author: Per Curiam.

text:
    In the Matter of Joseph W. Esworthy, a Judge of the Family Court, Broome County, Petitioner. State Commission on Judicial Conduct, Respondent.
    Argued January 4, 1991;
    decided February 12, 1991
    POINTS OF COUNSEL

      Jon S. Blechman for petitioner.

      Gerald Stern, Cathleen S. Cenci and Jean M. Savanyu for respondent.

      Donald M. Sukloff for Broome County Bar Association, amicus curiae.

   OPINION OF THE COURT

Per Curiam.

In this proceeding, we are called upon to review a determination of the State Commission on Judicial Conduct that petitioner, a Judge of the Family Court of Broome County, committed certain acts of misconduct which warranted his removal from office (see, NY Const, art VI, § 22 [d]; Judiciary Law § 44 [9]). After having reviewed the record, we conclude that the determined sanction of the Commission should be accepted.

The Commission, by formal complaint dated August 8, 1989, preferred 14 charges of judicial misconduct against petitioner. After hearing oral argument, the Commission determined that all but two of those charges should be sustained, stating that: "In less than four years on the Family Court bench, [petitioner] amassed an egregious record. He abused the rights of litigants, flouted the law, conveyed the impression of bias, was intemperate and made racist statements.” The Commission then concluded that the appropriate sanction was petitioner’s removal from office.

Petitioner now urges that this Court reject the sanction imposed by the Commission as unduly harsh. He does not dispute most of the Commission’s findings, nor deny having engaged in conduct which was "clearly inappropriate,” but instead argues that his actions merely reflected poor judgment and consequently do not warrant removal from office (see, Matter of Kiley, 74 NY2d 364, 369-370; Matter of Steinberg, 51 NY2d 74, 81). We cannot agree.

As a Judge, petitioner was under a duty to conduct himself in such a manner as to inspire public confidence in the integrity, fair-mindedness and impartiality of the judiciary (see, Matter of Cohen, 74 NY2d 272, 278). The record, however, demonstrates that petitioner has accomplished just the opposite. While on the Bench, petitioner frequently addressed parties and their attorneys in an intemperate manner, often indicating that he presumed unproven allegations to be true (see, Matter of Sardino v State Commn. on Judicial Conduct, 58 NY2d 286, 290), and on two occasions he used racially charged language that was highly insulting to certain ethnic groups (see, Matter of Aldrich, 58 NY2d 279, 283). In case after case, he neglected to inform litigants appearing before him of their constitutional and statutory rights, including their right to counsel (see, Matter of Reeves, 63 NY2d 105, 109-110; Matter of McGee, 59 NY2d 870, 871; Matter of Sardino v State Commn. on Judicial Conduct, 58 NY2d 286, 289, supra), and instead exerted undue pressure on these parties to make damning admissions, sometimes by threatening incarceration or other consequences which he had no authority to impose. Petitioner even sentenced one person to six months in jail based solely upon an ex parte letter.

Such a pattern of conduct, which necessarily has the effect of leaving litigants with the impression that our judicial system is unfair and unjust, would be unacceptable if engaged in by any member of the judiciary; for a Judge of the Family Court, where matters of the utmost sensitivity are often litigated by those who are unrepresented and unaware of their rights, it is simply intolerable.

Petitioner’s "record of public service as legislator, judge, and mayor, and as an active community volunteer over a span of forty years” cannot excuse these acts of gross judicial misconduct (see, Matter of Shilling, 51 NY2d 397, 399). In this regard, it must not be forgotten that "the purpose of judicial disciplinary proceedings is 'not punishment but the imposition of sanctions where necessary to safeguard the Bench from unfit incumbents’ ” (Matter of Reeves, 63 NY2d 105, 111, supra, quoting Matter of Waltemade, 37 NY2d [a], [111]).

In sum, we agree with the Commission that petitioner has engaged in "a pattern of injudicious behavior * * * which cannot be viewed as acceptable conduct by one holding judicial office.” (Matter of VonderHeide, 72 NY2d 658, 660.) He has "abused the power of his office in a manner that * * * has irredeemably damaged public confidence in the integrity of his court” (Matter of McGee, 59 NY2d 870, 871, supra); and consequently his "continuance in office would pose a threat to the proper administration of justice” (Matter of Tyler, 75 NY2d 525, 528).

Accordingly, the determined sanction of the Commission should be accepted, without costs, and petitioner should be removed from his judicial office.

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

Determined sanction accepted, etc.

       The Commission determined that petitioner had violated sections 100.1, 100.2 (a); 100.3 (a) (1), (3) and (4) of the Rules Governing Judicial Conduct (22 NYCRR), and Canons 1, 2 (A); 3 (A) (1), (3) and (4) of the Code of Judicial Conduct.


source: Caselaw Access Project

author: Simons, J.

license: Public Domain

text:
    The People of the State of New York, Respondent, v Larry Ribowsky, Appellant.
    Argued January 9, 1991;
    decided February 14, 1991

      POINTS OF COUNSEL

      Leon B. Polsky, Jack S. Hoffnger and Mark W. Geisler for appellant.

      Charles J. Hynes, District Attorney (Robin A. Forshaw, Jay M. Cohen and Peter A. Weinstein of counsel), for respondent.
   OPINION OF THE COURT

Simons, J.

Defendant has been convicted of one count of conspiracy in the fifth degree, six counts of offering a false instrument for filing in the first degree, and two counts of perjury in the first degree. The charges arise out of a scheme to defraud insurance companies by fabricating the injuries and treatment of automobile accident victims. The participants included doctors, insurance agents and others who conspired with the law offices of Stuart R. Kramer, P. C. from 1979 through 1984. Pursuant to the scheme, clients who retained the Kramer law firm following an automobile accident were referred to one of several chiropractors in the metropolitan New York area who then inflated the value of their services or, on instructions from the attorneys, referred the patient to Dr. Jesus Carmona, a radiologist, for diagnosis of nonexistent fractures (Carmona fractures). Dr. Carmona’s diagnoses were incorporated into the chiropractors’ medical reports to insurance companies and used by the Kramer attorneys to obtain inflated settlements for their clients. The principal of the firm, Kramer, has been convicted of various felonies and disbarred as a result of his conduct (see, People v Kramer, 132 AD2d 708, affd 72 NY2d 1003; Matter of Kramer, 120 AD2d 299). Several others also have been prosecuted.

Defendant was a lawyer associated with Kramer who specialized in uninsured motorist cases. According to the evidence, he knowingly relied on the false medical reports to represent claimants at arbitration hearings and conduct settlement negotiations. He also agreed with Kramer that Stephen Kihl, another attorney in the Kramer firm, could use defendant’s home as a business address on retainer and closing statements filed with the Office of Court Administration. The arrangement allowed the firm to conceal its dual representation of both the driver and the passengers involved in an automobile accident by using Kihl’s name and defendant’s address for one client and the Kramer name and address for the other. The People further charged that defendant appeared before the Grievance Committee of the Second and Eleventh Judicial Districts on two occasions and testified falsely about this use of his address by Kihl.

Defendant’s principal arguments for reversal are that (1) the perjury counts against him were duplicitous, (2) the manner of their submission to the jury constituted error, and (3) the trial court’s failure to submit the question of venue to the jury on the conspiracy count constituted reversible error. We conclude that there was no error requiring reversal of the perjury convictions and that the error in failing to submit the question of venue to the jury was harmless.

I

A

The perjury indictment contained two counts charging that defendant testified falsely before the Grievance Committee on June 6 and June 23. A subsequent bill of particulars set forth three specifications of perjury for each date. Based on this, defendant contends that the charges were duplicitous because they averred more than one offense within a single count of the indictment in violation of CPL 200.30 (1). He relies on the reasoning in Matter of Di Lorenzo v Murtagh (36 NY2d 306) and the holdings of People v Davis (72 NY2d 32) and People v Keindl (68 NY2d 410).

In Di Lorenzo, we held that where a defendant was acquitted on two perjury counts, but the jury was unable to agree on those remaining, retrial on the open counts was not barred by double jeopardy if each allegedly perjurious statement involved separate acts justifying consecutive sentences. In reaching this result, the Court concluded that an indictment could allege separate counts of perjury for each false statement arising from sworn testimony at two separate proceedings if each alleged perjurious statement related to a separate matter or act (Matter of Di Lorenzo v Murtagh, supra, at 310-312).

Relying on Di Lorenzo, defendant contends that separate perjurious statements made at the same hearing must be separate offenses and charged as such in separate counts of the indictment. Thus, he asserts it was improper for the prosecution to charge him with a single count of perjury for three allegedly false statements at each hearing. Although we stated in Di Lorenzo that ”[i]n charges of perjury * * * there may well be * * * discrete subjects as to each of which false testimony was given in sequence”, we also cautioned that separate offenses may not be proper where a series of questions relate to a single, integral inquiry (Matter of Di Lorenzo v Murtagh, supra, at 312). Di Lorenzo stands for no more than the proposition that several false statements made during one proceeding may or may not be separable into distinct events, depending on the subject matter of those statements.

Here, defendant was charged with two separate counts of perjury for testifying falsely on two separate occasions about a single subject, the use of his home address by Kihl for improper purposes. Although the bill of particulars asserted that three false statements were made during each proceeding, the statements related to the same subject matter. Thus, the elaboration of all three in one count of perjury was not improper because each count was predicated on defendant’s conduct at a single proceeding, the multiple falsehoods encompassed by each count were interrelated, and each of the falsehoods was intended to mislead the Grievance Committee about the illegal activities of the Kramer law firm.

People v Davis (72 NY2d 32, supra) and People v Keindl (68 NY2d 410, supra) do not hold otherwise. In Keindl, in discussing the reasons why a count that charges more than one offense is void for duplicity, we stated ”[t]he prohibition against duplicity furthers not only the functions of notice to a defendant and of assurance against double jeopardy, but also ensures the reliability of the unanimous verdict. If two or more offenses are alleged in one count, individual jurors might vote to convict a defendant of that count on the basis of different offenses; the defendant would thus stand convicted under that count even though the jury may never have reached a unanimous verdict as to any one of those offenses” (supra, at 418; see also, People v Davis, supra, at 38). These concerns are not implicated in the case before us. The bill of particulars specified which statements made during the two proceedings were allegedly false, thus providing defendant with sufficient notice of the charges against him and assuring that he would not be reprosecuted for those statements. Moreover, the rendition of a separate finding on each false statement of perjury provided assurance that the jury verdict was unanimous as to at least one of them. Thus, defendant’s case does not violate the proscription of CPL 200.30 (1) as implemented by People v Davis (72 NY2d 32, supra) and People v Keindl (68 NY2d 410, supra; see also, United States v Berardi, 629 F2d 723, 729 [2d Cir], cert denied 449 US 995; United States v Isaacs, 493 F2d 1124, 1154-1155 [7th Cir], cert denied 417 US 976; Vitello v United States, 425 F2d 416, 418 [9th Cir], cert denied 400 US 822).

B

In submitting the perjury charges, the court directed the jury to deliberate and return a general verdict on each count. The verdict sheet submitted to them contained an entry for the general verdicts and also spaces for the jury to indicate a guilty or not guilty verdict as to each false statement alleged in the bill of particulars. Defendant asserts that this was error because it permitted the jury to enter special verdicts.

Although special verdicts or interrogatories are commonplace in civil cases, the Criminal Procedure Law makes no provision for them and they are generally disfavored in criminal trials (see, CPL 300.10 [4]; United States v Orozco-Prada, 732 F2d 1076, 1084 [2d Cir], cert denied 469 US 845; United States v Spock, 416 F2d 165; but see, CPL 300.10 [6]; 310.50; see generally, 3 LaFave & Israel, Criminal Procedure § 23.7 [d]; 23A CJS, Criminal Law, § 1402). The primary objection is that their form, a step-by-step progression of ”yes or no” questions, may inevitably lead the jury to a finding of guilt (see, United States v Spock, supra, at 182; United States v Palmeri, 630 F2d 192, 202-203 [3d Cir], cert denied 450 US 967). That danger was not present in defendant’s case, however, because each specification upon which the jury was asked to deliberate could lead to an independent finding of defendant’s guilt of perjury (see, Vitello v United States, 425 F2d 416, 418, supra; Arena v United States, 226 F2d 227, cert denied 350 US 954). Moreover, the use of such verdicts has been approved in criminal trials where the special findings benefited the defendant (United States v Spock, supra), were neither inherently prejudicial nor predeterminative of the jury’s verdict (United States v Palmeri, supra) or assisted the court (United States v Stassi, 544 F2d 579, 583 [2d Cir], cert denied 430 US 907 [for sentencing purposes]).

The special procedure used here did not prejudice the defendant and it assisted the court because it allowed the court to verify that the jury had followed its instructions to reach a separate, unanimous decision as to defendant’s guilt on each specification. It insured that any general verdict of guilty on the perjury charges was supported by a unanimous determination of the jury on at least one specification listed under each count. The procedure was also justified because it facilitated appellate review of the verdict in a situation in which the trial court entertained some reservations about the propriety of one specification alleged in the bill of particulars. Indeed, the Appellate Division found that the third specification as to each count submitted on the verdict sheet was not properly presented to the Grand Jury, and thus should not have been submitted for the jury’s consideration (People v Ribowsky, 156 AD2d 726, 727-728). The error did not result in reversal, however, because the Appellate Division was able to determine from the verdict sheet that the jury had returned a unanimous verdict of guilty as to at least one of the specifications under each count of perjury. Defendant was not prejudiced by the court’s procedure and the perjury convictions should be affirmed.

II

Finally, defendant claims that the court committed error in refusing his request to charge the jury on venue. Noting that Kings County jurisdiction over the conspiracy and false filing charges was premised solely on contested evidence of overt acts committed there by other alleged coconspirators, he claims that it is impossible to determine whether the jury accepted that evidence as true. The People concede the omission was error but contend that the Appellate Division correctly found the error harmless.

The defendant has the right at common law and under the State Constitution to be tried in the county where the crime was committed unless the Legislature has provided otherwise (People v Moore, 46 NY2d 1, 6; People v Goldswer, 39 NY2d 656, 659-661; NY Const, art I, §2). The burden is on the People to prove by a preponderance of the evidence that the county where the crime is prosecuted is the proper venue because either the crime was committed there (People v Hetenyi, 277 App Div 310, affd 301 NY 757; see also, People v Hetenyi, 304 NY 80) or one of the statutory exceptions is applicable (People v Tullo, 34 NY2d 712). Conspiracy is such an exception: it may be prosecuted in the county in which defendant entered into the conspiracy or any county in which an overt act in furtherance of the conspiracy was committed by defendant or one of the coconspirators (CPL 20.40 [1] [b]; Penal Law §§ 105.20,105.25 [l]).

Generally, it is for the jury to decide as a matter of fact, the place where the crime was committed (People v Hetenyi, supra) or any other fact relevant to venue (People v Tullo, supra). When defendant has requested that venue be submitted to them, it is doubtful that it would ever be proper for the court to decide the question as a matter of law (People v Moore, supra, at 7). Defendant contested venue in this case and it was error not to submit the question to the jury. However, such an error is subject to harmless error analysis where it appears from the verdict that the jury necessarily found that an overt act occurred in the county asserting jurisdiction (cf., People v Sosnik and People v Pazos, 77 NY2d 858 [decided today]). It is not enough that the record contains evidence of an overt act in that country — it must appear from the instructions or by necessary implication from the verdicts that the jury made a finding of proper venue. The error was harmless here because the jury passed on the question when it found defendant guilty of the perjury committed in Kings County (see, CPL 20.40 [1] [a]; Penal Law § 105.25 [1]).

Defendant maintains that the perjury charges cannot be used to sustain jurisdiction because those charges were not alleged as overt acts in the conspiracy indictment. An indictment for conspiracy need not allege every overt act, however, so long as it apprises the defendant of the charge and protects against future jeopardy (see, Wong Tai v United States, 273 US 77; United States v Lam Lek Chong, 544 F2d 58, 63 [2d Cir], cert denied sub nom. Liganoza v United States, 429 US 1101; United States v Cohen, 518 F2d 727, 733 [2d Cir]; United States v Kenny, 462 F2d 1205, 1213-1215 [3d Cir]). If the indictment provides sufficient detail about the scope and nature of the conspiracy and the major overt acts committed in furtherance of it, then evidence may be offered at trial of related overt acts (see, People v Bongarzone, 116 AD2d 164, 171, affd 69 NY2d 892; United States v Cohen, 518 F2d 727, 733, supra).

The function of the overt act in a conspiracy prosecution is "simply to manifest 'that the conspiracy is at work,’ * * * and is neither a project still resting solely in the minds of the conspirators nor a fully completed operation no longer in existence.” (Yates v United States, 354 US 298, 334.) The overt act must be an independent act that tends to carry out the conspiracy, but need not necessarily be the object of the crime (see, People v McGee, 49 NY2d 48, 57-58; People v Bongarzone, 116 AD2d 164, 169, affd 69 NY2d 892, supra; People v Men-ache, 98 AD2d 335, 336-337; 2 LaFave & Scott, Substantive Criminal Law §6.5 [c], at 93-96). Acts of concealment occurring before, during or, in some cases, after the conspiratorial objective is achieved may constitute overt acts in furtherance of an ongoing conspiracy (cf., Grunewald v United States, 353 US 391; see generally, 2 LaFave & Scott, Substantive Criminal Law § 6.5 [e], at 107-108; Note, Acts of Concealment and the Continuation of a Conspiracy, 17 Ga L Rev 539).

Defendant’s appearance before the Grievance Committee was solely for the purpose of giving testimony concerning conduct relating to the insurance fraud and his testimony was intended to conceal and continue the fraud. Thus, the perjury constituted an overt act that tended to carry out the object of a continuing conspiracy. It was in furtherance of the conspiracy because concealment was central to the scheme. The Kramer office presented more than 1,000 fraudulent claims between 1979-1984 and concealment of these fraudulent claims and the procedure for presenting them was necessarily important to continuation of the conspiracy. Additionally, members of the firm testified that they had advised defendant to testify falsely before the Grievance Committee in June 1983 for this reason and there was undisputed evidence that a coconspirator attempted to bribe an Assistant District Attorney in September 1983 to halt the investigation. Moreover, the conspiracy was ongoing during the period when defendant testified because the evidence established that although the Kramer firm discontinued the use of defendant’s address in March 1983, fraudulent claims continued to be processed and settled and correspondence addressed to Kihl continued to be received at defendant’s address months after defendant testified in June of 1983. Manifestly, therefore, defendant’s testimony before the Grievance Committee was given not merely to cover up a completed or abandoned scheme to defraud insurers: it was intended to assist in the continuation of that conspiracy and constituted an overt act in furtherance of it.

The perjury charges were not alleged as overt acts in the indictment but inasmuch as concealment was important to the insurance scheme and helped to define its nature and scope, defendant had sufficient notice that they would be part of the conspiracy case, and would constitute overt acts upon which jurisdiction could be predicated (see, People v Bongarzone, 116 AD2d 164, 171, supra; United States v Cohen, 518 F2d 727, 733, supra). Any doubt on the point is countered by a review of the first perjury indictment, and the court’s ruling dismissing it, and by the fact that the second indictment for perjury was consolidated with the other charges.

Because the jury found defendant guilty of perjury in Kings County beyond a reasonable doubt and the perjury constituted an overt act in furtherance of an ongoing conspiracy, it necessarily follows that the jury passed on the question of venue and found by a preponderance of the evidence that at least one overt act in furtherance of the conspiracy was committed there. It could have done no more if properly instructed and the failure to do so was harmless.

We have examined defendant’s remaining points and find that none requires reversal of the judgment.

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

Chief Judge Wachtler and Judges Kaye, Alexander, Ti-tone, Hancock, Jr., and Bellacosa concur.

Order affirmed.

      . Jurisdiction over the perjury counts was premised on defendant’s perjurious testimony before the Grievance Committee in Kings County (see, CPL 20.40 [1] [a]).

      . Originally there were two indictments against defendant. Indictment No. 4319/84 charged conspiracy, fifth degree, occurring between January 1, 1979 and June 30,1984, listing 46 claim settlements as overt acts, and seven counts of offering a false instrument for filing, first degree. Indictment No. 5140/86 charged conspiracy, fifth degree, occurring between March 1, 1983 and June 13, 1983, listing the two instances of perjury before the Grievance Committee as overt acts, and two counts of perjury. That indictment was dismissed, with leave to resubmit, because of an error in the instructions to the Grand Jury regarding accomplice testimony. The necessary implication of the court’s dismissal is that the two conspiracies listed in the indictments were one and the same, i.e., Attorney Kihl and Investigator O’Brien, were accomplices to the perjury and also coconspirators as a matter of law. The present perjury indictment covers the same subject matter as the dismissed indictment.


text:
    In the Matter of the Honorable Francis Benjamin, a Justice of the Jewett Town Court, Petitioner. State Commission on Judicial Conduct, Respondent.
    Argued January 4, 1991;
    decided February 14, 1991

      POINTS OF COUNSEL

      Stephen R. Coffey and Brian D. Premo for petitioner.

      Gerald Stern and Jean M. Savanyu for respondent.
   OPINION OF THE COURT

Per Curiam.

The complaint charged that on the night of April 14, 1988, petitioner sexually and physically abused the complainant. At the subsequent hearing, respondent Commission called three witnesses — the complainant, New York State Trooper Peter Kusminsky and State Police Investigator Steven Brignoli; among other exhibits, the Commission introduced into evidence a statement signed by petitioner some weeks later in which he acknowledged certain of the events described in the complaint. Petitioner testified on his own behalf and called two other witnesses; he denied the charges and offered a wholly different version of the events, expressly disavowing his written statement and testifying that he signed the document without having read it. The Referee credited the complainant’s account of the incident and concluded that petitioner had violated the Rules Governing Judicial Conduct and the Code of Judicial Conduct as charged. The Commission issued a determination confirming the Referee’s findings and imposed the sanction of removal, a decision it upheld on reargument.

Petitioner asserts that the complainant’s allegations were beyond belief, and that the Commission’s determination is not supported by a preponderance of the evidence. The record, however, provides no basis for overturning the Commission’s decision to credit "the testimony of [complainant], which is substantially corroborated by that of the police officers and the oral and written statements made by [petitioner],” and to reject the version of relevant events tendered by petitioner in his testimony. In sum, a preponderance of the evidence does support the Commission’s conclusion that petitioner "physically forced himself on an unwilling victim.”

We also reject petitioner’s argument that failure to produce a note made by Trooper Kusminsky on the night of the assault requires that the Commission’s determination be overturned. The note — produced by Kusminsky on cross-examination — states that the complainant "appeared calm, not frazzled or messy — also intox stated nothing about suposed [sic] incident.” There is no support in the record for petitioner’s contention that the Commission had possession of the note and deliberately withheld it from him.

Section 44 (4) of the Judiciary Law requires the Commission’s counsel, upon the request of the Judge, to disclose "any written statements made by witnesses who will be called to give testimony” and, even if no request is made, to provide "any exculpatory evidentiary data.” The statute further states that "failure of the commission to timely furnish any documents, statements and/or exculpatory evidentiary data and material provided for herein shall not affect the validity of any proceedings before the commission provided that such failure is not substantially prejudicial.” Although the note qualifies as a prior statement and arguably as exculpatory material, review of the record reveals that petitioner was not substantially prejudiced by the failure of counsel to turn over the document.

Petitioner’s counsel was able to use the note in cross-examining both Trooper Kusminsky and the complainant. The note was produced before petitioner presented his case, and the proceeding was adjourned for four weeks after disclosure, giving him ample opportunity to study the document and incorporate it into his defense. Petitioner claims the prejudice arises from his inability to use the note in cross-examining Inspector Brignoli, but has offered no evidence in support of that contention. Significantly, petitioner’s counsel made no request to recall Brignoli after the note was discovered.

Finally, petitioner’s allegation of bias on the part of the Referee is without merit.

Accordingly, the determined sanction should be accepted, without costs, and petitioner removed from the office of Justice of the Jewett Town Court, Greene County.

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

Determined sanction accepted, etc.


author: Titone, J.

text:
    Francis M. Savastano, as Director of the Mental Hygiene Legal Service, et al., Appellants, v George Nurnberg, as Director of Psychiatry, Queens Hospital Center, et al., Respondents.
    Argued November 14, 1990;
    decided December 27, 1990

      POINTS OF COUNSEL

      Dennis B. Feld, Kim L. Darrow and Thomas A. Behrendt for appellants.

      Victor A. Kovner, Corporation Counsel (Fred Kolikoff and Larry A. Sonnenshein of counsel), for George Nurnberg, respondent.

      Robert Abrams, Attorney-General (Frank K. Walsh, O. Peter Sherwood and Peter H. Schiff of counsel), for Steven Katz, respondent.

      Herbert Semmel and Marilyn A. Kneeland for American Orthopsychiatric Association and another, amici curiae.

      Joel I. Klein, Laurel Pyke Malson and Christopher D. Cerf, of the District of Columbia Bar, admitted pro hac vice, for New York State Psychiatric Association, amicus curiae.

   OPINION OF THE COURT

Titone, J.

At issue on this appeal is the constitutionality of the statutory and regulatory scheme which permits the Commissioner of the New York State Office of Mental Health to authorize the transfer of involuntarily committed mentally ill patients, over their objection, from municipal acute-care facilities to intermediate and long-term State mental health institutions, without holding a prior judicial hearing as to the appropriateness of the transfer (see, Mental Hygiene Law § 29.11; 14 NYCRR 517.4). For the reasons that follow, we conclude that the procedural scheme which has been established does not violate the Due Process Clause of either the Federal or the New York State Constitution (US Const 14th Amend; NY Const, art I, § 6).

I

In February 1987, Francis Savastano, the then Director of the Mental Hygiene Legal Service, commenced this declaratory judgment action on behalf of three involuntary patients who were going to be transferred, over their objection, from the Queens Hospital Center, a general municipal hospital with a 46-bed inpatient acute-care psychiatric ward, to the Creed-moor Psychiatric Center, a facility operated by the New York State Office of Mental Health. Specifically, plaintiffs contended that section 29.11 of the Mental Hygiene Law and 14 NYCRR 517.4, which authorized their transfer without a prior judicial hearing, violated their due process rights under the United States and New York State Constitutions.

After hearing oral argument, the Supreme Court, Queens County (Di Tucci, J.), declared the statutory and regulatory scheme to be unconstitutional, viewing its procedural protections as inadequately safeguarding the due process rights of objecting patients. On appeal, however, the Appellate Division reversed, disagreeing with the Supreme Court’s conclusion that the transfers in question even implicated a constitutionally protected liberty interest. The court, however, also went on to hold that even if such an interest did exist, the procedures which had been set up were sufficient to satisfy the demands of due process under both the Federal and our State Constitutions. Plaintiffs appealed as of right to this Court (CPLR 5601 [b] [1]). We now affirm.

II

Under the laws of this State, those who suffer, or are believed to suffer, from mental illness are protected by a network of procedural safeguards. For instance, while a patient may initially be involuntarily admitted to a mental health facility upon the certification of two examining physicians (Mental Hygiene Law § 9.27 [a]), the patient may within 60 days of his or her admittance request a judicial hearing as to whether continued involuntary care is needed (Mental Hygiene Law § 9.31 [a]). If the court determines that it is not, then the patient must be released (Mental Hygiene Law § 9.31 [c]). Further, even if the patient does not request a hearing, judicial authorization for continued retention of the patient must be sought within 60 days of the patient’s admission (Mental Hygiene Law § 9.33 [a]).

The provisions at issue on this appeal afford similar protections. Section 29.11 of the Mental Hygiene Law, and particularly its implementing regulations (14 NYCRR 517.4), provide a procedural framework that must be followed before an objecting patient may be transferred from a municipal psychiatric facility to a State institution. Under these regulations, such a transfer may occur only after the patient is given the opportunity to appeal the proposed transfer to the sending hospital’s director or its clinical director (14 NYCRR 517.4 [c] [3]). While the appeal may be conducted informally, without adherence to the rules of evidence and record keeping, the director or clinical director must review the patient’s past history; give the patient, the Mental Hygiene Legal Service and any patient representative the opportunity to discuss the patient’s objections to transfer; and, based on certain enumerated criteria, determine whether, on balance, the transfer would be in the patient’s best interest (id.). The receiving hospital must also be given the opportunity to examine the patient prior to admission, and may reject the transfer if it finds it would be inappropriate (14 NYCRR 517.4 [g]). Additionally, a patient who is dissatisfied with a transfer determination may challenge it by commencing an article 78 proceeding and may seek injunctive relief staying the transfer pending judicial review (CPLR 7805). Significantly, even if the transfer is upheld, the receiving institution may retain the patient only for the balance of the period for which the sending facility was authorized to do so, unless a further court order is obtained (Mental Hygiene Law § 29.11 [j]).

Ill

In challenging the administrative appeal procedure set forth above, plaintiffs essentially argue that due process requires that a full-scale judicial hearing be held before an objecting patient may be transferred to a State-operated psychiatric institution. We disagree. Although there can be no doubt that an involuntarily admitted mentally ill patient does not abandon his or her constitutional rights at the facility door (see, Youngberg v Romeo, 457 US 307, 315-316; Rivers v Katz, 67 NY2d 485), it is equally true that the procedural protections required by due process must be determined with reference to the rights and interests at stake (see, Washington v Harper, 494 US 210, —, 110 S Ct 1028, 1040-1041). Assuming, without deciding, that a transfer from an acute-care facility to a State-operated institution implicates a constitutionally protected liberty interest, we conclude that the procedural protections provided by the regulatory scheme at issue here sufficiently safeguard the due process rights of those involuntary patients who object to being transferred (US Const 14th Amend; NY Const, art I, § 6).

Our analysis is guided by the United States Supreme Court’s decision in Mathews v Eldridge (424 US 319, 335), where it was held that: “[[Identification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail.”

While, in balancing these competing concerns, we recognize that a patient’s interest in not being inappropriately transferred to an intermediate or long-term State mental health institution is not insubstantial, we cannot ignore the fact that the decision to transfer reflects primarily a medical judgment about the kind of facility that would best serve the patient’s therapeutic needs (see, 14 NYCRR 517.4 [d] [1]). Such a decision seems most appropriately left to those who have an expertise in that field (see, Washington v Harper, supra, at —, at 1042; Parham v J. R., 442 US 584, 607 [“ 'neither judges nor administrative hearing officers are better qualified than psychiatrists to render psychiatric judgments’ ”]; cf., Rivers v Katz, supra, at 496 [" '(T)he sine qua non for the state’s use of its parens patriae power as justification for the forceful administration of mind-affecting drugs is a determination that the individual to whom the drugs are to be administered lacks the capacity to decide for himself whether he should take the drugs’ (citation omitted). Such a determination is uniquely a judicial, not a medical function”]). As Chief Justice Burger observed in Parham (supra, at 609): “Although we acknowledge the fallibility of medical and psychiatric diagnosis, * * * we do not accept the notion that the shortcomings of specialists can always be avoided by shifting the decision from a trained specialist using the traditional tools of medical science to an untrained judge or administrative hearing officer after a judicial-type hearing. Even after a hearing, the nonspecialist decisionmaker must make a medical-psychiatric decision. Common human experience and scholarly opinions suggest that the supposed protections of an adversary proceeding to determine the appropriateness of medical decisions for the * * * treatment of mental and emotional illness may well be more illusory than real.” (Citation omitted.)

Likewise, we conclude that additional procedural safeguards, such as providing objecting patients with an opportunity to cross-examine witnesses and requiring adherence to the rules of evidence, would be of little, if any, value to the decision-making process. Since, as previously noted, a transfer decision essentially involves a medical judgment as to what type of facility is best suited for most effectively dealing with a particular patient’s illness, it seems highly unlikely that these additional procedural requirements would decrease the risk of erroneous deprivations (see, Washington v Harper, supra, at —, at 1044 [due process does not require that the hearing be conducted in accordance with the rules of evidence]; Basciano v Herkimer, 605 F2d 605, 611, cert denied 442 US 929 ["the value of cross-examination to discredit a professional medical opinion at best is limited”]).

We also find unpersuasive plaintiffs’ contention that the challenged regulations prevent a patient’s appeal from being decided in an unbiased and impartial manner since the transferring facility may be influenced by institutional pressures, such as overcrowding. Such an argument not only fails to consider that such concerns are relevant to decisions regarding treatment, inasmuch as overcrowding has a direct impact on the level and quality of hospital services, but it also overlooks the fact that any potential for undue influence is offset by the receiving facility’s right to refuse any transfer it finds inappropriate.

Finally, we note that the State’s interest in the outcome of this case is substantial in light of the significant administrative and fiscal burdens which would result from the necessity of holding a prior judicial hearing each time an involuntary patient objects to being transferred to a State institution. Such a requirement would, in our view, accomplish little else than the diversion of scarce resources from the care and treatment of mentally ill patients (Parham v J. R., supra, at 605-606 [a State “has a genuine interest in allocating priority to the diagnosis and treatment of patients as soon as they are admitted to a hospital rather than to time-consuming procedural minuets * * * Behavioral experts in courtrooms and hearings are of little help to patients.”]).

IV

In sum, we conclude that Mental Hygiene Law § 29.11 and its implementing regulations, 14 NYCRR 517.4, are facially constitutional, to the extent that they permit an involuntarily admitted mentally ill patient to be transferred, over his or her objection, from a municipal acute-care facility to an intermediate or long-term mental health institution operated by the New York State Office of Mental Health, without a prior judicial hearing as to the appropriateness of such a transfer.

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

Chief Judge Wachtler and Judges Simons, Kaye, Alexander and Hancock, Jr., concur with Judge Titone; Judge Bellacosa concurs in result only on the threshold ground that no constitutionally cognizable liberty interest is implicated by the statutory and regulatory scheme at issue.

Order affirmed, without costs.

      . The Mental Hygiene Legal Service is an agency authorized pursuant to article 47 of the Mental Hygiene Law to advocate for and protect the rights of mentally ill patients.

      . The need for confinement must also be confirmed by a third physician at the admitting facility (Mental Hygiene Law § 9.27 [e]).

      . Section 29.11 of the Mental Hygiene Law provides in pertinent part: "(a) Subject to his regulations, the commissioner may order or approve the transfer of a patient from one facility to another appropriate facility. * * *
      "(i) If at the time the commissioner orders the transfer of an involuntary patient from a hospital to a hospital operated by the state, there is pending a request for a hearing or a decision by a court on the question of need for involuntary care and treatment, the commissioner may either (i) stay his order of transfer until completion of the hearing, or (ii) direct the transfer to take place and the director of the state facility shall be substituted in all legal proceedings regarding continued retention of the patient.”

      . An application for an order of transfer may be made by the patient, a significant other or guardian of the patient, or the sending hospital’s director or his designee (14 NYCRR 517.4 [a]).

      . The patient may elect to have a person represent him or her during the appeal (14 NYCRR 517.4 [c] [3]).

      . The criteria which must be considered in determining whether to transfer a patient from an acute-care facility to a State institution, over his or her objection, include:
      "(i) The patient’s need for continued inpatient treatment.
      "(ii) The patient’s need for services which are more readily available or which can be more effectively provided at the receiving hospital.
      "(iii) Proximity of the sending and receiving hospitals to the patient’s significant others.

        "(iv) The ability of the sending hospital to provide adequate overall treatment of the patient, as affected by:
      "(a) overcrowding;
      "(b) reduction or elimination of services beneficial to the patient; and "(c) reduction in the number of approved beds.
      "(v) The ability of the receiving hospital to provide adequate overall treatment of the patient, as affected by:
      "(a) overcrowding;
      "(b) the availability of services beneficial to the patient; and "(c) bed capacity.” (14 NYCRR 517.4 [d] [1].)

      . Plaintiffs have failed to offer any persuasive reasons why we should, in the present context, construe article I, § 6 of our State Constitution as affording greater protections than its Federal counterpart, thus we decline to do so (see, Sinhogar v Parry, 53 NY2d 424, 433, n 5; cf., Rivers v Katz, 67 NY2d 485).

      . See, Washington v Harper, 494 US 210, —, 110 S Ct 1028, 1044 (''[I]t is only by permitting persons connected with the institution to make these decisions that courts are able to avoid 'unnecessary intrusion into * * * medical * * * judgments’ ”, quoting Vitek v Jones, 445 US 480, 496).

      . To the extent that plaintiffs argue that the regulatory scheme is not being followed, resulting in patients being transferred to State facilities when such transfers are not in their best interest, we merely note that such an allegation does not provide a basis for challenging the facial constitutionality of the regulations in question.


author: Chief Judge Wachtler.

text:
    Solomon R. Guggenheim Foundation, Respondent, v Mrs. Jules Lubell, Appellant. (And Third- and Fourth-Party Actions.)
    Argued January 3, 1991;
    decided February 14, 1991

      POINTS OF COUNSEL

      Norman A. Senior, Harry Torczyner and Gary B. Friedman for appellant.

      Jeffrey Barist, F. Ellen Zeifer and Glenn M. Kurtz for respondent.

      Janis Ettinger, Franklin Feldman and Brian M. Cogan for International Foundation for Art Research, amicus curiae.

   OPINION OF THE COURT

Chief Judge Wachtler.

The backdrop for this replevin action (see, CPLR art 71) is the New York City art market, where masterpieces command extraordinary prices at auction and illicit dealing in stolen merchandise is an industry all its own. The Solomon R. Guggenheim Foundation, which operates the Guggenheim Museum in New York City, is seeking to recover a Chagall gouache worth an estimated $200,000. The Guggenheim believes that the gouache was stolen from its premises by a mailroom employee sometime in the late 1960s. The appellant Rachel Lubell and her husband, now deceased, bought the painting from a well-known Madison Avenue gallery in 1967 and have displayed it in their home for more than 20 years. Mrs. Lubell claims that before the Guggenheim’s demand for its return in 1986, she had no reason to believe that the painting had been stolen.

On this appeal, we must decide if the museum’s failure to take certain steps to locate the gouache is relevant to the appellant’s Statute of Limitations defense. In effect, the appellant argues that the museum had a duty to use reasonable diligence to recover the gouache, that it did not do so, and that its cause of action in replevin is consequently barred by the Statute of Limitations. The Appellate Division rejected the appellant’s argument. We agree with the Appellate Division that the timing of the museum’s demand for the gouache and the appellant’s refusal to return it are the only relevant factors in assessing the merits of the Statute of Limitations defense. We see no justification for undermining the clarity and predictability of this rule by carving out an exception where the chattel to be returned is a valuable piece of art. Appellant’s affirmative defense of laches remains viable, however, and her claims that the museum did not undertake a reasonably diligent search for the missing painting will enter into the trial court’s evaluation of the merits of that defense. Accordingly, the order of the Appellate Division should be affirmed.

The gouache, known alternately as Menageries or Le Marchand de Bestiaux (The Cattle Dealer), was painted by Marc Chagall in 1912, in preparation for an oil painting also entitled Le Marchand de Bestiaux. It was donated to the museum in 1937 by Solomon R. Guggenheim.

The museum keeps track of its collection through the use of "accession cards,” which indicate when individual pieces leave the museum on loan, when they are returned and when they are transferred between the museum and storage. The museum lent the painting to a number of other art museums over the years. The last such loan occurred in 1961-1962. The accession card for the painting indicates that it was seen in the museum on April 2, 1965. The next notation on the accession card is undated and indicates that the painting could not be located.

Precisely when the museum first learned that the gouache had been stolen is a matter of some dispute. The museum acknowledges that it discovered that the painting was not where it should be sometime in the late 1960s, but claims that it did not know that the painting had in fact been stolen until it undertook a complete inventory of the museum collection beginning in 1969 and ending in 1970. According to the museum, such an inventory was typically taken about once every 10 years. The appellant, on the other hand, argues that the museum knew as early as 1965 that the painting had been stolen. It is undisputed, however, that the Guggenheim did not inform other museums, galleries or artistic organizations of the theft, and additionally, did not notify the New York City Police, the FBI, Interpol or any other law enforcement authorities. The museum asserts that this was a tactical decision based upon its belief that to publicize the theft would succeed only in driving the gouache further underground and greatly diminishing the possibility that it would ever be recovered. In 1974, having concluded that all efforts to recover the gouache had been exhausted, the museum’s Board of Trustees voted to "deaccession” the gouache, thereby removing it from the museum’s records.

Mr. and Mrs. Lubell had purchased the painting from the Robert Elkon Gallery for $17,000 in May of 1967. The invoice and receipt indicated that the gouache had been in the collection of a named individual, who later turned out to be the museum mailroom employee suspected of the theft. They exhibited the painting twice, in 1967 and in 1981, both times at the Elkon Gallery. In 1985, a private art dealer brought a transparency of the painting to Sotheby’s for an auction estimate. The person to whom the dealer showed the transparency had previously worked at the Guggenheim and recognized the gouache as a piece that was missing from the museum. She notified the museum, which traced the painting back to the defendant. On January 9, 1986, Thomas Messer, the museum’s director, wrote a letter to the defendant demanding the return of the gouache. Mrs. Lubell refused to return the painting and the instant action for recovery of the painting, or, in the alternative, $200,000, was commenced on September 28, 1987.

In her answer, the appellant raised as affirmative defenses the Statute of Limitations, her status as a good-faith purchaser for value, adverse possession, laches, and the museum’s culpable conduct. The museum moved to compel discovery and inspection of the gouache and the defendant cross-moved for summary judgment. In her summary judgment papers, the appellant argued that the replevin action to compel the return of the painting was barred by the three-year Statute of Limitations because the museum had done nothing to locate its property in the 20-year interval between the theft and the museum’s fortuitous discovery that the painting was in Mrs. Lubell’s possession. The trial court granted the appellant’s cross motion for summary judgment, relying on DeWeerth v Baldinger (836 F2d 103), an opinion from the United States Court of Appeals for the Second Circuit. The trial court cited New York cases holding that a cause of action in replevin accrues when demand is made upon the possessor and the possessor refuses to return the chattel. The court reasoned, however, that in order to avoid prejudice to a good-faith purchaser, demand cannot be unreasonably delayed and that a property owner has an obligation to use reasonable efforts to locate its missing property to ensure that demand is not so delayed. Because the museum in this case had done nothing for 20 years but search its own premises, the court found that its conduct was unreasonable as a matter of law. Consequently, the court granted Mrs. Lubell’s cross motion for summary judgment on the grounds that the museum’s cause of action was time barred.

The Appellate Division modified, dismissing the Statute of Limitations defense and denying the appellant’s cross motion for summary judgment. The Appellate Division held that the trial court had erred in concluding that "delay alone can make a replevin action untimely” (153 AD2d 143, 149). The court stated that the appellant’s lack of diligence argument was more in the nature of laches than the Statute of Limitations and that as a result, the appellant needed to show that she had been prejudiced by the museum’s delay in demanding return of the gouache (id.). The court also held that summary judgment was inappropriate because several issues of fact existed, including whether the museum’s response to the theft was unreasonable, when the museum first realized that the gouache was missing, when the museum should have realized that the gouache had been stolen, whether it was unreasonable for the museum not to have taken certain steps after it realized that the gouache was missing but before it realized that it had been stolen, and when the museum learned of the defendant’s possession of the gouache (id., at 151-152). The Appellate Division granted leave to this Court, certifying the following question: "Was the order of this Court, which modified the order of the Supreme Court, properly made?” We answer this certified question in the affirmative.

New York case law has long protected the right of the owner whose property has been stolen to recover that property, even if it is in the possession of a good-faith purchaser for value (see, Saltus & Saltus v Everett, 20 Wend 267, 282). There is a three-year Statute of Limitations for recovery of a chattel (CPLR 214 [3]). The rule in this State is that a cause of action for replevin against the good-faith purchaser of a stolen chattel accrues when the true owner makes demand for return of the chattel and the person in possession of the chattel refuses to return it (see, e.g., Goodwin v Wertheimer, 99 NY 149, 153; Cohen v Keizer, Inc., 246 App Div 277). Until demand is made and refused, possession of the stolen property by the good-faith purchaser for value is not considered wrongful (see, e.g., Gillet v Roberts, 57 NY 28, 30-31; Menzel v List, 49 Misc 2d 300, 304-305, mod as to damages 28 AD2d 516, revd as to modification 24 NY2d 91). Although seemingly anomalous, a different rule applies when the stolen object is in the possession of the thief. In that situation, the Statute of Limitations runs from the time of the theft (see, Sporn v MCA Records, 58 NY2d 482, 487-488), even if the property owner was unaware of the theft at the time that it occurred (see, Varga v Credit Suisse, 5 AD2d 289, 292-293, affd 5 NY2d 865).

In DeWeerth v Baldinger (supra), which the trial court in this case relied upon in granting Mrs. LubelVs summary judgment motion, the Second Circuit took note of the fact that New York case law treats thieves and good-faith purchasers differently and looked to that difference as a basis for imposing a reasonable diligence requirement on the owners of stolen art. Although the court acknowledged that the question posed by the case was an open one, it declined to certify it to this Court (see, 22 NYCRR 500.17), stating that it did not think that it "[would] recur with sufficient frequency to warrant use of the certification procedure” (836 F2d, at 108, n 5). Actually, the issue has recurred several times in the three years since DeWeerth was decided (see, e.g., Republic of Turkey v Metropolitan Museum of Art, No. 87 Civ 3750 [VLB], slip opn [SD NY July 16, 1990]), including the case now before us. We have reexamined the relevant New York case law and we conclude that the Second Circuit should not have imposed a duty of reasonable diligence on the owners of stolen art work for purposes of the Statute of Limitations.

While the demand and refusal rule is not the only possible method of measuring the accrual of replevin claims, it does appear to be the rule that affords the most protection to the true owners of stolen property. Less protective measures would include running the three-year statutory period from the time of the theft even where a good-faith purchaser is in possession of the stolen chattel, or, alternatively, calculating the statutory period from the time that the good-faith purchaser obtains possession of the chattel (see generally, Weil, Repose, 8 IFAR [Inti Found for Art Research] Rep, at 6-7 [Aug.-Sept. 1987]). Other States that have considered this issue have applied a discovery rule to these cases, with the Statute of Limitations running from the time that the owner discovered or reasonably should have discovered the whereabouts of the work of art that had been stolen (see, e.g., O’Keefe v Snyder, 83 NJ 478, 416 A2d 862; Cal Civ Proc Code § 338 [c]).

New York has already considered — and rejected — adoption of a discovery rule. In 1986, both houses of the New York State Legislature passed Assembly Bill 11462-A (Senate Bill 3274-B), which would have modified the demand and refusal rule and instituted a discovery rule in actions for recovery of art objects brought against certain not-for-profit institutions. This bill provided that the three-year Statute of Limitations would run from the time these institutions gave notice, in a manner specified by the statute, that they were in possession of a particular object. Governor Cuomo vetoed the measure, however, on advice of the United States Department of State, the United States Department of Justice and the United States Information Agency (see, 3 U.S. Agencies Urge Veto of Art-Claim Bill, NY Times, July 23, 1986, at C15, col 1). In his veto message, the Governor expressed his concern that the statute "[did] not provide a reasonable opportunity for individuals or foreign governments to receive notice of a museum’s acquisition and take action to recover it before their rights are extinguished.” The Governor also stated that he had been advised by the State Department that the bill, if it went into effect, would have caused New York to become "a haven for cultural property stolen abroad since such objects [would] be immune from recovery under the limited time periods established by the bill.”

The history of this bill and the concerns expressed by the Governor in vetoing it, when considered together with the abundant case law spelling out the demand and refusal rule, convince us that that rule remains the law in New York and that there is no reason to obscure its straightforward protection of true owners by creating a duty of reasonable diligence. Our case law already recognizes that the true owner, having discovered the location of its lost property, cannot unreasonably delay making demand upon the person in possession of that property (see, e.g., Heide v Glidden Buick Corp., 188 Misc 198). Here, however, where the demand and refusal is a substantive and not a procedural element of the cause of action (see, Guggenheim Found, v Lubell, 153 AD2d, at 147; Menzel v List, 22 AD2d 647; compare, CPLR 206 [where a demand is necessary to entitle a person to commence an action, the time to commence that action is measured from when the right to make demand is complete]), it would not be prudent to extend that case law and impose the additional duty of diligence before the true owner has reason to know where its missing chattel is to be found.

Further, the facts of this case reveal how difficult it would be to specify the type of conduct that would be required for a showing of reasonable diligence. Here, the parties hotly contest whether publicizing the theft would have turned up the gouache. According to the museum, some members of the art community believe that publicizing a theft exposes gaps in security and can lead to more thefts; the museum also argues that publicity often pushes a missing painting further underground. In light of the fact that members of the art community have apparently not reached a consensus on the best way to retrieve stolen art (see, Burnham, Art Theft: Its Scope, Its Impact and Its Control), it would be particularly inappropriate for this Court to spell out arbitrary rules of conduct that all true owners of stolen art work would have to follow to the letter if they wanted to preserve their right to pursue a cause of action in replevin. All owners of stolen property should not be expected to behave in the same way and should not be held to a common standard. The value of the property stolen, the manner in which it was stolen, and the type of institution from which it was stolen will all necessarily affect the manner in which a true owner will search for missing property. We conclude that it would be difficult, if not impossible, to craft a reasonable diligence requirement that could take into account all of these variables and that would not unduly burden the true nwner.

Further, our decision today is in part influenced by our recognition that New York enjoys a worldwide reputation as a preeminent cultural center. To place the burden of locating stolen artwork on the true owner and to foreclose the rights of that owner to recover its property if the burden is not met would, we believe, encourage illicit trafficking in stolen art. Three years after the theft, any purchaser, good faith or not, would be able to hold onto stolen art work unless the true owner was able to establish that it had undertaken a reasonable search for the missing art. This shifting of the burden onto the wronged owner is inappropriate. In our opinion, the better rule gives the owner relatively greater protection and places the burden of investigating the provenance of a work of art on the potential purchaser.

Despite our conclusion that the imposition of a reasonable diligence requirement on the museum would be inappropriate for purposes of the Statute of Limitations, our holding today should not be seen as either sanctioning the museum’s conduct or suggesting that the museum’s conduct is no longer an issue in this case. We agree with the Appellate Division that the arguments raised in the appellant’s summary judgment papers are directed at the conscience of the court and its ability to bring equitable considerations to bear in the ultimate disposition of the painting. As noted above, although appellant’s Statute of Limitations argument fails, her contention that the museum did not exercise reasonable diligence in locating the painting will be considered by the Trial Judge in the context of her laches defense. The conduct of both the appellant and the museum will be relevant to any consideration of this defense at the trial level, and as the Appellate Division noted, prejudice will also need to be shown (153 AD2d, at 149). On the limited record before us there is no indication that the equities favor either party. Mr. and Mrs. Lubell investigated the provenance of the gouache before the purchase by contacting the artist and his son-in-law directly. The Lubells displayed the painting in their home for more than 20 years with no reason to suspect that it was not legally theirs. These facts will doubtless have some impact on the final decision regarding appellant’s laches defense. Because it is impossible to conclude from the facts of this case that the museum’s conduct was unreasonable as a matter of law, however, Mrs. Lubell’s cross motion for summary judgment was properly denied.

We agree with the Appellate Division, for the reasons stated by that court, that the burden of proving that the painting was not stolen properly rests with the appellant Mrs. Lubell. We have considered her remaining arguments, and we find them to be without merit. Accordingly, the order of the Appellate Division should be affirmed, with costs, and the certified question answered in the affirmative.

Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur.

Order affirmed, etc.


author: Bellacosa, J. Hancock, Jr., J.

text:
    Ada Rivera, Individually and as Administratrix of the Estate of Milton Rivera, Deceased, Respondent, v New York City Transit Authority, Appellant.
    Argued January 8, 1991;
    decided February 14, 1991

      POINTS OF COUNSEL

      Lawrence A. Silver and Albert C. Cosenza for appellant.

      Louis Venezia, Benedict L. Sliney and Ralph M. Cursio for respondent.
   OPINION OF THE COURT

Bellacosa, J.

In 1980, Milton Rivera fell from the platform of the 42nd Street and 6th Avenue Manhattan subway station onto the tracks and was struck by an arriving train. He died several hours later. His widow sued the New York City Transit Authority (TA) for damages. After a trial, the jury returned a verdict in plaintiff’s favor, apportioning fault 15% against plaintiff’s decedent and 85% against defendant TA. The Appellate Division affirmed, with two Justices dissenting, and this appeal is taken as a matter of right.

The theory of plaintiff’s case was that the subway operator was negligent in speeding into the station and in not taking measures to stop the train as soon as he first observed the decedent on the platform. The defendant TA contends principally on this appeal that the trial court erred in refusing its requested instructions on the emergency doctrine and foreseeability. This argument has merit and a new trial is required.

The parties’ factual dispute pivoted on the point at which the operator first saw decedent as the train approached the station and the point at which he released the emergency handle to stop the train. A related aspect was whether decedent had been standing steadily near the edge of the platform before he suddenly staggered and fell in one rapid motion, or whether the operator had observed Rivera staggering near the edge of the platform for a period of time prior to the fall.

A police report made shortly after the accident revealed that the operator stated he had "observed [a] male stumble then fall to the tracks after staggering.” The operator testified that he first saw Rivera from 30-60 feet away as Rivera staggered from the platform onto the tracks, and that the operator immediately released the emergency brake handle. Prior to the arrival of the train, two witnesses who were also waiting on the platform observed decedent acting in an erratic manner, staggering, as if he were intoxicated or on drugs. One of these witnesses also saw the accident and testified that decedent had stood for 10-15 seconds at the edge of the platform looking toward the tunnel from which the train arrived and that decedent was not staggering during that time and did not appear unsteady at all. The witness confirmed that the train was about 30-40 feet away when Rivera fell onto the tracks. He testified that the incident happened so quickly he was unable to look away to avoid seeing the impact. The autopsy disclosed no evidence of alcohol or drug use and the experts were unable to determine the cause of decedent’s behavior or fall.

Experts for both sides testified that the train had entered the station at approximately 20 miles per hour. At trial, the operator put the range at approximately 15-25 miles per hour. Plaintiff’s transportation engineer expert opined that it is negligent to operate a train at more than 15 miles per hour upon entering a station. He concluded that the train’s excessive speed when it entered the station, combined with the delay in simply failing to release immediately a handle for emergency braking, caused the accident. Based on his calculations that the operator must have seen decedent in ample time to avoid the impact, he added that the operator should have been able to stop the train before it struck the decedent. Defendant’s civil transportation engineer expert concluded that the train entered the station at a reasonable speed and that the accident was unavoidable. It was established that a train moving at 20 miles per hour would travel 100 feet (30 feet per second) after the emergency brake is activated; at 15 miles per hour, it would cover 48-60 feet. Defendant’s expert testified that based on the eyewitness accounts, the operator would not have had the time or distance to prevent the train from striking the decedent after the sudden fall onto the tracks.

Viewing the evidence, as we must, in the light most favorably towards giving the requested emergency doctrine instruction to the jury, we conclude that it was reversible error for the trial court to deny the TA’s request (Ferrer v Harris, 55 NY2d 285, 293, remittitur amended 56 NY2d 737; see also, Mas v Two Bridges Assocs., 75 NY2d 680, 686-687; PJI 2:14). This doctrine recognizes that when an actor is faced with a sudden and unexpected circumstance which leaves little or no time for thought, deliberation or consideration, or causes the actor to be reasonably so disturbed that the actor must make a speedy decision without weighing alternative courses of conduct, the actor may not be negligent if the actions taken are reasonable and prudent in the emergency context (Amaro v City of New York, 40 NY2d 30, 36; Rowlands v Parks, 2 NY2d 64, 67; see also, PJI 2:14). A person in such an emergency situation "cannot reasonably be held to the same accuracy of judgment or conduct as one who has had full opportunity to reflect, even though it later appears that the actor made the wrong decision” (Prosser and Keeton, Torts § 33, at 196 [5th ed]; see also, Amaro v City of New York, supra, at 36). A party requesting the emergency instruction is entitled to have the jury so charged if some evidence of a qualifying emergency is presented. If, under some reasonable view of the evidence, an actor was confronted by a sudden and unforeseen occurrence not of the actor’s own making, then the reasonableness of the conduct in the face of the emergency is for the jury, which should be appropriately instructed (Ferrer v Harris, 55 NY2d, supra, at 292-293).

The evidence in this case presents a person, awaiting the arrival of the train, suddenly and unexpectedly falling off the platform and onto the tracks. In light of defendant’s expert’s testimony that the operator was driving the train at a reasonable and prudent speed upon entering the station, the jury — if it believed that witness — could reasonably have concluded that the train was not traveling at an excessive speed and that the accident was unavoidable. Evidence was also adduced indicating that an operator entering the station can observe passengers within only 3Vi feet of the edge of the platform. Thus, a reasonable view of the evidence could support the conclusion that the accident was sudden and unexpected in that when the operator first saw Rivera he was standing normally near the edge of the platform but then staggered and fell onto the tracks without warning. A disinterested eyewitness confirmed these key details. Despite some conflicting testimony from other witnesses, the jury could reasonably have concluded that the operator released the brake handle as soon as he observed decedent’s sudden, inseparable act of staggering and falling. The entire incident unfolded within seconds, during which flash of time the operator had to assess, deliberate, consider alternatives, and react to attempt to make the safest and speediest choice. The operator, in addition to everything else, also had to be mindful of the consequences to passengers on his train if the train were subjected to a sudden emergency stop.

Thus, whether the train was traveling at a reasonable speed, whether the operator responded reasonably under all the circumstances, and whether the situation qualified as an emergency are all aspects on which the jury should have been instructed in the context of the emergency doctrine, because it could have resolved the case one way or the other depending on its acceptance in whole or part of the contested evidence and varying inferences. The emergency doctrine is thus plainly and centrally relevant and appropriate in this case. The jury, for example, had to resolve whether the accident was unavoidable, or whether the collision and fatal injury were caused by either the operator’s excusable error or misjudgment in an emergency situation, or by his inexcusably negligent act in contributing to the creation of the emergency. To be sure, the actor will not ordinarily be excused when the emergency has been created by that person’s own negligence and the jury should have been instructed in that balanced particular as well (see, Ferrer v Harris, 55 NY2d, supra, at 293; see also, PJI 2:14; Prosser and Keeton, Torts § 33, at 197 [5th ed]). In all events, moreover, the trial court’s grant of the requested emergency instruction would by no means have constituted anything close to a directed verdict for the defendant TA. Rather, it would have provided a fair and balanced backdrop for the jury’s deliberations on this case in its realistic and full context.

The scientific or arithmetical retrospective computation by plaintiff’s expert that, theoretically, the operator had adequate seconds to observe the passenger and stop the train to avoid this human collision does not, in law, eliminate the defendant’s entitlement in this case to have the jury instructed on how to assess the reasonableness of the particular response and judgment used by the TA’s operator in an emergency setting. The plaintiff’s theory of the case, after all, is that the train’s excessive speed and the operator’s delay in releasing the emergency brake handle negligently caused the accident. Thus, the jury should have been instructed that it could evaluate the operator’s response in the framework of the continuum of time from when he was first able to observe the plaintiff’s decedent until the brake was activated (see, Ward v F. R. A. Operating Corp., 265 NY 303; Lewis v Long Is. R. R. Co., 162 NY 52, 62; Polley v Polley, 11 AD2d 121, affd 9 NY2d 1006).

In that legal causation context of this case, we note also that the trial court should have instructed the jury on foreseeability, as requested by defendant. The question of foreseeability is usually for the jury to resolve, with proper and full instructions, when, as here, varying inferences may be drawn from the facts and evidence (see, Kriz v Schum, 75 NY2d 25, 34; Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315). Whether defendant legally caused Rivera’s injury and death depends upon whether they were reasonably foreseeable risks stemming from defendant’s conduct. If the operator could not reasonably foresee the injury as a result of his actions in the over-all context of this particular fact pattern, or if his conduct was reasonable and proportionate to the danger he could anticipate, defendant may be excused or found not liable by a fact finder (see, Danielenko v Kinney Rent-A-Car, 57 NY2d 198, 204). The issues regarding the point at which the operator first saw Rivera, how Rivera was acting prior to the fall, and the reasonableness of the operator’s response in releasing the emergency brake handle in proportion to the danger to be perceived, were contested by sharply conflicting evidence at trial. The Trial Judge therefore miscued in concluding that "[t]his is not a foreseeability case” and erred in failing to give the requested instruction.

Inasmuch as a new trial is required, we note that the trial court should not have admitted into evidence the defendant’s entire internal rule book and manual containing irrelevant material which was not relied upon by the parties’ experts or which imposed a higher standard of proof on defendant than that imposed by law (see, Crosland v New York City Tr. Auth., 68 NY2d 165, 168-169).

Finally, defendant’s further contention seeking dismissal for failure to present a prima facie case is without merit and was correctly decided by the courts below.

Accordingly, the order of the Appellate Division should be reversed and a new trial granted, with costs to abide the event.

Hancock, Jr., J.

(dissenting). I would affirm. The Appellate Division properly held that an emergency charge was not warranted. The emergency doctrine is predicated on the notion that an actor confronted with a sudden and unexpected event which leaves little or no time for thought, deliberation or consideration, or which reasonably causes the actor to make a quick decision without weighing alternative courses of action, cannot be judged in the same way as someone who has had a full opportunity to reflect before acting (see, Amaro v City of New York, 40 NY2d 30, 36; Ferrer v Harris, 55 NY2d 285, 292-293).

That the actor is confronted with a sudden and unexpected event does not, without more, implicate the emergency doctrine. If that were the law, an emergency charge would be required in almost every accident case because an accident by its very nature is sudden and unexpected. What justifies the charge is the effect that the sudden and unexpected event has on the actor in the particular circumstances — i.e., whether it puts the actor in a position of having to make a split second choice or decision concerning the preferred course of conduct necessary to avoid harm to the endangered party (see, Ferrer v Harris, supra, at 292-293). In such a situation, there is no negligence if the choice or decision is reasonable under the circumstances, even though the actor did not use the best judgment (see, PJI 2:14; Amaro v City of New York, supra, at 36). In this case, neither plaintiff's nor defendant’s version of the facts requires an assessment of the reasonableness of the motorman’s choice of action in the face of an emergency.

According to plaintiff, the motorman saw or should have seen plaintiff’s decedent staggering near the edge of the platform for several seconds prior to decedent’s fall onto the tracks. The train then was still 200 to 344 feet away. Had the motorman taken steps then to stop or slow down, the accident could have been avoided. The claim of negligence is that he did not do so. This claim has nothing to do with the motorman’s choice of action when confronted with an emergency. On the contrary, it involves the motorman’s failure to act some seconds before any emergency arose. That this failure undoubtedly contributed to the emergency situation which later developed does not, of course, call for an emergency charge, but actually militates against it (see, Ferrer v Harris, supra, at 293; PJI 2:14). Thus, the emergency doctrine cannot apply if plaintiff’s evidence is accepted.

Nor does defendant’s interpretation of the evidence warrant an emergency charge. According to the motorman’s testimony, he did not see decedent until he fell on the tracks when the train was so close (30 to 60 feet away) that the accident could not have been avoided. This sudden and unexpected event obviously constituted an . emergency, but, as the motorman tells it, the accident was then unavoidable. The motorman was not presented with acceptable alternatives. The only course of action open to him was the one he pursued — an immediate release of the spring-loaded controller to activate the emergency brake in an effort to stop the train and prevent the injury (see, Brennan v Felter, 48 AD2d 846, 847 [emergency doctrine inapplicable where a party claims the peril arose so suddenly that the accident could not have been avoided]).

Because neither party’s version of the facts requires an assessment of the reasonableness of the motorman’s choice of action in the face of an emergency, defendant was not entitled to a charge on the emergency doctrine. Accordingly, the majority’s holding that such a charge was called for here is contrary to established precedent and inconsistent with the basic theory of the emergency doctrine.

Even assuming that a charge on foreseeability would have been preferable, any error in this regard was clearly harmless. The trial court defined reasonable care, as "that care which a reasonably prudent carrier of passengers will exercise * * * in keeping with the dangers and risks known to the carrier, or which it should reasonably have anticipated” (emphasis added). The charge on reasonable care (conveying the foreseeability concept) and the self-evident likelihood that a person staggering near the edge of a subway platform might fall onto the track (a risk of which every motorman is acutely aware) rendered any omission of a charge on foreseeability inconsequential. Similarly, any error concerning the admission of defendant’s entire rule book was harmless and provides no basis for reversal, because the rule book was never actually given to the jury.

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

Order reversed, etc.


author: Chief Judge Wachtler. Kaye, J.

text:
    Northway Engineering, Inc., Respondent, v Felix Industries, Inc., et al., Appellants.
    Argued January 4, 1991;
    decided February 19, 1991

      POINTS OF COUNSEL

      Stanley S. Zinner for appellants.

      Michael L. Costello for respondent.
   OPINION OF THE COURT

Chief Judge Wachtler.

The question on this appeal is whether an order of preclusion, entered when the defendants failed to provide particulars relating to their counterclaims, also precludes the defendants from offering any defense to the complaint. The courts below held that it did and the defendants appeal.

The defendant, Felix Industries, was the general contractor for a sewage filtration plant constructed in Sullivan County. In 1983, it entered into a contract with the plaintiff, North-way Engineering, Inc., to have the plaintiff perform certain work as a subcontractor on the project. Pursuant to this agreement Felix paid Northway over $900,000, but refused to pay certain requisitions totaling $88,762.72. In 1986, the subcontractor sued the contractor and its surety for this amount, claiming that plaintiff had performed all work required on the contract and that this represented the balance due. Defendants’ answer contains a general denial. In addition, defendants asserted two counterclaims alleging breach of contract and negligent performance. On the counterclaims, also denominated "defenses”, the defendants demanded damages of $50,000.

The plaintiff served a demand for a bill of particulars with respect to the counterclaims. When the defendants failed to respond, the plaintiff moved for an order of preclusion which the court granted conditionally, allowing the defendants an additional 30 days to supply the bill. However, the defendants did not take advantage of this extension and the preclusion order became absolute. That effectively removed the counterclaims from the case.

During the course of the litigation the plaintiff also made two motions for summary judgment on its complaint. Initially plaintiff applied for partial summary judgment in the amount of $58,227.83. The defendants offered no opposition and the motion was granted. That reduced the amount in dispute to $30,534.89. The plaintiff then moved for summary judgment in this amount. Defendants opposed this motion, claiming that the plaintiff had erred in its computation by failing to credit properly certain amounts previously paid and by excluding certain "chargebacks” for work it had never completed. Although the defendants submitted affidavits and documents in support of these contentions, the plaintiff argued that the preclusion order barred the defendants "from offering any defense.” The trial court agreed and granted summary judgment to the plaintiff for the amount claimed to be due.

The Appellate Division affirmed, stating: "the counterclaims by defendants were, essentially, denials of plaintiff’s claim for money due and an assertion of defendants’ views of the amount in dispute under the terms of the contract. Accordingly, since defendants were precluded from presenting any proof concerning matters alleged in their counterclaims * * * and those matters were inextricably interwoven with the allegations of the complaint and present for resolution the same factual dispute upon which defendants’ defense rests, the motion was properly granted.” (160 AD2d, at 1134.) Two Justices dissented and the defendants appeal on the basis of the dissents (CPLR 5601 [a]).

On this appeal it is not disputed, in the absence of preclusion, that the defendants’ general denial is sufficient to permit the defense asserted, and that the affidavits and documentary evidence submitted by the defendants demonstrate that a question of fact exists with respect to these contentions. The only question is whether the defendants are barred from making the defense because of the preclusion order entered when they failed to provide particulars regarding the counterclaims. In our view, the preclusion order should not be given that effect and the motion for summary judgment should have been denied.

In determining the scope of the preclusion order at issue in this case, it is important to emphasize that it relates to a demand for a bill of particulars and not to a disclosure notice or other discovery device. The distinction is important because these procedures serve different functions in the pretrial setting.

Under the broad discovery statutes now in effect in this State, any party may demand disclosure of evidence, or information leading to evidence, relevant to the case without regard to the burden of proof (CPLR 3101 [a]; Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406; Siegel, NY Prac § 344, at 420-422). The sanctions for failure to comply with such a request are equally broad and include a preclusion order preventing the nondisclosing party from using the evidence in any manner during the course of the litigation (CPLR 3126 [2]; see also, e.g., Feingold v Walworth Bros., 238 NY 446).

A bill of particulars, on the other hand, is a more limited device, designed simply to amplify or supplement a pleading, and was first recognized at common law before the development of the modern discovery rules (Dwight v Germania Life Ins. Co., 84 NY 489; State of New York v Horsemen’s Benevolent & Protective Assn., 34 AD2d 769). It was liberally employed by the courts at a time when it was virtually the only means by which a party could obtain any insight into the nature of the adversary’s case (Dwight v Germania Life Ins. Co., supra; see also, e.g., Cunard v Francklyn, 111 NY 511; Elman v Ziegfeld, 200 App Div 494). Over the years it has generated an extensive pretrial motion practice which the courts and the Legislature have sought to discourage by simplifying the procedure and discouraging motions relating to bills of particulars (see, e.g., CPLR 3042 [h] [denying costs]; 3043 [specifying content of bill in personal injury actions]). Some jurisdictions, including the Federal courts, have abolished the bill, concluding that broad disclosure statutes render it superfluous (Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3041:l, at 477). The drafters of the CPLR also recommended its abolishment in conjunction with the expansion of the disclosure statutes now found in article 31 (ibid.). However, the Legislature retained the bill of particulars, not as a disclosure device (CPLR art 31), but in its traditional and limited role as a means of amplifying a pleading (CPLR 3041 et seq.). The appropriate sanction for failure to provide a bill should also be limited to preventing the harm which would otherwise be caused by failure to furnish the particulars.

It is generally stated that a bill of particulars amplifies a pleading by setting forth in greater detail the nature of the allegations and what the party making them intends to prove (Dwight v Germania Life Ins. Co., supra; see also, Siegel, NY Prac, at 291-292). Thus it relates to the burden of proof and requires each party upon demand to provide particulars with respect to matters alleged in that party’s pleading, whether it be a complaint, an answer, or any other type of pleading (3 Weinstein-Korn-Miller, NY Civ Prac fl 3041.10; Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3041:6, at 482). However, a party need not particularize general denials because these are matters on which the party making the allegations, and not the party denying them, has the burden of proof (Silberfeld v Swiss Bank Corp., 263 App Div 1017; Dommerich & Co. v Diener & Dorskind, 31 AD2d 516; Siegel, NY Prac § 238, at 292).

If a party neglects or refuses to respond to a demand for a bill of particulars, the court may enter a preclusion order (CPLR 3042 [c]). This bars the recalcitrant party from proving allegations it has failed to amplify and relieves the adversary from having to meet a claim which has not been clearly explained or defined. Typically preclusion orders are prospective and conditional, permitting the offending party to avoid preclusion by complying with the demand before the order goes into effect (CPLR 3042 [e]), but the statute also permits the court to enter the order unconditionally without dispensation (CPLR 3042 [c]). Unless a preclusion order is set aside, most courts hold that it may serve as a basis for summary judgment dismissing the complaint or counterclaim (Vandoros v Kovacevic, 79 Misc 2d 238 [App Term 1974]), and if the only defense to an action is an affirmative defense which has been precluded it would seem, on principle, that summary judgment should be awarded to the plaintiff. Thus a preclusion order is a strong sanction and as one authority observes: “the punishment here should fit the crime, precluding only as to that for which particulars have not been furnished.” (Siegel, Practice Commentaries, op. cit., C3042:5, at 530.)

In this case the plaintiff demanded particulars only with respect to the counterclaims. The plaintiff had no right to demand particulars concerning the general denials or the specific nature of the defenses they presented. When the defendants failed to comply with the demand, the court properly precluded the defendants from proceeding on the counterclaims, but there was no need to give the preclusion order the additional effect of stripping the defendants of their general denials. Although these defenses and the precluded counterclaims arise out of the same dispute, and thus may be factually interwoven, that is no reason to treat the demand for a bill as a demand for disclosure by giving the preclusion order a kind of collateral estoppel effect beyond the particular pleading or portion of the pleading the bill was intended to amplify. That is especially true when, as here, there was nothing in the motion papers or conditional preclusion order which would alert the defendants to this particular risk, and it is not the usual consequence of a preclusion order relating to a bill of particulars (see, e.g., Vandoros v Kovacevic, supra, at 239).

The purpose of a preclusion order is to make the demanding party whole. Whatever disadvantage the plaintiff suffered as a result of the defendants’ failure to furnish particulars relating to the counterclaims was cured when the court effectively removed the counterclaims from the case by precluding the defendants from submitting evidence in support of them. To further preclude the defendants from asserting defenses which require only general denials, despite the existence of a genuine factual dispute, deprives the defendants of their day in court and gives the plaintiff more relief than is warranted by the defendants’ failure to clarify counterclaims which the plaintiffs are no longer required to meet. It also blurs the distinction between the demand for a bill of particulars and a demand for disclosure, creating a sometimes redundant and misleading procedure, likely to revive the burdensome bill of particulars motion practice which the courts and the Legislature have long sought to avoid.

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

Kaye, J.

(dissenting). I disagree with the majority’s conclusion that interposition of a general denial insulated these defendants (a general contractor and its surety) from the effects of a preclusion order. In my view, the trial court and Appellate Division correctly awarded plaintiff subcontractor summary judgment for the balance due on its contract, which it has been litigating to collect for nearly five years.

The majority’s conclusion rests on an erroneous factual premise. Plaintiffs request for a bill of particulars was not addressed merely to defendants’ counterclaims, as the majority persistently misportrays throughout its writing (majority opn, at 334, 335, 337). Instead, plaintiffs request was directed to specific paragraphs of the answer which defendant itself had denominated "counterclaim and defense” (emphasis supplied).

No one disputes that a party need particularize only matters as to which it has the burden of proof (see, 3 Weinstein-Korn-Miller, NY Civ Prac ¶ 3041.10). This includes a defendant’s "counterclaims, cross-claims, and defenses in the answer.” (Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3041:6, at 482). Defendants, of course, had the opportunity to frame their own pleading, assuming a risk that the burden of proof might be shifted as to matters they chose — for whatever strategic advantage they perceived —to designate as defenses (see, Siegel, Practice Commentaries, McKinney’s Cons Law of NY, Book 7B, CPLR C3018:16, at 157).

This case comes down to a few simple points.

First, whatever historically interesting matters may have been true of bills of particulars (see, majority opn, at 335-336), they are today an integral part of the CPLR, and they continue to serve what the Legislature obviously believes are important purposes. The CPLR specifies when and how a request for particulars should be made, amended and answered; when and how a request should be vacated and modified; and what sanctions are available for failure to comply with a request (CPLR 3042). In this very case, defendants requested — and plaintiff furnished — an extensive bill of particulars, including schedules of payments, names of witnesses and other exhibits.

Second, plaintiff complied with the CPLR when it sought particulars as to defendants’ two counterclaims and defenses. Defendants, by contrast, ignored the CPLR; they in fact ignored all of plaintiff’s discovery requests. While now complaining that the burden of proof was "unfairly” shifted to them, defendants had ample remedies to redress that complaint. Within 10 days, defendants could have moved to vacate or modify what they contend was an improper request for a bill of particulars (CPLR 3042 [a]). Such a motion would have enabled the court, in an orderly fashion, to hear both sides and determine the propriety of plaintiff’s request. Defendants also could have amended their answer to correct any mislabeling of their defenses (CPLR 3025 [a], [b]).

Where a defendant fails to furnish a requested bill of particulars with respect to a defense, it may be precluded from introducing evidence relevant to that defense (see, Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3042:5, at 530).

When defendant ignored plaintiff’s request for particulars, plaintiff sought a preclusion order. When defendant ignored the motion for preclusion, the court — more than one year after plaintiff’s request had been made — granted a conditional preclusion order. When defendant ignored the court’s preclusion order for five months, plaintiff sought summary judgment, fully documenting its entitlement to relief. Only at that point did defendant claim the protection of its general denial, asserting that the request sought information as to which it did not have the burden of proof.

Third, defendants’ calculated indifference to the CPLR— involving plaintiff and the court in costly, time-consuming motion practice — should not be rewarded by now reversing summary judgment. That is an improper result in this case, and a very poor example for other cases. Plaintiff should have the balance due on its contract rather than defendants’ renewed foot-dragging, discovery runarounds, and litigation in the trial court — as well as a bill of costs from us.

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

Order reversed, etc.

       After one full year of litigation, defendants conceded a portion of the claim, and allowed partial summary judgment to be entered against them.