author: Jones, J.

text:
    In the Matter of John R. Beaudoin, as Commissioner of the Rensselaer County Department of Social Services, Respondent, v Philip L. Toia, as Commissioner of the New York State Department of Social Services, Respondent, and Shirley D. Jorczak et al., Appellants.
    Argued June 5, 1978;
    decided July 13, 1978

      POINTS OF COUNSEL

      Joel F. Spitzer and Edward V. Loughlin for Shirley D. Jorczak, appellant.
    I. The local agency has no standing to judicially challenge a fair hearing decision of the State commissioner. (Dairylea Coop. v Walkley, 38 NY2d 6; Williams v Williams, 23 NY2d 592; Matter of Samuels v Berger, 55 AD2d 913; Matter of Bates v Berger, 55 AD2d 950; Matter of Bonfanti v Kirby, 54 AD2d 714; Matter of Barbaro v Wyman, 32 AD2d 647; Matter of Reed v New York State Dept. of Social Servs., 78 Misc 2d 266; Matter of Symthe v Lavine, 76 Misc 2d 751; Matter of Harbolic v Berger, 43 NY2d 102; Matter of Toia v Regan, 40 NY2d 837.) The State commissioner’s construction of section 382 (subd 1) of the Social Services Law, as not compelling the denial of public assistance to a child brought across State lines for the purpose of receiving public assistance, is rational and reasonable. (Memorial Hosp. v Maricopa County, 415 US 250.) III. The State commissioner’s construction of the Social Services Law, as not permitting the denial of public assistance to a needy child on the ground that her stepaunt is not a proper applicant for public assistance on behalf of the child, is rational and reasonable. IV. There is no basis to conclude that the Legislature intended a needy child who is unable to obtain support from a responsible relative to lose her eligibility for public assistance, based solely upon the ability of her nonresponsible and unwilling surrogate parents to support her. (Matter of Uhrovick v Lavine, 43 AD2d 481, 35 NY2d 892; Matter of Schimmel v Reed, 50 AD2d 1085, 40 NY2d 887; Matter of Cullen v Kramer, 90 Misc 2d 274.) V. The denial of public assistance to an otherwise needy child based solely upon her nonlegally "responsible ’surrogate parents’ ” ability to support her, notwithstanding their express unwillingness to provide such support, deprives such child of due process of law guaranteed to her under the Fourteenth Amendment to the United States Constitution and under the New York State Constitution. (Cleveland Bd. of Educ. v La Fleur, 414 US 632; Vlandis v Kline, 412 US 441; Weinberger v Salfi, 422 US 749; Turner v Department of Employment Security, 423 US 44; Mathews v Lucas, 427 US 495; Juminez v Weinberger, 417 US 628; Heiner v Donnan, 285 US 312; Bell v Burson, 402 US 535; Stanley v Illinois, 405 US 645; United States Dept. of Agric, v Murry, 413 US 508.) VI. The denial of public assistance to a needy child based solely upon the ability of her surrogate parents to maintain themselves, their children, and the unrelated needy child at or above a public assistance level in spite of the fact that they are not responsible for her support and are unwilling to support her is a violation of the State’s affirmative duty under section 1 of article XVII of the New York State Constitution. (Tucker v Toia, 43 NY2d 1; Matter of Colon v Lavine, 48 AD2d 656; Fuller v Nassau County Dept. of Social Servs., 77 Misc 2d 677; Matter of Hudson v Sipprell, 76 Misc 2d 684; Matter of Jones v Berman, 37 NY2d 42.)

      C. Michael Reger for John R. Beaudoin, respondent.
    I. A county commissioner of social services has standing to commence a proceeding pursuant to CPLR article 78 to cause judicial review of fair hearing decisions made by the New York State Commissioner of Social Services. (Matter of Board of Educ. v Allen, 6 NY2d 127; Matter of Dairylea v Walkley, 38 NY2d 6; North City Area-Wide Council v Romney, 428 F2d 754; Data Processing Serv. v Camp, 397 US 150; Matter of

      Lascaris v Wyman, 62 Misc 2d 62; Matter of Almira v Dumpson, 92 Misc 2d 667; Bowen v State Bd. of Social Welfare of State of N. Y., 55 AD2d 235; City of Mount Vernon v State Bd. of Equalization & Assessment, 57 AD2d 12.) II. Strong public policy found in the New York State Social Services Law contains an obligation to care for and maintain the child described herein. The fair hearing decision below was affected by an error of law in applying this law. III. Appellant may have waived or abandoned the issue of standing by failure to assert the issue in any manner before the court below; the issues presented may be moot. (Maloney v Hearst Hotels Corp., 274 NY 106.)
   OPINION OF THE COURT

Jones, J.

We hold that a local County Department of Social Services has no standing in a proceeding under CPLR article 78 to seek judicial review of a determination made by the State Commissioner of Social Services following a fair hearing held at the request of a welfare recipient.

Shirley D. Jorczak, a resident of Rensselaer County in New York State, brought her nine-year-old stepniece from Massachusetts to live with her in this State. The child’s natural mother and stepfather were on public assistance in Massachusetts and gave custody of their daughter to Mrs. Jorczak at the behest of the Massachusetts Department of Social Welfare because the child was alleged to have suffered sexual abuse by her stepfather. The young girl came to the Jorczak home without any resources or income for her support and the income and resources of Mrs. Jorczak and her husband were not available for her support. When the Jorczaks accepted the child into their home it was expected that she would continue to be entitled to public assistance, but from the County of Rensselaer instead of the Commonwealth of Massachusetts.

Mrs. Jorczak’s application on behalf of her stepniece for public assistance was denied by the Rensselaer County Department of Social Services. A fair hearing was held at her request, and the State commissioner, overruling the county department, determined that the child was entitled to public assistance and directed the County Department of Social Services to provide such assistance in accordance with his decision. When the county department failed to do so Mrs. Jorczak instituted the present article 78 proceeding to compel the local agency to comply with the fair hearing determination. The local agency then commenced a parallel article 78 proceeding to annul the State commissioner’s fair hearing decision. The two proceedings were consolidated in Supreme Court and that court then decided the case on the merits in favor of Mrs. Jorczak, thus upholding the fair hearing determination. On appeal the Appellate Division reversed, also on the merits, and annulled the State commissioner’s determination.

From the start, Mrs. Jorczak has contended that the Rensselaer County Department of Social Services has no standing to challenge the fair hearing decision of the State commissioner. Both courts below have rejected this contention. We now reverse, hold that the local agency has no standing to challenge the State commissioner’s ruling, and reinstate his determination, without reaching the merits.

In New York State, the social services program is a State program, administered through the 58 local social services districts under the general supervision of the State Department of Social Services and the State Commissioner of Social Services. (NY Const, art XVII, § 1; Social Services Law, §§ 17, 20, 34.) The county commissioners are denominated by statute "agents” of the State department (Social Services Law, § 65, subd 3). In the administration of public assistance funds, whether they come from Federal, State or local sources, the authority and responsibility is that of the county commissioners of social services, not the counties; the local commissioners act on behalf of and as agents for the State. Each is a part of and the local arm of the single State administrative agency. Determinative of the present question is the status and function of the local commissioners as agents of the State and not of their respective counties.

Inasmuch as the local commissioners are agents of the State department they may not substitute their interpretations of the regulations of the State department for those of the State department or the State commissioner (Matter of Samuels v Berger, 55 AD2d 913; Matter of Bonfanti v Kirby, 54 AD2d 714; Matter of Barbaro v Wyman, 32 AD2d 647). To recognize any such right would be to undermine the supervisory authority of the State commissioner and to invite administrative chaos. By like token, the local commissioners have no standing to seek a judicial review of the fair hearing determinations of the State commissioner that interpret or apply such regulations (Matter of Bates v Berger, 55 AD2d 950; Matter of Reed v New York State Dept. of Social Servs., 78 Misc 2d 266; Matter of Smythe v Lavine, 76 Misc 2d 751). In a familiar form of expression, the local commissioner as agent of the State department is not, and cannot be, an "aggrieved party”. Indeed section 353 of the Social Services Law explicitly provides with respect to fair hearing determinations made by the State commissioner — "All such decisions of the department shall be binding upon the social service official involved and shall be complied with by him.” (Cf. Social Services Law, § 135-c.) The statutory provision is implemented by an explicit provision of 18 NYCRR 358.18 (a) — "The decision shall be binding upon the social services official” — and that official is required to comply promptly (18 NYCRR 358.22).

Even if considerations of State law did not dictate this result and preclude such challenges by a local commissioner, the mandate of Federal law would do so in this instance. Inasmuch as New York State has elected to participate in the Federal aid to families with dependent children program (the program under which Mrs. Jorczak sought the public assistance grant for her stepniece), the State is required to comply with the applicable Federal statute and regulations (Matter of Dunbar v Toia, 45 NY2d 764, 766 [decided herewith]). Central to the Federal program, and directly relevant here, is the Congressional requirement that any State plan under the AFDC program be administered or supervised by "a single State agency”. Section 602 of the Social Security Act provides explicitly: "(a) A State plan for aid and services to needy families with children must (1) provide that it shall be in effect in all political subdivisions of the State, and, if administered by them, be mandatory upon them * * * (3) either provide for the establishment or designation of a single State agency to administer the plan, or provide for the establishment or designation of a single State agency to supervise the administration of the plan”. (Emphasis added; US Code, tit 42, § 602; cf. 45 CFR 205.100 [a] [1] [i].) The associated Federal regulations preserve to the single State agency the conclusiveness of its rule-making authority even where, as in New York State, the social services program is administered through a network of subdesignated local agencies: "In the event that any services are performed for the single State agency by other State or local agencies or offices, such agencies and offices must not have authority to review, change, or disap prove any administrative decision of the single State agency, or otherwise substitute their judgment for that of the agency as to the application of policies, rules, and regulations promulgated by the State agency.” (Emphasis added.) (45 CFR 205.100 [b] [3].) Further Federal regulations explicitly state that when the fair hearing decision is favorable to the claimant, the local agency shall promptly make the corrective payments (45 CFR 205.10 [a] [18]).

It is pertinent that the Federal Department of Health, Education and Welfare has taken "the position that local social service districts may not seek judicial review of fair hearing decisions in favor of claimants without violating federal requirements that an AFDC program be administered by a single State agency (42 USC, § 602[a][3])”.

We agree with the Appellate Division, Second Department, which has concluded, as do we, that local commissioners of social services have no standing in an article 78 proceeding to challenge the fair hearing determinations of the State commissioner. (Cf. Matter of Samuels v Berger, 55 AD2d 913, supra; Matter of Bates v Berger, 55 AD2d 950, supra; Matter of Bonfanti v Kirby, 54 AD2d 714, supra; Matter of Barbaro v Wyman, 32 AD2d 647, supra.)

Inasmuch as the Commissioner of the Rensselaer County-Department of Social Services does not have standing in this instance to question the determination of the State Commissioner of Social Services directing the payment of AFDC benefits to Mrs. Jorczak for the benefit of her stepniece, there is no occasion to reach or consider the merits of that determination.

Accordingly, the order of the Appellate Division should be reversed, with costs to appellant payable by respondent Commissioner of the Rensselaer County Department of Social Services, and the judgment of Supreme Court reinstated.

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

Order reversed, etc.

       See letter from Acting Assistant Regional Commissioner for Family Assistance accompanying the brief of appellant in this court.
      Bills have been introduced in the Legislature to amend section 353 and related sections of the Social Services Law to accord the local social services districts a right of judicial review of fair hearing determinations, e.g., by adding to the portion of section 353 quoted above, page 4, the clause, "however article seventy-eight of the civil practice law and rules shall apply”. Assembly Bill No. 5948 (see § 4) passed both Houses of the Legislature in 1971 but was vetoed on July 6, 1971 by Governor Rockefeller with the statement,
      "The bill would authorize a local social services department to appeal a final determination of the State Department of Social Services pursuant to Article 78 of the Civil Practice Law and Rules.
      "The Federal statutes require that each of the categorical assistance programs be administered by a single state agency which establishes the policy and rules to be followed statewide and supervises local administrations to ensure that such policy and rules are so followed. See 42 U.S.C. § 602(a)(3). Further, the Federal regulations require that final determinations of the state agency be binding on the state and on local agencies. See 45 Code of Federal Regulations, 205-10(a)(ll). The Department of Social Services has been advised by Federal authorities that the bill would raise a serious question of non-conformity with these Federal requirements that could result in a complete loss of Federal reimbursement funds under the categorical assistance programs.” (Public Papers of Governor Rockefeller, 1971, Memo No. 270, p 501.)
      A similar bill was introduced in 1976 (Senate Bill No. 9401 [see § 2]). This bill was passed by the Senate on May 20, 1976 and sent to the Assembly Social Services Committee on May 21, 1976. It was not reported out of that committee. (See 1976 Senate Introductory Record, S 769.) See, also, chapter 473 of the Laws of 1978, signed into law July 11, 1978, granting a conditional right of review with respect to appeals decided by the State Commissioner of Social Services after the effective date of the chapter.


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of Cassandra Lumpkin, on Behalf of Herself and All Other Persons Similarly Situated, Appellant, v Department of Social Services of the State of New York et al., Respondents.
    Argued June 5, 1978;
    decided July 13, 1978

      POINTS OF COUNSEL

      Jonathan P. Harvey for appellant.
    I. Respondents acted arbitrarily, capriciously and contrary to law by applying petitioner’s "necessary or essential school expenses” in their computation of petitioner’s available income. (Brown v Bates, 363 F Supp 897; Elam v Hanson, 384 F Supp 549; Matter of Ferguson v Sipprell, 91 Misc 2d 281.) II. Respondents acted arbitrarily, capriciously and contrary to law in determining that petitioner’s tuition assistance program grant was not used for "necessary or essential school expenses”.

      Louis J. Lefkowitz, Attorney-General (Clifford A. Royael and Jean M. Coon of counsel), for the Department of Social Services of the State of New York and another, respondents.
    I. The commissioner’s fair hearing decision was lawful and proper, comported with the requirements of the pertinent statutes and regulations and was not arbitrary and capricious. (Matter of Howard v Wyman, 28 NY2d 434; Stutzman v Fahey, 90 Misc 2d 501; Markham v Cabell, 326 US 404; Tavorez v Sipprell, 83 Misc 2d 598; Richman v Juras, 393 F Supp 349; Brown v Bates, 363 F Supp 897; Elam v Hanson, 384 F Supp 549; Matter of Ferguson v Sipprell, 91 Misc 2d 281.)

      Stanley G. Walker, Jr., Philip R. Murray and Robert Lyman for John J. Fahey and another, respondents.
    I. The policy is just, legal, and proper in all respects, and in conformity with all applicable laws and regulations, and is supported by substantial rational basis. (Matter of Howard v Wyman, 28 NY2d 434.) II. The fair hearing decisions comport with Federal requirements in that respondents may compare the Federal grants and loans and petitioner’s educational expenses and apply such educational expenses. (Richman v Juras, 393 F Supp 349; Stutzman v Fahey, 90 Misc 2d 501.) III. The decision after fair hearing comports with Federal and State requirements in that a New York Tuition Assistance Program grant is not restricted so as to require that it be disregarded in determining petitioner’s public assistance grant. (Richman v Juras, 393 F Supp 349; Matter of Howard v Wyman, 28 NY2d 434.) IV. This matter is moot. V. The equities lie with the State and county.

      Catherine P. Mitchell, Michael A. O’Connor, Lewis Klee, John C. Gray, Jr., Gretchen Sprague, Marilyn Zahm and George Cownie for Community Action For Legal Services, Inc., and others, amici curiae.

    I. Respondents’ requirements that "exempt” scholarships be committed to specific educational expenses violates Federal and State law. (King v Smith, 392 US 309.) II. Respondents’ utilization of appellant’s TAP grant violates Federal and State law. (United States v Florida East Coast Ry. Co., 410 US 224; King v Smith, 392 US 309; Van Lare v Hurley, 421 US 338.)
   OPINION OF THE COURT

Jones, J.

We uphold the practice of the State Department of Social Services, in reckoning the amount of aid to dependent children benefits (AFDC), first to allocate Federal educational grants to the payment of educational and education-related expenses, and in the event of an excess of such expenses then to allocate State and private educational grants to such excess to the extent required, with any remáining surplus of grant to be considered as available income in computation of the AFDC allowance.

In the present case during the period petitioner was eligible for AFDC she was attending Albany Business College. Her educational expenses, made up of tuition ($800), fees ($50), and books ($75), totaled $925. She was receiving educational grants —a Federal Basic Education Opportunity Grant (BEOG) of $700 and a New York Tuition Assistance Program (TAP) grant of $750. The Albany County Department of Social Services in recomputing her AFDC entitlement first applied the BEOG against the educational expenses, leaving an excess of such expenses of $225. The county department then allocated that amount of the TAP grant for this purpose and considered the $525 resulting balance of the TAP grant as available income in computing petitioner’s AFDC allowance.

After a fair hearing the State Commissioner of Social Services upheld the action of the local department. Petitioner thereupon instituted the present proceeding under CPLR article 78 to review the State commissioner’s determination. Special Term annulled the determination and the Appellate Division reversed. We now affirm the Appellate Division, thereby upholding the method of computation employed by the local department and approved by the State commissioner.

Inasmuch as the State of New York has elected to participate in the Federal aid to families with dependent • children program, Federal statutes and regulations are controlling to the extent that they are applicable (Matter of Dunbar v Toia, 45 NY2d 764, 766 [decided herewith]). By way of relevant statutory provision, section 602 (subd [a], par [7]) of title 42 of the United States Code provides: "A State plan for aid and services to needy families with children must * * * provide that the State agency shall, in determining need, take into consideration any other income and resources of any child or relative claiming aid to families with dependent children” (emphasis added). Section 507 of Public Law 90-575 (82 US Stat 1063) provides: "For the purpose of [the aid to families with dependent children program, inter alia] no grant or loan to any undergraduate student for educational purposes made or insured under any program administered by the Commissioner of Education shall be considered to be income or resources.” Federal regulations adopted to implement the AFDC program provide that, in determining the availability of income and resources, grants (such as scholarships) which are obtained and used under conditions that preclude their use for current living costs shall not be included as income (45 CFR 233.20 [a] [3] [iv] [b]), and further provide that, in determining need and the amount of the assistance payment, any grant to an undergraduate student for educational purposes made or insured under programs administered by the Commissioner of Education shall be disregarded as income and resources (45 CFR 233.20 [a] [4] [ii] [d]).

Pertinent regulations of the New York State Department of Social Services provide that no part of a grant that is necessary to cover the cost of necessary or essential school expenses (e.g., tuition, books, fees, equipment, special clothing needs, transportation to and from school, and child-care services necessary for school attendance), and is actually so used, shall be considered as income in determining need and amount of assistance (18 NYCRR 352.16 [c] [1]), and that no grant to an undergraduate student for educational purposes made or insured under any program administered by the United States Commissioner of Education shall be considered as income or resources in determining need and amount of assistance (18 NYCRR 352.16 [c] [2]).

For purposes of the present proceeding, petitioner concedes that to the extent TAP and other non-Federal educational awards exceed necessary and essential school expenses as defined in 18 NYCRR 352.16 (c) (1) such excess may properly be considered income and resources for the purpose of determining AFDC allowances. It is petitioner’s contention, however, that in computing the amount by which such non-Federal educational awards exceed necessary and essential school expenses it is improper under the applicable statutes and regulations first to reduce such expenses by the amount of BEOG or other Federal educational grants. The county department and the State commissioner interpret the same statutes and regulations to permit the application of both Federal and State educational grants to defray actual educational expenses for which they were awarded. They recognize that any excess of a Federal grant over actual educational expenses cannot be considered in determining public assistance needs, but assert that no such restriction applies to any excess of a State educational grant. Finally, it is their position that in applying Federal and State educational grants, they may apply them against actual educational expenses in that order, i.e., first the more restricted Federal grant and then the less restricted State grant, thereby to produce the final maximum deduction in computation of public assistance entitlement.

Initially we observe that the interpretation placed on the statutes by the commissioner should be accepted if it is not irrational or unreasonable (Matter of Howard v Wyman, 28 NY2d 434, 438). It cannot be said, absent an explicit restriction, that it is irrational to apply an educational grant to educational expenses, the very purpose for which the grant was awarded. Thus, we start with the premise that either BEOG or TAP awards may properly be allocated to actual educational expenses. Inasmuch as there is a restriction on the application of any excess of the Federal grant whereas no such restriction attaches to any excess with respect to the State grant, it is apparent that different consequences will attend the order of application of the two educational grants. We perceive no proscription in statute or regulation against the commissioner’s selecting a priority of application which will operate to produce the maximum reduction in the public assistance grant. From the recipient’s point of view, much as she might enjoy the use of the additional funds, it was the purpose of both educational grants to meet the legitimate costs of education, not to provide the grantee with free funds in excess thereof. In a practical sense the BEOG and TAP awards may be said to overlap, and to that extent to be duplicative. From the standpoint of the public fisc, it makes little sense to urge that public assistance funds should be expended notwithstanding that the recipient has an excess of funds to meet her educational needs. If it be considered that educational funds are being used to subsidize welfare programs, the remedy, if any be needed, lies in the monitoring of educational grants to eliminate duplication.

The allocation procedure employed by the State commissioner satisfies both the objective of the educational grant programs (to enable the grantee to obtain an education which otherwise might be denied her) and the two-fold objectives of the AFDC program (to furnish financial assistance to needy dependent children and the parents or relatives with whom they are living to help maintain and strengthen family life, and to help such parents or relatives to attain or retain capability for maximum self-support [US Code, tit 42, § 601]), while practicing a responsibly frugal stewardship of available public assistance funds.

Finally, it is not without significance that the officials of the Federal Department of Health, Education and Welfare advise that the allocation procedures employed by the State commissioner are acceptable to the Federal authorities from both a legal and a programmatic point of view.

We therefore reject the contentions advanced on behalf of petitioner and sustain the determination made by the State commissioner. (Cf. Richman v Juras, 393 F Supp 349.)

Accordingly, the order of the Appellate Division should be affirmed, without costs.

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

Order affirmed.

       See letters from the Acting Assistant Regional Commissioner for the Office of Family Assistance, which accompany respondents’ brief in this court.


author: Jasen, J.

text:
    In the Matter of United Nations Development Corporation, Appellant, v Norkin Plumbing Co., Inc., Respondent.
    Argued June 9, 1978;
    decided July 13, 1978

      POINTS OF COUNSEL

      Donald J. Cohn and Catherine R. McCabe for appellant.
    The arbitration clause is clear and unambiguous and a determination of whether Norkin complied with it is for the court. (Matter of Methodist Church of Babylon [Glen-Rich Constr. Corp.], 27 NY2d 357; Matter of Board of Educ. [Heckler Elec. Co.], 7 NY2d 476; Kahn v Biernbaum, 55 AD2d 589; Matter of Broadway-40th St. Corp. [President & Directors of Manhattan Co.], 271 App Div 219, 296 NY 165; Matter of Duke Labs. [Lutz Co.], 9 Misc 2d 779, 8 AD2d 800; Matter of River Brand Rice Mills v Latrobe Brewery Co., 305 NY 36; Matter of Board of Educ. v Bernard Assoc. No. 3, 11 AD2d 1038; Matter of Frouge Corp. [New York City Housing Auth.], 26 AD2d 269; Matter of Greater N. Y. Term. [Horn Constr. Co.], 12 AD2d 820.)

      Erwin L. Corwin and Susan G. Rosenthal for respondent.
    The condition precedent clause is ambiguous and a determination of its meaning and whether Norkin complied with it is for the arbitrators. (Pearl St. Dev. Corp. v Conduit & Foundation Corp., 41 NY2d 167; Matter of Exercycle Corp. [Maratta], 9 NY2d 329; Matter of Dimson v Elghanayan, 19 NY2d 316; Matter of De Luca [MVAIC], 17 NY2d 76; New York Inst. of Tech. v Council of Metropolitian & Old Westbury Chs., Amer. Assn. of Univ. Professors, 47 AD2d 659; Industrial Iron &

      Steel Prods. Co. v General Bronze Architectural Prods., Div of Allied Prods. Corp., 85 Misc 2d 379; Grien v Grien, 51 AD2d 543; Matter of Broadway-40th St. Corp. [President & Directors of Manhattan Co.], 271 App Div 219, 296 NY 105; Matter of Duke Labs. [Lutz Co.], 9 Misc 2d 779, 8 AD2d 800; Matter of Board of Educ. v Bernard Assoc. No. 3, 11 AD2d 1038.)
   OPINION OF THE COURT

Jasen, J.

Upon this appeal, the issue posed for our consideration is whether the commercial arbitration agreement to which the parties have subscribed contains an express condition precedent to the submission of a dispute to arbitration, such that the question of compliance with that condition constitutes a threshold inquiry for judicial resolution, rather than a matter of procedural arbitrability falling within the prerogative of the arbitrator.

Appellant United Nations Development Corp., a nonprofit public benefit corporation, undertook the construction of office space, hotel accommodations and other facilities for the United Nations Community, including a 39-story combination hotel and office building. Respondent Norkin Plumbing Co. successfully bid on the subcontract to perform the plumbing work on the proposed building. The resulting contract provided for the completion by respondent of all the necessary plumbing work for the building in accordance with a construction schedule designed to ensure occupancy in August of 1975. As is often the case, however, delays occurred impeding respondent’s performance to the point where the necessary plumbing installations were not completed until June of 1976.

As a consequence of these delays — delays which it attributed to appellant — respondent served a demand for arbitration before the American Arbitration Association on August 24, 1976. Appellant commenced this proceedng to stay arbitration on the ground that the demand was not made within 60 days after the claim arose, as provided by the contract. Thereafter, respondent served a cross motion to compel arbitration.

Supreme Court, New York County, dismissed appellant’s petition to stay arbitration and granted respondent’s cross motion to compel arbitration holding that the timeliness of the demand for arbitration presented a question to be determined by the arbitrator. The Appellate Division, First Department, unanimously affirmed, without opinion.

We hold that the contractual limitation upon the time within which a demand for arbitration was required to be filed does not constitute an express condition precedent permitting threshold judicial resolution of the question of compliance, but, rather, constitutes a matter of procedural arbitrability to be determined by the arbitrator.

At the center of this dispute lies paragraph 7.10.2 of article 7 of the parties’ agreement, which provides, inter alia, that a "demand for arbitration shall be made within 60 days after the claim, dispute or other matter in question has arisen, and in no event shall it be made after the date when institution of legal or equitable proceedings based on such claim, dispute or other matter in question would be barred by the applicable statute of limitations.” The 60-day demand requirement was included in the construction contract by way of modification of the standard form contract used by the parties: namely, the "General Conditions of the Contract for Construction” formulated by the American Institute of Architects. Prior to the parties’ inclusion of a 60-day demand requirement, the standard form contract provided for the filing of a notice of demand to arbitrate within a "reasonable time” after the claim arose, as limited peripherally by the applicable Statute of Limitations.

In the courts below, appellant has maintained that paragraph 7.10.2 of the parties’ agreement constitutes a condition precedent, clear and unambiguous in its meaning, permitting judicial resolution of the timeliness of respondent’s filing of a notice of demand to submit their dispute to arbitration. In rebuttal, respondent has argued that this contractual limitation upon the time within which to demand arbitration is ambiguous, and, therefore, its meaning and respondent’s compliance with its mandate should be left to the arbitrator. In our view, the parties have misperceived the issue by focusing their attention entirely upon the clarity or ambiguity of the condition precedent to arbitration contained in their agreement. In so doing, they have overlooked a far more primary question: that is, whether the condition imposed by their agreement is an express or implied condition precedent. In our opinion, this distinction is crucial to an appropriate analysis of the instant case.

Our analysis begins, as it must, with CPLR 7503 (subd [b]), which delineates the narrow scope of threshold judicial inquiry permissible upon an application to stay arbitration. In addition to determining whether there exists a valid agreement between the parties, the court may also determine whether the agreement has been complied with and whether the claim raised is barred by the applicable Statute of Limitations. (See CPLR 7502, subd [b]; see, generally, Siegel, New York Practice, § 590.) Of simplest resolution is the case in which the parties to an arbitration agreement are bound not by a contractual limitation to the submission of a claim to arbitration, but by the applicable Statute of Limitations. In such a case the timeliness of a demand for arbitration presents a question for judicial determination. (See, e.g., Matter of Paver & Wildfoerster [Catholic High School Assn.], 38 NY2d 669, 673-674.)

Similarly, where there exists a statutory condition precedent, as distinguished from a Statute of Limitation, compliance with that condition also falls within the threshold jurisdiction of the court. Typical of this case is Matter of Board of Educ. (Wager Constr. Corp.) (37 NY2d 283), in which we held that section 3813 of the Education Law, requiring timely service of a notice of claim upon boards of education against which a party alleges the existence of a claim, constitutes a condition precedent to arbitration, the fulfillment of which is a question for the court. (Id., at p 289; see Matter of Board of Educ. [Heckler Elec. Co.], 7 NY2d 476; Matter of Guilderland Cent. School Dist. [Guilderland Cent. Teachers Assn.], 45 AD2d 85.)

Unlike statutory conditions precedent, however, contractual conditions precedent are not governed by a rule given to so facile an application. Of critical importance in this area is the nature of the arbitration agreement: that is, whether it contains a broad or narrow arbitration clause. Where the agreement contains a broad clause, compliance with contractual notice provisions as well as time requirements in the grievance procedure are issues to be determined by the arbitrator. (Matter of Board of Educ. [Wager Constr. Corp.], 37 NY2d, at pp 288-289, supra.) This is so whether the arbitration involves a commercial transaction or a collective bargaining agreement. (See id., at p 289, citing Matter of Novelty Fabrics Corp. [Lawrence J. Fink, Inc.], 1 AD2d 949, affd 2 NY2d 894 [commercial transaction]; Matter of City School Dist. of City of Poughkeepsie [Poughkeepsie Public School Teachers Assn.], 35 NY2d 599; Matter of Long Is. Lbr. Co. [Martin], 15 NY2d 380 [collective bargaining agreements].) To be distinguished, however, is the narrow arbitration clause in which the parties have indicated their desire to withhold from the arbitrator full power to resolve all aspects of their disputes. When faced with a clause of this nature on an application to stay arbitration, courts have on occasion retained jurisdiction to determine whether there has been compliance with a condition precedent to submission of a claim to arbitration. (See, e.g., Matter of Blends, Inc. [Schottland Mills], 35 AD2d 377, affd 29 NY2d 575; Matter of Methodist Church of Babylon [Glen-Rich Constr. Corp.], 29 AD2d 773.)

Returning to a discussion of broad arbitration clauses, we must note that the rule providing for resolution by the arbitrator of questions of compliance with conditions precedent is not without exception. Notwithstanding the existence of a broad arbitration clause, compliance with contractual limitations, expressly made conditions precedent to arbitration by the parties’ agreement, is a question for threshold judicial resolution. (See, e.g., Matter of Raisler Corp. [New York City Housing Auth.], 32 NY2d 274; Matter of Wilaka Constr. Co. [New York City Housing Auth.], 17 NY2d 195.)

Significantly, in the present case the agreement of the parties contains a broad arbitration clause, providing for arbitration of "all claims, disputes, and other matters in question arising out of, or relating to, this Contract or the breach thereof’. Noticeably absent from paragraph 7.10.2 of the agreement, the contractual limitation at issue here, is any language making the provisions of that paragraph an express condition precedent to submission of a claim to arbitration. Consequently, the question of compliance with the conditions contained in that paragraph must be determined by the arbitrator, rather than by the court.

In this regard, any reliance upon our decision in Pearl St. Dev. Corp. v Conduit & Foundation Corp. (41 NY2d 167) is misplaced. In Pearl St., we reiterated the general rule that compliance with express conditions precedent is a question for judicial resolution. However, we noted that, unlike the usual case where the issue before the court is compliance with express conditions precedent, Pearl St. presented a more primary threshold inquiry: whether the express conditions precedent were made a part of the contract between the parties. This initial question arose because of the existence of two contracts governing the rights and obligations of the parties: a contract between the litigating parties — prime contractor and subcontractor — containing a broad arbitration clause lacking any conditions precedent and a contract between the prime contractor and the owner containing a broad arbitration clause limited by express conditions precedent. A question of interpretation resulted because of the presence of a clause in the subcontract in which the parties agreed to be bound by the terms of the general contract. As a result, it was unclear whether the conditions precedent contained in the general contract, although express, applied to the arbitration of claims alleged by the subcontractor against the prime contractor. In light of the broad arbitration clause contained in the subcontract, we concluded that this issue, like any other issue of construction or interpretation, should be determined by the arbitrator. (Id., at p 171.)

For the above-expressed reasons, we agree that appellant’s application for a stay of arbitration was correctly denied, but not because the condition precedent was ambiguous, as found by Supreme Court, but, rather, because it was not expressly made a condition precedent to arbitration.

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

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

Order affirmed.

       Specifically, the clause provides: "Except as otherwise provided in the Agreement, all claims, disputes and other matters in question arising out of, or relating to, this Contract or the breach thereof, except as set forth in Subparagraph 2.2.9 with respect to the Architect’s decisions on matters relating to artistic effect, and except for claims which have been waived by the making or acceptance of final payments as provided by Subparagraphs 9.7.5 and 9.7.6, shall be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association then obtaining unless the parties mutually agree otherwise”.


author: Wachtler, J. Jasen, J.

text:
    The People of the State of New York, Respondent, v Nathaniel Grant, Appellant.
    Argued June 9, 1978;
    decided July 13, 1978

      POINTS OF COUNSEL

      Paul F. McAloon and William E. Hellerstein for appellant.
    I. Appellant’s confession, the product of an improper continuation of interrogation after he requested an attorney, was taken in violation of the Federal and State Constitutions and should be suppressed. (United States v Clark, 499 F2d 802; United States v Slaughter, 366 F2d 833; People v Jackson, 41 NY2d 146; Miranda v Arizona, 384 US 436; Michigan v Mosley, 423 US 96; People v Helstrom 50 AD2d 685, 40 NY2d 914; People v Paulin, 25 NY2d 445; People v Bowers, 45 AD2d 241; United States v Blair, 470 F2d 331, 411 US 908; United States ex rel. William v Twomey, 467 F2d 1248.) II. Where appellant stated that he was intoxicated, the court should not have accepted the plea without first determining whether appellant knew that intoxication could negate a finding that he intended to kill. (People v Orr, 43 AD2d 836, 35 NY2d 829; People v Lee, 35 NY2d 826; People v Trisvan, 49 AD2d 913; People v Piranian, 47 AD2d 668; People v Serrano, 15 NY2d 304; People v Francis, 38 NY2d 150.)

      Robert M. Morgenthau, District Attorney (Norman Barclay, Robert M. Pitler and Richard Hamburger of counsel), for respondent.
    I. Grant’s statement was properly obtained and admissible evidence. (Miranda v Arizona, 384 US 436; People v Gary, 31 NY2d 68; Michigan v Mosley, 423 US 96; Brewer v Williams, 430 US 387; People v Hobson, 39 NY2d 479; People v Donovan, 13 NY2d 148; People v Ramos, 40 NY2d 610;
      People v Vella, 21 NY2d 249; People v Gunner, 15 NY2d 226; People v Buxton, 44 NY2d 33.) II. Grant’s plea of guilty was properly accepted by the court. (People v Serrano, 15 NY2d 304.)
   OPINION OF THE COURT

Wachtler, J.

The defendant, after being arrested and advised of his rights, requested the assistance of counsel. Ten minutes later, without having consulted an attorney, he was readvised of his rights, waived them and made a statement because, in the interim, the arresting officer had given him a fuller "explanation” or "understanding” by advising him of the strength of the case against him. A pretrial motion to suppress the confession was denied and, after the People had rested their case at trial, the defendant pleaded guilty to the murder count of an indictment charging him with murder and possession of a weapon.

On this appeal the defendant claims that the confession was obtained in violation of standards established in Miranda v Arizona (384 US 436) and thus should have been suppressed. He claims that the Miranda case establishes a per se rule prohibiting the police from resuming the interrogation, in the absence of counsel, once the defendant has requested an attorney’s assistance. In the alternative he claims that the relinquishment of his rights was not voluntary, under Miranda standards, because the arresting officer disregarded his request for counsel and engaged in conduct which undermined, and was calculated to undermine, his decision to consult an attorney before answering questions. The People, in addition to disputing these points, urge that the denial of the motion, if erroneous, was harmless in light of the other evidence of defendant’s guilt presented at trial prior to his plea of guilty.

On June 16, 1974 Earl Stokes was shot to death in a Manhattan apartment. Approximately one week later (June 24) a New York City police officer, Detective Campbell, arrested the defendant for the killing. At the time of the arrest a handgun, found in the defendant’s room, was also seized. Detective Campbell took the defendant to the police station and, before advising him of his rights, asked the defendant if he was willing to talk to the District Attorney. The defendant said that he was. The officer then called an Assistant District Attorney who came to the station house accompanied by a stenographer. At 8:33 p.m. the defendant was taken before the prosecutor who advised him of his rights for the first time. When the defendant was informed of his right to have an attorney present during the questioning, he requested the assistance of counsel. The questioning was terminated and the defendant was taken from the room. Nothing, however, was done to assist the defendant in obtaining counsel. Instead Detective Campbell asked the prosecutor not to leave because he was going to speak to the defendant again.

As Detective Campbell was escorting the defendant from the interrogation room they passed the defendant’s girlfriend who was proceeding toward the room. Then, according to the officer’s testimony at the hearing, "I asked Mr. Grant why he agreed for the District Attorney to come down, and when he came down he didn’t * * * now he doesn’t want to speak to him, and I also explained to him that we had several witnesses against him, one being his girlfriend. There were two others that were playing cards at the scene, and I explained this to him. At this point he said that he wants to go see the District Attorney, he wants to speak to the District Attorney.”

At 8:47 p.m. the defendant reappeared before the prosecutor and was readvised of his rights. When he was asked whether he was willing to answer questions without the presence of a lawyer the defendant responded "Yes, I’m willing to answer questions”. The questioning continued as follows:

"Q. You indicated to me before you didn’t want to talk to me without a lawyer.

"A. That’s because I didn’t fully understand.

"Q. Do you understand what I just said to you now?

"A. I understand.

"Q. Are you willing to talk to me even though you told me before you didn’t want to talk to me.

"A. I didn’t understand and the detective explained to me.

"Q. Did the detective explain anything different to you than I just explained.

"A. Not exactly, no. More or less what he said confirms what you said, but just that I didn’t have the right knowledge of it.”

Thus within approximately 10 minutes after requesting an attorney’s assistance, the defendant waived his rights and confessed to the killing.

At the conclusion of the suppression hearing the court held the confession admissible on the ground that the defendant had knowingly and voluntarily waived his rights. Ruling from the Bench the court stated that the prosecutor had properly terminated the questioning when the defendant requested the assistance of counsel. The court held, however, that questioning could resume if the defendant changed his mind provided that did "not come about through coercion or abuse of official power.” With respect to the comments made by Detective Campbell which led the defendant to waive the rights he had previously asserted the court concluded "that there was no coercive interrogation, that there were no threats, that there were no specific promises or inducements of any kind other than an opportunity for Mr. Grant to reconsider his position.”

At trial the People submitted the confession in evidence and called three eyewitnesses who identified the defendant as the killer. The prosecutor also called a ballistics expert who testified that a bullet found under the victim’s body was fired from the gun taken from the defendant’s room. When the People rested the defendant offered to change his plea and, as noted, pleaded guilty to the murder count of the indictment. He was sentenced to 18 years to life imprisonment.

The Appellate Division affirmed, without opinion. Two Justices concurred in result holding that the confession should have been suppressed but that the error was harmless considering the other evidence submitted by the People at the aborted trial (59 AD2d 661).

In the Miranda case the Supreme Court adopted "safeguards” to insure that statements obtained as a result of custodial interrogation are "truly the product of free choice” (Miranda v Arizona, supra, p 457). It is also basic, but important to emphasize at the outset in this case, that if the authorities do not observe these safeguards the resulting statement is not admissible in evidence even though it may not be said "to have been involuntary in traditional terms” (Miranda v Arizona, supra, p 457; Michigan v Tucker, 417 US 433, 445; Michigan v Mosley, 423 US 96, 99-100).

In Miranda the court established two different types of safeguards. First it prescribed the now familiar Miranda warnings which the authorities must give to all persons held in custody before interrogation commences (see Miranda v Arizona, supra, p 444). Secondly the court established the less familiar procedures the police must follow if an individual asserts his rights by requesting counsel or electing to remain silent.

With respect to the right to remain silent the court states: "If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked” (Miranda v Arizona, supra, pp 473-474). In a footnote, however, the court suggested that "If an individual indicates his desire to remain silent, but has an attorney present, there may be some circumstances in which further questioning would be permissible. In the absence of evidence of overhearing, statements then made in the presence of counsel might be free of the compelling influence of the interrogation process and might fairly be construed as a waiver of the privilege for purposes of these statements” (Miranda v Arizona, supra, p 474, n 44).

With respect to a request for counsel the court was apparently more specific: "If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. At that time, the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning. If the individual cannot obtain an attorney and he indicates that he wants one before speaking to police, they must respect his decision to remain silent” (Miranda v Arizona, supra, p 474 [emphasis added]).

In Miranda and the companion cases the court suppressed all the statements because it found that none of the defendants had been given adequate warnings. It thus had no occasion to consider the application of the procedures it had indicated should be followed when a defendant asserts his rights. It was not until the recent case of Michigan v Mosley (423 US 96, supra) that the court was presented with a claim that the police had violated the second level safeguards by renewing interrogation after the defendant asserted his rights.

In Mosley the defendant was arrested for two robberies and was advised of his rights. He stated that he did not want to answer any questions about the robberies but he did not request an attorney. The interrogation was immediately terminated. Two hours later, however, another officer investigating an unrelated murder advised the defendant of his rights and questioned him about the homicide. On this occasion the defendant made a statement implicating himself in the homicide. The State’s highest court held this statement inadmissible under Miranda, but the United States Supreme Court reversed.

Although Miranda (supra, p 474) states that "the interrogation must cease” when the defendant indicates that he wishes to remain silent, the Supreme Court noted in Mosley that it "does not state under what circumstances, if any, a resumption of questioning is permissible” (Michigan v Mosley, supra, p 101). The court indicated that the passage could be "literally read” in various ways. It could, for instance, "be read to create a per se proscription of indefinite duration” prohibiting any further questioning of the defendant on any subject, by any officer, at any time or place; or it could simply mean that the police must immediately stop the questioning, but could resume the interrogation "after a momentary respite” (Michigan v Mosley, supra, pp 101-102).

Rejecting the literal interpretations the court held instead that "the critical safeguard identified in the passage” was the individuals’ right "to cut off the questioning” so as to control the timing, subjects and duration of the interrogation, all of which serves to counteract "the coercive pressures of the custodial setting” (Michigan v Mosley, supra, pp 103-104). Thus the court concluded that "the admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether his 'right to cut off questioning’ was 'scrupulously honored’ ” (Michigan v Mosley, supra, p 104). Under the circumstances the court held that the police had respected that right in Mosley’s case. The court noted that when the defendant informed the first officer that he did not want to discuss the robberies the officer "immediately ceased the interrogation and did not try either to resume the questioning or in any way persuade Mosley to reconsider his position * * * This is not a case, therefore, where the police failed to honor a decision of a person in custody to cut off questioning, either by refusing to discontinue the interrogation upon request or by persisting in repeated efforts to wear down his resistance and make him change his mind. In contrast to such practices, the police here immediately ceased the interrogation, resumed questioning only after the passage of a significant period of time and the provision of a fresh set of warnings, and restricted the second interrogation to a crime that had not been a subject of the earlier interrogation” (Michigan v Mosley, supra, pp 104-106).

The court’s analysis in Mosley shows that when the defendant waives his Miranda rights after he has initially asserted the right to remain silent, the admissibility of his statement does not depend solely on the voluntariness of the waiver "in traditional terms” (Miranda v Arizona, supra, p 457; Michigan v Mosley, supra, pp 99-100). The court must first determine whether the police complied with the second level procedures established in Miranda, by "scrupulously honoring” the defendant’s right to "cut off the questioning”. This distinction was underscored by Justice White’s concurring opinion in which he urged that the voluntariness of the waiver should be the only consideration once the defendant has been advised of his rights (Michigan v Mosley, supra, pp 107-111).

In Mosley of course the court was not concerned with the procedure the police must follow when a defendant asserts his right to counsel (see Michigan v Mosley, supra, p 101, n 7). However in response to the dissent’s suggestion that the questioning should not resume until an attorney appears when the defendant indicates his desire to remain silent the majority observed that "clearly the Court in Miranda imposed no such requirement, for it distinguished between the procedural safeguards triggered by a request to remain silent and a request for an attorney and directed that the 'interrogation must cease until an attorney is present’ only '[i]f the individual states that he wants an attorney’ ” (Michigan v Mosley, supra, p 104, n 10). Similarly in his concurring opinion Justice White noted that when the Miranda court "wanted to create a per se rule against further interrogation after assertion of a right, it knew how to do so. The Court there said '[i]f the individual states that he wants an attorney, the interrogation must cease until an attorney is present’ ” (Michigan v Mosley, supra, pp 109-110). The dissent in Mosley also observed that the majority "apparently proscribes resuming questioning until counsel is present if an accused has exercised the right to have an attorney present at questioning” (Michigan v Mosley, supra, p 116, n 4 [Brennan, J., dissenting]).

In the case now before us the defendant, relying on these comments, urges that when a person in custody requests counsel — as opposed to merely asserting his right to remain silent — Miranda does indeed impose a per se rule prohibiting the police from resuming questioning until an attorney is present. The People on the other hand cite cases from other jurisdictions, apparently representing the weight of authority, which have rejected this view on the theory that the Mosley holding evidences a dissatisfaction with per se rules and signifies a departure from the literal wording of the Miranda decision.

Semantics aside there would appear to be cogent reasons for distinguishing a request for counsel from a mere refusal to answer questions. As Justice White suggests in his concurring opinion in Mosley: "the reasons to keep the lines of communication between the authorities and the accused open when the accused has chosen to make his own decisions are not present when he indicates instead that he wishes legal advice with respect thereto. The authorities may then communicate with him through an attorney. More to the point, the accused having expressed his own view that he is not competent to deal with the authorities without legal advice, a later decision at the authorities’ insistence to make a statement without counsel’s presence may properly be viewed with skepticism” (Michigan v Mosley, supra, p 110, n 2; see, also, Brewer v Williams, 430 US 387, 405, n 10).

In this case however there is no need to reach or resolve the broad question as to whether Miranda establishes a strict "safeguard” or merely a general rule, with exceptions, requiring the police to discontinue questioning until an attorney arrives in those cases where the defendant has requested the assistance of counsel. Even if the authorities may resume questioning in the absence of counsel after the defendant has requested an attorney’s assistance — as they may when the defendant has merely asserted the right to remain silent— Miranda would at least require that they "scrupulously honor” the request for counsel before they continue the interrogation (Michigan v Mosley, supra; see, also, People v Jackson, 41 NY2d 146; People v Buxton, 44 NY2d 33). And in this case, as in our earlier decisions in Jackson and Buxton, it is sufficient to note that this requirement has not been met.

Here as noted, little more than 10 minutes elapsed between the defendant’s assertion of his right to counsel and the second interrogation by the Assistant District Attorney. In the interim the authorities did not afford the defendant an opportunity to obtain the assistance of counsel. On the contrary the arresting officer immediately questioned the defendant’s judgment by asking him why he had refused to talk with the prosecutor when there were so many witnesses against him. Although the officer did not, in so many words, advise the defendant to change his mind, the officer’s statement was at least calculated "to persuade [the defendant] to reconsider his position” (Michigan v Mosley, supra, p 104), and it almost immediately had that effect. Indeed there is some question as to whether the defendant was even given a "momentary respite” from interrogation following his request for counsel siiice the officer’s statement itself was likely to, and soon did, prompt the defendant to make incriminating statements (see, e.g., Combs v Wingo, 465 F2d 96, supra; Commonwealth v Padgett, 428 Pa 229; cf. Brewer v Williams, 430 US 387, supra; People v Jackson, supra).

In prior decisions we have held that the police cannot be said to have respected the defendant’s request for counsel when they simply readvise the defendant of his rights after he has been transported to the station house (People v Buxton, supra), or when they confront him with the tearful mother of a codefendant, although they had previously afforded him an opportunity to attempt to reach an attorney and subsequently readvised him of his rights (People v Jackson, supra). Here the arresting officer’s conduct was completely inconsistent with the defendant’s request because he took no steps to afford the defendant an opportunity to obtain an attorney’s assistance, and, in fact, immediately made comments which undermined the defendant’s decision to consult an attorney. In addition, unlike the circumstances in Mosley, here there was no significant break in the interrogation, and no change of parties, place or subject matter of the interrogation (see Michigan v Mosley, supra, p 104). In short on this record it cannot be said that the authorities "scrupulously honored” the defendant’s request for counsel before resuming the interrogation and the confession should have been suppressed.

As indicated the People argue, in the alternative, that if the denial of the motion to suppress was erroneous it should be considered harmless error in light of the other evidence submitted at trial before the defendant pleaded guilty. The application of the harmless error rule to a conviction based on a guilty plea raises novel questions.

CPL 710.70 (subd 2) provides that "An order finally denying a motion to suppress evidence may be reviewed upon an appeal from an ensuing judgment of conviction notwithstanding the fact that such a judgment is entered upon a plea of guilty”. But if the appellate court finds that the denial of the motion was erroneous the statute does not indicate what should be the disposition of the appeal when the conviction is based on a plea instead of a verdict. In the past we have uniformly reversed and vacated the plea under these circumstances (see, e.g., People v Rothenberg, 20 NY2d 35; People v Brown, 24 NY2d 421; People v Hendricks, 25 NY2d 129; People v Abronovitz, 31 NY2d 160; People v Stokes, 32 NY2d 202; People v S & L Processing Lab, 33 NY2d 851; People v Williams, 37 NY2d 206; People v Sanchez, 38 NY2d 72; People v Chapple, 38 NY2d 112; People v Hobson, 39 NY2d 479; People v Ramos, 40 NY2d 610). The availability or lack of other evidence of the defendant’s guilt was only considered material in determining the disposition of the accusatory instrument following the reversal. If there was no indication that the People possessed other evidence admissible at trial, the accusatory instrument would be dismissed (see, e.g., People v Brown, supra; People v Hendricks, supra; People v Abronovitz, supra; People v Stokes, supra; People v S & L Processing Lab, supra; People v Sanchez, supra). But if it appeared that there was other evidence of the defendant’s guilt available to the prosecution we would simply reverse and remit for further proceedings without dismissing the accusatory instrument (see, e.g., People v Rothenberg, supra; People v Williams, supra; People v Chapple, supra; People v Hobson, supra; People v Ramos, supra). In no case where the defendant has pleaded guilty have we held that an erroneous denial of a pretrial motion to suppress was harmless error (cf. People v Ramos, supra, pp 618-619).

Harmless error rules were originally enacted to relieve the courts and the public generally of the needless expense of retrying cases "in which the result would be the same after the error had been corrected” (Mause, Harmless Constitutional Error: The Implications of Chapman v. California, 53 Minn L Rev 519; Kotteakos v United States, 328 US 750). They were designed to change the common-law rule which required reversal if there had been any error at trial, however slight (Mause, op. cit, p 519). Because harmless error rules were formulated to review trial verdicts, they are difficult to apply to guilty pleas.

Harmless error rules generally involve consideration of two factors. "The first of such factors is the quantum and nature of proof of the defendant’s guilt if the error in question were to be wholly excised. The second is the causal effect which it is judged that the particular error may nonetheless have had on the actual verdict” (People v Crimmins, 36 NY2d 230, 240). In the typical case of a conviction based on a plea, neither of these factors can be properly evaluated, particularly when the error involves an improper denial of a pretrial motion to suppress. Without a trial there will be little if any evidence in the record, apart from the proof which should have been excluded. And without a verdict, there is no predicate for determining what causal effect the error had or might have had upon the fact finder.

This case of course is not typical because here the defendant did not plead guilty until after the People had rested their case at trial. Perhaps it could be said that here the court could evaluate the quantum and nature of the proof of the defendant’s guilt by reviewing the People’s case, as if the defendant had simply rested without submitting any evidence at the trial. This type of analysis however would only aid in considering the first factor mentioned above.

It is consideration of the second factor which is most important in this case, because here the error was of constitutional dimension. As we noted in Crimmins, "It appears that it is the latter consideration which is critical in the application of the Supreme Court test as to harmlessness of constitutional error. Thus, however overwhelming may be the quantum and nature of other proof, the error is not harmless under the Federal test if 'there is a reasonable possibility that the * * * [error] might have contributed to the conviction’ ” (People v Crimmins, supra, pp 240-241). When the conviction is based on a plea — instead of a verdict — the question must at least be reformulated to determine whether there is a reasonable possibility that the error contributed to the plea (cf. People v Ramos, 40 NY2d 610, 618-619, supra).

This question however is one which an appellate court is rarely equipped to answer without resorting to speculation. Unlike a verdict, which must necessarily be based exclusively on the evidence submitted at trial, a defendant’s decision to plead guilty may be based on any factor inside or outside the record. Thus a conviction based on a plea of guilty simply reflects the fact that for some reason, sufficient to the defendant, he decided to waive his trial rights (see, e.g., North Carolina v Alford, 400 US 25; People v Serrano, 15 NY2d 304, 310). His decision of course may be based on knowledge of the People’s case but, perhaps more frequently, it is based on ignorance and fear of what the prosecutor may know about this, or other offenses. A defendant may also decide to plead because of feelings of guilt, or merely because he does not want to risk a conviction for a higher offense or wishes to spare his family or himself the ordeal of a trial, although he may be firmly convinced of his own innocence (see, e.g., North Carolina v Alford, supra; People v Serrano, supra). And of course he may decide to plead and take an appeal because he believes that he cannot succeed at trial unless certain evidence is suppressed (see Lefkowitz v Newsome, 420 US 283, 292).

The People urge that on the record it can be determined that the denial of the motion played no part in the defendant’s decision to plead because he did not plead guilty immediately after the motion was denied, and only did so after the People had submitted their proof at trial. But the proof at trial included the confession, and we cannot rule out the possibility that the defendant concluded that he could not prevail in the face of all the evidence. Notably, at the time of plea he did not waive his right to appeal and have the confession suppressed and a new trial granted (see People v Williams, 36 NY2d 829).

In sum, when a conviction is based on a plea of guilty an appellate court will rarely, if ever, be able to determine whether an erroneous denial of a motion to suppress contributed to the defendant’s decision, unless at the time of the plea he states or reveals his reason for pleading guilty. This is especially true when the defendant has unsuccessfully sought to suppress a confession (People v Ramos, supra, pp 618-619).

Accordingly, the order of the Appellate Division should be reversed, the plea vacated and the motion to suppress granted.

Jasen, J.

(dissenting). Although I agree with the majority that defendant’s confession should have been suppressed because of the authorities’ failure to honor defendant’s request for counsel prior to their resumption of his interrogation, I cannot agree that the doctrine of harmless error is inapplicable. I, therefore, dissent and would affirm the order of the Appellate Division.

I take no issue with the majority’s discussion of the advent and development of the harmless error doctrine. The distinction drawn by the majority between application of harmless error analysis to verdicts as distinguished from guilty pleas rests upon sound footing. Certainly, where a defendant pleads guilty to a crime after a denial of a motion to suppress, but prior to trial, it is impossible for an appellate court to review and sustain the resulting conviction by application of the doctrine of harmless error, for the simple reason that should the court determine that the defendant’s suppression motion was improperly denied, the only evidence before the court for review would be the very evidence it held inadmissible. This is not the case, however, where the defendant waits until the close of the People’s case before pleading guilty, at which point he has derived the benefit of having put the People to their proof. Even the majority will admit that, under these facts, an appellate court could evaluate the quantum and nature of the proof of defendant’s guilt introduced at trial.

Nonetheless, the majority concludes that although an appellate court could review the quantum and nature of proof against the defendant where he pleads guilty at the close of the People’s case, a court is incapable, because of the absence of a verdict, of determining whether there exists a reasonable possibility that the error committed below contributed to the defendant’s conviction, a second element necessary for application of harmless error analysis. (See People v Crimmins, 36 NY2d 230, 240.) Admittedly, as the majority recognizes, a defendant’s decision to plead guilty may be premised upon factors outside the record — for example, a bargain with the prosecutor to plead to a lesser offense. However, in my mind, the question is not whether factors outside the record contributed to the defendant’s plea, but whether there is a reasonable possibility that the denial of the suppression motion contributed to the plea.

On the facts of the instant appeal, I do not think it can be said that the denial of defendant’s suppression motion reasonably contributed to his plea of guilty. In addition to defendant’s confession, the evidence introduced at trial by the People included testimony by three eyewitnesses identifying defendant as the victim’s assailant. A ballistics expert testified that a bullet recovered from under the victim’s body had been fired from a pistol found in defendant’s hotel room at the time of his arrest. The People’s case also included testimony by a police officer that he observed the defendant leaving the scene of the shooting in a car driven at high speed, the registration for which was lodged in defendant’s name.

Upon sober reflection at the close of the People’s damning case, defendant, having witnesses the breadth of the People’s proof, pleaded guilty. Before accepting defendant’s plea, the court inquired of the defendant whether he conceded that he had no legal defense to the charge of murder in the second degree, to which inquiry defendant replied: "I don’t have any witnesses to substantiate anything that happened.” In response to the court’s continued questioning to ensure that defendant’s plea was voluntary and intelligently made, defendant frankly stated: "Well, I could plead I didn’t do it, but the evidence is overwhelming.”

In my opinion, we are presented in this case with a defendant who pleaded guilty not because his motion to suppress his confession was denied, but because, after viewing the evidence of his guilt introduced by the People, he recognized the apparent futility of a continued defense. The majority concludes, however, that since the proof introduced by the People at trial included defendant’s confession, the possibility that this evidence may have contributed to defendant’s plea of guilty cannot be discounted. To seek to determine the state of mind of a defendant at the moment his plea is made would, in the majority’s view, engage the court in sheer speculation.

I would respectfully remind the majority, however, that we need only conclude that there exists no reasonable possibility that the error below contributed to a defendant’s plea. I see little practical distinction between the equally subjective analysis the court engages in to determine whether an error committed below contributed to a jury’s verdict of guilty. In each case, the court must, viewing the nature and quantum of proof of a defendant’s guilt introduced at trial, speculate as to the state of mind of either the jury or of the defendant to determine whether error below reasonably contributed to a jury’s verdict of guilty or a defendant’s plea of guilty.

I believe that, on the facts of this case, in which defendant did not plead guilty until the close of the People’s case, the denial of defendant’s motion to suppress did not reasonably contribute to defendant’s decision to plead guilty. Accordingly, I would affirm the order of the Appellate Division.

Chief Judge Breitel and Judges Gabrielli, Jones, Fuchs-berg and Cooke concur with Judge Wachtler; Judge Jasen dissents and votes to affirm in a separate opinion.

Order reversed, etc.

      . For cases recognizing a per se rule (see, e.g., State v Boone, 220 Kan 758; State v Boggs, 16 Wash App 682; State v Haynes, 16 Wash App 778; United States v Priest, 409 F2d 491; United States v De Leon, 412 F Supp 89; United States v Jakakas, 423 F Supp 564, 569; Combs v Wingo, 465 F2d 96; United States ex rel. Williams v Twomey, 467 F2d 1248; United States v Blair, 470 F2d 331, cert den 411 US 908; United States v Kinsman, 540 F2d 1017, 1018-1019).
      For cases rejecting a per se rule (see e.g., State v Grange, 25 Ariz App 290; State v Green, 91 NM 207; Nash v State, 477 SW2d 557 [Tex], cert den 409 US 887; United States v Barnawell, 341 F Supp 619; United States v Grady, 423 F2d 1091; United States v Hodge, 487 F2d 945; Biddy v Diamond, 516 F2d 118, cert den 425 US 950; United States v Womack, 542 F2d 1047; United States v Grant, 549 F2d 942, 945, n 4; United States v Charlton, 565 F2d 86).

      . It might, however, be more realistic to recognize that the record is incomplete since it does not contain any countervailing proof that the defendant might have offered if he had not taken the plea.


author: Cooke, J. Jasen, J.

text:
    In the Matter of Corey L by Gordon K et al., Respondents, v Martin L, Appellant.
    Argued June 8, 1978;
    decided July 13, 1978

      POINTS OF COUNSEL

      Janet W. Hill for appellant. I.
    The issuance of the order of investigation and the receipt and examination by the Family Court of the investigator’s report prior to compliance with the applicable requirements of sections 111 and 115 of the Domestic Relations Law is not in accord with the requirements of section 116 thereof and constitutes reversible error. (Matter of Goldman v Goldman, 51 AD2d 282, 41 NY2d 894; Matter of Bistany, 239 NY 19; Caruso v Caruso, 175 Misc 290; Matter of Anonymous, 23 Misc 2d 577; Stanley v Illnois, 405 US 645.) II. The courts below erred in considering acts and omissions of appellant after the commencement of the adoption proceedings. (Matter of Carter v Carter, 58 AD2d 438; Matter of Bistany, 239 NY 19; Matter of Anonymous, 16 Misc 2d 1010; Matter of Ekstrom, 51 Misc 2d 731.) III. Appellant did not abandon his son Corey L. within the meaning of section 111 of the Domestic Relations Law. (Matter of Bennett v Jeffreys, 40 NY2d 543; Matter of Goldman v Goldman, 51 AD2d 282, 41 NY2d 894; Matter of Stuart, 35 AD2d 785; Matter of Porras, 13 AD2d 239; Stanely v Illinois, 405 US 645.) IV. Section 111 of the Domestic Relations Law as amended by chapter 704 of the Laws of 1975 has not changed the definition of abandonment. V. The amendment made by chapter 704 of the Laws of 1975 to section 111 of the Domestic Relations Law may not be applied retrospectively to the case at bar. (Sanford v Bennett, 24 NY 20; Matter of Howe, 112 NY 110; Matter of Miller, 110 NY 216.)

      Clifton M. Tamsett, Jr., for respondents.
    I. The credible evidence adduced at the hearing indicates abandonment under section 111 of the Domestic Relations Law irrespective of amendments thereto. (Matter of Susan W. v Talbot G., 34 NY2d 76; Matter of Goldman v Goldman, 41 NY2d 894.) II. The intent of chapter 704 of the Laws of 1975 was to immediately alter the evidentiary standards for a finding of abandonment and application of such amendment is not a retroactive application of the statute. (Blyer v Hershman, 156 Misc 349.) III. A paramount factor in determining whether an adoption should be granted is the best interest of the child.
   OPINION OF THE COURT

Cooke, J.

Despite recent changes in statutory law, there remains a heavy burden of constitutional magnitude on one who would terminate the rights of a natural parent through adoption. We hold that on this record that burden has not been satisfied.

This is an adoption proceeding in which petitioners, the natural mother and her second husband, assert that the respondent natural father has abandoned the child and hence that his consent is not required. Respondent vigorously contests the allegation and seeks to retain his parental relationship.

The male child, the only offspring of the former union, was born on November 10, 1969. The natural father entered the Air Force in November, 1970 and was discharged on October 19, 1973. During the father’s military service, in August 1971, the parties entered into a separation agreement which provided that the mother would have custody of the boy and that the father would pay child support of $25 per week. Shortly thereafter, on August 13, 1971, they divorced and on May 19, 1973 the natural mother married the copetitioner in this proceeding. Then, in May of 1974, the petition for adoption ensued.

Both petitioners and respondent reside in the same rural area. While the latter was in the military service, he regularly visited the child whenever he was home on leave. However, from the time of discharge from service in October of 1973 until the commencement of hearings before the Family Court on October 29, 1975, he visited the child only two or three times and called the infant on approximately four occasions. In addition, owing to the fact that all of the parties live in the same community, there may have been chance meetings at a grocery store or when the boy was riding his bicycle, but nothing of a substantial nature. It also appears that respondent did not pay any support for the infant from October of 1972 up to the inception of the hearings in 1975, although there was some dispute over whether there was an overpayment in 1972, and it is quite certain that no support was paid after the mother remarried in 1973.

At the adoption hearings, the natural father unequivocally expounded his devotion to the child, partially tried to explain the failure to furnish support on the grounds of inability to pay, and expressed confidence in his paternal reliability as well as his future financial responsibility. His feelings for the child were corroborated by a disinterested babysitter characterized, with another, by the Family Court as having given the most reliable evidence. She testified that when she saw them together the infant was happy to see his father and that the latter appeared emotional in that tears came to his eyes.

Family Court decided that the respondent abandoned the child and in this regard concluded, as a matter of law, that the occasional visits with the infant were not sufficient to defeat the claim of abandonment. In so holding, the Judge applied an amendment to section 111 of the Domestic .Relations Law which provided that "evidence of insubstantial and infrequent contacts by a parent with his or her child shall not, of itself, be sufficient as a matter of law to preclude a finding that such parent has abandoned such child” (L 1975, ch 704, § 3). The court stated that based on this modification "The Legislature now requires that more than sporadic or minimal acts of parenthood be demonstrated in order to defeat the claim of abandonment.”

Abandonment was also said to have resulted from failure to pay support for two years, and much was made of respondent’s failure to take any action whatsoever to obtain visitation rights after May of 1974 when he received formal and actual notification of the petition to adopt his son. In addition, based on a report from the Department of Social Services, the Family Court concluded that it would be in the best interests of the child to allow the adoption.

The Appellate Division affirmed, with one dissent. That court also placed reliance on amendments to the law providing that proof of insubstantial contacts shall not, of itself, be sufficient, as a matter of law, to preclude a finding of abandonment.

Initially, it is observed that the amendment to section 111 of the Domestic Relations Law (L 1975, ch 704, § 3) became effective on August 9, 1975, which was two months prior to the hearings in this matter and four months prior to the Family Court’s order.. Notably, the statute lacks the savings clause found in chapter 666 of the Laws of 1976 (see Matter of Goldman, 41 NY2d 894). In these circumstances, it was appropriate for the courts below to apply this modification in aid of their determinations (see Matter of Ray A. M., 37 NY2d 619, 621; Matter of Clayton v Clement, 33 NY2d 386; Matter of L’Hommedieu v Board of Regents of Univ. of State of N. Y., 276 App Div 494, 507, affd 301 NY 476, affd 342 US 951). However, while it was proper to apply the new standard, the manner of application was erroneous because of a more fundamental and overriding principle.

The Legislature has been for some time concerned with the stringent test for a judicial finding of abandonment (see Matter of Anonymous [St. Christopher’s Home], 40 NY2d 96, 101-102; Matter of Orlando F., 40 NY2d 103, 111). Difficulty was encountered with the decisionally established standard which has been thus expressed: "Even where the flame of parental interest is reduced to a flicker the courts may not properly intervene to dissolve the parentage” (Matter of Susan W. v Talbot G., 34 NY2d 76, 80). To be sure, the amendments to section 111 of the Domestic Relations Law were designed to override the "flicker of interest” test and thereby ease the burden on the party seeking to prove abandonment (see Memorandum of Joseph R. Pisani, New York State Senator, in support of Senate Bill 1992-A for 1975, NY Legis Ann, 1975, p 62). Nevertheless, while accepting the change wrought by statutory law, this court has and must continue to respect constitutional limitations on the procedures for termination or deprivation of parental rights (see Matter of Goldman, 41 NY2d 894, 895, supra; Matter of Bennett v Jeffreys, 40 NY2d 543, 548).

While a determination of whether parental rights have been surrendered ordinarily involves an evaluation of factual and evidentiary material, the ultimate question is whether the submitted proof establishes abandonment as a matter of law (see Matter of Bistany, 239 NY 19, 24; Matter of Maxwell, 4 NY2d 429, 433). Stated differently, there must be legally sufficient evidence to support the determination.

The statutory alteration under review seeks to overcome an impediment to termination of parental rights, but this provision becomes operative only if a finding of abandonment is thwarted because of a "flicker of interest” resulting merely from infrequent contact with the child. Analysis of the evidence should not begin with this amendment since it has no application to the court’s initial evaluation of the circumstances, and it should not be employed until the court is fully satisfied that there has been an abandonment but for some insignificant contact with the child. The basic principles have not been abrogated (see Matter of Abraham L., 53 AD2d 669, 670; cf. Matter of Bennett v Jeffreys, 40; NY2d 543, 548, supra). In other words, the statute does not, and probably could not, mandate a conclusion that insubstantial visitation, ipso facto, constitutes abandonment, but only advises that such infrequent contact shall not be sufficient as a matter of law to preclude a finding by the court.

On this record, a determination of abandonment was unwarranted. It is not disputed that respondent consistently saw the child during his Air Force leaves. However, he was discharged from the service in October of 1973, and a short time thereafter, in May of 1974, was greeted with a petition for adoption. By this time, the natural mother, respondent’s former spouse, had remarried and there is considerable indication that relations were strained. The hearings began in October of 1975 and, significantly, the courts below considered the time between the filing of the petition in May of 1974 and the beginning of court proceedings in determining the period of abandonment. Hence, not including this time segment, the claim of abandonment alleged in the petition covers a short period of at best the eight months following respondent’s discharge from the military. In these circumstances, covering this relatively brief span of time, abandonment was not established.

While there may be instances when the interval between the commencement of a proceeding and the formal hearings should be considered as part of the period of abandonment, in this context inclusion of this segment manifests the lack of evidence in support of the determination (see Matter of Beshures, 41 AD2d 1016). Moreover, though two years of infrequent contact would likely be adequate to find abandonment in another setting, in view of the circumstances, here, this is simply too brief a period to justify a conclusion with such drastic consequences. That the natural father did not take action to secure his visitation rights is also not crucial in light of the disputes in the record over whether access to the child was thwarted. In short, the point is that, when all the facts and circumstances are viewed in perspective, there is not enough on this record to show abandonment.

The failure to furnish support, though significant, is not determinative and properly may be explained (see Matter of Susan W. v Talbot G., 34 NY2d 76, 80, supra; Matter of Bistany, 239 NY 19, 23, supra). Despite the suggestion that since respondent was earning a fairly regular income he could fulfill his obligations, the record indicates that following his discharge from service and up to the commencement of the proceedings his net income was about $80 a week. When the support payments of $25 per week are measured against this income, the difficulty of discharging the obligation becomes mainfest. This is not to imply in any manner that respondent could ignore his duty, but to note that in this instance his failure is not of such gravity as to constitute abandonment.

Petitioners urge that "when the factual situation is within the gray area the Court should find an abandonment and conclude that the best interests] of the child be considered paramount to the parental interest”. But at this juncture, "[w]e do not dwell upon such considerations, for they are foreign to the issue. * * * The petitioners ask for more than custody. They seek to make the child their own” (Matter of Bistany, 239 NY 19, 24 [Cardozo, J.], supra). Under section 111 of the Domestic Relations Law as applied to the instant facts, the consent of the natural father or an abandonment was a prerequisite to the judicial termination of his parental relationship. Absent consent, the first focus here was on the issue of abandonment since neither decisional rule nor statute can bring the relationship to an end because someone else might rear the child in a more satisfactory fashion (cf. Matter of Bennett v Jeffreys, 40 NY2d 543, 548, supra). Abandonment, as it pertains to adoption, relates to such, conduct on the part of a parent as evinces a purposeful ridding of parental obligations and the foregoing of parental rights — a withholding of interest, presence, affection, care and support. The best interests of the child, as such, is not an ingredient of that conduct and is not involved in this threshold question. While promotion of the best interests of the child is essential to ultimate approval of the adoption application, such interests cannot act as a substitute for a finding of abandonment (see Matter of Paden, 181 Misc 1025, 1027; 2 NY Jur, Adoption, § 2, p 5).

The severance of the parental tie could not be predicated upon the report of the Department of Social Services that the adoption would be in the best interests of the child. Where the issue was the right of a natural parent to custody of his child, this court has not hesitated to hold that a parent cannot be displaced because "someone else could do a 'better job’ of raising the child”; rather, only when "extraordinary circumstances” such as abandonment, unfitness, or persistent neglect are found, "the court must then make the disposition that is in the best interest of the child” (Matter of Bennett v Jeffreys, 40 NY2d 543, 548, supra). If, for purposes of determining mere custody, the best interests of the child would not permit a parent to be displaced in the absence of extraordinary circumstances, surely a complete termination of obligations and rights is not to be allowed in a situation where, as here, abandonment has not been established, even if an ensuing adoption might be viewed by some to be in the best interests of the child.

The filial bond is one of the strongest, yet most delicate, and most inviolable of all relationships, and in dealing with it we must realize that a child is not a mere creature of the State for distribution by it (cf. Pierce v Society of Sisters, 268 US 510, 535). This is not a new problem. It is fraught with emotion, impossible to compromise and one in which the stakes are high. There has always been abiding respect for the rights of natural parents (see People ex rel. Kropp v Shepsky, 305 NY 465, 468-469; Matter of Livingston, 151 App Div 1, 7). On the other hand, there is a co-ordinate need to protect children. Certainly, the amendments to section 111 of the Domestic Relations Law (L 1975, ch 704, § 3; see, also, L 1976, ch 666) may be viewed as an expression of a desire to move the courts away from a perceived tendency to favor the residual rights of abandoning parents to the detriment of the child. Nevertheless, the statute should not be so broadly applied that it establishes a preference. A termination of parental rights is a drastic event indeed, so much so that it raises questions of constitutional dimension (see Matter of Goldman, 41 NY2d 894, 895 supra; Matter of Bennett v Jeffreys, 40 NY2d 543, 548, supra). In any event, on this record, the burden necessary to determine those rights has not been met.

Accordingly, the order of the Appellate Division should be reversed, without costs, the petition for adoption dismissed, and the matter remitted to the Family Court, Chenango County, for further proceedings on appellant’s application for custody or visitation.

Jasen, J.

(dissenting). I dissent and vote to affirm the order of the Appellate Division. I would hold that the record discloses sufficient evidence to sustain the Family Court finding that the natural father "has in fact abandoned all obligations and responsibilities of parenthood in this case. His failure to pay any support in over two years, coupled with the fact that he has seen the child on only two or three occasions during the same period of time amply and fully demonstrate to the Court the abandonment of his parental responsibilities and obligations.” Where, as here, this finding of fact is affirmed by the Appellate Division, this court is bound, by constitutional mandate, to accept those facts.

In 1975, the Legislature, in enacting subdivision 6 of section 111 of the Domestic Relations Law intended to relax the burden of proof previously required for involuntary termination of parental rights. (Matter of Susan W. v Talbot G., 34 NY2d 76.) Despite this recent change in statutory law, the majority holds that "there remains a heavy burden * * * on one who would terminate the rights of a natural parent through adoption” which "on this record * * * has not been satisfied.” I cannot agree. A parent’s obligation to a child is a positive duty that requires affirmative performance. Thus, when it is shown, as both courts below found, that the natural father had failed to pay any support for the child in over two years and that he had seen the child on only two or three occasions during the same period, even though he resided in the same area, the "heavy” burden of proof has been met.

While the father may state a desire to retain his parental rights, his actions, over a sufficiently long period, in refusing or failing to perform parental duties, speak louder than his words.

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

Order reversed, without costs, the petition for adoption dismissed, and the matter remitted to the Family Court, Chenango County, for further proceedings in accordance with the opinion herein.