author: Simons, J.

text:
    600 West 115th Street Corp., Respondent, v Robert Von Gutfeld, Appellant.
    Argued September 9,1992;
    decided October 20,1992

      POINTS OF COUNSEL

      Gold & Wachtel, New York City (John H. Reichman of counsel), and Ayers & Thompson, P. C., New York City (Mark S. Moroknek of counsel), for appellant.
    I. Communications made in public functions, such as Community Board hearings, are absolutely immune from liability. (Toker v Pollak, 44 NY2d 211; Park Knoll Assocs. v Schmidt, 59 NY2d 205; Bio/ Basics Inti. Corp. v Ortho Pharm. Corp., 545 F Supp 1106; Hon Yip v Pagano, 606 F Supp 1566; Schettino v Alter, 140 AD2d 600; Wiener v Weintraub, 22 NY2d 330; Julian J. Studley, Inc. v Lefrak, 50 AD2d 162, 41 NY2d 881; Jafar v Blue Cross Blue Shield, 129 Misc 2d 584, 125 AD2d 1015; People v Kruger, 87 AD2d 473; Starburst Realty Corp. v City of New York, 132 Misc 2d 878.) II. The challenged expression could not reasonably be viewed as a factual statement and thus is protected speech. (Immuno AG. v Moor-Jankowski, 77 NY2d 235; Milkovich v Lorain Journal Co., 497 US 1, 111 L Ed 2d 1; Oilman v Evans, 750 F2d 970, 471 US 1127; Greenbelt Publ. Assn, v Bresler, 398 US 6; Letter Carriers v Austin, 418 US 264; Fairley v Peekskill Star Corp., 83 AD2d 294; Seavy v State of New York, 21 AD2d 445.)

      David S. Friedberg, New York City, for respondent.
    I. The courts recognize an absolute privilege of a speaker participating before an administrative body exercising a quasi-judicial function. A Community Board lacks the attributes of a quasi-judicial body. Communications before that body are protected by a qualified privilege only. (Toker v Poliak, 44 NY2d 211; Starburst Realty Corp. v City of New York, 125 AD2d 148; Schettino v Alter, 140 AD2d 600; Wiener v Weintraub, 22 NY2d 330; Julian J. Studley, Inc. v Lefrak, 50 AD2d 162, 41 NY2d 881; Jafar v Blue Cross Blue Shield, 129 Misc 2d 584; Park Knoll Assocs. v Schmidt, 59 NY2d 205.) II. The courts hold that the Petition Clause of the First Amendment grants no absolute immunity from liability for defamatory comment. The Court below in its decision and order endorsed the ruling that the First Amendment does not protect false charges of criminal behavior. (McDonald v Smith, 472 US 479; Rinaldi v Holt, Rinehart & Winston, 42 NY2d 369, 434 US 969.) III. The Court below applied both the Federal law and the more expansive New York State law to the facts in this case. Its determination under either standard that defendant’s comments are reasonably susceptible of a defamatory connotation is factually supported by evidentiary proof. (Milkovich v Lorain Journal Co., 497 US 1, 111 L Ed 2d 1; Immuno AG. v Moor-Jankowski, 77 NY2d 235; Steinhilber v Alphonse, 68 NY2d 283.) IV. The Court below properly found that plaintiff had satisfied its burden of showing the falsity of factual assertions; that defendant’s statements were not sheltered by a qualified privilege, and that defendant’s statements were published with malice or with knowledge of their truth or falsity. (Milkovich v Lorain Journal Co., 497 US 1, 111 L Ed 2d 1; Immuno AG. v Moor-Jankowski, 77 NY2d 235; Loughry v Lincoln First Bank, 67 NY2d 369.) V. Appellant’s claim that plaintiff’s action is a SLAPP suit is a makeweight devoid of merit. (Rosenblatt v Baer, 383 US 75.)
   OPINION OF THE COURT

Simons, J.

Plaintiff seeks to recover damages for allegedly defamatory statements made by defendant in opposition to plaintiff’s application for a building permit during a public hearing conducted by a New York City Community Board. Defendant contends that his statements were absolutely privileged under the common law and that they were protected speech under the State and Federal Constitutions. We conclude the statements were constitutionally protected and therefore reverse the order of the Appellate Division and grant defendant’s motion for summary judgment dismissing the complaint.

I

The events giving rise to this litigation occurred in the fall of 1988 during a public hearing. Defendant, Robert Von Gutfeld, was one of several persons who spoke in opposition to a proposal by the plaintiff corporation to create a sidewalk cafe adjacent to its restaurant in Manhattan. The restaurant had opened the year before on the ground floor of an apartment building where Von Gutfeld had resided for more than 30 years. At the time the proposal was put forward, plaintiff was leasing its space from Excelsior Associates, owner of one of the building’s four ground-floor commercial condominium units, which, together with the cooperative residential units in the upper floors, comprised a condominium governed by a Board of Managers.

In the months leading up to the public hearing, plaintiff had begun the process of seeking City permission to create its sidewalk cafe. The City Department of Consumer Affairs initially rejected the application because plaintiff had failed to get the approval of the building’s Board of Managers. Subsequently, plaintiff submitted to the Department an affidavit of consent from Excelsior, its landlord. In response, and apparently confused by the document before it, the Department informed the Board of Managers it was proceeding on the application because it had what appeared to be a valid consent. Months later, the Department discovered its error and reversed itself, but it was during this period of confusion about the City’s position that Community Board No. 9, pursuant to the City Charter, held a public hearing on plaintiff’s proposal.

Von Gutfeld had served as president of the condominium’s Board of Managers from March 1985 to June 1988, and at the time of the hearing in October 1988 he was a member of the Board’s Building Committee. During his time as president, he had complained about a number of problems with the restaurant, including smells in the building and parking problems caused by restaurant employees. When he arrived at the hearing, Von Gutfeld filled out a registration statement, indicating that he wished to speak against the sidewalk cafe and stating his belief that the "permit [from Consumer Affairs] is * * * fraudulent.” After plaintiff’s representatives and one neighbor spoke in favor of the project, several persons, including Von Gutfeld, were recognized and stated their objections. The parties now disagree about the transcription of some parts of a tape recording of the hearing, but both sides acknowledge that Von Gutfeld once more raised the problems with smells and parking congestion and complained that the restaurant "denigrated” the building. He went on to say:

"Why do they want to do it? Because they have an illegal lease with Coronet [plaintiff’s prior landlord] that said they could take the sidewalk.”
"Therefore this entire lease and proposition [the word found in plaintiff’s transcript]/composition [the word found in defendant’s transcript] is as fraudulent as you can get and it smells of bribery and corruption.”

He then concluded, "No such permission [from the Board of Managers] has ever been granted and we sure as hell are not going to grant it now,” and then he hit the table with his hand. The audience applauded.

Following the meeting, the Community Board voted against plaintiff’s application. Later, in March 1989, the Department of Consumer Affairs ceased processing the application for the sidewalk cafe when it discovered its error and learned that the Board of Managers had not consented.

Plaintiff subsequently commenced this defamation action alleging that three of Von Gutfeld’s statements were defamatory: his reference to the denigration of the building, his statement about the illegal lease, and his comments about fraud and the smell of bribery and corruption. Von Gutfeld moved for summary judgment, arguing that the statements were absolutely privileged and that as a matter of constitutional law, both State and Federal, the statements identified as defamatory made no factual assertions and were therefore not actionable. Supreme Court denied the motion, finding no absolute privilege and holding that "[i]t cannot be said as a matter of law that the average recipient of these statements would not interpret them as meaning that plaintiff had actually bribed, corrupted or fraudulently obtained the license or permit.” A divided Appellate Division affirmed.

II

Defendant contends first that his comments are protected under the common law by an absolute privilege extended to those participating in judicial, legislative or executive proceedings. Our cases have made clear, however, that absolute privilege is based upon the personal position or status of the speaker and is limited to the speaker’s official participation in the processes of government (Park Knoll Assocs. v Schmidt, 59 NY2d 205, 209; Toker v Poliak, 44 NY2d 211, 219; Andrews v Gardiner, 224 NY 440, 446-447; Restatement [Second] of Torts, ch 25, tit B, Introductory Note to § 585 et seq., at 242-244). An absolute privilege is available only to those who in speaking are discharging a public function arising from the duties of their office (Park Knoll Assocs. v Schmidt, supra, at 209-210). Von Gutfeld, unlike the members of the Community Board, had no office at the hearing, and no absolute privilege attached to his remarks. As a speaker at the public hearing, he may have enjoyed a qualified privilege protecting him from liability in the absence of malice (see generally, Loughry v Lincoln First Bank, 67 NY2d 369, 376; Restatement [Second] of Torts § 598), as the courts below found, but he has not raised that issue before this Court.

Ill

Defendant next contends that his statements were constitutionally protected opinion under both the Federal and State Constitutions. His argument is undifferentiated although, as Immuno AG. v Moor-Jankowski (77 NY2d 235) made clear, this Court perceives the protection afforded by the First Amendment of the United States Constitution and that afforded by article I, § 8 of the New York Constitution to be quite different. Our analysis of defendant’s claims under the two documents, therefore, is made separately following an examination of the governing concerns in this area. As in Immuno, we analyze first the Federal provision, resolving the issue according to our understanding of the holding in Milkovich v Lorain Journal Co. (497 US 1), and then examine defendant’s rights under the State Constitution. Our determination that the order must be reversed rests on our conclusion that defendant’s statements cannot be construed to allege facts under either analysis (see, Michigan v Long, 463 US 1032).

A

Nearly 20 years ago, the Supreme Court handed down its landmark defamation decision in New York Times Co. v Sullivan "against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open” (New York Times Co. v Sullivan, 376 US 254, 270). The Sullivan Court recognized that the protections of the First Amendment were designed to assure an " 'unfettered interchange of ideas for the bringing about of political and social change’ ” (at 269, quoting Roth v United States, 354 US 476, 484) and to maintain " 'the opportunity for free political discussion to the end that government may be responsive to the will of the people’ ” (at 269, quoting Stromberg v California, 283 US 359, 369). This scheme of governance embodied in the First Amendment has come to have as its central metaphor the New England town meeting, where citizens can come forward to be heard in a full and free debate of matters of civic concern.

A Community Board hearing of the sort involved in this case is, in essential ways, the urban equivalent of that town meeting. Though the Boards’ recommendations are not binding, the Board is empowered by the New York City Charter (§2800 [d] [17]) to exercise the initial review of land use proposals and to make written recommendations to the City Planning Commission. The conduct of a public hearing is expressly set forth as a step in the Boards’ recommendation process under section 2800. In creating the Community Boards, the drafters of the City Charter obviously intended to give meaning and effect to the constitutional guarantees of individual participation in government by providing convenient local forums through which the wishes of New York City residents could be channeled to the City’s decision makers.

While conscious of their important role in providing protection to individual reputation, the courts since Sullivan have been vigilant about the potential "chilling effect” the threat of defamation actions can have on public debate. Where as here one of the most fundamental forms of citizen participation is implicated, that vigilance is especially well-founded. Because stringent defamation laws — or, more often, the fear of their imposition — can deter and silence people who would otherwise involve themselves in the public debate, the Supreme Court has fashioned broad protection under the Federal Constitution for civic participants, most notably by requiring plaintiffs who are public officials (New York Times Co. v Sullivan, supra) or public figures (Curtis Publ. Co. v Butts, 388 US 130) to show actual malice on the part of the defendant (see also, Gertz v Robert Welch, Inc., 418 US 323).

Implicit in the Sullivan-Gertz line of cases has been the understanding that, when the rules of defamation are drawn too finely, when any erroneous statement is likely to open the statement maker to liability, First Amendment values suffer because would-be communicators, fearing lawsuits, may be reluctant to risk expressing themselves. To avoid that result, and the resulting impoverishment of the public forum, the Court has been willing to allow in some circumstances otherwise valid claims of reputational harm to go uncompensated in order to encourage citizens and media outlets to express themselves freely when matters of public interest are at issue. In the balance to be struck between the State’s interest in protecting its citizens from reputational injury and the Constitution’s requirement that the State not unduly burden its citizens seeking to participate in the fundamental processes of governance, the scale is not even. We have been guided by these same considerations in explicating the scope of the broader protection afforded by our State constitutional provision (see, Immuno AG. v Moor-Jankowski, 77 NY2d 235, 248, supra).

Additionally, the courts have not been unmindful of the pragmatic consideration of the remedies available to plaintiffs outside of litigation. Thus, as the Supreme Court has noted, "[t]he first remedy of any victim of defamation is self-help— using available opportunities to contradict the lie or correct the error and thereby to minimize its adverse impact on reputation” (Gertz v Robert Welch, Inc., supra, at 344). Though used in Gertz to justify creating different and more burdensome rules for public plaintiffs than private ones, the principle has obvious application in the present case, where a public hearing is involved. A public hearing is, in many instances, the embodiment of self-help. The defamed, in the same setting and with the same audience, has the immediate opportunity to air his competing view. Courts should be reluctant to employ their powers to correct errors uttered in the give-and-take of live public debate when there is reason to believe that the give-and-take itself can adequately, and more appropriately, remedy the wrong. In the words of Judge Learned Hand, the First Amendment "presupposes that right conclusions are more likely to be gathered out of a multitude of tongues, than through any kind of authoritative selection. To many this is, and always will be, folly; but we have staked upon it our all” (United States v Associated Press, 52 F Supp 362, 372; see, New York Times Co. v Sullivan, supra, at 270).

B

Under either Federal or State law, the dispositive question is whether a reasonable listener at the hearing could have concluded that Von Gutfeld was conveying facts about the plaintiff (see, Milkovich v Lorain Journal Co., 497 US, at 20-21, supra; id., 497 US, at 24 [Brennan, J., dissenting]; Immuno AG. v Moor-Jankowski, supra, at 254; Steinhilber v Alphonse, 68 NY2d 283, 290). That is a question for the Court in the first instance (Steinhilber v Alphonse, supra, at 290; and see, Milkovich v Lorain Journal Co., supra). Because falsity is a necessary element in a defamation claim involving statements of public concern, it follows that only statements alleging facts can properly be the subject of a defamation action. The difficult exercise for the courts, and the place where this Court and the Supreme Court diverge somewhat, is the test or method the court applies to determine whether the challenged statement implies facts.

In Immuno (supra, at 245), the Court interpreted Milkovich as, in effect, truncating the widely used methodology first laid out in Oilman v Evans (750 F2d 970, cert denied 471 US 1127). Under the four-part Oilman test, a court was first to define the words as they were commonly understood and, second, ask whether the statement was subject to verification. From there, the court was to examine the full context of the statement and, finally, the broader social context or setting of the communication (Immuno AG. v Moor-Jankowski, supra, at 243). The Court concluded that Milkovich endorsed the first two steps of the Oilman analysis but in place of the last two substituted a “type of speech” test. Only if the expression fell into the narrow category of a protected type of speech (i.e., loose, figurative, or hyperbolic) could the impression that an apparently verifiable assertion was intended (as determined by the first two Oilman factors) be negated (Immuno AG. v MoorJankowski, supra, at 243-245). Thus, we stated (at 245) that “except for special situations of loose, figurative, hyperbolic language, statements that contain or imply assertions of provably false fact will likely be actionable” under Milkovieh. We believed that to be true because the Supreme Court did not expressly consider such contextual factors as the conjectural language and format of the challenged newspaper column, which tended to suggest that the article was opinion and speculative.

The Milkovich Court did, however, endorse an analysis that examined the "general tenor” of the statement. Moreover, it expressly reaffirmed its holdings in Hustler Mag. v Falwell (485 US 46 [no recovery for an ad parody that could not reasonably been seen as stating facts]), Letter Carriers v Austin (418 US 264 [use of the word "traitor” in a literary definition of "scab” was not a basis for a defamation action under Federal labor law]), and Greenbelt Publ. Assn, v Bresler (398 US 6, 14 [the term "blackmail” used to describe a real estate developer’s bargaining position was not defamation when spoken by a citizen at a public meeting or when reported in a newspaper because the term must have been perceived to be "rhetorical hyperbole, a vigorous epithet”]). In referring to those decisions, the Supreme Court examined the general terms of the statement determining, as we believed in Immuno (supra, at 244), that "the imprecise language and unusual setting” would signal to observers that no actual facts were being conveyed.

The Supreme Court’s reaffirmation of the Hustler-Letter Carriers-Greenbelt lines of cases is significant, for when the circumstances and statements here are compared with Greenbelt (supra) and the language used there, the conclusion easily follows that defendant’s statements in this case were hyperbolic. Whether the analysis looks to the "general tenor” of the words, the imprecise language, or the setting in which they were spoken, Greenbelt indicates that defendant’s words were protected speech. The importance of these factors in the analysis is demonstrated by the Court’s treatment of the term "blackmail” in Greenbelt. Nothing on its face suggests that "blackmail” is hyperbolic. To the contrary, it not only can be defined literally but in many circumstances it would clearly be actionable. Thus, it becomes a hyperbolic "type of speech” only by reference to the circumstances or context in which it is used.

The Greenbelt Court recognized as much. Referring to the news accounts of remarks made at a public hearing, the Court stated that "the word 'blackmail’ ”, when spoken "in these circumstances” was not slander (id,., at 13 [emphasis added]) and added: "If the reports had been truncated or distorted in such a way as to extract the word 'blackmail’ from the context in which it was used at the public meetings, this would be a different case” (id., at 13 [emphasis added]).

Applying Greenbelt, the question becomes: What circumstances, in addition to the literal text of the communication, would the reasonable reader or listener perceive and use in determining whether or not a factual assertion was being made? The Greenbelt Court referred to the nature and tone of the City Council sessions where the land development proposal was under official consideration and where citizens made the "blackmail” allegations. "There can be no question,” it said, "that the public debates at the sessions of the city council regarding Bresler’s negotiations with the city were a subject of substantial concern to all who lived in the community. The debates themselves were heated, as debates about controversial issues usually are” (id., at 13). Later, the Court noted that the headlines on the challenged newspaper reports "made it clear to all readers that the paper was reporting the public debates” (id., at 14).

Thus, the relevant circumstances were that (1) that the speakers were citizens, (2) the debate was heated, and (3) the forum was an official governmental session. From these factors, the finding followed that reasonable listeners would not conclude that the speakers were charging the developer with the actual crime of blackmail. Citizens do not by their status invite listeners to make the assumption that they have researched the subject and found facts not generally known to others. Reasonable listeners also are aware that impromptu comments at a heated public debate, unlike official testimony before a governmental subcommittee or even the reading of prepared remarks, are more likely to be the product of passionate advocacy than careful, logically developed reason. Finally, the type of forum is relevant because reasonable listeners arrive armed with the knowledge that the deliberations are in progress, that no expertise is required of those who choose to speak, and that robust, controversial debate is expected and frequently encouraged. In short, reasonable listeners in such circumstances arrive with an appropriate amount of skepticism. They come with the expectation that they are, in all probability, going to hear opinion, much of it unpolished and uninformed. They are not expected to parse carefully each statement for fact and opinion; they are expected to be reluctant to conclude — absent clear clues to the contrary from the words or context — that the statements made are to be heard as objective fact. That reluctance, that skepticism, in large part, defines reasonableness under the circumstances.

Greenbelt (supra) involved a public hearing. Printed newspaper columns (as in Milkovich, supra) differ from a live public debate for purposes of characterizing the reasonable listener/ reader and make the case for protection here stronger. A newspaper column is the product of some deliberation, not of the heat of a moment. Prior to publication, it passes through the hands of professional editors and it thus carries with it the cloak of credibility and authority of the particular newspaper and the profession. Its writers work with the knowledge that the printed word can and will be subjected to close, careful, and repeated reading over time. These undoubtedly are circumstances encouraging the reasonable reader to be less skeptical and more willing to conclude that the report is stating or implying facts garnered by a professional news gatherer and reporter. No like factors are present when a private citizen makes an impromptu speech in a heated public debate.

Applying the Federal constitutional principles of Greenbelt and Milkovich (supra) to the comments made by the defendant here, we conclude his remarks were constitutionally protected. Plaintiff’s allegations on appeal require that we analyze three statements in Von Gutfeld’s remarks: (1) his assertion that the restaurant "denigrated” the building, (2) his claim that the lease and "proposition” or "composition” were fraudulent and smelled of bribery and corruption, and (3) his statement that there was an illegal lease. Our Federal law analysis requires, as we set forth in Immuno (supra), that we begin by, first, looking at the commonly understood meaning of the words and, second, determining whether they are verifiable.

The allegation of "denigration” cannot survive these initial two steps. Whether defined as "cast[ing] aspersions on” or "belittl[ing]” (Webster’s Third New International Dictionary 602) or by any of its other common meanings, the term falls far short of any requirement of verifiability. It does not state such factually ascertainable phenomena as the diminution of real estate values or the rendering of the building uninhabitable. It is no more or less factual than a claim that the restaurant "enhanced” the building, and it cannot support an action for defamation.

Von Gutfeld’s statement that "the lease and proposition [or composition] is as fraudulent as you can get and it smells of bribery and corruption” requires closer scrutiny. Because such words are commonly understood to mean criminal behavior and refer to verifiable acts, the two prongs of the Milkovich analysis are met, and we must look to see whether the statements are "loose, figurative or hyperbolic” or whether the "general tenor” of the Von Gutfeld’s remarks negate the impression of factual assertions (Milkovich v Lorain Journal Co., 497 US, at 21, supra). For the statement to be actionable, we must find that the reasonable listener at the hearing understood Von Gutfeld to be saying that the plaintiff committed fraud and bribery and corrupted City officials or to be implying undisclosed defamatory fact as the basis for the opinion (Rinaldi v Holt, Rinehart & Winston, 42 NY2d 369, 380; Restatement [Second] of Torts § 566; see, Milkovich v Lorain Journal Co., 497 US, at 12-14, supra). We conclude that the remarks spoken at a public hearing would not be so interpreted by a reasonable listener.

First, we note Von Gutfeld’s choice of the colloquial and loose terms "smells of’ and "fraudulent as you can get” in the challenged statements. This is not the language of someone inviting reasonable persons at a heated public hearing to find specific factual allegations in his remarks. Indeed, the figurative "smells of’ by its nature conveys to listeners that he has no hard facts, only generalized suspicions. We note also that the statements concerning bribery and corruption are devoid of reference to the plaintiff or any other specific actors. None of his statements about the lease or the sidewalk cafe proposal implies knowledge of a specific criminal transaction, let alone the plaintiff’s involvement in such conduct. While he refers at one point to the condominium bylaws and to correspondence from the Department of Consumer Affairs, he does so in support of the simple, and accurate, proposition that it would violate both the bylaws and the laws of the City to allow a sidewalk cafe absent the approval of the condominium Board of Managers, which exercises ownership rights over the external wall that was to be incorporated into the sidewalk cafe. The references do not suggest that he has investigated beyond that or that he has undisclosed knowledge of any actual transaction involving plaintiffs application.

We note as well the general tenor of the remarks. Von Gutfeld’s statement is a rambling, table-slapping monologue, much of it dealing with his past problems with the restaurant and his frustration with the government of New York City. It could not reasonably be heard as a factual presentation on what the plaintiff was doing to get its permit as much as an angry, unfocused diatribe about the restaurant’s presence and life in New York City. Indicative of the statements’ tenor and language is the following passage: “My question is when does the City of New York stop giving away public property? We see all over New York the streets are littered with vendors. They don’t have insurance. Vendors [inaudible] sell toilet seats. Vendors who sell books. All these things at, at whose expense? The public. We’re getting our sidewalks taken away.”

Reasonable listeners come to a public hearing with expectations that the speaker is airing a layperson’s opinion. Nothing about the circumstances of this hearing or Von Gutfeld’s appearance, and certainly nothing about the words uttered themselves, would lead reasonable persons to conclude that they were witnessing a presentation of fact. Thus, given the loose nature of the language, the "general tenor” of the remarks made at a public hearing, and the skepticism a reasonable listener brings to such proceeding, we believe the second statement is not such that a reasonable listener would conclude factual assertions were being made about plaintiff.

The third statement — the allegation that plaintiffs lease was “illegal” because it “said they could take the sidewalk”— comes closest to asserting an objective fact. Unlike the statements about bribery and corruption, the statement about the lease expressly identifies plaintiff as a party to the transaction. If a reasonable listener would conclude that Von Gutfeld was saying plaintiff was engaged in criminal behavior, the statement would be actionable. The plain language of the statement does not support such a conclusion. Even in the unlikely event that a person at the hearing would reasonably believe a private lease governed a public sidewalk, the listener would need to take the further step and believe that the lessee was engaged in criminal conduct by signing and accepting the terms of the document. At worst the statement alleges nothing more than the lease provision is unenforceable. Thus, we conclude that as a matter of Federal constitutional law summary judgment for the defendant is warranted.

C

The defendant’s claim to relief rests on the protections of the State Constitution as well as the Federal. Under the State law analysis articulated in Immuno (supra), Von Gutfeld would also be entitled to summary judgment. In Immuno, we endorsed a methodology derived from Steinhilber v Alphonse (68 NY2d 283, supra) that requires that a court look "at the content of the whole communication, its tone and apparent purpose” (Immuno AG. v Moor-Jankowski, supra, at 254). Designed to avoid "the fine parsing * * * that might now be required under Federal law” (id., at 255), the State law approach was viewed as better able to "assure that — with due regard for the protection of individual reputation — the cherished constitutional guarantee of free speech is preserved” (id., at 256). When the factors discussed above as part of our Federal analysis are considered under a State contextual analysis, it is clear that, to the extent they make up the "content, tone, and purpose” of the communication, they dictate a finding that Von Gutfeld’s speech was a statement of opinion and advocacy and not a presentation alleging objective fact. No useful purpose would be served in articulating the differences between the two approaches when the defendant is able to prevail under the narrower Federal test.

IV

Accordingly, the order of the Appellate Division should be reversed, with costs, defendant’s cross motion for summary judgment dismissing the complaint granted and certified question answered in the negative.

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

Order reversed, etc.

      . In recent years, there has been a rising concern about the use of civil litigation, primarily defamation suits, to intimidate or silence those who speak out at public meetings against proposed land use development and other activities requiring approval of public boards. Termed SLAPP suits— strategic lawsuits against public participation — such actions are characterized as having little legal merit but are filed nonetheless to burden opponents with legal defense costs and the threat of liability and to discourage those who might wish to speak out in the future (see, e.g., Westfield Partners v Hogan, 740 F Supp 523; Pring and Ganan, Strategic Lawsuits Against Political Participation, 35 Soc Probs 506). In response, New York State enacted a law specifically aimed at broadening the protection of citizens facing litigation arising from their public petition and participation (see, L 1992, ch 767). The statute was enacted after the events of this litigation and is not in issue on this appeal.

      . "Well, they can’t take the sidewalk because this book was approved by the state attorney general, and on page 73 this book says that the sidewalk is a common element and only the condo of which I was a member for 3 years can decide if and when they should be moved.”

      . "I have the correspondence that says 'No restaurant is to be built unless the condominium board gives permission.’ ”

      . At the time of the hearing, however, the City Department of Community Affairs had erroneously reported that it was satisfied that permission had been given. The defendant’s remarks were largely in response to that error.


source: Caselaw Access Project

author: Kaye, J.

license: Public Domain

text:
    The People of the State of New York, Appellant, v Demetrio Gonzalez, Respondent.
    Argued September 16,1992;
    decided October 20, 1992

      POINTS OF COUNSEL

      Charles J Hynes, District Attorney of Kings County, Brooklyn (David O. Leiwant and Jay M. Cohen of counsel), for appellant.
    The merger doctrine does not allow the reversal of defendant’s kidnapping conviction because: the evidence established that kidnapping was the initial crime he intended to commit, the dismissed charges of assault were incidental to and part of the kidnapping, and the attempted rape, of which defendant was acquitted, arose only at the end of the lengthy and terrifying abduction. (People v Contes, 60 NY2d 620; People v Carmichael, 155 AD2d 983; People v Piotter, 142 AD2d 939; People v Kalyon, 142 AD2d 650; People v Sharpe, 166 AD2d 620; People v Salimi, 159 AD2d 658; People v Miles, 23 NY2d 527, 395 US 948; People v Rodena, 170 AD2d 418; People v D'Angelo, 166 AD2d 662; People v Usher, 49 AD2d 499, 40 NY2d 763.)

      Arthur H. Hopkirk, New York City, and Philip L. Weinstein for respondent.
    I. The People’s appeal must be dismissed because the decision of the Court below to reverse respondent’s conviction was based upon factual determinations concerning respondent’s intent with respect to the complainant’s detention, the nature of that detention, and the seriousness of the injuries suffered by the complainant. (People v Nixon, 156 AD2d 144, 76 NY2d 870; People v Zurzolo, 143 AD2d 286, 74 NY2d 680; People v Ramos, 73 NY2d 866; People v Hoke, 62 NY2d 1022; People v Dercole, 52 NY2d 956; People v Bleakley, 69 NY2d 490; People ex rel. MacCracken v Miller, 291 NY 55; People v Hogya, 56 NY2d 602; People v Usher, 49 AD2d 499, 40 NY2d 763; People v Gonzalez, 171 AD2d 127.) II. Respondent’s conviction of kidnapping was properly reversed because it merged with the charges of attempted rape and assault which resulted in acquittal or dismissal. (People v Cassidy, 40 NY2d 763; People v Miles, 23 NY2d 527; People v Lombardi, 20 NY2d 266; People v Levy, 15 NY2d 159; People v Cain, 76 NY2d 119; People v Dolan, 40 NY2d 763; People v White, 88 AD2d 940; People v Jackson, 63 AD2d 1032; People v Usher, 49 AD2d 499, 40 NY2d 763; People v Knight, 161 AD2d 668.) III. Respondent was denied his due process right to a fair trial when the prosecutor summarized the story of a second kidnapping complainant in a separate incident in his opening statement and presented an "outcry” witness to the second incident, but never produced the second complainant, who had left the country. (People v De Tore, 34 NY2d 199; People v

      Molineux, 168 NY 264; People v Castillo, 47 NY2d 270; People v Reid, 135 AD2d 753; People v Cruz, 100 AD2d 882; People v Ware, 13 AD2d 1015; People v Stanard, 32 NY2d 143; People v Cavallerio, 71 AD2d 338; People v Wood, 66 NY2d 374.)
   OPINION OF THE COURT

Kaye, J.

This appeal tests the application of the merger doctrine in a prosecution for kidnapping and attempted rape, where the defendant is convicted of kidnapping but acquitted of the rape charge. In applying the merger doctrine, we conclude that, whether defendant is acquitted or convicted of the underlying crime, the standard remains the same: did the Legislature intend to punish the restraint or abduction separately as kidnapping? In the case before us, that question must be answered in the affirmative.

I

In November 1987, complainant, then four months pregnant, brought her three children to a friend’s apartment in the same building, to be watched while she went to a local hospital to fill a prescription. Defendant, whom the complainant had known from the neighborhood, was in the friend’s apartment and offered to call a car service for her. When the complainant got into the back seat of the car, at about 4:15 p.m., defendant — who was neither invited nor expected to come along — slid in next to her and told the driver, apparently defendant’s friend, to drive off. The driver did, laughing.

What followed was a lengthy odyssey on the streets of Brooklyn — lasting up to two hours — during which complainant, trapped in the car, was terrorized. Defendant first told her that she would pay for what everyone had done to him. When she denied involvement in his problems, defendant began hitting and punching her about the face and head. Defendant then asked complainant if she liked pain, and dissatisfied with her response, hit her head with a gun. At one point, defendant asked the driver if he would like to see complainant killed. Verbal and physical abuse continued throughout the ride.

When the car finally stopped at a vacant lot, the two men pushed complainant out of the car, and at defendant’s behest the driver punched her in the face. Defendant hit her with his gun and then kicked her stomach, causing her to fall. While she was on the ground, defendant told her he would rape her, at which point she lost consciousness.

Complainant awoke around dawn, clothed only in her shirt and socks. She had a lump on her head; her legs, stomach and vagina felt sore; her legs were "wet” and "sticky.” Although she concluded that she had been raped, complainant did not see or feel anyone touch her sexually. She gathered her other clothing, which had been strewn about the lot, and found her way home on foot, about two miles distant.

Defendant was arrested and later indicted on charges of second degree kidnapping, second degree assault, attempted first degree rape, and attempted first degree sexual abuse. After presentation of the evidence, the trial court announced at a precharge conference that it would not submit the assault counts to the jury because there was insufficient evidence of the statutory physical injury requirements (see, Penal Law § 120.05 [1], [6]). The court also denied the People’s request to submit lesser-included offenses of the assault counts, and declined to submit the sexual abuse charge. Thus, only the kidnapping and attempted rape counts went to the jury.

The jury acquitted defendant of attempted rape but convicted him of kidnapping, and the court imposed a two-to-six-year sentence. On appeal to the Appellate Division, defendant —although not challenging the weight or sufficiency of the evidence — argued that the kidnapping conviction should be merged into the attempted rape acquittal under People v Levy (15 NY2d 159, cert denied 381 US 938) and its progeny. The Appellate Division agreed and dismissed the charge, holding that the kidnapping conviction was "precluded” by the merger doctrine (171 AD2d 127, 130). Justice Rosenblatt, in a comprehensive dissent joined by Justice Balletta, concluded that the majority’s holding was "an expansion of the merger doctrine to lengths that carry it well beyond its purpose and origins” (171 AD2d, at 132-133). We agree, and accordingly reverse.

II

People v Levy (15 NY2d 159, supra) was a judicial response to the all-encompassing statutory definition of kidnapping and the harsh penalties prescribed for a conviction of that crime. As we noted in Levy, the statute (former Penal Law § 1250 [1]) literally embraced any restraint, providing that one who intentionally "confine[d]” another against the victim’s will was guilty of kidnapping, with a minimum sentence of 20 years to life (15 NY2d, at 164). We observed, moreover, that restraint often accompanies a robbery or rape, and that although such restraint might technically fall within the statutory definition of kidnapping, it was unlikely that the Legislature intended to separately punish the robber or rapist as a kidnapper. Thus in Levy, where defendants took control of a car at gunpoint and robbed the occupants of money and jewelry while driving for 20 minutes, "[i]n essence the crime remained a robbery although some of the kidnapping statutory language might literally also apply to it.” (15 NY2d, at 165.) Accordingly, we dismissed defendants’ kidnapping convictions but upheld the robbery charges.

Similarly, People v Lombardi (20 NY2d 266) upheld rape and assault convictions but dismissed three kidnapping charges where defendant (a pharmacist), in three separate incidents, drugged female employees and drove them from Manhattan to a Queens motel for sexual purposes. The Court stated that "the direction of the criminal law has been to limit the scope of the kidnapping statute, with its very substantially more severe penal consequences, to true kidnapping situations and not to apply it to crimes which are essentially robbery, rape or assault and in which some confinement or asportation occurs as a subsidiary incident.” (Id., at 270.)

The kidnapping statute was substantially revised in 1967, providing for first and second degree kidnapping (see, Penal Law §§ 135.25, 135.20) and the lesser crimes of unlawful imprisonment, also in the first and second degrees (see, Penal Law §§ 135.10, 135.05; see generally, Donnino, Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law § 135.00, at 616-618). The revised statute distinguishes between the terms "restrain” and "abduct,” which lie at the heart of these crimes. Restraint is a substantial interference with a person’s liberty by either asportation or confinement (see, Penal Law § 135.00 [1]), while abduction is either restraint in a place where the victim is unlikely to be found (Penal Law § 135.00 [2] [a]) or restraint through the actual or threatened use of deadly physical force (Penal Law § 135.00 [2] [b]; People v Dodt, 61 NY2d 408, 414).

First degree kidnapping, an A-I felony, is an abduction to compel a ransom, or one lasting more than 12 hours for certain enumerated purposes (Penal Law § 135.25), but an abduction without more is second degree kidnapping, a class B felony (Penal Law § 135.20). Unlawful imprisonment in the first degree, an E felony, is defined as a restraint "under circumstances which expose [the victim] to a risk of serious physical injury” (Penal Law § 135.10), and a simple restraint is second degree unlawful imprisonment, a class A misdemeanor (Penal Law § 135.05). Thus, in contrast to its predecessor, the current statutory scheme presents a range of offenses and penalties measured by the gravity of defendant’s conduct.

The question in People v Cassidy (40 NY2d 763) was whether the judicially crafted merger doctrine survived the Penal Law revision, given that there was no longer a single grade of kidnapping carrying a minimum sentence of 20 years to life. We observed that the Legislature considered the problems underlying the former kidnapping statute — where a defendant might be convicted of kidnapping for incidental restraints inherent in other crimes — by specifically requiring, for first degree kidnapping, that the period of abduction last more than 12 hours. We therefore agreed with the People that, in view of this lengthy durational requirement, a conviction of first degree kidnapping should not merge with other crimes. Separate punishment for kidnapping was intended and justified under those circumstances.

The People argued, however, that the merger doctrine should be abrogated in its entirety, that the Legislature’s failure to impose time or distance limitations for second degree kidnapping demonstrated its intent that there not be any. We rejected that argument:

"The mere fact that the Legislature elected to require an extended period of detention for the most serious degree of the crime of kidnapping gives rise to no conclusion that it thereby intended every shorter abduction to constitute kidnapping in the second degree, thus abolishing the merger doctrine. If such had been the legislative intent, appropriate words to accomplish such result were readily available. Absent employment of such language, however, we presume that the statute was to be given effect — as it easily may be — consistent with the then outstanding principle of merger previously enunciated in People v Levy.” (40 NY2d, at 766.)

One of the rationales for the Levy-Lombardi rule was that a defendant who committed essentially a rape or robbery should not be subject to the substantially greater punishment for kidnapping. The People thus argued in Cassidy that since there was no disparity under the Penal Law revision between the penalties for second degree kidnapping and first degree robbery or rape, the merger doctrine was unnecessary to protect against inflated penalties. We likewise rejected that argument, noting that "[although ballooning of the penalty may thereby be said to have been eliminated there remains the comparably objectionable exposure to multiple convictions.” (40 NY2d, at 766-767.)

The merger doctrine is thus a means of effectuating the Legislature’s intent by precluding additional kidnapping sanctions for conduct that, while literally falling within the definition of that crime, was not intended to be separately treated as kidnapping. Moreover, despite the parity of punishment, the merger doctrine prevents multiple convictions for conduct that, in fairness, should result in a single conviction.

The holdings in People v Levy and People v Lombardi were initially described as the "Levy-Lombardi rule” (see, People v Miles, 23 NY2d 527, 539-541). Miles, however, analogized to a "kind of factual merger with the ultimate crime” and a "merger suggestive of, but not quite like, the merger of the preparation and attempt with the consummated crime” (People v Miles, supra, at 539), and therefore the principle came to be known as the "merger doctrine” (see, e.g., People v Cassidy, 40 NY2d, at 765, supra). The term merger, however, may be technically inapt because, unlike a true merger situation, where the lesser crime merges only upon conviction of the greater (see, CPL 1.20 [37]; 300.40 [3] [b]; People v Grier, 37 NY2d 847, 848), the merger analysis in a kidnapping case is unaltered even if defendant is acquitted of the rape or robbery (see, People v Usher, 40 NY2d 763, affg 49 AD2d 499 [kidnapping conviction dismissed on appeal despite acquittal of robbery]). Whether there is an acquittal or conviction of the underlying crime, in each case the question is simply this: did the Legislature intend to punish the restraint or abduction separately?

In undertaking this inquiry, we bear in mind that the present statutory scheme has more precise definitions and sentencing gradations than its predecessor. Convictions that may have "merged” under the former statute — because the Legislature could not have intended the acts to constitute the crime of kidnapping as then understood and punished — might not be dismissed under the present statute (compare, e.g., People v Lombardi, with our holding today).

The guiding principle is whether the restraint was "so much the part of another substantive crime that the substantive crime could not have been committed without such acts and that independent criminal responsibility may not fairly be attributed to them” (People v Cassidy, 40 NY2d, at 767, supra; see also, People v Cain, 76 NY2d 119, 125; People v Geaslen, 54 NY2d 510, 516-517). Where the abduction and underlying crime are discrete, for example, there is no merger (People v Smith, 47 NY2d 83, 87 [no merger when robbery completed before victim forced to embark on hour-long drive]). On the other hand, where there is minimal asportation immediately preceding rape or robbery, the abduction should not be considered kidnapping (see, People v Cassidy, 40 NY2d, at 767, supra [victim dragged 70 feet, then sexually assaulted]; People v Usher, 40 NY2d, at 768, supra [victim pulled across the street into an abandoned building, then robbed and raped]). In addition, where the restraint and underlying crime are essentially simultaneous, separate punishment may not be appropriate, depending on the circumstances (see, People v Cain, 76 NY2d 119, 125 [asportation and restraint of victim incidental to and inseparable from over-all scheme of robbery]; People v Dolan, 40 NY2d 763, 768 [sexual advances made while driving around]; People v Geaslen, 54 NY2d, at 517, supra [restriction of victim’s movements incidental to simultaneous commission of attempted rape]). Finally, a kidnapping conviction is generally sustained where the manner of detention is egregious, regardless of other considerations (see, People v Rodriguez, 70 NY2d 523, 532 [victim placed in trunk of car]; People v Miles, 23 NY2d, at 539, supra).

Applying these criteria, we have no difficulty concluding that the lengthy abduction here, accomplished with a deadly weapon, is the sort of behavior the Legislature intended to proscribe as second degree kidnapping. Indeed, the victim was "subjected * * * to a prolonged episode of unremitting terror and physical brutality” (171 AD2d, at 133 [Rosenblatt, J., dissenting in part]). The abduction constituted the discrete crime of second degree kidnapping which was already completed, in all its elements, before the victim was allegedly sexually assaulted. The restraint was not a minimal intrusion necessary and integral to another crime, nor was it simultaneous and inseparable from another crime. It was a crime in itself.

Accordingly, the order of the Appellate Division should be reversed and the case remitted to that Court for consideration of the facts and other issues not reached on the appeal to that Court.

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

Order reversed, etc.


author: Titone, J.

text:
    The People of the State of New York, Respondent, v Erasmo Mezon, Appellant.
    Argued September 11,1992;
    decided October 22, 1992

      POINTS OF COUNSEL

      Bennett L. Gershman, White Plains, for appellant.
    I. County Court had inherent power to dispense with a written suppression motion since the parties consented, no prejudice was shown, and the interest of justice were furthered. Moreover, any error was harmless. (Matter of Hochberg v Davis, 171 AD2d 192; People v Jelke, 308 NY 56; Matter of Holtzman v Goldman, 71 NY2d 564; Matter of Jaffe v Scheinman, 47 NY2d 188; Matter of Proskin v County Ct., 30 NY2d 15; People v Jennings, 69 NY2d 103; People v Lawrence, 64 NY2d 200; People v Taylor, 97 AD2d 381; People v Martinez, 111 AD2d 30; People v Webb, 78 NY2d 335.) II. Appellant’s arrest for a traffic infraction was unlawful since appellant produced sufficient identification from which a summons could have been prepared; the subsequent search was unlawful, and evidence acquired from that search was properly suppressed. (People v Ellis, 62 NY2d 393; People v Copeland, 39 NY2d 986; People v Troiano, 35 NY2d 476; People v Spencer, 130 AD2d 882; People v Rodriguez, 122 AD2d 895; People v Abrams, 119 AD2d 682; People v Howell, 49 NY2d 778; People v Marsh, 20 NY2d 98; People v Schreiner, 77 NY2d 733; People v Cohen, 58 NY2d 844.)

      Carl A. Vergari, District Attorney of Westchester County, White Plains (Richard Longworth Hecht and Richard E. Weill of counsel), for respondent.
    I. As appellant made no motion to suppress within the meaning of CPL article 710, nisi prius was without authority to grant suppression. (People v Douglass, 60 NY2d 194; People v Schonfeld, 74 NY2d 324; People v Graham, 55 NY2d 144; People v O’Doherty, 70 NY2d 479; People v Thomas, 53 NY2d 338; Johnson v Zerbst, 304 US 458; People v Webb, 78 NY2d 335; People v Jennings, 69 NY2d 103; People v Singleton, 42 NY2d 466; Matter of Balter v Regan, 63 NY2d 630.) II. Detective Buonanno, having reasonable suspicion to believe that Mezon had committed the crime of attempted burglary (as conceded at the hearing) and concerned for his safety, acted reasonably in conducting a limited frisk of Mezon; the fact of Mezon’s arrest for a Vehicle and Traffic Law violation which by itself justified the frisk, did not vitiate the reasonableness of the detective’s action. Thus, the seizure of both the knife and, later, the jewelry was lawful. (People v De Bour, 40 NY2d 210; People v Jenkins, 47 NY2d 722; People v Sanders, 79 AD2d 688; People v Cantor, 36 NY2d 106; People v Mack, 26 NY2d 311; People v Davis, 64 NY2d 1143; People v Allen, 73 NY2d 378; Scott v United States, 436 US 128; People v Marsh, 20 NY2d 98; People v Troiano, 35 NY2d 476.) III. The evidentiary errors by the hearing court denied the People the "full opportunity” to litigate the issue presented. (People v Crandall, 69 NY2d 459; People v La Brake, 28 NY2d 625.)
   OPINION OF THE COURT

Titone, J.

CPL 710.60 (1) provides that pretrial motions to suppress evidence must be made "in writing and upon reasonable notice to the people.” The issue in this appeal is whether the People may effectively waive compliance with this statutory requirement. Although we conclude that a waiver is permissible, we nonetheless hold that in this case defendant’s oral motion should not have been considered because, as an examination of the record reveals, the People did not, in fact, waive their right to receive written notice of his motion.

In November 1989, while defendant was being arraigned on an indictment charging him with burglary and other related offenses, defense counsel asked the County Court if it would consider entertaining an oral application to suppress certain evidence which had been seized from defendant at the time of his arrest. The prosecutor responded that he believed that his office would expedite the motion if he could "just have [it] in writing.” The County Court, however, stated that it was "going to allow the oral application.” In so ruling, the court observed that the People would not be "prejudiced.”

Immediately after deciding to entertain the oral application, the court invited defense counsel to speak about the facts underlying the motion. Counsel thereafter related certain unsworn allegations that had been made at defendant’s preliminary hearing. Although the prosecutor was given the opportunity to mention any additional facts he deemed relevant, he confined himself to a reading of the factual narrative in the police report, noting that he felt himself to be at somewhat of a "disadvantage” because he had not been present at the felony hearing. In response to further inquiry by the court, the prosecutor stated that the People would be ready to proceed with a full suppression hearing on whatever date the court might select.

A formal suppression hearing was held two weeks later. After hearing from both sides, the County Court granted defendant’s motion, concluding that the evidence defendant sought to suppress was the fruit of an unlawful arrest and search.

On appeal, however, the Appellate Division reversed. Relying on CPL 710.60 (1), that Court concluded that defense counsel’s oral application to suppress should not have been heard. Nonetheless, the Court then went on to consider defendant’s suppression motion on its merits, holding that defendant had not been subjected to an unlawful arrest or search. Accordingly, the Court denied the suppression motion and remitted for further proceedings on the indictment.

The Appellate Division correctly ruled that the County Court should not have entertained defendant’s oral application to suppress evidence. A motion to suppress evidence on any of the grounds set forth in CPL 710.20 is litigated in accordance with the procedures prescribed by CPL article 710. CPL 710.60 (1) provides that such motions, when made prior to trial, "must be in writing and upon reasonable notice to the people.” Under the statute, the movant must submit papers that "state the ground or grounds of the motion” and "contain sworn allegations of fact * * * supporting such grounds.”

Contrary to defendant’s present contention, the trial courts are not empowered to dispense with CPL 710.60 (l)’s written notice requirement in the exercise of their "inherent authority” to control their own calendars. To the extent that the courts may have some discretion to adjust their procedures in areas involving the "inherent nature of the judicial function,” the courts may not exercise that discretion in a manner that conflicts with existing legislative command (Matter of A. G. Ship Maintenance Corp. v Lezak, 69 NY2d 1, 5-6, citing Riglander v Star Co., 98 App Div 101, affd 181 NY 531; and Cohn v Borchard Affiliations, 25 NY2d 237). Indeed, we have already held that the trial courts’ inherent power to control their own calendars does not include the power to "depart from the clear wording of CPL 170.30” (People v Douglass, 60 NY2d 194, 205).

Similarly, whatever "inherent authority” the trial courts may have to regulate motion practice cannot be extended to encompass a judicial decision to abrogate the written notice requirement of CPL 710.60 (1). Accordingly, its prescriptions must be obeyed, and the courts have no authority to vary or override them.

An entirely separate question exists as to whether compliance with the requirements of CPL 710.60 (1) can effectively be waived by the People. We have previously considered the People’s power to waive analogous statutory written-notice requirements and have reached varying conclusions depending upon the nature of the statute.

In People v Singleton (42 NY2d 466, 470), for example, we ruled that by failing to object to the unorthodox procedure defense counsel had used to move for a dismissal, the prosecutor had validly waived his right to demand written motion papers and reasonable advance notice in accordance with CPL 210.45 (1). In contrast, the Court held in People v Lawrence (64 NY2d 200) that a motion to dismiss for a violation of CPL 30.30 must be made before trial or entry of plea (see, CPL 210.20 [1] [g]; [2]) and that this statutorily mandated requirement was not waived because of the People’s failure to object to a judicial ruling deferring the motion until after trial. In so ruling, we stated that "[n]either the court nor the parties may restructure the statute to adopt a procedure that is more convenient for them at the moment by waiving its clear provisions” (id., at 207).

Finally, in People v Jennings (69 NY2d 103, 113), we discussed Singleton and Lawrence (supra) and elaborated upon the distinction that is implicit in those cases. In Jennings, we held that by neglecting to object at the proper time, the People had waived their right to complain about the defendants’ failure to make their CPL 210.20 dismissal motion in writing and upon reasonable notice. We went on to note in Jennings that, unlike the procedural rule that was at issue in Lawrence, the written notice requirement of CPL 210.45 (1) is not directly related to any strong public policy affecting the efficiency of the courts or "orderly trial procedures” (69 NY2d, at 113). Rather, it is a rule "designed primarily to protect the People from unfair surprise” (id., at 113). Where the prosecution deems such protections unnecessary, we concluded, there is no sound reason why they should not be permitted to waive the rule’s requirements (id.).

For purposes of analysis, the rule at issue here is indistinguishable from that at issue in Jennings and Singleton (supra). Like CPL 210.45 (1), CPL 710.60 (1) exists to ensure that the People are adequately protected from unfair surprise and have sufficient opportunity to respond to the defendant’s suppression claims. The requirement of written motion papers serves the additional purpose of framing and narrowing the issues, enabling the prosecution to prepare an intelligent response. As in Singleton and Jennings, the prosecution, the intended beneficiary of the statutory protections, should be able to waive them, particularly since there are no overriding public policies that would be offended by treating the People’s silence as a waiver (see, People v Jennings, supra, at 113). In these circumstances, the general principle that the parties to a litigation may adopt their own rules "by the simple expedient of failing to object” is applicable (People v Lawrence, supra, at 206; see, Matter of Brock way v Monroe, 59 NY2d 179, 188).

It remains for us to determine whether a waiver actually occurred in this case. It is undisputed that as soon as the defense suggested proceeding by oral motion, the prosecutor asked for a written motion, promising that the People’s response would be "expedited.” Nonetheless, defendant argues that the People should be deemed to have waived their right to a written motion because, after the initial discussion, they participated in the remainder of the proceedings, including the suppression hearing, without further objection. The argument lacks merit.

Once the trial court stated unequivocally that it would permit an oral motion, any further objection by the People would have been futile. The law does not require litigants to make repeated pointless protests after the court has made its position clear. Nor does the law require litigants who have unsuccessfully sought a ruling to boycott the remainder of the proceeding in order to avoid forfeiture of their claims. In this case, the People’s conduct made it clear that they did not voluntarily intend to forgo their right to a written suppression motion (cf., People v Le Mieux, 51 NY2d 981). No further protest was required.

Finally, although the Appellate Division correctly concluded that the oral motion should not have been entertained, the Court erred when it went on to consider and dispose of the defense’s suppression motion on the merits. Inasmuch as the motion was not made in accordance with the dictates of CPL article 710, it was, in effect, a nullity. Thus, for purposes of determining the proper relief on appeal, the Appellate Division should have treated the motion as if it had never been made. Once the Court determined that the suppression motion should not have been considered, it should have placed the parties in the position they occupied before the motion was made by simply reversing the order of suppression and remitting for further proceedings, including a new motion to suppress if appropriate.

Accordingly, the order of the Appellate Division should be modified in accordance with the opinion herein and, as so modified, affirmed.

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

Order modified, etc.


author: Hancock, Jr., J.

text:
    In the Matter of American Transit Insurance Company, Appellant, v Sayed M. Abdelghany, Respondent, et al., Respondents. In the Matter of Atlantic Mutual Insurance Company, Respondent, v Marvin Finker, Appellant.
    Argued September 16,1992;
    decided October 22, 1992

      POINTS OF COUNSEL

      Berger Steingut Tarnoff & Stern, New York City (Charles S. Webb, III, Howard A. Wintner and John R. Cahill of counsel), for appellant in the first above-entitled proceeding.
    The Court below failed to follow controlling precedent of this Court and misconstrued the Insurance Law. (Matter of Vanguard Ins. Co. [Polchlopek], 18 NY2d 376; Matter of Sentry Ins. Co. [Amsel], 36 NY2d 291; Matter of Allstate Ins. Co. [Walsh], 115 Mise 2d 907, 99 AD2d 987; Matter of Transport Ins. Co. v Tedesco, 147 AD2d 936; Matter of Empire Mut. Ins. Co. v Calzone, 48 AD2d 787; Home Indem. Co. v Allwood, 122 Misc 2d 757; CountryWide Ins. Co. v Rodriguez, 55 NY2d 162, 457 US 1118; Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451.)

      Weinstein & Chayt, P. C, Brooklyn (Maurice Chayt of counsel), for respondent in the first above-entitled proceeding.
    I. Since appellant’s policy contains language which affords both the minimum amount and kind of coverage required in other States of the union, this Court should affirm the order below. (Bronx Sav. Bank v Weigandt, 1 NY2d 545; Muller v Sun Indem. Co., 302 NY 634; Matter of Allstate Ins. Co. [Walsh], 115 Misc 2d 907, 99 AD2d 987; Matter of Vanguard Ins. Co. [Polchlopek], 18 NY2d 376; Matter of Metropolitan Prop. & Liab. Ins. Co. v Falkovitz, 73 NY2d 798.) II. The legislative intent was to comprehensively protect traveling New York motorists. (Allcity Ins. Co. v Williams, 120 AD2d 1; Montgomery v Daniels, 38 NY2d 41; Matter of Sabot v Lavine, 42 NY2d 1068; Country-Wide Ins. Co. v Rodriguez, 55 NY2d 162.) III. It is the position of the Second Department which is consistent with legislative intent. (Matter of Sentry Ins. Co. [Amsel], 36 NY2d 291; Smith v Nationwide Mut. Ins. Co., 145 Misc 2d 318; Matter of Transport Ins. Co. v Tedesco, 147 AD2d 936; Matter of Empire Mut. Ins. Co. v Calzone, 48 AD2d 787; Home Indem. Co. v Allwood, 122 Misc 2d 757.)

      Stephen B. Toner, New York City, for New York State Trial Lawyers Association, Inc., amicus curiae in the first above-entitled proceeding.
    Section 5103 (e) of the New York State Insurance Law and the purpose and intent of the Legislature in enacting said legislation should be the determining factor in the analysis and resolution of the amount of the uninsured motorist insurance coverage afforded under the policy issued by appellant. (Molina v Games Mgt. Servs., 58 NY2d 523; Collins v Travelers Ins. Co., 105 Misc 2d 732; Country-Wide Ins. Co. v Rodriguez, 55 NY2d 162; Matter of Allstate Ins. Co. [Walsh], 115 Misc 2d 907; Allcity Ins. Co. v Williams, 120 AD2d 1.)

      Alexander J. Wulwick, New York City, and Roura & Me-lamed, New York City, for appellant in the second above-entitled proceeding.
    New York’s Insurance Law and the regulations promulgated thereunder incorporate the law of New Jersey into appellant’s New York insurance contract. Accordingly, since New Jersey law does not require contact in a hit- and-run automobile accident, appellant is entitled to arbitration of his claim under the uninsured motor vehicle endorsement of his policy. (Matter of Aetna Cas. & Sur. Co. v Smith, 100 AD2d 751; Allcity Ins. Co. v Williams, 120 AD2d 1; Molina v Games Mgt. Servs., 58 NY2d 523; Smith v Nationwide Mut. Ins. Co., 145 Misc 2d 318; Matter of American Tr. Ins. Co. v Abdelghany, 173 AD2d 611; Country-Wide Ins. Co. v Rodriguez, 55 NY2d 162, 457 US 1118; Matter of Allstate Ins. Co. [Richards] 148 Misc 2d 759.)

      Steven J. Smetana, New York City, and Michael Seltzer for respondent in the second above-entitled proceeding.
    Where an accident with an unidentified motor vehicle, in which there was no contact between the vehicles, occurred in New Jersey, substantive additional coverage is not to be incorporated into the terms of the insurance contract which are clear on their face and follow the substantive law of New York. (Matter of Allstate Ins. Co. [Walsh] 115 Misc 2d 907, 99 AD2d 987; Allcity Ins. Co. v Williams, 120 AD2d 1; Smith v Nationwide

      Mut. Ins. Co., 145 Misc 2d 318; Country-Wide Ins. Co. v Rodriguez, 55 NY2d 162; Matter of Allstate Ins. Co. [Richards], 148 Misc 2d 759; Allstate Ins. Co. v Siano, 726 F Supp 422.)
   OPINION OF THE COURT

Hancock, Jr., J.

The question in these proceedings to stay arbitration is whether Insurance Law § 5103 (e) and the implementing Insurance Department regulation (11 NYCRR 60-1.1 [e]) require that every New York automobile insurance policy must provide the minimum uninsured motorist coverage mandated by the law of another State when the insured automobile is involved in an accident in that State. We conclude that New York law requires such coverage. Accordingly, the order of the Appellate Division in Matter of American Tr. Ins. Co. v Abdelghany (173 AD2d 611) should be affirmed and the order of the Appellate Division in Atlantic Mut. Ins. Co. v Finker (179 AD2d 575) should be reversed, and the petition dismissed.

Matter of American Tr. Ins. Co. v Abdelghany

Respondent Sayed Abdelghany, a New York resident, was involved in an automobile accident with an uninsured motor vehicle in New Jersey. At the time of the accident, Abdelghany’s car was insured in New York under a policy issued by American Transit Insurance Co. (ATIC) which contained the standard provision limiting uninsured motorist coverage to "accidents which occur within the State of New York” (emphasis added). After ATIC denied coverage for the out-of-State accident, Abdelghany demanded arbitration. ATIC then commenced this proceeding to stay arbitration. Supreme Court, relying on this Court’s decision in Matter of Sentry Ins. Co. (Amsel) (36 NY2d 291), originally granted the petition. Upon Abdelghany’s motion to renew and vacate, however, Supreme Court granted renewal, vacated its original decision and denied the stay. The Appellate Division, Second Department, affirmed, holding that pursuant to Insurance Law § 5103 (e) and the Superintendent's regulations "the minimum coverage required by New Jersey must be read into the New York policy” (Matter of American Tr. Ins. Co. v Abdelghany, supra, at 613). This Court granted leave to appeal.

Matter of Atlantic Mut. Ins. Co. v Finker

Respondent Finker, also a New York resident, alleges that while he was driving his car in New Jersey he was cut off by another, unidentified vehicle which, although it did not make contact, caused his car to leave the road and overturn. At the time of the accident, Finker’s car was insured under a New York policy issued by Atlantic Mutual Insurance Co. (AMIC) containing the standard uninsured motorist endorsement covering "hit and run” accidents.

New York Insurance Law § 5217 requires "physical contact” for uninsured motorist coverage protection. Finker alleges, and AMIC does not dispute, that New Jersey law — in exact contradiction to the New York rule — expressly commands that uninsured motorist coverage be provided without the need to show physical contact (see, NJ Stat Annot § 17:28-1.1 [e] [2] [c]; Perez v American Bankers Ins. Co., 81 NJ 415, 418-419). AMIC denied coverage for the out-of-State accident because Finker’s vehicle was not hit and, under the policy as construed in New York, the uninsured motorist’s endorsement did not apply. When Finker demanded arbitration, AMIC brought this proceeding for a stay. Supreme Court granted the stay on "constrain[t]” of First Department case law (see, Matter of Allstate Ins. Co. [Walsh], 99 AD2d 987, affg 115 Misc 2d 907), but noted that it would have preferred to follow the reasoning of the Second Department (see, Allcity Ins. Co. v Williams, 120 AD2d 1). The Appellate Division, First Department, affirmed and granted leave to appeal.

Discussion

New Jersey mandates that policies written in that State provide uninsured motorist coverage. We must decide whether New York law requires that New York policies insuring vehicles operating in New Jersey must be deemed to include the minimum uninsured motorist coverage which the parties concede is required by New Jersey. As these cases demonstrate, the departments of the Appellate Division have split on this question (see, Allcity Ins. Co. v Williams, supra; Matter of Allstate Ins. Co. [Walsh], supra; see also, Matter of Transport Ins. Co. v Tedesco, 147 AD2d 936 [4th Dept]).

The plain language of Insurance Law § 5103 (e) and the departmental regulation (11 NYCRR 60-1.1 [e]) support the insureds’ claims that there should be coverage. Section 5103 (e) provides that "[e]very owner’s policy of liability insurance issued * * * shall also provide, when a motor vehicle covered by such policy is used or operated in any other state * * * insurance coverage for such motor vehicle at least in the minimum, amount required by the laws of that state” (emphasis added). Although the legislative history of section 5103 is not extensive, it demonstrates that the purpose was to assure that the carriers provide not only the amount of coverage but "that type of coverage minimally required by the state in which [the insured] is visiting” (Transcript, Senate Session [Feb. 12, 1973], Tape 3, Bill Jacket, L 1973, ch 13 [emphasis added]). The regulation implementing the statute (11 NYCRR 60-1.1 [e]) specifies that policies must "provide at least the minimum amount and kind of coverage which is required in such cases under the laws of such other jurisdiction” (emphasis added), and the Department’s interpretation of the statute is entitled to deference (see, Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451, 457-458).

From the foregoing, we conclude that the statutory and regulatory scheme contemplates that the New Jersey requirements for uninsured motorists coverage should be incorporated into these New York contracts (see, Allcity Ins. Co. v Williams, 120 AD2d 1, 4-6, supra). As this Court observed in Country-Wide Ins. Co. v Rodriguez (55 NY2d 162), Insurance Law § 5103 (e) (former § 672 [5]) is part of the no-fault legislative scheme "reflect[ing] a felt need to provide a more adequate and efficient system of financial responsibility for compensating victims of automobile accidents * * * It therefore would be unthinkable to assume that our legislators were not conscious of and concerned with the hazards the owners and other occupants of New York automobiles would face when they ventured into States * * * whose laws specified different, and perhaps higher, minimum liability levels” (id., at 166-167 [emphasis added]).

The insurers, however, maintain that the Insurance Law and the implementing regulation do not specifically require coverage and that holding that section 5103 (e) requires them to provide out-of-State uninsured motorist coverage in the circumstances here would be contrary to this Court’s decision in Matter of Sentry Ins. Co. (Amsel) (36 NY2d 291, supra). We disagree. Sentry did not concern the interpretation of section 5103 (e) but a different section of the Insurance Law (former § 167 [2-a], recodified as § 3420 [¶] [2]). Former section 167 (2-a) required uninsured motorist coverage for injuries "caused by accident[s] occurring in this state” (emphasis added). Notably, the former section did not contain a provision analogous to that now present in section 5103 (e) requiring coverage equivalent to that mandated by the foreign State where the accident occurs. The Court in Sentry simply concluded that nothing in the language or history of former section 167 (2-a) suggested that the words "in this state” should be read as requiring coverage for accidents outside the State (id., at 295). Significantly, in the Sentry appeal the parties made no reference to and this Court did not consider the predecessor to Insurance Law § 5103 (e) (former § 672 [5]) (see, 1975 [vol 12] NY Ct App Cases & Briefs 3984). Indeed, the section was not adopted until after the cause of action in that case accrued.

The insurers also contend that compelling them to provide coverage for their insureds in these cases would be inconsistent with Insurance Law § 3420 (f) (2) which permits an insured to obtain optional uninsured motorist coverage providing insurance protection for out-of-State accidents in any foreign State. The argument is illogical. Permitting optional uninsured motorist coverage for accidents in all foreign States, including those which do not require such coverage, is in no way inconsistent with a provision mandating uninsured motorist coverage only in those States which do require it.

There is no merit to the insurers’ further argument that section 5103 (e) imposes an obligation to provide insurance not in like kind but only in like amount to that provided by the State where the accident occurs. As noted, such interpretation is in obvious conflict with the express requirement of the implementing regulation (11 NYCRR 60-1.1 [e]) that a New York policy provide "at least the minimum amount and kind of coverage” (id. [emphasis added]) required by the jurisdiction where the accident happens.

In sum, we hold that New York law requires insurers to provide the minimum uninsured motorist coverage prescribed by the laws of the State in which the accident occurred. The purpose of Insurance Law § 5103 (e) is to protect New York insureds by assuring that, notwithstanding any New York law to the contrary, the minimum insurance coverage required under the laws of the situs of the accident will apply. To accept the insurers’ arguments here would defeat the salutary concept of section 5103 (e), i.e., looking to the laws of other jurisdictions if those jurisdictions require "different, and perhaps higher, minimum liability levels” (Country-Wide Ins. Co. v Rodriguez, 55 NY2d 162, 167, supra).

The order in Matter of American Tr. Ins. Co. v Abdelghany (173 AD2d 611, supra) should be affirmed, with costs, and the order in Atlantic Mut. Ins. Co. v Finker (179 AD2d 575, supra) should be reversed, with costs, and the petition dismissed.

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

In Matter of American Tr. Ins. Co. v Abdelghany: Order affirmed, with costs.

In Matter of Atlantic Mut. Ins. Co. v Finker: Order reversed, with costs, and petition dismissed.

        . Section 3420 (f) (2) provides, in pertinent part: "Any such policy shall, at the option of the insured, also provide supplementary uninsured motorists insurance * * * provid[ing] coverage, in any state or Canadian province”.

      . Contrary to the insurers’ contention, no basis exists for distinguishing Country-Wide on the ground that it involves liability insurance while the cases here involve the uninsured motorist endorsement. An uninsured motorist endorsement is a kind of protection afforded in a liability policy. In fact, New York expressly requires all liability policies to contain a form of uninsured motorist protection (see, Insurance Law § 3420 [f| [1]).