author: Simons, J. Titone, J.

text:
    In the Matter of Robert O., Appellant, v Russell K. et al., Respondents.
    Argued September 16,1992;
    decided October 27, 1992

      POINTS OF COUNSEL

      Donald E. Grossfield and Paul L. Brozkowski, of the Connecticut Bar, admitted pro hae vice, for appellant.
    I. In its attempt to translate subjective family values into objective legal standards, New York has created an adoption statute that cannot be applied to Robert O. without depriving him of his constitutional rights to due process and equal protection of the law. (Quilloin v Walcott, 434 US 246; Lehr v Robertson, 463 US 248; Stanley v Illinois, 405 US 645; Glona v American Guar. Co., 391 US 73; Caban v Mohammed, 441 US 380.) II. The classification system employed by section 111 of the Domestic Relations Law is unconstitutional on its face because the classes are determined by inconsistent standards inconsistently applied. (Quilloin v Walcott, 434 US 246; Matter of J. [Anonymous], 50 AD2d 890; Matter of Boatwright v Otero, 91 Misc 2d 653; Matter of Boock, 246 App Div 618; Matter of Crane v Battle, 62 Misc 2d 137; Lehr v Robertson, 463 US 248.) III. The consent provisions of section 111 of the Domestic Relations Law as applied to unwed fathers of newborn infants are unconstitutional because they do not allow the court to determine whether parental rights exist or if they have been knowingly waived. (Matter of Corey L v Martin L, 45 NY2d 383.) IV. The notice provisions of section 111 of the Domestic Relations Law are unconstitutional as applied because the court is allowed to determine the rights of unwed fathers of newborn infants (a) on the basis of conclusive presumptions that are not used for other parents or (b) on the basis of rebuttable presumptions for which no rebuttal is permitted. (Matter of Bennett v Jeffreys, 40 NY2d 543; Matter of Corey L v Martin L, 45 NY2d 383; Matter of Ryan Paul L., 112 AD2d 47; Matter of Amy SS., 100 AD2d 657; Matter of Raquel Marie X., 76 NY2d 387; Clark v Jeter, 486 US 456.) V. An adoption proceeding that allowed the trial court to decide triable issues of fact in an ex parte hearing violated traditional evidentiary standards and deprived appellant of due process of law. (Santosky v Kramer, 455 US 745; Matter of Port of N Y. Auth. [62 Cortlandt St. Realty Co.], 18 NY2d 250, cert denied sub nom. Mclnnes v Port of N. Y. Auth., 385 US 1006; Matter of Lefkowitz v McMillen, 57 AD2d 979; Lugar v Edmundson Oil Co., 457 US 922.) VI. Domestic Relations Law § 111 (1) (e) is unconstitutional as applied to appellant Robert O. in violation of his rights to due process. (Caban v Mohammed, 441 US 380; Stanley v Illinois, 405 US 645; Lehr v Robertson, 463 US 248; Matter of Female F. D., 105 Misc 2d 866; Matter of Raquel Marie X., 76 NY2d 387; Matter of Baby Girl S., 141 Misc 2d 905, 150 AD2d 993, 76 NY2d 387; Matter of A. F. v Spence Chapin Agency, 142 Misc 2d 412.) VIL Domestic Relations Law § 111-a is unconstitutional as applied to appellant Robert O. in violation of his rights to due process; the application of the statute to Robert O. denied him the opportunity to form a relationship with his son. (Matter of Jessica XX., 77 AD2d 381; Goldberg v Kelly, 397 US 254.) VIII. In the absence of any evidence that appellant had either waived his opportunity interest or abandoned his son, or that his interest had lapsed with the passage of time, Robert’s biological connection alone entitled him not only to veto the adoption but also to due process protections of notice and hearing. (Matter of Raquel Marie X., 76 NY2d 387; Matter of Susan W. v Talbot G., 34 NY2d 76; People ex rel. Cocuzza v Cobb, 196 Mise 961; Lehr v Robertson, 463 US 248.) IX. By allowing Carol to unilaterally deny appellant an opportunity to establish the relationship with his son that gives rise to his right to equal protection, appellant’s Federal constitutional rights have been violated. X. Appellant Robert O. should not be punished because he did not know that Carol A. was pregnant; Carol A. prevented Robert O. from knowing about the pregnancy and his paternity.

      Frederick J. Magovern, New York City, and Constance F. Roland for respondents.
    I. Appellant had no constitutional right to consent to Ryan’s adoption in 1989. (Stanley v Illinois, 405 US 645; Caban v Mohammed, 441 US 380; Quilloin v Walcott, 434 US 246; Lehr v Robertson, 463 US 248; Michael H. v Gerald D., 491 US 110; Santosky v Kramer, 455 US 745; Matter of Christopher L., 113 Misc 2d 904; Farr v Newman, 14 NY2d 183; Lue v English, 44 NY2d 654.) II. Appellant had no constitutional right to notice of Carol’s out-of-wedlock pregnancy, and no constitutional obligation was imposed upon the State and the birth mother to provide Robert with notice. (Santosky v Kramer, 455 US 745; Eisenstadt v Baird, 405 US 438; Planned Parenthood of Southeastern Pa. v Casey, 505 US —, 112 S Ct 2791; Matter of Malpica-Orsini, 36 NY2d 568, appeal dismissed sub nom. Orsini v Blasi, 423 US 1042.) III. Retroactive application of new law (Raquel Marie X.) to this consummated adoption should not be permitted since Robert O. had no right to consent to this adoption where such application would wreak cruel havoc on consummated adoptions. (Matter of Jessica XX., 54 NY2d 417, affd sub nom. Lehr v Robertson, 463 US 248; Betz v Horr, 276 NY 83; Matter of MacRae, 189 NY 142; "Doe" v "Roe" 37 AD2d 433; Matter of K. W. V, 92 Misc 2d 292; Matter of Sarah K, 66 NY2d 223, cert denied sub nom. Kosher v Stamatis, 475 US 1108; Matter of "Female” D., 83 AD2d 933; Matter of Baby Girl R., 105 AD2d 575.) IV. Section 111-a of the Domestic Relations Law, the notice statute, is constitutionally valid. (Stanley v Illinois, 405 US 645; Lehr v Robertson, 463 US 248; Matter of 436 W. 34th St. Corp. v McGoldrick, 288 NY 346, 289 NY 673; Matter of Christopher L., 113 Misc 2d 904.) V. Appellant’s identity was not a material fact to the adoption court. (Matter of Jessica XX., 54 NY2d 417, affd sub nom. Lehr v Robertson, 463 US 248; Johnson & Son v Carter-Wallace, Inc., 614 F Supp 1278; Del Vecchio v Nassau County, 118 AD2d 615; Matter of Christopher L., 113 Misc 2d 904.)

      John Francis Phelan, Law Guardian, Hauppauge, and John F. Middlemiss, Jr.

    I. The interests of society concern the welfare of the child and from this the rights of parents are measured. (Matter of Robert Paul P., 63 NY2d 233; Matter of Malpica-Orsini, 36 NY2d 568; Matter of Bennett v Marrow, 59 AD2d 492; Matter of Upjohn, 304 NY 366.) II. The findings of fact of the Family Court which were affirmed by the Second Department concluded that appellant was found to not have satisfied the requirements of the statutes operable at the time of the adoption. Thus he did not acquire either notice or consent rights. (People v Yarter, 41 NY2d 830; Lue v English, 44 NY2d 654; Matter of Jessica XX., 54 NY2d 417, affd sub nom. Lehr v Robertson, 463 US 248.) III. The interests of the State which of necessity involve the interests of the child as well as the interests of parents must be analyzed in a constitutional analysis of notice and consent rights in adoption law. (Matter of Raquel Marie X., 76 NY2d 387; Stanley v Illinois, 405 US 645; Quilloin v Walcott, 434 US 246; Caban v Mo

      hammed, 441 US 380; Lehr v Robertson, 463 US 248; Meyer v Nebraska, 262 US 390; Prince v Massachusetts, 321 US 158.) IV. Under Raquel Marie, in an adoption of a child, consent must be obtained from the unwed father only if the unwed father has promptly manifested parental responsibility toward the child. (Matter of Raquel Marie X., 76 NY2d 387; Michael H. v Gerald D., 491 US 110; Matter of Malpica-Orsini, 36 NY2d 568.) V. The interests of the State, which protect the interests of the child, require that fathers relate to their children. (Matter of Raquel Marie X., 76 NY2d 387; Matter of "Female” D., 83 AD2d 933.) VI. The test to be applied at the time of the petition for adoption is whether the unwed father is present for his child by what he has done to form a substantial relationship with his child. (Matter of Orlando F, 40 NY2d 103.) VII. Absent fraud, the claim of an unwed father that he is unknowing is insufficient to abrogate a consummated adoption. (Matter of Jennifer R. C., 130 Misc 2d 461; Matter of A. F. v Spence Chapin Agency, 142 Misc 2d 412; Matter of Martz, 102 Misc 2d 102.)

      Robert Abrams, Attorney-General, New York City (Jerry Boone, Andrea Green and Robert J. Schack of counsel), in his statutory capacity under Domestic Relations Law § 111 (1) (e), amicus curiae.

    I. In denying the right to vacate a consummated adoption to a putative biological father who made no inquiries as to whether conception had occurred until 10 months after the adoption, Domestic Relations Law § 111 (1) (e) violates neither his equal protection nor his due process rights. (Caban v Mohammed, 441 US 380; Matter of Jessica XX., 54 NY2d 417, affd sub nom. Lehr v Robertson, 463 US 248; Matter of Raquel Marie X., 76 NY2d 387; Matter of Carmen Lydia S., 106 Misc 2d 770; Lascaris v Shirley, 420 US 730; Planned Parenthood of Southeastern Pa. v Casey, 505 US —, 112 S Ct 2791; Planned Parenthood of Mo. v Danforth, 428 US 52; Parham v J. R., 442 US 584; Lalli v Lalli, 439 US 259.) II. Any new constitutional ruling in this case must be applied only prospectively and not to consummated adoptions, including not to the one under review here. (Matter of Natural Parents of Their Child "Nicky” v Dumpson, 81 Misc 2d 132; People ex rel. Grament v Free Synagogue Child Adoption Comm., 194 Misc 332, 275 App Div 823; Caban v Mohammed, 441 US 380; Matter of John E. v Doe, 164 AD2d 375; Matter of Jessica XX., 54 NY2d 417, affd sub nom. Lehr v Robertson, 463 US 248.)

      Daniel A. Piloseno, White Plains, for Catholic Adoptive Parents Association, Inc., amicus curiae.

    I. A biological link alone does not give rise to a constitutional right to notice of adoption proceedings. (Lehr v Robertson, 463 US 248; Matter of Jessica XX., 54 NY2d 417; Matter of Sarah K., 66 NY2d 223, cert denied sub nom. Kosher v Stamatis, 475 US 1108; Caban v Mohammed, 441 US 380; Matter of John E. v Doe, 164 AD2d 375; Matter of Bennett v Jeffreys, 40 NY2d 543; Matter of Malpica-Orsini, 36 NY2d 568, appeal dismissed sub nom. Orsini v Blasi, 423 US 1042.) II. A biological link alone does not give rise to a constitutional right to consent to or to withhold consent to adoption. (Lehr v Robertson, 463 US 248; Matter of Raquel Marie X., 76 NY2d 387; Matter of Christopher L., 113 Misc 2d 904; Matter of Baby Girl S., 141 Misc 2d 905, 150 AD2d 993.) III. The decision in the Matter of Raquel Marie X. and its rationale are inapplicable to adoption proceedings finally determined and concluded prior to the announcement of that decision. (Matter of Raquel Marie X., 76 NY2d 387; Matter of Robert Paul P., 63 NY2d 233.)
   OPINION OF THE COURT

Simons, J.

Petitioner, an unwed father, seeks to vacate a final order approving the adoption of his son. He contends that the mother or the State had a duty to ensure he knew of the birth and that their failure to do so denied him his constitutional rights. Inasmuch as petitioner failed to take any steps to discover the pregnancy or the birth of the child before first asserting his parental interest 10 months after the adoption became final, we conclude he was neither entitled to notice nor was his consent to the adoption required. We, therefore, affirm.

I

The courts below found the following facts.

In December 1987, petitioner Robert O. and Carol A. became engaged and petitioner moved into Carol’s home. Disagreements arose, however, and in February 1988, petitioner moved out and terminated all contact with Carol. At that time Carol was pregnant but she did not tell petitioner, apparently because she believed he would feel she was trying to coerce him into marriage. Over the next few weeks, Carol approached her friends, respondents Russell K. and his wife Joanne K., and obtained their agreement to adopt her child. On October 1, 1988, Carol gave birth to a boy, who was delivered to respondents upon her discharge from the hospital. Carol later executed a judicial consent and, in May 1989, the adoption was finalized.

Carol was never asked by the adoption court to identify the father. She did sign a statement indicating, accurately, that there was no one entitled to notice of the adoption under Domestic Relations Law § 111-a or whose consent was required under Domestic Relations Law § 111.

Between the time Carol and petitioner separated in March 1988 and January 1990, petitioner made no attempt to contact Carol although she continued to live in the same house and, as the courts below found, did nothing to conceal her whereabouts or her pregnancy. In January 1990, petitioner and Carol reconciled and subsequently married. In March 1990— nearly 18 months after the birth and 10 months after the completed adoption — Carol informed petitioner that the child had been born. In a belated effort to meet the statutory requirements for notice and consent, petitioner reimbursed Carol for her medical expenses, filed with the Putative Father Registry, and commenced this proceeding to vacate the adoption (see, Domestic Relations Law §§ 111, 111-a).

Family Court rejected petitioner’s claim that there had been either fraud or concealment of a material fact in the adoption. In addition, it concluded that petitioner had no constitutional right to notice of the adoption proceedings or to veto or consent to the adoption. The Appellate Division unanimously affirmed.

II

Petitioner’s first claim is that the adoption was procured by fraud through the deception or concealment of Carol and respondents. The courts below found that there was no deception or concealment, and inasmuch as these factual findings are supported by evidence in the record, we are bound by them (see, Humphrey v State of New York, 60 NY2d 742, 743-744).

Ill

Petitioner concedes that the applicable statutes do not require notice to one in his position or require his consent to the adoption. Domestic Relations Law § 111-a (2) provides the father of a child born outside wedlock can qualify for notice of an adoption proceeding in any one of several ways: by having been adjudicated to be the father, by filing a timely notice of intent to claim paternity, by living openly with the mother and child and holding himself out as the father, by having been named the father in a sworn statement by the mother, by having married the mother subsequent to the birth, or by filing with the Putative Father Registry. As petitioner notes, these actions generally presume that the father knows he has a child before the adoption is finalized and he had no such knowledge.

Domestic Relations Law § 111 (1) (e), the consent statute relevant here because the child was younger than six months at the time he was placed for adoption, did not require the petitioner’s consent because he had not held himself out as the father or met the other statutory requirements.

Petitioner contends that because these New York laws fail to require notice and consent from a father in his position, they deny biological fathers a constitutional liberty interest. He maintains that before an adoption is finalized, the courts must be required to resolve the factual issue of who the biological father is and determine whether he has had sufficient opportunity to establish a relationship with the child, in part by requiring the mother to testify as to paternity.

A

The nature of the constitutional interest possessed by unwed fathers has been addressed previously by both the Supreme Court and this Court.

The Supreme Court, beginning with Stanley v Illinois (405 US 645), has recognized that some unwed fathers, by their conduct in relation to their children, enjoy parental rights protected by the Federal Constitution (see, Quilloin v Walcott, 434 US 246; Caban v Mohammed, 441 US 380; Lehr v Robertson, 463 US 248). The guiding principle has been that the biological connection between father and child is not sufficient, in and of itself, to create a protected interest for the father. Only if the unwed father "grasps the opportunity” to form a relationship with his child will the inchoate right created by biology blossom into a protected liberty interest under the Constitution. The Lehr Court stated it thus: "When an unwed father demonstrates a full commitment to the responsibilities of parenthood * * * his interest in personal contact with his child acquires substantial protection under the Due Process Clause * * * But the mere existence of a biological link does not merit equivalent constitutional protection” (Lehr v Robertson, supra, at 261).

We subsequently followed this reasoning to hold that the unwed father of a newborn infant has a right to veto an adoption if he manifests a willingness to assume full custody of the child (Matter of Raquel Marie X., 76 NY2d 387, supra). In making that determination of willingness, courts are to consider such factors as whether the father paid the medical bills related to the pregnancy, whether he held himself out as the father, and, "[p]erhaps most significantly”, whether his manifestations of willingness took place promptly (id., at 408). Like the notice statute, the standards set forth in Raquel Marie presuppose that the father knows he is a father.

Manifestly, the unwed father of an infant placed for adoption immediately at birth faces a unique dilemma should he desire to establish his parental rights. Any opportunity he has to shoulder the responsibility of parenthood may disappear before he has a chance to grasp it, no matter how willing he is to do so. Accordingly, we have acknowledged that in some instances the Constitution protects an unwed father’s opportunity to develop a relationship with his infant son or daughter (id., at 401-402). This constitutional right to the opportunity to develop a qualifying relationship does not extend to all unwed fathers or arise from the mere fact of biology. The right exists only for the unwed father who manifests his willingness to assume full custody of the child and does so promptly.

Petitioner asks us to extend Raquel Marie’s protection to him — i.e., to find that the Constitution also protects the custodial opportunity of the "unknowing” unwed father who does nothing to manifest his parental willingness before placement because he is unaware of the child’s existence. His claim necessarily supposes the existence of some liberty interest that he has and that the State has improperly denied. Absent such interest, our inquiry is finished and we need inquire no further into the constitutional adequacy of New York’s adoption procedures.

Petitioner finds evidence that this liberty interest exists from a statement in Lehr and our holding in Matter of Baby Girl S. (the companion case to Raquel Marie). In Lehr, a New York unwed father who had not been actively involved in his child’s life commenced a paternity action in one county, unaware that the mother and her husband had initiated adoption proceedings in another. The adoption court, though aware of the paternity action, proceeded to finalize the adoption. The Supreme Court rejected the unwed father’s argument that he was entitled to notice, noting that he could have guaranteed his right to notice by registering with the Putative Father Registry (Lehr v Robertson, supra, at 264). The Court stated in passing, and petitioner seizes this as central to his argument, "if qualification for notice were beyond the control of an interested putative father, [New York’s statutory scheme] might be thought procedurally inadequate” (id., at 264).

In Raquel Marie, we followed that theme, finding that the father in a companion case, Matter of Baby Girl S. (see, 141 Misc 2d 905), had gained a protected liberty interest, even though he failed to meet the statutory requirements of Domestic Relations Law § 111 (1) (e), because he had done "everything possible to manifest and establish his parental responsibility” (Matter of Raquel Marie X., supra, at 409). His failure to meet the statutory requirements promptly was due not to his own failings but to the concerted actions of the mother and the adopting parents to frustrate his efforts. Under those circumstances, we held that "a father who has promptly taken every available avenue to demonstrate that he is willing and able to enter into the fullest possible relationship with his under-six-month-old child should have an equally fully protected interest in preventing termination of the relationship by strangers, even if he has not as yet actually been able to form that relationship” (id., at 403).

Petitioner analogizes his situation to that of the father in Baby Girl S. In his rendering of the events, as soon as he became aware of the child’s existence, he manifested his willingness to assume full parental responsibility by taking those steps available to get legal custody of the child. Petitioner correctly reads Lehr and Raquel Marie to stand for the proposition that an unwed father who has promptly done all that he could to protect his parental interest is entitled to constitutional protection. His argument falters, however, in its conclusion that he has met that standard.

We made clear in our decision in Raquel Marie that the timing of the father’s actions is the "most significant” element in determining whether an unwed father has created a liberty interest (see, Matter of Raquel Marie X., supra, at 408). States have a legitimate concern for prompt and certain adoption procedures and their determination of the rights of unwed fathers need not be blind to the "vital importance” of creating adoption procedures possessed of "promptness and finality,” promoting the best interests of the child, and protecting the rights of interested third parties like adoptive parents (Lehr v Robertson, supra, at 263-266, n 25). Recognizing those competing interests — all of which are jeopardized when an unwed father is allowed to belatedly assert his rights — we stressed in Raquel Marie that the period in which the biological father must manifest his parental interest is limited in duration: if the father’s actions are untimely, the State can deny a right of consent. In Raquel Marie we limited the period in which the father must act to the six continuing months immediately preceding the child’s placement for adoption (Matter of Raquel Marie X., supra, at 408).

To conclude that petitioner acted promptly once he became aware of the child is to fundamentally misconstrue whose timetable is relevant. Promptness is measured in terms of the baby’s life not by the onset of the father’s awareness. The demand for prompt action by the father at the child’s birth is neither arbitrary nor punitive, but instead a logical and necessary outgrowth of the State’s legitimate interest in the child’s need for early permanence and stability. The competing interests at stake in an adoption — and the complications presented by petitioner’s position — are clearly illustrated here: nearly a year and a half after the baby went to live with the adoptive parents, and more than 10 months after they were told by the court that the baby was legally theirs, petitioner sought to rearrange those lives by initiating his present legal action.

During the first months of his son’s life, petitioner’s only connection to the infant was biological. That he now asserts that he was willing to be a custodial parent, had he only known, adds nothing to his argument, even if we accept the dubious proposition that a willingness so abstract and amorphous has some legal significance. Something more than an assertion of custody is required (Matter of Raquel Marie X., 76 NY2d 387, 408, supra). There must be manifestation through action on the part of the unwed father. Absent that, the biological link of the father is insufficient to create a constitutionally protected interest (Lehr v Robertson, supra, at 261), and petitioner’s due process claim fails.

Petitioner’s argument confuses the meaning of the constitutionally protected "opportunity” we recognized in Raquel Marie. The opportunity at issue there, and the one we found constitutionally protected, was the opportunity "to develop a qualifying relationship with the infant” (Matter of Raquel Marie X., supra, at 401). That opportunity arose and became protected only after the father had manifested his willingness to be a custodial parent. The opportunity petitioner seeks to protect is different and quite separate. It is the opportunity to manifest his willingness. No one, however, let alone any State actor, prevented petitioner from finding out about Carol’s pregnancy. His inaction, however regrettable and with whatever unfortunate consequences, was solely attributable to him. Nothing in Raquel Marie or the Supreme Court decisions on which it rests suggests that the protections of constitutional due process must or should be extended to him under these circumstances.

The concurrence analyzes the case somewhat differently. It takes what the Court has referred to as an "opportunity” (supra, at 262) and relabels it an "interest.” While conceding that it is an interest arising exclusively from the father’s biological connection to the child, the concurrence believes that in some instances this "interest” would nonetheless warrant constitutional protection under its due process analysis (concurring opn, at 270, n). It concludes that the biological father must lose in this case because of the "sensitive balancing” of interests entailed in a due process inquiry. However, a due process analysis properly begins by defining the nature of the liberty interest claimed (Lehr v Robertson, 463 US 248, 256, supra). Here there is only the biological connection. Whether that gives rise to an "opportunity” or a "parental interest,” the cases make clear that when the State decides to finalize the adoption the father has no right that requires balancing. While the outcome is the same in this case, the implication of the concurrence’s analysis is that under other circumstances, where the balance is different, the State may be compelled under due process principles to extend protection to the biological father. That result would run counter to the established principle that biology alone is not enough to warrant constitutional protection. But what is more troubling, despite the concurrence’s assurances to the contrary, is that a holding that this "right” requires due process recognition would logically and inevitably lead to inhibiting a State’s interest in prompt and efficient efforts to finalize adoption proceedings and limiting a mother’s right to privacy (see, Matter of Jessica XX., 54 NY2d 417, 433, n 2 [Cooke, Ch. J., dissenting]; Matter of Christopher L., 113 Misc 2d 904; see also, Planned Parenthood of Southeastern Pa. v Casey, 505 US —, —, 112 S Ct 2791, 2830-2831). Indeed, even if it were constitutionally permissible to compel disclosure, the State has not chosen to do so and the Constitution does not compel it.

Finally, the Court’s decision is not, as the concurrence maintains, contrary to the holding in Raquel Marie (concurring opn, at 270, n). The Court does not hold today that the biological father’s ability to assert an interest was "completely extinguished once the State acted by proceeding with the adoption” (concurring opn, at 270, n). Had petitioner promptly manifested his willingness to take on parental responsibilities, he, like the unwed father in Baby Girl S, would have enjoyed the protection of the Constitution even though the State had begun adoption proceedings. The concurrence similarly errs when it attempts to read Raquel Marie as holding that " 'where a child is placed for adoption before any real relationship can exist,’ an unwed father has some continuing interest” (concurring opn, at 270, n). It overlooks the fact that the interest spoken of in the relevant portion of Raquel Marie (supra, at 401-402) is nothing more than the "biological parental interest” — i.e., the opportunity, of limited duration, to manifest a willingness to be a parent. As Raquel Marie made clear, and we reaffirm today, that opportunity becomes protected only if grasped.

B

Petitioner’s equal protection claim also fails for it is settled that the existence or nonexistence of a substantial relationship between parent and child is a relevant criterion in evaluating both the rights of the parent and the best interests of the child (Lehr v Robertson, supra, at 266-267). Nothing in the clause precludes the State from withholding the privilege of vetoing an adoption from an unwed father who has never come forward to participate in the rearing of his child (Caban v Mohammed, 441 US 380, 392, supra). That "unknowing” unwed fathers may be treated differently under the statute than other unwed fathers is not dispositive. Our equal protection inquiry "does not focus on the abstract 'fairness’ of a state law, but on whether the statute’s relation to the state interests it is intended to promote is so tenuous that it lacks the rationality contemplated by the Fourteenth Amendment” (Lalli v Lalli, 439 US 259, 273). In his attack, petitioner has not met the burden of showing a lack of rationality in either the notice or the consent provisions of New York law.

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

Titone, J.

(concurring). I agree that due process does not require the unraveling of a 10-month-old adoption at the behest of a biological father whose identity was unknown and unknowable at the time the adoption became final, but I cannot agree that in all circumstances "biology alone is not enough to warrant constitutional protection” (majority opn, at 266). Additionally, I cannot agree with the majority’s reliance on the purported fault of this biological father in "failfing] to take any steps to discover the pregnancy or the birth of the child” until after the child was adopted (majority opn, at 259). In my view, the adoption should be left undisturbed despite petitioner’s competing interest in the child not because petitioner is blameworthy, but rather because the strong public policies favoring the finality of adoptions outweigh the interest of a biological father who, through no fault of his own, has been deprived of the opportunity to "manifest and establish his parental responsibility” toward the child (see, Matter of Raquel Marie X., 76 NY2d 387, 409, cert denied sub nom. Robert C. v Miguel T, 498 US 984).

At the heart of my disagreement with the majority is the unrealistic burden that its rationale imposes on the multitude of men who, in this age of sexual permissiveness, have intimate relations with women to whom they are not married. Because of the biological characteristics of the parties to these relationships, it is the women, rather than the men, who are in the unique position to discover whether a pregnancy has resulted. Further, in most instances, it is the women, rather than the men, who hold the exclusive power to decide whether or not the other progenitor is to be informed of the pregnancy’s existence. The man who has not been told of the pregnancy has few, if any, avenues of recourse.

Indeed, although the majority has not hesitated to assign blame to petitioner because of what it terms his "inaction,” it has not even begun to identify just what it is that petitioner might have done to fulfill his responsibilities in these circumstances. Does the majority mean to suggest that all men who engage in sexual intercourse with women to whom they are not married must remain in regular contact with them even after their relationships have terminated in order to ascertain whether there has been a pregnancy? Must they also make inquiries in the community or pursue alternative sources of information in order to definitively rule out the possibility that the relationship may have produced a child?

I would submit, most respectfully, that a rule which places the onus on the man to investigate whether a woman with whom he is no longer intimate has become pregnant is simply out of step with modern mores and the realities of contemporary heterosexual liaisons. In this age of readily accessible birth control devices, men have greatly diminished reason, in most circumstances, to suspect that a woman with whom they have been intimate has become pregnant. Accordingly, there is little to prompt them to pursue their former lovers to satisfy themselves on that point. Moreover, a rule that requires men to foist continued contact on women with whom they are no longer involved overlooks women’s interest in preserving their own privacy after the relationship has been terminated.

Contrary to the majority’s suggestion my conclusion that the law should not hold petitioner accountable for failing to discover his former fiancée’s pregnancy does not lead me to the further conclusion that "the protections of constitutional due process must or should be extended to him under these circumstances” (majority opn, at 265). Although petitioner is innocent of any untoward neglect and, in fact, had a constitutionally cognizable interest in a parental relationship with his biological child (see, Matter of Raquel Marie X., supra, at 401-402), that interest does not outweigh the State’s countervailing interest in ensuring the finality of adoptions and, thus, it was not entitled to constitutional protection.

The central importance of finality in the adoption process has been recognized by both the Legislature and the courts (see, e.g., Matter of Sarah K., 66 NY2d 223; 1972 NY Legis Ann, at 202-203; Mem from Off of Sen Temp President, Bill Jacket, L 1972, ch 639). While the State must make every effort to protect the rights of biological parents in adoption proceedings (see, e.g., Lehr v Robertson, 463 US 248; Caban v Mohammed, 441 US 380), there also must come a point where the matter is deemed irrevocably closed, so that the parties can go forward with their lives, secure in the certainty that their legal and familial status can no longer be disturbed.

The importance of finality in the lives of the children involved in the adoption process is so obvious as to require little elaboration. One of the most crucial elements of a healthy childhood is the availability of a stable home in which each family member has a secure and definite place. In addition to the stake of the adopted child, the adoptive family is unquestionably adversely affected by any lingering uncertainty about the permanence of the adoption. As one commentator has observed, "[t]he bond, the love, the intense emotion between adoptive parents and the child placed in their home, is created the very moment their dream is fulfilled and a child comes through the door” (Mem from Off of Sen Temp President, op. cit.). Lastly, society has an independent interest in the finality of adoptions, since the adoptive relationship implicates many legal rights of the parties, including the right to inherit and the right to receive certain governmental benefits.

If petitioner’s position were to be embraced by the Court, the critical goal of finality could never be achieved for the substantial number of children whose biological fathers have not been apprised of their existence. Such children — as well as their adoptive families — would be forever relegated to a state of legal limbo in which their familial relationship would remain subject to the possibility that their biological fathers might suddenly learn of their birth and appear to reclaim them. Clearly, such a result is one that cannot be tolerated in a legal system that concerns itself with humane values.

While due-process principles may give unmarried fathers the right to an opportunity to develop relationships with their biological children (see, Stanley v Illinois, 405 US 645; Matter of Raquel Marie X., supra), there is nothing in the State or Federal Constitutions that compels States to protect that right at all costs. To the contrary, the due-process inquiry necessarily entails a sensitive balancing of the biological parents’ interests against ”[t]he legitimate state interests in facilitating the adoption of young children and having the adoption proceeding completed expeditiously” (Lehr v Robertson, supra, at 265).

In situations such as this one, the interests of the biological father are relatively slight, since he has not developed a relationship with the child. On the other hand, his interests cannot simply be disregarded or deemed extinguished, since, unlike the biological fathers in Lehr v Robertson (supra) and Quilloin v Walcott (434 US 246), petitioner had no realistic opportunity to manifest his parental commitment and, accordingly, cannot be treated as though he knowingly relinquished that opportunity.

Nonetheless, petitioner’s interest is not entitled to constitutional protection, since it simply cannot be accommodated without sacrificing the paramount State interest in finality. When the slender interest petitioner has is compared to this very weighty competing interest of the State, we are duty bound to opt for a legal rule that promotes the former, even though that rule may well omit many potentially responsible fathers in petitioner’s position (see, Lehr v Robertson, supra, at 264).

Contrary to the majority’s assertion, there is nothing in the foregoing analysis that implicates "a mother’s right to privacy” or suggests that disclosure of the biological father’s identity may be compelled in these circumstances (see, majority opn, at 266; cf., Planned Parenthood of Southeastern Pa. v Casey, 505 US —, 112 S Ct 2791). Indeed, I would argue that no law could, or should, be written to prevent women such as Carol A. from making the very personal and human choice to withhold information about their pregnancies from the men whom they know are the biological fathers. Furthermore, in view of these women’s legitimate privacy interests, I would certainly not require the establishment of institutional mechanisms, such as a mandatory notice or disclosure requirement, as means of accommodating the interests of biological fathers. Those interests are simply not substantial enough to warrant such extreme measures.

The third societal interest that the majority identifies (majority opn, at 266) — efficiency—stands on an entirely different footing. While perhaps desirable, efficiency is simply not, by itself, the kind of goal that warrants the solicitude we might give to the privacy rights of unwed mothers or the finality of adoptions. Accordingly, I would willingly acknowledge that, as the majority has accurately observed, I might well conclude that, in the proper circumstances, efficiency in the system alone is not a sufficiently important end to overcome a biological tie.

In sum, petitioner’s situation is an unfortunate one, since, through no real fault of his own, he has been deprived of "the blessings of the parent-child relationship” and even the opportunity of developing such a relationship (Lehr v Robertson, supra, at 262). However, his dilemma was created not by any institutionalized mechanism or unrealistic legal barrier imposed by the State, but rather by Carol A.’s personal — and perfectly understandable — decisions to keep her pregnancy secret from him and to surrender their child without disclosing his identity. In these circumstances, the interests petitioner may have had in his role as a biological father are more than outweighed by society’s overriding interest in ensuring the finality of his child’s adoption. For that reason, and that reason alone, I conclude that petitioner’s interests are not entitled to due-process protection, and, accordingly, I concur in the Court’s decision to affirm.

Chief Judge Wachtler and Judges Kaye, Hancock, Jr., and Bellacosa concur with Judge Simons; Judge Titone concurs in result in another opinion; Judge Smith taking no part.

Order affirmed, with costs.

      . We struck down that section as unconstitutional in Matter of Raquel Marie X. (76 NY2d 387, 406-407), after this adoption became final, because the provision of section 111 (1) (e) that premised the father’s right to consent on his living with the mother was not sufficiently related to the State’s legitimate interest in the quality of the relationship between the father and the child and it allowed the mother to block a willing father’s attempt to assert his parental rights. By referring to that decision throughout the opinion, we do not mean to imply that Raquel Marie has any retrospective application to this case or to adoptions finalized before it was announced. It does not. Its reasoning, however, provides a useful starting point for analysis in the case before us.

      . Lehr dealt solely with the procedural issue of notice under Domestic Relations Law § 111-a and not with consent under section 111. Consequently, it is not clear that even had the father there succeeded in his argument he would have received anything more than the right to be heard on the best interests of the child at the adoption proceeding (see, Domestic Relations Law § 111-a [3]).

       The difference between the majority’s position and my own is not simply a matter of how the biological father’s "interest” is characterized or labelled (see, majority opn, at 265-266). Rather, we differ on the more fundamental question of whether the father’s interests arising from his biological connection, however they are characterized, were completely extinguished once the State acted by proceeding with the adoption. The majority’s conclusion that they were seems at odds with the Court’s statement in Matter of Raquel Marie X. (supra, at 402) that "where a child is placed for adoption before any real relationship can exist,” an unwed father has some continuing interest, although that interest "can be lost entirely, or greatly diminished in constitutional significance, by failure to timely exercise it or by failure to take the available legal steps to substantiate it.” As the Supreme Court has recognized on several occasions (e.g., Lehr v Robertson, 463 US 248, supra; Quilloin v Walcott, 434 US 246, supra; Stanley v Illinois, 405 US 645, supra), the question is not whether the biological father has a constitutionally cognizable interest, but rather whether, by virtue of his conduct in relation to the child as well as the other relevant circumstances, his interest has become sufficiently weighty as to be deserving of constitutional protection. Like the majority, I would answer that question in the negative here, where adoption proceedings had already begun and, in fact, been finalized before petitioner learned of the child’s existence and came forward. However, unlike the majority, I would not go so far as to assert the sweeping conclusion that biology alone can never be enough to warrant some constitutional protection, regardless of the context or the consequences (majority opn, at 266). There is simply nothing in the relevant case law that requires such an extreme position.


source: Caselaw Access Project

author: Titone, J.

license: Public Domain

text:
    The People of the State of New York, Respondent, v Patrick James Callahan, Appellant. The People of the State of New York, Respondent, v Gregory Sutton, Appellant. The People of the State of New York, Respondent, v Richard DeSimone, Appellant.
    Argued September 16,1992;
    decided October 27, 1992

      POINTS OF COUNSEL

      Thomas D. Jaycox, Hempstead, Matthew Muraskin and Kent V. Moston for appellant in the first above-entitled action.
    I. Appellant’s claim to the Court below that the restitution order by County Court was illegal is not subject to waiver as defined in People v Seaberg, in that County Court, in ordering the restitution amount, unlawfully delegated its duties to the Department of Probation, failed to conduct a hearing to determine the amount of loss caused by the offense, failed to consider appellant’s capacity to pay, and failed to set the time and manner in which the amount was to be paid; therefore, the order of the Court below should be reversed and the matter remitted to that Court for a determination on the merits of appellant’s claims. (People v Seaberg, 74 NY2d 1; People v Fuller, 57 NY2d 152; People v Morse, 62 NY2d 205, appeal dismissed sub nom. Vega v New York, 469 US 1186; People v Lemon, 62 NY2d 745; People v David, 65 NY2d 809; People v Ingram, 67 NY2d 897; People v Ruz, 70 NY2d 942; People v Miller, 133 AD2d 784; People v Bowden, 131 AD2d 581; People v Walker, 140 AD2d 655.) II. The People should be deemed estopped from raising any claim of waiver since they failed to oppose appellant’s filing of the notice of appeal and motion for assignment of counsel. (People v Johnson, 38 NY2d 271.)

      Denis Dillon, District Attorney of Nassau County, Mineola (Lisa J. Becker and Peter A. Weinstein of counsel), for respondent in the first above-entitled action.
    I. The Court below properly dismissed defendant’s appeal. (People v Seaberg, 74 NY2d 1; People v Fuller, 57 NY2d 152; Boykin v Alabama, 395 US 238; People v Harris, 61 NY2d 9; People v Lee, 58 NY2d 491; People ex rel. Rohrlich v Follette, 20 NY2d 297; United States v Verdugo-Urquidez, 494 US 259; Malloy v Hogan, 378 US 1; Santobello v New York, 404 US 257; Pointer v Texas, 380 US 400.) II. The People are not foreclosed from asserting defendant’s waiver of appeal. (People v Seaberg, 74 NY2d 1; People v Di Raffaele, 55 NY2d 234; People v Thomas, 53 NY2d 338; People v Moissett, 76 NY2d 909; People v Williams, 36 NY2d 829, 423 US 873; People v Esajerre, 35 NY2d 463.)

      Jonathan Garelick, New York City, and Philip L. Weinstein for appellant in the second above-entitled action.
    Since waiver of a constitutional speedy trial claim as a condition of a plea bargain may not be enforced, appellant’s purported waiver of the right to appeal his constitutional speedy trial claim as a condition of his guilty plea is invalid, and his appeal must be reinstated. (People v Blakley, 34 NY2d 311; People v White, 32 NY2d 393; People v Seaberg, 74 NY2d 1; People v Rodriguez, 50 NY2d 553.)

      Charles J. Hynes, District Attorney of Kings County, Brooklyn (Camille O’Hara Gillespie and Jay M. Cohen of counsel), for respondent in the second above-entitled action.
    Defendant’s waiver of appeal was properly enforced and, in any event, his speedy trial claim is meritless. (People v Rodriguez, 50 NY2d 553; People v Seaberg, 74 NY2d 1; People v Blakley, 34 NY2d 311; People v Lopez, 71 NY2d 662; People v Adams, 38 NY2d 605; People v Sutton, 175 AD2d 272; People v Anderson, 66 NY2d 529; People v Imbesi, 38 NY2d 629; People v Prosser, 309 NY 353; Barker v Wingo, 407 US 514.)

      Thomas D. Jaycox, Hempstead, Matthew Muraskin and Kent V Moston for appellant in the third above-entitled action.
    I. Appellant’s purported waiver of his right to appeal should be deemed ineffectual because County Court conducted no inquiry to ensure that the purported waiver was knowing, intelligent and voluntary; therefore, the order of the Court below should be reversed and the matter remitted to that Court for a determination on the merits of appellant’s claims. (People v Seaberg, 74 NY2d 1; People v Moissett, 76 NY2d 909; People v Harris, 61 NY2d 9; People v Rodriguez, 50 NY2d 553; People v Adams, 38 NY2d 605; People v White, 32 NY2d 393; People v Nixon, 21 NY2d 338, cert denied sub nom. Robinson v New York, 393 US 1067; Barker v Wingo, 407 US 514; Johnson v Zerbst, 304 US 458; People v Bray, 154 AD2d 692.) II. The People should be deemed estopped from raising any claim of waiver since they failed to oppose appellant’s filing of the notice of appeal and motion for assignment of counsel on this ground. (People v Johnson, 38 NY2d 271; People v Michael, 48 NY2d 1; People v Lopez, 71 NY2d 662; People v Nieves, 67 NY2d 125; People v Johnson, 64 NY2d 617; People v Dodt, 61 NY2d 408.)

      Denis Dillon, District Attorney of Nassau County, Mineóla (Judith R. Sternberg and Peter A. Weinstein of counsel), for respondent in the third above-entitled action.
    I. The Court below properly dismissed defendant’s appeal on the ground that he waived review of his sentence; if this Court rules that there was no effective waiver, defendant’s plea should be vacated. (People v Seaberg, 74 NY2d 1; People v Moissett, 76 NY2d 909; People v Nixon, 21 NY2d 338, cert denied sub nom. Robinson v New York, 393 US 1067; People v Harris, 61 NY2d 9; Mi Suk Buley v Beacon Tex-Print, 118 AD2d 630; Broida v Bancroft, 103 AD2d 88; Brandes Meat Corp. v Cromer, 146 AD2d 666; Crawford v Merrill Lynch, Pierce, Fenner & Smith, 35 NY2d 291; People v Farrar, 52 NY2d 302; People v Thompson, 60 NY2d 513.) II. The Court below’s authority to dismiss an appeal based on defendant’s waiver of the right to appeal, is not dependent on whether the People have moved for such relief prior to the filing of briefs. (People v Seaberg, 74 NY2d 1; People v Di Raffaele, 55 NY2d 234; People v Thomas, 53 NY2d 338; People v Williams, 36 NY2d 829, 423 US 873; People v Esajerre, 35 NY2d 463.)
   OPINION OF THE COURT

Titone, J.

In People v Seaberg (74 NY2d 1), we held that the right to appeal may be waived as a condition of a sentence or plea bargain, provided that the waiver was voluntarily made and no important public policies or societal interests are implicated. These three appeals require us to consider the proper application of that holding to three different factual circumstances.

People v Callahan

Defendant was charged with burglary in the third degree and criminal mischief in the second degree arising out of his unlawful entry into a bank through a side window. As a result of a plea bargain, defendant was permitted to plead guilty to attempted third degree burglary, provided that he waived his right to appeal and paid restitution for the damage done to the bank. During the plea colloquy, the court advised defendant that by pleading guilty he was waiving his right to appeal as well as a number of other rights.

After defendant’s guilty plea was accepted, the Probation Department prepared a presentence report which stated that restitution in the amount of $1,564.76 was indicated because the bank had sustained damage to its alarm system, window and vaults in that amount. Based on this report and the fact that the amount that had been discussed at the time of the plea was even higher, the court ruled that the total amount of restitution should be $1,643 ($1,564.76 plus a 5% surcharge).

Following imposition of sentence, defendant took an appeal, arguing that the restitution portion of his sentence was illegal because, in failing to conduct an independent inquiry, the court had improperly delegated its sentencing responsibilities to the Probation Department (see, People v Fuller, 57 NY2d 152, 156-159). Defendant also argued that the court erred in imposing a surcharge without first ascertaining defendant’s ability to pay. The Appellate Division subsequently dismissed the appeal, citing People v Seaberg (supra) as its sole authority.

People v Sutton

On March 18, 1987, defendant was arrested on a number of drug-related charges. He subsequently moved for a dismissal on the ground that his statutory and constitutional rights to a speedy trial had been violated by the People’s delay of some 13 months in responding to his omnibus motion. The court denied the motion and, some months later, defendant pleaded guilty to second degree criminal sale of a controlled substance in full satisfaction of the indictment. As a condition to their agreement to this plea, the People insisted that defendant waive "any and all rights to appeal.” Defendant acknowledged his awareness of this condition during the plea allocution. He was subsequently sentenced in accordance with the terms of the plea bargain.

Defendant attempted to obtain review of the trial court’s unfavorable speedy trial determination in the Appellate Division, but that court dismissed the appeal on the ground that defendant had waived his appellate rights as part of his plea bargain. The Court rejected defendant’s specific argument that his waiver did not foreclose appellate review of his speedy trial claim. Citing People v Rodriguez (50 NY2d 553, 557), the Court stated its view that even constitutional speedy trial claims are waivable and that a waiver such as defendant’s should be enforced unless "the record on appeal demonstrates that it was made under duress by a defendant whose only alternative was to face a trial whose fundamental fairness was compromised as a result of the delay” (175 AD2d 272, 273, citing People v Blakley, 34 NY2d 311; People v White, 32 NY2d 393).

People v DeSimone

After plea negotiations, it was agreed that defendant, who had been indicted for various drug-related offenses, would be permitted to plead guilty to one count of fifth degree criminal sale of a controlled substance to satisfy all of the charges against him. At the plea proceeding that ensued, the People informed the court that defendant had signed a written waiver of his right to appeal the sentence as a condition of his plea. The court, however, did not mention the written waiver during the plea allocution. At the close of the allocution, defendant entered his guilty plea and the court sentenced him to an indeterminate term of 1⅔ to 5 years’ imprisonment.

Defendant subsequently appealed to the Appellate Division, arguing that his sentence should be reduced in light of the history of the case. He also argued that his written waiver should be disregarded because the trial court had conducted no inquiry to ascertain whether it had been made knowingly and voluntarily. Rejecting this argument, the Appellate Division dismissed the appeal in a one-sentence opinion that relied exclusively on People v Seaberg (supra).

L

In People v Seaberg (supra), we rejected the argument that, as a matter of judicial policy, the appellate courts should decline to recognize bargained-for waivers of the right to appeal. We reviewed the many sound reasons for giving effect to such waivers and noted that, in most instances, they do not implicate "society’s interest in the integrity of criminal process” (74 NY2d, at 9, supra). Accordingly, we held, a defendant may ordinarily waive the right to appeal as part of a sentence or plea bargain, and, in most situations, the appellate courts should honor such waivers.

Our analysis in Seaberg, however, did not exclude the possibility that, in certain specific circumstances, a defendant’s appellate claim could be reviewed despite a bargained-for waiver of the right to appeal. To the contrary, the Seaberg opinion set forth several categories of appellate claims that may not be waived because of a larger societal interest in their correct resolution. These include the constitutionally protected right to a speedy trial (see, People v Blakley, 34 NY2d 311, 314-315, supra), challenges to the legality of court-imposed sentences (see, People v Francabandera, 33 NY2d 429, 434, n 2), and questions as to the defendant’s competency to stand trial (see, People v Armlin, 37 NY2d 167, 172).

Additionally, the Seaberg opinion makes clear that a waiver of the right to appeal will not be enforced unless it was knowingly, intelligently and voluntarily made (74 NY2d, at 11, supra). The determination as to whether a particular waiver satisfies these requirements must be made, in the first instance, by the trial court, which is in the best position to assess all of the relevant factors, including the nature and terms of the agreement, the reasonableness of the bargain, and the age and experience of the accused (id.; see also, People v Harris, 61 NY2d 9). However, as is true for any other condition attached to a sentence or plea bargain, the appellate courts also have the responsibility to oversee the process and to review the record to ensure that the defendant’s waiver of the right to appeal reflects a knowing and voluntary choice (id.; see also, People v Lopez, 71 NY2d 662). To facilitate appellate review, the Seaberg opinion urges the trial courts to ensure that the terms and conditions of the agreement, as well as the accused’s understanding of those terms and conditions, are made apparent on the face of the record (id.). With these principles in mind, we turn now to the specific problems presented by these three appeals.

II

In People v Callahan, the defendant attempted to avoid the effect of his waiver of the right to appeal by invoking the exception we have recognized for challenges to the legality of the sentence (see, People v Seaberg, supra, at 9, citing People v Francabandera, supra). However, when the label defendant assigned to his appellate claim is disregarded and the actual gist of the claim is examined, it is apparent that his challenge is addressed not to the legality of the sentence on its face, or even to the power of the court to impose the restitution sentence it chose. Rather, defendant’s appellate claim was addressed merely to the adequacy of the procedures the court used to arrive at its sentencing determination, specifically its purported overreliance on the presentencing report’s restitution recommendation and its failure to conduct a special inquiry into defendant’s ability to pay a surcharge (cf., People v Fuller, 57 NY2d 152 [court may consider presentence report prepared by Probation Department, but lacks power to delegate to that Department the authority to fix the amount of restitution]). We have previously held that, except where the very power of the court is implicated, appellate challenges to the procedures utilized in determining and imposing sentence are forfeited if they are not raised in a timely manner before the trial court as required by CPL 470.05 (2) (compare, People v Proctor, 79 NY2d 992; People v Pellegrino, 60 NY2d 636; People v Green, 54 NY2d 878; People v McGowen, 42 NY2d 905, with People v Fuller, supra). A fortiori, such challenges may effectively be waived by a voluntarily and intelligently made agreement entered in connection with a sentence or plea bargain.

IIL

The Appellate Division gave effect to the negotiated waiver of the right to appeal in Sutton, even though the claim the defendant sought to raise on appeal involved his constitutional speedy trial rights. In reaching its conclusion, the Court relied, in part, on People v Rodriguez (50 NY2d 553, 557), in which this Court held that a constitutional speedy trial claim that had been asserted once but not pursued to final disposition in the trial court had been forfeited and therefore could not be considered on appeal. On the basis of Rodriguez and People v White (32 NY2d 393), the Appellate Division inferred that even where the appellate claim concerns the constitutional right to a speedy trial, a bargained-for waiver of the right to appeal should ordinarily be enforced, unless a particularized showing of duress is made.

However, this view misconstrues our case law. In People v Blakley (supra, at 313), a case that was decided after White (supra), this Court went beyond White’s case-specific analysis and held that "the nature of the speedy trial guarantee renders [a waiver of such a claim] inherently coercive in a plea bargaining situation,” so that a plea conditioned on a waiver "must be vacated” regardless of the substantive merits of the claim (emphasis supplied). While the Court did give effect to what it termed a "waiver” of a speedy trial claim in Rodriguez (supra), that holding did not in any way impair the rule it established in Blakley. Rather, Rodriguez stands only for the limited proposition that a defendant who initially interposes a constitutional speedy trial claim but subsequently abandons it before a determination on the claim is made cannot subsequently raise that claim on appeal (see, People v Kinchen, 60 NY2d 772; People v Charleston, 54 NY2d 622, 623; People v De Mauro, 48 NY2d 892, 893).

Contrary to the Appellate Division’s assumption, our continued adherence to Blakley is evident from our discussion of that case in Seaberg, where we stressed that "[s]ociety has a recognized interest in speedy trials because trial delay may result in the loss of evidence or an accused’s inability to respond to criminal charges, thereby compelling innocent persons to plead guilty out of necessity” (74 NY2d, at 9, supra). Because of this societal concern and the implications for the integrity of our criminal justice system, the parties cannot be permitted to foreclose appellate review through the plea bargaining process.

Accordingly, we hold, as we held in Seaberg, that a bargained-for waiver of the right to appeal is ineffective to the extent it impairs the defendant’s ability to obtain appellate review of a constitutional speedy trial claim. Moreover, this rule applies without regard to whether the facts in the particular case suggest duress arising from the circumstances underlying the speedy trial claim itself. In this case, the Appellate Division clearly erred when it declined to entertain defendant Sutton’s constitutional speedy trial claim on the merits because of the absence of a particularized showing of duress. For that reason, the Court’s order should be reversed and the matter remitted so that the Court can consider the merits of defendant’s constitutional speedy trial claim.

IV.

The facts in DeSimone provide an example of the second category of cases in which bargained-for waivers of the right to appeal are deemed ineffective. In contrast to the issues in Callahan and Sutton, the issue in DeSimone is not whether waiver is precluded because of the subject matter of the appeal, but rather whether the waiver itself was shown to have been obtained under constitutionally acceptable circumstances.

In Seaberg (supra, at 11), we made clear that before a waiver of the right to appeal may be enforced, the record must be examined to ensure that the waiver was voluntary, knowing and intelligent. While there is no requirement that the trial court engage in any particular litany in order to satisfy itself that these standards have been met, a knowing and voluntary waiver cannot be inferred from a silent record (see, People v Harris, 61 NY2d 9, 17, supra).

Here, the record simply does not afford a sufficient basis for concluding that defendant’s waiver of his right to appeal was knowing, intelligent or voluntary. There was no record discussion between the court and defendant concerning the waiver. There was not even an attempt by the court to ascertain on the record an acknowledgement from defendant that he had, in fact, signed the waiver or that, if he had, he was aware of its contents. While the court was shown a signed document purporting to embody defendant’s waiver, there is nothing on the record to establish that the court was familiar with the circumstances surrounding the document’s execution. Indeed, the fact that the prosecutor felt compelled to inform the court of the written waiver’s existence suggests that the court had no prior knowledge of the waiver. Accordingly, there is no assurance that the waiver was executed under constitutionally acceptable circumstances, and the Appellate Division erred in holding it enforceable.

V.

Having concluded that the waiver in Callahan was valid and applicable while the waivers in Sutton and DeSimone were not, we turn now to the final problem: the disposition of an appeal that has been taken despite an effective and enforceable waiver. The question arises here because in all three of these cases, the Appellate Division chose to dismiss the appeals on the basis of the appellants’ waivers despite the fact that the appeals were, at least facially, within the court’s subject matter jurisdiction and were neither moot nor procedurally defective (see, CPL 470.60 [1]).

CPL 450.10 (1) authorizes defendants to appeal to the Appellate Division, as a matter of right, from a judgment of conviction. Moreover, as we held in People v Pollenz (67 NY2d 264, 268), the duty of the Appellate Division "to entertain all appeals from final judgments in criminal cases” is of constitutional dimension (see, NY Const, art VI, § 4 [k]). Since these three appeals were all taken from final judgments of conviction, they were clearly within the mandatory subject matter jurisdiction of the Appellate Division and were therefore, without more, appealable to that Court.

It appears from the Appellate Division’s dismissals in these cases, that the Court assumed that the defendants’ waivers had the effect of ousting it from its customary sphere of subject matter jurisdiction (but cfi, Robinson v Oceanic Steam Nav. Co., 112 NY 315, 324; Siegel, NY Prac § 8, at 10 [2d ed] [parties may not confer subject matter jurisdiction by agreement]). However, that assumption is inconsistent with cases preceding Seaberg in which appeals were entertained despite enforceable waivers. In those cases, the appellate courts simply affirmed the judgment rather than dismissing, thereby signalling their view that the parties’ waiver agreements had not altered the court’s subject matter jurisdiction (People v Williams, 43 AD2d 884, affd 36 NY2d 829, cert denied 423 US 873; People v Esajerre, 43 AD2d 541, affd 35 NY2d 463; People v Irizarry, 32 AD2d 967, affd 27 NY2d 856; but see, People v Stephens, 52 NY 306).

Moreover, a conclusion that agreements to waive the right to appeal operate to deprive the appellate courts of subject matter jurisdiction leads to a logical anomaly in this context. As is apparent from our holdings in these three appeals, an agreement to waive appeal does not foreclose appellate review in all situations. If the agreement to waive were itself sufficient to divest the court of subject matter jurisdiction, the court would then be deprived of the very jurisdictional predicate it needs as a vehicle for reviewing the issues that survive the waiver.

Accordingly, the better view is that a bargained-for waiver of the right to appeal does not affect the appealability of a judgment that is otherwise appealable under CPL 450.10 (1) and does not operate to deprive the appellate court of its jurisdiction of the appeal. Instead, it merely forecloses appellate review of all claims that might be raised on appeal, except, of course, those categories of claims that survive such waivers under our case law. Under this view, the proper disposition in appeals such as Callahan, where there is no claim that the waiver was constitutionally defective and no public policy impediment to enforcing the waiver, is an affirmance predicated on the absence of any reviewable issues that have not been superseded by the waiver. Additionally, in cases where there has been a bargained-for waiver of the right to appeal and the intermediate appellate court determines that the judgment of conviction should be affirmed, it would be helpful if the intermediate appellate court would specify whether its disposition is based on the existence of an enforceable waiver or instead on the merits of the defendant’s appellate claims. Such specificity would facilitate further appellate review and minimize unnecessary remittals.

Accordingly, in each case the order of the Appellate Division should be reversed and the case remitted to that Court for further proceedings consistent with this opinion.

Chief Judge Wachtler and Judges Simons, Kaye, Hancock, Jr., and Bellacosa concur; Judge Smith taking no part.

In each case: Order reversed, etc.

       Although in Seaberg (supra) we affirmed the Appellate Division’s orders dismissing the appeals on grounds of waiver, Seaberg cannot be viewed as settling the question of the proper disposition of this class of appeals, since the question was neither briefed nor considered there (see, People v Ford, 62 NY2d 275, 281, n).


author: Per Curiam.

text:
    Marilyn Mosher et al., Appellants, v State of New York, Respondent.
    Argued September 15,1992;
    decided October 29, 1992
    POINTS OF COUNSEL

      Learned, Reilly & Learned, Elmira (Thomas E. Reilly of counsel), for appellants.
    The resurfacing of a highway invokes protection for laborers through section 241 of the Labor Law because repairs constitute "construction” and because of the liberal interpretation given to what construction activities are governed by that section of the Labor Law. (Maher v Atlas Tr. Mix Corp., 104 AD2d 591; Page v State of New York, 73 AD2d 479; Komar v Dun & Bradstreet Co., 284 App Div 538; Matter of Dillon v State of New York, 167 AD2d 574; Red Hook Cold Stor. Co. v Department of Labor, 295 NY 1; Vallina v Wright & Kremers, 7 AD2d 101; Kahn v Gates Constr. Corp., 103 AD2d 438; Ramos v State of New York, 34 AD2d 1056; Pastoriza v State of New York, 123 Misc 2d 481; Celestine v City of New York, 86 AD2d 592, 59 NY2d 938.)

      Hogan & Sarzynski, Binghamton (John P. Lynch, John B. Hogan and Edward J. Sarzynski of counsel), for respondent.
    The Legislature intended Labor Law § 241 (6) to apply only to construction or demolition of buildings or doing any excavation in connection therewith. (Patrolmen’s Benevolent Assn, v City of New York, 41 NY2d 205; Eaton v New York City Conciliation & Appeals Bd., 56 NY2d 340; Ares v State of New York, 176 AD2d 203; Matter of Dillon v State of New York, 167 AD2d 574; Vincent v Dresser Indus., 172 AD2d 1033; Maher v Atlas Tr. Mix Corp., 104 AD2d 591; Cannon v Putnam, 76 NY2d 644; Allen v Cloutier Constr. Corp., 44 NY2d 290; Whitaker v Norman, 146 AD2d 938, 75 NY2d 779; Page v State of New York, 73 AD2d 479.)
   OPINION OF THE COURT

Per Curiam.

The Court of Claims correctly held that the requirements of subdivision (6) of Labor Law § 241, concerning safety precautions during construction, excavation and demolition operations, are not limited to building sites. Section 241 provides, in relevant part:

“All contractors and owners and their agents * * * when constructing or demolishing buildings or doing any excavating in connection therewith, shall comply with the following requirements * * *
“6. All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places.”

Although the introductory language of section 241 appears to limit the applicability of all the ensuing subdivisions to work done in connection with building construction, the history of subdivision (6) demonstrates that its scope was not intended to be so limited (see, Tilkins v City of Niagara Falls, 52 AD2d 306 [Simons, J.]). The introductory paragraph was added in 1969 along with what are now the first five subdivisions of section 241, which set forth specific safety requirements related to the installation of flooring or planking as building construction progresses (see, L 1969, ch 1108).

Prior to that amendment, section 241 consisted only of what is now subdivision (6), in substantially its present form. There was then no language limiting its coverage to building construction; it applied by its terms to "[a]ll areas, buildings or structures” (Labor Law former § 241, as added by L 1962, ch 450, § 3). As noted in Tilkins (supra, at 310), the legislative history of the 1969 amendment indicates no intention by the Legislature to narrow the scope of those protections when the provision was recodified as subdivision (6) of the amended statute. Indeed, it was noted at the time that the provisions of former section 241 were "contained and substantially strengthened” in the amended version (Note to L 1969, ch 1108, 1969 McKinney’s Session Laws of NY, at 2123).

Based upon this history, the Fourth Department concluded in Tilkins that, despite the introductory language of section 241, the scope of subdivision (6) is not limited to building sites. We endorsed that reasoning and reached the same conclusion in both Page v State of New York (56 NY2d 604, affg on opns at 73 AD2d 479) and Celestine v City of New York (59 NY2d 938, affg on opn at 86 AD2d 592). We find no reason to depart from those holdings today.

Because it has led to some confusion and has been followed by other departments in this case and others (see, e.g., Ares v State of New York, 176 AD2d 203, affd on other grounds 80 NY2d 959 [decided today]), we note that the recent contrary interpretation of section 241 (6) in Matter of Dillon v State of New York (167 AD2d 574) was reached without reference either to our decisions in Page and Celestine or to the Fourth Department’s precedent in Tilkins. Dillon, instead, relied on Ramos v State of New York (34 AD2d 1056, lv denied 28 NY2d 487), a case arising under an earlier, narrower version of the statute. On this point, the Dillon decision is inconsistent with Page, Celestine and our holding today, and should not be followed.

For these reasons, claimant’s allegations with respect to injuries she sustained while employed in a State highway repaving project fall within the purview of Labor Law § 241 (6). The Court of Claims therefore properly denied the State’s motion for summary judgment dismissing the cause of action brought under Labor Law § 241 (6).

Accordingly, the order of the Appellate Division should be reversed, with costs, and the order of the Court of Claims reinstated.

Chief Judge Wachtler and Judges Simons, Kaye, Titone, Hancock, Jr., and Bellacosa concur in Per Curiam opinion; Judge Smith taking no part.

Order reversed, etc.


author: Simons, J. Bellacosa, J.

text:
    Michaels Lombardi, Appellant, v James Stout, Respondent and Third-Party Plaintiff, and David Von Sothen et al., as Executors of Freda G. Von Sothen, Deceased, Respondents and Second Third-Party Plaintiffs. Joseph Facchin, Inc., Third-Party Defendant-Respondent and Second Third-Party Defendant-Respondent.
    Argued September 15,1992;
    decided October 29, 1992

      POINTS OF COUNSEL

      Hollenberg Levin Solomon Ross & Belsky, New York City (Michael Lowe and Milton H. Ellerin of counsel), for appellant.
    I. The actual notice and/or constructive notice by contract vendee Stout, of the unsafe worksite provides the basis for liability for plaintiffs fall from the ladder pursuant to common-law negligence and Labor Law § 200. (Allen v Cloutier Constr. Corp., 44 NY2d 290; DaBolt v Bethlehem Steel Corp., 92 AD2d 70; Monroe v City of New York, 67 AD2d 89; Sweeting v Board of Coop. Educ. Servs., 83 AD2d 103; DeFreece v Penny Bag, 137 AD2d 744; Copertino v Ward, 100 AD2d 565; Nagel v Metzger, 103 AD2d 1; Persichilli v Triborough Bridge & Tunnel Auth., 16 NY2d 136; Miller v Perillo, 71 AD2d 389; Forbes v Alvord & Swift, 44 AD2d 538.) II. Plaintiffs fall from a ladder while removing tree branches in connection with a commercial based construction contract at the premises of defendant Stout is an incident within the meaning of Labor Law § 240 (1), imposing absolute liability. (Quigley v Thatcher, 207 NY 66; Bohnhoff v Fischer, 210 NY 172; Zimmer v Chemung County Performing Arts, 65 NY2d 513; Bland v Manocherian, 66 NY2d 452; Manente v Ropost, Inc., 136 AD2d 681; Van Amerogen v Donnini, 78 NY2d 880; Gernstl v Edwards, 162 AD2d 966; Zahn v Pauker, 107 AD2d 118; Cannon v Putnam, 76 NY2d 644; Lewis-Moors v Contel of N. Y., 78 NY2d 942.)

      Evans, Orr, Pacelli, Norton & Laffan, P. C., New York City (Maura V. Laffan and Roger A. Goodnough of counsel), and Hart & Hume, New York City, for James Stout, respondent and third-party plaintiff, and Joseph Facchin, Inc., third-party defendant-respondent and second third-party defendant-respondent.
    I. Since plaintiffs injury admittedly resulted from the manner in which he was performing his work, Stout, the contract-vendee (owner) of the property, cannot be held liable to him under any theory of common-law negligence or under Labor Law § 200. (Persichilli v Triborough Bridge & Tunnel Auth., 16 NY2d 136; Hess v Bernheimer & Schwartz Pilsener Brewing Co., 219 NY 415; Ortiz v Uhl, 39 AD2d 143, 33 NY2d 989; Tilkins v City of Niagara Falls, 52 AD2d 306; Gasper v Ford Motor Co., 13 NY2d 104; Zucchelli v City Constr. Co., 4 NY2d 52; DaBolt v Bethlehem Steel Corp., 92 AD2d 70; Monroe v City of New York, 67 AD2d 89; Mullin v Genesee County Elec. Light, Power & Gas Co., 202 NY 275; Nagel v Metzger, 103 AD2d 1.) II. Where, as here, the danger or hazard is inherent in the work itself, the owner may not be charged with failure to provide a safe place to work under the common law or under Labor Law § 200. (Monroe v City of New York, 67 AD2d 89; Kowalsky v Conreco Co., 264 NY 125; Mullin v Genesee County Elec. Light, Power & Gas Co., 202 NY 275; Zeledon v Bowery Sav. Bank, 195 Misc 933.) III. The removal of a tree from the premises adjacent to residential property does not fall within the intended ambit of section 240 (1) of the Labor Law. (Caddy v Interborough R. T. Co., 195 NY 414; Lewis-Moors v Contel of N. Y, 78 NY2d 942; Manente v Ropost, Inc., 136 AD2d 681; Izrailev v Ficarra Furniture, 70 NY2d 813; Dedario v New York Tel. Co., 162 AD2d 1001; Zimmer v Chemung County Performing Arts, 65 NY2d 513; Kahn v Gates Constr. Corp., 103 AD2d 438; Cox v Labarge Bros. Co., 154 AD2d 947, 75 NY2d 808; Ploof v B. I. M. Trucking Serv., 53 AD2d 750; Struble v John Arborio, Inc., 74 AD2d 55.) IV. The statutory exclusion for one- and two-family dwellings embodied in Labor Law § 240 (1) applies as there was no commercial use of the subject premises. (Van Amerogen v Donnini, 78 NY2d 880; Cannon v Putnam, 76 NY2d 644.)

      Langan & Levy, New York City (Rachelle D. Cohen of counsel), for David Von Sothen and another, respondents and second third-party plaintiffs.
    The Supreme Court of the State of New York, County of New York (as affirmed by the Appellate Division, First Department) properly granted summary judgment in favor of the Von Sothen defendants. (Monroe v City of New York, 67 AD2d 89.)
   OPINION OF THE COURT

Simons, J.

Plaintiff was injured when he fell from a ladder while cutting down a tree located on property which defendant James Stout had contracted to buy from defendant Estate of Freda Von Sothen. At the time of the accident, plaintiff was employed by defendant Joseph Facchin, Inc., a general contractor, and had gone onto the property with several other employees of Facchin, allegedly at the request of Stout, to remove the tree. He instituted this action seeking to recover damages from defendants on causes of action based on the common law, Labor Law §§ 200 and 240 (1). Defendants subsequently instituted claims over against Facchin as a third-party defendant.

Immediately prior to the accident plaintiff was on a ladder about 20 feet above the ground, sawing a branch of the tree. He contends that the ladder was improperly positioned and not secured and that he was working with no protection. To remove the branch, plaintiff tied one end of a rope to it and dropped the other end down to the Facchin employees below who were to hold the rope tightly so that as the branch was cut it would not hit the ladder. When plaintiff cut through the branch, however, the employee responsible for holding the rope was drinking coffee with Facchin, rather than holding the rope or the ladder. Consequently, the branch swung out and struck the ladder, causing plaintiff to fall to the ground.

After issue was joined, defendants and the third-party defendant moved for summary judgment. Supreme Court dismissed the action against the Estate but denied similar motions by Stout and Facchin. The Appellate Division modified by dismissing the complaints against Stout and Facchin.

We agree with the Appellate Division that plaintiff’s claims based on the common law and section 200 of the Labor Law must be dismissed but conclude that plaintiff has established factual questions entitling him to trial on the cause of action based on section 240 (1) of the Labor Law. We therefore modify the order of the Appellate Division.

Liability under Common Law and Labor Law § 200:

Section 200 of the Labor Law is a codification of the common-law duty of a landowner to provide workers with a reasonably safe place to work (see, Allen v Cloutier Constr. Corp., 44 NY2d 290, 299). It is plaintiff’s position that a landowner is liable for injuries caused by a dangerous condition on the land if he or she had actual or constructive notice of the condition. He claims that Stout had such notice because he visited the worksite prior to the accident and saw that neither plaintiff nor the ladder were secured. Plaintiff maintains that it was this dangerous condition, and not the fact that his co-workers failed to hold the rope attached to the branch, which resulted in his injuries.

It is settled law that where the alleged defect or dangerous condition arises from the contractor’s methods and the owner exercises no supervisory control over the operation, no liability attaches to the owner under the common law or under section 200 of the Labor Law (see, Allen v Cloutier Constr. Corp. 44 NY2d, at 299, supra; Persichilli v Triborough Bridge & Tunnel Auth., 16 NY2d 136, 145). Plaintiffs account of the accident establishes that there was no dangerous condition on the premises which caused the accident, but rather that it was caused by the manner in which removal of the branch was undertaken. Moreover, there is no evidence that defendant Stout exercised supervisory control or had any input into how the branch was to be removed. Consequently, the Appellate Division correctly determined that plaintiff could not recover from defendant Stout on either the common-law claim or the claim under section 200 of the Labor Law.

Liability Under Labor Law § 240 (1):

Section 240 (1) of the Labor Law requires contractors and owners to furnish or erect suitable devices to protect workers when work is being performed on a building or structure. Liability against the landowner under section 240 (1), in contrast to Labor Law § 200, is absolute and does not require notice of a defect nor the exercise of supervisory control by the owner (see, Zimmer v Chemung County Performing Arts, 65 NY2d 513, 523). Both courts below held that section 240 (1) was not applicable in the present case because the tree was not a building or structure.

We have defined a building or structure as " 'any production or piece of work artificially built up or composed of parts joined together in some definite manner’ ” (see, Lewis-Moors v Contel of N. Y., 78 NY2d 942, 943 [quoting Caddy v Interborough R. T. Co., 195 NY 415, 420] [emphasis added]). A tree is clearly not a "building” or a "structure” within this definition; it is a product of nature.

Nonetheless, we conclude that plaintiff has submitted sufficient evidence to warrant a trial of his section 240 (1) cause of action in the case before us by presenting evidence that the tree-removal was a part of the house construction and site work for a driveway and parking lot. There is evidence that the tree was located 10 to 15 feet from the house in an area between the house and its adjacent two-car garage and that its branches touched the roofs of both buildings. Plaintiff established prima facie that the tree removal was part of a plan to remodel the house into a two-family building and that, at the time he was working on the tree, scaffolding was placed against the building in preparation for doing so. The tree, it is alleged, was to be removed to make way not only for the construction but also to facilitate paving the driveway of the house and in connection with a parking lot to serve the funeral home of defendant Stout located nearby. Indeed, defendant Stout acknowledges that the removal of the tree was undertaken in connection with "home improvement.”

Section 240 is intended to place the ultimate responsibility for building practices on the owner and general contractor in order to protect the workers who are required to be there but who are scarcely in a position to protect themselves from accidents. The statute is to be construed " 'as liberally as may be’ ” to achieve this purpose (see, Zimmer v Chemung County Performing Arts, 65 NY2d 513, 520-521, supra [quoting Quigley v Thatcher, 207 NY 66, 68]). It is well within the intended purposes of the statute to apply its provisions to the tree removal operation performed as part of the house renovations and paving, activities involving a building or structure.

Alternatively, defendant Stout contends that the building is a one- or two-family house and that he is exempt from liability under the statutory exception for "owners of one and two-family dwellings who contract for but do not direct or control the work” (Labor Law § 240 [1]). The exception was enacted to protect those people who, lacking business sophistication, would not know or anticipate the need to obtain insurance to cover them against the absolute liability imposed by section 240 (1). It was not intended to insulate from liability owners who use their one- or two-family houses purely for commercial purposes (see, Van Amerogen v Donnini, 78 NY2d 880, 882). In those circumstances, the houses are more accurately considered as commercial enterprises than as one- or two-family houses (see, Van Amerogen v Donnini, 78 NY2d, at 883, supra).

As the party claiming the benefit of the exception, the defendant has the burden to show that it applies here (see, Massie v Crawford, 78 NY2d 516, 519; Valenti v Trunfio, 118 AD2d 480, 483, Iv dismissed 69 NY2d 661). He maintains that the exception is available as a matter of law because the building located on the premises previously had been a one-family residence and was vacant at the time of the accident. The exception is not applicable, however, if his purpose in making renovations was to prepare the house for commercial rental. Stout has stated that the purpose in renovating the premises included upgrading it for possible future rental and he did, in fact, subsequently rent the house to two families.

Upon the record plaintiff has established a question of fact with respect to Stout’s intended use of the property and whether the work was part of the plan to accomplish that use. Therefore, plaintiff’s section 240 (1) cause of action against defendant Stout and defendant Stout’s third-party claim against defendant Joseph Facchin, Inc. should be reinstated and the case remitted to Supreme Court for further proceedings on the pleadings.

Accordingly, the order of the Appellate Division should be modified, without costs, in accordance with this opinion, and, as so modified, affirmed.

Bellacosa, J.

(dissenting in part). I respectfully dissent from the Court’s modification and would instead affirm the order of the Appellate Division dismissing the complaint essentially for the pertinent reasons expressed by the majority in that Court. These brief observations are added to explain my difference, which is directed solely at this Court’s reinstatement of the absolute liability cause of action rooted in Labor Law § 240 (1) (see, majority opn, at 296).

Over 10 years ago, plaintiff fell off a ladder while he was sawing a branch as part of a tree removal. Since we all agree that "[a] tree is clearly not a 'building’ or a 'structure’ ” (majority opn, at 295-296) within Labor Law § 240 (1) and our precedents, I believe the judicial inquiry should be at an end, as should this lawsuit after all these years. Instead, the Court promulgates a new rule significantly extending absolute liability for accidents in which work on naturally occurring objects is shown simply to be "part of’ construction on a building or structure (majority opn, at 296). This exertion is not interpretation of legislation; rather, it is judicial legislation. It simply erects a new test not previously recognized within the Labor Law § 240 (1) absolute liability sphere.

Liberality of approach in this field is an interpretive nostrum and tool, to be sure, but that approach is not a substitute for rigorous analysis and does not authorize judicial expansion of the classifications of exposure for absolute liability. If trees may now be converted by legal fiction into structures or buildings within Labor Law § 240 by the fertile development of spatial or tactile interrelationships, so, too, inexorably and logically, will thousands of other similarly situated, naturally occurring objects.

The fiscal and precedential implications of this sweeping innovation virtually guarantee triable issues in most Labor Law § 240 absolute liability cases when this exceedingly flexible formula is applied to the widely varying fact patterns that are certain to bloom. Confusion will also be fostered by the Court’s analysis with respect to the statutory exception for owners of one- and two-family dwellings in relation to the commercial versus residential classification and the present versus future plans discussion concerning work or renovations on buildings or structures (majority opn, at 297; see, e.g., Van Amerogen v Donnini, 78 NY2d 880; Cannon v Putnam, 76 NY2d 644). I believe there is no justification for extending absolute liability in this fashion and no practical good sense in adding new and seemingly unlimited uncertainties to an already cluttered and complicated legal universe.

Chief Judge Wachtler and Judges Kaye, Titone and Hancock, Jr., concur with Judge Simons; Judge Bellacosa dissents in part and votes to affirm in a separate opinion; Judge Smith taking no part.

Order modified, etc.

      . Defendant Stout concedes that, as contract-vendee, he is to be treated as the owner of the premises for the purposes of this action. The propriety of the dismissal of the claim against the Estate of Freda Von Sothen is not contested.

      . Labor Law § 200 provides: "1. All places to which this chapter applies shall be so constructed, equipped, arranged, operated and conducted as to provide reasonable and adequate protection to the lives, health and safety of all persons employed therein or lawfully frequenting such places. All machinery, equipment, and devices in such places shall be so placed, operated, guarded, and lighted as to provide reasonable and adequate protection to all such persons.”

      . Labor Law § 240 (1) provides: "All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers * * * and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed.”