source: Caselaw Access Project

author: Simons, J.

license: Public Domain

text:
    [643 NE2d 501, 618 NYS2d 879]
    The People of the State of New York, Appellant, v Jose C. Lopez, Respondent.
    Argued October 21, 1994;
    decided December 1, 1994

      POINTS OF COUNSEL

      Sol Greenberg, District Attorney of Albany County, Albany (Risa L. Viglucci of counsel), for appellant.
    Defendant was provided with sufficient notice pursuant to CPL 710.30. (People v Bennett, 80 AD2d 68, 56 NY2d 837; Jackson v Denno, 378 US 368; People v Huntley, 15 NY2d 72; People v O’Doherty, 70 NY2d 479; People v Boughton, 70 NY2d 854; People v Laporte, 184 AD2d 803, 80 NY2d 905; People v Holmes, 170 AD2d 534, 77 NY2d 961.)

      Roger M. Fritts, Public Defender of Albany County, Albany (Raymond A. Kelly, Jr., of counsel), for respondent.
    I. This Court’s O’Doherty/Amparo rule of law that "CPL 710.30 notices are deficient to the extent of any omissions” requires affirmance of the Court below’s decision. (People v O’Doherty, 70 NY2d 479; People v Boughton, 70 NY2d 854; People v McMullen, 70 NY2d 855; People v Couch, 74 AD2d 582; People v Ludolph, 63 AD2d 77; People v Rivera, 73 AD2d 528, 53 NY2d 1005; People v Feliciano, 139 Misc 2d 247; People v Olds, 140 Misc 2d 458; People v Amparo, 73 NY2d 728.) II. The arguments by the prosecution for reversal should be summarily dismissed by this Court. (People v Bennett, 80 AD2d 68, 56 NY2d 837; People v O’Doherty, 70 NY2d 479.)
   OPINION OF THE COURT

Simons, J.

A jury has convicted defendant of attempted murder in the second degree, assault in the first degree and burglary in the first degree. On appeal the Appellate Division reversed, concluding that because the notice required of the People by CPL 710.30 (1) was inadequate, the People should have been precluded from offering evidence of defendant’s oral and written statements to police and of his pretrial identification. The People appeal to this Court by permission of the dissenting Justice at the Appellate Division. We now affirm.

On September 17, 1989 defendant entered the Albany home of Tammis Groft through a kitchen window intending to steal a television set he had seen atop the refrigerator. Groft was working at the dining room table at the time and, when defendant realized she had seen him, he grabbed a large kitchen knife and stabbed her. Groft managed to pull the knife out of her chest and, in return, stabbed defendant in the back. Defendant fled through the window by which he had entered less than two minutes earlier.

On September 21, 1989 the Albany police learned that defendant had sustained a stab wound on the day of the Groft attack and arrested him on an outstanding bench warrant for disorderly conduct. After being taken into custody, defendant gave the police oral and signed written statements admitting the attack on Groft. Subsequently, after recuperating from surgery to repair her chest wound, Groft identified defendant at a police lineup. Defendant was formally charged and at his arraignment he was given a notice of evidence the People intended to offer at trial pursuant to CPL 710.30. The issue before us is the sufficiency of that notice.

The notice was a printed form, listing various types of evidence and containing appropriate boxes before each so the prosecutor could indicate the type to be offered at trial. The prosecutor had placed an "x” within the boxes which appeared before "[a]n oral statement made to a public servant,” "[a] written statement made to a public servant” and "[Identification of the defendant * * * by a witness who has previously identified the defendant” at a "[l]ineup.” The form provided no further information about the evidence, and no documents were attached.

Defendant moved to preclude the statements and the identification asserting that the document served on him was tantamount to no notice at all. County Court held the notice adequate, particularly when viewed in conjunction with the discovery permitted by CPL 240.20, and denied the motion. Electing to preserve for appellate review his claim that the notice was insufficient, defendant did not seek suppression and no Huntley or Wade hearings were held (see, CPL 710.30 [3]; People v Bernier, 73 NY2d 1006, 1008; People v Amparo, 73 NY2d 728, 729). On defendant’s appeal, the Appellate Division reversed.

Analysis begins by restating that CPL 710.30 is a notice statute intended to facilitate a defendant’s opportunity to challenge before trial the voluntariness of statements made by him (see, People v O’Doherty, 70 NY2d 479, 484; People v Greer, 42 NY2d 170, 179; People v Huntley, 15 NY2d 72), and the reliability of his identification by others (see, People v Laing, 79 NY2d 166, 170; People v White, 73 NY2d 468, 474, cert denied 493 US 859; cf., People v Gissendanner, 48 NY2d 543, 552). Thus, the statute requires that whenever the People intend to offer evidence of defendant’s statements to a public officer or testimony of observations of defendant, they must serve notice of such evidence on defendant within 15 days of arraignment and before trial. There are but two exceptions to these requirements: the 15-day time provision may be waived for good cause and the notice may be excused if the defendant has in fact moved for suppression (see, CPL 710.30 [2], [3]). Neither is relevant here.

Manifestly, a defendant cannot challenge that of which he lacks knowledge; thus the statute requires that the notice "[specify] the evidence intended to be offered” (CPL 710.30 [1]). The notice served by the People in this case informed Lopez that the People intended to offer oral and written statements and identification evidence but failed to specify the evidence as the statute commands. The People were required to inform defendant of the time and place the oral or written statements were made and of the sum and substance of those statements (see, People v Bennett, 56 NY2d 837; People v Laporte, 184 AD2d 803, 804-805, lv denied 80 NY2d 905; People v Holmes, 170 AD2d 534, 535, lv denied 77 NY2d 961). Full copies of the statements need not be supplied but they must be described sufficiently so that the defendant can intelligently identify them. Similarly, the People were also required to inform defendant of the time, place and manner in which the identification was made.

It is irrelevant that the People’s failure to satisfy the requirements of 710.30 did not prejudice defendant. The statutory remedy for the People’s failure to comply with the statute is preclusion; prejudice plays no part in the analysis (see, CPL 710.30 [3]; People v O’Doherty, supra, at 486-487).

Nor can the inadequacy of the notice be cured by discovery. The Legislature has enacted a statutory scheme that purposefully distinguishes between pretrial motion practice and discovery (see generally, CPL arts 240, 255). The provisions of CPL 710.30 are clearly related to defendant’s preparation of pretrial motions, not his subsequent ability to defend himself at trial. Although there will be some degree of overlap between the information provided by the 710.30 notice and the People’s response to defendant’s discovery demands, the timing provisions of the statutes are correlated to their underlying purposes. Thus, defendant must receive a 710.30 notice within 15 days of his arraignment (CPL 710.30 [2]); he need not make his discovery demands until 30 days after his arraignment, and the People’s response is not due until 15 days after service of defendant’s demands (see, CPL 240.80).

When CPL 710.30 was first enacted it contained no timeliness requirement and the courts experienced considerable delay by prosecutors. Accordingly, the Legislature amended the statute to establish a narrow 15-day time requirement to facilitate "the orderly, swift and efficient determination of pretrial motions” (People v O’Doherty, supra, at 488). Permitting the People to rely on defendant’s eventual receipt of the information through discovery would undermine the statutory scheme and negate the legislative directive embodied in the amended statute.

Finally, the People rely on the holding in People v White (73 NY2d 468). In that decision the Court held that a pretrial notice of an in-court identification in a prior trial was not required because the identification was made under judicial supervision and in the presence of counsel, and any attack on suggestiveness could and should have been advanced during the first trial when the identification was made, not determined at a subsequent Wade hearing before the second trial. Thus, the defendant in White had notice and an opportunity to attack the earlier identification and no pretrial proceedings were necessary.

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

Chief Judge Kaye and Judges Titone, Bellacosa, Smith, Levine and Ciparick concur.

Order affirmed.


author: Levine, J.

text:
    [643 NE2d 504, 618 NYS2d 882]
    Metropolitan Life Insurance Company, Appellant, v Noble Lowndes International, Inc., Respondent.
    Argued September 20, 1994;
    decided October 25, 1994

      POINTS OF COUNSEL

      Fulbright & Jaworski, New York City (Joseph P. Zammit, Linda Singer Roth and Donald J. Lough of counsel), for appellant.
    I. The Court below’s conclusion that "willful” means "tortious” is contrary to the plain meaning of the contract, controlling authority and public policy. (Kalisch-Jaroho, Inc. v City of New York, 58 NY2d 377; Weiss v Weiss, 52 NY2d 170; Graphic Scanning Corp. v Citibank, 116 AD2d 22; Messina v Lufthansa German Airlines, 47 NY2d 111; Procopio v Fisher, 83 AD2d 757; Anderson v How, 116 NY 336; Matter of American Tr. Ins. Co. v Corcoran, 76 NY2d 977; Matter of Old Republic Life Ins. Co. v Thacher, 12 NY2d 48; People v

      Broody, 5 NY2d 500, 361 US 8; Matter of Insurance Co. of State of Pa. v Corcoran, 160 AD2d 304, 76 NY2d 714.) II. The Court below’s decision violates the law-of-the-case doctrine. (Martin v City of Cohoes, 37 NY2d 162; Fioranelli v News Bldg. Corp., 102 Misc 2d 825.) III. The evidence established that Noble Lowndes committed a "willful act” even under the Court below’s erroneous definition of "willful”. (Kalisch-Jaroho, Inc. v City of New York, 58 NY2d 377; McCummings v New York City Tr. Auth., 81 NY2d 923; Sagorsky v Malyon, 307 NY 584; Matter of Kornblum Metals Co. v Intsel Corp., 38 NY2d 376; Van Valkanburgh, Nooger & Neville v Hayden Publ. Co., 30 NY2d 34, 409 US 875; Gray v Wallman & Kramer, 184 AD2d 409; Matter of Ouimet v Ouimet, 193 AD2d 1099; Lewis v Weiner, 191 AD2d 172; Held v New York Tel. Co., 73 Misc 2d 582; Dobess Realty Corp. v City of New York, 79 AD2d 348, 53 NY2d 1054.)

      Brown Raysman & Millstein, New York City (Peter Brown, Catherine M. McGrath and John J. Lynch of counsel), for respondent.
    I. The term "willful acts” must be interpreted in the context of the contract in which it appears. (Eighth Ave. Coach Corp. v City of New York, 286 NY 84; Sunnybrook Realty Co. v State of New York, 15 Misc 2d 739, 11 AD2d 888, 9 NY2d 960; Corhill Corp. v S. D. Plants, Inc., 9 NY2d 595; Dady v O’Rourke, 172 NY 447; Spaulding v Benenati, 57 NY2d 418; Loba v Carey, 29 NY2d 302; Muzak Corp. v Hotel Taft Corp., 1 NY2d 42; Briefstein v Rotondo Constr. Co., 8 AD2d 349; Tesoro Petroleum Corp. v Holborn Oil Co., 108 AD2d 607.) II. The Court below’s decision does not violate the law-of-the-case doctrine. (Martin v City of Cohoes, 37 NY2d 162; Zook v Hartford Acc. & Indem. Co., 64 AD2d 701; Sachman-Gilliland Corp. v Senator Holding Corp., 43 AD2d 948; Fioranelli v News Bldg. Corp., 102 Misc 2d 825.) III. There was insufficient evidence, as a matter of law, to support a finding that Noble Lowndes committed any willful acts. (Metropolitan Life Ins. Co. v Noble Lowndes Intl., 192 AD2d 83; Edwil Indus, v Stroba Instruments Corp., 131 AD2d 425; Manshul Constr. Corp. v City of New York, 143 AD2d 333; Green Bus Lines v General Motors Corp., 169 AD2d 758; Murphy v American Home Prods. Corp., 58 NY2d 293; VTR, Inc. v Goodyear Tire & Rubber Co., 303 F Supp 773.)
   OPINION OF THE COURT

Levine, J.

This contract dispute is between plaintiff, a national provider of personal and group health insurance as well as life insurance, and defendant who, at the time of contract formation was engaged in the development and marketing of a computer software program known as the Automated Claims Entry System (ACES), especially designed for processing health insurance claims for the health insurance industry. The basic ACES system was commonly sold with customized enhancements to tailor it to the special needs of the particular contract vendee.

In November 1984 plaintiff and defendant entered into such an agreement. The contract provided for the licensing of the ACES base system software for $160,000, plus some $44,000 for the preparation of functional specifications to adapt the ACES system to plaintiff’s particular needs. The Agreement required defendant to furnish the customized enhancements provided by the specifications, at a cost not to exceed some $390,000, based upon invoiced expenditures of time and materials.

The Agreement contained a broad limitation of liability clause. Section 7 provided that "[i]n no event shall [plaintiff] be liable for any lost profits, lost savings or other consequential damages, even if [plaintiff] has been advised of the possibility of or could have foreseen such damages”. Defendant was similarly absolved from liability for "loss of profit, loss of business, or other financial loss * * * resulting from * * * [defendant’s] performance or non-performance” but an exception to this limitation was provided "for intentional misrepresentations, or damages arising out of [defendant’s] willful acts or gross negligence” (emphasis supplied).

By December 1985, defendant had furnished the base system and functional specifications without dispute for an aggregate compensation of $204,000. Two sets of enhancements were offered by defendant, but were rejected by plaintiff. It was at this point, according to plaintiff’s proof, that defendant demanded an upward adjustment of the contract ceiling for enhancements, failing which it announced it would withdraw from the project. When plaintiff refused defendant’s demand, defendant discontinued further performance.

Plaintiff then commenced this action, seeking a refund of the sums it paid defendant plus general and consequential damages. Defendant interposed the limitation on liability contained in section 7 of the parties’ Agreement as a partial affirmative defense. A lengthy trial ensued. The trial court instructed the jury that plaintiffs damages were limited to a refund of the moneys paid to defendant, unless the jury found that defendant’s conduct constituted "willful acts”. In defining a willful act for the jury, the court, over plaintiffs objection, excluded merely deliberate or intentional nonperformance. Rather, the jury was instructed that defendant’s commission of a willful act required a finding that its conduct was malicious, i.e., the intentional perpetration of a wrongful act injuring plaintiff without justification.

The jury made a special finding that defendant’s acts were willful and awarded plaintiff $3,961,000 in damages, including $581,000 cover damages (see, UCC 2-712) and $2,807,000 in lost savings.

The Trial Judge denied a defense motion for judgment notwithstanding the verdict. It held that there was evidence upon which the jury could reasonably find defendant’s acts willful, namely, (1) defendant had no excuse or justification for demanding an increase in compensation in excess of the contract’s maximum price; (2) defendant was aware that if it withdrew from the project before completion, plaintiff would have "to start from scratch and find an entirely new system”; and (3) defendant’s refusal to perform was "motivated by its desire to eliminate contractual obligations it perceived to be an obstacle to any sale of its computer division to a company known as Erisco”.

On appeal, the Appellate Division modified on the law, reducing damages to the $204,000 plaintiff paid defendant for its partial performance, plus interest, costs and disbursements (192 AD2d 83). The Court interpreted the willful act exception to the limitation of liability provision in the contract as requiring acts constituting the commission of a tort. It found, as a matter of law, that the proof did not establish any such tortious conduct, but merely an intentional abandonment which was held insufficient to invoke the exception. In part, the Appellate Division concluded that intentional abandonment alone could not constitute the willful acts referred to in the parties’ contract because " '[w]illfuP is a term of tort, not contract” (id., at 90), and for this reason, tort law concepts of willful acts necessarily applied. This Court granted plaintiff permission to appeal from the Appellate Division’s ruling.

Plaintiffs primary argument for reversal is that the Appellate Division erred in refusing to attribute the common, ordinary meaning of willful acts as merely deliberate or intentional conduct, and, citing to various decisions of this Court, plaintiff contends that stare decisis mandates adoption of that meaning. Thus, according to plaintiff, since defendant’s breach was intentional rather than inadvertent, the clause limiting its liability for consequential damages should not apply. We disagree. The issue here is not how we and other courts have construed "willful” in other contexts, such as in interpreting statutes using that term or in formulating or applying legal principles in tort or contract law. Rather, the issue is what the parties intended by "willful acts” as an exception to their contractual provision limiting defendant’s liability for consequential damages arising from its "non-performance under this agreement”. Thus, to the extent that the Appellate Division opinion holds that tort law principles apply in all cases in which the word willful is at issue or thereby limits the legal meaning of the word, we do not agree. However, because the law of contracts as pertinent and applied to this contractual dispute leads us to the same result, we now affirm.

Several factors strongly weigh against narrowly applying the limitation on defendant’s liability to inadvertent malperformance or nonperformance, as plaintiff’s interpretation of the willful acts exception to the limitation of liability provision would dictate.

Generally in the law of contract damages, as contrasted with damages in tort, whether the breaching party deliberately rather than inadvertently failed to perform contractual obligations should not affect the measure of damages. As was stated by then-Justice Bergan in Briefstein v Rotondo Constr. Co. (8 AD2d 349):

"An intention not to perform [a contract] does not bring on heavier damages than actual nonperformance. The policy which runs through the fabric of the law of contracts is to bind a party by what he agrees to do whether or not he intends to do what he agrees” (id., at 351 [emphasis supplied]; see also, Globe Ref. Co. v Landa Cotton Oil Co., 190 US 540, 544 [Holmes, J.]; 5A Corbin, Contracts § 1123; 3 Farnsworth, Contracts § 12.17a [2d ed]).

Plaintiff has not advanced any reason why the parties would have drawn such a distinction between inadvertent and intentional nonperformance with respect to the damages limitation clause in their Agreement.

A limitation on liability provision in a contract represents the parties’ Agreement on the allocation of the risk of economic loss in the event that the contemplated transaction is not fully executed, which the courts should honor. Thus, Professor Corbin states:

"[W]ith certain exceptions, the courts see no harm in express agreements limiting the damages to be recovered for breach of contract!1 Public policy may forbid the enforcement of penalties against a defendant; but it does not forbid the enforcement of a limitation in his favor. Parties sometimes make agreements and expressly provide that they shall not be enforceable at all, by any remedy legal or equitable. They may later regret their assumption of the risks of non-performance in this manner; but the courts let them lie on the bed they made. Where a contract provides that damages for breach shall not be recoverable beyond a specified sum, it is obvious that the risk of loss beyond that sum is being assumed by the promisee. If the law allows him to assume the whole risk, with no remedy whatever, it is obvious that it will allow him to assume a part less than the whole.” (5 Corbin, Contracts, § 1068, at 386; see also, Patrick Petroleum Corp. v Callón Petroleum Co., 531 F2d 1312, 1315-1318.)

Repeatedly throughout their Agreement here, the parties agreed to shift to plaintiff the risk of a substantial portion of any economic loss caused by defendant’s nonperformance by excluding plaintiff’s right of recovery of consequential damages such as those it now claims. Thus, section 10 of the Agreement provided that in the event that the ACES system failed to perform in accordance with the specifications within the first year after acceptance, plaintiff had the right to "terminate this Agreement and receive a full refund of all monies paid hereunder” (Agreement § 10 [b] [i] [emphasis supplied]). The same section likewise limited plaintiff’s remedies in the event that defendant "commits any material breach * * * and fails to remedy such breach within thirty (30) days after written notice” (Agreement § 10 [b] [ii]). Section 1 (k) of the Agreement afforded plaintiff only the same limited remedies upon plaintiff’s determination at any time that the system failed to conform to specifications, and the defective performance or nonperformance was not cured within 30 days after notice. Most significantly for present purposes, the parties agreed that in the event that defendant “shall fail to deliver Enhancements”, that is, the customized modifications in the ACES base system adapting the system to plaintiff’s special needs, the furnishing of which represented the consideration for roughly two thirds of the contract price, plaintiff’s remedy was limited to the right “to terminate [defendant’s] work * * *, complete such work itself and charge the reasonable expenses of such completion of the System against any payments due [defendant], recovering the excess from [defendant], or [plaintiff] may, at its option, require a full refund of all monies. The total charge back under this paragraph shall not exceed amounts due and paid to /defendant]” (Agreement § 12 [6] [emphasis supplied]).

Plaintiff’s construction of the general limitation on liability section, essentially restricting it to inadvertent breaches in the course of defendant’s performance of the contract, clearly is inconsistent with sections 1 (k), 10 and 12 of the Agreement in which plaintiff agreed to limit its remedies for defendant’s nonperformance of the most vital of its obligations under the Agreement, even when such nonperformance persists after notice. Plaintiff’s construction of the willful acts exception to the general limitation on liability section of the Agreement thus violates one of the primary canons of contract construction.

"A cardinal principle governing the construction of contracts is that the entire contract must be considered and, as between possible interpretations of an ambiguous term, that will be chosen which best accords with the sense of the remainder of the contract” (Rentways, Inc. v O’Neill Milk & Cream Co., 308 NY 342, 347).

Moreover, plaintiff’s construction of the willful acts exception to defendant’s immunity from consequential damages in section 7 of the Agreement would eliminate any semblance of reciprocity between plaintiff and defendant as to their exposure to liability for heavy consequential damages, in a dispute between the parties over contract performance. Under plaintiff’s narrow interpretation of the protection afforded defendont under section 7, defendant would be under inordinate economic pressure to complete performance, being at risk of incurring liability for consequential damages in sums (as here) many times greater than the gross contract price. Under section 7, however, no reciprocal compulsion to complete performance is applied to plaintiff who is granted complete immunity from liability for consequential damages unrestricted by any exception whatsoever. "A court will endeavor to give the [contract] construction most equitable to both parties instead of the construction which will give one of them an unfair and unreasonable advantage over the other” (Fleischman v Furgueson, 223 NY 235, 241). It is highly unlikely that two sophisticated business entities, each represented by counsel, would have agreed to such a harshly uneven allocation of economic power under the Agreement. "Language in contracts placing one party at the mercy of the other is not favored by the courts” (Tibbetts Contr. Corp. v O & E Contr. Co., 15 NY2d 324, 337; see also, Schoellkopf v Coatsworth, 166 NY 77, 84; Gillet v Bank of Am., 160 NY 549, 557-558).

In excepting willful acts from defendant’s general immunity from liability for consequential damages under section 7 of the Agreement, we think the parties intended to narrowly exclude from protection truly culpable, harmful conduct, not merely intentional nonperformance of the Agreement motivated by financial self-interest. Under the interpretation tool of ejusdem generis applicable to contracts as well as statutes, the phrase "willful acts” should be interpreted here as referring to conduct similar in nature to the "intentional misrepresentation” and "gross negligence” with which it was joined as exceptions to defendant’s general immunity from liability for consequential damages (see, Bers v Erie R. R. Co., 225 NY 543, 546; Krulewitch v National Importing & Trading Co., 195 App Div 544, 546). We, therefore, conclude that the term willful acts as used in this contract was intended by the parties to subsume conduct which is tortious in nature, i.e., wrongful conduct in which defendant willfully intends to inflict harm on plaintiff at least in part through the means of breaching the contract between the parties.

As thus defined, limiting defendant’s liability for consequential damages to injuries to plaintiff caused by intentional misrepresentations, willful acts and gross negligence does not offend public policy. As we said in Sommer v Federal Signal Corp. (79 NY2d 540) the conduct necessary "to pierce an agreed-upon limitation of liability in a commercial contract, must 'smack[ ] of intentional wrongdoing’ ” (id., at 554 [quoting Kalisch-Jarcho, Inc. v City of New York, 58 NY2d 377, 385] [emphasis supplied]; see also, 5 Corbin, Contracts § 1068, at 389 [contractual exemption from liability for tortious conduct may be held against the public interest and illegal]; Restatement [Second] of Contracts § 195 [1] ["A term exempting a party from tort liability for harm caused intentionally or recklessly is unenforceable on grounds of public policy”]).

Finally, we conclude that plaintiffs proof was insufficient as a matter of law to establish that defendant willfully intended to inflict harm on plaintiff through its abandonment of the contract. Apart from evidence of alleged misconduct by defendant during the course of its performance of the contract, totally irrelevant to the subsequent withdrawal from the project, the proof, as plaintiff has indeed stressed, was that defendant’s repudiation of the Agreement was motivated exclusively by its own economic self-interest in divesting itself of a highly unprofitable business undertaking in order to promote the sale of its computer software division to a competitor company. Consequential damages resulting from that kind of contract nonperformance constitute a risk which plaintiff assumed under section 7 of the parties’ Agreement.

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

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith and Ciparick concur.

Order affirmed, with costs.

       The exceptions Professor Corbin notes are contracts of adhesion (5 Corbin, Contracts § 1068, at 386, n 84.5), or when the breach is also tortious (id., at 389).


text:
    [643 NE2d 509, 618 NYS2d 887]
    The People of the State of New York, Respondent, v Victor Sanchez, Appellant.
    Argued September 22,1994;
    decided October 27, 1994

      POINTS OF COUNSEL

      Kevin F. Casey, New York City, and Philip L. Weinstein for appellant.
    I. Appellant was deprived of his rights to fair notice of the charges and indictment by the Grand Jury, where, despite counsel’s protests, the prosecution refused to specify the complainants for each of the grand larceny charges. (People v Iannone, 45 NY2d 589; People v Keindl, 68 NY2d 410; People v Castillo, 47 NY2d 270; People v Beauchamp, 74 NY2d 639; People v Morris, 61 NY2d 290; People v Villani, 59 NY2d 781; People v Grega, 72 NY2d 489; Russell v United States, 369 US 749; People v Carpenito, 80 NY2d 65; People v Fitzgerald, 45 NY2d 574.) II. The five-year time span encompassed in each count of criminal impersonation and fortune telling was unnecessarily broad. (People v Morris, 61 NY2d 290; People v Watt, 81 NY2d 772; People v Romero, 147 AD2d 358; People v Keindl, 68 NY2d 410; People v Stith, 69 NY2d 313; People v Okafore, 72 NY2d 81; Blockburger v United States, 284 US 299.)

      Richard A. Brown, District Attorney of Queens County, Kew Gardens (Jay L. Weiner and Steven J. Chananie of counsel), for respondent.
    I. The Court below correctly held that defendant received adequate notice of the three counts charging second degree grand larceny. (People v Morris, 61 NY2d 290; Rosen v United States, 161 US 29; People v Beauchamp, 74 NY2d 639; People v Iannone, 45 NY2d 589; Russell v United States, 369 US 749; People v Bogdanoff, 254 NY 16; United States v Society of Ind. Gasoline Marketers, 624 F2d 461, cert denied sub nom. Amerada Hess Corp. v United States, 449 US 1078; United States v Cruikshank, 92 US 542; People v Keindl, 68 NY2d 410; People v Coleman, 178 AD2d 842, 81 NY2d 826.) II. As limited by the Grand Jury minutes and the proof at trial, the misdemeanor counts of fortune telling and criminal impersonation alleged reasonable time periods. (People v Okafore, 72 NY2d 81; People v Keindl, 68 NY2d 410; People v Erickson, 302 NY 461; Blockburger v United States, 284 US 299; Ebeling v Morgan, 237 US 625; Matter of Pellman v Valentine, 185 Misc 873; People v Ashley, 184 App Div 520; People v La Marca, 3 NY2d 452; Cowley v People, 83 NY 464.)
   OPINION OF THE COURT

Levine, J.

Defendant was charged in a 35-count indictment with the crimes of grand larceny in the second degree (three counts), grand larceny in the third degree (three counts), criminal impersonation in the second degree (nine counts), scheme to defraud in the first degree (one count), fortune telling (nine counts), coercion in the first degree (nine counts), and menacing (one count). Following trial on the indictment, defendant was found guilty by the jury of one count of grand larceny in the second degree, four counts of grand larceny in the third degree, one count of scheme to defraud in the first degree, four counts of criminal impersonation in the second degree, and five counts of fortune telling.

The Appellate Division, Second Department, modified by, inter alia, reducing the grand larceny in the second degree count to grand larceny in the third degree, and reversing two of the convictions for grand larceny in the third degree for insufficient notice in the accusatory pleadings (195 AD2d 578).

Defendant now challenges the remaining convictions — three counts of grand larceny in the third degree, one count of scheme to defraud in the first degree, four counts of criminal impersonation in the second degree, and five counts of fortune telling — based on asserted fatal defects in the indictment. For the reasons that follow, we modify the order of the Appellate Division to reverse the convictions on the three counts of grand larceny, the five counts of fortune telling, and three of the four counts of criminal impersonation and direct dismissal of those counts. The convictions for scheme to defraud and for one count of criminal impersonation stand.

I.

The indictment charging defendant with 35 crimes fixed the time periods of the criminal acts in spans ranging from four months to five years, failed to identify the victims of the crimes, and alleged only that the crimes took place somewhere in Queens County. The People’s voluntary disclosure form gave no additional details as to the individual counts. Instead it simply described a scheme whereby defendant, "operating as a 'parapsychologist’ and counselor * * * held himself out as an FBI agent and threatened persons known to the grand jury with deportation, humiliation, exposure, physical harm and damage to reputation, and induced the above persons known to the grand jury to pay monies in excess of [$]50,000 and to attempt to obtain further monies illegally as well as obtain cocaine [sic]”.

The defendant requested a bill of particulars specifying information about the complainants and the alleged crimes. The People’s bill of particulars did not set forth the dates on which those 35 crimes allegedly were committed. Nor did it name the complainants. Instead, it summarized superficially the Grand Jury testimony of each complainant designating each complainant by number. The bill of particulars did not match each anonymous, numbered victim with corresponding counts of the indictment.

Six months before trial defense counsel was afforded additional discovery by being permitted to take notes from a copy of the Grand Jury minutes, from which the names of the witnesses had been redacted. On the eve of trial, defendant was provided with a copy of the redacted Grand Jury minutes and a witness list. At no time, however, did the prosecution link the names or numbers of victims to the counts of the indictment. In fact it was not until all of the complaining witnesses had testified and been cross-examined that the prosecutor was willing to commit the People as to which complainant corresponded to which count of grand larceny.

II.

A criminal indictment serves three purposes. First, it provides "the defendant with fair notice of the accusations made against him, so that he will be able to prepare a defense” (People v Iannone, 45 NY2d 589, 594; see also, People v Morris, 61 NY2d 290, 293; People v Keindl, 68 NY2d 410, 416). Second, the indictment provides "some means of ensuring that the crime for which the defendant is brought to trial is in fact one for which he was indicted by the Grand Jury, rather than some alternative seized upon by the prosecution” (People v Iannone, supra, at 594 [citing Russell v United States, 369 US 749, 770]). Finally, an indictment protects a criminal defendant from prosecution at another time for the same offense. Therefore, "an indictment must allege the crime charged with sufficient specificity to enable the defendant, once convicted, to raise the constitutional bar of double jeopardy against subsequent prosecutions for the same offense” (People v Keindl, supra, at 416; see also, People v Morris, supra, at 293; People v Iannone, supra, at 595).

These requirements are rooted in statute (CPL 200.50, 200.30) and in our State’s Constitution (NY Const, art I, § 6). Where the indictment itself is inadequate, dismissal may be required. In some instances, however, the bill of particulars may be used to flesh out an inadequate indictment (People v Morris, supra, at 295). In any case, "[t]he determination of whether sufficient specificity to adequately prepare a defense has been provided to a defendant by the indictment and the bill of particulars must be made on an ad hoc basis by considering all the relevant circumstances” (id., at 295).

III.

Defendant challenges the sufficiency of the indictment for the three remaining counts of grand larceny as to which he was convicted. We conclude that the indictment, even as augmented by the bill of particulars, was insufficient as to those grand larceny counts. The indictment accused defendant of taking more than $50,000 from each of three unnamed persons, somewhere in Queens County, some time in a 4-month, 15-month, and 5-year period respectively. The bill of particulars listed by number nine unnamed victims of which four could have corresponded to the three second degree grand larceny counts. While the bill of particulars gave some additional details as to the manner in which each of the numbered victims was defrauded, it did not in any other way connect any specifically numbered victim to a single second degree grand larceny count of the indictment.

The foregoing information contained in the accusatory papers was wholly inadequate to allow defendant to put on a defense. He was not informed by the criminal pleadings of any narrowing information regarding the victims’ identities or the time or place of the criminal activity. Defense counsel was reduced to impeaching the individual credibility of the prosecution witnesses after they testified on direct examination, without knowing — even then — to which count the witness’ testimony was relevant. Under the circumstances of this case, the defendant was entitled to more information in order to prepare and wage a defense.

Although there is no per se rule that requires an indictment to name the victim for each count alleged (see, e.g., People v Paolillo, 307 NY 736, affg 15 Misc 2d 1031; People v Coleman, 178 AD2d 842, revd on other grounds 81 NY2d 826), the indictment and bill of particulars must provide sufficient alternative information identifying the charged crime to satisfy statutory and constitutional requirements. Here, defendant faced a complex 35-count indictment which not only left victims unnamed but provided no definiteness as to the dates, times, or places of the charged criminal activity.

The indictment and bill of particulars also failed to satisfy their two other functions. They were so vague as to allow the prosecution to put on its witnesses and then decide which witness testified to which count. At one point during the trial, the prosecutor declared that a complaining witness that he originally thought had testified to grand larceny in the second degree had really only testified to grand larceny in the third degree. The prosecutor did not shift his theory until after a more credible complaining witness gave testimony that could support a grand larceny in the second degree charge. The information in the indictment and bill of particulars is insufficient to allow us to determine if the defendant was in fact tried for the crimes charged, or for others seized upon by the prosecutor at trial.

Moreover, the indictment and bill of particulars in this case would not be useful to the defendant if he were charged in a subsequent proceeding on similar crimes arising during the same five-year time span. They are so nonspecific as to put the defendant at risk of being tried twice for the same crimes.

The People urge that they adequately supplemented the deficient indictment and bill of particulars by allowing the defendant to read and take notes from a redacted copy of the Grand Jury minutes before trial. They contend that with "minimal effort” the defendant could have deciphered what conduct served as the basis for each accusation. This argument is unavailing. First, it is the People’s burden to provide the defendant with notice of the charges in a clear and concise manner (see, People v Villani, 59 NY2d 781, 783; People v Iannone, 45 NY2d 589, 599, supra); it is not the burden of the defendant to piece together clues disclosed in separate unconnected documents to infer what alleged conduct supported which alleged charge. Also, the double jeopardy protection of the accusatory pleadings (People v Morris, supra, at 293; see also, People v Iannone, supra, at 594) would be substantially reduced if the People could cure deficiencies by a defendant’s inspection of redacted Grand Jury minutes. Moreover, rather than supporting the People’s position, the claim that the necessary information to flesh out the indictment was made available to the defense through the Grand Jury minutes actually supports dismissal of the grand larceny counts. People v Morris makes clear that the test for adequacy of notice in the accusatory papers "embraces good faith” (61 NY2d, at 296, supra), thereby requiring the prosecution to give necessary specifics to the best of its knowledge.

IV.

We now turn to the convictions for fortune telling (five counts), criminal impersonation (four counts), and scheme to defraud. The People consent to reversal and dismissal of the charges with respect to the convictions for criminal impersonation and fortune telling that are factually related to the grand larceny convictions reversed by the Appellate Division.

Defendant challenges the remaining counts of fortune telling and criminal impersonation on the ground that the time spans set out in the indictment, identical five-year periods, were unnecessarily broad. An indictment will not be dismissed as defective because of a broad time allegation if it, or the bill of particulars, provides a reasonable approximation under the circumstances of the individual case of the date the crime occurred (People v Morris, supra, at 292. Thus where an indictment charges a single act offense, a reasonable time period will generally be shorter than that which would be acceptable to charge a continuing offense, which by its nature may be committed over a broad period of time (see, e.g., People v Keindl, 68 NY2d 410, 422, supra). In addition, "the span of time set forth and the knowledge the People have or should have of the exact date or dates of the crime” (People v Morris, 61 NY2d, at 295, supra); "the age and intelligence of the victim and other witnesses; * * * the surrounding circumstances; and * * * the nature of the offense” (id., at 296) can also be considered when making a determination whether a specified time period was reasonable.

We reject the People’s characterization of fortune telling as a continuing offense. The crime does not "readily permit[ ] characterization as a continuing offense over a period of time” (People v Keindl, supra, at 421), and there is no apparent legislative intent to create a continuing offense (see, People v Okafore, 72 NY2d 81). The crime of fortune telling is completed each time a person uses "claimed * * * occult powers” for a fee "to answer questions or give advice on personal matters or to exorcise, influence or affect evil spirits or curses” (Penal Law § 165.35). Considering all the relevant circumstances we find the five-year time periods unreasonably broad. The convictions for fortune telling must therefore be reversed.

As to the convictions for criminal impersonation, the People concede that the defendant committed the criminal impersonation over a five-year time period with respect to only one count of the indictment (count 10). Thus, the People failed in their duty to be as precise as their information allows in stating the date of the offense as to the other counts of criminal impersonation (People v Morris, supra, at 296). Those counts must be dismissed. Because we are persuaded that criminal impersonation can constitute a continuing offense, the remaining conviction for that crime stands. One can impersonate another with the intent to defraud (Penal Law § 190.25) with a single act or a series of acts constituting a pattern of behavior. In the instant case, the People maintain that the defendant impersonated an FBI agent for the entire five-year period during which he knew the complainant. The notice as to that charge was reasonable under the circumstances.

Finally, we reject defendant’s argument that dismissal of the convictions for grand larceny requires reversal of the conviction for scheme to defraud because the scheme to defraud count is factually related to grand larceny counts. "[B]ecause the evidence adduced as to those counts that we dismiss would have been admissible as to the [count charging scheme to defraud], it cannot be said that defendant was deprived of a fair trial on the [count] that we sustain, and therefore the conviction[ ] with respect thereto should not be disturbed” (People v Keindl, supra, at 422).

Accordingly, the order of the Appellate Division should be modified in accordance with this opinion and the case remitted to Supreme Court, Queens County, for resentencing on the convictions for scheme to defraud and criminal impersonation (see, CPL 470.20 [3]) and, as so modified, affirmed.

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith and Ciparick concur.

Order modified and case remitted to Supreme Court, Queens County, for further proceedings in accordance with the opinion herein and, as so modified, affirmed.


author: Per Curiam.

text:
    [643 NE2d 514, 618 NYS2d 892]
    In the Matter of Victor J. Cipolla, Appellant, v Blaise T. Golisano et al., Respondents.
    Argued October 26,1994;
    decided October 28, 1994

      POINTS OF COUNSEL

      Cusick, Hacker & Murphy, Latham (Jeffrey T. Buley and John Clyne of counsel), for appellant.
    I. The court below erred by ruling that Election Law § 6-158 (13) gave the Committee to Fill Vacancies named on the independent nominating petition filed on behalf of the independent body called the Independence Fusion Party the authority to substitute Blaise T. Golisano for Richard M. Rosenbaum following Richard M. Rosenbaum’s postprimary declination executed pursuant to Election Law § 6-158 (11). (Matter of Moore v Walsh, 177 Misc 362, 262 App Div 1060, 286 NY 552.) II. Since Election Law § 6-158 (13) does not apply to this proceeding the certificate of substitution substituting Blaise T. Golisano for Richard M. Rosenbaum for the public office of Governor for the nomination of the Independence Fusion Party at the November 8, 1994 general election was untimely and is therefore invalid. (Matter of Baker v Monahan, 42 NY2d 1074; Matter of Bristol v Chiavaroli, 54 AD2d 72, 40 NY2d 898.) III. The postprimary declination provided by Election Law § 6-158 (11) is an additional right provided to independent candidates and does not deny independent candidates any right provided to party candidates.

      Thomas J. Spargo, New York City, Gary Sinawski and William J. Neild for respondents.
    I. The substitution of Golisano for Rosenbaum is valid. II. If the Election Law were construed so as to prohibit the substitution, the prohibition would be unconstitutional. (Kusper v Pontikes, 414 US 51; Dunn v Blumstein, 405 US 330; Williams v Rhodes, 393 US 23; Anderson v Celebrezze, 460 US 780; Storer v Brown, 415 US 724; Burdick v Takushi, 504 US 428; Duke v Cleland, 5 F3d 1399; Fulani v Krivanek, 973 F2d 1539; Norman v Reed, 502 US 279; Clements v Fashing, 457 US 957.) III. The New York decisional law does not support the petitioner. (Matter of Moore v Walsh, 177 Misc 362, 262 App Div 1060, 286 NY 552.)

      G. Oliver Koppell, Attorney-General, Albany (Peter G. Crary, Jerry Boone and Peter H. Schiff of counsel), in his statutory capacity under Executive Law § 71.
   OPINION OF THE COURT

Per Curiam.

On August 24, 1994, the Independence Fusion Party (IFP) filed an independent nominating petition naming Richard M. Rosenbaum as its candidate for Governor. Rosenbaum also campaigned for the Republican Party nomination for Governor. On September 16, 1994, following his loss in the Republican Party primary, Rosenbaum filed a timely declination of the IFP nomination pursuant to Election Law § 6-158 (11). Also on September 16, the IFP’s Committee to Fill Vacancies filed documents required by Election Law § 6-148 to fill the vacancy caused by Rosenbaum’s declination by substituting respondent Blaise T. Golisano as the IFP’s candidate for Governor.

On September 22, 1994, petitioner filed an Objection and Specification to the substitution of Golisano for Rosenbaum. Petitioner’s sole specification of objection stated that "the purported substitution follows a declination executed pursuant to section 6-158 (11) of the Election Law and that statute makes no provision for substitution following the declination.” The State Board of Elections conducted a hearing on petitioner’s objection, and determined that the IFP properly substituted Golisano for Rosenbaum. Petitioner then brought this proceeding to annul the Board of Elections’ determination and to enjoin the placement of Golisano’s name on the ballot as the IFP candidate for Governor in the general election.

Supreme Court concluded that Election Law § 6-158 (13) vested power in the IFP Committee to Fill Vacancies to substitute Golisano for Rosenbaum and dismissed the petition. The Appellate Division affirmed (208 AD2d 584). We granted petitioner’s application for leave to appeal and now affirm.

Petitioner’s sole argument before us is that Election Law § 6-158 (13) does not authorize the filling of a vacancy caused by the postprimary declination of an independent candidate, as occurred here. Section 6-158 (13) provides as follows:

"If a vacancy occurs too late to comply with the provisions of this section, the certificates of nomination, certificates of acceptance or declination, certificates to fill a vacancy in such nomination and certificates of authorization of a nomination shall be filed as soon as practicable” (emphasis supplied).

Petitioner maintains that the language "certificates to fill a vacancy in such nomination” refers back to the earlier language "certificates of nomination” in Election Law § 6-158 (13), and that "certificate of nomination” is a phrase used exclusively in the Election Law to refer to a nomination by a political party rather than an " 'independent nomination’ * * * by an independent body” (see, Election Law § 1-104 [13]) such as the IFP. Thus, petitioner argues, Election Law § 6-158 (13) does not authorize the IFP to fill this vacancy. We disagree.

Election Law § 6-148 (1) provides in general that "[a] vacancy in a * * * nomination caused by declination, where a declination is permitted by this article * * * may be filled by the making and filing of a certificate.” Section 6-148 (2) specifically grants "a majority of the committee to fill vacancies shown upon the face of the petition * * * of * * * nomination” the right to fill "[a] vacancy in a[n] * * * independent nomination.” Thus, the Election Law gives the Committee to Fill Vacancies on an independent nominating petition, such as that of the IFP here, the right to fill the vacancy caused by the candidate’s declination, subject to the time limits and other procedural requirements of Election Law § 6-158.

Election Law § 6-158 specifies filing requirements and deadlines for nominating and designating petitions and certificates for candidate acceptances and declinations, for the holding of judicial conventions, and for the filling of vacancies as to nominations — by both political parties and independent bodies. The various subdivisions of Election Law § 6-158 deal seriatim with each of the steps whereby a candidate is selected and accepts or declines the nomination or designation, and the methods by which a vacancy caused by such a declination is filled. Thus, subdivisions (6) through (8) of Election Law § 6-158 address party nominations, i.e., the times for filing the certificate of nomination (Election Law § 6-158 [6]), for the filing of a certificate of acceptance or decimation by the candidate (Election Law § 6-158 [7]) and for filling a vacancy caused by a declination (Election Law § 6-158 [8]). Subdivisions (9) through (12) of section 6-158 correspondingly address the deadlines with respect to independent nominations and certificates of acceptance or declination thereof; in parallel fashion, there is a provision setting a deadline for filling a vacancy caused by a declination (Election Law § 6-158 [12]).

Having thus set forth the various deadlines, including those for the filling of vacancies for both party and independent nominations in the foregoing subdivisions of Election Law § 6-158, subdivision (13) of that section addresses alternative time requirements for filling a vacancy in the event that "a vacancy occurs too late to comply with the provisions of this section” (emphasis supplied).

Uncontestably, the vacancy caused by Rosenbaum’s declination occurred too late to comply with Election Law § 6-158 (12) , and petitioner can point to no language in subdivision (13) expressly excluding application of subdivision (13) to such a late declination of an independent nomination. Moreover, the terminology of subdivision (13) and its location in the statutory framework of Election Law §6-158 are strongly persuasive that it applies equally to vacancies occurring with respect to independent nominations and to party nominations. By its terms, the application of subdivision (13) is triggered by "a vacancy [which] occurs too late to comply with the provisions of this section” (emphasis supplied), rather than by an inability to comply with the party-specific subdivisions of section 6-158. Further, the Legislature placed subdivision (13) after the provisions relating to independent nominations and not immediately after the party-specific subdivisions as it would have done if, as petitioner argues, it were intended only to apply to those party-specific subdivisions.

Moreover, throughout Election Law § 6-158, the Legislature refers to "party nomination” when it means designation by a political party (subds [6], [7], [8]) and "independent nomination” when it means designation by an independent group (subds [9], [11]). If the Legislature meant to impose the limitation petitioner advocates, it would have used the term "vacancy in a party nomination” in subdivision (13). We also agree with the Appellate Division that Matter of Moore v Walsh (286 NY 552) is inapposite as that case construed former Election Law § 140 (10), which governed vacancies described in a subdivision expressly limited to party nominations.

Our interpretation furthers the policy of the Legislature in enacting the Election Reform Act of 1992, to “facilitate] access to the ballot by party and independent candidates” (Preamble to L 1992, ch 79; see also, Mem of Assembly Rules Comm, L 1992, ch 79, 1992 NY Legis Ann, at 53). Thus, our construction is not only consistent with the statutory framework of Election Law § 6-158 and other applicable provisions of the law, but also advances the policy of broad participation in the political process, both by political parties and by independent bodies, including the more than 30,000 citizens who signed the IFP nominating petitions, all in accordance with the statute’s evident intent.

Finally, although respondents challenge the constitutionality of petitioner’s construction of the statute, " 'constitutional issues affecting legislation will not be determined * * * in advance of the necessity of deciding them * * * if a construction of the statute is fairly possible by which the question may be avoided.’ ” (Matter of Peters v New York City Hons. Auth., 307 NY 519, 527-528 [quoting Rescue Army v Municipal Ct, 331 US 549, 569].)

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

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur in Per Curiam opinion.

Order affirmed, without costs.


author: Ciparick, J.

text:
    [643 NE2d 517, 618 NYS2d 895]
    The People of the State of New York, Respondent, v Ali Riza Gelikkaya, Appellant.
    Argued October 21,1994;
    decided December 1, 1994

      POINTS OF COUNSEL

      Ira Mickenberg, New York City, and Sarah Arnholz for appellant.
    Mr. Gelikkaya’s Grand Jury testimony should not have been admitted at trial because it was the product of a waiver of immunity made while he was incompetent and incapable of consulting with his attorney. (Nicks v United States, 760 F Supp 293; United States v Helmsley, 733 F Supp 600; Dusky v United States, 362 US 402; People v Francabandera, 33 NY2d 429; Pate v Robinson, 383 US 375; United States v Hemsi, 901 F2d 293; People v Swallow, 60 Misc 2d 171; People v Picozzi, 106 AD2d 413; People v Chapman, 69 NY2d 497; People v Settles, 46 NY2d 154.)

      Robert M. Morgenthau, District Attorney of New York County, New York City (Tami J. Aisenson and Morrie I. Kleinbart of counsel), for respondent.
    The use of defendant’s Grand Jury testimony for impeachment was proper. (People v Chapman, 69 NY2d 497; People v Baxley, 140 Misc 2d 516; Pate v Robinson, 383 US 375; Dusky v United States, 362 US 402; People v Gelikkaya, 197 AD2d 405; People v Silver, 33 NY2d 475; People v Erazo, 28 NY2d 617; People v Mullooly, 37 AD2d 6; People v Freyre, 76 Misc 2d 210; People v Swallow, 60 Misc 2d 171.)
   OPINION OF THE COURT

Ciparick, J.

After a jury trial, defendant was convicted of attempted murder in the second degree. On this appeal, defendant challenges the prosecution’s use of portions of his Grand Jury testimony to impeach him on cross-examination. Although defendant concedes that he voluntarily waived his immunity and testified before the Grand Jury, he argues that the Trial Judge improperly admitted his Grand Jury testimony because it was given when he was incompetent, rendering the testimony inherently unreliable and inadmissible. We conclude that the Trial Judge, in the exercise of his discretion, properly denied the motion in limine and admitted defendant’s Grand Jury testimony for the limited purpose of impeachment.

On February 19, 1988, defendant was arrested in connection with his involvement in a skirmish in a lower Manhattan mosque. Defendant allegedly lunged at the spiritual leader of the mosque, yelling "I will kill you,” and punched him. A group of worshippers purportedly restrained defendant, who then retrieved a knife concealed in his clothing. While lashing out at the individuals restraining him, defendant struck the complainant in his forearm and lower back, causing injuries which required medical attention.

On February 22, 1988, defendant appeared in Criminal Court with counsel, and was arraigned on a felony complaint charging him with attempted murder in the second degree (Penal Law §§ 110.00, 125.25), assault in the second degree (Penal Law § 120.05 [2]) and criminal possession of a weapon in the fourth degree (Penal Law § 265.01 [2]). During this proceeding, defendant advised the court of his intent to testify before the Grand Jury. Defendant’s competence was not raised as an issue at this time.

Two days later, defendant appeared before the Grand Jury, accompanied by counsel and an interpreter. Defendant proceeded to waive his immunity. The prosecutor, however, directed defendant to confer with his attorney before accepting the waiver and testimony. After a 20-minute conference with his counsel outside the presence of the Grand Jury, defendant swore that his waiver was voluntary and that he wished to testify (see, CPL 190.45 [2]). At no time was defendant’s competency or the voluntariness of his waiver or testimony in issue. The Grand Jury returned an indictment charging defendant with one count of attempted murder in the second degree (Penal Law §§ 110.00, 125.25 [1]) and assault in the second degree (Penal Law § 120.05 [2]).

At the March 14, 1988 arraignment on the indictment, the trial court entered a plea of not guilty on behalf of defendant, who appeared with counsel. Now, for the first time, the issue of defendant’s competency was raised, and the trial court ordered that defendant undergo a competency examination pursuant to CPL 730.30. Approximately three weeks later, two psychiatrists independently determined that defendant was suffering from a psychiatric disorder that deprived him of the capacity to understand the proceedings against him or to assist in his own defense. The trial court executed an order committing defendant for treatment. Fifteen months later, after a regimen of medication and counselling, defendant was declared fit to proceed. Eight months thereafter, defendant’s trial commenced.

At the trial, four eyewitnesses testified to the circumstances of the skirmish. Before defendant took the stand on his own behalf, defense counsel moved to preclude use of the Grand Jury testimony to impeach defendant because of defendant’s alleged incompetency at the time of that proceeding. Counsel argued that defendant’s Grand Jury testimony was not rational and, at that time, defendant was unable to rely on his advice. In fact, defendant testified before the Grand Jury despite his counsel’s advice to the contrary. Counsel further asserted that defendant had expressed his distrust of the interpreter assigned to assist him before the Grand Jury, whom he had just met, a sentiment counsel indicated defendant harbored against him, as well. The Trial Judge denied the motion, and the People introduced portions of the Grand Jury testimony that were inconsistent with defendant’s trial testimony on several minor points.

The jury returned a verdict convicting defendant of attempted murder in the second degree. Thereafter, the trial court sentenced defendant to an indeterminate prison sentence of 8 to 24 years.

The Appellate Division affirmed the conviction and sentence, rejecting defendant’s argument that his Grand Jury testimony was involuntary and inadmissible for any purpose (see, People v Gelikkaya, 197 AD2d 405). A Judge of this Court granted leave to appeal, and we now affirm.

Defendant’s appeal is premised on the ground that he was incompetent at the time he appeared before the Grand Jury, and was therefore unable to understand the proceedings or to rationally consult with counsel at the time he waived his immunity and testified before the Grand Jury. As there exists a presumption of sanity, " '[s]anity being the normal and usual condition of mankind’ ” (People v Silver, 33 NY2d 475, 481, citing Brotherton v People, 75 NY 159, 162; see also, People v Lancaster, 69 NY2d 20, 30, cert denied 480 US 922), defendant is presumed to have been competent at the time of the Grand Jury proceeding. Just as it is an established fact that a prior history of mental imbalance does not in itself prove insanity at the time of judgment (see, People v Boundy, 10 NY2d 518, 521; People v Gensler, 72 NY2d 239, 244, cert denied 488 US 932), mental illness subsequent to indictment is not evidence of incompetency at the time of the Grand Jury proceeding. Even a mentally ill person may give evidentiary testimony provided that individual has sufficient intelligence to understand the nature of an oath and to give a reasonably accurate account of the circumstances in issue (see, People v Rensing, 14 NY2d 210, 213).

Since the inception of this action, defendant was represented by competent counsel at all times. Defendant was encouraged to consult with counsel both before and during the Grand Jury proceeding, and the transcript reveals that he availed himself of these opportunities. At no time during the Grand Jury proceeding did defense counsel, who was in the best position to assess defendant’s capacity, raise the issue of defendant’s fitness to proceed or request an examination pursuant to CPL 730.30.

At trial, defense counsel’s motion to preclude the admission of the Grand Jury testimony on the ground that defendant was incompetent when he testified before the Grand Jury was denied, and the Trial Judge admitted the testimony strictly for impeachment purposes. By allowing the prosecution to use the testimony for impeachment purposes, the Trial Judge necessarily found that when defendant testified before the Grand Jury he was able to consult with counsel " ' "with a reasonable degree of rational understanding * * * and * * * ha[d] a rational as well as factual understanding of the proceedings against him” ’ ” (People v Francabandera, 33 NY2d 429, 436, citing Denzer, Practice Commentary, McKinney’s Cons Laws of NY, Book 11 A, CPL 730.10, at 332 [1971 ed]). As noted by the Appellate Division, although defendant’s remarks before the Grand Jury were not a model of clarity, the portions of the testimony used by the prosecutor to impeach him were rational responses to the questions posed to him (see, People v Gelikkaya, 197 AD2d, at 406, supra). Thus, neither defendant’s conduct at the Grand Jury proceeding nor the psychiatric examinations conducted subsequent to that time rebutted the presumption that defendant was competent at the time of his Grand Jury testimony.

Once the selected portions of the Grand Jury testimony were used to impeach defendant on cross-examination, the relevant issue became the credibility of defendant’s trial testimony, an issue the jury obviously resolved against defendant (see, People v McElvaine, 125 NY 596, 604). The Trial Judge’s determination that defendant’s Grand Jury testimony was admissible and reliable to the extent it was voluntary (see, People v Hulls, 76 NY2d 190, 198; Harris v New York, 401 US 222, 225-226) was not an abuse of discretion. There is nothing in the record that suggests defendant did not comprehend the significance of these statements or the nature of the proceeding in which he voluntarily gave this testimony, and it is the Trial Judge who is best equipped to evaluate the admissibility of such testimony.

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

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith and Levine concur.

Order affirmed.


text:
    [643 NE2d 1071, 619 NYS2d 255]
    In the Matter of Burton Weston et al., Appellants, v Steven Sloan, as Secretary of the Senate, Respondent.
    Argued October 19, 1994;
    decided December 6, 1994

      POINTS OF COUNSEL

      Michael J. Siris, Manhasset, for appellants.
    I. In construing the Freedom of Information Law (FOIL) section in question, the Court below improperly disregarded the Legislature’s broad statement of FOIL’S purpose. (Matter of Westchester County Socy. for Prevention of Cruelty to Animals v Mengel, 266 App Div 151, 292 NY 121; Matter of Dunlea v Goldmark, 54 AD2d 446, 43 NY2d 754; Matter of Newsday, Inc. v Sise, 71 NY2d 146, 486 US 1056; Matter of Capital Newspapers v Whalen, 69 NY2d 246; Matter of Fink v Lefkowitz, 47 NY2d 567; Matter of Capital Newspapers v Burns, 67 NY2d 562; Matter of Lucas v Pastor, 117 AD2d 736.) II. Respondent Senate is required to disclose the records requested by appellants because such records are "statistical or factual tabulations” as provided in Public Officers Law § 88 (2) (e). (Matter of

      Dunlea v Goldmark, 54 AD2d 446.) III. The Court below should have considered the advisory opinion of the Committee on Open Government, an important arbiter of FOIL’S scope. (Matter of Miracle Mile Assocs. v Yudelson, 68 AD2d 176, 48 NY2d 606, 706; Matter of Sheehan v City of Binghamton, 59 AD2d 808; Matter of Howard v Wyman, 28 NY2d 434; Matter of Gannett Co. v James, 108 Misc 2d 862, 86 AD2d 774, 56 NY2d 502.)

      G. Oliver Koppell, Attorney-General, Albany (Frank K. Walsh, Jerry Boone and Peter H. Schiff of counsel), for respondent.
    The Court below correctly ruled that the section of FOIL which specifically governs records of the Legislature does not mandate disclosure of the records requested. (Matter of Westchester County Socy. for Prevention of Cruelty to Animals v Mengel, 266 App Div 151, 292 NY 121; Squadrito v Griehsch, 1 NY2d 471; Matter of Capital Newspapers v Burns, 67 NY2d 562; Matter of Farbman & Sons v New York City Health & Hosps. Corp., 62 NY2d 75; Matter of Fink v Lefkowitz, 47 NY2d 567; Matter of Washington Post Co. v New York State Ins. Dept., 61 NY2d 557; Matter of Capital Newspapers v Whalen, 69 NY2d 246; Matter of Hanig v State of New York Dept. of Motor Vehicles, 79 NY2d 106; Matter of Federation of N. Y. State Rifle & Pistol Clubs v New York City Police Dept., 73 NY2d 92.)

      Andrew Greenblatt, New York City, for New York State Common Cause, amicus curiae.

    I. The Secretary of the Senate is required to disclose the records requested by appellants because they are statistical or factual tabulations of, or with respect to, material otherwise available to the public. (Matter of Dunlea v Goldmark, 54 AD2d 446, 43 NY2d 754.) II. The records must be disclosed because the Secretary of the Senate did not adequately articulate reasons why appellants’ request was denied. (Church of Scientology v State of New York, 46 NY2d 906; Matter of Konigsberg v Coughlin, 68 NY2d 245; Matter of Capital Newspapers v Burns, 67 NY2d 562; Matter of Farbman & Sons v New York City Health & Hosps. Corp., 62 NY2d 75; Matter of Fink v Lefkowitz, 47 NY2d 567.)
   OPINION OF THE COURT

Simons, J.

Petitioners are a registered voter and an unsuccessful candidate for the Seventh District State senatorial seat held in 1992 by Senator Michael J. Tully, Jr. They instituted this CPLR article 78 proceeding seeking judicial review of a determination by respondent Sloan, Secretary of the Senate, which denied their request for information concerning Senator Tully’s publicly funded mailings. The issue presented is whether such information must be disclosed under the Freedom of Information Law (Public Officers Law § 88 [2] [FOIL]). We conclude that such information is generally disclosable under FOIL and, therefore, that the order of the Appellate Division denying petitioners’ relief should be modified.

On September 16, 1992, petitioner Weston requested from respondent Sloan, the Senate officer charged with responding to FOIL requests, the following records: the number of newsletters, bulk-rate mailings and first-class mailings sent by Senator Tully, either in his role as a Senator or a Committee Chairman, between January 1, 1991 and the date of the letter, and a copy of each; the total cost of postage for the newsletter, the bulk-rate mailings, and the first-class mailings; the total cost of printing and preparing the mailings; and, if any of the mailings were specifically targeted, the number of recipients and the election districts which were the targets. Respondent denied the request, asserting that the information was not available pursuant to FOIL. Upon administrative appeal, the Senate Majority Counsel sustained the denial, on the more particularized ground that the information requested was not specifically included in the list of legislative records available for public inspection and copying either under Public Officers Law § 88 (2) or section 2 of the Rules and Regulations Relating to the Public Inspection and Copying of Legislative Records, the Senate rules promulgated to implement FOIL. This proceeding followed.

Supreme Court granted petitioners’ application, annulling respondent’s determination and directing that he provide the information requested. The court based its ruling on the general principle underlying FOIL: the presumption that the records of government should be accessible to the public under the public’s inherent right to know the processes of government decision-making. The Appellate Division reversed. It concluded that access to the records of the Legislature, as opposed to those of public agencies, is limited to the specific categories listed in section 88 of the Public Officers Law, and that no portion of the statute, or any other applicable provision of law, mandates disclosure of the information requested by petitioners.

The enactment of New York’s Freedom of Information Law (Public Officers Law art 6) in 1974 was the result of a legislative effort to increase the accountability of the government to its citizens by recognizing the public’s "right to know” more about the operation of the government (Public Officers Law § 84). In the legislative declaration the act noted that "a free society is maintained when government is responsive and responsible to the public” and that "it is incumbent upon the state and its localities to extend public accountability wherever and whenever feasible” (id.). We have consistently interpreted the statute liberally to implement these broad purposes (see, Matter of Capital Newspapers v Burns, 67 NY2d 562, 565-567; Matter of Farbman & Sons v New York City Health & Hosps. Corp., 62 NY2d 75, 79-80; Matter of Washington Post Co. v New York State Ins. Dept., 61 NY2d 557, 564).

Article 6 was reenacted in 1977 to expand the scope of FOIL and make presumptively available virtually all agency records unless otherwise specifically exempted (see, Public Officers Law § 87; Matter of Capital Newspapers v Burns, supra, at 565-567; Matter of Farbman & Sons v New York City Health & Hosps. Corp., supra, at 79-80). The 1977 legislation changed the format of the statute, however; while it expanded agency disclosure it excepted the Legislature and the judiciary from the definition of agencies (see, Letter of Senator Ralph J. Marino, Bill Jacket, L 1977, ch 933; Public Officers Law § 86 [3]). Instead, the Legislature added a new section 88 which provided for access under FOIL to certain specified State legislative records — the same types of records all agencies were required to provide under the more limited 1974 version of the statute. The effect of this was to make agency records more available to FOIL applicants but to retain the limitations on disclosure of legislative records unless disclosure was specifically authorized under the statute.

In this proceeding, petitioners rely on the language of section 88 (2) (e) which authorizes disclosure of "internal or external audits and statistical or factual tabulations of, or with respect to, material otherwise available for public inspection and copying pursuant to this section or any other applicable provision of law”. They contend the records sought are "statistical or factual tabulations” with respect to "material otherwise available for public inspection”.

Analysis starts by noting that the Legislature in its declaration has recognized that documents and statistics are part of the basic information leading to governmental decisions (see, Public Officers Law § 84). Thus, it is understandable that it provided that "statistical or factual tabulations” are legislative materials which may be disclosed (see, Public Officers Law § 88 [2]). The statute does not define the terms but both the executive department and the courts have viewed "factual tabulations” as statements of objective information, fundamentally distinct from subjective expressions of policy or opinion (see, e.g., 9 NYCRR 6150.2 [d] ^Division of Criminal Justice Services defines "factual tabulations” as "a collection of statements of objective information logically arranged”]; and cf., 9 NYCRR 145-1.1 [a] [2] [Division of the Budget states "(discussions of policy options and recommendations are not statistical or factual tabulations”]). The distinction is a sound one intended to separate objective data from opinion and argument. Moreover, it is a desirable one, required to insure public officers with the necessary privacy to frankly express their views of proposed actions, and one that has been judicially recognized and applied (see, Matter of Dunlea v Gold-mark, 54 AD2d 446, 448, affd 43 NY2d 754; see also, Matter of Capital Newspapers v Bums, 67 NY2d 562, 566, supra; Matter of Rome Sentinel Co. v City of Rome, 174 AD2d 1005, 1006; Matter of Banchs v Coughlin, 168 AD2d 711, 712; Matter of David v Lewisohn, 142 AD2d 305, 307-308). We conclude, therefore, that a "factual tabulation”, as used in the statute, means a statement or group of statements of objective fact and we hold that the facts and figures memorializing the expenditure of public funds for legislative printings and mailings can be characterized as "factual tabulations” for the purposes of Public Officers Law § 88 (2) (e).

There remains the question of whether the factual tabulations are "of, or with respect to,” material made available either under section 88 (2), or under some other applicable provision of law.

Section 88 (2) (a) requires that the Legislature make available for public inspection and copying "bills and amendments thereto, fiscal notes, introducers’ bill memoranda, resolutions and amendments thereto, and index records”. Petitioners contend that insofar as the records are "in relation to” an item contained in the 1992 Budget Bill, they are disclosable under FOIL; respondent maintains that the correct interpretation of this provision requires disclosure solely of records relating to the introduction and passage of a bill, that once the bill is enacted into law the records no longer come within the terms of section 88 (2). We need not determine the merit of respondent’s interpretation of the statute because the 1992 Budget Bill was subsequently enacted into law (see, L 1992, ch 51), and all session laws are "made available” to the public under section 44 of the Legislative Law. Thus, to the degree that records of a State Senator’s printings and mailings are "with respect to” an item in the Budget Law, they are made "available” by an "applicable provision of law” and are subject to disclosure under FOIL (see, Public Officers Law § 88 [2] [e]).

The Budget Law for the 1992 fiscal year appropriated and authorized the payment of $4,000,000 in public moneys for postage and printing expenses incurred by members of the Senate. To the extent that "factual tabulations” are maintained of these expenses, they must be disclosed pursuant to a FOIL request, as they are data "with respect to” material made available by section 44 of the Legislative Law. However, because copies of the newsletters and, presumably, information on targeted mailings would not be included in such factual tabulations, these items are not subject to mandatory disclosure.

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

Chief Judge Kaye and Judges Titone, Bellacosa, Smith, Levine and Ciparick concur.

Order modified, etc.


author: Bellacosa, J.

text:
    [644 NE2d 268, 619 NYS2d 686]
    Milliken & Co. et al., Respondents, v Consolidated Edison Company of New York, Inc., Appellant, and City of New York et al., Respondents. (And a Third-Party Action.) (Action No. 1.) Gold Mills, Inc., Respondent, v City of New York et al., Respondents, and Consolidated Edison Company of New York, Inc., Appellant. (And a Third-Party Action.) (Action No. 2.) I.S.K. Manhattan, Inc., Doing Business as McDonald’s #2276, et al., Respondents, v City of New York et al., Respondents, and Consolidated Edison Company of New York, Inc., Appellant. (And Third- and Fourth-Party Actions.) (Action No. 3.)
    Argued October 25, 1994;
    decided December 1, 1994

      POINTS OF COUNSEL

      Maura A. Kilroy, New York City, and Richard W. Babinecz for appellant in the first, second and third above-entitled actions.
    I. The Court below incorrectly held that Con Edison owed a duty to the noncustomer plaintiffs. (Strauss v Belle Realty Co., 65 NY2d 399; Koch v Consolidated Edison Co., 62 NY2d 548, 469 US 1210; Moch Co. v Rensselaer Water Co., 247 NY 160; Eaves Brooks Costume Co. v Y.B.H. Realty Corp., 76 NY2d 220; Credit Alliance Corp. v Andersen & Co., 65 NY2d 536, 66 NY2d 812; Beck v FMC Corp., 53 AD2d 118, 42 NY2d 1027.) II. The customer plaintiffs’ alleged economic losses are not recoverable in either tort or contract. (Strauss v Belle Realty Co., 65 NY2d 399; Sommer v Federal Signal Corp., 79 NY2d 540; Burns Jackson Miller Summit & Spitzer v Lindner, 59 NY2d 314; Schiavone Constr. Co. v Mayo Corp., 81 AD2d 221, 56 NY2d 667; Travelers Ins. Co. v Ferco, Inc., 122 AD2d 718; Alvord & Swift v Muller Constr. Co., 46 NY2d 276; Rockaway Blvd. Wrecking & Lbr. Co. v Raylite Elec. Corp., 26 AD2d 9; Guard-Life Corp. v Parker Hardware Mfg. Corp., 50 NY2d 183; Rosenberg v Del-Mar Div., 56 AD2d 576; Bellevue S. Assocs. v HRH Constr. Corp., 78 NY2d 282.) III. Plaintiffs failed to carry their burden of establishing that their alleged economic losses are not speculative. (Koch v Consolidated Edison Co., 62 NY2d 548.) IV. The Court below had no authority to grant affirmative relief to the nonappealing real estate defendants. (Hecht v City of New York, 60 NY2d 57; Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106; Kornfeld v NRX Technologies, 93 AD2d 772, 62 NY2d 686.) V. Con Edison should be permitted to reassert its cross claims and third-party claims. (Mas v Two Bridges Assocs., 75 NY2d 680.)

      Paul A. Crotty, Corporation Counsel of New York City (Michael McLoughlin and Stephen J. McGrath of counsel), for City of New York, respondent in the first, second and third above-entitled actions.
    Con Edison should not be permitted to reassert its cross claims and third-party claims against the City. (Strauss v Belle Realty Co., 65 NY2d 399; Crane v City of New York, 65 NY2d 859; Petrucci v City of New York, 167 AD2d 29; D'Ambrosio v City of New York, 55 NY2d 454; Mas v Two Bridges Assocs., 75 NY2d 680.)

      Kornstein Veisz & Wexler, New York City (Joel Bossom, Marvin Wexler, Lawrence C. Fox and Emily Rosdeitcher of counsel), and Stuart S. Sherman for Empire City Subway Company (Limited) and another, respondents in the first, second and third above-entitled actions.
    Con Edison may not properly assert a claim for contribution or indemnification against Empire or NY Tel in connection with plaintiffs’ claims for economic loss. (Board of Educ. v Sargent, Webster, Crenshaw & Folley, 71 NY2d 21; Lawrence Dev. Corp. v Jobin Waterproofing, 186 AD2d 634; Facilities Dev. Corp. v Miletta, 180 AD2d 97; Dormitory Auth. v Caudill Rowlett Scott, 160 AD2d 179; Dole v Dow Chem. Co., 30 NY2d 143; McDermott v City of New York, 50 NY2d 211; McFall v Compagnie Mar. Beige, 304 NY 314; Rosado v Proctor & Schwartz, 66 NY2d 21; D'Ambrosio v City of New York, 55 NY2d 454.)

      Wien, Malkin & Bettex, New York City (Douglas D. Aronin and Eli R. Mattioli of counsel), and Smith, Mazure, Director, Wilkins Young, Yagerman & Tarallo, P. C., for HelmsleySpear, Inc., and others, respondents in the first, second and third above-entitled actions.
    I. The Court below had jurisdiction to dismiss the remaining claims against the real estate defendants. (Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106; Fertico Belgium v Phosphate Chems. Export Assn., 100 AD2d 165; Matter of Windsor Park Assocs. v New York City Conciliation & Appeals Bd., 91 AD2d 569, 59 NY2d 18; Freidus v Todem Homes, 80 AD2d 575, 56 NY2d 526; Howell v Davis, 58 AD2d 852, 43 NY2d 874; Peoples Sav. Bank v County Dollar Corp., 43 AD2d 327, 35 NY2d 836; Wiseman v Knaus, 24 AD2d 869; Hecht v City of New York, 60 NY2d 57; St. John v Andrews Inst, for Girls, 192 NY 382.) II. The Court below correctly dismissed the remaining claims against the real estate defendants on the merits. (People v Scott, 26 NY2d 286; Silver v Brodsky, 112 AD2d 213; Mobile Home Estates v Preferred Mut. Ins. Co., 105 AD2d 883; Schlesinger v Rockefel

      ler Ctr., 119 AD2d 462; Kirshenbaum v General Outdoor Adv. Co., 258 NY 489.)

      Gair, Gair, Conason Steigman & Mackauf, New York City (Rhonda E. Kay of counsel), for Milliken & Co. and others, respondents in the first and second above-entitled actions.
    I. The Court below correctly held that Con Edison owed a legal duty to all those commercial tenants who might satisfactorily prove at trial that they assumed an obligation in their leases to purchase electric service on an apportioned basis. (Strauss v Belle Realty Co., 65 NY2d 399; Koch v Consolidated Edison Co., 62 NY2d 548; Grow Tunneling Corp. v Consolidated Edison Co., 195 AD2d 325; Staten Is. Edison Corp. v New York City Hous. Auth., 296 NY 750; Goldstein v Consolidated Edison Co., 115 AD2d 34; Eaves Brooks Costume Co. v Y.B.H. Realty Corp., 76 NY2d 220; Moch v Rensselaer Water Co., 247 NY 160; Pond v New Rochelle Water Co., 183 NY 330; Matter of City of New York v Public Serv. Commn., 17 AD2d 581; Lawrence v Fox, 20 NY 268.) II. Inasmuch as plaintiffs’ claims against Con Edison are essentially contractual in nature, recovery for purely economic injury is permissible. Moreover, Con Edison’s contention that plaintiffs’ claims for lost profits were too speculative to permit a damage award, must fail. (Koch v Consolidated Edison Co., 62 NY2d 548; Dunlop Tire & Rubber Corp. v FMC Corp., 53 AD2d 150; Food Pageant v Consolidated Edison Co., 54 NY2d 167; Kenford Co. v County of Erie, 67 NY2d 257, 73 NY2d 312; Ashland Mgt. v Janien, 82 NY2d 395; Dalton v Educational Testing Serv., 155 Misc 2d 214; Shankman v Consolidated Edison Co., 94 Misc 2d 150; Lee v Consolidated Edison Co., 95 Misc 2d 120; Miner v Walden, 101 Misc 2d 814.)

      Bigham Englar Jones & Houston, New York City (James J. Taylor and Elaine P. Chryssochoos of counsel), for I.S.K. Manhattan, Inc., and others, respondents in the third above-entitled action.
    I. There is no basis for the contention advanced by Con Edison that only a direct customer of the utility can effect a recovery for loss or damage, be it property damage, pure economic loss or a combination of the two. (Strauss v Belle Realty Co., 65 NY2d 399; Moch Co. v Rensselaer Water Co., 247 NY 160; Beck v FMC Corp., 53 AD2d 118, 42 NY2d 1027; Hernandez v Consolidated Edison Co., 65 NY2d 857; Longo v New York City Educ. Constr. Fund, 114 AD2d 304; Goldstein v Consolidated Edison Co., 115 AD2d 34, 68 NY2d 604; Santoro v Central N. Y. Power Corp., 189 Misc 567;
      Eaves Brooks Costume Co. v Y.B.H. Realty Corp., 76 NY2d 220; Koch v Consolidated Edison Co., 62 NY2d 548, 469 US 1210.) II. Loss of profits and earnings are recoverable under New York law in breach of contract and tort cases. (Stitz v Gifford, 280 NY 15; Seagroatt Floral Co. v New York Tel. Co., 76 AD2d 1038; Brooklyn Union Gas Co. v Macgregor’s Custom Coach, 133 Misc 2d 582; Dunlop Tire & Rubber Corp. v FMC Corp., 53 AD2d 150; Food Pageant v Consolidated Edison Co., 54 NY2d 167; Koch v Consolidated Edison Co., 62 NY2d 548, 469 US 1210.) III. The Court below abused its discretion in dismissing the action against the real estate defendants.

      Huber Lawrence & Abell, New York City (John D. Draghi and Michael Zaitz of counsel), for Central Hudson Gas & Electric Corporation and others, amici curiae, in the first, second and third above-entitled actions.
    I. The Court below incorrectly held that Con Edison was liable to its customers’ tenants. (Strauss v Belle Realty Co., 65 NY2d 399; Crane v City of New York, 65 NY2d 859; Hernandez v Consolidated Edison Co., 65 NY2d 857; Beck v FMC Corp., 53 AD2d 118, 42 NY2d 1027; Moch Co. v Rensselaer Water Co., 247 NY 160; Abraham v New York Tel. Co., 85 Misc 2d 677; Kentucky Agrie. Energy Corp. v Bowling Green Municipal Utils. Bd., 735 F Supp 226; Food Pageant v Consolidated Edison Co., 54 NY2d 167; Koch v Consolidated Edison Co., 62 NY2d 548; Krasner v New York State Elec. & Gas Corp., 90 AD2d 921.) II. The Court below incorrectly held that Con Edison was liable for purely economic loss. (Koch v Consolidated Edison Co., 62 NY2d 548; Kenford Co. v County of Erie, 67 NY2d 257; Schiavone Constr. Co. v Mayo Corp., 81 AD2d 221, 56 NY2d 667; Jones & Laughlin Steel Corp. v Johns-Manville Sales Corp., 626 F2d 280; Bellevue S. Assocs. v HRH Constr. Corp., 78 NY2d 282; East Riv. S. S. Corp. v Transamerica Delaval, 476 US 858; Dunlop Tíre & Rubber Corp. v FMC Corp., 53 AD2d 150; Syracuse Cablesystems v Niagara Mohawk Power Corp., 173 AD2d 138; Schneider Natl. v State of New York, 138 Misc 2d 205.)
   OPINION OF THE COURT

Bellacosa, J.

In early August 1983, over 11 years ago, an underground water main burst near 38th Street and 7th Avenue in Manhattan. The unleashed waters flooded the subbasement of the Navarre Building at 500-512 Seventh Avenue, where Consolidated Edison maintained an electricity supply substation. A fire broke out in the subbasement when the waters seeped into the substation and came into contact with Con Edison’s electrical equipment. The fire engulfed the substation, causing extensive damage which disrupted the flow and supply of electricity to most of the Manhattan "Garment Center” for four days. The disaster occurred during the biannual "Buyers Week,” when merchandisers from all over the world were in New York City to visit fashion showrooms, to examine merchandise and to place orders for lines of goods for future seasons.

Alleging various acts of negligence, some 200 Garment Center businesses brought over 50 lawsuits against Con Edison, the owners and managing agents of the Navarre Building ("real estate” defendants), the City of New York, Empire City Subway Company and New York Telephone. This group of plaintiffs included those who did have and those who did not have a direct contractual relationship with the appellant utility. The claims of those plaintiffs having a direct contractual relationship with appellant Con Edison are not the subject of this appeal.

Before this Court are the claims of the commercial tenants of the Navarre Building and of other Garment Center properties who had no direct contractual relationship with Con Edison. These noncontract customer claims were reinstated by the Appellate Division after Supreme Court dismissed them. These tenants sued, claiming a connected duty relationship with Con Edison by virtue of their lease agreements, which obligated them to pay an apportioned share of the electricity expenses to the direct contracting entities, their landlords.

Among these noncontractually related plaintiffs are those who alleged physical damages and associated economic losses, as well as those who asserted only pure economic losses, such as lost profits, overhead expenses, and out-of-pocket expenses resulting from their inability to conduct business during "Buyers Week.” These noncontract plaintiffs’ claims are the sole subjects of this narrow certified question appeal.

The central issue involves the scope of the duty owed by the electricity supplying utility to noncontractual users. Specifically, the Court must decide whether a regulated utility owes a duty of due care, answerable in negligence, to commercial tenants who do not have service contracts with the utility, but who are obligated under their leases to reimburse their landlords for apportioned electricity costs.

We agree with the Supreme Court determination that, under the facts of this case, the utility does not owe such a duty to these commercial tenants who lack a direct contractual arrangement with it. The certified question, thus, should be answered in the negative, and the order of the Appellate Division should be modified in accordance with this opinion.

L

Supreme Court limited appellant Con Edison’s liability to its direct customers. That court, at a summary judgment stage, (1) dismissed all claims by plaintiffs who were tenants without a direct relationship with Con Edison; (2) dismissed all claims against all defendants which were predicated solely upon economic losses unassociated with any property damage; (3) dismissed all claims against the real estate defendants by nontenants of the Navarre Building; and (4) dismissed, without prejudice, the cross claims, counterclaims, and third-party actions in relation to the underlying primary complaints that had been dismissed.

The Appellate Division modified to the extent of (1) reinstating all claims against Con Edison of those plaintiffs which were dismissed for lack of a direct contractual relationship with the defendant utility, including for loss of profits, and (2) dismissing the tenants plaintiffs’ claims against the real estate defendants, and otherwise affirmed (199 AD2d 75). The Appellate Division granted Con Edison leave to appeal, certifying the question whether its order was properly made.

Hi

Relying principally on Strauss v Belle Realty Co. (65 NY2d 399), appellant Con Edison argues that it should suffer no duty, answerable in tort, to commercial tenants who lack a direct contractual relationship with it as the electricity supplying utility. Con Edison argues that the Appellate Division ruling transgresses the public policy precedential authorities of this Court by expanding the utility’s "orbit of duty” to an "uncontrollable degree,” and thus exposing the strictly regulated public utility to potentially crushing liability (see, Strauss v Belle Realty Co., supra, at 404-405).

Plaintiffs-respondents assert that their lack of direct contractual linkage to the utility should not be an absolute bar to suit against it. They contend that as tenants of a commercial building — be they direct contractual customers or ultimate consumers-users and, hence, indirect customers — they are a well-defined, reasonably identifiable class. Therefore, allowing tort exposure or responsibility in favor of this class of plaintiffs would not unduly expand the appropriate scope of the utility’s liability. Plaintiffs-respondents also tender a distinguishing feature to their cases. They stress that their injuries occurred in locations where plaintiffs have a proprietary interest in direct need of the electricity product and services and that their lease responsibilities are also directly keyed to costs proportioned for their actual use of supplied electricity.

m.

This Court has from time to time addressed the scope of the duty of a utility, or a similarly situated entity, arising from negligence in the performance of contractual obligations (see, e.g., Eaves Brooks Costume Co. v Y.B.H. Realty Corp., 76 NY2d 220; Strauss v Belle Realty Co., 65 NY2d 399, supra; Moch Co. v Rensselaer Water Co., 247 NY 160). Consistently, this Court has emphasized that determining the scope of the duty and the consequent sphere of potential liability is fundamentally a policy question, with the objective being to " 'fix[ ] the [entity’s] orbit of duty’ ” so as to " ' "limit the legal consequences of wrongs to a controllable degree” ’ ” (Eaves Brooks Costume Co. v Y.B.H. Realty Corp., supra, at 226-227; Strauss v Belle Realty Co., supra, at 402; Moch Co. v Rensselaer Water Co., supra, at 164-168; cf., Palka v Servicemaster Mgt. Servs. Corp., 83 NY2d 579, 585-587). We noted in Palka that the existence and scope of an alleged tortfeasor’s duty, at the threshold, is a legal, policy-laden determination dependent on consideration of different forces, including logic, science, competing socioeconomic policies, and contractual assumptions of responsibility.

Applying our benchmarks, we have as a general policy and approach declined to leapfrog duties, over directly juridically related parties, to noncontractually related consumers of a utility’s service or product (Strauss v Belle Realty Co., 65 NY2d 399, supra). There, this Court rejected a tenant’s effort to recover against Con Edison for personal injuries sustained in the common areas of the tenant’s building during a blackout (id,., at 404-405). Focusing on the competing policies of "extending] the defendant’s duty to cover specifically foreseeable parties but at the same time [ ] containing] liability to manageable levels”, we expressly eschewed extending the utility’s duty to the tenant plaintiff in that case (id., at 404). This Court so held, notwithstanding the fact that plaintiff was a tenant in the apartment building where the injury occurred (id.; see also, Eaves Brooks Costume Co. v Y.B.H. Realty Corp., 76 NY2d 220, 222, supra; contrast, Palka v Servicemaster Mgt. Servs. Corp., 83 NY2d 579, 587-589, supra). Our precedents thus warrant the view and conclusion that tenants of a building, as such, are not a sufficiently "narrowly defined class” and should not be relieved of the usual juridical relationship prong in order to garner a potential liability against the utility (Strauss v Belle Realty Co., 65 NY2d 399, 402, 404-405, supra; see also, Eaves Brooks Costume Co. v Y.B.H. Realty Corp., 76 NY2d 220, 226-227, supra).

Consequently, plaintiffs’ attempt to distinguish Strauss, based simply on the situs of the injury, is unavailing in this case. The locale in which the injuries occur, in circumstances such as these, is a distinction without a legal, public policy-rooted difference because, regardless of the situs, the same unlimited, undefined class of potential plaintiffs is implicated. In essence, in Strauss, the identical potential plaintiff group was involved; namely, building tenants with no direct contractual linkage to the utility, whose landlord had a contractual relationship with the utility. Given that here the same class of plaintiffs and public policy factors are under consideration, the location of the occurrence of the injuries is an insufficient basis upon which to extend defendant Con Edison’s "orbit of duty” to this noncontract, proprietary, tenant class (see, Strauss v Belle Realty Co., 65 NY2d 399, 404, supra). We reject plaintiffs-respondents’ reasoning because it would hold regulated utilities liable to every tenant in every one of the countless skyscrapers comprising the urban skyline. This would unwisely subject utilities to loss potentials of uncontrollable and unworkable dimensions (see, Strauss v Belle Realty Co., supra).

We are also persuaded that plaintiffs-respondents cannot seek recovery as third-party beneficiaries of the contract between their landlords and the defendant utility (compare, Koch v Consolidated Edison Co., 62 NY2d 548, 553, cert denied 469 US 1210). In Koch v Consolidated Edison Co., this Court held Con Edison liable to PASNY customers on a third-party beneficiary theory, where Con Edison had expressly undertaken a contractual duty to supply electricity for the needs of PASNY’s customers (id., at 558-559). In marked contrast, however, in the instant case, there is no such express undertaking by the utility, and, consequently, there is no basis to allow plaintiffs’ recovery on a third-party beneficiary theory (compare, Palka v Servicemaster Mgt. Servs. Corp., 83 NY2d 579, 588-589, supra).

All other arguments and contentions have been considered, and we conclude that they are without merit.

Accordingly, the order of the Appellate Division should be modified in accordance with this opinion, in effect reinstating the order of the Supreme Court to the extent that it dismissed the claims of noncontract plaintiffs against the utility, and the certified question should be answered in the negative, with costs to Con Edison against the dismissed plaintiffs-respondents only, and, as so modified, the order should be affirmed.

Chief Judge Kaye and Judges Simons, Titone, Smith, Levine and Cipabick concur.

Order modified in accordance with the opinion herein, with costs to appellant against the dismissed plaintiffs-respondents, and, as so modified, affirmed, and certified question answered in the negative.

       We do not read the Appellate Division order as also having reinstated the claims of contractually related customers who alleged purely economic loss. Hence, we do not address that matter, as it is not properly before us.