text:
    In the Matter of 166 Mamaroneck Avenue Corp., Respondent, v 151 East Post Road Corp., Appellant.
    Argued April 24, 1991;
    decided June 11, 1991

      POINTS OF COUNSEL

      Robert A. Maehleder and Robert C. Buff for appellant.
    I. The renewal provision of the lease provided no methodology or objective extrinsic standard for determining a renewal rent and thus is an agreement to agree which is void and unenforceable. (Martin Delicatessen v Schumacher, 52 NY2d 105; United Equities v Mardordic Realty Co., 8 AD2d 398, 7 NY2d 911; Van Beuren v Wotherspoon, 12 App Div 421; Doyle v Hamilton Fish Corp., 144 App Div 131.) II. The court below erred in finding that the renewal provision is enforceable on the basis of this Court’s decision in Cobble Hill Nursing Home v Henry & Warren Corp. (Cobble Hill Nursing Home v Henry & Warren Corp., 74 NY2d 475; Mulcahy v Rhode Is. Hosp. Trust Natl. Bank, 83 AD2d 846, 55 NY2d 1036.)

      Herbert Schrank, Stanley Goldstein and Patricia M. Murphy for respondent.
    I. Article 75 of the CPLR mandates enforcement of the arbitration provision in the renewal clause. (Matter of County of Rockland [Primiano Constr. Co.], 51 NY2d 1; Matter of Prinze [Jonas], 38 NY2d 570; Matter of Grayson-Robinson Stores [Iris Constr. Corp], 8 NY2d 133.) II. The doctrine of "agreement to agree” is inapplicable to the case at bar. (Lyon v Hersey, 103 NY 264; Brown Bros. Elec. Contrs. v Beam Constr. Corp., 41 NY2d 397; Orr v Doubleday, Page & Co., 223 NY 334, 700; May Metro. Corp. v May Oil Burner Corp., 290 NY 260.) III. Martin Delicatessen specifically refers to arbitration as a permitted standard or condition that would support the validity of the renewal clause. (Martin Delicatessen v Schumacher, 52 NY2d 105; Matter of Silverman [Benmor Coats], 61 NY2d 299.) IV. The determination of renewal rental by arbitration is an acceptable methodology as held by this Court in Cobble Hill. (Cobble Hill Nursing Home v Henry & Warren Corp., 74 NY2d 475.) V. Upholding the validity of this clause would be consistent with decisions rendered in foreign jurisdictions. VI. The cases upon which appellant itself relies require a finding that the renewal option in the lease is valid and enforceable. (Mulcahy v Rhode Is. Hosp. Trust Natl. Bank, 83 AD2d 846.)
   OPINION OF THE COURT

Chief Judge Wachtler.

In this case, we consider whether a lease renewal option that provides for arbitration if the parties cannot agree on rent for the renewal period is indefinite and therefore unenforceable. We agree with the Appellate Division that the option is not an invalid "agreement to agree” because the arbitration clause provides an objective standard for determining the amount of rent. Accordingly, the order of the Appellate Division should be affirmed.

The appellant in this proceeding is the landlord, 151 East Post Road Corp., and the respondent is the tenant, 166 Mamaroneck Avenue Corp. Both are successors in interest to parties that signed a 42-year commercial lease in 1946 for a parcel in White Plains. The term ran from January 1, 1947 to January 1, 1989. The lease gave the tenant, its successors, or assigns the "right, option and privilege” to renew the lease for another 21-year term on the same conditions and terms as those contained in the original lease except for the amount of rent. According to the agreement, if the parties were unable to agree to the rent, "the same shall be fixed by arbitration as provided for by the Civil Practice Act of the State of New York.”

The tenant notified the landlord of its intention to exercise the option and renew the lease. The parties entered into negotiations but were unable to agree on a new rent for the renewal period. In November of 1986, the landlord filed a demand for arbitration with the American Arbitration Association seeking determination of the market rental value of the parcel for the 21-year renewal period. The demand was later withdrawn. In September of 1988, the landlord notified the tenant that it deemed the tenant’s rights and interests in the parcel as terminating on January 1, 1989, the original expiration date set forth in the lease.

By service of notice of petition and petition verified October 19, 1988, the tenant commenced a proceeding in Supreme Court, Westchester County, for appointment of an arbitrator pursuant to CPLR 7504. The landlord cross-moved for dismissal of the proceeding for failure to state a cause of action "in that the renewal provision contained in the lease [was] an agreement to agree and [was] therefore void and unenforceable”. Supreme Court granted the landlord’s cross motion to dismiss the petition. The court found that the renewal term was indefinite and therefore unenforceable, relying upon this Court’s holding in Martin Delicatessen v Schumacher (52 NY2d 105) and upon the decision of the Appellate Division in Cobble Hill Nursing Home v Henry & Warren Corp. (144 AD2d 518). The Appellate Division reversed and granted the tenant’s petition, also relying upon Cobble Hill, which had in the interim been reversed by this Court (74 NY2d 475). We now affirm.

The doctrine of definiteness or certainty is well established in contract law. In short, it means that a court cannot enforce a contract unless it is able to determine what in fact the parties have agreed to (see, 1 Corbin, Contracts § 95, at 394). As we noted recently in Cobble Hill, "[i]f an agreement is not reasonably certain in its material terms, there can be no legally enforceable contract” (74 NY2d, at 482, citing Martin Delicatessen v Schumacher, 52 NY2d, at 109; Restatement [Second] of Contracts § 33 [1981]). Further, "a mere agreement to agree, in which a material term is left for future negotiations, is unenforceable” (Martin Delicatessen v Schumacher, supra, at 109).

This Court, however, has not applied the definiteness doctrine rigidly. Contracting parties are often imprecise in their use of language, which is, after all, fluid and often susceptible to different and equally plausible interpretations. Imperfect expression does not necessarily indicate that the parties to an agreement did not intend to form a binding contract. A strict application of the definiteness doctrine could actually defeat the underlying expectations of the contracting parties (Cobble Hill Nursing Home v Henry & Warren Corp., supra, at 483). Thus, where it is clear from the language of an agreement that the parties intended to be bound and there exists an objective method for supplying a missing term, the court should endeavor to hold the parties to their bargain (see, 1 Williston, Contracts § 46, at 152-153 [3d ed]). Striking down a contract as indefinite and in essence meaningless "is at best a last resort” (Cohen & Son v Lurie Woolen Co., 232 NY 112, 114).

In Martin Delicatessen (supra), we identified two ways in which the requirement of definiteness could be satisfied in the absence of an explicit contract term: (1) an agreement could contain "a methodology for determining the [missing term] * * * within the four corners of the lease, for a [term] so arrived at would have been the end product of agreement between the parties themselves”; or (2) an agreement could "inviteQ recourse to an objective extrinsic event, condition or standard on which the amount was made to depend.” (Id., at 110.)

We looked to these principles for guidance when we revisited the definiteness doctrine in the Cobble Hill case. There, the tenant had an option to purchase a nursing home owned by the defendant "at a price determined by the Department [of Health] in accordance with the Public Health Law and all applicable rules and regulations of the Department” (id., at 480). The defendant refused to sell the facility to the tenant, contending that the price term contained in the option was void for indefiniteness (id., at 481). We held the option enforceable, concluding that the parties’ intent that a third person fix the sales price for the nursing home "itself provided] an objective standard without the need for further expressions by the parties” (id., at 483). We noted that it was apparent from the agreement that the parties rested discretion in the Department of Health to calculate the sales price, "limited only by the requirement that it apply provisions that were suitable, pertinent and appropriate for the task at hand.” (Id., at 484.)

In the case now before us, we examine a contract in which the parties have expressly provided that a third party, an arbitrator, is to determine the price term in the event they are unable to reach an agreement on their own. As in Cobble Hill, the contract does not spell out the precise manner in which the amount of rent is to be calculated. The landlord argues that this renders the clause unenforceable. We disagree. The original parties to the lease themselves selected a process for the calculation of rent for the renewal term. They clearly intended to be bound by the arbitrator’s determination. Arbitration, while a process and not a methodology per se, implicates the participation and decision making of a neutral third party. We conclude that by providing for this eventuality and agreeing to be bound by the result, the parties "invited recourse to an objective extrinsic event, condition or standard on which the amount was made to depend” (Martin Delicatessen v Schumacher, supra, at 110), and that the renewal term is consequently definite and enforceable.

That the third party in this case is an arbitrator and not a governmental subdivision is of no consequence. Just as the Department of Health was circumscribed by applicable law and regulations in Cobble Hill, so too would the authority and discretion of an arbitrator be mapped out by State statutory and common law. Article 75 of the CPLR, which as successor to the Civil Practice Act (see, CPLR 101) applies to the lease term at issue in this case, establishes definite, ascertainable standards for the manner in which an arbitration is conducted. CPLR 7504 permits the court, on application, to appoint an arbitrator if a method for appointment is not specified in the agreement. This case was commenced by such an application. CPLR 7506 addresses the actual hearing and sets requirements for notice, the presentation of evidence, representation by an attorney, and determination by majority. Article 75 sets out the manner in which awards can be confirmed, vacated or modified by the court (see, CPLR 7510, 7511).

Further, a rich body of common law supplements CPLR article 75. Arbitration is a favored method of dispute resolution in New York, as this Court has repeatedly held (Matter of Weinrott [Carp], 32 NY2d 190, 199; see also, Sablosky v Gordon Co., 73 NY2d 133, 138; Mobil Oil Indonesia v Asamera Oil [Indonesia], 43 NY2d 276, 281; Matter of Prime [Jonas], 38 NY2d 570, 574), and New York courts interfere "as little as possible with the freedom of consenting parties” to submit disputes to arbitration (Matter of Siegel v Lewis, 40 NY2d 687, 689; Gilbert v Burnstine, 255 NY 348, 353; see generally, Siegel, NY Prac § 586, at 931 [2d ed]). Additionally, the cases grant arbitrators broad authority to resolve disputes, unfettered by formal rules of law or the constraints of the traditional litigation model (see, Matter of Silverman [Benmor Coats], 61 NY2d 299, 308-309; Lentine v Fundaro, 29 NY2d 382; Fudickar v Guardian Mut. Life Ins. Co., 62 NY 392, 399-400). When the original parties to this lease consented to arbitration of a rent dispute, they necessarily entrusted the dispute to the considerable discretion of the arbitrator. Article 75 and the relevant case law together chart the outer limits of this discretion.

Thus, while this case is not identical to Cobble Hill, we believe that our reasoning in that case applies with equal force here. We do not doubt that the original parties to the lease fully intended to be bound by their agreement. The decision of these parties to submit any dispute as to the amount of rent payable during the renewal period to an arbitrator — a third party with considerable discretion, but whose discretion is delineated by law — provides an objective standard that renders the renewal clause definite and enforceable.

We have considered appellant’s remaining arguments and we find them to be without merit.

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

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

Order affirmed, with costs.


source: Caselaw Access Project

author: Alexander, J.

license: Public Domain

text:
    Dineen M. Lago, as Administratrix of the Estate of Francis V. Cervoni, Appellant, v Robert Krollage et al., Respondents. Robert Krollage et al., Third-Party Plaintiffs-Respondents, v National Association for Stock Car Auto Racing, Inc., et al., Third-Party Defendants-Respondents.
    Argued May 1, 1991;
    decided June 11, 1991

      POINTS OF COUNSEL

      Paul M. Duffy for appellant.
    I. General Obligations Law § 5-326 renders defendant’s releases void as against public policy and wholly unenforceable. (Miranda v Hampton Auto Raceway, 130 AD2d 558; Beardslee v Blomberg, 70 AD2d 732; Meier v Ma-Do Bars, 106 AD2d 143.) II. The courts below improperly determined that plaintiffs decedent assumed the risk of participating in a negligently coordinated activity. (Green v WLS Promotions, 132 AD2d 521; Turcotte v Fell, 68 NY2d 432; Cole v New York Racing Assn., 24 AD2d 993; Geise v County of Niagara, 117 Misc 2d 470; Larson v Nassau Elec. R. R. Co., 223 NY 14; Maltz v Board of Educ., 32 Misc 2d 492, 282 App Div 888; Maddox v City of New York, 66 NY2d 270; Arbegast v Board of Educ., 65 NY2d 161; Leiner v First Wythe Ave. Serv. Sta., 121 Misc 2d 559; Noseworthy v City of New York, 298 NY 76.)

      E. Richard Rimmels, Jr., for Suffolk Motordome, Inc., respondent and National Association for Stock Car Auto Racing, Inc., third-party defendant-respondent.
    I. Since decedent assumed the risks and hazards, no duty was owed by defendants. (Turcotte v Fell, 68 NY2d 432; Verro v New York Racing Assn., 142 AD2d 396; Maddox v City of New York, 66 NY2d 270; Clapman v City of New York, 63 NY2d 669; Davidoff v Metropolitan Baseball Club, 61 NY2d 996; Akins v Glens Falls City School Dist., 53 NY2d 325; Clark v Goshen Sunday Morning Softball League, 122 AD2d 769; Gilchrist v City of Troy, 113 AD2d 271; Arbegast v Board of Educ., 65 NY2d 161; Jensen v Chevron Corp., 160 AD2d 767.) II. The covenant contained in the NASCAR application is valid, in any event.
      (Ciofalo v Vic Tanney Gyms, 10 NY2d 294; Kirshenbaum v General Outdoor Adv. Co., 258 NY 489; Florence v Merchants Cent. Alarm Co., 51 NY2d 793; Idone v Pioneer Sav. & Loan Assn., 159 AD2d 560; Hogeland v Sibley, Lindsay & Curr Co., 42 NY2d 153; Jensen v Chevron Corp., 160 AD2d 767; Auburn Steel Co. v Westinghouse Elec. Corp., 158 AD2d 938; Long v State of New York, 158 AD2d 778.) III. Section 5-326 of the General Obligations Law does not apply. (Howell v Dundee Fair Assn., 73 NY2d 804.) IV. There was a clear and unequivocal intention not to sue. (Drzewinski v Atlantic Scaffold & Ladder Co., 70 NY2d 774; Gross v Sweet, 49 NY2d 102; Church v Seneca County Agric. Socy., 41 NY2d 787, 34 NY2d 571; Solodar v Watkins Glen Grand Prix Corp., 36 AD2d 552; Gervasi v Holland Raceway, 40 AD2d 574; Kotary v Spencer Speedway, 47 AD2d 127; Whalen v Vic Tanny Hicksville, 23 AD2d 778.)
   OPINION OF THE COURT

Alexander, J.

Plaintiffs decedent Francis V. Cervoni, died as a result of injuries sustained at a stock car racing event held on August 28, 1982, at Islip Speedway, a facility then being operated by Suffolk Motordome, Inc.

During a "figure-eight” race sanctioned by the National Association for Stock Car Auto Racing, Inc. (NASCAR), while working in the pit area on the infield of the track, attempting to fix a disabled vehicle, Cervoni was struck by a race car owned by Car Care Center, Inc., and driven by Robert Krollage who lost control of his vehicle. Cervoni subsequently died from his injuries.

Plaintiff commenced this negligence and wrongful death action against Krollage, Car Care Center, Inc., and Suffolk Motordome, Inc. These defendants cross-claimed each against the other and also asserted, inter alla, as affirmative defenses to plaintiffs complaint, releases signed by Cervoni in which he agreed to release and hold harmless the owners, promoters, lessors and others from any liability resulting from their negligence at any NASCAR sanctioned event.

The Appellate Division affirmed Supreme Court’s order denying plaintiff’s motion to dismiss the affirmative defenses asserted by the defendants and third-party defendants based upon these releases and granting cross motions to dismiss all claims against the defendants and third-party defendants. Those courts rejected plaintiffs contention that the releases were void under the provisions of General Obligations Law § 5-326 and held that statute inapplicable because plaintiffs decedent was not a "user” of the premises within the contemplation of General Obligations Law § 5-326. The courts also concluded that under the terms of the releases, plaintiffs decedent assumed the risks inherent in his participation as a mechanic in the infield pit area of the raceway. We agree that the statute is not applicable and affirm the order of the Appellate Division solely for that reason.

I

In April 1982 decedent signed an application for NASCAR membership and license as a mechanic and paid a $55 license fee. As required by the NASCAR rules, he also applied for registration in the benefit plan of the competitor liaison bureau of NASCAR, agreed to abide by all NASCAR rules and decisions and designated his mother as his death beneficiary under the plan. The agreement signed by Cervoni provided that the limit of liability for any "accidental injuries (including death), which are the result of external and violent means * * * sustained] in NASCAR sanctioned events,” would be the scheduled benefit payable under the plan. The agreement also provided that:

"[i]n consideration of the acceptance by NASCAR of my license application, issuance of license, my being permitted on speedway or raceway premises of any NASCAR sanctioned event, or any of the foregoing, I, for myself, my heirs, next of kin, personal representatives and assigns, forever release, remise, and forever discharge and agree to save and hold harmless and indemnify NASCAR, the promoters presenting races or other events under NASCAR sanction, the owners and lessees of premises on which NASCAR sanctioned events are presented, the participants thereon, and the owners and/or sponsors and manufacturers of all racing equipment used in NASCAR sanctioned events, the officers, directors, agents, employees and servants of all of them, including NASCAR officials and NASCAR members, of and from all liability, claims actions and possible causes of action whatsoever including negligence of any of the foregoing that may accrue to me or to my heirs, next of kin and personal representatives, from every and any loss damage and injury (including death) that may be sustained by my person and property while in, about and en route into and out of premises where NASCAR sanctioned events are presented.”

On the day of the race, just prior to entering the Islip Speedway where he was to serve as a mechanic with the pit crew for a stock car entered in a NASCAR sanctioned race, Cervoni signed a document on which the words: "This is a Release of Liability” were printed in various places. This document was signed by a list of persons including Cervoni, who acknowledged that they had "inspected the track premises,” that they "knew the risks and dangers inherent in entering the premises and participating in, observing the qualifying, and practicing for motor racing events [and] realize that conditions may become more hazardous while each of us are in the premises * * * [that] each enter[s] the premises voluntarily and assumes every risk for loss, damage or injury (including death)”.

The document further provided that each person signing it: agreed to "release[ ], remise[ ] and * * * hold harmless * * * NASCAR * * * the promoters * * * the owners, [and] sponsors * * * from all liability claims, demands, causes of action and possible causes of action whatsoever, arising out of or related to any loss, damage or injury (including death) that may be sustained by our respective persons or property * * * while in, on, en route to, from, or out of said premises from any cause whatsoever including negligence of any of the foregoing.”

II

In the absence of a contravening public policy, exculpatory provisions in a contract, purporting to insulate one of the parties from liability resulting from that party’s own negligence, although disfavored by the law and closely scrutinized by the courts, generally are enforced, subject however to various qualifications (see, Gross v Sweet, 49 NY2d 102; Van Dyke Prods. v Eastman Kodak Co., 12 NY2d 301; Ciofalo v Vic Tanney Gyms, 10 NY2d 294). Where the language of the exculpatory agreement expresses in unequivocal terms the intention of the parties to relieve a defendant of liability for the defendant’s negligence, the agreement will be enforced (id., at 297). Such an agreement will be viewed as wholly void, however, where it purports to grant exemption from liability for willful or grossly negligent acts or where a special relationship exists between the parties such that an overriding public interest demands that such a contract provision be rendered ineffectual (see, Gross v Sweet, 49 NY2d 102, supra, and cases cited therein).

Prior to the enactment of General Obligations Law § 5-326, releases absolving owners and promoters of auto raceways and other recreational facilities from liability for injuries resulting from their negligence were generally upheld (see, Ciofalo v Vic Tanney Gyms, 10 NY2d 294, supra; Johnson v Thruway Speedways, 63 AD2d 204; Rotary v Spencer Speedway, 47 AD2d 127; Church v Seneca County Agric. Socy., 34 NY2d 571, affg for reasons stated at 41 AD2d 787; Gervasi v Holland Raceway, 40 AD2d 574; Solodar v Watkins Glen Grand Prix Corp., 36 AD2d 552; Theoroux v Kedenburg Racing Assn., 50 Misc 2d 97, affd 28 AD2d 960, lv denied 20 NY2d 648).

However, in 1976, the Legislature enacted section 5-326 of the General Obligations Law to provide that:

"[ejvery covenant, agreement or understanding in or in connection with, or collateral to, any contract, membership application, ticket of admission or similar writing, entered into between the owner or operator of any pool, gymnasium, place of amusement or recreation, or similar establishment and the user of such facilities, pursuant to which such owner or operator receives a fee or other compensation for the use of such facilities, which exempts the said owner or operator from liability for damages caused by or resulting from the negligence of the owner, operator or person in charge of such establishment, or their agents, servants or employees, shall be deemed to be void as against public policy and wholly unenforceable” (L 1976, ch 414, § 1).

Plaintiff argues that General Obligations Law § 5-326 renders these releases void as against public policy and wholly unenforceable; that the statute applies to all "users” and does not distinguish between participants and spectators.

We conclude however that the statute is inapplicable to the release contained in the NASCAR license application and liaison bureau plan benefit registration and unless some other reason is shown to exist sufficient to justify disallowing that release as a bar to plaintiffs claims, no recovery is available against these defendants. There is no evidence in this record from which one could determine that NASCAR is an "owner or operator of any * * * place of amusement or recreation or similar establishment” or that the fee paid in connection with that application was "a fee or other compensation for the use of [any] such facilit[y]”. Rather, as is evident from the application itself, the fee was for a mechanic’s license in the Grand American Stock Car, Modified & Late Model Sportsman division of NASCAR.

Plaintiff asserts no basis other than the provisions of General Obligations Law § 5-326 upon which to deny enforcement of this release as against NASCAR or the other entities identified as the beneficiaries thereof (see, Gross v Sweet, 49 NY2d 102, supra; Ciofalo v Vic Tanney Gyms, 10 NY2d 294, supra). Thus the complaint and all cross claims were properly dismissed.

In view of this determination, we need not consider whether Cervoni assumed the risks attendant upon being present in the infield pit area of the raceway, nor need we consider whether he was a "user” of the facility within the meaning of General Obligations Law § 5-326 (see, Howell v Dundee Fair Assn., 73 NY2d 804).

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

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

Order affirmed, with costs.

       The scheduled benefit totaled $17,500 which was paid to the decedent’s mother as provided for in the plan.


author: Simons, J.

text:
    The People of the State of New York, Appellant, v Mary M. Nuccio, Respondent.
    Argued April 26, 1991;
    decided June 13, 1991

      POINTS OF COUNSEL

      John T. Ward, District Attorney (J. Richard Goodell of counsel), for appellant.
    The convictions should be upheld because the People may reinstitute charges by filing sufficient long-form informations after the initial simplified informations are dismissed as defective for failure to serve supporting depositions. (Pajak v Pajak, 56 NY2d 394; People v Douglass, 60 NY2d 194; Matter of Krum v Hogan, 69 Misc 2d 656; People v Bell, 95 Misc 2d 360; People v Morning, 102 Misc 2d 750; People v Scerbo, 91 Misc 2d 97; People v Key, 45 NY2d 111; People v Glen, 173 NY 395; People ex rel. North v Skinner, 280 App Div 611, 305 NY 711; People v Bock, 77 Misc 2d 350.)

      James P. Subjack for respondent.
    The People cannot file new informations on the original charges after the court has granted a dismissal for failure of the prosecution to produce supporting depositions as required by CPL 100.25 (2) and 100.40 (2). (People v Morning, 102 Misc 2d 750; People v Hast, 74 Misc 2d 887; People v De Feo, 77 Misc 2d 523; People v Zagorsky, 73 Misc 2d 420; People v Origlia, 138 Misc 2d 286; People v Gerloff, 145 Misc 2d 683.)
   OPINION OF THE COURT

Simons, J.

The issue presented is whether charges in a local criminal court may be prosecuted by a sufficient long-form information after a prior simplified information, charging the same offenses, has been dismissed for failure to supply the supporting depositions required by CPL 100.25 (2).

Defendant was charged by simplified traffic information with driving while intoxicated and various other traffic infractions. At arraignment she demanded that the People supply supporting depositions and when they failed to do so, the trial court granted her motion to dismiss the information (see, CPL 100.40 [2]; 170.30 [1] [a]; 170.35 [1] [a]). On the same day the People served and filed a long-form information executed by the arresting officer and charging the same offenses. Defendant orally moved to dismiss the new information, asserting that the charges were barred by the previous dismissal. Her motion was denied and she pleaded guilty to driving while intoxicated and failure to keep right (see, Vehicle and Traffic Law § 1192 [3]; § 1120 [a]). On appeal, County Court agreed with defendant that reprosecution was foreclosed by the prior dismissal and therefore reversed the convictions and dismissed the information. We now reverse and reinstate the judgment of conviction.

The simplified information is a statutory creation designed to provide an uncomplicated form for handling the large volume of traffic infractions and petty offenses for which it is principally used. It need not provide on its face reasonable cause to believe defendant has committed the offense (see, People v Key, 45 NY2d 111, 115-116; see also, People v Boback, 23 NY2d 189). For purposes of this appeal, it may be noted that a simplified traffic information is sufficient if it complies with the form required by the Commissioner of Motor Vehicles (see, Vehicle and Traffic Law § 207; 15 NYCRR part 91).

Because a simplified information provides only limited information, a defendant arraigned upon a charge contained in such an instrument may request, and is entitled as of right, to a supporting deposition by the complainant, police officer or public servant. If the defendant makes no request, the right to a supporting deposition is waived and prosecution may proceed on the original instrument. If a timely request for a supporting deposition is made, the failure to supply one renders the simplified information insufficient on its face (CPL 100.40 [2]) and subjects it to dismissal upon motion (CPL 170.35 [1] [a]; 170.30 [1] [a]).

The short answer to whether prosecution can be renewed on a facially sufficient information following such a dismissal is that it may because the Criminal Procedure Law does not prohibit it (see, Bellacosa, Practice Commentary, McKinney’s Cons Laws of NY, Book 11A, CPL 170.30, at 65; Preiser, Supplementary Practice Commentaries, McKinney’s Cons Laws of NY, Book 11A, CPL 100.25, 1991 Cum Ann Pocket Part, at 13; Pitler, New York Criminal Practice under the CPL § 8.16, at 411). Moreover, the history on the subject makes it clear that the Legislature did not intend to foreclose reprosecution of nonfelony charges when the information is dismissed for legal insufficiency.

At common law a prosecutor was not barred from resubmitting charges against a defendant; the only limitation on repeated prosecution was the constitutional protection against double jeopardy (see, People v Cade, 74 NY2d 410, 414; People v Wilkins, 68 NY2d 269, 273; People ex rel. Flinn v Barr, 259 NY 104; see generally, 22 CJS, Criminal Law, § 222 [1989]). For many years, however, matters of criminal procedure have been regulated by the Legislature and, it has deemed it necessary to limit the People’s power to resubmit charges to prevent prosecutorial abuses (see, People v Cade, 74 NY2d 410, 414, supra; see also, CPL 190.75 [3]; 210.20 [4]). Thus, the former Code of Criminal Procedure contained various provisions in which the Legislature expressly barred reprosecution of both felony and misdemeanor charges following a dismissal (see, former Code Crim Pro §§ 327, 673). When the Criminal Procedure Law replaced the Code in 1970, however, the Legislature chose to treat dismissals of indictments separate from dismissal of informations and misdemeanor complaints (see, People v Douglass, 60 NY2d 194, 204; compare, CPL 210.20, with 170.30). When it did so, the provisions of the Code prohibiting reprosecution were transferred to CPL 210.20 (4), a section dealing exclusively with the dismissal of an indictment without the enactment of a similar provision prohibiting the reprosecution of charges contained in a dismissed information (see, CPL 210.20 [4]; Historical Note to subd [4] [former Code Crim Pro §§ 320, 327, 665, 673], McKinney’s Cons Laws of NY, Book 11A, CPL 210.20, at 48; CPL 170.30 [1] [a]).

The Legislature undoubtedly was aware of prior restraints on reprosecution when it enacted the Criminal Procedure Law because it expressly addressed dismissals based on legal insufficiency with respect to indictments in section 210.20 (4) (see, People v Osgood, 52 NY2d 37, 45, n 2 [comparing, CPL 210.20 (4), with 170.30 (1) (a)]). Nevertheless, it failed to include a similar bar for informations dismissed on those same grounds pursuant to CPL 170.30 (1) (a). We conclude, therefore, that the different treatment accorded indictments and informations in the statute manifests the Legislature’s intention to permit reprosecution for nonfelony charges when the information' is dismissed for legal insufficiency (see, Pajak v Pajak, 56 NY2d 394, 397, citing McKinney’s Cons Law of NY, Book 1, Statutes § 74; Pitler, New York Criminal Practice under the CPL § 8.16, at 411).

Nor is double jeopardy a bar to the refiling of the charges against defendant since "reprosecution is permitted whenever a dismissal has been granted on motion by defendant, so long as the dismissal does not constitute an adjudication on the facts going to guilt or innocence.” (See, People v Key, 45 NY2d 111, 117, supra.) Here, the simplified information was dismissed for legal insufficiency and thus reprosecution for the same charges was proper absent some statutory bar.

Accordingly, the order should be reversed and the judgment of the Stockton Town Court reinstated.

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

Order reversed, etc.


author: Hancock, Jr., J.

text:
    In the Matter of Detrece H., a Person Alleged to be a Juvenile Delinquent, Appellant.
    Argued May 1, 1991;
    decided June 4, 1991
    POINTS OF COUNSEL

      Marcia Egger and Lenore Gittis for appellant.
    A petition which does not set forth nonhearsay allegations establishing every element of the crimes charged is legally insufficient, a jurisdictional defect which is not subject to cure by amendment. (Matter of David T., 75 NY2d 927; People v Alejandro, 70 NY2d 133; People v Hall, 48 NY2d 927; Matter of Verna C., 143 AD2d 94; Matter of Michael G., 93 AD2d 836; Matter of Noel V, 142 Misc 2d 552; Matter of Rodney J., 108 AD2d 307.)

      Victor A. Kovner, Corporation Counsel (Kristin M. Helmers and Stephen McGrath of counsel), for respondent.
    The court below properly held that respondent presentment agency was permitted to file a supporting deposition, prior to fact finding, which supplemented the petition and remedied the alleged deficiencies identified in appellant’s motion to dismiss. (Matter of David T., 75 NY2d 927; People v Alejandro, 70 NY2d 133; People v Cibro Oceana Term. Corp., 148 Misc 2d 149; People v Phillipe, 142 Misc 2d 574; People v Lynch, 145 Misc 2d 354; People v Escalera, 143 Misc 2d 779; People v Paul, 133 Misc 2d 234; People v Burton, 133 Misc 2d 701; Matter of Rodney J., 108 AD2d 307.)
   OPINION OF THE COURT

Hancock, Jr., J.

At issue on this appeal is whether a juvenile delinquency petition that is legally insufficient because it fails to contain nonhearsay factual allegations establishing every element of the crime charged can be amended with a supplemental supporting deposition to cure the defect. We conclude that such a deficiency in the juvenile delinquency petition cannot be rectified by subsequent amendment. There should, accordingly, be a reversal.

I

On January 30, 1989, the presentment agency filed a juvenile delinquency petition against respondent Detrece H. alleging that she committed acts, which, if committed by an adult, would constitute, among other crimes, third degree burglary. With respect to that charge, the petition stated that on December 17, 1988, respondent knowingly entered and remained unlawfully in a building under the control of Anthony Hidalgo with the intent to commit a crime therein. The only supporting deposition filed with the petition was one by Hidalgo in which he stated that he was the person in control of the Kingsley Store at 388 East Fordham Road on the date in question, and that he had not given permission to respondent to be in or about the premises.

Respondent moved to dismiss because the petition failed to contain nonhearsay factual allegations which tended to support each and every element of the crimes charged as Family Court Act § 311.2 requires. In response, the presentment agency moved to amend the petition, seeking to add a supporting deposition by Police Officer Dennis Suarez stating that on December 17, 1988 he had observed respondent "in [the store] in possession of one hammer”, that throughout the store, "there were big plastic garbage bags full of clothing” and that respondent said to him "we used the hammer”.

Family Court granted the motion to amend the petition, and denied respondent’s motion to dismiss, concluding that the petition, as amended, contained the requisite nonhearsay factual allegations. After a fact-finding hearing, Family Court found that respondent had committed acts which would constitute third degree burglary and third degree criminal trespass.

The Appellate Division modified by dismissing the third degree criminal trespass charge and, as modified, affirmed. It reasoned that third degree criminal trespass is a lesser included offense to third degree burglary, and that the amendment to the petition was proper because the Suarez supporting deposition merely restated in nonhearsay form the hearsay allegations contained in the petition and the first supporting deposition. We granted leave.

II

A juvenile delinquency petition must contain "non-hearsay allegations * * * establishing] * * * every element of each crime charged and the respondent’s commission thereof’ (Family Ct Act § 311.2 [3]). Any petition that does not contain such factual allegations is both legally insufficient and jurisdictionally defective (see, Family Ct Act § 311.2; Matter of David T., 75 NY2d 927). Here, the supporting deposition filed with the petition established only that respondent did not have permission to be in the store on the night in question. The allegation that respondent was actually in the store was hearsay. Thus, as initially filed, the petition was legally insufficient because it failed to contain the requisite nonhearsay factual allegations; such failure constituted a nonwaivable jurisdictional defect (see, Family Ct Act § 311.2 [3]; Matter of David T., supra, at 929). The issue presented is whether the petition may be amended to cure this deficiency. Respondent contends that Family Court Act § 311.5 precludes amendment to the petition for such purpose. We agree.

Section 311.5 (1) authorizes amendment to the petition at any time before or during the fact-finding hearing. However, section 311.5 (2) (b) states "[a] petition may not be amended for the purpose of curing * * * [the] legal insufficiency of the factual allegations” (emphasis added). Here, the petition’s factual allegations were legally insufficient because they were not in the required nonhearsay form. Therefore, if section 311.5 (2) (b) is given what appears to be its intended meaning, the petition may not be amended. Any other result would not only be at variance with the plain wording of section 311.5 (2) (b), but would deprive that provision of any practical effect (see, Ferres v City of New Rochelle, 68 NY2d 446, 452; McKinney’s Cons Laws of NY, Book 1, Statutes § 144, at 291 [statutes will not be construed as to render them ineffective]).

We find no merit in the presentment agency’s contention that the Family Court Act should be construed to permit an amendment of the petition to include the required nonhearsay allegations so as to give the presentment agency the greater flexibility and the wider range of options for commencing a criminal action available to the prosecution under CPL 100.50, 100.15 (3) and 170.65. The Family Court Act contains no provisions analogous to CPL 100.50, 100.15 (3) and 170.65, and there is no basis for reading such provisions into the act.

As we have only recently noted in another context, the Criminal Procedure Law and the Family Court Act have " Very different language, history and purposes’ ” (Matter of Randy K., 77 NY2d 398, 405, quoting Matter of Frank C., 70 NY2d 408, 412). The Criminal Procedure Law offers the option of a two-step process for prosecuting misdemeanors: (1) the initial filing of a misdemeanor complaint and (2) the subsequent conversion of that instrument into an information (see, CPL 100.15 [3]; 170.65). In contrast, the Family Court Act provides for a one-step process in which the petition is the sole instrument for the commencement, prosecution, and adjudication of the juvenile delinquency proceeding (see, Family Ct Act § 310.1). Further, in Family Court practice there is no equivalent to the superseding information available in criminal actions (CPL 100.50). Rather, the presentment agency’s recourse for minor errors in the petition is an amendment pursuant to Family Court Act § 311.5; for major deficiencies of the type in question its recourse is to file a new petition (see, Sobie, Practice Commentary, McKinney’s Cons Laws of NY, Book 29A, Family Ct Act § 311.5, at 347). CPL 100.15 (3) and 100.50 were not intended to apply to juvenile proceedings, and any effort to incorporate these provisions into the Family Court Act "would amount to nothing less than an impermissible judicial rewriting of the statute.” (Matter of Randy K., 77 NY2d 398, 404, supra.)

Nor are we persuaded by the presentment agency’s argument that disallowance of the amendment of the petition under the circumstances here would introduce a "technical” requirement into juvenile proceedings that would undermine the Family Court Act’s goal of providing a quick response to children in need of supervision, treatment, or confinement. Juvenile delinquency proceedings serve at least two distinct functions: (1) to determine in accordance with due process whether a person is a juvenile delinquent and (2) to provide for the rehabilitation of a person adjudicated a juvenile delinquent through consideration of that person’s needs and interests (see, Family Ct Act § 301.1; Matter of Randy K., 77 NY2d 398, 402, supra; see also, Sobie, Practice Commentary, McKinney’s Cons Law of NY, Book 29A, Family Ct Act § 301.1, at 263-267). Far from being "technical” requirements unrelated to the underlying purposes of juvenile proceedings, sections 311.2 and 311.5 (2) (b) provide substantive protections for the individual accused of juvenile delinquency, and thus further the goal of determining whether an individual is a juvenile delinquent without compromising that individual’s rights. The presentment agency’s argument runs counter to this goal because it would dilute the accused’s statutory protections.

Accordingly, the order of the Appellate Division should be reversed, without costs, and respondent’s motion to dismiss the proceeding granted.

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

Order reversed, etc.

       In addition to burglary third, respondent was charged with third degree and fourth degree criminal mischief, fifth degree criminal possession of stolen property, and third degree criminal trespass.


author: Per Curiam.

text:
    In the Matter of David Axelrod, as Commissioner of Health of the State of New York, Appellant, v Thomas Sobol, as Commissioner of Education of the State of New York, et al., Respondents.
    Argued April 24, 1991;
    decided June 13, 1991

      POINTS OF COUNSEL

      Joseph C. Bierman and Peter J. Millock for appellant.
    I. Petitioner has standing to sue to annul a determination of respondents Sobol and the Board of Regents requiring, in violation of Public Health Law § 230 (11) (a), that confidential complaints be provided to respondent Seligman. (Matter of City of New York v City Civ. Serv. Commn., 60 NY2d 436; Matter of Doe v Axelrod, 123 AD2d 21, 71 NY2d 484; Toker v Pollak, 44 NY2d 211; Magnus v Anpatiellos, 130 AD2d 719; Matter of Morgenthau v Cooke, 56 NY2d 24; Matter of Bradford Cent. School Dist. v Ambach, 56 NY2d 158; Matter of Dairylea Coop. v Walkley, 38 NY2d 6.) II. Administrative remedies need not be exhausted where irreparable harm cannot be avoided absent prompt judicial review and where respondents have acted in clear excess of their authority. (Matter of Martin v Ambach, 85 AD2d 869, 57 NY2d 1001; Watergate II Apts. v Buffalo Sewer Auth., 46 NY2d 52; Hurlbut v Whalen, 58 AD2d 311, 43 NY2d 643; Matter of Nicholson v State Commn. on Judicial Conduct, 50 NY2d 597; Matter of Hamptons Hosp. & Med. Center v Moore, 52 NY2d 88.)

      Megan Lesser Levine and Lizette A. Cantres for Thomas Sobol and another, respondents.
    I. The Commissioner of Health lacks standing to sue the Commissioner of Education and the Board of Regents regarding the conduct and determination of medical disciplinary proceedings. (O’Connor v G & R Packing Co., 74 AD2d 37, 53 NY2d 278; D’Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d 659; Matter of Reilly v Reid, 58 AD2d 926, 45 NY2d 24; Hashemi v Shack, 609 F Supp 391; Kaplan v Bennett, 465 F Supp 555; Keeler v West Mountain Corp., 105 AD2d 953; Smith v Russell Sage Coll., 54 NY2d 185; Zabriskie v Zoloto, 22 AD2d 620; Schaffer Stores Co. v Grand Union Co., 94 AD2d 883; Gramatan Home Investors Corp. v Lopez, 46 NY2d 481.) II. The petition is premature because the Board of Regents has not made a final determination. (Matter of Axelrod v Ambach, 126 AD2d 288; Matter of Milowitz v University of State of N. Y., 76 AD2d 1004; Matter of Hertzberg v Board of Regents, 77 AD2d 695; Matter of Martin v Ambach, 85 AD2d 869, 57 NY2d 1001; Hoopes v Carota, 142 AD2d 906, 74 NY2d 716; Hurlbut v Whalen, 58 AD2d 311, 43 NY2d 643.)

      Jerome R. Halperin for Gilbert K. Seligman, respondent.
    I. The Commissioner of Health lacks standing to challenge in an article 78 proceeding an interlocutory administrative order of the Board of Regents and Commissioner of Education remanding for a further hearing a disciplinary proceeding against a physician charged with medical misconduct under Education Law § 6509. (Matter of Axelrod v Ambach, 126 AD2d 288; Matter of Johnson Newspaper Corp. v Melino, 77 NY2d 1; Matter of Di Marsico v Ambach, 48 NY2d 576, 1027.) II. Where the Board of Regents has not made a final determination, a petition under CPLR article 78 is premature. (Matter of Martin v Ambach, 85 AD2d 869, 57 NY2d 1001; Matter of Milowitz v University of State of N. Y., 76 AD2d 1004; Matter of Doe v Axelrod, 123 AD2d 21, 71 NY2d 484.)
   OPINION OF THE COURT

Per Curiam.

This proceeding is the sequel to Matter of Doe v Axelrod (71 NY2d 484) and arises from a disciplinary proceeding against a physician. In Doe, we considered the relationship between an Administrative Officer hearing charges preferred against a physician by the State Board of Professional Conduct, an administrative division of the Department of Health, and the Commissioner of Health. The Administrative Officer had directed the production of victim’s complaints for the physician’s use during cross-examination. The Commissioner reversed on the ground that Public Health Law § 230 (11) (a) imposes a duty on him to hold such complaints confidential and remanded the matter to complete the hearing. We held that under the broad powers conferred upon the Commissioner in matters concerning the public health, and more particularly in regulating professional medical conduct, he had the power to reverse the Administrative Officer and make an independent determination of the issues (Matter of Doe v Axelrod, supra, at 489-490). Following our decision, the hearing was concluded, misconduct found and the matter forwarded to the State Board of Regents with the recommendation that the report finding misconduct be accepted in full. Respondents, the Board of Regents and the Commissioner of Education, have refused to accept the recommendation, however, and have remitted the matter so that the hearing could be reopened after the victim’s complaints had been made available to the physician.

The Commissioner of Health has instituted this CPLR article 78 proceeding challenging the authority of respondents to compel him to disclose the complaints. Respondents have moved to dismiss, contending that the Commissioner lacks standing to challenge their order.

Under traditional rules, petitioner has standing if (1) the interest he asserts is arguably within the zone of interest to be protected by the statutory or constitutional provisions he seeks to enforce; (2) respondents’ decision is shown to have a harmful effect upon him; and (3) there is no clear legislative intent negating review (Matter of City of New York v City Civ. Serv. Commit., 60 NY2d 436, 442-443).

Petitioner claims that providing the physician with the complaints against him filed with the State Board of Professional Medical Conduct would violate the duty of confidentiality imposed on him by statute to ensure that complaints filed with the State Board "shall remain confidential and shall not be admitted into evidence in any administrative or judicial proceeding” (Public Health Law § 230 [11] [a]). The provision was enacted to encourage disclosure of medical malpractice and physician misconduct and to alleviate complainants’ fear of litigation resulting from doing so (see, Matter of Doe v Axelrod, 123 AD2d 21, 38 [Sullivan, J., dissenting], revd 71 NY2d 484; Mem of Assemblyman Hevesi, L 1977, ch 773, 1977 NY Legis Ann, at 256). Petitioner’s interest in maintaining the confidentiality of the complaints in this proceeding is, therefore, a matter within the interest to be protected under Public Health Law § 230 (11) (a).

Petitioner has also demonstrated sufficiently that respondents’ order will adversely affect not only his statutory duty to keep complaints confidential but also his statutory duty to enforce the Public Health Law (Public Health Law § 206 [1] [f]). The Board for Professional Medical Conduct is required to investigate "each complaint received regardless of the source” and it relies heavily on these complaints to discover misconduct (Public Health Law § 230 [10] [a]). The release of the complaints filed against the physician may have a chilling effect on others contemplating the filing of a complaint with the State Board and will arguably impede petitioner’s discovery of professional misconduct.

Finally, there is no clear expression of any legislative intent to negate this review of respondents’ order. On the contrary, section 13 of the Public Health Law authorizes the Department of Health to enforce the performance of any duty or enjoin any act proscribed by the Public Health Law through a proceeding under article 78 of the CPLR.

Respondents rely on Axelrod v Ambach (126 AD2d 288), a case not reviewed by this Court. There, the Commissioner of Health sought to review a determination of the Commissioner of Education and Board of Regents which found that a doctor was denied effective representation by counsel during disciplinary proceedings and remanded the matter for further hearings before the State Board. The court held that the Commissioner of Health’s role in medical misconduct proceedings is limited to holding hearings and submitting recommendations to the Commissioner of Education and Board of Regents (Public Health Law § 230). He lacked standing because he could not demonstrate that he was aggrieved by the order requiring further hearings. In this proceeding, however, petitioner has demonstrated that respondents’ order directly affects his role in investigating medical misconduct, holding hearings and submitting recommendations to the Commissioner of Education and the Board of Regents (Public Health Law § 230).

We conclude, therefore, that petitioner has standing and that the matter should be remitted to Supreme Court for a determination on the merits.

Accordingly, the judgment of the Appellate Division should be reversed, with costs, and the motions to dismiss denied.

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

Judgment reversed, etc.

       The statutory procedures for investigation, hearings and review are set forth fully in Public Health Law § 230 (10).


text:
    In the Matter of Joseph R. Caputo, as Comptroller of the County of Suffolk, Appellant, v Patrick G. Halpin, as County Executive of the County of Suffolk, et al., Respondents. In the Matter of Edward P. Romaine, as County Clerk of the County of Suffolk, Appellant, v Patrick G. Halpin, as County Executive of the County of Suffolk, et al., Respondents. In the Matter of James M. Catterson, Jr., as District Attorney of the County of Suffolk, et al., Appellants, v Patrick G. Halpin, as County Executive of the County of Suffolk, et al., Respondents.
    Argued May 29, 1991;
    decided June 27, 1991

      POINTS OF COUNSEL

      Martin Bradley Ashore and Theodore D. Sklar for appellants in the first and second above-entitled proceedings.
    I. The Suffolk County Charter and Administrative Code do not expressly or impliedly confer on the County Executive the unilateral right to delay the filling of vacancies in budgeted positions. (Matter of Henry v Noto, 50 NY2d 816; Matter of Slominski v Rutkowski, 91 AD2d 202, 62 NY2d 781; Matter of Whelan v Griffin, 100 AD2d 742, 63 NY2d 650; Matter of County of Oneida v Berle, 49 NY2d 515; Wein v Carey, 41 NY2d 498; Matter of Cohalan v Caputo, 94 AD2d 742; Matter of Prospect v Cohalan, 109 AD2d 210, 65 NY2d 867.) Point II applies only to the second above-entitled proceeding. II. The issue in this case qualifies for review as an exception to the mootness doctrine. (Matter of Hearst Corporation v Clyne, 50 NY2d 707.)

      Martin Bradley Ashore and Theodore D. Sklar for appellants in the third above-entitled proceeding.
    The Suffolk County Charter and Administrative Code do not expressly or impliedly confer on the County Executive the unilateral right to impose a hiring freeze on the Suffolk County District Attorney’s office; the District Attorney has the right, without interference by the County Executive, to appoint personnel within the amount appropriated in the 1990 budget as reduced by the 1990 "savings plan” which became effective pursuant to the Administrative Code of Suffolk County. (Davis Constr. Corp. v County of Suffolk, 112 Misc 2d 652, 95 AD2d 819; Matter of Whelan v Griffin, 100 AD2d 742, 63 AD2d 650; Matter of County of Oneida v Berle, 49 NY2d 515; Wein v Carey, 41 NY2d 498; Matter of Cohalan v Caputo, 94 AD2d 742; Matter of Prospect v Cohalan, 109 AD2d 210, 65 NY2d 867.)

      E. Thomas Boyle, County Attorney (Emily Pines of counsel), for respondents in the first and second above-entitled proceedings.
    I. The County Executive’s spending reduction plan for 1990, which includes a hiring freeze, was lawfully adopted pursuant to the Suffolk County Charter and Administrative Code and did not abolish budgeted positions or interfere with the Comptroller’s right to appoint personnel within budgetary considerations. (Matter of Henry v Noto, 74 AD2d 604, 50 NY2d 816; Matter of Gallagher v Regan, 42 NY2d 230; Matter of Plato’s Cave Corp. v State Liq. Auth., 68 NY2d 791.) II. Matter of Slominski v Rutkowski (91 AD2d 202, mod 62 NY2d 781), not Matter of Henry v Noto (74 AD2d 604, mod 50 NY2d 816), is dispositive of this case. III. Matter of County of Oneida v Berle (49 NY2d 515) is materially distinguishable from this case. IV. The SCIN form system is charter based and serves as the County Executive’s mechanism for managing the budget. (Matter of Cohalan v Caputo, 94 AD2d 742; Pocket Veto Case, 279 US 655.)

      E. Thomas Boyle, County Attorney (Emily Pines and Susan M. Connolly of counsel), for respondents in the third above-entitled proceeding.
    I. The County Executive’s spending reduction plan for 1990, which includes a hiring freeze, was lawfully adopted pursuant to the Suffolk County Charter and Administrative Code and did not abolish budgeted positions or violate the District Attorney’s right to hire personnel within budgétary considerations. (Matter of Henry v Noto, 74 AD2d 604, 50 NY2d 816; Matter of Gallagher v Regan, 42 NY2d 230; Matter of Plato’s Cave Corp. v State Liq. Auth., 68 NY2d 791.) Points II and III are the same as respondents’ points II and III in the first and second above-entitled proceedings. IV. The District Attorney is a local officer for budgetary purposes. (Matter of Kelley v McGee, 57 NY2d 522.)
   OPINION OF THE COURT

Alexander, J.

The common issue presented for our review in these three cases concerns the Suffolk County Executive’s power to impose a hiring freeze during the 1990 fiscal year upon the County Comptroller, the County Clerk and the District Attorney such as to prevent the filling of vacancies in the offices of each of these officials. We conclude that the County Executive, as the Chief Executive Officer and Chief Budget Officer of Suffolk County as provided in the County Charter and Administrative Code, was empowered to take such actions not inconsistent with the charter and code as were necessary to fulfill his responsibilities, including imposing a hiring freeze. Thus, we affirm in each of these proceedings.

I

The Suffolk County Charter constitutes the County Executive the Chief Executive Officer of the county and gives the executive general supervision over all administrative units of the county (see, Suffolk County Charter § C3-2 [A]). The charter also constitutes the County Executive the Chief Budget Officer of Suffolk County and as such, the County Executive is required to oversee generally, the preparation of the county budget and to submit a proposed budget to the county legislature (§ C4-6). The executive is also required by the Suffolk County Administrative Code to maintain a balanced budget throughout the year (Administrative Code § A4-8) and is required by the charter, upon determining that available revenues will be less than total amounts appropriated "[to] advise the County Legislature of the estimated amount of the deficit, the remedial action he has taken or plans to take under the allotment system and otherwise” (§ C4-27 [A]). It appears that Suffolk County employs an allotment system by which funds appropriated in each year’s operating budget are distributed to the various departments (§ C4-29). An appropriation authorized for any department is not available for spending, however, unless the County Executive approves an allotment of funds for the department or a requested allotment otherwise becomes effective under the Administrative Code (§ C4-29).

Where the County Executive determines that a deficit is likely to occur because the total revenues will be less than the total appropriations for the year, the Administrative Code authorizes the executive to "reconsider the work programs and allotments of the several departments and make a revision thereof to prevent expenditures in excess of the amounts available therefor” (§ A4-8). The Administrative Code further provides that the County Executive may alter any requested allotment unilaterally by as much as 10%. He may also alter any such allotment by more than 10% provided he advises the county legislature in writing of the alteration and his reasons for the alteration. Such alteration will take effect unless within 10 days of the receipt of the notice, the legislature, by a two-thirds vote, passes a resolution declaring that the proposed revision shall not take effect (§ A4-7 [A], [B] [1], [2]).

Anticipating a 1990 budget deficit of an estimated 20 million dollars, on January 16, 1990, the respondent Patrick Halpin, the Suffolk County Executive, in his capacity as the Chief Budget Officer, issued a memorandum to all department heads calling for an interim spending reduction plan, including a general hiring freeze. A few days later, he notified the Suffolk County Legislature of his action. On March 13, 1990 he submitted to the legislature a detailed plan for spending reduction measures, including a five-day voluntary/mandatory furlough, an early retirement program, personnel layoffs and departmental appropriation reductions.

In the meanwhile, petitioners Joseph Caputo, the Suffolk County Comptroller, and Edward Romaine, the Suffolk County Clerk, sought to fill vacancies for budgeted positions in their respective offices. The record indicates that a method of budget control had been established during a previous administration which precluded filling vacant positions in county government without the written approval of the County Executive. The purpose of this system is to enable the County Executive, as Chief Budget Officer, to verify the existence of an appropriation to pay the proposed employee, to assure that certain savings are being met by the requesting department and to determine that the hiring will not cause the department to overrun its budget at the end of the year. To implement this system, a form designated "SCIN Form 167” had to be filed with the County Executive for approval of the proposed hirings.

When the County Executive refused to approve filling the budgeted vacancies by executing the SCIN forms submitted by the County Clerk and the Comptroller, they each instituted a CPLR article 78 proceeding in which they sought to compel the County Executive to execute the forms, and a declaration that the County Executive lacked the power and authority to require the filing of the SCIN form and his approval thereof as a condition to filling vacancies of budgeted positions in their departments. They also sought attorneys’ fees because they were compelled to hire private counsel because the County Attorney was representing the County Executive.

In separate decisions and orders, Supreme Court granted the petitions in both proceedings, directed the County Executive to execute and approve the SCIN 167 Forms, declared that the Comptroller and County Clerk had the absolute right to appoint any qualified individual to vacant positions and awarded attorney fees. The court also determined that the County Executive did not have the power to unilaterally impose a hiring freeze.

Upon the appeal of the County Executive, the Appellate Division, in separate opinions and orders, modified, on the law, Supreme Court’s orders and judgments, by deleting the portions directing the County Executive to execute the forms and the declaration that the Comptroller and County Clerk had an absolute power of appointment, dismissed the first and second causes of action but left standing the determination that the Comptroller and County Clerk were entitled to attorneys’ fees. The Appellate Division concluded that in order to affect the budget appropriations of various departments, the County Executive "must follow the procedure laid down in the allotment system prescribed by the Suffolk County Charter and the Suffolk County Administrative Code as well as the procedure where a budget deficit is anticipated” (Matter of Caputo v Halpin, 160 AD2d 938, 939 [citations omitted]). The court found that the County Executive’s January 16, 1990 memorandum "did not constitute effective action under the allotment system to give the County Executive the power to refuse to approve the filling of vacancies” (id.) but determined, however, that the County Executive’s refusal to fill the vacancies as requested by the Comptroller and County Clerk was merely a "delay in contemplation of the submission of a detailed plan to the County Legislature to avoid the anticipated budget deficit. This plan involved not filling vacancies for which there were budget appropriations as one means of achieving a savings.” (Id., at 939.) The court concluded that such a delay was well within the power of the County Executive, who as the Chief Budget Officer was the "overseer of expenditures of budgeted funds” (id., at 940). After Supreme Court determined the amount of attorneys’ fees, this Court granted the Comptroller and County Clerk leave to appeal pursuant to CPLR 5602 (a) (1) (ii) from the judgments of Supreme Court, bringing up for review the prior nonfinal Appellate Division orders.

We also granted leave to appeal to the Suffolk County District Attorney, James Catterson, whose challenge to the County Executive’s refusal to approve two appointments to his staff was rejected by the Appellate Division. In the March 13, 1990 spending reduction plan submitted to the legislature by the County Executive, $243,866 in savings were targeted for the District Attorney’s office for fiscal year 1990. However, in April 1990, the District Attorney’s office failed to meet its targeted savings and in fact spent in excess of the total amount appropriated in the 1990 budget. Consequently, in May, the County Executive imposed a freeze on hiring in the District Attorney’s office pending demonstration by the District Attorney that the targeted savings in the departmental reduction plan could be met.

In June, Catterson made two appointments to his staff but was unable to have them placed on the county payroll because of the freeze. Catterson and the prospective employees successfully challenged the County Executive’s freeze in a CPLR article 78 proceeding in Supreme Court. That court determined that the County Executive was not authorized to interfere with the District Attorney’s appointments to vacant, budgeted positions and directed the County Executive to place the two employees on the payroll. The court also awarded attorneys’ fees to the District Attorney and the prospective employees.

The County Executive appealed and the Appellate Division modified, on the law, Supreme Court’s decision and order by deleting those portions of the order which directed the County Executive to place the appointees on the payroll and determined that the County Executive could not freeze vacant and budgeted positions in the District Attorney’s office. It concluded that although the County Executive did not have "unfettered discretion to refuse to place names on the Suffolk County payroll where budgetary appropriations already [had] been made * * * the Suffolk County Allotment System [as provided for in the Suffolk County Charter and Administrative Code] combined with the Suffolk County Executive’s duty to avoid budget deficits * * * support the conclusion that the Suffolk County Executive may institute a temporary hiring freeze as a method of preventing the District Attorney’s office from expending money at a rate which would deplete its budget well before the end of its fiscal year” (167 AD2d 341, 342 [citations omitted]).

II

On their appeal to this Court, the Comptroller, County Clerk and District Attorney argue that the County Executive’s refusal to certify the subject appointments impermissibly interferes with their respective powers to appoint qualified persons to budgeted positions in their departments. They contend that because the County Charter and Administrative Code grant them the power to appoint personnel, the County Executive, in order to limit that power, must point to a law of equal import and dignity granting him the authority to override those powers, which they contend, he cannot. Specifically, they argue that neither the County Charter nor the Administrative Code grants him an express power to delay the processing of SCIN forms in contemplation of preparing a spending reduction plan. Although the specific provision appellants describe is not contained in the Suffolk County Charter or Administrative Code, we deem the express powers granted the County Executive in the County Charter and Administrative Code more than sufficient to support our determination that the County Executive has the authority to order hiring freezes.

We had occasion to consider the primary argument appellants raise here in Matter of Slominski v Rutkowski (91 AD2d 202 [Hancock, Jr., J.], mod on other grounds and affd 62 NY2d 781) which involved similar circumstances. Slominski arose out of the Erie County Executive’s refusal to certify positions to fill vacancies in the Erie County Comptroller’s office. The County Comptroller attacked the validity of section 3.09 (e) of the Erie County Administrative Code which provided that " '[e]xcept in the legislative or judicial branch, no appointive county office or position which hereafter becomes vacant shall be filled until the county executive has certified in writing to the county legislature the necessity of filling the same.’ ” (Id., at 203.) The decisive issue was whether that provision was consistent with provisions in the Erie County Charter. The provisions in that charter were similar to those in the Suffolk County Charter and Administrative Code inasmuch as the Erie County Executive was also deemed the Chief Executive Officer, the administrative head of the county government and Chief Budget Officer of the county. He had considerable veto powers with respect to budgetary decisions of the Erie County Legislature. Thus, we affirmed the Appellate Division’s determination that the powers the County Charter granted the County Executive, as the county’s Chief Executive and Budget Officer, were "broad enough to include the right to approve the filling of interim vacancies” (id., at 211) and agreed with its ultimate conclusion that section 3.09 (e) was consistent with those powers.

Appellants assert, however, that Slominski is not controlling because it involved an express provision granting the County Executive the authority to order temporary hiring freezes whereas here, no similar provision exists. We reject this argument and conclude that the rationale of Slominski is equally applicable here. There, the County Executive’s responsibilities and corresponding powers were deemed sufficiently broad to support the determination that the decision to order a hiring freeze was not beyond the County Executive’s authority. The very broad powers granted the Suffolk County Executive are sufficiently similar to those granted the Erie County Executive in Slominski to render that case essentially indistinguishable (cf., Matter of Slominski v Rutkowski, 91 AD2d 202, 206-209, supra).

Appellants also contend, relying on our decision in Matter of Henry v Noto (50 NY2d 816), that the County Executive effectively abolished the vacant positions which they sought to fill and thus, his actions were improper. Their reliance on Noto, however, is misplaced. Contrary to petitioners’ assertion, the County Executive did not abolish the positions at issue here but merely temporarily extended the time period during which the positions would remain unfilled.

In Noto, a Suffolk County resolution empowered the County Executive to approve of the need to fill vacancies in the District Attorney’s office. We concluded that such a resolution impermissibly encroached upon the power of the District Attorney to appoint assistants. As we noted in Slominski, however, the resolution in Noto gave the County Executive the power to effectively abolish positions in the District Attorney’s office (Matter of Slominski v Rutkowski, 62 NY2d, supra, at 784). No such power or encroachment is involved here, however. The County Executive has made no attempt to abolish the positions at issue here nor to encroach upon appellants’ powers of appointment. He merely seeks to temporarily delay the filling of vacancies for a particular fiscal year because of budgetary shortfalls and overspending.

Appellants’ reliance on Matter of County of Oneida v Berle (49 NY2d 515) is equally unavailing. In Berle we "recognized the Governor’s constitutional obligation to propose a balanced budget,” but there had been no suggestion that "once a budget plan is enacted, revenues and expenditures must match throughout the fiscal year.” (Id., at 521.) By contrast, here, the County Executive is specifically charged with the responsibility of maintaining a balanced budget and is required to take necessary and appropriate steps to discharge that responsibility.

The District Attorney also contends that because he is a constitutional and State official with a unique place in the criminal justice system, the County Executive may not refuse to place persons on the county payroll whom the District Attorney has appointed. That argument is without merit. As we noted in Matter of Kelley v McGee (57 NY2d 522, 534), "recent constitutional developments have operated to remove [the office of District Attorney] from its previous constitutional stature and that a District Attorney may no longer properly be considered a State officer.” Thus, with regard to the issue presented here, the District Attorney has no greater rights in comparison to the County Executive than do the County Clerk and County Comptroller.

Finally, the District Attorney contends that the hiring freeze was not justified because the projected shortfall in his office of approximately $250,000 was eliminated by receipt of additional revenues. The "additional revenues” to which the District Attorney refers were funds received by his office from the New York State Organized Crime Task Force. Although the District Attorney’s office served as the receiver of these funds, they were credited to and placed in the county’s general fund and thus should not be considered additional revenues attributable to the District Attorney’s budget.

Accordingly, in Matter of Caputo v Halpin and Matter of Romaine v Halpin, the respective judgments of Supreme Court and orders of the Appellate Division brought up for review should be affirmed, with costs. In Matter of Catterson v Halpin, the order of the Appellate Division should be affirmed, with costs.

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

In Matter of Caputo v Halpin and Matter of Romaine v Halpin: Judgment appealed from and order of the Appellate Division brought up for review affirmed, with costs.

In Matter of Catterson v Halpin: Order affirmed, with costs.