The loan commitment from Carteret did not; therefore, "default” from a nonexistent legal obligation in this context is an alien notion.

We are thus presented here with a seemingly a fortiori application of the principle of Graff with respect to a distinct commercial transaction. However, we emphasize that our ruling and rationale in favor of appellant Atrium does not adopt its broad argument in the abstract. That approach could render properly and plainly used willful default provisions essentially meaningless and write them out of negotiated contracts. This courts should not do. It is important to note that we are not doing that in the context of this case because the inoperability of the default clause here — at least as a matter of law in favor of PUMG — flows from the unusual combination of terms the parties used in the two key provisions of their negotiated agreement. In order for the word "default” to carry meaning and consequences as a commercial transaction term of art, greater clarity reflecting the intent of the contracting parties is required. The significant procedural advantage sought and achieved in the lower courts in this case — summary judgment — was not earned under the terms of this agreement.

Accordingly, the order of the Appellate Division should be reversed, with costs, and plaintiff’s motion for summary judgment denied.

Kaye, J.

(dissenting). The majority concludes that ambiguities in the brokerage agreement make summary judgment inappropriate in this suit by a loan broker to recover its commission. In that any ambiguity in the brokerage agreement is unnecessarily created by the majority’s interpretation of the contract — an interpretation contrary to established principles of contract law — I dissent.

The first paragraph of the brokerage agreement provides that

"[i]n the event such commitment fails to be executed by all parties and delivered, or if such commitment is executed and delivered and the initial disbursement thereunder fails actually to be delivered, received and accepted in accordance with the terms of such commitment for any reason whatsoever, except the willful default of Atrium, then and in that event the undersigned will waive, and does hereby waive, all claim or demand, in law or in equity, for any commission whatsoever in connection with such commitment, the Loan and all negotiations prior thereto.”

The second paragraph states that "[i]f and only in the event that the Loan closes and the initial disbursement thereunder is actually delivered, received and accepted in accordance with the terms of such commitment, then, and in that event the undersigned does hereby agree to accept a commission [of $225,000] * * * payable as follows [$125,000 on the date the loan closes and $100,000 on August 31, 1985].”

The broker argues that the first paragraph of the agreement sets out when the commission is earned and the second when it is paid. Clearly this is what the agreement says: the first paragraph deals with legal rights and conditions precedent to entitlement — including the provision that no commission is earned if funds are not taken down, unless Atrium willfully defaults — while the second paragraph refers to time and other details of payment.

The majority concludes that the second paragraph may reasonably be read as revisiting the ground covered by the first, but providing for different rights and liabilities, thereby creating an inconsistency between the two provisions. The "unsychronized” provisions thus make the willful default clause "inoperable” (majority opn, at 494, 495).

But reading the agreement as a single integrated contract and giving effect to all its provisions — as we are obliged to do —we cannot and should not accept an interpretation that ignores the interplay of the terms, renders certain terms "inoperable,” and creates a conflict where one need not exist (see, Chimart Assocs. v Paul, 66 NY2d 570, 573; Williams Press v State of New York, 37 NY2d 434, 440).

Atrium argues that ambiguity exists — if at all — only with respect to the meaning of "willful default,” analogizing this case to Graff v Billet (64 NY2d 899). In Graff, this Court held that, until a sales contract was executed, a seller could not "willfully default” under a real estate brokerage agreement that provided that the broker earned its commission when title passed. Mere failure of the seller to enter into a sales contract could not be a "willful default” as that term was used in the brokerage agreement. Although the term "willful default” was susceptible of different interpretations, we resolved any ambiguity against the broker/drafter and granted summary judgment to the seller.

The Graff rule obviously cannot be mechanically applied to a loan brokerage agreement. As exemplified by this case, in loan brokerage agreements (unlike real estate brokerage agreements) there is no sales contract specifying the details of a closing that will take place in the future; the commitment letter itself contains such details. Here, for example, the commitment letter was signed by both parties, required a $150,000 down payment from Atrium, and obligated Carteret to lend $14.25 million, with closing to take place within 60 days. In addition, Atrium settled a subsequent lawsuit brought by Carteret for miscellaneous closing costs incurred by the lender..

The commitment letter thus may be analogized to the sales contract, placing the transaction in a "legally recognizable form” (Graff v Billet, 101 AD2d 355, 356, affd 64 NY2d 899, supra). Just as signing a sales contract in Graff was the threshold legal requirement that could trigger a "willful default” by the seller, so execution of the commitment letter is the equivalent event in the lender/borrower context.

A broker ordinarily earns its commission when the ready, willing and able lender delivers a commitment letter to the borrower — unless the parties vary that rule (see, Dubin We ston, Inc. v Capano & Sons, 394 F Supp 146, 154 [DC Del]). Here the parties did reach a different agreement: the commission was not to be earned until the money was taken down, until title to the funds actually passed. That would be the entire agreement if the "willful default” language had not been adopted. Instead, the parties inserted that term to establish a point in the transaction when the borrower could not willfully refuse to proceed without being obligated to pay the broker. Upon signing the commitment letter, paying the consideration, and locking in the right to borrow, Atrium obligated itself to pay the broker if it closed or if it willfully refused to close. Any other interpretation of the contract would render the "willful default” language utterly meaningless.

In Graff, the "willful default” language of the agreement was strictly construed against the broker/drafter, and summary judgment awarded to the seller. Here, where Atrium— not the broker — drafted the loan brokerage agreement, there is no reason again to read the "willful default” language strictly against the broker. As Graff is now even further extended beyond real estate agreements to loan commitments, this Court’s message is plain: brokers should know that commission agreements will be read very strictly against them, whether or not they are the drafters. This is a message to be heeded at the time of contracting, if they are to have any hope of enforcing their bargains and collecting their commissions.

I would affirm the Appellate Division order granting summary judgment to the broker. As both the trial court and Appellate Division concluded, clearly this broker earned its commission.

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

Order reversed, etc.


author: Bellacosa, J.

text:
    The People of the State of New York ex rel. Leroy Strachan, Appellant, v Joseph Colon, as Warden of the Manhattan House of Detention, Respondent.
    Argued February 12, 1991;
    decided April 4, 1991

      POINTS OF COUNSEL

      William M. Kunstler and Ronald L. Kuby for appellant.

      Robert M. Morgenthau, District Attorney (Alex V. Hernandez and Donald J. Siewert of counsel), for respondent.
   OPINION OF THE COURT

Bellacosa, J.

Leroy Strachan was indicted in March 1990 by the State of Florida for murder in the first degree, a capital offense, for the killing of Police Officer John Milledge in Miami in 1946. At the time of the crime, Strachan was 17 years of age. In March 1990, the Governor of Florida requested that Strachan be extradited from New York to Florida for trial. New York’s Governor executed the extradition order in April 1990 and Strachan turned to the courts of New York for habeas corpus relief.

Milledge was shot and killed by a single rifle bullet in the neck while on duty outside a football stadium in Miami. It is conceded that Strachan was in Miami the day of the killing. The next day he went to New York City to stay with family and has lived in New York under his true name since then. He has been employed, paid taxes and raised a family; he has returned to visit relatives living in Miami on several occasions. Although he immediately became a suspect in the 1946 murder and the Miami police possessed information that he had gone to New York, the Florida authorities made no effort to locate or pursue him. The homicide investigation was eventually closed as an unsolved case. It was reopened in July 1989 after someone telephoned Miami police with information about the murder. The caller subsequently gave Florida police a sworn statement in August 1989 about her observations the night of the murder. Miami police thereafter located and met with Strachan in New York, where he gave them a taped statement admitting he had shot the officer in Miami and had moved to New York the next day.

Strachan was arrested in New York on February 15, 1990 and has been held since then without bail on a fugitive warrant issued by a Florida court. Strachan’s petition for a writ of habeas corpus was dismissed without a hearing, and the Appellate Division unanimously affirmed and then granted leave to appeal to our Court. We now also affirm and agree that Strachan is not entitled to habeas corpus relief in these circumstances.

Strachan argues that extradition for trial in Florida will deny him due process of law because of the unreasonable 44-year preindictment delay; that he is not a fugitive from justice; and that his case constitutes "most unusual circumstances” as contemplated by People ex rel. Little v Ciuros (44 NY2d 825, 826), entitling him at least to a hearing in New York State so he can raise his constitutional claims before he is extradited out of its protective domain.

Extradition is mandated by the Federal Constitution (US Const, art IV, § 2, cl 2), Federal statute (18 USC § 3182), and State law (CPL 570.06). The explicit language of the Extradition Clause furthers its intended purpose to enable the several States to try offenders in the respective States where alleged offenses are committed (Puerto Rico v Branstad, 483 US 219, 226-227; Michigan v Doran, 439 US 282, 287; Biddinger v Commissioner of Police, 245 US 128, 132), and "to preclude any state from becoming a sanctuary for fugitives from justice of another state” (Michigan v Doran, supra, at 287; Biddinger v Commissioner of Police, supra, at 132-133).

It is also well established that once the Governor of an asylum State has directed extradition, "a court considering release on habeas corpus can do no more than decide (a) whether the extradition documents on their face are in order; (b) whether the petitioner has been charged with a crime in the demanding state; (c) whether the petitioner is the person named in the request for extradition; and (d) whether the petitioner is a fugitive.” (Michigan v Doran, 439 US, supra, at 289 [emphasis added]; see also, California v Superior Ct., 482 US 400, 408; Hyatt v People ex rel. Corkran, 188 US 691; Roberts v Reilly, 116 US 80, 95; People ex rel. Neufeld v Commissioner of N. Y. City Dept. of Correction, 71 NY2d 881, affg on opn below 132 AD2d 720, 721; People ex rel. Higley v Millspaw, 281 NY 441, 445.)

Strachan’s central challenge to the satisfaction of these requirements is that he did not "flee from justice” and, therefore, is not a "fugitive from justice” within the constitutional meaning of the Extradition Clause. He essentially contends that he is not a fugitive because no criminal charges were lodged against him at the time he left Florida in 1946 and Florida authorities did not pursue him or charge him with this crime for the next 44 years.

A fugitive from justice is " 'a person who commits a crime within a state, and withdraws * * * from such jurisdiction without waiting to abide the consequences’ ” (People ex rel. Higley v Millspaw, 281 NY, supra, at 446 [cite omitted]; see also, Hogan v O’Neill, 255 US 52, 56; Strassheim v Daily, 221 US 280, 285). The United States Supreme Court has declared that a fugitive from justice need not have departed from the demanding State "after an indictment * * * or for the purpose of avoiding a prosecution”; the simple requirement is that the accused, having committed a crime in a demanding State, is present in an asylum State when a demanding State seeks to prosecute the offense (Roberts v Reilly, 116 US, supra, at 97; People v Hinton, 40 NY2d 345, 350). This requirement "has nothing to do with the defendant’s state of mind at the time he departed” (id., at 350) and "it does not matter what motive induced the departure.” (Drew v Thaw, 235 US 432, 439.)

The constitutional, statutory and precedential requirements in this respect are met here: Strachan is accused of a crime in Florida; he concedes he was in Florida at the time the crime charged was committed; he left Florida after the crime; he was found in this State when prosecution was sought. That he had not been charged with this crime at the time of his departure and was not sought by Florida officials for 44 years while he lived openly in this State does not diminish his fugitive status as that term of art is used in extradition jurisprudence. While Strachan is entitled in the asylum State courts to challenge the Governor’s rendition warrant on the grounds he is not a fugitive (California v Superior Ct., 482 US, supra, at 408), he has not overcome the unequivocal, documented proof that he is a fugitive.

Strachan also strongly pleads that the 44-year preindictment delay by the State of Florida will deprive him of due process if he is extradited for trial in Florida. This constitutional assertion may not be raised within the limited scope of the extradition proceeding in this asylum State (People ex rel. Little v Ciuros, 44 NY2d, supra, at 826). We have stated the rule that in "all but the most unusual circumstances such prospective claims may not be invoked in an asylum State for the purpose of preventing extradition, and when faced with such prospective claims the court need not embark upon an inquiry of their validity” (id. [cite omitted]; see also, California v Superior Ct., 482 US, supra, at 407; Michigan v Doran, 439 US, supra, at 288, 290; Biddinger v Commissioner of Police, 245 US, supra, at 135). New York courts may not prognosticate whether courts in sibling States will deprive an extraditee of due process in these circumstances. These prospective challenges "are left to the prosecutorial authorities and courts of the demanding State, whose duty it is to justly enforce the demanding State’s criminal law — subject, of course, to the limitations imposed by the Constitution and laws of the United States.” (California v Superior Ct., 482 US, supra, at 408, citing Biddinger v Commissioner of Police, 245 US 128, 135, supra; Drew v Thaw, 235 US, supra, at 440.) We conclude that this case does not qualify for the "most unusual circumstances” exception for a judicial hearing of an extraditee’s prospective constitutional claims (People ex rel. Little v Ciuros, 44 NY2d, supra, at 826). The courts of an asylum State are obliged, except in the rarest, most egregious circumstance, to respect the due process potentiality and renderings of other demanding States, just as asylum States would expect reciprocal respect if the roles were reversed.

Significantly, Strachan has not submitted any "factual affidavits reflecting clear evidence that gross irreparable harm would result if the petition is denied” or that "effective access to State and Federal courts in the demanding State would not be available.” (People ex rel. Little v Ciuros, supra, at 827; see also, People ex rel. Neufeld v Commissioner of N. Y. City Dept. of Correction, 71 NY2d, supra, at 885 [concurring opn].) It is the sheerest speculation to conclude Strachan will not receive fair and due process consideration with respect to all his claims, including his argument of unparalleled preindictment delay. He is required, therefore, to raise these claims and defenses in the courts of Florida "where all parties may be heard, where all pertinent testimony will be readily available and where suitable relief, if any is necessary, may be fashioned.” (Sweeney v Woodall, 344 US 86, 90.) Otherwise the sanctuary of an asylum State may also promote invidious forum shopping among States offering more generous or different constitutional interpretations. This, too, should not be encouraged in this extradition field of law.

We agree with the courts below that in this case the "Governor’s failure to conduct a formal hearing prior to authorizing the extradition of [Strachan] does not constitute a due process violation” (see, People ex rel. Neufeld v Commissioner of N. Y. City Dept. of Correction, 132 AD2d 720, 721, affd on opn at App Div 71 NY2d 881, supra, citing People ex rel. Morris v McGrath, 23 NY2d 703). That a capital offense is charged by the demanding State does not by itself mandate a hearing where there is no record evidence indicating that an "irreparable miscarriage of justice would result from the denial of the petition” (id.). In allowing Strachan to be delivered to the authorities of a sibling State, we are "simply returning him to be tried, still under the protection of the Federal Constitution but in the manner provided by the State against the laws of which it is charged that he has offended.” (Biddinger v Commissioner of Police, 245 US, supra, at 133.)

Some of the circumstances surrounding this case may be characterized as sympathetic, but Strachan’s speculations about political motivations for his prosecution and extradition are no substitute for well-settled and well-applied principles of law considered in the context of a record consisting only of evidence. For reasons of comity and of constitutional and statutory mandate, an asylum court cannot arrogate jurisdiction to itself to decide an extraditee’s claims of this nature (California v Superior Ct., 482 US, supra, at 412; Drew v Thaw, 235 US, supra, at 439-440; People ex rel. Higley v Millspaw, 281 NY, supra, at 445).

Accordingly, the order of the Appellate Division should be affirmed, without costs. This determination shall not take effect for 10 days.

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

Order affirmed, without costs. The stay in existence is continued until April 14, 1991, the date on which the remittitur of this Court shall issue.


author: Alexander, J.

text:
    In the Matter of Gregory Antonsen, Respondent, v Benjamin Ward, as Police Commissioner of the Police Department of the City of New York, et al., Appellants.
    Argued February 5, 1991;
    decided March 26, 1991

      POINTS OF COUNSEL

      Victor A. Kovner, Corporation Counsel (Fred Kolikoff and Larry A. Sonnenshein Of counsel), for appellants.

      Ira Cure and Thomas M. Kennedy for respondent.

      Lawrence Kunin and Sara Toll East for State Division of Human Rights, amicus curiae.

   OPINION OF THE COURT

Alexander, J.

Gregory Antonsen, a probationary police officer, has been dismissed from the New York City Police Department because he has Crohn’s disease. Although the disease is currently in remission, the Police Commissioner contends that because there is a reasonable expectation that the disease will recur, rendering Antonsen unfit to perform the duties of a police officer, his dismissal did not violate the Human Rights Law. The Appellate Division unanimously affirmed Supreme Court’s contrary conclusion granting Antonsen’s petition and directing his reinstatement. We granted leave to appeal to the Police Commissioner and the City of New York (collectively, the Commissioner).

In July 1985, Gregory Antonsen, who then was just short of his 24th birthday, after successfully completing the relevant tests, was appointed to the New York City Police Department and entered the Police Academy. He was graduated from the Academy in December 1985, in the top 5% of his class. In August 1985, while still at the Academy, Antonsen developed abdominal pains and an onset of diarrhea. He was placed on medication but the symptoms persisted although they apparently were not disabling.

Following his graduation from the Police Academy, Anton-sen was assigned to the Neighborhood Stabilization Unit for a six-month period. While a member of this unit he worked out of various precincts throughout New York City as part of his orientation. His duties included foot patrol, during which he engaged in several foot chases of criminals. In one of these chases he subdued an individual who was wielding a knife. He also made a number of felony drug arrests and was rated by his supervising sergeant as a "superb police officer” whose medical condition did not interfere with the performance of his police duties. In July 1986, Antonsen was assigned to regular patrol duties in a South Bronx precinct. He developed pains in his leg and in his side and was hospitalized. He was diagnosed with Crohn’s disease.

Crohn’s disease is a form of inflammation which may affect any part of the gastrointestinal tract. The cause of the disease is unknown and to date, no complete cure has been found. There is record evidence that many of the most common symptoms of the disease — mild diarrhea, abdominal cramps and fever — can be treated with medication as well as through dietary control. Surgical intervention, however, is sometimes indicated.

In August 1986, Antonsen underwent surgery to remove the diseased portion of the small intestine. The surgery was successful. Antonsen was placed on limited duty in September 1986 and returned to full duty on October 1, 1986. He submitted to a routine medical examination administered to all probationary officers as they approach the end of their probation. Upon learning of the recent surgery, the examining physician referred Antonsen’s case to the department’s Health Services Division. On December 24, 1986, Antonsen’s probationary period was extended and he was placed on limited duty pending review of his status.

Dr. Gary Schwartz, a gastroenterologist, examined Antonsen in February 1987. After reviewing Antonsen’s past history, Dr. Schwartz filed a report to the chief surgeon of the Health Services Division noting that Antonsen was not on any medication, appeared fit and healthy, was gaining weight and that with the exception of mild inflammation within the anal canal, appeared to be doing well. Schwartz reported that he had advised Antonsen, however, that he could not predict when and if there would be a recurrence of the disease and that for patients with Antonsen’s medical problem there was a 15-20% recurrence rate. He concluded that "at this time [Antonsen] appears fit and able to be employed.”

However, Dr. Eugene Antelis, a Health Services Division staff surgeon who did not examine Antonsen, recommended that Antonsen be dismissed. This recommendation was based on his review of the hospital record of the 1986 surgery, the report of Dr. Schwartz and Dr. Lawrence Kryle, Antonsen’s treating physician and consultation with three gastroenterologists. These three gastroenterologists were unanimously of the opinion that the disease might recur. Dr. Antelis’ recommendation was accepted and Antonsen was dismissed from the force in May 1987.

Antonsen challenged this dismissal in a CPLR article 78 proceeding and sought reinstatement. In support of his petition Antonsen submitted the results of an examination by Dr. Maurice J. Zimmerman, a gastroenterologist. Dr. Zimmerman found no evidence of recurrent Crohn’s disease and noted that even in the unlikely event there was a recurrence of Anton-sen’s Crohn’s disease, it could be brought under control by medication.

Supreme Court granted the petition to the extent of vacating the determination dismissing Antonsen from the force, remanding the matter to the Commissioner with directions that a physical examination be conducted to determine whether Antonsen has any "physical, mental or medical condition which prevents him from performing the activities of a police officer in a reasonable manner,” and directing that a determination be made de novo as to Antonsen’s appointment to the police force.

Antonsen was thereafter examined by Dr. Ernest R. Pitman, an honorary police surgeon. Although Dr. Pitman found Antonsen’s Crohn’s disease to be in remission and that he was clinically well and able to perform full activity, he recommended that Antonsen not be reinstated because it "seems there is substantial risk of recurrent Crohn’s disease” although "it is impossible to state in an individual case whether a recurrence or not will happen.”

After reviewing Dr. Pitman’s report and Antonsen’s medical records and certain medical literature, the supervising chief surgeon of the Health Services Division, Dr. Robert E. Thomas, recommended that Antonsen not be reappointed. In his recommendation he noted that in one study reported in Cecil, Textbook of Medicine (1982), 50% of the people who underwent surgery similar to Antonsen’s "had exacerbations within five years”, and that in another study conducted by Mt. Sinai School of Medicine, which sought to examine the quality of life of Crohn’s disease patients after surgery, 50% of those whose disease was limited to the small intestine and who underwent resective surgery, had recurrence within 5 to 10 years of their first operations. He also noted a Danish study which he did not specifically identify, that "predicted that up to 20% of the patients would retire, unable to work, within 10 years of disease onset.” Dr. Thomas concluded that there was a substantial risk of recurrence in petitioner’s case because of the presence of inflammation a year after the surgery and because of the type of surgery performed in 1986. He opined that symptoms may recur at any time and that Antonsen may not only become disabled and unable to work, but may also become incapacitated by severe pain and diarrhea. Antonsen was not reinstated and a second article 78 proceeding was commenced.

Supreme Court again ordered Antonsen’s reinstatement with back pay, concluding that the Commissioner’s determination lacked a rational basis since the conclusion that there was a reasonable expectation that Antonsen would be unable to perform the duties of a police officer in the future was based solely upon statistical data that was inconclusive and therefore was purely speculative. Supreme Court found the record "barren of any satisfactory medical evidence to support a reasonable expectation that Antonsen, in light of his particular medical history and present condition, will become unfit to reasonably perform the duties of a police officer”.

In a brief memorandum the Appellate Division unanimously affirmed, stating that "[u]nder the circumstances here present, to deny petitioner his appointment is a violation of his rights” (161 AD2d 378, 379, citing Matter of City of New York v State Div. of Human Rights [Teele], 154 AD2d 56). For the reasons set forth below, we affirm.

We note at the outset that although the police department may terminate a probationary employee without a hearing and without any stated reason, such termination may not be based on reasons prohibited by law (see, Matter of Miller v Ravitch, 60 NY2d 527, 531; Matter of Tálamo v Murphy, 38 NY2d 637, 639). The Human Rights Law (Executive Law § 296 [1] [a]) prohibits an employer from discriminating against an employee or job applicant because of a disability and renders such discrimination unlawful. The statute defines "disability” as a physical or medical impairment, a record of such an impairment or a condition regarded by others as an impairment.

Given this statutory definition, there is no question but that Antonsen suffers from a "disability”. In order to avoid the interdiction of the statute and to constitute a valid basis for refusing to hire a prospective employee or to discharge one already hired, the disability must be such as to "prevent the complainant from performing in a reasonable manner the activities involved in the job or occupation sought or held” (Executive Law § 292 [21]). Thus, it is no longer sufficient, as it was prior to the 1979 amendment to the Executive Law, that the impairment merely be in some way related to the duties the person was required to perform in connection with the position sought (see, Matter of Westinghouse Elec. Corp. v State Div. of Human Rights, 49 NY2d 234; State Div. of Human Rights [Ghee] v County of Monroe, 48 NY2d 727). Rather the test is an "individualized one” pursuant to which it must appear that the employee’s physical condition precludes being reasonably able to perform the duties and activities the position requires, otherwise the disability is irrelevant to the job and can form no basis for denying the employee the position (Matter of Miller v Ravitch, 60 NY2d 527, 532, supra). Put differently, the "particular disability must be such that it prevents the particular individual from performing in a reasonable manner the particular activities involved in the job or occupation before an employer is permitted to terminate the individual employee” (Matter of Miller v Ravitch, supra, at 534 [Jasen, J., concurring]).

At the time of his dismissal Antonsen’s disability did not interfere with his ability to reasonably perform the duties of a police officer. The record clearly shows that all the specific medical information available to the Commissioner established that Antonsen’s Crohn’s disease was in remission and had been since the surgical procedure he underwent in 1986. Each of the doctors who examined him — Dr. Zimmerman, Dr. Schwartz and Dr. Pitman — concluded that he was clinically well and able to perform full activity.

Each doctor who examined Antonsen acknowledged that Crohn’s disease recurs but none could predict whether Anton-sen’s Crohn’s disease would recur. Dr. Zimmerman indicated that there "may be a fifteen to twenty percent recurrence rate within a five to ten year time frame” in patients with this type of disease. However, it was his opinion that in the "unlikely event that [Antonsen’s] Crohn’s disease should recur, it may be brought under control by the use of antibiotics and other treatment”. Dr. Schwartz similarly could not predict whether Antonsen’s Crohn’s disease would recur but also indicated that there was a 15-20% recurrence rate "in patients with his problem”. Although Dr. Pitman found Anton-sen to be "clinically well and able to perform full activity”, he concluded "it seems that there is a substantial risk of recurrent Crohn’s disease in Mr. Gregory Antonsen’s case”. Dr. Pitman’s conclusion apparently was based on statistics taken from an article by Dr. Adrian Greenstein in Bockus, Gastroenterology (4th ed) in which Greenstein "reviewed the subject of post operative recurrence with an extensive list of references.”

The gravamen of the Commissioner’s argument is that because there is a reasonable expectation that Antonsen’s Crohn’s disease will recur, his dismissal was lawful and was consistent with the police department’s medical guideline. This "reasonable expectation” that Antonsen’s Crohn’s disease will recur, however, is based entirely upon various statistical studies that indicate that the rate of recurrence may vary from as low as 13.6% to as high as 50% of patients who have been affected with Crohn’s disease. Moreover, the specific statistical data relied upon by Dr. Pitman and Dr. Thomas, while indicating varying rates of recurrence or exacerbation of Crohn’s disease, offers no support for the conclusion that any such recurrence or exacerbation Antonsen might experience would be debilitating to the extent that he could not reasonably perform the duties of a police officer. Significantly, the Danish report relied upon by Dr. Thomas concluded that there is no difference between patients with Crohn’s disease and individuals in a control group (patients with acute diseases of less than 28 days duration other than Crohn’s disease) in regards to the occurrence of familial problems and the level of recreational, social and employment activity (Sorensen, Olsen & Binder, Life Prospects and Quality of Life in Patients with Crohn’s Disease, 28 Gut 382 [1987]; see also, Gazzard, The Quality of Life in Crohn’s Disease, 28 Gut 378 [1987]).

In Matter of State Div. of Human Rights (Granelle) (70 NY2d 100, 107) we stated that "[e]mployment may not be denied based on speculation and mere possibilities, especially when such determination is premised solely on the fact of an applicant’s inclusion in a class of persons with a particular disability rather than upon an individualized assessment of the specific individual.” (See also, Matter of Miller v Ravitch, supra.) We noted that the prediction that Granelle would suffer low back disability because of his spondylolisthesis, based solely on statistical probability, was mere speculation.

Here, the Commissioner’s conclusion that Antonsen should be dismissed is based entirely on statistics that indicate varying percentages of Crohn’s disease patients who have undergone resective surgery experience recurrence or exacerbation of their disease. One of the studies on which the Commissioner relied concludes, however, that as many as 70% of such patients were free of all symptoms at the time of the interview (Gazzard, The Quality of Life in Crohn’s Disease, 28 Gut 378, 379 [1987]). Only the Danish study referred to in Dr. Thomas’ report provides any information as to the extent of debilitation resulting from the recurrence of symptoms (up to 20% became unemployed after 10 years). Yet that same report indicates that there is no marked difference in employment experience between Crohn’s patients and the controls (see, Sorensen, Olsen & Binder, Life Prospects and Quality of Life in Patients With Crohn’s Disease, op. cit.). Moreover, of the employed patients with Crohn’s disease, 72% had less than two weeks sick leave during the year preceding the study, a figure comparable to the control group (id.).

Thus we conclude the medical evidence and statistical data in this record are insufficient to support the Commissioner’s determination that there is a reasonable expectation that Antonsen will be unable to perform the job of police officer now or in the future (Matter of State Div. of Human Rights [Granelle], supra). Notwithstanding the general statistical data suggesting that symptoms of Crohn’s disease might recur, nothing in this record supports the conclusion that any recurring symptoms, many of which are treatable, would be so disabling as to prevent petitioner from reasonably performing the duties of a police officer (cf., Matter of Bayport-Blue Point School Dist. v State Div. of Human Rights, 131 AD2d 849 [complainant with multiple sclerosis medically fit to drive school bus since symptoms of the disease appear gradually and would respond quickly to medication]; Matter of Carrero v New York City Hous. Auth., 116 AD2d 141 [respondent failed to consider that assuming petitioner’s condition existed, it could be monitored to prevent the sudden onset of renal distress]). Because the statistical data relied on are inconclusive and are not adequately individualized so as to satisfactorily demonstrate that the "particular disability [will be] such that it [will] prevent[] the particular individual from performing in a reasonable manner the particular activities involved in the job [of police officer]” (Matter of Miller v Ravitch, 60 NY2d, supra, at 534 [Jasen, J., concurring]), we need not consider "whether, a reasonable expectation that [petitioner] will be unfit to continue to perform the duties of a police officer, if established, would be a valid basis for employment disqualification under the Human Rights Law.” (Matter of State Div. of Human Rights [Granelle] supra, at 107, n 2; see, Civil Service Law § 50 [4] [b].)

Finally, the argument advanced by the Commissioner that there may be fiscal consequences attendant upon the possibility that Antonsen’s Crohn’s disease may cause him to take excessive sick leave or compel him to retire on a disability pension is fully answered by our decision in State Div. of Human Rights (McDermott) v Xerox Corp. (65 NY2d 213, 218).

We conclude that the Commissioner failed to demonstrate that Antonsen’s disability was such as would preclude him from being able to reasonably perform the duties and activities required, and thus, Antonsen’s dismissal violated the Human Rights Law.

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

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

Order affirmed, with costs.

      . In 1983 Antonsen underwent surgery for an abscessed anal ulcer and fistula, a condition considered to be a harbinger of Crohn’s disease. In 1985 a "fistula in ano” was excised.

      . These three gastroenterologists, none of whom had examined Anton-sen, opined respectively that the rate of recurrence ranged from 50%, 25% or 20-50%.

      . It is noted that in its answers to the article 78 petitions, respondent Commissioner asserted that Antonsen’s dismissal was in conformity with police department medical standards for exam No. 4061 (Antonsen’s exam) which provide in pertinent part for the disqualification if "an individual candidate’s condition or significant medical history * * * poses an obstacle to current or reasonably expected ability to perform the job. A candidate may be rejected who has a [pjresence or significant history of ulcerative colitis or Crohn’s disease.”


author: Hancock, Jr., J.

text:
    Intershoe, Inc., Respondent, v Bankers Trust Company, Appellant. Bankers Trust Company, Appellant, v Intershoe, Inc., et al., Respondents.
    Argued February 12, 1991;
    decided March 27, 1991

      POINTS OF COUNSEL

      David M. Satnick and Cynthia S. Kern for appellant.

      Thomas G. Rozinski and Thomas H. Sear for Intershoe, Inc., respondent.
   OPINION OF THE COURT

Hancock, Jr., J.

Plaintiff placed a telephone order with defendant concerning a foreign currency futures transaction involving the exchange of Italian lira for United States dollars. Defendant Bankers Trust Company sent a confirmation slip to plaintiff indicating that the requested transaction was a sale of lira by plaintiff to defendant. Plaintiff signed and returned the confirmation. The decisive question presented on defendant’s appeal is whether, under UCC 2-202, there has been a sufficient showing that the confirmation slip was intended to be the final expression of the parties’ agreement as to the terms stated therein so as to preclude plaintiff from producing parol evidence that the transaction was for the purchase and not the sale of lira. We hold that where, as here, the form and content of the confirmation slip indicate clearly that it was intended to be the final expression of the parties’ agreement as to the stated terms and there is no evidence in the record to suggest otherwise, UCC 2-202 bars parol evidence to contradict those terms. Because we conclude that plaintiff’s parol evidence is inadmissible, there is no triable issue of fact. Accordingly, there should be a reversal of the order denying defendant’s motion to dismiss the complaint and for summary judgment on its counterclaim; the motion should be granted; and the certified question answered in the negative.

I

Plaintiff, a shoe importer, uses various foreign currencies, including Italian lira, in its business. On March 13, 1985, plaintiff telephoned defendant and entered into several foreign currency transactions, one of which was a futures transaction involving lira. Defendant sent plaintiff a confirmation slip dated March 13, 1985 including, among others, the following terms: "we [Bankers] have bought from you [Intershoe] itl 537,750,000” and "we have sold to you usd 250,000.00”. The confirmation slip specified a rate of 2,151 lira per dollar and called for delivery of the lira approximately IVi months later, between October 1 and October 31, 1985. Plaintiffs treasurer signed the slip and returned it to defendant on March 18, 1985.

By letter dated October 11, 1985, defendant notified plaintiff that it was awaiting instructions as to plaintiffs delivery of the lira. Plaintiff responded in a letter dated October 25, 1985 that the transaction was a mistake and that it would not go through with it. To cover commitments in other currency transactions, defendant was forced to purchase lira on the open market at a price higher than that on March 13, 1985, resulting in a loss of $55,019.85. On December 19, 1985, plaintiff commenced this action, claiming that it had purchased, not sold, lira and that it had sustained damages of $59,336.40. Defendant counterclaimed for its damages resulting from plaintiffs refusal to sell the lira as agreed.

Defendant moved to dismiss the complaint and for summary judgment on its counterclaim. In its responding papers, plaintiff, in support of its claim that it had purchased, not sold, lira, offered only the affidavit of its treasurer, stating in part: "I unequivocally know that it is simply not the case that [plaintiff] agreed to sell Italian lira. While I cannot recall each conversation I had with [defendant] in 1985 concerning lira transactions, I know I never placed an order to sell lira at any time that year” (emphasis added). The treasurer also indicated that plaintiff had sold foreign currency to defendant in only one of nearly 1,000 currency transactions the parties had entered into over the course of their relationship, and that on the same day that he signed the confirmation slip for the transaction in question he signed two other confirmation slips for transactions in which plaintiff had purchased foreign currency.

Supreme Court denied defendant’s motion, holding that triable issues of fact existed concerning the nature of the currency transaction the parties agreed to. A divided Appellate Division affirmed. The majority held that it is not clear from the record whether the confirmation slip signed by plaintiff was intended to be the final expression of the parties’ agreement and that, therefore, UCC 2-202 does not bar parol evidence that plaintiff had placed an order to purchase rather than sell lira. The dissenters asserted that UCC 2-202 precluded the treasurer’s parol testimony because the confirmation slip was intended to be the final expression of the parties’ agreement as to the terms set forth.

II

We turn to defendant’s argument that UCC 2-202 bars the parol evidence submitted in opposition to its motion. Section 2-202 provides:

"Terms with respect to which the confirmatory memoranda of the parties agree or which are otherwise set forth in a writing intended by the parties as a final expression of their agreement with respect to such terms as are included therein may not be contradicted by evidence of any prior agreement or of a contemporaneous oral agreement but may be explained or supplemented "(a) by course of dealing or usage of trade (Section 1-205) or by course of performance (Section 2-208); and
"(b) by evidence of consistent additional terms unless the court finds the writing to have been intended also as a complete and exclusive statement of the terms of the agreement.”

There seems to be no question that the UCC applies to foreign currency transactions (see, UCC 2-105 Official Comment 1, McKinney’s Cons Laws of NY, Book Q2Vz, UCC 2-105, at 96; Buerger & O’Connor, Practice Commentary, op. cit., at 94). Plaintiff does not dispute this point. Instead, plaintiff simply asserts that UCC 2-202 has no application because defendant has not made a sufficient showing that the confirmation slip was "intended by the parties as a final expression of their agreement with respect to such terms as are included therein”. Something more is required, plaintiff says, either language in the confirmation slip indicating that it was intended to be the final expression of the parties’ agreement or uncontroverted evidence that the writing was so intended. Otherwise, according to plaintiff, there are factual issues as to the effect the parties intended the confirmation slip to have and summary judgment must be denied. We disagree.

Here, the essential terms of the transaction are plainly set forth in the confirmation slip: that plaintiff had sold lira to defendant, the amount of the lira it sold, the exchange rate, the amount of dollars to be paid by defendant for the lira, and the maturity date of the transaction. The signature of plaintiff’s agent who signed and returned the confirmation slip five days later on March 18, 1985 signifies plaintiff’s acceptance of these terms. Nothing in the confirmation slip suggests that it was to be a memorandum of some preliminary or tentative understanding with respect to these terms. On the contrary, it is difficult to imagine words which could more clearly demonstrate the final expression of the parties’ agreement than "we have bought from you itl 537,750,000” and "we have sold to you usd 250,000.00”.

The confirmation is not of some bargain to be made in the future but expresses the parties’ meeting of the minds as to a completed bargain’s essential terms — a sale of 537,750,000 lira at a rate of 2,151 for $250,000 — made in a telephone conversation on March 13, 1985. The only evidence plaintiff has tendered does no more than contradict the stated terms of the confirmation slip — the very evidence which UCC 2-202 precludes. It does not address the critical question of whether the terms in the confirmation slip were intended to represent the parties’ final agreement on those matters. We conclude that where, as here, the form and content of the confirmation slip suggest nothing other than that it was intended to be the final expression of the parties’ agreement as to the terms set forth and where there is no evidence indicating that this was not so, UCC 2-202 bars parol evidence of contradictory terms (see, Battista v Radesi, 112 AD2d 42 [sales invoice containing the names and addresses of the parties, the payment terms, the price, and a description of the merchandise constituted the final expression of the parties’ intent where the record contained no evidence to indicate otherwise]; accord, Bender & Co. v Jaiswal, 93 AD2d 969).

We reject plaintiff’s contentions that UCC 2-202 requires that there be some express indication in the writing itself or some other evidence that the parties intended it to be the final expression of their agreement. A holding that the writing must include express language that it represents the parties’ final expression would introduce a technical, formal requirement not contemplated by the Code and one that would frustrate the Code’s purpose of facilitating sales transactions by easing the process of contract formation (see, 1 White & Summers, Uniform Commercial Code § 1-2, at 27 [Practitioner’s-3d ed 1988]). To require that the record include specific extraneous evidence that the writing constitutes the parties’ final agreement as to its stated terms would in many instances impose a virtually insurmountable obstacle for parties seeking to invoke UCC 2-202, particularly in cases involving large commercial banks and other financial institutions which typically close hundreds of transactions over the telephone during a business day. As a practical matter, a confirmation slip or similar writing is usually the only reliable evidence of such transactions, given the unlikely prospect that one who makes scores of similar deals each day will remember the details of any one particular agreement. Indeed, this case is illustrative inasmuch as neither of the participants had a specific recollection of the March 13, 1985 telephone conversation. As the dissent below aptly noted, a holding that plaintiff’s proffered evidence is sufficient to thwart the application of UCC 2-202 would create a particularly troublesome precedent for commercial practice in currency futures transactions by providing a convenient "hedge” for one party or the other against currency fluctuations (160 AD2d 520, 523). In sum, there is no triable issue of fact warranting denial of summary judgment to defendant (see, Rotuba Extruders v Ceppos, 46 NY2d 223, 231).

Ill

Plaintiff also argues that UCC 2-202 does not bar the parol evidence submitted in opposition to defendant’s motion because it is offered to show that there was never a contract between the parties. This argument is unavailing. Plaintiff does not dispute that it entered into a foreign currency transaction with defendant; its only contention is that the transaction called for it to purchase and not sell lira. Hence, the parol evidence is being used to contradict a term of the contract, not to show that there was no contract, and UCC 2-202 applies.

The order of the Appellate Division should be reversed, with costs, defendant’s motion to dismiss the complaint and for summary judgment on its counterclaim should be granted, and the certified question answered in the negative.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titione and Bellacosa concur.

Order reversed, etc.

      . The Appellate Division has certified the following question pursuant to CPLR 5602 (b) (1): "Was the order of the Supreme Court, as affirmed by this Court, properly made?”

      . Plaintiff makes no claim that evidence of a course of dealing should be admissible to explain or supplement the confirmation slip under UCC 2-202 (a) or that evidence of consistent additional terms is admissible under UCC 2-202 (b).


author: Alexander, J. Titone, J.

text:
    Vincent Amatulli, Jr., an Infant, by His Mother and Natural Guardian, Lorraine Amatulli, et al., Respondents-Appellants, v Delhi Construction Corporation, Defendant; Philip Susi et al., Appellants-Respondents; Sea-spray Sharkline, Inc., et al., Respondents. (And Third- and Fourth-Party Actions.)
    Argued January 3, 1991;
    decided April 2, 1991

      POINTS OF COUNSEL

      Michael Conforti for respondents-appellants.

      Jane E. Motyka for Philip Susi and another, appellants-respondents.

      Patti F. Potash for Brothers Three, Inc., appellant-respondent.

      Barbara D. Goldberg for Seaspray Sharkline, Inc., respondent.
   OPINION OF THE COURT

Alexander, J.

We again are confronted with questions concerning the liability of the manufacturer, distributor and owner of a swimming pool for injuries sustained by a plaintiff who executed a headfirst dive into the pool. The pool was four feet deep, and was designed, manufactured and marketed for installation above ground. However, it was installed with two feet of the pool sunken into the ground and a deck built partially around the pool which gave it the appearance of an in-ground pool.

On September 11, 1983, Vincent Amatulli, Jr., who was then 16 years old, sustained serious injuries when he executed a headfirst dive into this swimming pool which had been installed at the home of Janet and Philip Susi. Vincent, who was a guest at a pool party held at the Susis’ contends that prior to diving into this pool, he was aware that the pool appeared shallow around its sides, but that the bottom of the pool seemed to slope downward toward the center such that he gauged the depth of the water toward the center where he aimed his dive to be about six feet. Consequently he executed his dive at a 45 degree angle so as to reach what appeared to be the deep part of the pool. He was wrong, the depth was only four feet and he struck his head on the bottom. Vincent testified at his deposition that he was an experienced swimmer and diver, having received advanced swimming and diving instructions. He had not used this pool previously but had swum in a similar four-foot pool at the Susis’ former residence.

This action was commenced by Vincent and his mother against the owners of the pool, Janet and Philip Susi, the pool manufacturer Seaspray Sharkline, Inc. (Seaspray), the retail-distributor of the pool, Brothers Three, Inc. (Brothers) and Delhi Construction Corporation, of which the Susis were principals, and which initially was believed to have installed the pool. Various cross claims and counterclaims were asserted by and among the parties and Woodsman Construction Company and its principals, the actual installers of the pool, were joined as parties defendant.

The Appellate Division, with one Justice dissenting, affirmed Supreme Court’s grant of summary judgment to Seaspray, dismissing the complaint and all cross claims against it. That court also affirmed the denial of the cross motions for summary judgment of the defendants Susi, Brothers and Woodsman. Plaintiffs appeal and the Susis, and Brothers cross-appeal, pursuant to leave granted by the Appellate Division, which has certified to us the question "[wjas * * * the decision and order of this court dated December 13, 1989, properly made?” We now affirm the Appellate Division order and answer thé certified question in the affirmative.

I

Both the Appellate Division and Supreme Court concluded that inasmuch as the pool, when manufactured and distributed by Seaspray, was safe for its intended use as an above-ground recreational swimming pool, Seaspray could not be liable for the plaintiff's injuries under a theory of strict products liability.

Plaintiffs argue however that the pool was defectively designed in that an aqua-colored vinyl liner was used which deceptively created the impression of a greater depth to the water than actually existed. Additionally, they contend that Seaspray failed to adequately warn against the dangers of diving into the pool and failed to specifically instruct and warn against in-ground installation of the pool notwithstanding that Seaspray knew or should have known that it was common practice to install these above-ground pools in the ground.

Plaintiffs argue further that the Appellate Division erred in concluding that the in-ground installation of the pool was a material alteration that created a new potential danger within the meaning of Robinson v Reed-Prentice Div. (49 NY2d 471). They argue also that the Appellate Division erred in concluding that Seaspray had no duty to warn against diving because the danger of diving into a four-foot above-ground pool was open and obvious.

The Susis and Brothers contend on their cross appeals that the conduct of Vincent, an experienced swimmer and diver, in executing a headfirst dive into what he knew or should have known with the exercise of reasonable care was a shallow pool, constituted the sole proximate cause of his injuries. Thus, under Smith v Stark (67 NY2d 693) and Howard v Poseidon Pools (72 NY2d 972) their motion for summary judgment dismissing the complaint should have been granted. Additionally, they argue that summary judgment should have been denied to Seaspray because material issues of fact were raised as to the defective design of the pool’s filtration system and the aqua-colored vinyl liner, the adequacy of the warnings as to the dangers of diving into the shallow pool and whether installing two feet of the pool into the ground and building a partial deck around it constituted a material alteration of the pool and a proximate cause of Vincent’s injuries. Brothers also contend that their motion for summary judgment dismissing the complaint should have been granted, especially in view of the grant of Seaspray’s motion for summary judgment. For the reasons set forth below, these arguments are unavailing.

II

We note that this case comes to us on motions for summary judgment, addressed to the complaint and cross claims, and thus the Court’s role is limited to issue finding, not issue resolving (see, CPLR 3212; 4 Weinstein-Korn-Miller, NY Civ Prac ¶ 3212.01; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065; Zuckerman v City of New York, 49 NY2d 557).

Seaspray’s undisputed proof established that the pool in question was designed and sold to be used as an above-ground pool for recreational swimming and that detailed instructions as to its intended above-ground installation were provided. Clear and explicit warnings as to the shallowness of the pool and against diving and jumping into the pool were also provided. Contrary to Seaspray’s instructions, however, the pool was installed with two feet of its four-foot depth below ground level, and a deck built partially around it thus creating the impression that it was an in-ground pool, capable of being used in a manner and for a purpose different from that intended by the manufacturer. As the Appellate Division aptly observed, had the pool been properly installed as an above-ground pool, its depth would have been readily apparent and would itself have served as an evident warning against diving (156 AD2d 500, 501). Plaintiff’s expert himself opined that the in-ground installation of the pool helped to disguise and camouflage the actual depth of the water (156 AD2d, at 503).

A manufacturer who places into the stream of commerce a defective product which causes injury may be liable for such injury, (see, Codling v Paglia, 32 NY2d 330). A defect in a product may consist of a mistake in manufacturing, an improper design or the inadequacy or absence of warnings for the use of the product (see, Codling v Paglia, 32 NY2d 330, supra; Micallef v Miehle Co., 39 NY2d 376; Torrogrossa v Towmotor Co., 44 NY2d 709). For there to be a recovery for injuries or damages occasioned by a defective product, however, that defect must have been a substantial factor in bringing about the injury or damage and additionally, among other things, at the time of the occurrence, the product must have been used for the purpose and in the manner normally intended or in a manner reasonably foreseeable (Codling v Paglia, supra). It is well settled that a manufacturer, who has designed and produced a safe product, will not be liable for injuries resulting from substantial alterations or modifications of the product by a third party which render the product defective or otherwise unsafe (see, Robinson v Reed-Prentice Div., 49 NY2d 471, supra). Moreover, in such circumstances, we have concluded that "[principles of foreseeability * * * are inapposite where a third party affirmatively abuses a product by consciously bypassing built-in safety features.” (Id., at 480.)

Installing the pool in the ground and surrounding it with a deck transformed its configuration in such manner as to obscure its four-foot depth, which would have been readily apparent as a warning against diving had the pool been installed above ground. Thus this transformation of the pool’s configuration created a new potential danger not attributable to the manufacturer or the pool’s design (see, Robinson v Reed-Prentice Div., 49 NY2d 471, 480-481, supra).

Plaintiffs argue, however, that Seaspray knew or should have known that pools of this type were commonly being installed in-ground. Therefore, there should have been explicit warnings against such foreseeable installation and more adequate warnings against diving affixed to the pool itself. Even accepting that argument, the contention that Seaspray knew or should have known of the alleged practice of installing these above-ground pools in-ground is based solely upon the unsupported conclusory allegations of plaintiff’s expert. There is no submission that Seaspray knew that any of its pools were being installed in-ground, nor was there submission of any evidence demonstrating the existence of such knowledge generally within the pool industry (see, People v Jones, 73 NY2d 427; Matter of Riehl v Town of Amherst, 308 NY 212, 216; cf., Kriz v Schum, 75 NY2d 25; Denkensohn v Davenport, 75 NY2d 25). Under familiar rules "one opposing a motion for summary judgment must produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which he rests his claim * * * mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient” (Zuckerman v City of New York, 49 NY2d 557, 562, supra). Inasmuch as we read plaintiff’s expert’s affidavit as containing only bare conclusory assertions in respect to industry-wide knowledge regarding in-ground installation of these above-ground pools, it was insufficient to raise a triable issue of fact, sufficient to defeat Seaspray’s motion for summary judgment.

Similarly, under the circumstances here presented, the allegations regarding the pool’s filtration system and the use of an aqua-colored vinyl lining in the pool fail to demonstrate a design defect sufficient to raise a triable issue of fact.

Accordingly, Seaspray’s motion for summary judgment was properly granted.

Ill

Turning next to the motions and cross motions of the Susis and Brothers, the submissions demonstrate, without contradiction, that the Susis had the pool installed, upon the advice of the distributor, Brothers, in a manner that concealed its true depth and gave it the appearance of being an in-ground pool. The Susis and Brothers argue, however, that Vincent’s act of diving into the pool which he knew to be shallow was the sole proximate cause of his injury and therefore his complaint must be dismissed as against them (see, Smith v Stark, 67 NY2d 693, supra; Boltax v Joy Day Camp, 67 NY2d 617; Howard v Poseidon Pools, 72 NY2d 972, supra). In the cited cases however, we were able to conclude as a matter of law, upon the uncontroverted facts established by the submissions of the parties that the conduct of the respective plaintiffs was the sole proximate cause of their injuries (Howard v Poseidon Pools, 72 NY2d 972, supra; Manning v Manning, 72 NY2d 972; Smith v Stark, 67 NY2d 693, supra) or was an unforeseeable superseding event, sufficient to break the causal chain and thus absolve the defendant of liability (see, Boltax v Joy Day Camp, 67 NY2d 617, supra; see also, Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315; Prosser and Keeton, Torts § 44 [5th ed]).

By contrast, no such conclusion can be reached here. The Susis directed the in-ground installation of this above-ground pool upon the advice of Brothers and contrary to the explicit installation instructions of the manufacturer, Seaspray. Plaintiff contends that this installation contributed to the creation of the illusion that the pool was of a depth sufficient for diving; that although he was aware of shallowness around the edges of the pool, it appeared to be deep enough toward the center. Thus, he urges that it cannot be said as a matter of law, on this record, that " ' "only one [legal] conclusion may be drawn from the established facts” ’ ” (Kriz v Schum, 75 NY2d 25, 35, supra, citing Howard v Poseidon Pools, 72 NY2d 972, 974, supra; Derdiarian v Felix Contr. Corp., 51 NY2d 308, supra) or that his conduct in diving into this pool under the circumstances was "reckless conduct”, constituting an unforeseeable superseding event such as would absolve these defendants of liability (Boltax v Joy Day Camp, 67 NY2d 617, 620, supra). These factual issues raise questions for resolution by the jury and summary judgment was properly denied.

Accordingly, the order of the Appellate Division should be affirmed, with costs, and the certified question answered in the affirmative.

Titone, J.

(dissenting in part and concurring in part). The majority holds that the pool manufacturer in this case cannot be held liable, but the precise basis for its holding is unclear. At one point, the majority suggests that the pool’s in-ground installation constituted a "substantial alteration or modification” of the product by a third party, insulating the manufacturer from liability, even if the product change was known or foreseeable (see, Robinson v Reed-Prentice Div., 49 NY2d 471). In the very next paragraph, however, the majority appears to shift ground and, after identifying the problem as one of product misuse, seems to base its holding on the absence of proof that defendant Seaspray Sharkline, Inc. (Seaspray), the manufacturer, knew or should have known that in-ground installation of above-ground pools was a common practice. Neither rationale withstands close analysis. Accordingly, I dissent from the majority’s decision to dismiss the action against Seaspray.

Plaintiff Vincent Amatulli was seriously injured when he dove into a shallow backyard swimming pool owned by the Susis. The present suit, which included a claim against the pool’s manufacturer, was based on the theory that the aqua color of the pool liner, coupled with the fact that the pool had been sunken into the ground and encircled by a deck, created the illusion that the pool’s center was deep enough for diving. This theory was supported by an expert’s affidavit, which also faulted the pool manufacturer for not providing depth markings or adequate warnings against diving.

Initially, to the extent that the majority has rejected plaintiffs’ theory on the basis of the rule articulated in Robinson v Reed-Prentice Div. (supra), its reliance is misplaced. In Robinson, the purchaser of a plastic molding machine had deliberately removed a safety gate installed by the product’s manufacturer to protect operators from injury. Although there was proof that the manufacturer knew or had reason to know that the purchaser intended to modify the machine in this manner, the Court rejected an injured worker’s claims based on strict products liability and design defect theories, holding that "[substantial modifications of a product from its original condition by a third party which render a safe product defective are not the responsibility of the manufacturer” (49 NY2d, at 479). However, the Court also reaffirmed its commitment to the ’’[w]ell-settled” principle that "a manufacturer is under a duty to use reasonable care in designing [its] product when ’used in the manner for which the product was intended * * * as well as an unintended yet reasonably foreseeable use’ ” (id., at 480, quoting Micallef v Miehle Co., 39 NY2d 376, 385-386).

There thus exists a clear distinction between ’’substantial alteration” cases and cases involving unintended uses, or misuses, of a manufacturer’s product. Moreover, the distinction is one that should not be blurred or overlooked, since it determines whether an injured plaintiff may or may not recover upon proof of foreseeability.

Contrary to the view expressed by the Appellate Division majority (156 AD2d 500, 502), this is not a case of ’’substantial alteration or modification” of a product. Indeed, in this context, the ’’substantial alteration” rationale is nothing more than a red herring to be soundly rejected. First, and most obviously, plaintiffs’ claims here included a cause of action for failure to warn, as to which the Robinson holding is of questionable analytical utility (see, 1 Weinberger, New York Products Liability §23:10 [and authorities cited therein]). While the focus of a design-defect claim such as that asserted in Robinson is the product’s fitness for intended uses (see, 49 NY2d, at 479), the focus of a failure to warn claim such as that asserted here is whether there has been a breach of the manufacturer’s duty to warn consumers against using the product for unintended but foreseeable purposes (see, Kriz v Schum, 75 NY2d 25, 36; McLaughlin v Mine Safety Appliances Co., 11 NY2d 62; Lancaster Silo & Block Co. v Northern Propane Gas Co., 75 AD2d 55; see generally, 1 Weinberger, op. cit., § 18:13).

Furthermore, the Robinson holding was premised, in part, on the principle that the validity of a design-defect claim should be assessed by reference to the configuration of the product "as of the time [it] leaves the manufacturer’s hands” (49 NY2d, at 479, supra). In a failure-to-warn case such as this, the gist of the claim is that the product was, in fact, defective "as of the time [it] le[ft] the manufacturer’s hands” because of the failure to include warnings of known or knowable dangers, including the danger of in-ground installation. Thus, the Robinson Court’s concern about holding manufacturers responsible for the postsale handling of their products by others is not implicated.

Additionally, Robinson is inapplicable because, unlike the circumstances in that case, where the purchaser "destroy[ed] the functional utility” of a key safety feature by cutting a 6-by-14-inch hole in the plexiglass portion of the safety gate (49 NY2d, at 477, 480), no physical alteration was made in the configuration or structure of Seaspray’s swimming pool (see also, Sage v Fairchild-Swearingen Corp., 70 NY2d 579, 586 [stressing the physical alteration of the machinery in Robinson]). Rather, the Susis and the professional installers they hired simply failed to follow the manufacturer’s instructions for above-ground installation, placing the vinyl pool some two feet below ground level instead. At worst, this was an "unintended use” or a misuse of defendant Seaspray’s product analogous to the plaintiffs misuse of an aquatic slide as a diving platform in Denkensohn v Davenport (75 NY2d 25, 36). Indeed, if Robinson is applicable to this situation, it is difficult to imagine when, if ever, a manufacturer could be held liable for injuries occasioned by unintended, although foreseeable, uses of its products.

Particularly troubling is the majority’s strained effort to bring this case within the Robinson rule by likening the intended above-ground installation of this shallow pool to a form of "warning” analogous to the "safety feature” that was deliberately circumvented in Robinson (majority opn, at 533). First, despite the suggestion in the majority’s opinion (majority opn, at 533), there was nothing inherent in this four-foot pool’s "configuration” that made it an "above-ground” pool. To the contrary, as is apparent from this case, the pool’s "configuration” lent itself readily to in-ground uses. Thus, it was not the pool’s "configuration” that made it an "above-ground” pool; rather, it was made an "above-ground” pool by the accompanying installation instructions. The installer’s failure to follow those instructions certainly did not physically alter the product, much less alter it in such a way as to constitute a removal of a "safety feature”. Accordingly, there was no change in the pool’s "configuration” justifying the manufacturer’s failure to warn against foreseeable alternative installation methods, and the obligation to include appropriate warnings on that subject remains a question to be resolved by the fact finder.

Second, while it is true that this type of pool may be somewhat safer when its bottom rests on the ground and its shallowness is consequently apparent, the pool’s intended above-ground use can hardly be characterized as a "safety feature.” As plaintiffs expert noted in his affidavit, vinyl above-ground pools, which were first marketed to the American consumer about 30 years ago, were designed to eliminate the expense of excavating and laying down a concrete or tile liner, thereby making pool ownership available to a wide spectrum of consumers (see also, Broder, The Hazards of Swimming Pools, NYLJ, Mar. 4, 1991, at 3, 5). This "above-ground” feature had both a positive and a negative effect: on the one hand, it drastically reduced the cost of private backyard pools; on the other hand, it imposed severe limitations on the possible depth of such pools, thereby creating a greatly enhanced risk of injury to users (see, e.g., Kriz v Schum, supra; Howard v Poseidon Pools, 72 NY2d 972; Manning v Manning, 72 NY2d 972; Smith v Stark, 67 NY2d 693). The majority’s effort to transform this commercially useful feature into its own "warning” or "safety” device stretches that concept well beyond its ordinary bounds.

In truth, in-ground installation was not a change in the pool’s "configuration” or a conscious bypassing of a built-in safety feature (see, majority opn, at 532-533; Robinson v Reed-Prentice Div., supra, at 480), but rather was simply an unintended use of this four-foot vinyl pool. Accordingly, consistent with all of the prior unintended use cases including Denkensohn (supra, at 36), the extent to which this particular departure from the above-ground pool’s intended use constitutes a defense to plaintiffs’ claim should depend on whether it was foreseeable.

Despite its reliance on Robinson, the majority appears to acknowledge that liability could attach if Seaspray had been aware that these above-ground pools were being installed in the ground. Yet, the majority nonetheless finds reason to dismiss plaintiffs’ claim because, in its view, plaintiffs’ expert evidence on this point was both "unsupported” and "conclusory.” The expert, however, stated clearly and specifically that the practice of installing above-ground pools below ground level so as to convey the appearance of an in-ground pool "is well known in the pool industry” and "for many years * * * [has] been a common practice.” Such a statement, made by an expert with 30 years’ experience in the safety and construction of vinyl pools, would, if believed by a jury, surely have been sufficient to support a finding that Seaspray knew, or at least should have known, that its products might well be installed in the ground by end users, creating an enhanced risk of diving injuries. Indeed, this expert’s statement was no more, "conclusory” than the expert evidence in Denkensohn, which the Court accepted as being probative on the issue of whether the plaintiff’s misuse of the defendant manufacturer’s product was "predictable” (75 NY2d, at 36, supra [emphasis supplied]).

As to the majority’s alternative objection to the experts’ affidavit as "unsupported,” I know of no rule of law or prior precedent that considers expert evidence suspect or of such reduced quality that corroboration is, as a matter of law, required. To the contrary, in Nallan v Helmsley-Spear, Inc. (50 NY2d 507, 521) we accepted an expert’s statement on the deterrent effect of security guards as sufficient, in itself, to establish a prima facie claim of causation for submission to the jury (accord, Martin v Edwards Labs., 60 NY2d 417, 428-429 [accepting expert physician’s affidavit as sufficient to satisfy plaintiff’s obligation of going forward to defeat defense motion for dismissal]). The expert’s assertion here is entitled to be treated in the same manner, i.e., as sufficient, in itself, to raise a triable question of fact. The authorities on which the majority relies for the proposition that " 'facts or data’ ” are required to substantiate an expert’s statements (majority opn, at 534, n 2) are not helpful for the simple reason that the expert assertion at issue here — that an in-ground installation of these pools is an industry-wide practice — is a factual allegation and not a statement of conclusion or opinion.

In effect, by dismissing these plaintiffs’ expert evidence as "conclusory,” the majority has reached beyond its mandated "issue finding” function on these summary judgment motions and has instead improperly resolved a disputed factual issue on the basis of its view of the evidence’s weight. The result is that a potentially meritorious claim against a manufacturer that did not see fit either to provide adequate depth markers or to warn against the dangers of in-ground installation has been foreclosed. Since, in my view, plaintiffs’ claim against Seaspray is one that ought to be decided by a jury, I dissent from Court’s decision to dismiss it.

Chief Judge Wachtler and Judges Simons, Kaye and Bellacosa concur with Judge Alexander; Judge Titone dissents in part and votes to modify in a separate opinion in which Judge Hancock, Jr., concurs.

Order affirmed, etc.

      . Summary judgment was granted to Delhi by Supreme Court and no appeal was taken, thus Delhi is not before us.

      . Although our dissenting-in-part colleague posits that the "expert’s assertion * * * is entitled to be treated * * * as sufficient, in itself, to raise a triable question of fact” (see, dissenting opn, at 540) the law is otherwise. "[W]here the expert states his conclusion unencumbered by any trace of facts or data, his testimony should be given no probative force whatsoever * ** * [i]ndeed, no reason is apparent why his testimony should not simply be stricken.” (See, McLaughlin, 1971 Practice Commentary, McKinney’s Cons Laws of NY, Book 7B, CPLR 4515, 1991 Supp Pamph, at 400, citing People v Samuels, 302 NY 163; see also, Sawyer v Dreis & Krump Mfg. Co., 67 NY2d 328, 335; Fallon v Hannay & Son, 153 AD2d 95, 101, 102; Mohan v Westchester County Med. Center, 145 AD2d 474.)
      Thus, unlike the bare submissions here, and contrary to the assertions of the dissent (see, dissenting opn, at 539) the opinion in Denkensohn v Davenport (75 NY2d 25) was deemed "probative” inasmuch as the submissions demonstrated that diving from the top of a pool-slide was "predictable” in light of the extensive industry-wide advertisements encouraging such diving and the issuance of regulations by the Consumer Products Safety Council requiring that warnings against careless misuse of these slides be affixed thereto.

      . I agree with part III of the majority’s analysis, which upholds plaintiffs’ claims against the other defendants.

      . In this regard, it is important to note that a warning against the risks of in-ground installation is not the equivalent of an antidiving warning.

      . In Robinson, the plexiglass section of the machine that was mutilated was obviously a part of a safety gate and, accordingly, there was no doubt that the "safety feature” designed by the manufacturer had been consciously bypassed. Here, in contrast, the intended above-ground use of the pool was not so clearly a "safety feature,” at least in the absence of a warning to that effect. Consequently, it cannot be said that this "safety feature,” to the extent it may be reasonably characterized as such, was deliberate or conscious, as Robinson apparently requires.