author: Jones, J.

text:
    G. B. Kent & Sons, Ltd., Appellant, v Helena Rubinstein, Inc., Respondent.
    Argued June 8, 1979;
    decided July 10, 1979

      POINTS OF COUNSEL

      James L. Dooley, Washington D. C., admitted on motion pro hac vice, for appellant.
    I. The "erroneous date” rule, that a termination notice which erroneously identifies the termination date is nevertheless sufficient to terminate as of the first proper termination date, is only applicable to situations wherein the only object or purpose of the notice is to advise the recipient that the person giving the notice intends to terminate the contract. (Lyon v Pollard, 20 Wall [87 US] 403; All States Serv. Sta. v Standard Oil Co. of N. J., 120 F2d 714; Shain v Washington Nat. Ins. Co., 308 F2d 611.) II. Even if the erroneous date rule can be properly applied in some instances where the notice of termination has objects or purposes other than simple notification, it cannot be applied when, as here, doing so would deprive the recipient of a right to make an election guaranteed by the underlying agreement, III. When Rubinstein refused to amend and correct the communication of September 16, 1971, so as to make it a proper notice under paragraph 13 (a), it thereby waived its right to claim the benefits of the "erroneous date” rule. (People ex rel. McLaughlin v Board of Police Comrs. of City of Yonkers, 174 NY 450; Matter of Cooper, 93 NY 507.)

      Robert E. Anderson for respondent.
    I. Rubinstein’s written notices to Kent clearly and unequivocally terminated the agreement as of December 31, 1972. (Simon v Electrospace Corp., 28 NY2d 136; Lyon v Pollard, 20 Wall [87 US] 403; Shain v Washington Nat. Ins. Co., 308 F2d 611; Custen v Robison, 180 App Div 384; Gallo v Mayor of City of N. Y., 15 App Div 61; Matter of Theatre Festival v Moses, 16 Misc 2d 258; All States Serv. Sta. v Standard Oil Co. of N. J., 120 F2d 714.) II. Kent does not fall within its proffered exception to the "erroneous date” rule. (Shain v Washington Nat. Ins. Co., 308 F2d 611; All States Serv. Sta. v Standard Oil Co. of N. J., 120 F2d 714; Kotcher v Edelblute, 250 NY 178.) III. There has been no waiver of the "erroneous date” rule by Rubinstein.
   OPINION OF THE COURT

Jones, J.

The erroneous date rule — that a termination notice which erroneously identifies the termination date is nonetheless sufficient to effect a termination as of the first proper termination date — is applicable notwithstanding that termination triggered certain option rights in the recipient of the notice, at least where there is no proof that the application of the rule would impose any substantial forfeiture or prejudice.

In their 1965 agreement Kent granted Rubinstein a worldwide license to manufacture and sell men’s toiletries under the names and marks "Kent” and "Kent of London”. Royalty provisions called for payment of minimum semiannual installments at the end of June and December in each year until the agreement was terminated. Rubinstein was given the right to terminate the agreement as of December 31, 1971 or at the end of any succeeding calendar year by giving Kent one year’s notice in writing. In the event of such termination the agreement provided that Kent would abstain from all usage of the licensed marks for a period of two years following the date of termination. The agreement went on, however, to give Kent an alternative option to elect to use the marks after termination of the agreement on payment to Rubinstein of a grant-1 back royalty for a period of five years. This option was to be exercised by Kent, if at all, in writing not later than 60 days after receipt of notice of termination from Rubinstein.

Their arrangement did not prove to be the commercial success for which the parties had hoped. Meetings were held but attempts to work out new arrangements were fruitless. Rubinstein accordingly ceased manufacture of Kent products in late 1968 and closed out its inventory in 1969. Rubinstein continued to pay the specified minimum royalties on schedule through the semiannual installment due on December 31, 1971.

On September 16, 1971 Rubinstein sent Kent a letter stating in pertinent part: "As we have previously advised you, the relationship between Rubinstein and Kent will terminate when the contract expires on December 31, 1971 and our next payment of the minimum royalty installment will be the last payment due Kent under our Agreement.” Kent denied that it had received any prior notification of termination as of December 31, 1971 and invited attention to the requirement that one year’s notice of termination be given.

When further communications between the parties extending over several years did not resolve their differences, in March, 1975 Kent brought the present action. Rubinstein moved for partial summary judgment declaring that the agreement between the parties was terminated not later than December 31, 1972. Kent cross-moved for partial summary judgment declaring that the agreement continued in force through December 31, 1973. Supreme Court granted partial summary judgment to Rubinstein, denied partial summary judgment to Kent, and severed the remaining claims for trial. The Appellate Division affirmed and we granted leave to appeal. There should be an affirmance.

The disposition of this appeal turns on whether the erroneous date rule was properly applied by both courts below in the circumstances of this case. The rule had its origin in Lyon v Pollard (20 Wall [87 US] 403) and has received continuing if only occasional recognition (e.g., Shain v Washington Nat. Ins. Co., 308 F2d 611; All States Serv. Sta. v Standard Oil Co. of N. J., 120 F2d 714, 715). The application of the rule in the present instance would mean, as the courts below have held, that while Rubinstein’s September 16, 1971 letter purporting to give notice of a December 31, 1971 termination, because of the one-year notice requirement, could not be given effect according to its terms, it was effective to terminate the agreement as of December 31, 1972, the first permissible termination date.

Appellant Kent recognizes the general rule but urges that an exception is to be made when the application of the rule would inflict a forfeiture or work prejudice to the recipient of the notice. It relies principally on Oldfield v Chevrolet Motor Co. (198 Iowa 20), a case which does not involve the erroneous date rule but presents only an aspect of the law of damages and in any event was significantly limited in Harrington v Bremer County Farmers Mut. Fire Ins. Assn. (203 Iowa 282).

We do not find it necessary or appropriate, however, now to determine whether, as urged by Kent, the erroneous date rule is inapplicable where it is shown that its application would work a forfeiture or other prejudice or that there were other equitable considerations which should preclude its application. The present case was submitted to Supreme Court on cross motions for summary judgment; thus the parties agree that there are no factual issues to be determined and join in application for judicial resolution of their differences on the basis of their submissions made on the motions (cf. Kuehne & Nagel v Baiden, 36 NY2d 539, 544). In that procedural posture the courts below were presented only with the agreement itself which concededly granted Kent certain option rights for a 60-day period following its receipt of a notice of termination from Rubinstein and the bare statement in the affidavit of Kent’s director-secretary that had Kent known of the effective date of termination it "could have proceeded” to exercise its option rights. There was, however, no doubt as to the date of receipt of the notice of termination, the event which triggered the option. More important there was no proof (or even conclusory assertion) that Kent would in fact ever have exercised its rights under the option or that the application of the erroneous date rule would result in a forfeiture of substantial rights or otherwise prejudice Kent. There was only proof that Kent had option rights. To accept Kent’s argument in this case would be to carve out an exception to the erroneous date rule whenever provision is made for rights contingent on termination or receipt of notice thereof without the necessity of any proof that the rights had substance or that to invoke the general rule would result in forfeiture or other prejudice. No authority is cited for such an extreme position, and no error was committed by the courts below when they rejected Kent’s arguments.

We have also considered Kent’s further contention that Rubinstein waived its right to claim the benefit of the erroneous date rule and find it to be without merit.

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

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

Order affirmed.


source: Caselaw Access Project

author: Chief Judge Cooke.

license: Public Domain

text:
    In the Matter of Robert S. Fink, Appellant-Respondent, v Louis J. Lefkowitz, as Attorney-General, Respondent-Appellant.
    Argued May 30, 1979;
    decided July 10, 1979

      POINTS OF COUNSEL

      Leonard R. Rosenblatt for appellant-respondent.
    The New York Freedom of Information Law requires that the records sought herein be disclosed upon request. (NLRB v Sears, Roebuck & Co., 421 US 132; Open Amer. v Watergate Special Prosecution Force, 547 F2d 605; Morton-Norwich Prods. v Mathews, 415 F Supp 78; Planning Research Corp. v Federal Power Comm., 555 F2d 970; Charles Riv. Park "A” v Department of Housing & Urban Dev., 519 F2d 935; Zuckerman y New York State Bd. of Parole, 53 AD2d 405; Hawkes v Internal Revenue Serv., 467 F2d 787, 507 F2d 481; Stokes v Brennan, 476 F2d 699; City of Concord v Ambrose, 333 F Supp 958.)

      Charles J. Hynes, Deputy Attorney-General. (Arthur Weinstein of counsel), for respondent-appellant.
    The Freedom of Information Law exempts from disclosure those portions of the Special Prosecutor’s Office Manual which describe specialized investigative techniques and procedures. (NLRB v Robbins Tire & Rubber Co., 437 US 214; Frankel v Securities & Exch. Comm., 460 F2d 813; Church of Scientology of N. Y. v State of New York, 61 AD2d 942, 46 NY2d 906; City of

      Concord v Ambrose, 333 F Supp 958; Cox v United States Dept. of Justice, 576 F2d 1302; Hawkes v Internal Revenue Serv., 507 F2d 481; United States v Imbrunone, 379 F Supp 256; Chamberlain v Alexander, 419 F Supp 235; Stokes v Brennan, 476 F2d 699; National Public Radio v Bell, 431 F Supp 509.)
   OPINION OF THE COURT

Chief Judge Cooke.

Petitioner commenced this proceeding to compel release of the office manual of the Deputy Attorney-General and Special Prosecutor for Nursing Homes pursuant to the Freedom of Information Law (Public Officers Law, art 6). The issue posed is whether certain portions of the manual that reveal confidential methods used for investigating nursing home fraud are exempt from disclosure pursuant to section 87 (subd 2, par [e], cl iv) of the Public Officers Law.

In 1974, amid widespread reports of patient abuse, Medicaid fraud and inadequate governmental supervision of the nursing home industry in the State, the Commissioners of the Departments of Health and Social Services requested the Attorney-General to investigate and prosecute offenses committed in connection with the operation of these health care facilities. Early the following year, Charles J. Hynes was appointed Deputy Attorney-General and Special Prosecutor to lead this investigation into "the rampant corruption in nursing homes” (Matter of Hynes v Moskowitz, 44 NY2d 383, 396). Subsequently, on February 7, 1975, the Governor promulgated an executive order (9 NYCRR 3.4) pursuant to subdivision 8 of section 63 of the Executive Law significantly expanding the jurisdiction of the Special Prosecutor, directing him to investigate "criminal violations committed in connection with or in any way related to the management, control, operation, or funding of any nursing home” (see Matter of Sigety v Hynes, 38 NY2d 260, 263-265, cert den 425 US 974).

Shortly after taking office, the Special Prosecutor compiled a comprehensive office manual entitled "Materials on the Nursing Home Investigation” for the use of his staff. The first three chapters of the manual provided an overview of the nursing home industry, chronicling past abuses which necessitated creation of the office of the Special Prosecutor and explaining the Medicaid reimbursement system. Chapter IV contained a step-by-step guide to an investigation and audit of a nursing home, including specific illustrations of some of the techniques and procedures which had proven successful in detecting nursing home fraud. The final chapter contained a "sample nursing home investigation”, featuring the audit and investigative reports that had lead to a successful prosecution by the Deputy Attorney-General.

On February 11, 1977, petitioner, an attorney for several nursing homes, requested a copy of the manual pursuant to the former version of the Freedom of Information Law (L 1974, chs 578-580). Upon refusal of respondent to disclose the manual, this article 78 proceeding was commenced. Special Term conducted an in camera inspection of the documents and found them to be within the definition, of disclosable "administrative staff manuals and instructions to staff that affect members of the public” provided by former section 88 (subd 1, par e) of the Public Officers Law. In so holding, the court rejected respondent’s assertion that the manual was exempt from disclosure as "part of investigatory files compiled for law enforcement purposes” (former Public Officers Law, § 88, subd 7, par d [L 1974, ch 579, § 3]).

While respondent’s appeal was pending before the Appellate Division, there occurred a number of developments which significantly altered the posture of the case. Although the order of Special Term had been statutorily stayed pending appeal (CPLR 5519, subd [a], par 1), respondent voluntarily disclosed the first three chapters of the manual as well as substantial portions of chapter IV. In addition, petitioner was informed that the manual had been revised and was furnished with the new pages corresponding to those materials previously disclosed. Most significant, effective January 1, 1978, the Legislature re-enacted the Freedom of Information Law (L 1977, ch 933), clarifying what were perceived to be troublesome areas in the prior law. Both sides agree that the current version of the statute governs resolution of the questions presented on this appeal.

The Appellate Division modified the order of Special Term, concluding that chapter V of the manual and the still undisclosed portions of chapter IV were exempt from disclosure (63 AD2d 569, 571). Both sides appealed to this court: petitioner as of right (CPLR 5601, subd [a]); respondent, seeking to withhold an additional four and one-half pages of chapter IV ordered disclosed by the Appellate Division, by permission of that court (CPLR 5602, subd [a], par 1, cl [i]).

Crucial to the determination of this case is an appreciation of the function of the documents petitioner seeks in the context of the purpose and operation of the Freedom of Information Law. That act, of course, proceeds under the premise that the public is vested with an inherent right to know and that official secrecy is anathematic to our form of government. Thus, the statute affords the public the means to attain information concerning the day-to-day operations of State government. By permitting access to official information long shielded from public view, the act permits the electorate to have sufficient information in order to make intelligent, informed choices with respect to both the direction and scope of governmental activities (see Public Officers Law, § 84). Moreover, judicious use of the provisions of the law can be a remarkably effective device in exposing waste, negligence and abuses on the part of government; in short, "to hold the governors accountable to the governed” (NLRB v Robbins Tire & Rubber Co., 437 US 214, 242).

But while the Legislature established a general policy of disclosure by enacting the Freedom of Information Law, it nevertheless recognized a legitimate need on the part of government to keep some matters confidential. To be sure, the balance is presumptively struck in favor of disclosure, but in eight specific, narrowly constructed instances where the governmental agency convincingly demonstrates its need, disclosure will not be ordered (Public Officers Law, § 87, subd 2). Thus, the agency does not have carte blanche to withhold any information it pleases. Rather it is required to articulate particularized and specific justification and, if necessary, submit the requested materials to the court for in camera inspection, to exempt its records from disclosure (see Church of Scientology of N. Y. v State of New York, 46 NY2d 906, 908). Only where the material requested falls squarely within the ambit of one of these statutory exemptions may disclosure be withheld.

Respondent seeks to avoid disclosure of portions of its office manual, claiming that it has the right to "deny access to records or portions thereof that: * * * are compiled for law enforcement purposes and which, if disclosed, would: * * * reveal criminal investigative techniques or procedures, except routine techniques and procedures” (Public Officers Law, § 87, subd. 2, par [e], cl iv). The purpose of this exemption is obvious. Effective law enforcement demands that violators of the law not be apprised of the nonroutine procedures by which an agency obtains its information (see Frankel v Securities & Exch. Comm., 460 F2d 813, 817, cert den 409 US 889). However beneficial its thrust, the purpose of the Freedom of Information Law is not to enable persons to use agency records to frustrate pending or threatened investigations nor to use that information to construct a defense to impede a prosecution.

To be distinguished from agency records compiled for law enforcement purposes which illustrate investigative techniques, are those which articulate the agency’s understanding of the rules and regulations it is empowered to enforce. Records drafted by the body charged with enforcement of a statute which merely clarify procedural or substantive law must be disclosed. Such information in the hands of the public does not impede effective law enforcement. On the contrary, such knowledge actually encourages voluntary compliance with the law by detailing the standards with which a person is expected to comply, thus allowing him to conform his conduct to those requirements (see Stokes v Brennan, 476 F2d 699, 702; Hawkes v Internal Revenue Serv., 467 F2d 787, 794-795; Davis, Administrative Law [1970 Supp], § 3A, p 114).

Indicative, but not necessarily dispositive, of whether investigative techniques are nonroutine is whether disclosure of those procedures would give rise to a substantial likelihood that violators could evade detection by deliberately tailoring their conduct in anticipation of avenues of inquiry to be pursued by agency personnel (see Cox v United States Dept. of Justice, 576 F2d 1302, 1307-1308; City of Concord v Ambrose, 333 F Supp 958). It is no secret that numbers on a balance sheet can be made to do magical things by those so inclined. Disclosing to unscrupulous nursing home operators the path that an audit is likely to take and alerting them to items to which investigators are instructed to pay particular attention, does not encourage observance of the law. Rather, release of such information actually countenances fraud by enabling miscreants to alter their books and activities to minimize the possibility of being brought to task for criminal activities. In such a case, the procedures contained in an administrative manual are, in a very real sense, compilations of investigative techniques exempt from disclosure. The Freedom of Information Law was not enacted to furnish the safecracker with the combination to the safe.

Tested by these criteria, and after an in camera inspection of the documents withheld by respondent, we find that the information petitioner seeks on its direct appeal should not be disclosed. Chapter V of the Special Prosecutor’s manual provides a graphic illustration of the confidential techniques used in a successful nursing home prosecution. None of those procedures are "routine” in the sense of fingerprinting or ballistic tests (see Senate Report No. 93-1200, 93 Cong 2d Sess [1974]). Rather, they constitute detailed, specialized methods of conducting an investigation into the activities of a specialized industry in which voluntary compliance with the law has been less than exemplary. Similarly, the portions of chapter IV of the manual ordered withheld by the Appellate Division pinpoint numerous factors which should alert an investigator that something is awry. To permit disclosure of these time-tested techniques which have led to numerous successful prosecutions would have a dramatic impact on law enforcement investigations by alerting prospective defendants to the course those inquiries would be likely to take. An unscrupulous nursing home operator aware of these factors would naturally try to channel irregularities into other avenues or erect obstacles in the path of investigation.

These same considerations apply with equal force to page 305 and the last item on page 336 and page 337 of the manual, which are the subject of respondent’s cross appeal. Disclosure of the techniques enumerated in those pages would enable an operator to tailor his activities in such a way as to significantly diminish the likelihood of a successful prosecution. The information detailed on pages 481 and 482 of the manual, on the other hand, is merely a recitation of the obvious: that auditors should pay particular attention to requests by nursing homes for Medicaid reimbursement rate increases based upon projected increases in cost. As this is simply a routine technique that would be used in any audit, there is no reason why these pages should not be disclosed.

Accordingly, the order of the Appellate Division should be modified, with costs to respondent, by affirming so much of that order encompassed by petitioner’s appeal, and reversing so much of that order as directed respondent to disclose page 305 and the last item on page 336 and page 337 of the office manual of the Deputy Attorney-General and Special Prosecutor for Nursing Homes.

Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Order modified, with costs to the respondent, in accordance with the opinion herein and, as so modified, affirmed.

       The legislative history of the Freedom of Information Law indicates that many of its provisions, including the exemption at issue here, were patterned after the Federal analogue (US Code, tit 5, § 552, subd [b], par [7], cl [E]; see letters of Senators Anderson and Marino, Governor’s Bill Jacket to S 16-A). Accordingly, Federal case law and legislative history on the scope of this exemption are instructive.


author: Fuchsberg, J.

text:
    Mount Vernon Fire Insurance Company, Appellant, v Travelers Indemnity Company et al., Respondents.
    Argued May 29, 1979;
    decided July 3, 1979

      POINTS OF COUNSEL

      Martin S. Rothman, Richard Godosky and Robert B. Marcus for appellant.
    I. Contrary to the decision of the court below, subdivision 4 of section 388 of the Vehicle and Traffic Law has no application to Mount Vernon’s excess liability insurance policy which was a wholly private and voluntary contractual agreement beyond the reach of any statutory or public policy imposition. (Continental Auto Lease Corp. v Campbell, 19 NY2d 350; Motor Vehicle Acc. Ind. Corp. v Continental Nat. Amer. Group Co., 35 NY2d 260; Richard’s Serv. Sta. v Town of Huntington, 79 Misc 2d 834, 47 AD2d 963; Matter of Hogan v Culkin, 18 NY2d 330; Rankin v Shanker, 23 NY2d 111; Gaden

      v Gaden, 29 NY2d 80; Ansonia Brass & Copper Co. v New Lamp Chimney Co., 53 NY 123, 91 US 656; Harlem Gas-Light Co. v City of New York, 33 NY 309; People ex rel. Urban Water Supply Co. v Connolly, 164 App Div 163; People ex rel. Westchester Fire Ins. Co. v Davenport, 91 NY 574.) II. By nullifying the exclusionary provision in Mount Vernon’s excess policy, the court below voided a key provision therein and in a very basic sense impermissibly rewrote the policy and imposed upon Mount Vernon a contractual obligation which it did not undertake. (Laba v Carey, 29 NY2d 302; Sommer v Guardian Life Ins. Co. of Amer., 281 NY 508; Whiteside v North Amer. Acc. Ins. Co. of Chicago, 200 NY 320; State Farm Mut. Ins. Co. v Westlake, 35 NY2d 587; Mandels v Liberty Mut. Ins. Co., 60 AD2d 864; Miller v American Eagle Fire Ins. Co., 253 NY 64; Liverpool & London Ins. Co. v Gunther, 116 US 113; Gunther v Liverpool Ins. Co., 134 US 110; Mead v North-western Ins. Co., 7 NY 530; Brustein v New Amsterdam Cas. Co., 255 NY 137.) III. Mount Vernon’s exclusionary provision tracked Insurance Department regulation 11 NYCRR 60.2 (c) and was proper and reasonable. It should not have been voided. (Ostrer v Schenck, 41 NY2d 782; Breen v Cunard Lines S. S. Co., 33 NY2d 508; Matter of Lezette v Board of Educ., 35 NY2d 272; Matter of Howard v Wyman, 28 NY2d 434.) IV. The voiding of Mount Vernon’s exclusionary provision was an unconstitutional impairment of contract and violated section 10 of article I of the United States Constitution, and the due process guarantees of the Fifth and Fourteenth Amendments of the United States Constitution and section 6 of article I of the New York State Constitution. (State Farm Mut. Auto. Ins. Co. v Westlake, 35 NY2d 587; Mandels v Liberty Mut. Ins. Co., 60 AD2d 864.) V. The cases cited in the majority opinion below are distinguishable from the facts at bar. (Wheeler v Piscina, 277 App Div 1014; Rosado v Eveready Ins. Co., 34 NY2d 43.)

      William A. Prinsell for Travelers Indemnity Company, respondent.
    I. The language of subdivision 4 of section 388 of the Vehicle and Traffic Law is unambiguous and internally consistent and must be given the effect literally set forth in its terms. The exclusion relied on by Mount Vernon is in conflict with the statute and void. (New Amsterdam Cas. Co. v Stecker, 3 NY2d 1; Patrolmen’s Benevolent Assn. of City of N. Y. v City of New York, 41 NY2d 205; Rosado v Eveready Ins. Co., 34 NY2d 43; General Mut. Ins. Co. v Sun Ins. Co. of

      N. Y., 24 AD2d 135; Wheeler v Piscina, 277 App Div 1014.) II. Mount Vernon’s contention that its so-called "excess” policy incorporates by reference the Travelers policy operates to make the Mount Vernon policy subject to the same coverage and limitations as is provided by the Travelers policy. III. There is no proper constitutional issue raised since all policies issued by insurance carriers within the State of New York must comply with the requirement of the law, i.e., section 388 of the Vehicle and Traffic Law, section 167 of the Insurance Law and the general public policy of the State as expressed by the Legislature in those statutes. (Veix v Sixth Ward Assn., 310 US 32; California Auto. Assn. v Maloney, 341 US 105.)

      James A. Magee for Smolowitz Brothers Van Lines, Inc., respondent.
    I. The exclusion clause contained in the Travelers liability policy is contrary to law and therefore a nullity. (Matter of Rothko, 43 NY2d 305.) II. Since the exclusion clause in Travelers liability policy fails by operation of law, it cannot be resurrected in Mount Vernon’s policy. (Miller v Continental Ins. Co., 40 NY2d 675; Sperling v Great American Ind. Co., 7 NY2d 442; Graves v Public Serv. Mut. Ins. Co., 5 NY2d 120.)

      Bernard Meyerson and Samuel Spevack for Gino Trotta, respondent.
    I. The argument of appellant that the premium paid by Smolowitz Brothers procured no insurance and was nothing more than a donation to the welfare of Mount Vernon Insurance Company is not supported by the authorities. (Rosado v Eveready Ins. Co., 34 NY2d 43; General Mut. Ins. Co. v Sun Ins. Co. of N. Y., 24 AD2d 135; Wheeler v Piscina, 227 App Div 1014, 302 NY 689; Matter of Adams [Government Employees Ins. Co.], 52 AD2d 118; Lacks v Fidelity & Cas. Co. of N. Y., 306 NY 357.) II. On the theory advanced by appellant its coverage is primary insurance. (Travelers Ins. Co. v General Acc., Fire & Life Assur. Corp., 28 NY2d 458.) III. There is no clause in the Constitution of the United States or the State of New York that gives an insurance company the right to write insurance policies for which premiums are paid but afford no coverage or to write policies that are contrary to the insurance laws of this State. (California Auto. Assn. v Maloney, 341 US 105; Insurance Co. v Glidden Co., 284 US 151; Home Bldg. & Loan Assn. v Blaisdell, 290 US 398; Brown Co. v Feldman, 256 US 170.)
   OPINION OF THE COURT

Fuchsberg, J.

In this action for a declaratory judgment, we are asked to construe the effect of an excess automobile liability insurance policy clause which incorporates by reference the exclusions contained in the contract for primary coverage issued to the insured by another carrier.

The disputed clause, contained in an agreement for excess coverage entered into between plaintiff Mount Vernon Fire Insurance Company, as insurer, and Smolowitz Brothers Van Lines, Inc., as insured, provided that the risks assumed were subject to "all the conditions, agreements, exclusions and limitations of and shall follow the Primary Insurance in all respects”. The primary policy, issued to the insured by defendant Travelers Indemnity Company, afforded Smolowitz the statutory minimum coverage on each of the seven units of its fleet of trucks and vans; it was expressly inapplicable "while any trailer covered by this policy is used with any [tractor] owned or hired by the insured and not covered by like insurance in the company”.

This suit was precipitated by the pressing of a claim for personal injuries by a third party (Gino Trotta, formally joined here as a party defendant), allegedly incurred when a vehicle he was operating collided with a tractor-trailer tandem rig both sections of which were owned and operated by Smolowitz. At the time of the accident, the tractor and trailer were each expressly covered by the Travelers policy, but only the trailer was included in the Mount Vernon contract.

It was on these conceded facts that Mount Vernon sought a declaration that, though Travelers’ primary coverage of both the tractor and trailer precluded it from invoking the exclusion clause, nevertheless, since the trailer protected by the Mount Vernon excess policy was not being towed by a tractor insured by the same "company”, i.e., Mount Vernon, the exclusionary clause continued to serve to gain it exemption from liability. The Supreme Court, however, was of the view that the exclusionary clause was contrary to the public policy of New York State and entered a judgment to that effect. The Appellate Division, while modifying in respects not relevant to our disposition, declared that Mount Vernon was obligated to indemnify Smolowitz for any judgment within its coverage that exceeded the limits of the Travelers policy (63 AD2d 254). In turn, we now affirm the order of the Appellate Division, but do so solely on the narrower grounds we hereinafter articulate.

Given the exceptionally strong principle of construing exclusions strictly against an insurer, whose form policy language is not only its own but "non-negotiable” as well (Thomas J. Lipton, Inc. v Liberty Mut. Ins. Co., 34 NY2d 356, 361; Sincoff v Liberty Mut. Fire Ins. Co., 11 NY2d 386; 7 Appleman, Insurance Law and Practice, § 4438, p 458), Mount Vernon may not use the clause at issue to gain an exemption for itself where its author — Travelers—would not be entitled to call the clause into play. Manifestly, Travelers, at whose instance and in whose policy the clause was inscribed, can claim no such benefit here, for it insured both tractor and trailer. And, as indicated, the excess policy clause which here is sub judice tells us that the exclusions it incorporates are to "follow” the primary insurance "in all respects”.

If, despite that, Mount Vernon was intended to have the right to resurrect the clause for itself, it would have been a simple matter for it to have said so in so many words, or, indeed, to have reiterated the exclusionary language in its own policy (see Miller v Continental Ins. Co., 40 NY2d 675, 678-679). Absent resort to either of these devices of draftsmanship, it would not have been unreasonable for Smolowitz, the insured to whom Mount Vernon in effect unilaterally addressed its words of incorporation, to assume that, in the circumstances of the primary policy provisions to which it referred, the Mount Vernon language would not create an additional exclusion (cf. Messina v Lufthansa German Airlines, 47 NY2d 111, 114-115; Curtis, A Better Theory of Legal Interpretation, Jurisprudence in Action, pp 155, 156; Holmes, Collected Legal Papers, 203). We therefore conclude that the exclusion clause, in the context in which it here is found, remains dormant or comes to life in accordance with the terms of the primary insurance policy.

This conclusion is also consonant with the result that obtains when the same principle of strict construction is applied to read the phrase “in the company” to mean “in Travelers” so that Mount Vernon would only be able to assert the exemption when the tractor is not covered by like insurance in Travelers. This condition being satisfied, on this score too, Mount Vernon has no ground on which to avoid being held, within the limits of its excess undertaking, to indemnify Smolowitz for the amount of any judgment beyond that embraced by the Travelers policy.

For these reasons, the order appealed from should be affirmed.

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

Order affirmed, with costs.

      . At one time the Mount Vernon excess policy apparently applied to all of the Smolowitz vehicles. However, for reasons not indicated in the record, several months before the accident the policyholder’s only tractor and both of its trailers first were deleted from the policy, and then the particular trailer involved here was reincluded.

      . Mount Vernon’s and Travelers’ coverage were each set out in a "form” policy.

      , In view of the rationale on which we rely for our affirmance on this appeal, we do not reach the question whether such an exclusionary clause, in either a primary or an excess coverage policy, would be invalid as against public policy in New York State.


author: Fuchsberg, J. Jones, J. Meyer, J.

text:
    Carmen Bruno et al., Appellants, v Michael Codd, as Commissioner of the New York City Police Department, et al., Defendants, and Gerald Hecht, as Director of Probation of the City of New York, et al., Respondents.
    Argued June 4, 1979;
    decided July 10, 1979

      POINTS OF COUNSEL

      John W. Corwin, Laurie Woods, Doris Peterson, John E. Kirklin, Nancy E. Biberman and Marjory D. Fields for appellants.
    I. Plaintiffs have a right under New York law to file petitions for orders of protection and to immediately apply to Judges for temporary orders of protection. (Burt v Smith, 181 NY 1; Miller v Stern, 262 App Div 5; Cortese v Connors, 285 App Div 40; Blake v Biscardi, 52 AD2d 834; International Ry. Co. v Barone, 246 App Div 450; Albini v Solork Assoc., 37 AD2d 835.) II. Plaintiffs’ claims in this suit are based upon a showing of a pattern and practice of the violation by probation and clerk personnel of the legal rights of battered women and the responsibility of supervisory probation and clerk defendants for the misconduct of their subordinates. (Jones v State of New York, 33 NY2d 275; Schuster v City of New York, 5 NY2d 75; O’Grady v City of Fulton, 4 NY2d 717; Lubelfeld v City of New York, 4 NY2d 455; Meistinsky v City of New York, 309 NY 998; Flamer v City of Yonkers, 309 NY 114; Wilkes v City of New York, 308 NY 726; Dunham v Village of Canisteo, 303 NY 498; Geltzer v Russell, 49 AD2d 823.) III. Plaintiffs are entitled to the denial of defendants’ motions for dismissal and summary judgment and to a trial on the merits of their claims. (Schuster v City of New York, 5 NY2d 75; Denihan Enterprises v O’Dwyer, 302 NY 451; California Packing Corp. v Kelly Stor. & Distr. Co., 228 NY 49; Weiner v Valentine, 260 App Div 999; Bjelka v Mizeson Realty Co., 146 Misc 1; Matter of Lakeland Water Dist. v Onondaga County Water Auth., 24 NY2d 400; Wolf v Gold, 9 AD2d 257; Kelley v Levitt & Sons, 262 App Div 92; Glick & Dolleck v Tri-Pac

      Export Corp., 22 NY2d 439; Phillips v Kantor & Co., 31 NY2d 307.) IV. Plaintiffs’ right to the denial of defendants’ motions and to a trial on the merits of their claims cannot be defeated by concerns about justiciability or administrative exhaustion. (Matter of Perazzo v Lindsay, 30 AD2d 179, 23 NY2d 764; Jones v Beame, 45 NY2d 402; People ex rel. Wooster v Maher, 141 NY 330; Matter of Walsh v La Guardia, 269 NY 437; Matter of Barry v O’Connell, 303 NY 46; Matter of Guardian Life Ins. Co. of Amer. v Bohlinger, 308 NY 174; Matter of Ciminera v Sahm, 4 NY2d 400; Matter of Barton Trucking Corp. v O’Connell, 7 NY2d 299; Matter of Swalbach v State Liq. Auth. of State of N. Y., 7 NY2d 518; Matter of Perazzo v Lindsay, 30 AD2d 179, 23 NY2d 764.)

      John Eiseman, Michael R. Juviler and Michael Clodner for Family Court clerks, respondents.
    I. The official policies and practices of the Family Court are lawful and are compelled by sound policy considerations. (Matter of Bowne v County of Nassau, 37 NY2d 75; Matter of Muhlhausen v Ray, 89 Misc 2d 298; Matter of Ardis S v Sanford S, 88 Misc 2d 724; Kuehne & Nagel v Baiden, 36 NY2d 539; Orange County Trust Co. v Merchants Acceptance Corp., 279 App Div 689, 811, 303 NY 900; Gaynor v Rockefeller, 15 NY2d 120; James v Board of Educ., 42 NY2d 357; Jones v Beame, 45 NY2d 402; Matter of Abrams v New York City Tr. Auth., 39 NY2d 990.) II. There is no basis for equitable intervention into the operation and management of the New York City Family Court. (Jones v Beame, 45 NY2d 402; James v Board of Educ., 42 NY2d 357; Matter of Abrams v New York City Tr. Auth., 78 Misc 2d 938, 48 AD2d 69, 39 NY2d 990; Central State Bank v Kilroy, 57 AD2d 940; Koppers Co. v Empire Bituminous Prods., 35 AD2d 906, 30 NY2d 609; Manowitz v Senter, 62 AD2d 898; Capelin Assoc. v Globe Mfg., 34 NY2d 338.)

      Allen G. Schwartz, Corporation Counsel (Carolyn E. Demarest and L. Kevin Sheridan of counsel), for probation department employees, respondents.
    The complaint fails to state a cause of action against respondent probation department employees upon which relief can be granted. Appellants have failed to exhaust their administrative remedies. Appellants’ claims are not justiciable. (Cohn v Lionel Corp., 21 NY2d 559; Gaynor v Rockefeller, 15 NY2d 120; Matter of Bokhair v Board of Educ., 43 NY2d 855; Matter of Perazzo v Lindsay, 30 AD2d 179, 23 NY2d 764; Jones v Beame, 45 NY2d 402; James

      v Board of Educ., 42 NY2d 357; Matter of Abrams v New York City Tr. Auth., 39 NY2d 990; Matter of International Ry. Co. v Schwab, 203 App Div 68; Matter of Walsh v La Guardia, 269 NY 437; People v Williams, 24 NY2d 274.)

      Betty Levinson for Women’s Survival Space and others, amici curiae.

    Plaintiffs should have an opportunity to prove at a trial that the Family Court and probation defendants’ continuing practice of denying battered wives access to court, on a massive scale and in clear violation of New York law, deprives battered wives of judicial protection from their violent husbands and subjects them to grave and irreparable harm.

      Marcia Robinson Lowry, Louise Gruner Gans, Cynthia Rollings and Stephen W. Tulin for Association of the Bar of the City of New York, amicus curiae.

    I. Defendants are not entitled to a dismissal of the complaint or summary judgment. (Ehrlich v American Moninger Greenhouse Mfg. Corp., 26 NY2d 255; Five Boro Elec. Contrs. Assn. v City of New York, 37 AD2d 807, 33 NY2d 676; Phillips v Kantor & Co., 31 NY2d 307; Board of Regents v Roth, 408 US 564; Wolff v McDonnell, 418 US 539; Matter of Ciminera v Sahm, 4 NY2d 400; Matter of Policemen’s Benevolent Assn. of Westchester County v Board of Trustees of Vil. of Croton-on-Hudson, 21 AD2d 693; Howard v Clark, 59 Misc 2d 327; Matter of Casey v Nuttall, 62 Misc 2d 386.) II. Overriding considerations of the public interest require that the issues raised by plaintiffs be resolved at a public trial. (Matter of Bowne v County of Nassau, 45 AD2d 304, 37 NY2d 75.)
   OPINION OF THE COURT

Fuchsberg, J.

This appeal brings before us so much of an action for declaratory and injunctive relief as was brought by 12 "battered wives” against clerks of the Family Court in New York City and officials of the New York City Department of Probation, each individually and as a defendant class representative. In a nutshell, the gravamen of their complaint is that probation and Family Court nonjudicial personnel, with the knowledge and either the tacit consent or express approval of their supervisors, engage in a pattern of conduct calculated (1) to deter battered wives from filing petitions for orders of protection against their offending husbands, (2) to block them from meaningful access to Family Court Judges empowered to issue temporary orders of protection, and (3) by failing to advise the wives that the defendants’ proffer of counseling is voluntary, to dissuade complainants from pursuing their legal remedies.

In concept and in fact, the Family Court fulfills a unique function in our system of justice. Though its legal ministrations are not directed to the indigent alone, the social and economic factors that generate its mass of sensitive, emotion-laden and highly individualized cases — including those which feature the interspousal violence on which the plaintiffs focus —in practice flood its calendars with pro se litigants who must depend on the court rather than counsel to instruct them in the niceties of the legal process. It is no accident then that, of all our judiciary, only Judges of the Family Court must be qualified in areas of learning beyond those supplied by the practice of law (Family Ct Act, § 141).

Interestingly, too, a concomitant of the easy rationalization for essaying highly individualized dispositions in Family Court has been the adoption of more rather than less structured statutory and regulatory guidelines. Among these are specific provisions for an order of protection — a form of injunction by which an offending spouse (nearly always the husband) may be compelled, under threat of imprisonment for up to six months, to refrain from particular offensive conduct or to stay away from the other spouse or the marital domicile — as well as follow-up petitions for violation of such orders (Family Ct Act, §§ 811, 821, 842, 846). And, to deal with the emergencies common to such cases, temporary orders of protection may issue on an ex parte basis (Family Ct Act, § 828). In either instance, since the spouse who seeks assistance almost invariably appears without counsel, a court clerk is provided to assist her in the preparation of petitions (see Family Ct Act, § 812, subd 2). Before, doing so, however, it is customary to refer the complaining spouse to the Family Court’s probation service (manned by city probation department personnel) for a preliminary screening during the course of which counseling and referral services may be offered. However, such services are optional; their availability was not intended to discourage or prevent any person from pursuing the petition route directly (Family Ct Act, §§ 812, 823; Family Ct Rules, 22 NYCRR 2508.2 [d], 2508.2 [e] [2]; Paulsen, New York Family Court Act, 12 Buffalo L Rev 420, 439-440).

Based on these provisions the complaint here, buttressed by affidavits of the named plaintiffs and some 48 other abused wives, details a variety of instances in which either probation personnel or court clerks ignored requests for the prompt presentation of petitions to Family Court Judges, set cases down for counseling at postponed dates despite allegations of immediate danger, failed to advise complainants of their right to refuse counseling services and pursue summary legal relief, or discouraged the filing of any complaint whatsoever. In short, while defendants conclusorily respond that they and their employees "are required to, and in practice do, comply with” the applicable statutes and rules, at the heart of plaintiffs’ case is the assertion that these norms have been regularly and repeatedly ignored.

Special Term denied defendants’ motions "to dismiss or, in the alternative, for summary judgment” (90 Misc 2d 1047). The Appellate Division reversed and dismissed the complaint, holding the dispute nonjusticiable because its resolution would inevitably entail an impermissible "invasion of executive authority” (64 AD2d 582, 583).

As we analyze this case, however, it is not one in which the judiciary would be required to enter upon a venture in which "it is ill-equipped to undertake the responsibility and [in which] other branches of government are far more suited to the task” (Jones v Beame, 45 NY2d 402, 408-409). Unlike Jones, which involved New York City’s allocation of municipal resources to house animals in public zoos and the State’s choice among (p 407) "theories and programs for deinstitutionalizing * * * the inmates of [its] crowded atid evermore crowding mental hospitals”, the subject of the present suit is the operation and administration of the courts by the courts.

True, the judicial process may not be designed to assume the management and operation of an executive enterprise or to correct broad legislative and administrative policy, which ultimately may be dependent on the political process (Jones v Beame, supra; People ex rel. Clapp v Listman, 40 Misc 372, 375-376, affd on opn below 84 App Div 633 [Andrews, J.]; De Funiak, Modern Equity [2d ed], pp 146-147), but justiciability hardly can be denied when what is at stake is not the righting of social injustices, deeply disturbing though they may be, but the enforcement of clear, nondiscretionary and easily definable statutes and rules adopted for the governance of a judicial entity. In essence, the concern that plaintiffs would have us confront is simply the threshold obligation of functionaries of the entity, here the Family Court, to apprise a woman of her options with respect to mediation and to afford her prompt access to a Family Court Judge.

Also, in this connection, the fact that the overwhelming majority of documented instances of alleged departure from statutory and regulatory provisions to which plaintiffs point were at the hands of the probation personnel, formally employees of a city executive agency rather than a judicial one, does not take away from the justiciability of the controversy. For the probation service, in participating in the processing of family offense matters, does not act on its own. Rather it carries out a specified statutory obligation "to assist” the Family Court (Family Ct Act, § 252, subd [d]). Thus, court and probation employees work as a team in the implementation of the Family Court’s intake procedure. Indeed, it is the rules of the court itself that spell out authorization for such details of the probation service activity as obtaining the initial description of the problem that brings a wife to court, delving into social data and other background information relevant to the family offense and informing the interviewee that she may either avail herself of the probation department’s mediation and conciliation procedures or proceed at once via the petition route (see Committee Comments, McKinney’s Cons Laws of NY, Book 29A, Part 1, Family Ct Act, § 823, p 710; Besharov, Practice Commentaries, McKinney’s Cons Laws of NY, Book 29A, Part 1, Family Ct Act, § 252, pp 182-183; Family Ct Rules, 22 NYCRR 2508.1-2508.3). Thus, while the probation department technically may not be part of the judicial establishment, the intertwining of its activities with those of the clerks of the Family Court entails responsibilities which basically are under court control.

But that justiciability is not an obstacle to plaintiffs’ action does not mean that declaratory or injunctive relief necessarily is in order. Such relief is to be granted or withheld largely on the circumstances in a particular case (New York Public Interest Research Group v Carey, 42 NY2d 527, 530; Megary & Baker, Snell’s Principles of Equity [24th ed], p 583; Mc-Clintock, Equity [2d ed], § 23). The efficacy or futility of judicial intervention is also a relevant consideration in decid-

ing whether such extraordinary relief is warranted (7A Weinstein-Korn-Miller, NY Civ Prac, par 6301.15).

These caveats in mind, we are less than convinced that any sufficiently useful purpose would be served by a plenary trial.

Among the factors that lead us to this conclusion is the disposition already arrived at in the police branch of this litigation. A primary concern voiced in plaintiffs’ complaint is frequent failure of officers of the New York City Police Department to respond to requests for safeguarding made by or on behalf of a battered or threatened wife, presumably because of reluctance on the part of the police to intervene in what they reflexively characterized as "domestic disputes” rather than criminal offenses. And because 40% of all police night calls in New York City are said to involve such cases (Wife Beating: The Hidden Offense, NYLJ, April 29, 1976, p 1, col 1), this lack of police co-operation in guarding the offended wives makes Family Court processing delays critical and renders orders issued by the Family Court largely ineffective.

Negotiated with the police even before the Appellate Division handed down its decision, the consent judgment afforded the plaintiffs substantially all the relief they reasonably could expect. By its terms the police have agreed hereafter to respond swiftly to every request for protection and, as in an ordinary criminal case, to arrest the husband whenever there is reasonable cause to believe that a felony has been committed against the wife or that an order of protection or temporary order of protection has been violated. Moreover, officers are to remain at the scene of the alleged crime or violation in order to terminate or prevent the commission of further offenses and to provide the wife with other assistance. To assure that these undertakings are fulfilled, supervisory police officers are to make all necessary revisions in their disciplinary and other regulations.

It is also not without moment that an affidavit filed by Administrative Judge Joseph B. Williams of the Family Court makes it clear that his administration is dedicated to enforcing the statutes and rules in a manner consistent with the declarations sought by plaintiffs, particularly with regard to informing petitioners of the voluntariness of the conciliation option and to making Family Court Judges readily accessible to mistreated wives.

Significantly, in not a single instance did any plaintiff or affiant complain to Judge Williams, his executive officer or his chief clerk so that investigation or discipline of any offending employee could be initiated. Thus, there is no indication that, until commencement of this suit, the alleged derelictions had been brought home to those responsible for the administration of this branch of our courts.

The record also indicates that the Director of the New York City Probation Department has conceded that its employees assigned to the Family Court have to advise women who appear for intake interviews in family offense cases of their right to reject offers of mediation and to proceed directly by petition. Within three months after this suit was instituted, and perhaps in response to it, the director issued General Order 5-77 promulgating a disciplinary procedure for the processing of oral and written complaints against probation employees who fail to adhere to these mandates. In addition, to limit the incidence of misunderstanding in communicating the alternatives open to wives who receive intake interviews, the probation people now are also required to routinely provide each prospective petitioner with a printed notice advising of the availability of professional counseling services and the right to reject them and go directly to court. To reach New York City residents who are Spanish-speaking, the notice is bilingual.

Nor has there been a lack of legislative and administrative response. Since the commencement of this suit section 812 of the Family Court Act was amended to prohibit officials from discouraging or preventing any person who wishes to file a petition from having access to the court for that purpose (L 1977, ch 449, § 1; see, also, Family Ct Rules, 22 NYCRR 2508.1 [c] [3] [4], [d], 2508.3 [c] [1]).

Of course, we are conscious of plaintiffs’ argument that the court practices of which they complain are unallayed despite the suit. But support for that position rests solely on nonrecord references (made for the first time in their brief to us) to a limited number of incidents occurring early in 1977. Even if taken at face value, these episodes transpired soon after plaintiffs’ action had been commenced and before the practical steps described above could have had any effect in a court which then was trying to cope with 20,000 pending family offense cases and was to face an intake of 9,540 new ones in 1977 (see Twenty-Third Ann Report of NY Judicial Conference, 1978, p 102). Realistically, we must also recognize that any system administered by human beings will unavoidably encounter occasions on which employees will err or be misunderstood, all the more so midst the stress and excitement that usually propels the pro se litigant into the legal arena.

Finally, we observe that societal concern with the underlying problem exemplified by brutality to women at the hands of their husbands must be carefully distinguished from the far narrower task committed to the Family Court — to deal with the local manifestations of this social malaise that are brought to its official attention. Except insofar as an awareness of general conditions helps put the matters at hand in perspective, only the latter can be within the scope of the suit before us.

So confined, the welcome efforts of plaintiff’s counsel and the amici in this case have no doubt alerted, even sensitized, our courts to the full measure of their responsibilities. With no real disagreement among the parties as to the goals toward which they must now aim, with constructive monitoring of Family Court staff performance by organizations such as the amici, and with an appreciation of the raison d’etre for this suit by all courts that have been exposed to it, it could be fruitless, if not self-defeating, to go through a long and tortuous trial to no other end than the airing of what already has been made clear.

For all these reasons, and though our rationale, as indicated, in some respects differs from that of the Appellate Division, we find no reason to disturb the result it reached and therefore affirm its order, but without costs.

Jones, J.

(concurring). I agree that the order of the Appellate Division should be affirmed and the petition dismissed. I would ground this result on my conclusion that there is not presented a justiciable controversy amenable to resolution by judicial determination and remedy.

What is sought, and for very understandable reasons, is judicial oversight of the performance of administrative responsibilities, not an adjudication of the rights and obligations of the parties. There is little, if any, dispute between the parties as to the entitlement of appellants and those whose interests they would advance to the full and proper performance by personnel of the governmental units here involved of their duties, on the one hand, or as to the official duties and obligations of respondents, on the other. The claim of appellants is that there has been a breakdown in the delivery system of their rights.

This is not a case in which the fact or circumstances of the failure to observe the rights of individual complainants may be determined or the relief sought may be provided by the entry of a court order directing the performance of specific acts by named individuals for the benefit of identified persons, the nonperformance of which would be readily demonstrable. Adjudication of individual rights and the invocation of judicial sanctions in accordance with the application of appellants would entail unending surveillance and monitoring by the judiciary. What appellants seek is a ukase that clerks of Family Court and officials in the Probation Department in the City of New York henceforth obey the commands of statute and rule in the daily performance of their duties. We have repeatedly rejected invitations to engage in just such superintendence. (Cf. Jones v Beame, 45 NY2d 402; James v Board of Educ., 42 NY2d 357; Matter of Abrams v New York City Tr. Auth., 39 NY2d 990; Matter of Community Action Against Lead Poisoning v Lyons, 36 NY2d 686.) As we said in the Jones case (p 407), appellants may not "interpose * * * the courts into 'the management and operation of public enterprises’ ”. It was the inappropriateness of such involvement, and not merely a respect for the distribution of powers among the three branches of government, which dictated the withholding of judicial relief in those cases and which now forecloses entertainment of the present action. The critical distinction is between the performance by the courts of adjudicatory and administrative functions; not any separation between the judicial' and executive branches of government. As the Appellate Division noted and the majority so well demonstrates, fortunately there are other remedies to accomplish the objectives for which this litigation was instituted. Even were this not so, however, no case is presented here for adjudication by the courts.

Meyer, J.

(dissenting). I dissent and vote to reverse for the reasons stated in the dissenting opinion of Mr. Presiding Justice Francis T. Murphy, Jr. (64 AD2d 583-584), to which I would add, in light of the reasoning of the majority in this court, that while the action against police department defendants cannot proceed because plaintiffs have settled the action as to them, the promulgation of General Order 5-77 by the Director of the Probation Department does not moot the action as to the remaining defendants. As to them plaintiffs are entitled to a trial.

Judges Gabrielli and Wachtler concur with Judge Fuchs-berg; Judge Jones concurs in result in a separate opinion in which Judge Jasen concurs; Judge Meyer dissents and votes to reverse in a memorandum; Chief Judge Cooke taking no part.

Order affirmed, without costs.

      . As used here, the term "battered wives” refers to married women whose husbands have either committed crimes or violations against them or have violated orders of protection or temporary orders of protection issued by the Family Court.

      . It is claimed that "in 29 out of every 30 such cases the husband stands accused of abusing his wife” (Leeds, Family Offense Cases in the Family Court System: A Statistical Description, Henry Street Settlement Urban Life Center, Nov., 1978, p ii).

      . Subdivision 3 of section 812 of the Family Court Act provides: "No official or other person designated pursuant to subdivision two of this section shall discourage or prevent any person who wishes to file a petition or sign a complaint from having access to any court for that purpose.”
      Subdivision (b) of section 823 of the Family Court Act provides: "The probation service may not prevent any person who wishes to file a petition under this article from having access to the court for that purpose”. (See, also, Family Ct Rules, 22 NYCRR 2508.1 [c] [3], 2508.3 [c].)

      . Plaintiifs originally sued on behalf of themselves and all others similarly situated and, prior to defendants’ motions to dismiss, moved for class certification pursuant to CPLR 902. The complaint described the plaintiff class as "composed of all married women living in New York and Kings Counties whose husbands commit crimes or violations against them and who seek police and/or judicial protection from their husbands”. While the motion was denied as "unnecessary” upon the ground "that governmental defendants are bound by stare decisis”, the court added that "[t]he denial of class action status, of course, shall in no way limit plaintiffs’ right to fully present their evidence whether from party or nonparty witnesses”. (90 Misc 2d 1047, 1053-1054.) There has been no appeal from that decision.

      . As plaintiffs flesh out their papers in opposition to the motion for summary judgment, to the flouting of statutes and rules they add such examples of deterrence as the dissemination of such misinformation as that orders are available only on the day a beating takes place, that the husband must be present at the time of complaint, that corroborative evidence independent of a complainant’s testimony is essential, that a lawyer is required, that a visible injury is a prerequisite for filing a petition, that the petitioner must serve her husband personally and that the facts must be verified by the husband.

      . The Director of the New York State Division of Probation and officials of the New York City Police Department were also joined as defendants. But the director made no motion at nisi prius and hence is not a party to this appeal. And, so far as the police defendants are concerned, while they joined the moving defendants both in their unsuccessful atteihpt to dismiss in the trial court and in their subsequent appeal to the Appellate Division, prior to the latter court’s determination the police entered into a settlement the effect of Which was to moot their appeal at that stage. (The terms of the settlement are described later in this opinion.)

      . Nisi prius granted so much of the clerk defendants’ motions to dismiss as related to causes of action seeking to hold them responsible, on a respondeat superior theory, for the conduct of probation department defendants. This determination was not, however, grounded in considerations of justiciability and, since the plaintiffs did not appeal it, was not passed on by the Appellate Division.

      . Amici curiae advise us that one third to one half of all married women in America have experienced such mistreatment (see Schneider and Jordan, Representation of Women Who Defend Themselves in Response to Physical or Sexual Assault, Center for Constitutional Rights, 1978, p 100).

      . Amici curiae who have appeared in support of appellants are the Association of the Bar of the City of New York, Women’s Survival Space, The Park Slope Safe Homes Project, The Jane Addams Center, Inc., The National Council of Churches of Christ, USA, Shelter Our Sisters, Inc., The Coalition for Abused Women, Inc., The New York City Coalition for Battered Women, New York Women Against Rape, All the Queens Women, The Asian American Legal Defense and Education Fund, The National Conference of Black Lawyers, NOW Legal Defense and Education Fund, Inc., and The National Lawyers Guild, New York Chapter. Some of these organizations reflect familiarity with the local and others with the national scene.


author: Meyer, J. Chief Judge Cooke and Gabrielli, J.

text:
    Norman B. Oppenheimer, Respondent, v Jeffrey P. Westcott et al., Defendants; Hancock Securities Corporation, Appellant, and Harold P. Bernstein et al., Intervenors-Appellants.
    Argued June 4, 1979;
    decided July 10, 1979

      POINTS OF COUNSEL

      Sidney S. Rosdeitcher and Colleen McMahon for Hancock Securities Corporation, appellant, and Harold P. Bernstein and others, intervenors-appellants.
    I. The court below erred as a matter of law in remitting appellants to collateral attack on the Hancock judgment. (Ladd v Stevenson, 112 NY 325; Bardach v Mayfair-Flushing Corp., 49 Misc 2d 380, 26 AD2d 620; Manahan v Petroleum Producing & Refining Co., 198 App Div 192; Fuhrmann v Fanroth, 254 NY 479; Crouse v McVickar, 207 NY 213; Jacobowitz v Herson, 268 NY 130; Tomasello Bros. v Friedman, 57 Misc 2d 817, 32 AD2d 652; Rivero v Ordman, 277 App Div 231.) II. The court below abused its discretion when it reinstated a judgment shown by uncontested evidence to have been procured by respondent’s fraud. (Oppenheim v Melnick, 34 AD2d 784; Schutzer v Berger, 40 AD2d 725; Stigwood Organisation v Devon Co., 44 NY2d 922; Bunim v Bunim, 298 NY 391; Matter of Jewish Child Care Assn. of N. Y. [Sanders], 5 NY2d 222; Clason v Morris, 10 Johns 524; Blodget v Morris, 14 NY 482; Grider v Corbin, 116 App Div 818, 194 NY 517; Israel v Wood Dolson Co., 1 NY2d 116; L & F Drug Corp. v Davis, 34 Misc 2d 76.) III. The award of damages also should have been set aside because no real inquest was ever conducted. (Anti-Defamation League of B’nai

      B’rith v Arab Anti-Defamation League, 72 Misc 2d 847; Imperial Discount Corp. v Aiken, 38 Misc 2d 187; A. Lenobel, Inc. v Senif, 252 App Div 533; Malone v Citarella, 7 AD2d 871; Bouker Contr. Co. v Neale, 161 App Div 617; Rappazzo v Nardacci, 20 Misc 2d 301; Wine Antiques v St. Paul Fire & Mar. Ins. Co., 40 AD2d 657.) IV. The court below improperly failed to consider whether appellants should be permitted to intervene and participate in any new inquest.

      Donald R. Larelli, Peter James Johnson and Asher Marcus for Kimmelman, Sexter & Sobel, intervenor-appellant.
    I. The order of the court below is appealable as of right to this court. (Belknap v Waters, 11 NY 477; Gang v Gang, 253 NY 356; Merrill Lynch, Pierce, Fenner & Smith v Griesenbeck, 21 NY2d 688; Potter v Diamond, 266 NY 635; Matter of Bruno v Peyser, 40 NY2d 827.) II. The order of the court below should be modified by this court so as to provide for the vacatur of the default judgment entered against Hancock.

      Norman B. Oppenheimer, respondent pro se.

    An existing final judgment awarded to plaintiff-appellant six years ago against defendant represented by counsel who contested the matter but failed to appear for the trial in 1971 and inquest, is conclusive of rights, questions, and any facts thereafter. (Vavolizza v Krieger, 39 AD2d 446; Eissing Chem. Co. v People’s Nat. Bank of Brooklyn, 205 App Div 89, 237 NY 532; Schwartz v Public Administrator of County of Bronx, 24 NY2d 65.)
   OPINION OF THE COURT

Meyer, J.

The issues required to be resolved on this appeal are whether Harold Bernstein and other defendants (hereafter "Bernstein defendants”), in the second action referred to below, are "interested parties” within the meaning of CPLR 5015 (subd [a]) who may move to vacate the default judgment against Hancock Securities Corporation, obtained in the first action referred to below, and if so, whether the judgment should be vacated by reason of the fraud or misconduct of Norman Oppenheimer, plaintiff in both actions. We hold that the Bernstein defendants are interested parties and that their motion to vacate the judgment should have been granted. We, therefore, reverse so much of the order of the Appellate Division as affirmed denial of their CPLR 5015 motion, grant the motion and remit the matter to Trial Term for a new inquest.

Plaintiff Oppenheimer was a principal in a company called Micronetic Corporation. He wished to sell 13,000 shares of its stock, which were unregistered and, therefore, could not be sold unless Oppenheimer qualified for exemption from Securities and Exchange Commission requirements. He obtained a legal opinion that he was exempt, based upon an affidavit submitted by him to his attorney, and then arranged, through his brokers, Vilas & Hickey, to sell 12,500 shares to Hancock and an additional 500 shares to another securities house. Hancock learned that Oppenheimer was the seller of the stock and, aware of his position as a principal of Micronetic, inquired of both Vilas & Hickey and Micronetic’s president, Jeffrey Westcott, about the matter. Westcott informed Hancock by letter that the affidavit on which Oppenheimer’s opinion letter was based "was not factual in a number of respects”, and, as a result, Hancock instructed Vilas & Hickey to cancel the sale.

Oppenheimer then began the first action, against Westcott, Hancock, Vilas & Hickey, and others, for breach of contract, libel and conspiracy. His complaint in that action was dismissed on motion of Vilas & Hickey at the end of plaintiff’s case, but the action was severed and continued as to Hancock, which had defaulted on the eve of trial, having become insolvent. On June 28, 1971, Oppenheimer obtained a default judgment in the amount of $267,473.71 against Hancock. When that judgment proved uncollectible from Hancock, Oppenheimer, in June, 1974, commenced a second action against Harold Bernstein and others claiming that since' they had looted Hancock and caused it to become insolvent he was entitled to recover from them the amount of the judgment as well as punitive damages.

In September, 1975, as the second "Bernstein” action was about to come to trial, evidence of Oppenheimer’s conduct in obtaining the default judgment having come to their attention, Hancock and the Bernstein defendants both moved in the first "Westcott” action under CPLR 5015 (subd [a], par 3) to set aside the judgment against Hancock. At the same time, the Bernstein defendants sought leave in the first action, pursuant to CPLR 1012, 1013 and 5015 to intervene in that action, and moved in the second action for summary judgment on the ground of fraud in procuring the Hancock judgments.

Special Term considered all of these motions on a joint record. It granted Hancock’s motion on the ground that Oppenheimer had misrepresented the status of the first action by failing to advise the inquest Judge that the action against Vilas & Hickey had been dismissed, and set the first action down for a new inquest on all except the libel causes of action, as to which it held Oppenheimer collaterally estopped by the dismissal of substantially identical causes of action against Vilas & Hickey. The Bernstein defendants’ motions were, however, denied without prejudice to renewal upon completion of the inquest.

Oppenheimer appealed to the Appellate Division from the order setting the judgment aside and Hancock and the Bernstein defendants cross-appealed, Hancock on the ground that the damage inquest should have been further limited, and the Bernstein defendants on that ground and the further ground that their motions pursuant to CPLR 1012, 1013 and 5015 were improperly denied. The Appellate Division, by a divided court, modified on the facts and in the exercise of discretion to reverse so much of the Special Term order as vacated the judgment against Hancock and ordered a new inquest and otherwise affirmed, without prejudice to an application in the second, Bernstein, action to attack the judgment against Hancock on which it was based.

Hancock and the Bernstein defendants then appealed to this court as of right, but Hancock thereafter conceded, recognizing that the Appellate Division’s order as to it did not finally determine the merits of the action, that its appeal as of right did not lie. We therefore dismiss its appeal, leaving for our consideration only the Bernstein defendants’ appeal from the denial of its motions for leave to intervene and for an order pursuant to CPLR 5015 vacating the judgment. So much of the appeal as concerns the application to intervene is dismissed for nonfinality (Cohen and Karger, Powers of the New York Court of Appeals, § 46, subd [b], pp 193-194). With respect to the denial of the CPLR 5015 applications, however, we conclude as to the Bernstein defendants who were strangers to the first action, that the order denying their motion is a final order (§ 45, subd [c], pp 188-189) and constituted an abuse of discretion as a matter of law. We now reverse as to that denial, and so that the Bernstein defendants may participate in the inquest which we now order, join them as parties to the proceeding pursuant to CPLR 1003.

CPLR 5015 (subd [a]) provides that:

"The court which rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion of any interested person with such notice as the court may direct, upon the ground of:

* * *

"3 fraud, misrepresentation, or other misconduct of an adverse party.”

Clear from its use of the words "any interested person ” within a dozen words of the phrase "relieve a party” is it that to avail himself of the remedy provided by that section one need not have been a party to the original action (see, e.g., Bardach v Mayfair-Flushing Corp., 49 Misc 2d 380, affd 26 AD2d 620). "To seek relief from a judgment or order, all that is necessary is that some legitimate interest of the moving party will be served and that judicial assistance will avoid injustice” (5 Weinstein-Korn-Miller, NY Civ Prac, par 5015.15, p 50-252).

Without a valid judgment against Hancock, Oppenheimer has no claim against the Bernstein defendants. In light of that fact and of Hancock’s insolvency, it is manifest that no one has a greater or more legitimate interest in setting aside Oppenheimer’s judgment against Hancock than they do. Moreover, if in fact the default judgment was obtained by fraud or misconduct, judicial assistance will avoid the injustice that would be visited upon the Bernstein defendants were they required to undertake the costly defense of a baseless action.

Without passing on the status of the Bernstein defendants as interested persons, the Appellate Division majority affirmed Special Term’s denial without prejudice of their CPLR 5015 motion and added that its own determination was also without prejudice to an attack upon the Hancock judgment by the Bernstein defendants in the second action. In doing so, it relied upon Fuhrmann v Fanroth (254 NY 479), and Weinstein-Korn-Miller, New York Civil Practice (vol 5, par 5015.13), apparently with the thought that the fraud alleged was in the means by which the judgment was procured and, therefore, available as a basis for collateral attack in the second action. Accepting that premise, we nevertheless conclude that it was an abuse of discretion as a matter of law to require that a litigant seeking to attack a judgment directly, proceed instead by the much more rigid and, therefore, more difficult and hazardous independent action route (cf. Fuhrmann v Fanroth, supra, pp 482-483; O’Neil v Meccia, 169 Misc 985, 988 [Bergan, J.]).

Weinstein-Korn-Miller (vol 5, p 50-246) characterizes the independent action as "obsolete in all but a few peculiar situations” because of the limited availability of such an action and CPLR 5015’s specific authorization to vacate judgments on the grounds of "fraud, misrepresentation, or other misconduct”. The inclusion in CPLR 5015 (subd [a], par 3) of "misrepresentation, or other misconduct” is based upon the parallel wording of rule 60 (subd [b], par [3]) of the Rules of Civil Procedure (US Code, tit 28, Appendix) and broadens the basis for relief by motion beyond that recognized in prior case law, which required the movant to establish the commission of a fraud (5 Weinstein-Korn-Miller, NY Civ Prac, par 5015.08, p 50-234). Though the Advisory Committee notes make clear that the fraud forming the basis for a CPLR 5015 motion may be either extrinsic or intrinsic (Third Preliminary Report of Advisory Comm on Practice & Procedure, p 204 [1959]), and the removal of that troublesome distinction has been applied by analogy to an independent action to set aside a judgment (Levine v O’Malley, 33 AD2d 874), it is by no means clear that an independent action can be based upon misrepresentation or misconduct, as can a motion under CPLR 5015 (subd [a], par 3).

As we view CPLR 5015, it was intended to assure that a broad class of persons, not limited to parties in the formal sense, could move in the original action on grounds vastly broader than permitted at common law or under prior practice, and thus to minimize the necessity for use of independent procedures of collateral attack upon a judgment. The Appellate Division, misconstruing that intent, erred in refusing to consider the merits of the Bernstein defendants’ motion simply because the avenue of collateral attack was open to them.

Turning, then, to a consideration of the merits, we hold that the default judgment against Hancock must be vacated, for the record is clear that Oppenheimer was guilty of misconduct, if not fraud, in at least two ways.

At the inquest Oppenheimer claimed that Hancock’s refusal to pay for the Micronetic shares caused him to default in the payment of a promissory note, and thus to forfeit 70,000 shares of Micronetic stock pledged as security for the note. While his judgment against Hancock is predicated on the loss of the full 70,000 shares, what he failed to reveal to the inquest court was that he owned but 11,334 shares.

Moreover, Oppenheimer advised the Judge that his causes of action for breach of contract and for libel against Vilas & Hickey had been severed from his similar causes of action against Hancock, but failed to inform the Judge that the causes of action against Vilas & Hickey had been dismissed at the end of plaintiff’s case. Their codefendants’ success in defeating these causes of action, as to which the liability of Vilas & Hickey and of Hancock was, in substantial part, if not entirely, joint would inure to Hancock’s benefit (see Nathan v Zierler, 223 App Div 355; Kellogg & Sons v Bush, 31 Misc 2d 70; 49 CJS, Judgments, § 191, subd b, par [4], p 330). The withholding of that information from the court was, therefore, clearly misconduct, if not fraud, warranting vacatur of the judgment.

Accordingly, so much of the order of the Appellate Division as denied the motion of the Bernstein defendants to vacate the judgment against Hancock should be reversed, with costs, the judgment should be vacated, and the matter should be remitted to Trial Term for further proceedings in accordance with this opinion.

Chief Judge Cooke and Gabrielli, J.

(dissenting in part). We would reverse both the denial of the Bernstein defendants’ motion to intervene and the motion to vacate the default judgment against Hancock Securities Corporation. While, as a practical matter, the result reached by the majority permits the Bernstein defendants to participate in the inquest, our analysis takes a different path. Instead of joining the Bernstein defendants as necessary parties sua sponte pursuant to CPLR 1003, the better route — and the one chosen and litigated by the parties — would be to retain jurisdiction over the motion to intervene. Under this view, the motion to intervene would be deemed inextricably entwined with the CPLR 5015 motion and hence final (see Cohen and Karger, Powers of the New York Court of Appeals, § 45, subd [c], pp 188-189; cf. Matter of Martin v Ronan, 47 NY2d 486). On the merits, the denial of the motion to intervene was an abuse of discretion as a matter of law (see Matter of Martin v Ronan, supra).

Judges Jasen, Jones, Wachtler and Fuchsberg concur with Judge Meyer; Chief Judge Cooke and Judge Gabrielli dissent in part and vote to reverse both the denial of the motion to intervene and the motion to vacate the judgment in a memorandum.

Appeal by defendant Hancock Securities Corp. dismissed, without costs.

Appeal, by proposed interveners Bernstein et al., from so much of the order of the Appellate Division as affirmed the denial of the motion for leave to intervene dismissed, without costs.

On the appeal, by proposed interveners Bernstein et al., from so much of the order of the Appellate Division as denied their motion to vacate the judgment of June 28, 1971: Order, insofar as so appealed from, reversed, with costs, the judgment vacated and the matter remitted to Supreme Court, New York County, for further proceedings in accordance with the opinion herein.

      . On this point, the writer of this opinion agrees with the dissenters.

      . The Third Preliminary Report of the Advisory Committee on Practice and Procedure (1959) noted, at page 206, that: "Relief is seldom sought by means of an independent action since it may only be granted as to extrinsic fraud and not as to intrinsic fraud [citations omitted], while relief based upon either type of fraud may be obtained by means of a motion in the original action.”


author: Meyer, J.

text:
    The People of the State of New York, Respondent, v Federico Gonzalez, Appellant.
    Argued May 31, 1979;
    decided July 10, 1979

      POINTS OF COUNSEL

      Stanley Neustadter for appellant.
    The "no-merit” brief filed at the court below by assigned counsel failed to provide appellant with effective assistance of counsel; it did not justify either counsel’s abandonment of his client or the refusal of the court below to appoint a new lawyer before proceeding to the merits. (People v Borum, 8 NY2d 177; People v Hughes, 15 NY2d 172; Griffin v Illinois, 351 US 12; Douglas v California, 372 US 353; Matter of High v Rhay, 519 F2d 109; People v Bennett, 29 NY2d 462; People v Emmett, 25 NY2d 354; People v Droz, 39 NY2d 457; People v La Bree, 34 NY2d 257; People v Coleman, 30 NY2d 582.)

      Eugene Gold, District Attorney (Morris Harary of counsel), for respondent.
    I. A review of the totality of circumstances clearly demonstrates that appellant has not been denied adequate appellate representation. (People v Castro, 45 NY2d 934.) II. The errors claimed to have been overlooked by former appellate counsel, if errors at all, do not warrant reversal. (People v Range, 49 AD2d 832; People v Harris, 51 AD2d 937; People v Peterson, 42 AD2d 937, 35 NY2d 659; People v Cobenais, 39 NY2d 968; People v Hinton, 31 NY2d 71, 410 US 911.)
   OPINION OF THE COURT

Meyer, J.

Has an indigent criminal defendant been deprived of his constitutional right to effective assistance of counsel where the attorney appointed to handle his appeal files a "brief’ that summarizes the evidence, states "that in the opinion of the writer there were no points to be raised” on appeal, and then sets forth four point headings stating the points defendant desired to have presented, but advances no argument in support of any of the points? We hold that he has been and therefore reverse and remit for a de novo appeal.

On March 15, 1976, defendant, Federico Gonzalez, was convicted by a jury of two counts of criminal sale of a controlled substance in the first degree. He was sentenced on each count to the maximum term possible, 25 years to life, to run concurrently. His request for assignment of counsel to handle his appeal was honored by the Appellate Division by the appointment on September 28, 1976 of an attorney (other than the attorney handling the present appeal to our court). Though the appointed attorney received the trial transcript on March 23, 1977, he filed no brief until October 27, 1977 after the clerk of the Appellate Division had contacted him, after he had responded that he felt that "there were no substantial errors to be raised on the appeal”, and after the clerk had then directed him to file a brief setting forth whatever points defendant had suggested.

The brief set forth a 28-page summary of the trial testimony of each witness on direct and cross-examination and noted some, but not all, of the objections made by the defense. The statement of facts concluded with the following paragraph: "As a result of communicating with the appellant, and advising him that in the opinion of the writer there were no points to be raised on his appeal, [sic] Appellant has requested the writer to submit the following points:” There followed four point headings, on separate pages, the text of which is set forth in the footnote below, but no discussion or argument of any sort under any point. The brief concluded that "For the foregoing reason [sic], it is respectfully submitted that the judgment of conviction should be reversed and the indictment dismissed.”

By letter notarized November 2, 1977, recounting that defendant had never seen his appointed attorney in person, had spoken to him only twice though defendant had called him in excess of 50 times during the 13 months since his conviction, had had to make a pro se motion for the trial transcript because of counsel’s failure to do so, and calling attention to the incomplete presentation of the brief and the absence of proper research, defendant requested that his appointed counsel be relieved, "competent counsel be appointed on my behalf to prosecute my appeal”, and the time for filing a supplemental brief be enlarged so that the court could be provided "a complete statement of issues and law”. The appointed attorney, responding to the application to relieve him, denied none of defendant’s factual allegations, simply reiterating that "there were no substantial errors upon which any sort of argument could be made on behalf of appellant.” Defendant’s pro se motion was denied on December 1, 1977 and on February 6, 1978, based on the submission of the appointed attorney and of the District Attorney, the judgment of conviction of defendant was unanimously affirmed.

On March 1, 1978, defendant applied pro se for leave to appeal to our court on the ground that the brief filed with the Appellate Division so far failed to meet the requirements of Anders v California (386 US 738), that he had been denied effective assistance of counsel. At that juncture defendant’s present counsel was obtained to represent him on a voluntary basis.

Defendant’s present counsel’s brief essentially argues the ineffectiveness of representation by defendant’s prior counsel, and in so doing identifies the following as some of the issues that were ascertainable from the record and should have been argued: (1) the failure, despite proper request, to instruct the jury, as required by CPL 300.10 (subd 3), that the evidence with respect to each count be considered separately, (2) refusal to allow defense counsel to explore fully on cross-examination the inducements for the co-operation of the confidential informant, (3) the closing of the courtroom during the testimony of the informant, (4) the refusal of the Trial Judge to honor a subpoena issued before trial by a Judge of co-ordinate jurisdiction, (5) the failure to grant a mistrial after the admission of irrelevant and prejudicial evidence concerning the need for back-up teams for the protection of undercover police, and (6) the failure to grant a mistrial after admission of irrelevant and prejudicial testimony that defendant’s interests were limited to guns and women.

The People not only oppose the main thrust of defendant’s present appeal, but argue that the relief he requests is not warranted because this court can pass upon the issues listed above, none of which, argue the People, has substance. We decline to accept that invitation not only because the list set forth above is presented by defendant’s counsel as but "some of’ the available issues and not as an exhaustive list, but also because to do so would deprive defendant of the "interest of justice” discretion that resides in the Appellate Division but not in this court (see, e.g., People v Gruttola, 43 NY2d 116).

Turning then to the main issue before us, we hold that defendant was denied his right to effective assistance of counsel by the disposition of the appeal based on the wholly deficient "brief’ filed on his behalf.

The right of an indigent criminal defendant to the services of counsel on appeal is established by a long line of decisions of the Supreme Court and of this court. Those decisions make clear that the assistance given must be that of an advocate rather than as amicus curiae (Ellis v United States, 356 US 674; People v Emmett, 25 NY2d 354), that the right "means more than just having a person with a law degree nominally” representing defendant (People v Bennett, 29 NY2d 462, 466), that it requires the effective assistance of "single-minded” counsel (People v Emmett, supra, p 356) in the "research of the law, and marshalling of arguments on [defendant’s] behalf’ (Douglas v California, 372 US 353, 358; see, also, People v Macerola, 47 NY2d 257; People v Droz, 39 NY2d 457, 462), so that defendant is provided the "full consideration and resolution of the matter” of "an active advocate in behalf of his client” (Anders v California, 386 US 738, 743-744, supra). The objective of State and Federal decisions has been to assure that an indigent criminal appellant receives substantially the same assistance of counsel as one who can afford to retain an attorney of his choice (Douglas v California, 372 US 353, supra; Nickols v Gagnon, 454 F2d 467).

It can hardly be gainsaid that paid appellate counsel intent upon protecting the rights of his incarcerated client will obtain and thoroughly study the trial transcript and consult with the defendant and with trial counsel (Matter of Nash, 61 Cal 2d 491; People v Hoffman, 382 Mich 66 [Kavanaugh, J., dissenting]; see Oakes, Lawyer and Judge: The Ethical Duty of Competency, Report of Annual Chief Justice Earl Warren Conference on Advocacy in US, 1978 [Pound — American Trial Lawyers Foundation], pp 57, 65). The undisputed dilatoriness of appointed counsel in obtaining the record, his failure to consult with either trial counsel or defendant, and his failure to file a "brief’ until prodded by the Appellate Division clerk strongly suggest that the assistance given defendant did not meet the required standard. Examination of the brief submitted demonstrates beyond peradventure the perfunctory nature of his efforts. Its lengthy, indiscriminate narrative of facts in the form presented could aid neither defendant nor the court in reviewing the case, for no effort was made to relate the facts to the points later stated or to show weaknesses or contradictions suggestive of lack of credibility of the prosecution’s witnesses. Though objections to the admission of testimony were recited, there was no effort to assess the prejudicial effect of the testimony or the legal efficacy of the objection. Instead, counsel contented himself with the blanket statement that he had informed defendant that "there were no points to be raised on his appeal”, and with the statement of points headings which he clearly disassociated himself from and which were followed by no argument at all, not even to address the discretion of the Appellate Division as to the excessiveness of sentence.

Far from demonstrating conscientious examination of the record and the law, the papers before the Appellate Division on the motion for appointment of substitute counsel clearly portrayed the contrary. Moreover, while we express no opinion on the ultimate disposition of the points advanced by defendant’s present attorney, his presentation of them confirms the thought that appellate counsel "not infrequently advance contentions which might otherwise escape the attention of judges of busy appellate courts, no matter how conscientiously and carefully those judges read the records before them” (People v Emmett, 25 NY2d 354, 356, supra). Clearly, therefore, defendant is entitled to reversal of the Appellate Division’s order of affirmance and the remand of the matter to that court for de novo consideration of his appeal (Matter of High v Rhay, 519 F2d 109, 113).

For the reasons above stated the order appealed from should be reversed and the matter should be remitted to the Appellate Division for de novo consideration of the appeal.

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

Order reversed, etc.

      .
      POINT I
      "The appellant desires to raise the issue that the court lost jurisdiction of his person when he was removed from the jurisdiction of the Supreme Court of the State of New York, County of Kings, after his trial in violation of GPL Section 580.20 and before sentencing. (See sentencing minutes, Pages 2, 3, and 4.)
      POINT II
      "The appellant maintains that under all the facts and circumstances, the sentence he received was excessive.
      POINT III
      "The appellant maintains that the Penal Law of the State of New York with respect to the criminal sale and criminal possession of cocaine is unconstitutional.
      POINT IV
      "The appellant was denied a fair trial in that the District Attorney’s Office did not provide defense counsel with all the police records which had been subpoenaed prior to trial, until such time as each police officer finished testifying. Thereby, defense counsel was hampered in the preparation of trial for the appellant.”

      . The Appellate Division, on a motion for reargument made by defendant’s present counsel, has reduced the minimum period of incarceration on each sentence to 15 years, in the interest of justice.

      . The problem of the "frivolous” appeal has been an exceedingly troublesome one (see, generally, Conner, Withdrawal of Appointed Counsel From Frivolous Criminal Appeals, 49 Ind L Rev 740; Hermann, Frivolous Criminal Appeals, 47 NYU L Rev 701; Ray, Frivolous Appeals and the Minimum Standards Project: Solution or Surrender?, 24 U of Miami L Rev 95-111; Note, Obligation of Appointed Legal Counsel to Represent an Indigent on Appeal, 17 Drake L Rev 210). Rather than undertake in the context of an individual case a statement of guidelines which will govern many and varying situations, we invite the Appellate Divisions to develop procedures to be followed by an attorney who has been assigned to handle an appeal he considers frivolous and by the court which appointed him.