text:
    Karen Somersall et al., Infants, by Sylvia Collins, Individually and as Natural Guardian, et al., Appellants, v New York Telephone Company, Respondent et al., Defendants.
    Argued January 8, 1981;
    decided February 19, 1981

      POINTS OF COUNSEL

      Samuel J. Sussman for Karen Somersall and others, appellants.
    I. The court below erred in its construction of the provisions of the Motor Vehicle and Traffic Law. It also overlooked the uncontested fact that respondent failed to utilize available curbside parking space and thus violated its statutory duty to act with “due regard for the safety of all persons”. (Petosa v City of New York, 52 AD2d 919; Kallasy v New York Tel. Co., 70 AD2d 749; Battalla v State of New York, 10 NY2d 237.) II. The evidence required the trial court to submit the issue of illegal double-parking as a concurrent proximate cause of injury. (Sagorsky v Maly on, 307 NY 584; Daly v Casey, 38 NY2d 808; Carlock v Westchester Light. Co., 268 NY 345; Riviello v Waldron, 47 NY2d 297; Hoggard v Otis Elevator Co., 52 Misc 2d 704, 28 AD2d 1207; Baker v St. Agnes Hosp., 70 AD2d 400; O'Neill v City of Port Jervis, 253 NY 423; Lugert v Cohen, 303 NY 642; Giordano v Sheridan Maintenance Corp., 38 AD2d 552; King v State of New York, 83 Misc 2d 748, 58 AD2d 934.) III. Error in charging violation of the New York City Traffic Regulation as negligence was cured by subsequent charge, and was de minimis in context of the charge. Respondent’s counsel did not make this claim of error at trial. IV. The trial court did not commit prejudicial error in recalling Karen Somersall.

      Edgar T. Schleider for John Williams, Jr., and others, appellants.
    I. The evidence amply supported a jury finding of negligence in prolonged unnecessary double-parking. The statutory excuses, and public policy expansion of the statutory excuses, were inapplicable to the facts implicit in the verdict. II. The evidence amply supports a jury finding that the double-parked telephone truck, in close proximity to where Quilter’s automobile was parked at the curb, increased the difficulty of Quilter’s maneuver and affected the path of his automobile and thus was a concurrent proximate cause of this accident. The holding of the court below that such evidence was incredible erred in that it was based on illogical assumptions and invaded the province of the jury on matters of inferences and credibility of witnesses. (Salsbury v United Parcel Serv., 203 Misc 1008; O’Neill v City of Port Jervis, 253 NY 423; King v State of New York, 83 Misc 2d 748, 58 AD2d 934.) III. To the extent that the statements in the opinion, that there should “in any event” be a new trial, are deemed part of the reversal, although not included in the order below, such rulings should be reversed as an abuse of discretion for lack of any sound basis in fact or law and certainly not in the interest of justice. (Barasch v Micucci, 49 NY2d 594; Martin v Herzog, 228 NY 164; Caceres v New York City Health & Hosps. Corp., 74 AD2d 619.)

      Candice Singer Ram for Gertrude Thomas, appellant.
    I. The court below clearly erred in branding defendant Quilter’s testimony incredible as a matter of law. It was for the jury alone to determine the facts which established proximate cause. (Sagorsky v Malyon, 307 NY 584; Daly v Casey, 38 NY2d 808; Donovan v Bender, 9 NY2d 854; Commisso v Meeker, 8 NY2d 109; Kallasy v New York Tel. Co., 70 AD2d 749; King v State of New York, 56 AD2d 964; Giordano v Sheridan Maintenance Corp., 38 AD2d 552; Goldberg v Statewide Excavators, 30 AD2d 572; Massicotte v Malinowitz, 11 AD2d 1051; Wood v Socony-Vacuum Oil Co., 259 App Div 1106.) II. The court’s application of a State exemption statute to the Telephone Company’s violation of a city ordinance was totally unwarranted. In any event, the routine backyard repair job»conducted at the time of this accident did not, by any reasonable interpretation, fall under the restrictive statutory definition of a hazardous operation. (Petosa v City of New York,
      52 AD2d 919.) III. The trial court’s charge, viewed in its over-all context, conveyed the correct rule of law to be applied to defendant’s negligent acts. In any event, these instructions, to which no exception was taken by defendant, pose no substantial issue for review. (Caldwell v New Jersey Steamboat Co., 47 NY 282; Martin v City of Cohoes, 37 NY2d 162; Rodriguez v Cato, 63 AD2d 922; McLean v Triboro Coach Corp., 302 NY 49; Fabrikant v Seley, 49 AD2d 861; O’Connor v Eggleston, 31 AD2d 735; Outstanding Artists v Kenny, 258 App Div 973; Caccetta v Oakley, 258 App Div 888; Jacobs v Jacobs, 252 App Div 794.) IV. The trial court, in merely alluding to the obvious and openly apparent injury sustained by plaintiff, Karen Somersall, was not in error. (Schollmeyer v Sutter, 2 Misc 2d 215, 3 AD2d 665.)

      Robert C. Myers, Charles Franklin Richter and Charles Chehebar for respondent.
    I. The repair truck was not a proximate cause of the accident. (Sheehan v City of New York, 40 NY2d 496; Stuart-Bullock v State of New York, 33 NY2d 418; Ortiz v Kinoshita & Co., 30 AD2d 334; Rugg v State of New York, 284 App Div 179; Finn v City of New York, 76 Misc 2d 388; Klein v Herlim Realty Corp., 184 Misc 852; Cohn v Hallmark Cards, 45 NY2d 493; Blum v Fresh Grown Preserve Corp., 292 NY 241; Loewinthal v Le Vine, 299 NY 372; Bottalico v City of New York, 281 App Div 339, 306 NY 593.) II. The repair truck was legally double-parked. (Petosa v City of New York, 52 AD2d 919; Kallasy v New York Tel. Co., 70 AD2d 749.) III. The trial court erred in charging the jury that a violation of a New York City traffic regulation is negligence as a matter of law. (Rodriguez v Cato, 63 AD2d 922; Healey v Rennert, 9 NY2d 202; Franco v Zingarelli, 72 AD2d 211; Piarulli v Lason, 35 AD2d 605; Naeris v New York Tel. Co., 6 AD2d 196, 5 NY2d 1009; Martin v Herzog, 228 NY 164; Knupfle v Knickerbocker Ice Co., 84 NY 488; Carlock v Westchester Light Ice Co., 268 NY 345; Hyland v Cobb, 252 NY 325; Nielsen v City of New York, 38 AD2d 592.) IV. The trial court erred in eliciting irrelevant and prejudicial testimony from plaintiff-appellant Karen Somersall concerning her injury. (People v Davis, 43 NY2d 17, 435 US 998; Smith v Lehigh Val. R. R. Co., 177 NY 379; Allen v Stokes, 260 App Div 600, 1007; Bardelli v Pittsburgh Contr. Co., 163 App Div 45; Rost v Brooklyn Hgts. R. R. Co., 10 App Div 477.)
   OPINION OF THE COURT

Meyer, J.

Because subdivision (b) of section 1103 of the Vehicle and Traffic Law does not apply in the City of New York and there is no comparable provision in the City of New York Traffic Regulations, a public service corporation vehicle double-parked on a city street for a purpose other than actual work on the street, is unlawfully parked. Whether the violation, of the city regulations by the Telephone Company truck involved in the present case was a proximate cause of plaintiffs’ injuries was, under the circumstances of this case, a question for the jury. The order of the Appellate Division which reversed a verdict in favor of plaintiffs insofar as it was against the New York Telephone Company and, as against that company, dismissed the complaint, should, therefore, be reversed and a new trial granted.

Plaintiffs were gathered on the sidewalk on the south side of 118th Street between Seventh Avenue and Lenox Avenue participating in or watching a card game. One hundred eighteenth Street is a one-way street running from west to east. Defendant Quilter sought to move his Continental, which had been parked on the north side of 118th Street with the driver’s side next to the north curb, and in the process mounted the sidewalk and struck plaintiffs. Approximately one and a quarter car lengths ahead of the Quilter vehicle on the north side of the street was a New York Telephone Company truck double-parked approximately six inches south of the second car ahead of Quitter’s. Between the Quitter vehicle and the vehicle alongside of which the truck was double-parked was another vehicle parked at the north curb. The Telephone Company employees who double-parked the truck were at work in an abandoned building which could be reached through an alleyway on the north side of 118th Street.

Quitter, who had only a learner’s permit but was accompanied by a licensed driver as required by law, backed his car up, cleared the right side of the vehicle immediately in front of his car, then turned the wheel to the right. The evidence is contradictory concerning whether the car, which was 19 feet in length and 6 feet wide, then proceeded directly across the street, over the curb and into plaintiffs, or whether the turn to the right was made in an effort to maneuver around the truck and was followed by an incomplete turn to the left, after which the vehicle mounted the curb, striking plaintiffs. The truck was 7 feet 2 inches wide and 118th Street at the point at which the truck was double-parked is 29 feet wide. Thus, considering the curbside vehicle next to the truck, the space between those two vehicles, and the width of the truck, the open space alongside the right or south side of the truck was something less than 16 feet. Plaintiffs were at a point on the south sidewalk opposite the position of the double-parked truck.

The Trial Judge submitted the case to the jury on the theory that a public utility vehicle could double-park on the roadway if it was necessary to do so in order to make repairs to telephone lines, and left to the jury the question whether, if the jury found the truck to have been double-parked in violation of law, that violation was a proximate cause of plaintiffs’ injuries. The jury found for plaintiffs against both defendants and fixed the liability of Quitter at 70% and of the Telephone Company at 30%. The Telephone Company having moved for dismissal notwithstanding the verdict, the Trial Judge denied the motion.

On appeal by the Telephone Company, the Appellate Division modified and dismissed the complaint, reading subdivision (b) of section 1103 of the Vehicle and Traffic Law, which refers only to section 1202 of that law, as though it referred as well to section 81 (subd [c], par 2) of the New York City Traffic Regulations, and holding as to proximate cause that because Quilter’s testimony was belied by photographs in evidence, which it read to “conclusively show that the Continental did not maneuver around the truck” (74 AD2d, at p 310), it was incredible as a matter of law and left the jury’s verdict against the Telephone Company without rational basis in the evidence. We disagree on both issues.

I

Section 1202 (subd [a], par 1, cl a) of the Vehicle and Traffic Law proscribes double-parking, but subdivision (b) of section 1103 of that law makes subdivision (a) of section 1202 inapplicable “to hazard vehicles while actually engaged in hazardous operation on or adjacent to a highway”. As defined by sections 117-a and 117-b of the Vehicle and Traffic Law a “hazard vehicle” includes a “vehicle owned and operated by a utility, whether public or private, used in construction, maintenance and repair of its facilities” and “hazardous operation” is defined as “The operation, or parking, of a vehicle on or immediately adjacent to a public highway while such vehicle is actually engaged in an operation which would restrict, impede or interfere with the normal flow of traffic.” The Telephone Company personnel having been engaged in an operation in a building off the highway, submission to the jury of the exception enacted by section 1103 would not appear justified even if the site of the accident had been outside New York City.

Inasmuch as it was within New York City, however, submission of that exception was error, not because of the absence of a supporting factual basis, but because of the inapplicability of the law. Section 1642 of the Vehicle and Traffic Law authorizes the City of New York by local law, ordinance, rule or regulation to supersede the provisions of the Vehicle and Traffic Law with respect, among other things, to parking, and the city has done just that. Section 190 of the City Traffic Regulation states explicitly that pursuant to section 1642 of the Vehicle and Traffic Law enumerated sections of that law, including section 1202, “shall not be effective in the City of New York.” While section 190 of the regulations makes no express reference to section 1103 of the Vehicle and Traffic Law, comparison of that section with section 22 of the regulations leaves no doubt that the latter is in substitution for the former.

What governs double-parking in the City of New York is section 81 (subd [c], par 2) of the city regulations, the only exception to the proscription of which is that “a person may stand a commercial vehicle alongside a vehicle parked at the curb at such locations and during such hours that stopping, standing, or parking is not prohibited, while expeditiously loading and unloading, provided that there is no unoccupied parking space or designated loading zone within 100 feet that can be used for such standing.” It follows that both the Trial Judge and the Appellate Division were in error in holding section 1103 of the Vehicle and Traffic Law applicable, and that on the evidence presented, which established that the Telephone Company truck had been in its double-parked position for some four and a half hours prior to the accident, plaintiffs were entitled to the charge they requested that as a matter of law the truck was illegally parked.

II

Conceding that negligence in double-parking could present a proximate cause issue for the jury, for which proposition it cited Daly v Casey (38 NY2d 808) and Naeris v New York Tel. Co. (5 NY2d 1009), the Appellate Division concluded that, because Quilter’s testimony that he did not see the repair truck until he began to exit the parking space was incredible as a matter of law and the photographs showed that the Continental proceeded in a straight line from the parking space to the south sidewalk, the jury could not have found the Telephone Company liable upon any rational consideration of the evidence, and that the presence of the truck was merely a “circumstance” of the accident and not a factor contributing to it.

In reaching the conclusion that it did the Appellate Division interpreted the photograph without reference to the other evidence in the case concerning the movement and path of the Continental, and in doing so encroached upon the jury’s prerogatives. Interpretation of the photographs in evidence involved evaluations of angle and perspective that are the essence of the jury’s function (cf. Maresca v Lake Motors, 32 AD2d 533, 534, affd 25 NY2d 716).

Nor can we agree that the verdict should turn on Quilter’s testimony as to when he first saw the repair truck. First, he did not claim that what caused him to lose control was surprise at the presence of the truck, but rather that if the truck was not double-parked he would not have hit the curb in manueuvering past it and lost control. Furthermore, any conclusion that the testimony was incredible as a matter of law requires interpretation of the words used by Quilter, who spoke broken English, which is surely a jury function. As we stated in Daly v Casey (38 NY2d 808, supra, citing Naeris v New York Tel. Co., 5 NY2d 1009, supra) : “However incredible the evidence may have been, as a practical matter it cannot be said that it was incredible as a matter of law, and therefore the complaint should not have been dismissed.”

The proof referred to in Daly concerned the presence of a Tidewater truck in the street, testified to by some seven witnesses, but found against by the majority at the Appellate Division in light of the absence from the field diagram made by the police at the scene of any indication of the truck and of the testimony of Tidewater personnel accounting for all of its trucks at the time of the accident in locations other than the accident scene. In Naeris we affirmed, without opinion, over a dissent at the Appellate Division, the majority holding of that court that the complaint could not be dismissed. Justice James B. M. Mc-Nally writing for the Appellate Division majority noted that, slender though the evidence of causation by the Telephone Company’s double-parked truck of the infant plaintiff’s injury by a passing vehicle may have been, it was within the competence of the jury to find the company’s violation of the traffic regulation a concurrent cause of the injury. Here Quilter’s deposition testimony, read at the trial, was that he turned the wheel as far as he could to maneuver around the truck, that as he turned the wheel back the car hit the curb and bounced causing him to rise up in the seat and that when he came down the car was skidding toward the table. That testimony was, moreover, consistent with the statement made by Quilter to the investigating police officer at the scene immediately after the accident that he swerved his car to avoid contact with the truck. Bearing in mind Quilter’s testimony and the measurements and distances involved, it cannot be said that there was no reasonable basis on which the jury could find that double-parking defendant’s vehicle was a concurrent cause. Nor is that result changed by the testimony of Quilter’s passenger, August, that the car proceeded in a straight line or the investigating police officer’s conclusion that Quilter lost control of his vehicle because of his inexperience as a driver. The officer’s opinion was not binding upon the trier of fact and August’s testimony contradicting Quilter created an issue for the jury but did not make Quitter’s testimony incredible as a matter of law.

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

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

Order reversed, etc.

      .  The Appellate Division opinion (see CPLR 5612, subd [a]) states that, were it not dismissing it would grant a new trial for error in (1) the charge, not objected to by the Telephone Company, that violation of the double-parking regulation would be negligence rather than merely evidence of negligence, and (2) disclosing to the jury in a liability only trial that one of the plaintiffs had lost a leg in the accident. Both issues involve the exercise of discretion by the Appellate Division of a type not reviewable by this court. Accordingly, a new trial is required.

      . Throughout this opinion the word “plaintiffs” is used to refer collectively to the individuals who sustained personal injury and the personal representative of the individual who was killed.

      . He did not read the statute to the jury, but it is clear from the language of his charge that he was referring to subdivision (b) of section 1103 of the Vehicle and Traffic Law.

      . Thus, subdivision (a) of section 1103 of the Vehicle and Traffic Law, which reads: “(a) The provisions of this title applicable to the drivers of vehicles upon the highways shall apply to drivers of all vehicles owned or operated by the United States, this state, or any county, city, town, district, or any other political subdivision of the state, except as provided in this section and subject to such specific exceptions as are set forth in this title with reference to authorized emergency vehicles” is closely tracked by subdivision (a) of section 22 of the regulations, which reads: “(a) The provisions of these regulations, including those established by traffic control devices, shall apply to the driver of any vehicle owned by or used in the service of the United States Government, this State, City, or any borough, and it shall be unlawful for any said driver to violate any of the provisions of these regulations except as otherwise permitted in these regulations or by state law” and subdivision (b) of the regulations, which makes the regulations inapplicable to equipment “actually engaged in work on a highway,” is identical in language with the first clause of the first sentence of subdivision (b) of section 1103 of the Vehicle and Traffic Law, except for the substitution of “these regulations” for “this title”. The failure to include in section 22 (subd [b]) the second clause of the first sentence of section 1103 of the Vehicle and Traffic Law is no contrary indication for the latter makes section 1202 of the Vehicle and Traffic Law inapplicable to hazard vehicles in particular situations, whereas regulation section 190 makes section 1202 of the Vehicle and Traffic Law inapplicable in the City of New York in any situation.

      . The answer was: “I seen the * * * I went in the house and leave the goods, what I want shopping, when I got to the car, and started going forward, I seen the truck.”


source: Caselaw Access Project

author: Fuchsberg, J. Meyer, J.

license: Public Domain

text:
    Rosalyn Weiss, Appellant, v George D. Weiss, Respondent.
    Submitted January 5, 1981;
    decided February 24, 1981

      POINTS OF COUNSEL

      Irwin K. Fingerit for appellant.
    The move to Las Vegas, Nevada, by plaintiff-appellant is for the best interest of the child; defendant-respondent is not being deprived of right of visitation and, therefore, no exceptional circumstances need be demonstrated.

      Aaron Weitz for respondent.
    I. Absent proof of a compelling and unanticipated change of circumstances affecting the welfare of the child, it was improper for Special Term to refuse to grant the injunction and to effectively permit appellant to remove the child to Nevada in derogation of respondent’s right of frequent and regular visitation as specified in the separation agreement. The court below correctly reversed Special Term. (Strahl v Strahl, 66 AD2d 571; Walsh v Walsh, 64 AD2d 980; Entwistle v Entwistle, 61 AD2d 380; Cohen v Cohen, 56 AD2d 784; Matter of Denberg v Denberg, 34 Misc 2d 980; Matter of Whittemore v Whittemore, 202 Misc 175.) II. The court below was correct in conditioning appellant’s right to continued support upon her continuing to reside with the child within an area in which respondent can reasonably exercise the visitation rights set forth in the agreement. Respondent should be relieved of his obligation to pay support unless he is afforded frequent and regular access to the child. (Borax v Borax, 4 NY2d 113; Cohen v Cohen, 56 AD2d 784; Feuer v Feuer,
      50 AD2d 772; Abraham v Abraham, 44 AD2d 675; Hudson v Hudson, 97 Misc 2d 558; Callender v Callender, 37 AD2d 360.) III. Nothing has been shown that the move to Las Vegas, Nevada, is in the best interests of the child. Neither has it been shown how such a move would not deprive respondent of his contractually mandated visitation rights.
   OPINION OF THE COURT

Fuchsberg, J.

In this matrimonial action, divorced parents, each devoted to the welfare of their now 11-year-old son, are enmeshed in a dispute over the desire of the mother, custodian of the child, to take the boy with her to Las Vegas, Nevada, where she intends to set up residence as part of a plan to make “a new life” for herself.

Judicial intervention was precipitated when the father, perceiving that the practical effect of such action would be to undermine his visitation rights, sought to enjoin his former wife from removing the child from this State. After a testimonial hearing, Supreme Court, Westchester County, denied the father’s application. The Appellate Division, reversing, granted the injunctive relief he sought. The mother now appeals.

Entered in 1975, when the child was six, the judgment of divorce, which did not-suggest that either party was an unfit parent, provided for the incorporation, but not the merger, of a separation agreement the parties had theretofore executed. The judgment provided, as had the agreement, that the custody of the child was to be in the mother. Pertinent to custody and visitation, it was express in reciting that the Supreme Court, concurrently with the Family Court, retained jurisdiction “for the purposes of specifically enforcing such provision of the agreement as are capable of specific enforcement or, to the extent permitted by law of making such further decree * * * as it finds appropriate under the circumstances existing at the time application for that purpose is made” (see Domestic Relations Law, § 240, subd 1; McKinney’s Cons Laws of NY, Ann, 1980 NY Court Rules, p 417, § 699.9, J 13).

Since the decree did not spell out the details of the paternal visitation rights in haec verba, we must turn to the surviving separation agreement. Fairly generous in scope, these visits included one weekday afternoon each week, two-day visits every other weekend, alternating Easter and Christmas holiday seasons and two continuous weeks during the summer. It is not disputed that the father availed himself fully and regularly of these opportunities for communion with his son. Nor does there appear to be any question but that the relationship so nurtured was strong and positive. Indeed, the factual findings make clear that, during the more than five years that have gone by since the divorce, the parties, to their mutual credit, each fully respecting the other’s role as custodian or noncustodian, have been concerned and dedicated parents.

It is also relevant to this case that, according to the agreement, “the Husband and the Wife shall continue to live separate and apart from each other and [that] each may reside from time to time at such place or places of residence or abode as he or she shall respectively choose”. Upon this clause the mother in part premises her contention that she is free to move to Las Vegas with the child.

At nisi prius, the mother further explained that, as a single person residing with her child in the former marital suburban residence in Westchester, she found herself confined by the social limitations of a community of married persons and pressed by the impact of inflation on a relatively tight budget. As she saw it, relocation to Las Vegas might solve her problems. In the less structured environment of that city, where she would seek suitable employment, preferably by putting an interest in singing to vocational advantage after a lapse of some 15 years, she hoped to find fulfillment. While she recognized that the barrier of physical distance thus interposed between father and son would severely curtail their visits, she nevertheless rationalized the end result as one which, overall, served the child’s best interests. In her own words, “since I am in charge of the day-to-day upbringing of my son, if I am happy and well-adjusted with my surroundings, chances are that my son will be as well”.

The Trial Judge, in making what he acknowledged to be a difficult decison — all the more so because, in an in camera interview, the boy had stated a preference for remaining in New York so that he could be near his father — concluded, on balance, that the mother was entitled “to improve her own life, so long as that move does not injure the child”. In reaching its contrary view, the Appellate Division held that the consequent interference with visitation rights was not warranted by the circumstances presented. For the reasons which follow, we uphold its determination.

Prefatorily, we turn to the mother’s reliance on the residency clause, the unqualified language of which, if read in isolation, would seemingly leave her free to reside wherever she chooses. However, the first operative provision in a fairly extensive separation agreement, it smacks more of the kind of “boilerplate” commonly employed by many draftsmen primarily to memorialize the fact that the parties are to respect their separated state (see, e.g., 1 Lindey, Separation Agreements and Ante-Nuptial Agreements, Form 8.02, at pp 8-1 to 8-2). Significantly, it makes no reference to the child. Most important, it does not take into account the extensive and explicit provisions for the father’s meaningful access to his son, covenants which would be rendered illusory were the residence clause to be read as if it stood alone. For the general principle is that an agreement, where possible, should be read as a whole so as to give each section meaning. Even so, as the Trial Judge, who correctly refused to posit his decision on either the residence clause or the visitation provisions alone, correctly noted, such agreements are not immutable.

It is also well to consider the attitudes of the law on parental visitation. Sometimes referred to as a “natural” parental right (Matter of Denberg v Denberg, 34 Misc 2d 980, 986 [J. Irwin Shapiro, J.]; Fournie, Post-Divorce Visitation: A Study in the Deprivation of Rights, 27 De Paul L Rev 113, 117), this appellation is too narrow. It ignores the primacy of the child’s welfare (see Matter of Ebert v Ebert 38 NY2d 700, 702; Domestic Relations Law, § 70). Where the physical and emotional well-being of a child is involved, it is, at best, anomalous that its protection should be dependent on the vindication of the “rights” of the parents. Visitation is a joint right of the noncustodial parent and of the child (cf. Henszey, Visitation by a Noncustodial Parent: What is the “Best Interest” Doctrine?, 15 Journal of Family Law 213, 214-215). This view does not lose sight of the fact that, while legal custody may be in one or both of the parents, the fact that it is placed in one does not necessarily terminate the role of the other as a psychological guardian and preceptor (see Gardner, Psychotherapy with Children of Divorce, p 381).

How valuable the mature guiding hand and love of a second parent may be to a child is taught by life itself. This is surely so when the parent-child relationship is carefully nurtured by regular, frequent and welcomed visitation as here (see Fournie, Post-Divorce Visitation: A Study in the Deprivation of Rights, 27 tie Paul L Rev 113, 114, and cases cited thereat). Therefore, in initially prescribing or approving custodial arrangements, absent exceptional circumstances, such as those in which it would be inimical to the welfare of the child or where a parent in some manner has forfeited his or her right to such access (Strahl v Strahl, 66 AD2d 571, affd 49 NY2d 1036), appropriate provision for visitation or other access by the noncustodial parent follows almost as a matter of course.

The State’s special concern with the interrelated, although of course not identical, matters of custody and visitation is not newborn. While contemporary courts most often will defer to the terms negotiated by the parents (Matter of Ebert v Ebert, 38 NY2d 700, 703, supra; Aberbach v Aberbach, 33 NY2d 592; Pilpel & Zavin, Separation Agreements: Their Function and Future, 18 L & Contemp Prob 33, 34-35, n 2), for a long time such agreements were not enforceable (2 Foster — Freed, Law and the Family, § 29.21, p 535). Today, however, when, as in this case, courts are called upon to interpret or apply an agreement on this subject, in this State they must not hestiate to resolve the issue (Domestic Relations Law, § 240).

These considerations in mind, we note that at the hearing it in effect was agreed that the mother’s plans were made in good faith. In particular, there is no suggestion that she was motivated by a desire to put the child out of the reach of the father or to jeopardize their relationship (see Matter of Denberg v Denberg, 34 Misc 2d 980, supra; Matter of Whittemore v Whittemore, 202 Misc 175). On the positive side, as the trial court found, she pursued a felt obligation to check the availability in Las Vegas of a suitable home, school and place of religious instruction for her child. And, right from the beginning, she has volunteered a willingness to agree that the father’s anticipated sparser paternal visits be longer ones.

However, such a trade off, whether voluntarily offered or judicially imposed, does not necessarily meet the needs of the child or father. Gainsaying the expense of travel across the country, given the unavailability of batches of time for making longer trips and the large gaps that will intervene between meetings of father and son, it cannot be said that the paternal input, if not the quality of the filial relationship itself, will not suffer. For instance, nothing like the 150 to 200 days per year on which, as the record shows, they have been seeing something of one another is envision-able. This could be especially troublesome to a boy who would be wrenched away from a father to whom he has expressed great attachment. While his wishes need not have been determinative, they were not without moment.

Children are not exempt from the dislocation that almost inevitably is imposed on both the young and the adult members of a family affected by divorce. But, in pursuit of society’s desire to shield a youngster from ensuing disruptions, the law does not insist that the parents make every possible sacrifice, no matter how disproportionate it may be to the benefit it would bestow on the child. The parents too are entitled to consideration. Always remembering the formative aspects of childhood, the quest, if possible, is for a reasonable accommodation of the rights and problems of both.

But here it is worth noting that the injunction is not calling upon the mother to forego a unique, or even firm, vocational offer; as the Appellate Division remarked, however well intentioned, her search is for no more than an “opportunity”. Nor is the proposed migration to the “Sun Belt” fueled by any exceptional health or educational needs, of a mother or of child (see, e.g., Nash v Nash, 236 App Div 89, affd without opn 261 NY 579; see Harris v Harris, 57 Misc 2d 672). And, as we know, this is not a case where the obligations undertaken by a divorced parent who marries anew require a dramatic change of locale.

We therefore find no reason to conclude that the Appellate Division abused its discretion in making the order it did. Accordingly, we should affirm.

Meyer, J.

(concurring). While I concur in the result on the facts and in the posture of this case, I do not concur in the opinion because it gives too little consideration to the principle, which in my view should apply as to place of residence as well, that it is the right of the custodial parent, absent controlling contrary provisions in a separation agreement, to determine the child’s secular education program (Ann., 36 ALR3d 1093) and religious education program (Weinberger v Van Hessen, 260 NY 294, 298; see Diemer v Diemer, 8 NY2d 206, 212; Matter of Paolella v Phillips, 27 Misc 2d 763, 765-766). Where there is no provision restricting place of residence, greater consideration than was here given should be given to whether both the father’s right to visitation and the mother’s right as custodial parent to determine residence, cannot be accommodated by allowing the change of residence and revising the visitation provisions so that the father’s relationship with the child will not be materially denigrated by the change of résidence.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones and Wachtler concur with Judge Fuchsberg; Judge Meyer concurs in result in a separate opinion.

Order affirmed, with costs.

      . The wife received the house as part of the marital settlement and has continued to reside in it.

      . Since the overriding issue that controls the outcome of this case has not involved any dispute between the parties as to the role of a custodial parent in the determination of a child’s secular and religious training as such, we have no occasion to accept the concurrer’s invitation to explore that subject at this time.

      . Because the order of the Appellate Division did not incorporate any provision based on so much of its opinion as dealt with the relationship of support payments to adherence to a residential removal proscription, we have no occasion to deal with that question (see Strahl v Strahl, 49 NY2d 1036, 1038, supra). As to counsel fees, in light of the services which have intervened since Special Term made its award, any further application would be for the courts below.


author: Jasen, J.

text:
    L. Smirlock Realty Corp., Appellant, v Title Guarantee Company, Respondent.
    Argued January 5, 1981;
    decided February 19, 1981

      POINTS OF COUNSEL

      Jeffrey G. Stark and J. Irwin Shapiro for appellant.
    I. The court below made novel determinations of law which substantially diminish the protection afforded by title insurance in this State in holding: (A) that liability can be avoided by an unintentional concealment; and (B) that a material omission has been proven as a matter of law where the insured fails to disclose one communication that a portion of the insured premises has been condemned, notwithstanding the insured discloses a subsequent communication to the same effect. (Sebring v Fidelity-Phenix Fire Ins. Co. of N. Y., 255 NY 382; Bronx Sav. Bank v Weigandt, 1 NY2d 545; Lawyers Tit. Ins. Corp. v Research Loan & Inv. Corp., 361 F2d 764; Stecker v American Home Fire Assur. Co., 299 NY 1; Geer v Union Mut. Life Ins. Co., 273 NY 261; Vander Veer v Continental Cas. Co., 34 NY2d 50; Leamy v Berkshire Life Ins. Co., 39 NY2d 271; Travel

      ers Ins. Co. v Pomerantz, 246 NY 63; Reynolds v Commerce Fire Ins. Co. of N. Y., 47 NY 597.) II. The decision of the court below is in conflict with decisions of this court in holding that facts communicated to a person who later becomes an agent of plaintiff concerning an unrelated transaction will be imputed to plaintiff notwithstanding no proof is offered, and no finding made, that the agent recalled those facts at the time of the transaction in issue. (Constant v University of Rochester, 111 NY 604; Title Guar. & Trust Co. v Pam, 232 NY 441.)

      John J. Boyle and Michael Permut for respondent.
    I. Plaintiff knew prior to the closing on May 14, 1969 that a portion of the premises had been taken in condemnation. Its failure to disclose this material fact to defendant voids the policy. The knowledge of Tucker is imputable to plaintiff. (First Nat. Bank & Trust Co. of Port Chester v New York Tit. Ins. Co., 171 Misc 854; Geer v Union Mut. Life Ins. Co., 273 NY 261; Stipcich v Insurance Co., 277 US 311; Lawyers Tit. Ins. Corp. v Research Loan & Inv. Corp., 361 F2d 764; Cox v Blake Co., 100 Misc 135; Sun Mut. Ins. Co. v Ocean Ins. Co., 107 US 485; Raebeck v Title Guar. & Trust Co., 229 App Div 727; Reynolds v Commerce Fire Ins. Co. of N. Y., 47 NY 597; Sullivan v Tomgil Bldg. Corp., 46 Misc 2d 613; Offenhartz v Heinsohn, 30 Misc 2d 693.) II. The judgment in favor of plaintiff on its counterclaim in the amount of $92,674.18 should be affirmed.
   OPINION OF THE COURT

Jasen, J.

This appeal presents a question of first impression for our court. At issue is whether a policy of title insurance will be rendered void pursuant to a standard misrepresentation clause found therein as a result of the insured’s failure to disclose a material fact which was a matter of public record at the time the policy was issued.

In.November, 1967, the Town of Hempstead condemned and thereby acquired title to certain property on and adjacent to the premises known as 31-39 Carvel Place, which is located in Inwood, Long Island. At that time, the premises were owned by Bass Rock Holding, Inc. (Bass Rock), a corporation controlled by Helen and Anthony De Giulio. The Bass Rock property was improved by a warehouse and access to and from the property was over three public streets: Carvel Place to the north of the premises and St. George Street and Jeanette Avenue to its east. The principal loading docks for the warehouse were located at the easterly end of the building with direct access from St. George Street and Jeanette Avenue. In addition, there was an alleyway along the northern side of the warehouse connecting the Carvel Place entrance to these loading docks. However, clearance along this passageway was quite limited and trucks would often strike the warehouse building when attempting to maneuver down this alleyway. Because of this, the Carvel Street entrance was of little value as an access route for the warehouse facility.

The Bass Rock property was heavily indebted and in 1968 there was a default in mortgage payments. A foreclosure proceeding was instituted in the early part of 1969. It was at about this time that Gerald Tucker, general counsel for one of the mortgagees in the foreclosure proceeding, indicated an interest in the property and negotiations were commenced with the De Giulios with a view toward the eventual purchase of the Bass Rock property. Soon thereafter, the plaintiff corporation was formed by Tucker and a group of associated investors.

It was also around this time, according to the testimony of Abraham Lee, Special Counsel for the Town of Hemp-stead, that Lee telephoned Tucker to inform him that a portion of the Bass Rock property had been condemned by the town and should be excluded from the foreclosure proceeding. Lee testified that he identified the condemned parcel as “abutting on Carvel Place”, but that Tucker stated that he was not interested and would proceed with the foreclosure action anyway. The parcel in question subsequently was identified in the record as the town’s damage parcel 8-6, taken for street alignment purposes.

Sometime after Tucker spoke with Lee, Tucker and Joseph Tiefenbrun, the attorney retained by plaintiff, met with the Bass Rock attorney to discuss the details of the sales contract. At this meeting, Tucker was informed that, although the exact location of the property involved was uncertain, Bass Rock was entitled to a $5,000 to $6,000 condemnation award from the Town of Hempstead. As a result of this discussion, the contract was amended to include a clause assigning “any condemnation award affecting the premises then due or to be due in the future” to the plaintiff. It was agreed that the necessary information concerning this condemnation wduld be provided at the title closing. On April 25, 1969, the sales contract was executed by Bass Rock and the plaintiff. The purchase price was set at $600,000.

On May 14, 1969, title was closed. During the closing, and in the presence of defendant’s title closer, Tucker and Mrs. De Giulio discussed the condemnation award referred to in the sales contract. In fact, Mrs. De Giulio sketched an outline of the condemned property on the Bass Rock title survey. The parcel marked by Mrs. De Giulio was adjacent to the southwest corner of the Bass Rock property, but it was not part of nor did it affect any access routes to the warehouse.

After title closed, defendant issued plaintiff a title policy covering the warehouse property. The policy contained the following clause insuring access to public streets: “Notwithstanding any provisions in this paragraph to the contrary, this policy, unless otherwise excepted, insures the ordinary rights of access and egress belonging to abutting owners.” It should be noted that no exception was listed in the policy for any condemnation affecting Carvel Place, St. George Street or Jeanette Avenue.

At the time the property was purchased, plaintiff leased the entire premises to Pan American World Airways, Inc. In addition, plaintiff had spent an additional $95,000 above the purchase price in order to improve the premises for its new tenant. Unfortunately, it was soon discovered that the title search had failed to reveal that the roadbeds of St. George Street and Jeanette Avenue and a portion of the property along Carvel Place had been condemned by the Town of Hempstead two years prior to plaintiff’s acquisition of the property. It was apparent that the defendant’s title searchers simply failed to check the master card on file at the Nassau County Clerk’s office covering the applicable section and block which would have revealed these condemnations.

By 1971, plans for urban development in the Town of Hempstead required the closing down of the warehouse access'routes at St. George Street and Jeanette Avenue, thereby rendering the property valueless. As a result, Pan American quit the premises and plaintiff eventually lost 31-39 Carvel Place in a foreclosure sale. Plaintiff then commenced the present action against the defendant seeking to recover $600,000 in damages pursuant to its title insurance policy based on the defendant’s failure to discover the condemned roadbed property.

In its answer, defendant pleaded an affirmative defense based on the following standard provision in its policy:

“MISREPRESENTATION

“Any untrue statement made by the insured, with respect to any material fact, or any suppression of or failure to disclose any material fact, or any untrue answer by the insured, to material inquiries before the issuance of this policy, shall void this policy.”

According to defendant, plaintiff, through its agent Tucker, had knowledge prior to the closing of the town’s condemnation as a result of his conversation with Lee. Defendant asserted that plaintiff’s failure to divulge this knowledge to the defendant was a “failure to disclose [a] material fact” which rendered the title policy void.

At the end of a nonjury trial, Trial Term dismissed plaintiff’s claim. Finding that plaintiff, through Tucker, had knowledge of the condemnations prior to the issuance of the policy which it failed to disclose to the defendant, Trial Term concluded that the policy was nullified.

On appeal, a unanimous Appellate Division affirmed, but for reasons somewhat different than those expressed at Trial Term. The Appellate Division determined that although Tucker had been alerted by Lee as to the taking along Carvel Place of damage parcel 8-6, this fact offered no basis for the further inference, one apparently drawn by Trial Term, that Tucker also had knowledge of the condemnation of the roadbeds at St. George Street and Jeanette Avenue. Thus, the Appellate Division found that Tucker only had knowledge prior to the closing of the Carvel Place taking and of the condemnation of the small adjacent parcel at the southwest corner of the property which was identified at the closing by Mrs. De Giulio. According to the Appellate Division, the crucial issue of the case was whether “this knowledge concerned a material fact, the concealment of which was tantamount to a misrepresentation sufficient to permit defendant to void its title policy” (70 AD2d, at p 461).

In addressing this issue, the court below defined materiality in terms of “whether the suppression deprived the insurer of its freedom of choice in determining whether to accept or reject the risk upon full disclosure of all the facts which might reasonably affect that choice.” (70 AD2d, at p 462.) The court went on to state (at p 463) that materiality “extends to any information that might have been revealed had further inquiry followed the initial disclosure of the suppressed facts.” The court found that information regarding the condemnation of damage parcel 8-6 at Carvel Place was not itself material in that that taking had little, if any, effect on the value of the property. However, because disclosure of the Carvel Place taking, revealed to Tucker prior to closing, would have caused the defendant to check the appropriate public records and inevitably led to the discovery of the St. George Street and Jeanette Avenue condemnations, the Appellate Division concluded (70 AD2d, at p 463) that “no title insurance company with knowledge of [these] facts would have insured ingress and egress over streets already condemned for an urban renewal project.” Therefore, inasmuch as Tucker’s failure to disclose the information acquired in his conversation with Lee deprived the defendant of its “freedom of choice in determining the nature, scope and extent of the risk it would assume”, the Appellate Division held (at p 464) that the suppression of the information regarding the Carvel Place condemnation was “material as a matter of law and would preclude recovery on the policy”. We reverse.

At the outset, we note our agreement with the court below that information concerning the condemnations of damage parcel 8-6 adjacent to Carvel Place and the St. George Street and Jeanette Avenue roadbeds was material. It is manifest that revelation of this information certainly would have affected defendant’s choice of insuring the risk covered by the policy issued to plaintiff. (See Vander Veer v Continental Cas. Co., 34 NY2d 50; Geer v Union Mut. Life Ins. Co., 273 NY 261; Travelers Ins. Co. v Pomerantz, 246 NY 63; see, generally, 5A Warren’s Weed New York Real Property, Title Insurance, § 2.08.) However, contrary to the view expressed by the Appellate Division, the mere existence of knowledge of a material fact on plaintiff’s part does not end the analysis. Rather, in order to ascertain whether the policy has been voided, a further determination must be made as to whether plaintiff was under a duty to disclose this information to defendant. (Geer v Union Mut. Life Ins. Co., 273 NY 261, supra; Sebring v Fidelity-Phenix Fire Ins. Co. of N. Y., 255 NY 382.) In order to make that determination,' we first must examine the nature of the agreement entered into by the parties and the respective expectations and obligations of the insured and insurer which arise out of a policy of title insurance.

By definition, title insurance involves “insuring the owners of real property * * * against loss by reason of defective titles and encumbrances thereon and insuring the correctness of searches for all instruments, liens or charges affecting the title to such property”. (Insurance Law, § 46, subd 18; see, also, § 438.) Or, as one lower court has expressed it, “[a] policy of title insurance means the opinion of the company which issues it, as to the validity of the title, backed by an agreement to make that opinion good, in case it should prove to be mistaken, and loss should result in consequence to the insured.” (First Nat. Bank & Trust Co. of Port Chester v New York Tit. Ins. Co., 171 Misc 854, 859.) Essentially, therefore, a policy of title insurance is a contract by which the title insurer agrees to indemnify its insured for loss occasioned by a defect in title. (See.9 Appleman, Insurance Law and Practice, § 5201; 13 Couch, Insurance [2d ed], § 48:108.)

Beyond its purely contractual aspects, however, the unique nature of a title insurance transaction was quickly recognized by the courts. In Empire Dev. Co. v Title Guar. & Trust Co. (225 NY 53, 59-60), this court noted: “To a layman a search is a mystery and the various pitfalls that may beset his title are dreaded but unknown. To avoid a possible claim against him; to obviate the need and expense of professional advice, and the uncertainty that sometimes results even after it has been obtained is the very purpose for which the owner seeks insurance.” Rather than being treated merely as a contract of indemnity, title insurance was viewed as being more in the nature of a covenant of warranty against encumbrances under which'“mere knowledge of a defect [in title] by the insuring owner would not constitute a defense.” (Empire Dev. Co. v Title Guar. & Trust Co., supra, at p 61; Maggio v Abstract Tit. & Mtge. Corp., 277 App Div 940.)

Interestingly, in response to the decision in the Empire Dev. Co. case, title companies adopted as a standard provision in their policies the very misrepresentation clause at issue on this appeal. (See 5A Warren’s Weed New York Real Property, Title Insurance, § 2.08.) To date, however, this court has not been presented with an opportunity to examine the effect to be given to this clause in terms of imposing an obligation on the insured to disclose information to the insurer. Moreover, although at least one lower court has recognized the validity of this misrepresentation clause based on the insured’s failure to divulge information to its insurer (Glickman v Home Tit. Guar. Co., 15 Misc 2d 167, affd 8 AD2d 629), other courts of this State which have addressed the issue of an insured’s obligation to reveal information to its title insurer have held that the policy was voided by the insured’s failure to disclose only in instances where there was evidence of intentional concealment on the part of the insured and the undisclosed information concerned a matter not of public record. (Vaughan v United States Tit. Guar. & Ind. Co., 137 App Div 623; First Nat. Bank & Trust Co. of Port Chester v New York Tit. Ins. Co., 171 Misc 854, supra; cf. Sullivan v Tomgil Bldg. Corp., 46 Misc 2d 613.)

One Federal court, addressing a provision identical to that found in the defendant’s policy, stated that the clause “must be given a common sense application and, considering the nature of title insurance transactions, a duty to speak could be found only if the insurance applicant had actual knowledge of certain defects or encumbrances. Further, misrepresentation could be found only if one charged with such a duty to speak intentionally failed to disclose the information.” (Lawyers Tit. Ins. Corp. v Research Loan & Inv. Corp., 361 F2d 764, 768.) In a like manner, other jurisdictions which have addressed similar clauses have required a showing that the insured had actual knowledge of the title defect which was intentionally concealed from the insurer. Moreover, these cases indicated, either expressly or by implication, that the title policy would only be voided in instances where the undisclosed information was not discoverable by the insurer by reference to publicly filed records. (Collins v Pioneer Tit. Ins. Co., 629 F2d 429; Rosenblatt v Louisville Tit. Co., 218 Ky 714; Fohn v Title Ins. Corp. of St. Louis, 529 SW2d 1 [Mo]; Pioneer Nat. Tit. Ins. Co. v Lucas, 155 NJ Super 332, affd 78 NJ 320; Laabs v Chicago Tit. Ins. Co., 72 Wis 2d 503; Bush v Coult, 594 P2d 865 [Utah] ; see 9 Appleman, Insurance Law and Practice, § 5205; 7 Powell, Real Property, Title Insurance, par 1037.)

We agree with the view expressed by these cases. Therefore, we hold that a policy of title insurance will not be rendered void pursuant to a misrepresentation clause absent some showing of intentional concealment on the part of the insured tantamount to fraud. Moreover, because record information of a title defect is available to the title insurer and because the title insurer is presumed to have made itself aware of such information, we hold that an insured under a policy of title insurance such as is involved herein is under no duty to disclose to the insurer a fact which is readily ascertainable by reference to the public records. Thus, even an intentional failure to disclose a. matter of public record will not result in a loss of title insurance protection.

In so holding, we merely recognize the practical realities of the transaction involved. As mentioned earlier, title insurance is procured in order to protect against the risk that the property purchased may have some defect in title. The emphasis in securing these policies is on the expertise of the title company to search the public records and discover possible defects in title. Thus, unlike other types of insurance, the insured under a title policy provides little, if any, information to the title company other than the lot and block of the premises and the name of the prospective grantor. Armed with this information, the title company then can search the various indices and maps to ascertain the state of title to the property. Indeed, it is because title insurance companies combine their search and disclosure expertise with insurance protection that an implied duty arises out of the title insurance agreement that the insurer has conducted a reasonably diligent search. (McLaughlin v Attorneys’ Tit. Guar. Fund, 61 Ill App 3d 911; Shotwell v Transamerica Tit. Ins. Co., 16 Wash App 627, 628-631, affd 91 Wn 2d 161; see 9 Appleman, Insurance Law and Practice, § 5213.) This duty may not be abrogated through a standard policy clause which would, if given the effect urged by defendant, place the onus of the title company’s failure adequately to search the records on the party who secured the insurance protection for that very purpose. (See Empire Dev. Co. v Title Guar. & Trust Co., 225 NY 53, supra.)

Of course, an intentional failure by the insured to disclose material information not readily discernible from the public records will render the policy void. .For instance, where the insured secures title insurance with knowledge that there exists some hidden defect in title, such as a forged deed, incapacity of the grantor, or the existence of an unrecorded easement (see, generally, 5A Warren’s Weed New York Real Property, Title Insurance, § 2.04) and the insured conceals that information from the title insurer, then such a failure to disclose will result in nullification of the policy.

In this case, there was no showing that plaintiff’s agent, Tucker, intentionally failed to disclose the information concerning the Carvel Place condemnation. In fact, it would appear that defendant was at least put on notice as to the existence of condemnations affecting the Bass Rock property by the recital in the sales contract assigning all condemnation awards to plaintiff and by the discussion of the condemnation of the small southwest parcel which took place at the closing. In any event, it is undisputed that the existence of the St. George Street and Jeanette Avenue condemnations was readily ascertainable from the public records available at the Nassau County Clerk’s office. Defendant, having failed to avail itself of this information, now attempts to avoid its obligation under the policy by claiming that plaintiff failed to disclose material information concerning title to the property. However, because plaintiff was under no duty to disclose this publicly available information to defendant, the policy will not be rendered void pursuant to the misrepresentation provision found therein.

Finally, defendant’s answer contained a counterclaim premised upon an agreement entered into between the parties whereby the defendant advanced certain moneys in plaintiff’s behalf for taxes and expenses attributable to plaintiff’s attempt to secure a condemnation award from the Town of Hempstead. Pursuant to that agreement, plaintiff was to repay defendant the amounts so advanced subject to a setoff of any sums found due to plaintiff under its title policy. Inasmuch as plaintiff offers no basis for overturning the judgment rendered in defendant’s behalf on this counterclaim, we do not disturb that award. Of course, payment of the amounts owing under this counterclaim must await a determination of the amount due plaintiff as damages under its title policy.

Accordingly, the order of the Appellate Division should be modified, with costs to plaintiff, to the extent of reversing the dismissal of plaintiff’s first cause of action and remitting the case to Supreme Court, Nassau County, for a trial on the issue of plaintiff’s damages. As so modified, the order should be affirmed.

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

Order modified, with costs to plaintiff, and the case remitted to Supreme Court, Nassau County, for a trial on the issue of plaintiff’s damages in accordance with the opinion herein and, as so modified, order affirmed.

       As a second cause of action, plaintiff alleged that defendant was negligent in conducting its title search by failing to discover the public records of the condemnations. The Appellate Division held that this second cause of action properly was dismissed because any claim of negligence in the title search merged into the subsequently issued title policy pursuant to the express terms of the certificate of title. Inasmuch as no appeal was taken by plaintiff from this determination, we do not concern ourselves here with plaintiff’s second cause of action in negligence.


author: Wachtler, J. Jones, J.

text:
    In the Matter of Harvey Snide, Deceased. Rose Snide, Appellant; David W. Johnson, as Guardian ad Litem of David Snide, Respondent.
    Submitted January 14, 1981;
    decided February 19, 1981

      POINTS OF COUNSEL

      Edward A. Cunningham and Samuel Lawrence Brennglass for appellant.
    The Surrogate’s Court has jurisdiction to probate the propounded instrument. (Nelson v McDonald, 61 Hun 406; Matter of Bacon, 165 Misc 259; Matter of Runk, 200 NY 447; Matter of Raymond v Davis, 248 NY 67; Matter of Chusid, 60 Misc 2d 462; Matter of Young, 80 Misc 2d 937.)

      David W. Johnson for respondent.
    I. The law of New York is clear that a will of another, mistakenly signed by deceased as his own will, may not be admitted to probate. (Matter of Bacon, 165 Misc 259.) II. A will of another, mistakenly signed by the deceased as his own will, may not be reformed so as to constitute the deceased’s will under the equitable powers of the Surrogate’s Court. (McLean v Hart, 228 App Div 379; Matter of Goettel, 184 Misc 155.)
   OPINION OF THE COURT

Wachtler, J.

This case involves the admissibility of a will to probate. The facts are simply stated and are not in dispute. Harvey Snide, the decedent, and his wife, Rose Snide, intending to execute mutual wills at a common execution ceremony, each executed by mistake the will intended for the other. There are no other issues concerning the required formalities of execution (see EPTL 3-2.1), nor is there any question of the decedent Harvey Snide’s testamentary capacity, or his intention and belief that he was signing his last will and testament. Except for the obvious differences in the names of the donors and beneficiaries on the wills, they were in all other respects identical.

The proponent of the will, Rose Snide, offered the instrument Harvey actually signed for probate. The Surrogate decreed that it could be admitted, and further that it could be reformed to substitute the name “Harvey” wherever the name “Rose” appeared, and the name “Rose” wherever the name “Harvey” appeared. The Appellate Division reversed on the law, and held under a line of lower court cases dating back into the 1800’s, that such an instrument may not be admitted to probate. We would reverse.

It is clear from the record, and the parties do not dispute the conclusion, that this is a case of a genuine mistake. It occurred through the presentment of the wills to Harvey and Rose in envelopes, with the envelope marked for each containing the will intended for the other. The attorney, the attesting witnesses, and Harvey and Rose, all proceeding with the execution ceremony without anyone taking care to read the front pages, or even the attestation clauses of the wills, either of which would have indicated the error.

Harvey Snide is survived by his widow and three children, two of whom have reached the age of majority. These elder children have executed waivers and have consented to the admission of the instrument to probate. The minor child, however, is represented by a guardian ad litem who refuses to make such a concession. The reason for the guardian’s objection is apparent. Because the will of Harvey would pass the entire estate to Rose, the operation of the intestacy statute (EPTL 4-1.1) after a denial of probate is the only way in which the minor child will receive a present share of the estate.

The gist of the objectant’s argument is that Harvey Snide lacked the required testamentary intent because he never intended to execute the document he actually signed. This argument is not novel, and in the few American cases on point it has been the basis for the denial of probate (see Nelson v McDonald, 61 Hun 406; Matter of Cutler, 58 NYS-2d 604; Matter of Bacon, 165 Misc 259; see, also, Matter of Pavlinko, 394 Pa 564; Matter of Goettel, 184 Misc 155). However, cases from other common-law jurisdictions have taken a different view of the matter, and we think the view they espouse is more sound (Matter of Brander, 4 DOM L Rep 688 [1952]; Guardian, Trust & Executor’s Co. of New Zealand v Inwood, 65 NZ L Rep 614 [1946] [New Zealand]; see Wills, 107 U of Pa L Rev 1237, 1239-1240; Kennedy, Wills-Mistake-Husband and Wife Executing Wills Drawn for Each Other — Probate of Husband’s Will With Substitutions, 31 Can Bar Rev 185).

Of course it is essential to the validity of a will that the testator was possessed of testamentary intent (Matter of May, 241 NY 1; 64 NY Jur, Wills, § 11; see EPTL 1-2.18), however, we decline the formalistic view that this intent attaches irrevocably to the document prepared, rather than the testamentary scheme it reflects. Certainly, had a carbon copy been substituted for the ribbon copy the testator intended to sign, it could not be seriously contended that the testator’s intent should be frustrated (Matter of Epstein, 136 NYS2d 884; see 81 ALR2d 1106, 1120-1121). Here the situation is similar. Although Harvey mistakenly signed the will prepared for his wife, it is significant that the dispositive provisions in both wills, except for the names, were identical.

Moreover, the significance of the only variance between the two instruments is fully explained by consideration of the documents together, as well as in the undisputed surrounding circumstances. Under such facts it would indeed be ironic — if not perverse — to state that because what has occurred is so obvious, and what was intended so clear, we must act to nullify rather than sustain this testamentary scheme. The instrument in question was undoubtedly genuine, and it was executed in the manner required by the statute. Under these circumstances it was properly admitted to probate (see Matter of Pascal, 309 NY 108, 113-114).

In reaching this conclusion we do not disregard settled principles, nor are we unmindful of the evils which the formalities of will execution are designed to avoid; namely, fraud and mistake. To be sure, full illumination of the nature of Harvey’s testamentary scheme is dependent in part on proof outside of the will itself. However, this is a very unusual case, and the nature of the additional proof should not be ignored. Not only did the two instruments constitute reciprocal elements of a unified testamentary plan, they both were executed with statutory formality, including the same attesting witnesses, at a contemporaneous execution ceremony. There is absolutely no danger of fraud, and the refusal to read these wills together would serve merely to unnecessarily expand formalism, without any corresponding benefit. On these narrow, facts we decline this unjust course.

Nor can we share the fears of the dissent that our holding will be the first step in the exercise of judicial imagination relating to the reformation of wills. Again, we are dealing here solely with identical mutual wills both simultaneously executed with statutory formality.

For the reasons we have stated, the order of the Appellate Division should be reversed, and the matter remitted to that court for a review of the facts.

Jones, J.

(dissenting). I agree with the Appellate Division that the Surrogate’s Court had no authority to reform the decedent’s will and am of the conviction that the willingness of the majority in an appealing case to depart from what has been consistent precedent in the courts of the United States and England will prove troublesome in the future. This is indeed an instance of the old adage that hard cases make bad law.

Our analysis must start with the recognition that any statute of wills (now articulated in this State at EPTL 3-2.1) operates frequently to frustrate the identifiable dis-positive intentions of the decedent. It is never sufficient under our law that the decedent’s wishes be clearly established; our statute, like those of most other common-law jurisdictions, mandates with but a few specific exceptions that the wishes of the decedent be memorialized with prescribed formality. The statutes historically have been designed for the protection of testators, particularly against fraudulent changes in or additions to wills. “[W]hile often it may happen that a will truly expressing the intention of the testator is denied probate for failure of proper execution, it is better that this should happen under a proper construction of the statute than that the individual case should be permitted to weaken those provisions intended to protect testators generally from fraudulent alterations of their wills” (64 NY Jur, Wills, § 198, p 348).

Next it must be recognized that what is admitted to probate is a paper writing, a single integrated instrument (codicils are considered integral components of the decedent’s “will”). We are not concerned on admission to probate with the substantive content of the will; our attention must be focused on the paper writing itself. As to that, there can be no doubt whatsoever that Harvey Snide did not intend as his will the only document that he signed on August 13, 1970.

Until the ruling of the Surrogate of Hamilton County in this case, the application of these principles in the past had uniformly been held in our courts to preclude the admission to probate of a paper writing that the decedent unquestionably intended to execute when he and another were making mutual wills but where, through unmistakable inadvertence, each signed the will drawn for the other. Nor had our courts blinkingly invoked a doctrine of equitable reformation to reach the same end. (Nelson v McDonald, 61 Hun 406; Matter of Bacon, 165 Misc 259; Matter of Egner, 112 NYS2d 568; Matter of Cutler, 58 NYS2d 604; subsequently, contra Matter of Iovino, NYLJ, April 16, 1980, p 14, col 5 [an uncontested case].)

On the basis of commendably thorough world-wide research, counsel for appellant has uncovered a total of 17 available reported cases involving mutual wills mistakenly signed by the wrong testator. Six cases arise in New York, two in Pennsylvania, three in England, one in New Zealand and five in Canada. With the exception of the two recent Surrogate’s decisions (Snide and Iovino) relief was denied in the cases from New York, Pennsylvania and England. The courts that have applied the traditional doctrines have not hesitated, however, to express regret at judicial inability to remedy the evident blunder. Relief was granted in the six cases from the British Commonwealth. In these cases it appears that the court has been moved by the transparency of the obvious error and the egregious frustration of undisputed intention which would ensue from failure to correct that error.

Under doctrines both of judicial responsibility not to allow the prospect of unfortunate consequence in an individual case to twist the application of unquestioned substantive legal principle and of stare decisis, I perceive no jurisprudential justification to reach out for the disposition adopted by the majority. Not only do I find a lack of rigorous judicial reasoning in this result; more important, I fear an inability to contain the logical consequences of this decision in the future. Thus, why should the result be any different where, although the two wills are markedly different in content, it is equally clear that there has been an erroneous contemporaneous cross-signing by the two would-be testators, or where the scrivener has prepared several drafts for a single client and it is established beyond all doubt that the wrong draft has been mistakenly signed? Nor need imagination stop there.

For the reasons stated, I would adhere to the precedents, and affirm the order of the Appellate Division.

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

Order reversed, with costs to all parties appearing separately and filing separate briefs payable out of the estate, and the matter remitted to the Appellate Division, Third Department, for further procedings in accordance with the opinion herein.


author: Per Curiam.

text:
    Ronald Rorie et al., Appellants-Respondents, v Woodmere Academy, Respondent-Appellant.
    Argued January 14, 1981;
    decided February 24, 1981

      POINTS OF COUNSEL

      Robert H. Harris, Sondra Ina Harris and Mark E. Spund for appellants-respondents.
    I. Defendant abandoned its use as a matter of law at the effective date of the ordinance. (People v Miller, 304 NY 105; Town of Lima v Harper, 55 AD2d 405; Matter of Paukovits v Zoning Bd. of Appeals of Town of Blooming Grove, 67 AD2d 683; People v Kesbec, Inc., 281 NY 785; People v Wolfe, 272 NY 608; Vernon Manor Co-op. Apts., Section I v Salantino, 15 Misc 2d 491; Philanz Oldsmobile v Keating, 51 AD2d 437.) II. The academy has abandoned its pre-existing nonconforming use. (Matter of Harbison v City of Buffalo, 4 NY2d 553; Matter of Putnam Armonk v Town of Southeast, 52 AD2d 10; Matter of Concerned Citizens of Montauk v Lester, 62 AD2d 171; Becker v Snowden Dev. Corp., 66 Misc 2d 1060; Matter of Deyo v Hagen, 41 AD2d 790; Matter of Dolomite Prods. Co. v Kipers, 23 AD2d 339; Spanos v Boschen, 61 AD2d 837; People’s Bank v St. Anthony’s R. C. Church, 109 NY 512; Knapp v Rochester Dog Protective Assn., 235 App Div 436.) III. Woodmere Academy has expanded its alleged nonconforming use to such a point where it may no longer be legally claimed. (Modjeska Sign Studios v Berle, 43 NY2d 468; People v Miller, 304 NY 105; Matter of Harbison v City of Buffalo, 4 NY2d 553; Gilmore v Beyer, 46 AD2d 208; Matter of Cave v Zoning Bd. of Appeals of Vil. of Fredonia, 49 AD2d 228; Matter of Chandler v Corbett, 274 App Div 1073; Matter of Pisicchio v Board of Appeals of Vil. of Freeport, 165 Misc 156; Village of Waterford v O’Brien, 39 AD2d 490.)

      Stephen Van R. Ulman for respondent-appellant.
    I. The complaint should have been dismissed because plaintiffs had no standing to maintain the action. (Boomer v Atlantic Cement Co., 26 NY2d 219; Cord Meyer Dev. Co. v Bell Bay Drugs, 20 NY2d 211 (Barnathan v Garden City Park Water Dist., 21 AD2d 832; Slevin v Long Is. Jewish Med. Center, 66 Misc 2d 312; Monsey Mfg. Co. v Ocko, 14 AD2d 925, 13 NY2d 623.) II. There has been no abandonment of the nonconforming use of defendant’s property for summer programs. (Matter of Concerned Citizens of Montauk v Lester, 62 AD2d 171; Matter of Carlington Corp. v Siegel, 61 AD2d 813; City of Binghamton v Gartell, 275 App Div 457; Matter of Deyo v Hagen, 41 AD2d 790; Curtiss-Wright Corp. v Incorporated Vil. of Garden City, 185 Misc 508, 270 App Div 936, 296 NY 839; Woodmere Academy v Steinberg, 41 NY2d 746; Baml Realty v State of New York, 35 AD2d 857.) III. Summer camp use of the Woodmere Academy campus is a protected nonconforming use which has not been abandoned. (People v Miller, 304 NY 105; Matter of Paukovits v Zoning Bd. of Appeals of Town of Blooming Grove, 67 AD2d 683.) IV. The legal nonconforming summer camp use of defendant’s campus has not been illegally expanded. (People v Perkins, 282 NY 329; Ruhm v C. P. Craska, Inc., 59 AD2d 1016; Matter of Syracuse Aggregate Corp. v Wiese, 72 AD2d 254; Matter of Chandler v Corbett, 274 App Div 1073.) V. The decision of the trial court that the summer day program met the three prime requisites for a school established by the Paulgene decision should be reinstated. (Incorporated Vil. of Brookville v Paulgene Realty Corp., 24 Misc 2d 790, 14 AD2d 575, 11 NY2d 672; Matter of Brandt v Zoning Bd. of Appeals of Town of New Castle, 90 Misc 2d 31.)
   OPINION OF THE COURT

Per Curiam.

This appeal presents once again the question, considered by us in Incorporated Vil. of Brookville v Paulgene Realty Corp. (11 NY2d 672) whether a summer program run by a private school is to be classified for zoning purposes as a day camp. We conclude that the Woodmere Academy summer program, like that of the Robin Hood Country Day School considered in Paulgene, is a permitted use.

Plaintiffs, neighboring property owners of Woodmere Academy, brought action in May, 1978 to enjoin the academy’s proposed use during the summer of 1978, on the ground that the proposed program was a day camp rather than a school, and as such not a use permitted by the zoning ordinance. In a second cause of action they sought to enjoin the proposed summer program as a nuisance. After a trial before Justice Frank X. Altimari, he held that the program was a permitted use under the zoning ordinance and granted judgment dismissing the complaint, without prejudice to the later institution of any action to enjoin a nuisance should the program when it got under way prove to warrant plaintiffs’ so doing.

On appeal to the Appellate Division, that court reversed (70 AD2d 908), finding that the academic aspects of the curriculum at the proposed summer school were de minimis, but remitted the matter for further hearing on the question whether there had been an abandonment by the academy of its prior nonconforming summer day camp use. After trial of that issue before Justice Thomas P. Farley, he again dismissed the complaint “on the ground that defendant has the right to conduct a summer day camp as a legal nonconforming use.” From that final judgment, defendant academy appealed directly to us pursuant to CPLR 5601 (subd [d]) in an attempt to bring up the prior nonfinal order of the Appellate Division, and plaintiffs cross-appealed. We dismissed the academy’s appeal on the ground that it was not aggrieved and the plaintiffs cross-appeal on the ground that they had an appeal from Justice Farley’s judgment pending in the Appellate Division (48 NY2d 753). Defendant’s motion to vacate our order dismissing its CPLR 5601 (subd [d]) appeal was denied (48 NY2d 962).

On plaintiffs’ appeal of Justice Farley’s judgment to the Appellate Division, that court affirmed, one Justice dissenting. Plaintiffs then appealed to our court and defendant academy cross-appealed.

Defendant’s cross appeal must be dismissed because, the complaint having been dismissed, the academy is not a party aggrieved (see CPLR 5511). Nevertheless, plaintiffs’ appeal from the Appellate Division order affirming Justice Farley’s final judgment brings up for review all prior nonfinal orders necessarily affecting the final judgment, including the order of the Appellate Division reversing the earlier order of dismissal granted by Justice Altimari (CPLR 5501, subd [a], par 1; 7 Weinstein-Korn-Miller, NY Civ Prac, par 5511.06, pp.55-75).

We consider first whether the program is a permitted use under the ordinance, for if it is the question of nonconforming use becomes moot. In that consideration we review not only questions of law but also, in view of the differing factual conclusions reached by Special Term and the Appellate Division, we determine “which decision is conformable with the weight of evidence” (Matter of City of New York [Coogan], 20 NY2d 618, 623; accord People ex rel. MacCracken v Miller, 291 NY 55, 61; see CPLR 5501, subd [b]). On the evidence and the applicable law we conclude that the summer program is a permitted use.

Under the Town of Hempstead ordinance a private school is a permitted use in the zoning district (Residence A) in which the academy is located (§ A-1.3, subd [a]), but a day camp is a special exception use in a business district (§ Z-5.0, subd [c], par 13) and not permitted at all in a Residence A district. Plaintiffs rely heavily on the definition of “private school” contained in article 16 of the ordinance, which establishes area and other requirements for private schools. Subdivision (a) of section SP-1.2 defines a private school as “all schools other than public devoted to academic instruction of any grade level through and including the elementary level.” From that definition plaintiffs argue that to be a permitted use the program conducted at the academy during the summer must be one of “academic instruction”, and that the holding of Incorporated Vil. of Brookville v Paulgene Realty Corp. (24 Misc 2d 790, affd 14 AD2d 575, affd 11 NY2d 672, supra) does not apply in light of the private school definition in the ordinance. Paulgene held the summer program run on the grounds of the private school there involved permissible under the Brookville zoning ordinance because it had the three prime requisites of a school: “a curriculum, a plant consisting of adequate physical facilities, and a qualified staff to carry into effect its educational objectives.” (24 Misc 2d, at p 792.)

Plaintiffs’ argument proves too much. Carried to its logical extreme it would outlaw any program during the summer that did not exactly duplicate the school’s September to June curriculum as to proportions of intellectual and physical stimulus. The definition in the ordinance is not so stringent. It does not require that a private school be devoted solely to academic instruction, nor indeed does it by use of the words “devoted to academic instruction” exclude entirely from the type of instruction that may be offered between September and June all phases of physical training and instruction.

Not to be lost sight of is the fact, which no one disputes, that the academy is a private school within the meaning of the zoning law. The question then is not whether, considering only the summer program, it is a permitted use, but rather how far a private school summer program may deviate from its September to June curriculum before it functions not as a private school but as a day camp and, therefore, beyond what the zoning ordinance allows. Important in determining that issue is, as Paulgene suggests, whether a substantial part of the summer program is devoted to subjects which are also part of the regular school curriculum, and whether there is a staff qualified and a plant sufficient to instruct in those subjects.

The fact that some of the activities carried on may also be carried on by a day camp, or for insurance or public health purposes may be classifiable as day camp activities, is not determinative, nor is it decisive that during the same summer period the plant is being or could be used for a summer school in the traditional sense (i.e., a school devoted entirely to academic subjects). What is essential is that the educational component of the program, the staff and the plant be of sufficient size to warrant the conclusion that the program involves a good faith effort on the part of the private school to accomplish serious educational aims and is not simply a fun and games recreational program in disguise.

Reviewing the evidence, we conclude that the weight of the evidence sustains Special Term’s holding, rather than that of the Appellate Division. The curriculum offered by the summer program included courses in science, music, drama and dance, art, photography, reading, cooking, woodworking and swimming, all of which except swimming were offered as part of the September to June program. Summer program students who desired it could also obtain tutoring in mathematics and reading. The plant available for the summer program was the same as used in the September to June program except that the academy had no swimming pool prior to the reinstitution of the summer day program in 1978.

Of the total staff of 70 engaged in the 1978 summer program, 22 were professionally trained teachers, one was a psychologist, one a registered nurse, three were graduate medical students and the remainder were college students employed as counselors or counselors in training. The director of the summer program, a qualified teacher holding a graduate degree, was the assistant head master of the academy. The director of the art course, a certified teacher holding graduate degrees and who had taught art at Lawrence High School for the past 10 years, testified in detail concerning the curriculum she had planned for the course, which she made clear differed from the program offered by most day camps, encompassed everything done in the regular art program at Lawrence High and would entitle students in the academy summer program to credit toward a junior high or high school diploma. The science instructor, who is also adjunct teacher in biology in the academy’s regular program, is professor of biology at the City University of New York and holds graduate degrees. He described in detail the curriculum planned for different age groups and testified that he had available for use in the course a fully equipped biology laboratory and a greenhouse for botanical studies and that the summer biology program would be similar to the instruction given the group he instructed in the academy’s September to June program. The director of the summer music program, a certified teacher of instrumental music, holder of a graduate degree, testified concerning the instrumental and choral instruction he had planned for the summer program, that it was conducted in a manner similar to the instruction he gave at Roslyn High, and that it would entitle a participant in the course to credit at public high school. None of that testimony was called into serious question by either cross-examination or plaintiffs’ evidence.

To the foregoing indicia of an educational rather than recreational program can be added the fact that textbooks used in the summer program courses were introduced, the fact that summer program students are evaluated in performance of the subjects taken and a report on that performance is made to their parents, and the expert opinion of an associate professor of education at Adelphi University who testified that the same educational focus ran through both the summer program and the September to June program, and that the summer program was “a serious organized program with a philosophy, not something that is put together to fill kids’ leisure hours.”

It is necessary to add only that we have examined the cases relied upon by plaintiffs in support of their argument that the use is not permitted and find them distinguishable.

The order of the Appellate Division dismissing the complaint should be affirmed, with costs, but on the ground that the use sought to be enjoined is a permitted use, rather than, as adjudged in the judgment of July 11, 1979, that it is a legal nonconforming use. For the reason stated above, the academy’s cross appeal is, however, dismissed.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur in Per Curiam opinion.

On plaintiffs’ appeal: Order affirmed, with costs.

On defendant’s cross appeal: Appeal dismissed, without costs.


author: Gabrielli, J.

text:
    In the Matter of Lawrence Stowell, Respondent, v Mario Cuomo, as Secretary of State, Appellant.
    Argued December 17, 1980;
    decided February 17, 1981

      POINTS OF COUNSEL

      Robert Abrams, Attorney-General (Maurice K. Peaslee and Shirley Adelson Siegel of counsel), for appellant.
    I. The Secretary of State has jurisdiction to determine that a licensed real estate broker who fails to pay commissions earned by salesmen in his employ demonstrates “untrustworthiness” as a real estate broker. (Matter of Vasquez v Department of State, 27 AD2d 902; Matter of Gold v Lomenzo, 29 NY2d 468; Matter of Chiaino v Lomenzo, 26 AD2d 469; Matter of Jones [Peter Pan Nursery Prods.— Catherwood], 19 AD2d 330,14 NY2d 558; Matter of Feinberg v Board of Educ., 74 Misc 2d 371; Matter of Butterly & Green v Lomenzo, 36 NY2d 250; Matter of Kamper v Department of State of State of N. Y., 26 AD2d 697; Matter of Lawrence Black, Inc. v Cuomo, 65 AD2d 845, 48 NY2d 774; Matter of Wasserman v Board of Regents of Univ. of

      State of N. Y., 11 NY2d 173,371 US 23, 861; Matter of Erdman v Board of Regents of Univ. of State of N. Y., 24 AD2d 698, 17 NY2d 421.) II. The determination of the Secretary of State is supported by substantial evidence in the record that respondent demonstrated uñtrustworthiness as a real estate broker. (Matter of Pell v Board of Educ., 34 NY2d 222; 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176; Matter of Tegeler v Department of State of State of N. Y., 23 AD2d 917; Matter of Donato v Wyman, 32 AD2d 1061; Matter of Dalenz v State Tax Comm., 9 AD2d 599.)

      Wayne I. Ohl for respondent.
    I. The Secretary of State does not have jurisdiction to entertain contract disputes between a broker and his salespersons. (Kostika v Cuomo, 41 NY2d 673; Matter of Vasquez v Department of State, 27 AD2d 902; Matter of Gold v Lomenzo, 29 NY2d 468; Clair v Kall & Kall, 23 Misc 2d 568; Killion v Wolff, 51 Misc 2d 47; Bendevena v Fuchs Real Estate, 89 Misc 2d 466; Matter of Edelstein v Department of State of State of N. Y., 16 AD2d 764; Matter of Perlstein v Lomenzo, 35 AD 2d 694; Matter of Diona v Lomenzo, 26 AD2d 473; Matter of Chiaino v Lomenzo, 26 AD2d 469.) II. The determination of the Secretary of State is not supported by substantial evidence in the record that respondent demonstrated untrustworthiness as a real estate broker. (Matter of Pell v Board of Educ., 34 NY2d 222.)
   OPINION OF THE COURT

Gabrielli, J.

The issue for our determination is whether the Secretary of State has jurisdiction to discipline a real estate broker for alleged untrustworthiness, based solely upon disputed allegations that the broker was attempting to make improper deductions for certain expenses from the earnings of his employees. Inasmuch as the facts of this case point to the existence of a simple contractual dispute between broker and salesman, having no demonstrable impact upon the public at large, the Secretary of State had no authority under the appropriate statute to impose sanctions against the broker.

Terry and Dianna Elich were salespersons in the employ of petitioner, a licensed real estate broker, who concedes that the Elichs had earned commissions prior to terminating their relationship with his office. The present dispute arose from petitioner’s attempt to deduct from these commissions certain expenses, including work to be completed upon the sales made by Terry Elich, who had left before the deals were closed, advertising expenses incurred in those and other sales, and the cost of customer “leads” obtained by the Elichs prior to leaving petitioner’s employ. The Elichs refused to accept the reduced amounts offered by petitioner, and later requested that respondent Secretary of State conduct an investigation into the claimed improper deductions by petitioner.

Following an investigation, the Department of State served petitioner with a notice of hearing and complaint charging him with having “demonstrated untrustworthiness pursuant to the provisions of section 441-c of the Real Property Law”. The hearing officer determined that petitioner was withholding, without cause or warrant, certain of the commissions earned by Terry and Dianna Elich, and that this action constituted demonstrated untrustworthiness within the meaning of the statute. Respondent adopted these findings and the recommendations of the hearing officer. Petitioner’s real estate broker’s license was then suspended for three months, or in lieu of the suspension petitioner was directed to pay a fine of $200, and the license was further suspended until such time as petitioner paid to the complainants the claimed amount of their commissions. The present article 78 proceeding was commenced to review this determination. Respondent Secretary of State now appeals from a judgment of the Appellate Division granting the broker’s petition and annulling the determination below.

Section 441-c of the Real Property Law provides in part that the Department of State may suspend or revoke the license of a real estate broker, or impose a fine in lieu thereof, if the broker “has been guilty of fraud or fraudulent practices, or for dishonest or misleading advertising, or has demonstrated untrustworthiness”. This statute is grounded upon the strong public interest in protecting the public at large from unreliable and untrustworthy real estate brokers. Accordingly, “[t]he responsibility for effectively providing that protection has been delegated to the Secretary of State” (Kostika v Cuomo, 41 NY2d 673, 677).

It has been observed that the Secretary of State is to be vested “with a wide discretion in determining what should be deemed untrustworthy conduct” (Matter of Gold v Lomenzo, 29 NY2d 468, 477). Nevertheless, we are required to uphold the Appellate Division’s determination that the Secretary of State did not have jurisdiction to discipline the broker in the present case, based solely upon a simple-contractual dispute with his sales personnel, because the respondent has failed to point to any supportable adverse effect upon the public.

The manifest purpose of section 441-c of the Real Property Law is the protection of the general public. Indeed, Judge Scileppi, writing for an unanimous court in Matter of Gold v Lomenzo (29 NY2d 473, 477, supra) and addressing the term “untrustworthiness”, noted that while the court was not fixing the absolute limits of the application of that term “ There should be such factual presentation concerning acts or conduct by the licensee * * * as would warrant a conclusion of unreliability, and which establishes that any confidence or reasonable expectation of fair dealing to the general public would be misplaced’ ” (emphasis supplied); and he noted further that the Legislature intended the Secretary of State to be vested with “ The obligation of protecting the public against wrongdoing or incompetency’ ” (citing Matter of Chiaino v Lomenzo, 26 AD2d 469, 472-473) (see, also, Matter of Vincent v Department of State of State of N. Y., 40 AD2d 612). Although there may be situations in which, for example, a broker’s “business practices” or “business methods” (see Real Property Law, § 442-e, subds 5,6) with regard to his salespersons are so devious as to indicate clearly that he would not deal fairly with the public and, therefore, disciplinary action under section 441-c of the Real Property Law for demonstrating “untrustworthiness” might be warranted, the present case involved no such activity. Rather, the differences that exist between complainants and petitioner involve an isolated contractual dispute, and thus should have been resolved at first instance in the courts. A civil action is the proper course of action for enforcement of complainants’ rights (see Clair v Kall & Kall, 23 Misc 2d 568; Killion v Wolff, 51 Misc 2d 47), and disciplinary action by the Secretary of State should be taken only where there is an adverse effect upon the public at large. No such effect can be gleaned from the present record.

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

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

Judgment affirmed.