The History of the New York Court of Appeals: 1932-2003 9780231509909

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The History of the New York Court of Appeals, 1932–2003

In Memory of Associate Judge Bernard S. Meyer (1916–2005)



Judge Meyer was born in 1916. He was elected to the New York Supreme Court in 1958. In 1975, Judge Meyer was appointed Special Deputy Attorney General of the State of New York in charge of the investigation of the Attica Prison riots. He served as the first chair of the Committee on Pattern Jury Instructions - Civil of the Association of Justices of the Supreme Court which produced the compendium of jury instructions in use today. Judge Meyer was appointed Associate Judge of the Court of Appeals by Governor Hugh Carey in 1979 and served on the Court until retiring at the end of 1986, having reached the mandatory retirement age. He died in September of 2005.

The History of the New York Court of Appeals, 1932–2003

 Bernard S. Meyer Burton C. Agata, and Seth H. Agata

Columbia University Press

New York

Columbia University Press Publishers Since 1893 New York, Chichester, West Sussex Copyright © 2006 Columbia University Press All Rights Reserved Library of Congress Cataloging-in-Publication Data Meyer, Bernard S. The history of the New York Court of Appeals : 1932–2003 / Bernard S. Meyer, Burton C. Agata, and Seth H. Agata.—1st ed. p. cm. Includes bibliographical references and index. ISBN 0–231–13632–3 (cloth : alk. paper)—ISBN 0–231–50990–1 (electronic) 1. New York (State). Court of Appeals—History. 2. Courts of last resort—New York (State)—History. I. Agata, Burton C., 1928– II. Agata, Seth H. III. Title. KFN5960.M49 2006 347.747′0309—dc22 2005030092 I Columbia University Press books are printed on permanent and durable acid-free paper Printed in the United States of America c 10 9 8 7 6 5 4 3 2 1 References to Internet Web sites (URLs) were accurate at the time of writing. Neither the author nor Columbia University Press is responsible for Web sites that may have expired or changed since the book was prepared. The Press gratefully acknowledges the support of the William Nelson Cromwell Foundation in the publication of this volume All the illustrations in this volume are from the New York Court of Appeals Collection and used by the kind permission of the Court

To my wife, Horty, and to my partners at Meyer, Suzozzi, English & Klein, who have encouraged and supported my work on this book. Bernard S. Meyer To Dale, with love and with gratitude for her love, support, and encouragement during our fifty years of marriage. Burton C. Agata With love to Gail, my wife, and to Adam, my son, and in loving memory of my dear sister, Abby. Seth H. Agata

Contents

Preface

ix

1. A Brief Overview of the Court of Appeals 1 2. Jurisdiction of the Court of Appeals 38 3. Interrelation of the Court of Appeals, the Legislature, and the Executive 82 4. Common Law and the Court of Appeals 99 5. Statutory Interpretation 109 6. Form of Opinions and Reports 124 7. The Great Depression 133 8. New Judicial Federalism 157 9. Motion Picture Censorship 217 10. Obscenity, Indecency, and Immorality 253 11. Religion 328

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12. Real Property 407 13. Contracts 449 14. Torts 471 15. Corporations 478 16. Arbitration 493 17. Criminal Law 502 18. Evidence 547 19. Conflict of Laws 586 20. Procedure 600 21. Education 615 22. Abortion, Right to Control Own Medical Care, and Some Related Matters 641 23. Family Law 668 24. Election Law 692 25. Antitrust and Restraints on Competition 700 26. Picketing and Labor Relations 726 27. The Chief Judges’ Contributions: State of the Judiciary 740 Notes 747 Subject Index

779

Table of Statutes Table of Cases

799 803

Preface

JUDGE FRANCIS BERGAN’S BOOK, The History of the New York Court of Appeals 1847–1932, was published in 1985 under the auspices of the William Nelson Cromwell Foundation. The period covered by that volume ended with the appointment of Chief Judge Benjamin Nathan Cardozo as an Associate Justice of the United States Supreme Court on March 7, 1932. Essentially, that volume was organized chronologically and focused in large measure on the development of the Court as an institution and to a lesser extent on some of its decisions developing the law. In April 1997, the Honorable Harold Tyler, on behalf of the Cromwell Foundation, inquired of retired New York Court of Appeals Associate Judge Bernard S. Meyer whether he would be interested in preparing a history of the Court after 1932. Judge Meyer agreed to do so. Judge Meyer enlisted as co-authors Burton C. Agata, the Max Schmertz Distinguished Professor of Law (now emeritus) at the Hofstra University School of Law; Seth H. Agata, Associate Counsel (Codes Committee) Program and Counsel Staff, (now Senior Counsel to the Majority) New York State Assembly; and Professor Richard T. Farrell of Brooklyn Law School.1 The authors, taking into account a suggestion by Chief Judge Judith S. Kaye, decided not to follow Judge Bergan’s pattern, but instead to place greater emphasis on the Court’s development of the law by focusing on the subject matter of decisions handed down after March 1932 and before October 31, 2003.2 Of course, when appropriate to understanding the development, cases decided prior to 1932 also would be included. In view of the wide range of the

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Court’s work, this approach would be more useful to those interested in the Court and its development of the law. Although its focus is on the Court’s development of the law, the book also contains short biographies of members of the Court and describes major post1932 institutional changes such as the change from election to gubernatorial appointment of members of the Court. Also included is consideration of major jurisdictional changes, including one by which the Court became a certiorari court with expanded power to determine which lower court decisions it would review and another that permitted Federal and other State appellate courts to certify to it questions concerning the law of New York. The chapters concerning substantive legal rulings form the major part of this book and focus on those questions which were and in many instances continue to be subjects of general interest and even public dispute and reflect divergent views among members of the Court in their judicial and nonjudicial writings. Of course, the substantive law sections are not, nor are they intended to be, comprehensive statements of the substantive law discussed. We are indebted to the Clerk of the Court, Stuart M. Cohen, to Gary Spencer, the Court’s Public Information Officer, and to members of their staffs for their assistance. We are also indebted to Westlaw for providing such easy access to the New York reports and to the Hofstra University School of Law Library for providing access to much of the material discussed in the book. Preparation of the text did not begin until January 1999, and our initial estimate was that the book would be completed in 2001. That turned out to be unrealistic. We hope, however, that the end product will be as satisfying to those interested in the history of the New York Court of Appeals and its development of New York law as has been our part in its preparation. Bernard S. Meyer Burton C. Agata Seth H. Agata Richard T. Farrell May 2006

1. A Brief Overview of the Court of Appeals

THIS CHAPTER IS not intended to be the definitive constitutional history of the Court of Appeals nor a comprehensive biography of those judges who have sat on the Court. Rather, its purpose is to give the reader an overview of the composition of the Court since 1932, as well as answer the question of how it came about that there are seven nonelected members of the Court rather than eight elected judges as was originally provided for in 1846.1

Evolution of the Court The New York Constitution of 1846 abolished the Court for the Trial of Impeachments and Correction of Errors. It created the Court of Appeals, which took over the judicial functions of its predecessor, as well as its pending caseload of approximately 1,500 cases, and vested the impeachment function in the Legislature.2 As originally established by Article VI, section 2 of that constitution, the Court consisted of eight judges, four of whom were elected to eight-year terms.3 The Constitution empowered the Legislature to devise a process to ensure that one judge would be elected every two years, which the Legislature did through the Judiciary Act of 1847. Of the original eight judges, four were chosen by lottery slips drawn by the secretary of state and each was randomly assigned a term of years for office to ensure that one vacancy would occur every two years. The elected judge with the shortest term to serve, a two-year term, was designated the Chief Judge.

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The remaining four judges were chosen by the governor from the justices of the Supreme Court to serve one-year terms as ex-officio judges of the newly established court. There were eight judicial districts of the Supreme Court, and the governor designated the justices with the shortest terms from the First, Third, Fifth, and Seventh Districts to serve as the first group of ex-officio judges. At the conclusion of their terms, the justices serving the shortest remaining terms in the Second, Fourth, Sixth, and Eighth Districts took their places. This rotating system of judges resulted, at times, in more than half of the court being replaced at the end of a single year. Moreover, a Supreme Court Justice could sit as an ex-officio judge on the Court of Appeals and thereby sit in review of his own decision. Thus, changes were warranted.4 In 1869, New York amended the judiciary article of the Constitution. The amendments reduced the number of judges from eight to seven with one judge designated as Chief Judge. Each judge was to be popularly elected to a fourteenyear term and could serve until the age of seventy rather than sixty as under the former Constitution. The amendment established a commission of appeals to cope with a backlog of cases pending in the court. The commission, which sat for five years, was composed of the four judges elected statewide under the 1846 Constitution and one judge appointed by the governor with the advice and consent of the New York State Senate. In addition, Article VI, section 8 specifically provided, in relevant part, that “[n]o judge or justice shall sit, at a General Term of any court, or in the Court of Appeals, in review of a decision made by him, or by any court of which he was at the time a sitting member.”5 Because of a backlog of cases, the governor was permitted by a constitutional amendment adopted in 1899, at the request of a majority of the Court’s judges, to designate up to four justices of the Supreme Court, each of whom would be excused from their duties as Supreme Court Justices, to serve as associate judges until the Court’s caseload was reduced to fewer than two hundred cases. Five judges would constitute a quorum, but no more than seven judges could sit at a time on a single case. The term of office for each judge was left at fourteen years.6 Further constitutional changes were adopted in 1925.7 At the Court’s request, to aid it in deciding cases, the Constitution permitted it to request the governor to designate one or more justices of the Supreme Court to sit in place of one or more associate judges who were either absent or unable to sit. By 1923, the Court no longer included any Supreme Court Justices sitting by gubernatorial designation and none have since been appointed. The most recent constitutional change affecting the composition of the Court occurred in 1977.8 Popular election of judges to the Court of Appeals was replaced with a mechanism that provided that they would be chosen by the governor from a list of names recommended by the Commission on Judicial Nom-

A Brief Overview 3

ination (“the Commission”) and approved by the New York State Senate. This reflected a trend away from the popular election of members of the judiciary and toward a process with the purported intention of facilitating selection based on merit. Under the New York Constitution, the Commission is composed of twelve members, four of whom are chosen by the governor, no more than two of whom may be enrolled in the same political party, of which two must be members of the New York State Bar and two of whom need not be members. The same limitations are placed on the four members chosen by the Chief Judge of the Court of Appeals. Neither the governor nor the Chief Judge may appoint more than one former judge or justice of a New York court to the Commission. The speaker of the Assembly, the temporary president of the Senate, and the minority leaders of each of the two houses of the Legislature are each authorized to appoint a member of the Commission. Members of the Commission are barred from holding any elected public office for compensation or any office in a political party. They are also ineligible for appointment to the bench during their tenure on the Commission and for a period of one year thereafter.

Biographies of the Judges9 Governor Thomas E. Dewey, in an issue of the Columbia Law Review dedicated to Chief Judge Stanley Fuld, remarked: Some lawyers become judges because they have worked hard enough and long enough in the political vineyard to persuade the dominant political party to nominate them. Some judges, like ambassadors, arrive at their destination by the route of heavy political contribution. Then there are some lawyers who become judges because they were born to be judges.10

The observations and biographies which follow are not attempts to either prove or disprove this hypothesis. The legacy of each member of the Court of Appeals is reflected in each judge’s decisions and opinions, and by each judge’s life’s work.

General Observations About the Judges Who Have Sat on the Court Without drawing any conclusions as to what it may take to become a judge on the Court of Appeals, some general observations may be made about the group of fifty judges who have been appointed and elected to the Court during the

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period covered by this work (not including those judges who were on the bench as of 1932 but were appointed before that date). First, there appears to be no pronounced bias in appointing or electing judges who were born in New York City; only eighteen of the judges who have served hail from the five boroughs.11 However, being born in the State of New York is a decided advantage in that only seven of the judges who have been appointed or elected to the bench in the last seventy years were born outside the state, and of the three men of African-American descent, not one was born in New York. Four of the thirteen judges appointed since 1983 have been women. Second, with respect to judicial experience before coming to the Court, approximately half of the judges surveyed served on the Appellate Division of the Supreme Court and another eleven judges served on the New York Supreme Court, while only three served on various other courts (both Judges Thacher and Rippey served on the Federal bench, although Judge Rippey also served on the New York Supreme Court, and Judges Dye and Read served on the Court of Claims). Judge Jasen served as Judge of the Third Military Government Judicial District of Occupied Germany at Heidelberg after World War II. Nine judges, including two of the chief judges (Judges Fuld and Kaye) had no prior judicial experience at all. Only Judges Bromley and Stevens were appointed by a governor to the Court but failed to be subsequently elected in their own right.12 Third, with respect to legal education, as distinguished from the pool of judges who served in the nineteenth century, all except two Court of Appeals judges graduated from law school. Of the remaining judges, only fifteen attended law schools outside of New York State. Harvard University (seven judges) and Columbia University (six judges) produced the most alumni on the Court. Of the nine appointments made by Governor Mario Cuomo, a graduate of St. John’s Law School, three were graduates of his alma mater (Judges Titone, Bellacosa, and Ciparick). The judges have brought a wealth of nonjudicial experience to the bench. The government experience that appears most often on the resumes of the judges is service as a prosecutor. Thirteen of the judges were assistant district attorneys or Federal prosecutors (including Judges Fuld and Breitel, who served under Thomas E. Dewey when he was conducting his rackets investigations) and five had been elected district attorneys of their respective counties (Judges Foster, Gibson, Gabrielli, Levine, and Rosenblatt). Judges have held other elected offices at the local and town level (Judges Wachtler and Cooke served as town supervisors), as well as at the national level (Judge Keating served as United States Senator and Congressman). Judges

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Stevens, Rabin, Wesley, and Finch were members of the New York Legislature, before sitting on the Court of Appeals. Three judges ran for nonjudicial office at various times and were defeated (Judges Conway, Medalie, and Hancock). In addition, the members of the bench have held a variety of nonelected public offices, such as counsel to the governor (Judges Breitel and Read, who served as a deputy counsel), Superintendent of Insurance (Judge Conway), United States Solicitor General (Judge Thacher), and New York Solicitor General (Judge Graffeo). If one includes Judges Crane and Pound, six of the members of the Court have served as delegates to and in other leadership positions at state constitutional conventions (Judges Sears, Burke, Scileppi, and Bergan being the others). A number of the judges have also taught. For example, Judge Bellacosa was a noted law professor before coming to the bench, and Judge Rippey was a professor of mathematics. For those judges who have retired from the Court, there has been life after serving on the bench. Most have engaged in academic and professional activities, including writing books, articles, and treatises, some of which are set forth infra. Some have returned to the bench, such as Judge Sears, who served on the International Military Tribunal at Nuremberg, and Judges Gabrielli, Dye, and Rabin who, after retiring from the Court, sat on other courts in New York State. Two judges became United States ambassadors (Judges Keating and Finch) and Judge Alexander became Deputy Mayor of New York City. Judge Lewis became President of the New York State Bar Association (a position also held by Judge Jones before coming to the bench) while Judge Cooke served on the Judicial Screening Committee reviewing judicial nominations to New York courts. They have also authored legal treatises (Judges Meyer and Bellacosa), high school texts (Judge Smith), and legal history (Judges Bergan and Meyer). Retired members of the bench have written novels (Judge Wachtler) and biographical works (Judges Wachtler and Burke), not to mention a stream of articles appearing in legal periodicals.

Chief Judges of the Court FREEBORN G. JEWETT (1847–1849)

The first Chief Judge of the Court of Appeals was born in 1791 in Connecticut, but began practicing law in Skaneateles, New York. He served in a variety of elected and appointed positions including Master of Chancery (1817), Surrogate of Onondaga County (1824), Assemblyman from Onondaga County (1826), presidential elector for Andrew Jackson (1828), Congressman (1831),

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A Brief Overview

Supreme Court Commissioner (1836), and District Attorney of Onondaga County (1838). He was elected to a two-year term as Judge of the Court of Appeals and was designated Chief Judge. He was elected to a second eight-year term but retired from the bench in 1853 due to ill health. He died in 1858 and was remembered by his fellow judges for “the clearness of his intellect; the justness of his judgment; the purity and benevolence of his heart.”13 GREENE C. BRONSON (1850–1851)

Judge Bronson was born in Oneida County, New York, in 1789. He was elected Surrogate of that county (1819), Assemblyman (1822), and New York Attorney General (1829–1836). In 1836, he was appointed a puisne judge (a junior judge as opposed to a chief judge) and subsequently became Chief Justice of the New York Supreme Court (1845). He was elected to the first four-year term on the Court of Appeals in 1847 and retired in 1851. After leaving the bench, he was appointed Collector of the Port of New York (1853) and Corporation Counsel for New York City (1860). He died in Saratoga, New York, in 1863 being remembered by the Court for his opinions that served as “models of judicial excellence.”14 CHARLES H. RUGGLES (1851–1853)

Charles Ruggles was born in Litchfield County, Connecticut (1789), but commenced practicing law in Kingston, New York, and became a prominent member of the Dutchess County, New York, bar. He was elected to the New York State Assembly (1820) and to the United States Congress (1821). Upon leaving Congress at the end of his term in 1823, he resumed practicing law and served as Vice-Chancellor and Judge of the Second Circuit Court for Dutchess County (1831) from where he was elected again to the New York State Legislature. He chaired the committee of the State Constitutional Convention of 1846 that drafted the judiciary article of the Constitution. He was subsequently elected to the first six-year term on the Court of Appeals and was reelected to a second term of eight years in 1853. He served on the bench until 1855 and died in Poughkeepsie, New York (1865).15 ADDISON GARDINER (1854–1855)

Although born in Rindge, New Hampshire (1797), Judge Gardiner was raised and educated in Manlius, New York, and began practicing law in Rochester, New York (1822). He held a variety of elected and appointed offices including District Attorney of Monroe County (1825), Circuit Judge for the Eighth Circuit (1838), and Lieutenant Governor of New York (1844 and 1846).

A Brief Overview 7

He resigned the office of Lieutenant Governor and was elected to an eightyear term as an original member of the Court of Appeals. He left the Court at the end of his first term, but remained involved in the judiciary by serving as a referee in cases from the New York Supreme Court. He died in 1883 in Rochester, New York.16 HIRAM DENIO (1856–1857, 1862–1865)

Judge Denio was born in Rome, New York, in 1799. He began practicing law there after studying law under Judge Hathaway of Rome, in 1821. He was appointed District Attorney in 1825 and remained in that position for nine years. He was later appointed a Circuit Judge from the Fifth Circuit (1834) and Bank Commissioner (1838). In 1840, he returned to practicing law in Rome. Before being appointed to the Court of Appeals, he compiled several volumes of cases entitled Denio’s Reports of Cases Argued and Determined in the Supreme Court and in the Court for the Correction of Errors of the State of New York, covering the final terms of that court beginning in 1845. He was appointed to the Court of Appeals replacing Judge Jewett in June 1853, and was reelected twice. He left the Court in 1866 and died in Utica in 1868. The Court noted, on his death, that “[h]istory, which rarely fails to do justice to show who passed away, will inscribe his name on the same page as Kent and Spencer and Bronson.”17 ALEXANDER JOHNSON (1858–1859)

Alexander Johnson was born in Utica, New York, in 1817. He graduated from Yale College in 1839 and began practicing law in New York City where he remained until his appointment to the Court in 1851 at the age of thirty-four. He was designated Chief Judge in 1858, resigned from the Court in 1860, but was reappointed Associate Judge in 1873 to finish the term of Judge Rufus Peckham, who had been appointed to the United States Supreme Court. He subsequently lost the election to fill that vacancy and left the bench in 1874. After leaving the Court he was appointed a Commissioner to Revise the Statutes of the State (1875). Judge Johnson was active in public service outside of New York. President Lincoln appointed him a Commissioner to settle the claims of the Hudson Bay and Puget Sound Companies (1864). He was also appointed a United States Circuit Court Judge for the Second Circuit (1875). He died in 1878. GEORGE F. COMSTOCK (1860–1861)

Judge Comstock was born in Oswego County, New York, in 1811. Upon graduating from Union College in 1834, he entered a law office and was admitted to the bar in 1837. He began his career with the Court of Appeals by being

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designated its first court reporter (1847) in which capacity he prepared the first four volumes of reported decisions of the Court. President Millard Fillmore appointed Judge Comstock Solicitor of the Treasury in 1852. He was subsequently elected to a six-year term as Associate Judge of the Court (1855), the last two years of which he served as Chief Judge. He died in 1892. SAMUEL L. SELDEN (JANUARY–JULY 1862)

Judge Selden was born in 1800 in Lyme, Connecticut. He relocated to New York and began practicing law in Rochester (1825). He was later Chancery Clerk, and he served as Judge of Common Pleas of Monroe County. In 1847 he was elected a Supreme Court Justice. Judge Selden was elected to the Court of Appeals in 1856 and served a single term, the last six months of which he served as Chief Judge. Upon his resignation from the Court in 1862, his brother, Henry Rogers Selden, was appointed to take his place. Judge Samuel Selden died in 1876. HENRY E. DAVIES (1866–1867)

Judge Davies was born in Black Lake, New York, in 1805. He studied law under Judge Alfred Conkling, was admitted to the bar in Utica (1826) but began practice in Buffalo. He relocated his practice to New York City and, at one time, was partners with Judge William Kent, son of Chancellor Kent. He served as Corporation Counsel for New York City (1850–1853) and was later elected Justice of the Supreme Court for the First District (1855). He left that court in 1859 when he was elected to the Court of Appeals. Upon leaving the Court in 1867, he resumed practicing law until he became a Justice of the New York Supreme Court (1873). Among other notable achievements following his career on the bench, he was appointed a member of the commission to determine whether it was advisable to construct a subway under Broadway in New York City. He died in 1881 in New York City. WILLIAM B. WRIGHT (JANUARY 4–12, 1868)

William B. Wright was born in 1806 in Newburgh, New York. In 1840 he was elected Surrogate of Sullivan County and was later elected as a delegate to the 1846 Constitutional Convention from that county. He served as an Assemblyman from Sullivan County (1846) until he resigned the same year, having been elected a Justice of the Supreme Court. He was reelected to an eight-year term (1849) and then to another four-year term. He served several terms as an ex-officio member of the Court of Appeals (July 1, 1847–January 1, 1848; January 1, 1856–January 1, 1857; January 1,

A Brief Overview 9

1860–December 31, 1860). He was elected to the Court in 1861 and briefly served as Chief Judge in 1868, the year he passed away. WARD HUNT (MARCH 16, 1868–1869)

Judge Hunt was born in Utica in 1810. He studied law in Litchfield, Connecticut, and in the law offices of Judge Hiram Denio (supra) with whom he went into partnership in 1831 following his admission to the bar. He was elected to the New York State Assembly from Oneida County (1839) and Mayor of Utica (1844). He was elected to the Court of Appeals in 1865, succeeding Judge Denio, and served as Chief Judge following the death of Judge Wright. After Judge Hunt left the bench, he served as a Commissioner of Appeals until January 1873, when he was appointed to the United States Supreme Court. In 1883, he resigned as Justice of the Supreme Court because of ill health. He died in Washington, D.C., in 1886. ROBERT EARL (JANUARY–JULY 1870 AND JANUARY 19–DECEMBER 31, 1892)

Robert Earl was born in Herkimer, New York, in 1824. A graduate of Union College (1843), he was admitted to the bar in 1848 and practiced in Herkimer in partnership with his brother. In addition to practicing law, for several years, beginning in 1849, Judge Earl edited and published The Herkimer Democrat. He was later elected County Judge and Surrogate for Herkimer County in 1856. In 1869, he was elected Associate Judge of the Court of Appeals. He subsequently served an extended term as Commissioner of Appeals through 1875. Governor Samuel Tilden appointed Judge Earl to the Court in 1875. He was elected to a full fourteen-year term in 1876 and was reelected in 1890, during which term he served as Chief Judge. He retired from the Court at the end of 1894 having reached the mandatory retirement age in that year. He died in 1902.18 SANFORD E. CHURCH (JULY 1870–MAY 1880)

Sanford E. Church was born in 1815 in Otsego County, New York. He settled in Albion, Orleans County, New York, where he was admitted to practice law. He later briefly moved to Rochester to practice law with Judge Henry Selden. He was elected to the New York State Assembly from Orleans County (1842). Governor Wright appointed him District Attorney of that county in 1845, and he was later elected to that position. He was twice elected Lieutenant Governor of New York (1850 and 1852) and was later elected Comptroller (1857). In 1867 he was elected a delegate to the Constitutional Convention where he chaired its finance committee.

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In 1870, he was elected Chief Judge of the Court of Appeals, a position in which he served until his death in May 1880. Upon his death, his colleagues recalled his “saving common sense . . . independence of character . . . and . . . strong sense of natural justice that caused him to shrink from what seemed to him to be a wrong . . .”19 CHARLES J. FOLGER (MAY 1880–NOVEMBER 1881)

Judge Folger was born in Massachusetts in 1818, but his family relocated to Geneva, New York, in 1830. He subsequently attended the school that is now known as Hobart College and, upon leaving, read for the law and was admitted to the bar in 1839. He was appointed Judge of the Court of Common Pleas for Ontario County (1844) and Master and Examiner in Chancery. He was later elected County Judge of Ontario County (1851). Judge Folger was elected to the New York State Senate from that county (1862) and during his tenure served as president pro tem and chairman of the Judiciary Committee. He also chaired the judiciary committee of the Constitutional Convention of 1869. He served until 1869, at which time President Grant appointed him Assistant Treasurer of the United States. In 1870, he was elected Associate Judge of the Court of Appeals and was later made Chief Judge. He resigned in 1881 upon being appointed Secretary of the Treasury by President Rutherford B. Hayes. Judge Folger ran for governor in 1882 against Grover Cleveland and lost. He died in 1884.20 CHARLES ANDREWS (DECEMBER 1881–1882 AND 1893–1897)

Charles Andrews was born in Oneida County, New York, in 1827. He read for the law and was admitted to practice in Syracuse in 1849. He served as District Attorney of Onondaga County from 1854 through 1857, and was twice elected Mayor of Syracuse (1861 and 1868). He also served as delegate-at-large to the Constitutional Convention of 1869. During this time of intense political activity, he became a leading activist in the newly formed Republican Party. He was elected an Associate Judge of the Court of Appeals in 1870 and, in 1881, was appointed Chief Judge to succeed Judge Folger. He lost his election for a full term as Chief Judge the next year in a Democratic landslide victory, which swept state elections. In 1893, he was elected again to the Court and became, for a second time, Chief Judge in 1893. He retired at the end of 1897, having reached the mandatory age of retirement. He continued to serve as a Trustee of Syracuse University through 1917 (as he had from 1879) and died in 1918. He was the father of William S. Andrews, who served on the Court of Appeals as an Associate Judge from 1917 through 1928.

A Brief Overview 11 WILLIAM C. RUGER (1883–JANUARY 1892)

William C. Ruger was born in Oneida County in 1824 and moved to Syracuse in 1847. He graduated from Union College, studied law with his father, with whom he ultimately formed a partnership, and was admitted to the bar in 1845. He practiced law in Syracuse until 1882 and was elected the first president of the Onondaga County Bar Association (1875). Before his election as Chief Judge of the Court of Appeals in 1882, Judge Ruger served as a United States Commissioner (1856) and was an unsuccessful candidate for Congress three times (1864, 1866, and 1880). He served as Chief Judge until his death in 1892. ALTON B. PARKER (1898–AUGUST 1904)

Judge Parker was born in Cortland, New York, in 1852. He graduated from the Albany Law School and was admitted to the bar in 1873. Thereafter, he held a variety of judicial positions, both elected and appointed, including Surrogate of Ulster County (1877), New York Supreme Court Justice (1885), Judge of the Second Division of the Court of Appeals (from 1889 until its disbandment in 1892), and Justice of the Supreme Court and the Appellate Division, First Department (1892). He was also active in Democratic Party politics having successfully managed the campaign of Governor David Hill in 1885. He was elected Chief Judge of the Court of Appeals and held that position until he resigned in 1904 to run as the Democratic Party candidate for President of the United States against Theodore Roosevelt. Following his defeat, he returned to practicing law in New York City and remained active until his death in 1926. Among the positions Judge Parker held was President of the American Bar Association, President of the New York State Bar Association, as well as President of the New York County Lawyers Association.21 EDGAR M. CULLEN (SEPTEMBER 1904–1913)

Edgar Cullen was born in Brooklyn, New York, in 1845. He graduated from Columbia College, and then enrolled in Rensselaer Polytechnic Institute in Troy, New York, to study engineering. Shortly after enrolling, however, he enlisted in the Union Army at the outbreak of the Civil War. He was commissioned an officer in 1862 and at the age of nineteen, because of his bravery and merit, became the youngest colonel in the Union Army. He was admitted to the bar in 1867 and was nominated by the Democratic Party for Justice of the Supreme Court in the Second Circuit. He was subsequently renominated by both parties for reelection. He was designated to sit on the Appellate Division and, in 1900, Governor Theodore Roosevelt designated Judge Cullen as an auxiliary judge of the Court of Appeals. Having garnered both the Democratic and Republican nominations for Chief Judge, Judge Cullen was elected to that position in 1904 and served as Chief Judge until his retirement in

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1913. During his tenure, he presided over the impeachment trial of Governor William Sulzer in 1913. He voted against it. Upon his death in 1922, his colleagues, while noting that he voted against impeachment, remarked admiringly that although he “expressed vigorous detestation of the unworthy acts of the Governor,” he did not vote for impeachment because “it seemed to him that his misconduct was not attributable to his official character as Governor [having taken place before his election].”22 WILLARD BARTLETT (1914–1916)

Judge Bartlett was born in Massachusetts in 1846. He graduated from Columbia College and New York University Law School. Upon graduation, he became a partner of Elihu Root. He was twice elected to the New York Supreme Court (1883 and 1897) and was among the first judges to be designated to sit on the Appellate Division of the Second Department (1896). Governor Frank Higgins assigned him to the Court of Appeals while he was a Supreme Court Justice in 1906, and he was elected in his own right to the Court in 1907. He served as Chief Judge until his retirement. When Judge Bartlett died in 1925, he was recalled by the Court as one who “was sensitive to the right thing to do.”23 FRANK H. HISCOCK (1917–1926)

Frank H. Hiscock was born in Onondaga County, New York, in 1856. He graduated from Cornell University in 1875. He served as president of its Board of Trustees for twenty-two years and began practicing law two years later in Syracuse. He was elected Supreme Court Justice in 1896 and was subsequently designated to sit on the Appellate Division in 1901. He was also assigned, as a Supreme Court Justice, to sit on the Court of Appeals in 1906 and was elected to a full term as an Associate Judge of the Court in 1913. In 1916, Judge Hiscock was elected Chief Judge and served in that capacity until he reached the mandatory retirement age at the end of 1926. After retirement, he continued to serve as an official referee. He died in 1946.24 BENJAMIN NATHAN CARDOZO (1928–MARCH 1932)

Benjamin Nathan Cardozo was born in New York City in 1870. He graduated from Columbia Law School and was admitted to the New York Bar in 1891. He was elected to the New York Supreme Court in 1914. He was designated by Governor Martin H. Glynn to sit as a Supreme Court Judge on the Court of Appeals (1914), and the appointment became full-time in 1917, when he was elected for a full term as an Associate Judge of the Court of Appeals. He was

A Brief Overview 13

elected Chief Judge in 1927 and served until 1932, when he was appointed to the United States Supreme Court where he served until his death in 1938. He was one of the great legal minds of the century, being an advocate, along with Justice Oliver Wendell Holmes, of judicial lawmaking in the common law. His opinion in Palsgraf v. Long Island R.R., 248 N.Y. 339 (1928) helped define the modern law of torts. He authored such works as Jurisdiction of New York Court of Appeals (1909), The Nature of the Judicial Process (1921), The Growth of the Law (1924), and The Paradoxes of Legal Science (1928).25 CUTHBERT W. POUND (MARCH 1932–1934)

Cuthbert Winfred Pound was born in 1864 in Lockport, New York. He attended Cornell University and studied law in the offices of John E. Pound in Lockport before being admitted to the bar in 1886. He served as City Attorney of Lockport (1889–1891), New York State Senator (1894), New York State Civil Service Commissioner (as a member from 1900 through 1902 and President of the Commission from 1902 through 1905), and counsel to Governor Higgins (1905). He also was a professor of law at Cornell University from 1895 through 1904. He was first appointed to the bench in 1906 as a Justice of the Supreme Court and was elected to a full fourteen-year term in that year as the nominee of the Democratic, Republican, and Independence League parties. He was designated by Governor Charles Whitman as an Associate Judge on the Court of Appeals in 1915 and was elected to a full term in 1917. He was reelected with cross-party endorsement in 1930 and was appointed Chief Judge in 1932. Judge Pound served as chairman of the Convention to Revise the Judiciary Article of the New York State Constitution (1921) and was a member of the American Law Institute. He died in 1935 and was remembered by the Court he served “as an omnivorous reader of the law” whose experience in public office “gave a practical bent to his mind.”26 FREDERICK E. CRANE (1935–1939)

Judge Frederick E. Crane was born in 1869 in Brooklyn, New York. He graduated from Columbia Law School in 1889 and was admitted to the bar the next year. He practiced law in Kings County until 1896, when he was appointed assistant district attorney. Judge Crane was first elected judge in 1901 as County Judge for Kings County, and before his term expired he was elected Supreme Court Justice (1906). Governor Whitman designated Judge Crane as an Associate Judge of the Court of Appeals in 1917, and he was subsequently elected to a full term in 1920 with cross-party endorsements. He became Chief Judge in 1934 and retired in 1939.

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He was elected as a Delegate-at-Large to the Constitutional Convention of 1938 and was chosen President of that body. He died in 1947.27 IRVING LEHMAN (1940–SEPTEMBER 1945)

Judge Lehman was born in New York City in 1876. He graduated from Columbia University (1896), Columbia Law School (1898), and after being admitted to the bar, practiced law in New York City until 1908. Among other positions, he served as Honorary President of the National Jewish Welfare Board. He was first elected to the Supreme Court in 1908 and was subsequently reelected. He was elected Associate Judge of the Court of Appeals in 1923, was reelected in 1937, and was elected Chief Judge in 1939, in which position he served until his death in 1945. His colleagues characterized Judge Lehman, at his death, as one who “believed profoundly in the supremacy of the law . . . [and] believed fervently in the moral concept of law.”28 JOHN T. LOUGHRAN (SEPTEMBER 1945–1953)

Judge Loughran was born in Kingston, New York, in 1889. He attended Fordham University Law School and was admitted to the bar in 1911. From 1912 until 1930 he was a member of the Fordham University Law School faculty. He practiced law in Kingston until he was elected to the Supreme Court in 1930. Governor Herbert Lehman appointed Judge Loughran to fill a vacancy on the Court of Appeals in 1934, and later that year he was elected to a full term. In April 1946, Governor Dewey appointed Judge Loughran Chief Judge, and he was elected to that office in his own right in 1946. He served until his death in 1953. In acknowledging his service to the Court and to the law, the Court summarized his legal philosophy as comprising, among other things, a “recognition of the fact that while our law must not be static, nevertheless, it must be certain and that certainty cannot be had by repudiation of rules and principles and the rejection of the doctrine of stare decisis.”29 EDMUND H. LEWIS (APRIL 1953–1954)

Edmund H. Lewis was born in Syracuse in 1884. He graduated from Yale University (1907) and received his law degree from Syracuse University College of Law (1909). In addition to engaging in private practice and serving as a major in the Judge Advocate General’s Corps during World War I, he served as Deputy Attorney General of New York (1915–1918), Corporation Counsel for the City of Syracuse (1920–1922), and President of the Onondaga County Bar Association (1929) before his election to the Supreme Court (1929). He served on the Appellate Division, Fourth Department from 1933 until his appointment as Associate Judge of the Court of Appeals in 1940. He was later elected to a full term as Associate Judge that year. In 1953, Governor Dewey

A Brief Overview 15

appointed him Chief Judge, and he served in that capacity until he reached the mandatory retirement age at the end of 1954. After leaving the bench, Judge Lewis became President of the New York State Bar Association. He died in 1972.30 ALBERT CONWAY (1955–1959)

Albert Conway was born in Brooklyn in 1889. He attended St John’s College, graduated from Fordham Law School in 1911, and was admitted to practice shortly thereafter. He was appointed first deputy assistant district attorney for Kings County and later assistant district attorney, which offices he held from 1913 through 1920. He unsuccessfully ran for New York State Attorney General in 1928 and Governor Franklin Roosevelt appointed him Superintendent of Insurance in 1929. In 1930, the Governor appointed him County Judge of Kings County, and he was elected to the bench in his own right later that year. Judge Conway was elected to the Supreme Court in 1931 and designated to sit on the Appellate Division in 1939. Governor Lehman appointed him an Associate Judge on the Court of Appeals in 1940, and later that year, he was elected to the position with crossparty endorsements. It was during his tenure on the Court that the Judicial Conference was inaugurated. Judge Conway was elected Chief Judge in 1954 and held that office until he reached the mandatory retirement age and retired at the end of 1959. He died in 1969. In addition to serving as President and Chairman of the Executive Board of the Brooklyn Council of the Boy Scouts of America, Judge Conway was a member of the American Law Institute, as well as various Brooklyn county organizations.31 CHARLES S. DESMOND (1960–1966)

Judge Desmond was born in Buffalo in 1896. He graduated from Canisius College and the University of Buffalo. During World War I, he served in the United States Marine Corps Flying Force. After being admitted to the bar in 1920, he remained in Buffalo where he practiced law until 1939. He served on the New York State Board of Social Welfare (1935 through 1939) until Governor Lehman appointed him to the Supreme Court in January 1940. He was elected Associate Judge on the Court of Appeals later that same year. Judge Desmond was reelected to the Court in 1954 and elected Chief Judge in 1959. Pursuant to court reorganization, effective September 1, 1962, he became Chief Judge of the State of New York. He retired from the bench after reaching the mandatory retirement age at the end of 1966. Thereafter, he

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returned to private practice and continued an “active interest in legal education.” He died in 1987.32 STANLEY H. FULD (1967–1973)

Stanley H. Fuld was born in New York City in 1903. He attended the College of the City of New York and received his law degree from Columbia University. He practiced law in New York City from 1926 through 1935 and from mid-1944 through mid-1946. From 1935 through 1944, he was Assistant District Attorney for New York County and was Special Assistant Attorney General from May 1944 through December 1945 under Thomas E. Dewey. Governor Dewey appointed Judge Fuld an Associate Judge on the Court of Appeals in 1946 after which he was elected to the bench. In 1966, he was elected Chief Judge upon being cross-endorsed by the political parties. He retired from the bench at the end of 1973, having reached the mandatory retirement age in that year. The New York State Bar Association established the Stanley Fuld Award, which is given every year to recognize outstanding contributions to commercial law and litigation. Judge Fuld died in 2003. Judge Fuld is regarded as one of Judge Cardozo’s heirs. His decisions on conflicts of law, freedom of speech, and torts have had national implications. Among his many other achievements and activities, Judge Fuld served as Chairman of the New York Fair Trial—Free Press Conference, Chairman of the Institute for Advanced Studies in the Humanities, and Chairman of the Board of Directors of the Jewish Theological Seminary. He was also a Fellow of the American Academy of Arts and Sciences.33 CHARLES D. BREITEL (1974–1978)

Judge Breitel, the last elected Chief Judge of the Court of Appeals, was born in 1908 in New York City. He graduated from the University of Michigan (1929) and received his law degree from Columbia University School of Law in 1932 before entering private practice in New York City. He served on the staff of Thomas E. Dewey’s Special Rackets Investigation (1934 through 1937). From 1938 through 1941, he served in the office of the District Attorney of New York County as Assistant Chief of the Indictment Bureau, Trial Assistant, and then Chief of the Indictment Bureau under District Attorney Dewey. He continued his association with Dewey by following him into private practice in 1942 and later becoming counsel to Dewey from 1943 through 1950. Dewey appointed him to the State Supreme Court in 1950, but he lost his election that year for a full term. However, in 1951 he was elected to a full term and was designated in 1952 to sit on the Appellate Division and was later redesig-

A Brief Overview 17

nated by Governors W. Averell Harriman and Nelson Rockefeller. He was elected Associate Judge of the Court of Appeals in 1967, and was elected Chief Judge in 1973. He served until his retirement and died in 1991. Among his many nonjudicial accomplishments, Judge Breitel served on the New York State Post-War Public Planning Commission and the Joint Legislative Committee on Interstate Cooperation while Counsel to the Governor. He was also a member of the President’s Commission on Law Enforcement and the Administration of Justice (appointment by President Lyndon Johnson) and the Federal Commission on International Rules of Judicial Procedure (by appointments of Presidents Dwight Eisenhower and John Kennedy). He also served as Adjunct Professor of Law at Columbia University School of Law (1963–1969). Judge Breitel was a leading advocate for eliminating the election of judges to the Court of Appeals following his own bitter contest for reelection. His activities resulted in the constitutional amendment establishing the appointment of judges to the Court. He was also responsible for requiring that the Court of Appeals sit as a “hot bench,” which is to say, he required that each sitting judge be fully prepared before oral argument for each argument before the court.34 LAWRENCE H. COOKE (1979–1984)

Judge Cooke was born in Monticello, New York, in 1914. He graduated from Georgetown University and from Albany Law School, and he was admitted to the bar in 1939 and began practicing in his home county of Sullivan. He was elected Town Supervisor of Thompson and Chairman of the Sullivan County Board of Supervisors (1947). He began his career on the bench in 1955 when he was elected County and Surrogate Court Judge of Sullivan County. He was subsequently reelected with bipartisan support (1959). With similar backing, he was elected to the Supreme Court in 1961 and was later appointed to the Appellate Division (1968 and 1971). He was elected to the Court of Appeals in 1974. In 1979, Governor Carey appointed Judge Cooke Chief Judge, a position he held until his retirement at the end of 1984. Judge Cooke served on several State Judicial Conference committees, including the Committee to Study Grievance Procedures and the Committee to Recommend Improvements in the Jury System. He was chairman of the New York Fair Trial—Free Press Conference, and headed the National Conference of Chief Justices and the National Center for State Courts. In addition to being active in Sullivan County community activities and affairs, he was an active volunteer firefighter and published many articles concerning the law governing that job. After retiring from the bench, among other activities, Judge Cooke chaired the Judicial Screening Committee.

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His official biography notes that he “took an active role in recommending legal reforms to secure more uniform sentencing of criminals, abolition of corroboration requirements in rape cases and the barring of irrelevant crossexamination as to the sexual history of rape victims.” Judge Cooke died in 2000.35 SOL WACHTLER (MAY 1985–NOVEMBER 1992)

Sol Wachtler was born in Brooklyn, New York, in 1930. He attended Washington and Lee University and Law School and was admitted to the bar in 1956. Thereafter, he practiced law in Jamaica, New York, eventually opening his own law office in Mineola, New York. While in the military, Judge Wachtler was an instructor in Military Law at the Provost Marshal General’s School and served as Special Military Counsel. In the Town of North Hempstead, he was elected councilman and supervisor. Judge Wachtler was appointed to the Supreme Court in 1968 and elected to a full term in 1970 with bipartisan support. In 1972, he was elected Associate Judge of the Court of Appeals. In 1992, Judge Wachtler resigned from the bench upon being charged with a crime unrelated to his judicial duties; he was later convicted. Since leaving the bench, he has authored an autobiography (After the Madness, [ereads.com, 2003]) and a novel with David Gould, Blood Brothers (New Millennium Press, 2003). He presently serves as a law professor at Touro College of Law.36 RICHARD D. SIMONS (ACTING CHIEF JUDGE NOVEMBER 1992–MARCH 1993)

Judge Simons served as Acting Chief Judge following Judge Wachtler’s resignation. See biography under “Biographies of Associate Judges from March 1932 to the Present,” for his complete biography. JUDITH S. KAYE (MARCH 1993–PRESENT)

Judge Kaye, the first woman to serve on the Court of Appeals, was born in Monticello, New York, in 1938. She graduated from Barnard College, earned her law degree from New York University Law School in 1962, and was admitted to the bar the next year. For the next twenty-one years, she practiced as a trial lawyer in New York City. Governor Mario Cuomo appointed Judge Kaye to the Court of Appeals in 1983 and appointed her Chief Judge in 1993. She is co-chair of the Permanent Judicial Commission on Justice for Children and was a Director of the Legal Aid Society and the American Judicature Society, as well as a Council Member of the American Law Institute. She has been a tireless advocate for mandatory continuing legal education for lawyers and for court reform. She has authored numerous publications on the judicial

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process, women in the law, state constitutional law, and professional ethics, and has served on committees of both the New York State and American Bar Associations.

Biographies of Associate Judges Who Served from March 1932 to the Present HENRY T. KELLOGG (1927–MAY 1934)

Judge Kellogg was born in Champlain, New York, in 1869, the son of a New York Supreme Court Justice. He received both his undergraduate (1889) and law (1892) degrees from Harvard University. Upon admission to the bar, he began practicing law in Plattsburgh, New York, was elected County Court Judge for Clinton County in 1903, and was later appointed and then elected Justice of the Supreme Court that year. He was reelected to a second term in 1917, was designated to sit on the Appellate Division, Third Department in 1918, and served as its Presiding Justice from 1922 through 1923. He was elected Associate Judge of the Court of Appeals in 1926 with bipartisan support but did not complete his term, being compelled to resign due to ill health in May 1934. He died in 1942.37 JOHN F. O’BRIEN (1927–1939)

John F. O’Brien, the son of Associate Judge of the Court of Appeals Denis O’Brien (1890–1907), was born in 1874 in Watertown, New York. He graduated from Georgetown University (1896) and New York Law School (1898), and upon admission to the bar in 1898 was appointed Assistant Corporation Counsel of the City of New York with authority over appeals for seven years, including appeals taken to the Court of Appeals, which later noted that, at the time of his appearances, the Court was “impressed with his learning.”38 He was appointed by Governor Alfred E. Smith to fill Judge Cardozo’s vacancy as Associate Judge in 1927. He was subsequently elected with crossparty endorsements in 1927 and served until his death in 1939.39 IRVING G. HUBBS (1929–1939)

Judge Hubbs was born in Oswego County, New York, in 1870. He graduated from Pulaski Academy in 1887, received his law degree from Cornell University, and was admitted to the bar in 1891. He practiced in Pulaski, New York, until he was elected Justice of the Supreme Court in 1912. Governor Charles Whitman designated him an Associate Justice on the Appellate Division, Fourth Department, in 1918, and he was designated Presiding Justice by Governor

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Smith in 1923. He was reelected to the bench with cross-party endorsements (1924) and redesignated Presiding Justice. In 1928, Judge Hubbs was elected Associate Judge and served in that capacity until his resignation in 1939. He died in 1952.40 LEONARD C. CROUCH (1932–1936)

Judge Leonard C. Crouch was born in 1866 in Kingston, New York. He graduated from Cornell University (1889) and received his law degree from Syracuse University. Upon admission to the bar in 1891, he began practicing law in Kingston, but shortly thereafter removed his practice to Syracuse. His judicial career began with his appointment to the Supreme Court in 1913. He was elected to a full term later that year and reelected in 1928. In the interim, Governor Smith designated him to sit as an Associate Justice of the Appellate Division, Fourth Department (1923). Governor Roosevelt appointed Judge Crouch to the Court of Appeals in 1932. He was elected in his own right in 1933 and served until his mandatory retirement in 1936, after which he served as an official referee. He died in 1953.41 EDWARD R. FINCH (1935–MAY 1943)

Judge Edward R. Finch was born in 1873 in New York City. He graduated from Yale University (1895) and Columbia University School of Law (1898). Judge Finch’s first brush with public service was in 1901 when he began service as a member of the New York State Assembly, where he sat through 1903.42 Governor Whitman appointed Judge Finch to the Supreme Court in 1915. He was elected to a full term the next year and was subsequently reelected. Judge Finch was designated Associate Justice of the Appellate Division, First Department (1922, 1927, and 1930), and later served as its Presiding Justice. He was elected Associate Judge of the Court of Appeals (1935) and served until he retired at the end of 1943, having reached the mandatory retirement age. He died in 1965.43 Judge Finch served as one of the annotators of Conflict of Laws (American Law Institute) and founded the Child Welfare Commission. In addition to serving in the judiciary, he was appointed Envoy Extraordinary and Minister Plenipotentiary on Special Mission to Brazil. He also served on the American Bar Association’s Adjunct Committee on Law Day. In 1968, Judge Finch’s son, Edward R. Finch, Jr., established through the American Bar Association the Judge Edward R. Finch Law Day Speech Award to be awarded to the author of a speech which best expounds on the importance of law in society and furthers the public understanding of the law.

A Brief Overview 21 HARLAN WATSON RIPPEY (1937–1944)

Judge Rippey was born in 1874 in Wadsworth, New York. He graduated from the University of Rochester (1898), and upon graduation became a professor of mathematics at Wagner College (1898–1899). In 1901, he was admitted to the bar but apparently did not attend law school. He was intimately involved with tax-related issues before coming to the bench, having served as Monroe County Inheritance Tax Appraiser (1912–1915) and Inheritance Tax Attorney (1922–1927). He also served as a member of the New York State Commission for the Revision of the Tax Laws (1930–1936). Governor Smith appointed Judge Rippey to the Supreme Court 1927. President Franklin Delano Roosevelt appointed him a United States District Court Judge for the Western District of New York in 1934, in which capacity he served for two years until his election to the Court of Appeals. He retired from the Court of Appeals at the end of 1944 having reached the mandatory retirement age. He died in 1946.44 CHARLES BROWN SEARS (1940)

Judge Sears was born in Brooklyn in 1870. He graduated from Yale University (1892) and received his law degree from Harvard University (1896). He also studied at the University of Berlin (1892–1893). He served as a delegate to the New York Constitutional Convention of 1915 and chaired the Judiciary Committee of the New York Constitutional Convention of 1938. Following his admission to the bar, Judge Sears practiced law in Buffalo for more than twenty years. He was appointed and subsequently elected to the New York Supreme Court in 1917 and later reelected to two more terms on that court. He was designated to sit on the Appellate Division, Fourth Department, from 1922 through 1931 and again through 1940, and he served as its Presiding Justice from 1929 through 1940 until his appointment by Governor Lehman to the Court of Appeals. He retired from the Court at the end of 1940, the year of his appointment, having reached the mandatory retirement age. After retirement, he sat as a judge on the International Military Tribunal in Nuremberg. Judge Sears died in 1952.45 THOMAS D. THACHER (MAY 1943–NOVEMBER 1948)

Judge Thomas D. Thacher was born in Tenafly, New Jersey, in 1881. He graduated from Yale University and Yale Law School (1904) and was admitted to practice in New York in 1906. He subsequently became a prominent member of the New York City Bar and gained a national reputation.

22 A Brief Overview

He served as Assistant United States Attorney in New York (1907–1910). During the latter part of World War I, he was a member of the American Red Cross Mission to Russia. He was first appointed to the bench in 1925 when President Coolidge named him United States District Court Judge for the Southern District of New York, where he served until his appointment by President Hoover as Solicitor General of the United States in 1930. While serving on the district court, among other notable accomplishments, he oversaw an investigation of corrupt bankruptcy practices (1930). Before being appointed to the Court of Appeals, Judge Thacher served as President of the Association of the Bar of the City of New York (1933–1935), Chairman of the New York City Charter Revision Commission (1933–1935), and Corporation Counsel of the City of New York (1943). He was appointed to the Court by Governor Dewey in 1943 and was elected later that year to a full term as Associate Judge, in which capacity he served until his retirement in 1948.46 He died in 1950. MARVIN R. DYE (1945–1965)

Judge Marvin R. Dye was born in Forestville, New York, in 1895. After receiving his law degree from Cornell University School of Law (1917), he entered the military during World War I and was commissioned a first lieutenant. He returned to civilian life in 1920 and began practicing law in Rochester. He served as County Attorney for Monroe County (1934–1935). Governor Dewey appointed Judge Dye to the Court of Claims (1940), where he served until his election to the Court of Appeals in 1944. He was reelected with crossparty endorsement (1958). He retired in 1965 having reached the mandatory retirement age, but returned to the bench as a trial judge serving as a Supreme Court Justice in the Seventh Judicial District. While on the Court of Appeals, as noted by his colleagues at the time of his death in 1997, he was a powerful advocate for freedom of speech, religion, and the press.47 GEORGE Z. MEDALIE (SEPTEMBER 1945–MARCH 1946)

Judge Medalie was born in New York City in 1883 and graduated from Columbia University Law School in 1907. Upon admission to the bar, he began practicing law in New York City and became a prominent litigator. He served as Special Assistant Attorney General in charge of the prosecution of election frauds (1926–1928). President Hoover appointed him United States Attorney for the Southern District of New York in 1931. In this capacity, he oversaw and mentored a young prosecutor, Thomas E. Dewey.

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Judge Medalie unsuccessfully ran as the Republican candidate for United States Senator from New York against Robert F. Wagner in 1932. Governor Dewey appointed him to the Court in 1945, but he died soon thereafter in 1946.48 BRUCE BROMLEY (1949)

Judge Bromley was born in Michigan in 1893. He graduated from the University of Michigan (1914) and then entered Harvard Law School; but he interrupted his legal studies to enlist in the United States Navy during World War I, where he served with distinction on board several ships. After the war, he finished his studies and received his law degree from Harvard. He was admitted to the bar in 1920 and began practicing law in New York City as an assistant to Henry L. Stimson. Judge Bromley practiced with the New York City law firm of Cravath, Swaine & Moore until Governor Dewey appointed him to serve on the Court of Appeals in 1949. He was subsequently defeated by Judge Charles W. Froessel when he ran for the position that year. After leaving the Court he returned to Cravath, Swaine & Moore, where he served until his death. He was a litigator with a national reputation representing, among other noted clients, IBM in the antitrust action brought against it by the Federal Government. A chair was endowed in his name at his alma mater. He died in 1980.49 CHARLES W. FROESSEL (1950–1962)

Judge Froessel was born in Brooklyn in 1892. He received his law degree from New York Law School (LL.B. 1913, LL.M. 1914). During World War I, he served in the United States Navy with the rank of lieutenant. He was counsel to the Sheriff of Queens County (1916–1920), an assistant district attorney for Queens County (1924–1930), and a special assistant to the United States Attorney General in charge of slum clearance projects in New York City (1935–1937). Judge Froessel was active in community and public affairs, having served in executive positions with the Boy Scouts of America and as Grand Master of the Grand Lodge of the Free and Accepted Masons of New York (1944–1946). He also was president of the Queens County Bar Association (1928) and chaired the Judicial Section of the New York State Bar Association (1945–1946). He was first appointed to the bench as Justice of the City Court of the City of New York in 1937. In that year, he was elected Justice of the Supreme Court, having been endorsed by the Democratic and Fusion parties. He served as a justice until his election to the Court of Appeals (1949), and remained on the bench until he retired in 1962, having reached the mandatory retirement age.

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While serving on the Court of Appeals, he supervised the reconstruction of the Court of Appeals courthouse. Judge Froessel died in 1982.50 JOHN VAN VOORHIS (APRIL 1953–1967)

Judge John Van Voorhis was born in 1897 in Irondequoit, Monroe County, New York. He graduated from Yale University in 1919, but did not attend law school. He was admitted to the bar in Monroe County (1922) and commenced practicing in Rochester. He was elected a Justice of the Supreme Court for the term beginning in 1937 and was subsequently reelected. During his tenure on the Supreme Court, Governor Dewey designated him Associate Justice of the Appellate Division, Fourth Department (1947 and 1951). Governor Dewey initially appointed Judge Van Voorhis as a temporary associate judge of the Court of Appeals (1953) and then appointed him Associate Judge in 1954. That year, Judge Van Voorhis was elected with cross-party endorsements to a full term. He retired at the end of 1967 upon reaching the mandatory retirement age and returned to private practice and to teaching at New York Law School. He also served as a Special Master in the reorganization proceedings involving the New York, New Haven and Hartford Railroad Company. Judge Van Voorhis died in 1983.51 ADRIAN P. BURKE (1955–1974)

Judge Burke was born in New York City in 1904. He graduated from Holy Cross College in 1927 and from Fordham Law School in 1930 and, upon admission to the bar (1932), began practicing law in New York City. Before his election to the Court of Appeals in 1954, Judge Burke served as Assistant Counsel to the Joint Legislative Committee Investigating Public Utilities (1936), delegate to the Constitutional Convention of 1938, and was the founder and president of the Youth Counsel Bureau in the District Attorney’s Offices (1941–1953). He managed the mayoral campaign of Robert F. Wagner, Jr. in New York City in 1953 and was appointed Corporation Counsel for the City of New York (1954) shortly before he ran for and was elected to the Court of Appeals. Judge Burke retired at the end of 1974, having reached the mandatory retirement age and then returned as New York City Corporation Counsel. Judge Burke died in 2000.52 He composed his memoirs, which were subsequently arranged and edited by his son Frank in a volume entitled Everything I Needed: Living and Working in New York (New York: Golden String Press, 2004). SYDNEY R. FOSTER (1960–1963)

Judge Foster was born in Cazenovia, New York, in 1893. He graduated from Syracuse University and its law school (1915), was admitted to the bar in 1917,

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and in 1918 he began two years military service overseas in the Army Judge Advocate General’s Department. Following World War I, he practiced law until his election as District Attorney of Sullivan County in 1925. He was first elected a Justice of the Supreme Court in 1928 and was reelected three times thereafter, gaining the endorsement of both Democratic and Republican parties during his reelection bids. He was first designated to sit on the Appellate Division, Third Department, in 1939, and served there for twenty years, during which time he was designated Presiding Justice by both Governors Dewey and Harriman. He first ran for the Court of Appeals in 1954 and was defeated by Judge Burke. He was subsequently appointed Associate Judge by Governor Rockefeller in 1960 and was elected that year to a full term. On the bench, he was noted by his colleagues for, among other attributes, his decisions in the field of workers’ compensation and unemployment insurance law, which “exemplif[ied] his liberal bent in those fields.” He also chaired the Judicial Section of the New York State Bar Association. Judge Foster retired at the end of 1963 upon reaching the mandatory retirement age and died in 1973.53 JOHN F. SCILEPPI (1963–1972)

Judge John F. Scileppi was born in New York City in 1902. He graduated from Fordham University Law School (1925) and was admitted to the bar shortly thereafter (1926). He engaged in the general practice of law and served as Chief Deputy Clerk of Queens County (1938) until his election to the bench in 1939 as Justice of the Municipal Court, Queens County. He was reelected in 1949. Later, he was elected County Court Judge of Queens County (1951) and during his tenure served, by designation, as a Supreme Court Justice until 1962. After being elected Associate Judge of the Court of Appeals, Judge Scileppi served as a delegate to the 1967 New York State Constitutional Convention. He was very active with the Benevolent Protective Order of Elks on a local and state level, along with a variety of Catholic and Italian-American related organizations. He retired from the bench at the end of 1972, having reached the mandatory retirement age for appellate judges, and returned to the Supreme Court as a trial justice for an additional four years. He died in 1987.54 FRANCIS BERGAN (1964–1972)

Judge Bergan was born in Albany, New York, in 1902. He received his law degree from Albany Law School in 1923 and was admitted to the bar the next year.

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A Brief Overview

Judge Bergan’s life on the bench began early in his legal career when he was elected to the Albany City Court in 1929. Four years later he was elected Albany Police Court Justice. He moved to the Supreme Court in 1935 and was reelected in 1949. While on the Supreme Court, he was designated to sit on the Appellate Division, Third Department several times, as well as to the Appellate Division, First Department. In 1960, he was designated Presiding Justice, Appellate Division, Third Department. Judge Bergan was elected Associate Judge of the Court of Appeals in 1963 with endorsements of both major political parties. He remained on the bench until his retirement at the end of 1972 having reached the mandatory retirement age that year. He served as a delegate to the 1938 and 1967 New York State Constitutional Conventions. In the latter year, he served as Chairman of the Committee on Education. In the area of constitutional reform, he was a member and vicechairman of the Temporary State Commission on the Constitutional Convention (1956, also known as the “Peck Commission”) and chaired the commission’s Subcommittee on Local Government and Finance. He also chaired the Judicial Section of the New York State Bar Association and the Executive Committee of the New York State Association of Supreme Court Justices. As stated at note 1, supra, he authored The History of the New York Court of Appeals, 1847–1932. Judge Bergan died in 1998.55 KENNETH B. KEATING (1966–MAY 1969)

Kenneth B. Keating was born in 1900 in Lima, New York. After serving as an enlisted man in World War I, he received his law degree from Harvard University Law School (1923) and began practicing law in Rochester. During World War II, Judge Keating achieved the rank of colonel and was subsequently commissioned a brigadier general (1948), having been awarded the Legion of Merit with Oak Leaf Cluster and the Order of British Empire. After World War II, Judge Keating was elected to Congress, where he served through 1958, at which time he was elected to the United States Senate. In 1965, he was elected to the Court of Appeals and remained until he resigned in 1969, upon his appointment by President Johnson as United States Ambassador to India. He later served as Ambassador to Israel. Judge Keating died in 1975.56 MATTHEW J. JASEN (1968–1985)

Judge Matthew J. Jasen was born in Buffalo in 1915. He graduated from Canisius College, Harvard Law School, and the Harvard University Civil Affairs School. He was admitted to practice in 1940.

A Brief Overview 27

During World War II, Judge Jasen served as a Military Government Officer in Europe. He remained in Germany after the war, serving as president of the Security Review Board for the State of Wurttemberg and as United States Judge for the Third Military Government Judicial District of Occupied Germany at Heidelberg (1946–1948). Upon leaving the military, he took up the practice of law in Buffalo until Governor Harriman appointed him to the Supreme Court in 1957, and he was elected to a full term that year. In 1967, Judge Jasen was elected Associate Judge of the Court of Appeals with endorsements from all major political parties. He remained on the bench until the end of 1985, having reached the mandatory retirement age. Following retirement from the bench, Judge Jasen has served as a judicial referee in matters involving judicial misconduct. He also chaired the New York State Bar Association Task Force on Administrative Adjudication, which issued a report in 1988 recommending, among other things, separating the adjudicative function of state regulatory agencies from their executive rulemaking and oversight obligations to better ensure the integrity and legitimacy of their decisions. Among other professional activities, he has also served on the Fourth Judicial Department Screening Committee and has been a member of the American Law Institute and the American Judicature Society.57 JAMES GIBSON (SEPTEMBER 1969–1972)

Judge Gibson was born in Salem, New York, in 1902. He graduated from Princeton University (1923). After law office study and a year attending the Albany Law School, he was admitted to the bar. Shortly thereafter, he practiced law in Hudson Falls, New York, and remained in the private practice of law until his election in 1935 as District Attorney of Washington County, a position his father held. During World War II, he served in Europe as a captain in the United States Army. He was elected Supreme Court Justice in 1952 and reelected in 1966. Judge Gibson was designated an Associate Justice on the Appellate Division, Third Department (1956, 1957, and 1962), as well as Presiding Justice of that court (1964 and 1966). Governor Rockefeller appointed him Associate Judge of the Court of Appeals to complete Judge Keating’s term in 1969, and that year he was elected to the Court without opposition. On the bench, he chaired the Judicial Section of the New York State Bar Association. Judge Gibson retired at the end of 1972, having reached the mandatory retirement age. He continued to sit on the Supreme Court as a trial judge until 1978, when he retired and returned to practice law in Glens Falls, New York. In

28 A Brief Overview

1976, the Court of Appeals appointed Judge Gibson to act as a special master in a case involving the unconstitutional moratorium declared on New York City bonds. He died in 1992.58 DOMINICK L. GABRIELLI (1972–1982)

Judge Dominick L. Gabrielli was born in Rochester in 1912. He graduated from St. Lawrence University and from Albany Law School in 1936 and was admitted to the bar a year later. He was commissioned as an ensign in the United States Navy in 1942. During World War II, he served in North Africa, Italy, and Malta, participated in the landings in Salerno, Italy, and served as a liaison with the British Navy. He was subsequently very active in veterans’ organizations. During his legal career, he served as corporation counsel of Bath, New York, as well as counsel to other towns and villages (1939–1953). In 1953 he was first appointed and later elected Steuben County District Attorney. He served as Steuben County Court Judge and Children’s Court Judge (1957–1961) until he was appointed to fill a vacancy as Supreme Court Justice. Judge Gabrielli was later elected to the Supreme Court in 1961 and served through 1972. While on the bench, he was designated Associate Justice of the Appellate Division, Fourth Department (1968). Judge Gabrielli was elected Associate Judge of the Court of Appeals in 1972 with Republican and Conservative Party endorsements and served until he reached the mandatory retirement age in 1982. Upon leaving the bench, he returned to practicing law with the Rochester law firm of Nixon Hargrave Devans & Doyle. He was active in numerous bar association and bench-related committees and was a member of the American Judicature Society. At Albany Law School, he established the Dominick Gabrielli Appellate Advocacy Moot Court Competition. He died in 1994.59 HUGH R. JONES (1973–1984)

Judge Hugh R. Jones was born in New Hartford, New York, in 1914. He received his law degree from Harvard University School of Law in 1939. During World War II, he served in the United States Navy, was awarded a Bronze Star with Combat “V,” and retired with the rank of lieutenant commander (1954). He practiced law in Utica before entering the Navy and after leaving active military service until his election as Associate Judge of the Court of Appeals (1972), when he was endorsed by the Republican and Conservative parties. Among his notable accomplishments, Judge Jones was President of the New York State Bar Association (1971–1972) as well as the chair of various sections and committees of the Association, including its Tax Section (1967) and the

A Brief Overview 29

Committee on Professional Ethics (1959–1963). He was also very active in religious affairs having been Chancellor of the Diocese of Central New York (Episcopal). He chaired the New York State Select Committee on Correctional Institutions and Programs (1971–1972) and was co-chair of the New York State Citizens Committee for Revenue Sharing during that time. He also chaired the New York State Board of Social Welfare (1964–1969), as well as a temporary state commission examining judicial salaries (1988), the Commission on Judicial Nomination (see supra) (having been appointed by Governor Cuomo), and the Governor’s Advisory Commission on Liability Insurance. He authored the Cardozo Lecture (1979) entitled Cogitations on Appellate Decision-Making, which analyzed the role of appellate courts. Judge Jones retired at the end of 1984, having reached the mandatory retirement age, and died in 2001.60 SAMUEL RABIN (1974)

Judge Samuel Rabin was born in 1905 in New York City. After he graduated from New York University School of Law in 1928, he was admitted to the bar and began practice in Queens County. Judge Rabin was first elected to the New York State Assembly as a Republican in 1944 and served through 1954. He was Chairman of the Assembly Committee on Insurance and a member of the Assembly Judiciary Committee. He was elected to the Supreme Court in 1954 and was reelected in 1968. Governor Rockefeller named Judge Rabin to the Appellate Division, Second Department (1962 and 1967) and designated him Presiding Justice of that Department in 1971. Governor Malcolm Wilson appointed Judge Rabin to fill a vacancy on the Court of Appeals, but he declined to run for a full term upon his failure to get cross-party endorsement for his nomination. After Judge Rabin completed his one-year appointment on the Court, Governor Carey appointed him to two consecutive two-year terms on the Appellate Division, Second Department. He returned to practice law in New York City at the age of seventy-six and remained in practice until his death in 1993. HAROLD A. STEVENS (1974)

Judge Harold A. Stevens was born in South Carolina in 1907. He graduated from Benedict College in Columbia, South Carolina, and Boston College Law School; he was admitted to the Massachusetts Bar and began practice in Boston in 1936. He said he had decided to become a lawyer in 1926 after witnessing the lynching of three black men in South Carolina who had been dragged from a local jail. In 1938, he moved to New York City. He was elected to the New York State Assembly in 1946 and served for two terms. In 1955, he became a Judge of the Court of General Sessions of the City

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A Brief Overview

of New York, and later that year was appointed a Justice of the Supreme Court and later elected to the same court. He was designated an Associate Justice of the Appellate Division, First Department (1958, 1962, and 1967), as well as Presiding Justice of the same court (1969 and 1970). Governor Wilson appointed Judge Stevens to complete Judge Breitel’s term in January 1974, but he did not return to the Court when the term expired at the end of that year, having lost an election to Judge Jacob Fuchsberg. He was very active in Catholic lay organizations, as well as being a member of the board of directors of the Catholic Interracial Council and the Law Center Foundation of New York University Law School. Judge Stevens died in 1990.61 JACOB D. FUCHSBERG (1975–MAY 1983)

Judge Fuchsberg was born in 1913. He graduated from New York University and New York University School of Law, was admitted to the bar in 1936, and immediately began practice as a trial lawyer in New York City. He was elected president of the New York State Trial Lawyers Association in 1957 and was later elected president of the American Trial Lawyers Association (ATLA). He succeeded Dean Roscoe Pound as president of the research affiliate of ATLA, the Roscoe Pound—American Trial Lawyers Association Foundation, in 1965 and was reelected seven times to that position. He was also a founding director of the National Institute of Trial Advocacy. Judge Fuchsberg served on the National Advisory Committee of the Legal Services Program of the U.S. Office of Economic Opportunity from 1965 through 1973. He first ran for the office of Chief Judge of the Court of Appeals against Judge Charles Breitel in 1973 and lost. In part, because of the stridency of that campaign, the New York State Constitution was amended to provide for the appointment rather than the election of judges to the Court of Appeals. Judge Fuchsberg was subsequently elected to the Court of Appeals in 1975 and served until his retirement at the end of 1983. He returned to practice law in New York City. At the time of the creation of Touro College in the 1970s, he served on the college’s Board of Trustees, and subsequently the Law Center at Touro College in Huntington, New York, was named after him. While on the bench, he became the first judge in the history of the Court to be censured by its members for misconduct. He engaged in transactions involving his investments in New York Municipal Assistance Corporation Bonds when cases involving such bonds came before the bench in 1975 and 1976, and he consulted, ex parte, legal experts on issues before the bench.62 Judge Fuchsberg died in 1995.63

A Brief Overview 31 BERNARD S. MEYER (1979–1986)

Judge Meyer was born in 1916 in Baltimore. He graduated from Johns Hopkins University in 1936, received his law degree from the University of Maryland School of Law in 1938, and was admitted to the Maryland Bar soon thereafter. He remained in private practice until 1941, when he joined the staff of the General Counsel of the United States Treasury. He served in the United States Navy in the Pacific theatre from 1943 through 1946. Upon returning to civilian life, he was admitted to the New York Bar and practiced in New York from 1947. Judge Meyer served as special counsel to the Moreland Commission to Study Workmen’s Compensation Administration and Costs (1955–1958). He was elected to the New York Supreme Court in 1958. While serving as a Supreme Court Justice, Judge Meyer chaired the National Conference of State Trial Judges (1970–1971), served as President of the Association of Justices of the Supreme Court of the State of New York (1970–1971), and was a founder of the Council of Judicial Associations. In 1975, Judge Meyer was appointed Special Deputy Attorney General of the State of New York in Charge of the Special Attica Investigation tasked with investigating the Attica prison riot. He was also chair of the Advisory Panel to the Law Revision Commission on the New York Code of Evidence and chair of the Chief Judge’s Task Force on Permanency Planning for Foster Children. He served as the first chair of the Committee on Pattern Jury Instructions—Civil of the Association of Justices of the Supreme Court, which produced the compendium of jury instructions in use today. He has published articles on a variety of legal topics including zoning, matrimonial law, and fair trial / free press issues and trial practice. Judge Meyer was appointed Associate Judge of the Court of Appeals by Governor Carey in 1979 and served on the Court until retiring at the end of 1986, having reached the mandatory retirement age.64 RICHARD D. SIMONS (1983–1996)

Judge Richard D. Simons was born in 1927 in Niagara Falls, New York. He served in the United States Navy during World War II, graduated from Colgate University (1949), and received his law degree from the University of Michigan in 1952. After being admitted to the bar (1952), he began practicing in Rome, New York, where he served as Assistant Corporation Counsel (1955–1958) and Corporation Counsel for the City of Rome (1960–1963). Judge Simons was first elected to the bench as Justice of the Supreme Court in 1963 and was subsequently reelected. While so serving, he was designated

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A Brief Overview

Associate Justice of the Appellate Division, Third Department (1971–1972), and Associate Justice of the Appellate Division, Fourth Department (1973–1983). He chaired the Appellate Division Coordinating Committee to establish disciplinary rules for lawyer advertising (1977–1978), was a member of the Editorial Committee of New York Pattern Jury Instructions—Civil (1978–1983) and was a Fellow of the National Endowment for the Humanities, University of Virginia Law School (1979). Governor Cuomo appointed Judge Simons Associate Judge of the Court of Appeals in 1983. He served as Acting Chief Judge from November 1992 through March 1993, following the resignation of Judge Wachtler and before the appointment of Judge Kaye.65 He retired from the Court in 1996. FRITZ W. ALEXANDER, II (1985–APRIL 1992)

Judge Fritz W. Alexander was born in 1926 in Florida. He served in the United States Naval Reserve during World War II and the Korean War. He graduated from Dartmouth College and graduated from New York University School of Law before being admitted to practice in New York in 1952. He practiced law in New York City through 1970, except for a leave of absence when he served as District Director of the Upper Manhattan District Office of the City Rent and Rehabilitation Administration (1962). He chaired the Lawyers Committee of the Housing Task Force of the New York Urban Coalition and was co-chair of the Steering Committee of the Task Force (1968–1970). In 1970 he was appointed, on an interim basis, to the Civil Court of the City of New York and was later elected that year to a full term. He was periodically designated Acting Justice of the Supreme Court (1972–1975) and Family Court Judge (1974–1975). In 1977, he was appointed to an interim term and later elected to a full term on the Supreme Court. Governor Carey designated Judge Alexander as an Associate Justice of the Appellate Division, First Department in 1982. Governor Cuomo appointed Judge Alexander Associate Judge of the New York Court of Appeals in 1985. He resigned in 1992 to become Deputy Mayor of New York City at the behest of his former law partner, Mayor David Dinkins of New York City. He died in 2000.66 VITO J. TITONE (1985–1999)

Judge Titone was born in 1929 in Brooklyn. He graduated from New York University (1951), served in the Korean War, and thereafter graduated from St. John’s University School of Law in 1956. He was promoted to the rank of colonel in the New York State National Guard and served in that capacity while on the bench. From 1957 through 1968 he practiced law in Staten Island.

A Brief Overview 33

He was elected as a Justice of the Supreme Court in 1968 and was reelected in 1982. Judge Titone served as Administrative Judge of Richmond County (1969–1976). He also was designated an Associate Justice of the Appellate Division, Second Department (1975 and 1983). While sitting on the Appellate Division, he served on the Committee on Opinions of the Official State Reporter and chaired the New York Law Journal Committee. He was appointed to the Court of Appeals by Governor Cuomo in 1985 and retired at the end of his term in 1999, having reached the mandatory retirement age. He retuned to practice law with the firm of Mintz & Gold in New York City. He died in 2005.67 STEWART F. HANCOCK, JR. (1986–1993)

Judge Stewart F. Hancock, Jr. was born in 1923 in Syracuse. He served as a line officer in the United States Navy for two years following his graduation from the United States Naval Academy (1945). He remained in the Naval Reserve and served during the Korean War. He graduated from Cornell University Law School in 1950. In 1952 he began practicing law in Syracuse and remained in private practice until 1971 except for a two-year interlude in which he served as Corporation Counsel for the City of Syracuse. Judge Hancock was active in Republican Party affairs, having served as chair of the Onondaga County Republican Party (1963 and 1964), a delegate to the National Republican Convention (1964) and an unsuccessful candidate for United States Congress (1966). Governor Rockefeller appointed Judge Hancock to the Supreme Court in 1971, and later that year he was elected to a full term. He was appointed Administrative Judge, Fifth Judicial District (1977) and was designated Associate Justice of the Appellate Division, Fourth Department (1977, 1978, and 1983) before being reelected to another term as Supreme Court Justice. Judge Hancock served from 1983 through 1986 as a member of the Committee to Regularize Bar Admission Procedures. Governor Cuomo appointed Judge Hancock to the Court of Appeals in 1986. He served as Associate Judge until 1993, when he reached the mandatory retirement age.68 JOSEPH J. BELLACOSA (1987–2000)

Judge Bellacosa was born in Brooklyn, New York, in 1937. He graduated from St. John’s University School of Law (1961) and served as law secretary to Hon. Marcus G. Christ, Presiding Justice of the Appellate Division, Second Department (1963–1970). In 1970, he returned to St. John’s University as Assistant Dean of the School of Law and Professor of Law. He has authored numerous articles, as well as the

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A Brief Overview

Practice Commentaries to McKinney’s Criminal Procedure Law of the State of New York. Judge Bellacosa’s institutional attachment to the Court of Appeals began in 1975 when he was appointed Chief Clerk to the Court of Appeals and served in that capacity and as Counsel to the Court through 1983. He chaired the New York State Sentencing Guidelines Committee (1985–1987). He first came to the bench as a judge of the Court of Claims (1985) and served as Chief Administrative Judge of the New York Unified Court System (1985–1987). In 1987, Governor Cuomo appointed him an Associate Judge of the Court of Appeals. While on the Court, he chaired the American Bar Association Section on Legal Education and Admissions to the Bar (1992–1996) and was responsible for implementing case screening and other internal procedures in the Court of Appeals. Judge Bellacosa served until 2000 when he retired from the bench to become Dean of the St. John’s University School of Law.69 GEORGE BUNDY SMITH (1992–PRESENT)

Judge George Bundy Smith was born in 1937 in New Orleans, Louisiana. He graduated from Yale University and Yale Law School in 1962. He also earned a Ph.D. in government from New York University (1974). Judge Smith was a staff attorney for the NAACP (1962–1964). He later served as law secretary to Hon. Jawn Sandifer, Civil Court (1964–1967), Hon. Edward Dudley, Justice, Supreme Court (1967–1971), and Hon. Harold Stevens, Presiding Justice, Appellate Division, First Department (1972–1974) (see biography, supra). He also served as Administrator of Model Cities, New York City from 1974 through 1975. His career on the bench began with an interim appointment to the Civil Court of New York City in 1975. He was later elected to a full term on that bench. In 1979, he was elected Justice of the Supreme Court. He was designated an Associate Justice of the Appellate Division, First Department, where he served until 1992 when Governor Cuomo appointed him to the Court of Appeals. He is the author of a number of publications including a text for high school students, You Decide: Applying the Bill of Rights to Real Cases (New York: Critical Thinking Books and Software, 1992). He is also a founding member of the Metropolitan Black Bar Association and former president of the Harlem Lawyers Association.70 HOWARD A. LEVINE (1993–2002)

Judge Levine was born in Troy, New York, in 1932. He graduated from Yale University and Yale Law School in 1956 and was admitted to the New York Bar that

A Brief Overview 35

year. He served as an assistant district attorney for Schenectady County (1961–1966) and was elected to a four-year term as its District Attorney in 1966. He was first elected to the bench in 1970 as Schenectady County Family Court Judge. He remained on the Family Court until 1981 when he was elected to the New York Supreme Court. He was designated Associate Justice of the Appellate Division, Third Department, in 1982 and served there until Governor Cuomo appointed him to the Court of Appeals in 1993. Judge Levine was particularly active in family court matters before being appointed to the Court of Appeals. Among other professional activities, he was president of the Association of Family Court Judges of the State of New York (1979–1980) and a member of both the New York State Temporary Commissions on Child Welfare (1974–1982) and on Recodification of the Family Court Act (1980–1984).71 Judge Levine retired at the end of 2002, having reached the mandatory retirement age. CARMEN BEAUCHAMP CIPARICK (1994–PRESENT)

Judge Carmen Beauchamp Ciparick, the first woman of Hispanic heritage to serve on the state judiciary, was born in New York City in 1942. She graduated from Hunter College in 1963 and St. John’s University School of Law in 1967. She became a staff attorney with the Legal Aid Society of New York City. She later became assistant counsel for the Office of the Judicial Conference (1969), Chief Law Assistant of the New York City Criminal Court (1972) and counsel in the office of the New York City Administrative Judge (1974). Her first experience on the bench came in 1978 when she was appointed Judge of the New York City Criminal Court. Judge Ciparick was first elected to office in 1982 as Justice of the Supreme Court. She held that position until appointed by Governor Cuomo to the Court of Appeals in 1994. Judge Ciparick has served in a variety of leadership positions in the Puerto Rican Bar Association and as a member of the New York State Commission on Judicial Conduct (1985–1993).72 RICHARD C. WESLEY (1997–2003)

Judge Wesley was born in Canandaigua, New York, in 1949. A graduate of the State University of New York at Albany (1971) and the Cornell Law School (1974), he engaged in private practice for eleven years in Geneseo, New York, upon his admission to the bar in 1975. He was active in the legislative process, serving as assistant counsel and chief legislative aide to Assembly Minority Leader James L. Emery of Geneseo (1979–1981). In 1982, he was elected to the first of two terms in the New York State Assembly, representing Livingston, Allegany, and Ontario counties.

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A Brief Overview

In 1986, Judge Wesley was elected to the Supreme Court. While serving on the court, he was intimately involved with developing and implementing programs to provide alternatives to incarceration in Monroe and other counties. He was named Supervising Judge of the judicial district’s criminal courts in 1991. He was appointed to the Court of Appeals by Governor Pataki in 1997. He retired in 2003 to accept an appointment to the United States Court of Appeals for the Second Circuit.73 ALBERT M. ROSENBLATT (1998–PRESENT)

Judge Rosenblatt was born in New York City in 1936. He graduated from Harvard Law School in 1960. He entered public service as an assistant district attorney for Dutchess County in 1964 and served until he was elected District Attorney in 1969. As District Attorney, he served as President of the New York State District Attorneys’ Association (1974–1975). He was reelected to that post before being elected Dutchess County Judge (1976–1981) and Supreme Court Justice (1982–1987). Judge Rosenblatt was the Chief Administrative Judge from 1989 through 1998, after which he was designated to sit on the Appellate Division, Second Department. He was appointed to the Court of Appeals by Governor Pataki in 1998. Judge Rosenblatt has not only served on the New York State Bar Journal Board of Editors, but has also authored articles on a variety of topics including disability law, search warrants, court history, and due process. He is also the coauthor of a treatise on appellate practice and serves as the president of the Historical Society of the Courts of the State of New York.74 VICTORIA A. GRAFFEO (2000–PRESENT)

Judge Graffeo was born in 1952 in Rockville Centre, New York. After her graduation from Albany Law School (1977), she engaged in the general practice of law in Colonie, New York. She served as assistant counsel to the New York State Division of Alcoholism and Substance Abuse (1982) and as counsel and then chief counsel to the New York State Assembly Minority Leader from 1984 through 1995. She was appointed Solicitor General of the State of New York by Attorney General Dennis Vacco in 1995 and served in that position until Governor Pataki appointed her to fill a vacancy on the Supreme Court in 1996. She was elected to a full term later that year and was later designated a Justice on the Appellate Division, Third Department (1998). She served as a Supreme Court Justice until the Governor appointed her to the Court of Appeals in 2000. Judge Graffeo was a member of the Unified Court System’s Committee to Promote Public Trust and Confidence in the Legal System and chaired the Third Judicial District Gender Fairness Committee.75

A Brief Overview 37 SUSAN PHILLIPS READ (2003–PRESENT)

Judge Read was born in 1947 in Ohio. She attended Ohio Wesleyan University and received her law degree from University of Chicago Law School in 1972. She served with the United States Atomic Energy Commission in Maryland, as a staff attorney at the Central Administration of the State University of New York (1974–1977), and as in-house counsel with the General Electric Company (1977–1985), as well as engaging in private practice in Albany, New York. In 1995, she was appointed deputy counsel to Governor Pataki, who subsequently nominated her in 1998 to the Court of Claims, where she was designated by the Governor as its Presiding Judge. In early 2003, the Governor appointed her as an interim Associate Judge of the Court of Appeals, and later in January, she was nominated and confirmed for a full term.76 ROBERT S. SMITH (2004–PRESENT)

Robert S. Smith, Associate Judge of the Court of Appeals, was born in New York City in August 1944 and grew up in Massachusetts and Connecticut. He graduated from Stanford University (B.A. 1965, with great distinction) and Columbia Law School (LL.B. 1968, magna cum laude), where he was editor-in-chief of the Law Review. From 1968 to 2003 he practiced law in New York City with the firm of Paul, Weiss, Rifkind, Wharton & Garrison, taking a one-year leave of absence in 1980–81 to serve as Visiting Professor from Practice at Columbia Law School. He was a Lecturer in Law at Columbia Law School from 1981 until 1990. One June 1, 2003, he became and individual practitioner and Special Counsel to the firm of Kornstein Veisz Wexler & Pollard. On November 4, 2003, he was appointed by Governor George E. Pataki to the Court of Appeals, and he was confirmed by the State Senate on January 12, 2004.77

2. Jurisdiction of the Court of Appeals

THERE HAVE BEEN a number of changes in the jurisdiction of the Court since 1932. The 1943 amendments to Article VI of the New York State Constitution removed the provision that had authorized the Legislature to restrict the Court’s jurisdiction, replacing it with a provision limiting the Legislature’s authority to abolish appeal of right based on dissent, reversal, or modification and instead authorized appeal in such cases by permission of the Appellate Division or the Court of Appeals (Article VI § 3[b][6]) and authorized direct application to the Court in a proper case (Article VI § 3[a]). The 1943 amendments also extended the stipulation for judgment absolute, which had previously been limited to an Appellate Division order granting a new trial in an action, to such an Appellate Division order in a special proceeding (Article VI § 3[b][3]), and gave the Court of Appeals authority to review questions of fact in matters in which a final judgment or order is entered by the Appellate Division after it reversed or modified a final or interlocutory determination in an action or special proceeding and made new findings of fact (Article VI § 3[a]). An amendment to the Judiciary Article approved in 1951 and now contained in Article VI § 3(b)(5) permitted the Court of Appeals to grant leave from nonfinal orders of the Appellate Division in special proceedings involving administrative agency determinations. The Judiciary Article was revised in 1961. Article VI § 3(b)(7) excepted a case in which construction of the Constitution of New York or of the United States was directly involved from the general rule that appeal from an order of the Appellate Division in a case which originated in a lower court could be taken

Jurisdiction 39

only if the Appellate Division certified that in its opinion the question of law involved ought to be reviewed by the Court of Appeals. In 1977 the voters approved an amendment now contained in Article VI § 22(d) which established the Commission on Judicial Conduct, and authorized the Court of Appeals to review that body’s findings of fact and conclusions of law on direct appeal from the Commission (I.C, below), and in 1985 the voters approved an amendment permitting the Court to accept questions of law certified to it by the United States Supreme Court, a Federal Court of Appeals, or a court of last resort of another state (see subdivision I.D, below).

I. Appeals as of Right Directly to the Court of Appeals A. Where the Only Question Is the Constitutional Validity of a Statute Constitution Article VI § 3(b)(2) authorizes an appeal as of right from a judgment or order of a court of record of original jurisdiction which finally determines an action or special proceeding where the only question involved on the appeal is the validity of a New York State or Federal statute under the New York State or United States Constitution and directs that on any such appeal only the constitutional question shall be considered and determined by the Court. CPLR § 5601(b)(2) mirrors the language of the Constitution in this respect, as did Civil Practice Act § 588(4). Courts of record of original jurisdiction as defined in Constitution Article VI, § 1(b) include the supreme court, the court of claims, the county court, the surrogate’s court, the family court, the courts of civil and criminal jurisdiction of the City of New York, and such other courts as the Legislature may determine shall be courts of record. Judiciary Law § 2 defines courts of record to include the above listed courts and each city court outside the City of New York (cf. Uniform City Court Act § 2) and the district court in each county or portion thereof in which such court shall be established (see also Uniform District Court Act, § 102). But it is not clear whether an appeal from a judgment entered by a court of original instance pursuant to an order of the Appellate Term is directly appealable: compare Asheroff v. Board of Education, 25 N.Y.2d 721 (1969) and 29 N.Y.2d 538 (1971) which reviewed such a judgment with Martin v. Ivemey, 34 N.Y.2d 593 (1979) which dismissed such an appeal. The Court of Appeals has consistently applied the “only question” limitation, holding in Lapchak v. Baker, 298 N.Y. 89, 94 (1948) that it could not consider on direct appeal an issue other than the constitutionality of a statute which the

40

Jurisdiction

court of original jurisdiction had considered; accord: Matter of Wallace v. New York State Insurance Department, 6 N.Y. 2d 843 (1959); Matter of Friedman v. Cuomo, 39 N.Y. 2d 81,85 (1976); People v. Cunningham, 68 N.Y. 2d 714 (1986); Fine v. Commissioner of Department of Consumer Affairs, 75 N.Y. 2d 863 (1990). Thus direct appeal is not available when the facial validity of the statute is not the only question involved, as when there is also involved a question concerning interpretation of the statute, Matter of Schneider v. Wyman, 30 N.Y. 2d 956 (1972), and in such a case the appeal may be transferred pursuant to Constitution Article VI § 5(b) to the appropriate Appellate Division, Stilley v. New York State Department of Social Services, 90 N.Y. 2d 927 (1997); First Federal Savings & Loan Association v. Niznik, 89 N.Y. 2d 855 (1996); Muka v. Greene, 56 N.Y. 2d 855 (1982). A local law is a statute within the meaning of the governing constitutional and statutory provisions, F. T. B. Realty Corp. v. Goodman, 300 N.Y. 140, 145 (1949) but a rule of the Commissioner of Corrections governing consultations with inmates of a state hospital is not, People v. McNeill, 303 N.Y. 464 (1952).

B. In Death Penalty Cases New York’s death penalty for murder in the first degree was held unconstitutional in People v. Smith, 63 N.Y. 2d 41 (1984) and People v. Davis, 43 N.Y. 2d 17 (1977) and the strong convictions of Governors Hugh Carey and Mario Cuomo that the death penalty should never be imposed resulted in their vetoing fifteen times during their twenty years as Governor statutes passed by the Legislature to remedy the defects. Thus, it was not until George Pataki took office as Governor and approved Chapter 1 of the Laws of 1995 which enacted CPL § 400.27 and amended CPL § 470.30 that a death penalty again became a possibility. Constitution Article VI § 3 (a) authorizes an appeal to the Court of Appeals in a criminal case where the judgment is one of death and excepts a death penalty judgment from its limitation of Court of Appeals jurisdiction to review of questions of law. Article VI § 3 (b) (1st unnumbered paragraph) provides that such an appeal may be taken “directly from a court of original jurisdiction.” Those provisions are implemented by CPL § § 450.70, 450.80, and 470.30. Section 450.70 provides for direct appeal to the Court of Appeals as of right from a judgment including a sentence of death or from an order denying a motion to vacate such a judgment or to set aside such a death sentence. CPL § 450.80 authorizes such an appeal by the people from an order vacating or setting aside a sentence of death, and CPL § 470.30(2) explicitly provides that direct appeal

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to the Court of Appeals of a judgment including a sentence of death may not be waived. CPL § 400.27 established the procedure for determining sentence upon conviction for murder in the first degree. It provides for proof by the people of aggravating factors and proof by the defendant of mitigating factors as those terms are defined in the section, and precludes a death sentence unless the jury unanimously finds that the aggravating factors substantially outweigh the mitigating factors established. CPL § 470.30(1) directs that review by the Court of Appeals be on the record on the same basis as intermediate appellate courts review judgments and orders of criminal courts and includes reversal or modification on the law, on the facts, or as a matter of discretion in the interest of justice; and it may do so notwithstanding that the error was not protested at trial, if it deprived defendant of a fair trial (see People v. Turriago, 90 N.Y. 2d 77 [1977], rearg. den., 90 N.Y. 2d 936 [1997]). Subdivisions (3) and (4) require the Court of Appeals to determine whether a sentence of death was based on any legally impermissible factor, whether the sentence is disproportionate to the penalty imposed in similar cases, the cases it took into consideration in determining proportionality, the aggravating and mitigating factors established in the record, and whether the decision to impose the death penalty was against the weight of the evidence. (See chapter 17, infra, for a more extensive discussion of the death penalty.)

C. From a Determination of the Commission on Judicial Conduct 1. CONSTITUTION ARTICLE VI, § 22, 23, 24 AND RELATED PROVISIONS

As amended in 1978, Article VI, Section 22(d) of the New York Constitution authorizes the Court of Appeals to review the findings of fact and conclusions of law of the Commission on Judicial Conduct on the basis of the record of proceedings before the Commission and to admonish, censure, remove, or retire a judge of the unified court system, to impose a less or a more severe sanction than the Commission had determined, or to impose no sanction. However, the procedure for discipline and removal of judges had undergone a number of changes prior to the present provision. Prior to 1932 the Constitution provided, in Article VI, Section 11, that judges of the Court of Appeals and justices of the Supreme Court could be removed by concurrent resolution of both houses of the Legislature on a vote of two-thirds of all of the members elected to each house. All other judicial officers, except justices of the peace and judges or justices of inferior courts not of

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record, could be removed by the affirmative vote of two-thirds of the members of the Senate on recommendation of the Governor, but such removal had to be preceded by a hearing and solemnized by the entry on the legislative journal of the votes of the senators, see Matter of Silkman, 88 A.D. 102, 104–105 (1903). Effective January 1, 1948, former Sections 9-a and 11 were replaced by Article VI, Section 22, which created the Court on the Judiciary, consisting of the Chief Judge and the senior associate judge of the Court of Appeals and one justice of the Appellate Division in each judicial department designated by a majority of the justices of such Appellate Division. The section required the affirmative concurrence of not fewer than four members for removal, and provided that the Court could disqualify a judge or justice removed from office from holding any public office of the state and that removal proceedings or the removal of the judge would not prevent his or her indictment and punishment according to law. It also provided that the Chief Judge of the Court of Appeals could convene the Court on the Judiciary upon his or her own motion, required the Chief Judge to convene the Court upon written request by the Governor or by a presiding justice of the Appellate Division or by a majority vote of the executive committee of the New York State Bar Association, and it authorized the Court on the Judiciary, in its discretion, to suspend the judge or justice from exercising office pending determination of the proceeding. It required further that after the Court had preferred charges, the presiding officer of the Court, before a hearing on removal for cause was commenced, give written notice to the Governor, the Temporary President of the Senate, and the Speaker of the Assembly of the name of the judge or justice against whom charges had been preferred, the nature of the charges, and the date set for hearing, which could not be fewer than sixty days after the giving of such notice. Moreover, if any member of the Legislature preferred the same charges against the judge or justice within thirty days after receipt of such notice, and if the charges were entertained by majority vote of the Assembly, the proceedings before the Court on the Judiciary would be stayed pending determination of the Legislature; such determination would be exclusive and final. Finally, the section provided that a judge of the courts for the City of New York established pursuant to Constitution Article VI, Section 15, of the district court, or of a town, village, or city court outside the City of New York could be removed in the manner provided by law after due notice and hearing by the Appellate Division of the Judicial Department of his or her residence. Additional provisions for removal of justices and judges are contained in Sections 23 and 24 of Article VI adopted effective September 1, 1962, which are still in effect. Section 23 states that judges of the Court of Appeals and justices

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of the Supreme Court can be removed by concurrent resolution of both houses of the Legislature if two-thirds of the members elected to each house concur, that judges of the Court of Claims, the County Court, the Surrogate’s Court, the Family Court, the Courts for the City of New York established pursuant to Section 15 of Article VI, the District Court, and such other courts as the Legislature may determine, can be removed by the Senate on recommendation of the Governor, if two-thirds of all members elected to the Senate concur. However, any judge or justice can be removed under the section only for cause, and only after being served with a statement of the cause alleged and having had an opportunity to be heard. The cause of removal must be entered on the journals, together with the yeas and nays on removal. Section 24 of Article VI gave the Assembly the power of impeachment by vote of a majority of its elected members, the court for trial of impeachment to be composed of the president of the Senate, a majority of the members of the Senate, and the judges of the Court of Appeals, or a majority of them, provided that no judicial officer shall exercise his or her office after articles of impeachment against him or her have been referred to the Senate, and that conviction requires the concurrence of two-thirds of the members present and can include disqualification to hold any public office under the state, but that the person impeached remains liable to indictment and punishment according to law. The section clearly contemplates impeachment of judges for it expressly states that “[n]o judicial officer shall exercise his office after articles of impeachment against him shall have been preferred to the senate, until he shall have been acquitted.” In fact, prior to adoption of the section impeachment proceedings had been brought against a number of judges. See Lincoln, The Constitutional History of New York, 4: 579, 582, 585, 586, 605 and 607 and Cannon, “The New York Court on the Judiciary 1948 to 1963,” 28 Albany Law Review 1,3 (1964), only one of which resulted in removal. As defined in People ex rel Robin v. Hayes, 82 Misc. 165 (1913), affd. 163 A.D. 725 (1914), app. dismd. 212 N.Y. 603 (1914), which involved impeachment of the then governor, the Court held that impeachment is a judicial power vested in the Assembly and that when the Assembly exercises that power, it is free of control by the executive or the courts; see also People ex rel McDonald v. Keeler, 99 N.Y. 463, 480–481 (1885). Section 22 was amended, effective November 3, 1975. The 1975 revision continued the Court on the Judiciary but limited its composition to five justices of the Appellate Division designated by the Chief Judge of the Court of Appeals. The 1978 revision, as had the 1975 revision, provided for removal of “any judge or justice of the unified court system, in the manner provided by law,” permitted admonishment, censure, or removal for cause, “including, but not limited

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to, misconduct in office, persistent failure to perform his duties, habitual intemperance and conduct, on or off the bench, prejudicial to the administration of justice” or retirement “for mental or physical disability preventing the proper performance of his judicial duties.” Section 22 was again amended, effective April 1, 1978 (see Section 36-a). As constituted by the 1978 revision, the Commission on Judicial Conduct consists of eleven members, four appointed by the Governor, one by the Temporary President of the Senate and one by the minority leader of the Senate, and one by the Speaker of the Assembly and one by the minority leader of the Assembly, and three by the Chief Judge of the Court of Appeals. Of the members appointed by the Governor, one must be a member of the New York Bar but not a judge or justice, one a judge or justice of the unified court system, and two to be neither members of the bar nor a justice or judge, active or retired. Non-lawyer members were included in order to build up public confidence in the discipline system and correct the suspicion that the system was designed primarily to protect judges against complaints. New York [State] Temporary Commission on the State Court System, And Justice for All (Albany: The Commission, 1973), Part II, p. 61. Of the members appointed by the Chief Judge, one must be a justice of the Appellate Division, two must be judges or justices of courts other than the Court of Appeals or Appellate Divisions, and none of the appointees of the legislative leaders can be a justice or judge, active or retired. The functions, powers, and duties of the Commission are governed by Article 2-A of the Judiciary Law. Until the 1978 revision the Commission on Judicial Conduct had functioned solely as an investigatory body that tried its case before the Court on the Judiciary from whose decision there was no appeal. (Report of Joint Legislative Committee, Leg. Doc. [1973], no. 24, p. 15.) The 1978 revision eliminated the Court on the Judiciary, directed the Commission to receive, initiate, investigate, and hear complaints with respect to the conduct, qualifications, and fitness to perform or performance of the official duties of any judge or justice of the unified court system and gave it the power to determine whether the judge or justice should be removed or retired. The Court of Appeals was given the power of direct review of the determinations of fact and conclusions of law on the record of the proceedings before the Commission and to impose a lesser or more severe sanction than did the Commission or to impose no sanction. However, as to justices of town and village courts, subdivision (i) of Article VI, § 22 authorized the Legislature to provide for review of the Commission’s determination by an Appellate Division. Apparently, the Legislature has not yet done so, for review of removal proceedings by the Court of Appeals of proceedings brought before the Court on the Judiciary involving justices of town or village courts are

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reported in 45 N.Y.2d(a)–(ff), 47 N.Y.2d(a)–(iiii) and 49 N.Y.2d(a)–(cc) as are similar cases brought after 1978 by the State Commission on Judicial Conduct, e.g., Matter of Lenney, 71 N.Y.2d 456 (1988); Matter of Vincent, 70 N.Y.2d 208 (1987). Also to be noted are Section 132 of the former Code of Criminal Procedure, which authorized the Appellate Division to remove a district court judge, and Penal Law Section 195.00, which defines the misdemeanor of “official misconduct” as knowingly committing an unauthorized act or refraining from performing a duty imposed by law. The opinion in Matter of Sarisohn, 21 N.Y.2d 36 (1967), reviewed the debates of the 1938 constitutional convention and the legislative history of related statutes adopted in 1938 and 1949, and held that Section 132 of the Code of Criminal Procedure authorized an appeal to the Court of Appeals, limited, however, to whether cause was established by evidence “roughly the equivalent to the substantial evidence rule in administrative law.” Sarisohn again reached the Court of Appeals after remand, 22 N.Y.2d 808 (1969), remittitur amended 22 N.Y.2d 910 (1969), to state that the section did not violate the Fourteenth Amendment to the Federal Constitution, and the Supreme Court denied certiorari, 393 U.S. 1116 (1969). This section is no longer in effect. As to Penal Law § 195.00, the Court of Appeals, in People v. La Carruba, 46 N.Y.2d 658 (1979), dismissed the indictment, holding that the section did not authorize a removal proceeding based upon the Code of Judicial Conduct because discipline of judges for violation of standards not involving independently criminal conduct is reserved by Article VI, Section 22 of the Constitution to the Commission on Judicial Conduct. 2. DECISIONS OF THE COURT ON THE JUDICIARY AND THE COURT OF APPEALS

Of the cases decided by the Court of Appeals prior to 1932, three remain of interest: (1) Matter of Droege, 197 N.Y. 44 (1909), which held that it did not itself have jurisdiction to review the exercise of jurisdiction by the Appellate Division in removing a city magistrate from office pursuant to Constitution Article VI, § 17, Code of Criminal Procedure Section 132 (discussed above) and § 1401a of the Greater New York Charter; (2) Matter of Levy, 229 N.Y. 637 (1920), which simply affirmed the order of the Appellate Division, reported in 192 A.D. 550 that had reviewed in detail the provisions of prior constitutions and relevant statutes, and held in answer to the Appellate Division’s certified question that the Court had jurisdiction to remove a justice of the Municipal Court of the City of New York; and (3) People ex rel Swift v. Luce, 204 N.Y. 478, 491 (1912), because of its possible stare decisis effect, which held that notwithstanding the then provisions

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of Article VI, § 11 of the Constitution dealing with removal of judges “the Legislature can abolish a court and create a new court in place thereof, though the effect of the legislation is to remove judges from office.” The first cases to come before the Court on the Judiciary as constituted in 1948 were Matter of Sobel and Matter of Leibowitz, 8 N.Y.2d (a)–(j), in which the Court dismissed in the exercise of its discretion charges against two county court judges accused of making improper public statements, and Matter of Friedman, 12 N.Y.2d (a)–(e) (1963), app. dismd. for lack of a substantial Federal question 375 U.S.10 (1963); see also 24 N.Y.2d 528 (1969), app. dismd. 397 U.S. 317 (1970), in which the Court removed a Supreme Court Justice who had maintained in his judicial chambers financial records of his former law firm and former partnership and refused to surrender them to the investigatory body. The judge contended that the proceeding violated the Fourteenth Amendment of the United States Constitution. The Court on the Judiciary held that the proceeding had been conducted properly under the Rules of Procedure it had adopted pursuant to the Constitution. Some eighty or ninety removal cases have been dealt with by the Court on the Judiciary or by the Court of Appeals’ review of decisions of the State Commission on Judicial Conduct. In Matter of Osterman, 13 N.Y.2d (a)–(r) (1963), cert. denied 376 U.S. 914 (1964), the Court on the Judiciary held that “cause for removal was an inclusive not a narrowly limited term,” that Article I, § 6 of the New York Constitution (considered below) did not excuse the judge’s refusal to waive immunity and answer questions unrelated to his judicial service, and that his refusal constituted cause for removal pursuant to Article VI, § 22, since it demonstrated his unfitness for judicial office and unworthiness in refusing to cooperate in the official investigation. In Matter of Pfingst, 33 N.Y.2d (a)–(nn) (1973), the Court again held that the conduct for which removal is sought need not have occurred while the judge was holding office as a judge. In Matter of Waltemade, 37 N.Y.2d (a)–(ppp) (1975), the Court on the Judiciary held that it was authorized to provide by rule for trial before a referee whose decision was subject to its review. It noted further that its function was not punishment but the imposition of sanctions where necessary to safeguard the bench from unfit incumbents, 37 N.Y.2d at (lll); accord as to the Commission on Judicial Conduct, Matter of Duckman, 92 N.Y.2d 141, 152 (1998). Trial of Matter of Vaccaro, 42 N.Y.2d (a)–(n) (1977), was begun before the Court on the Judiciary as constituted prior to the 1975 revision, but, on motion of the judge, proceedings before that body were terminated and a new Court on the Judiciary was appointed. Of the cases thereafter decided by the Court on the Judiciary, only Matter of Byrne, 47 N.Y.2d (b) (1978), warrants comment. It held that while the

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complaint filed by the State Commission on Judicial Conduct served as the basis for its investigation, it could not limit the charge brought against the judge by the Court (cf. Matter of Gelfand, 70 N.Y.2d 211 [1987]), which without mentioning the Byrne decision held that due process required that a judge could not be removed because of misdeeds that had not been charged in the Commission’s complaint. With the 1978 amendment of Article VI, § 22, the Court of Appeals again became the body to review decisions of the State Commission and as it noted in Matter of Spector v. State Commission on Judicial Conduct, 47 N.Y.2d 462 (1979), the scope of its “review is unusually broad, encompassing as it does authority not only to ‘review the commission’s findings of fact and conclusions of law,’ but also to ‘impose a less or more severe sanction’ than the one determined by the commission, or [to] impose no sanction” (see also Matter of Dixon v. State Commission on Judicial Conduct, 47 N.Y.2d 523 [1979]). However, the Court of Appeals does not have jurisdiction to entertain an appeal of an order of the Commission on Judicial Conduct denying the judge’s motion to dismiss the Commission’s complaint, Matter of K, 92 N.Y.2d 1041 (1999); to review an order of the State Commission on Judicial Conduct denying a motion for reconsideration, Matter of LaBelle, 79 N.Y.2d 350 (1992); Matter of Lenney, 70 N.Y.2d 863 (1987); or to consider an objection not preserved during the proceeding before the Commission, Matter of Schiff, 83 N.Y.2d 689 (1994). To be noted also is the Court of Appeals’ holding in Matter of Mazzei, 81 N.Y.2d 568 (1993), that the Commission is without jurisdiction to charge a violation of the lawyer’s Code of Professional Responsibility as distinct from the Judicial Code of Conduct as set forth in 22 N.Y.C.R.R., Part 100. Three per curiam opinions issued by the Court deal with judicial campaigns: Matter of Watson, 100 N.Y.2d 290 (2003), Matter of Raab, 100 N.Y.2d 305 (2003), and Matter of Shanley, 95 N.Y.2d 310 (2002). Shanley held that “simply using the phrase ‘law and order’ in judicial campaign literature does not amount to misconduct.” Watson ruled that “[a] candidate’s statements must be reviewed in their totality and in the context of the campaign as a whole to determine whether the candidate has unequivocally articulated a pledge or promise of future conduct or decisionmaking that compromises the faithful and impartial performance of judicial duties”; and both Watson and Raab stated that “the Due Process clause guarantees litigants a fair and impartial Magistrate and the State, as steward of the judicial system, has the obligation to create and maintain a system that ensures equal justice and due process” and that “[o]nce elected to the bench, a judge’s role is significantly different from others who take part in the political process and, for this reason, conduct that

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would be appropriate in other types of campaigns is inappropriate in judicial elections.” Matter of Cornelius, 48 N.Y.2d 1014 (1980), is notable in that on the basis of a Federal indictment of a Family Court judge, the Court of Appeals on its own motion considered whether the judge should be suspended pending determination of the charge. It concluded that he should not be suspended. In Nicholson v. State Commission on Judicial Conduct, 50 N.Y.2d 597 (1980), petitioner sought to quash a subpoena issued by the Commission. Prohibition was denied because the subpoena had been issued in furtherance of the Commission’s investigation of the conduct of a judge and the information sought was reasonably related to a proper subject of inquiry. The Court of Appeals held, however, that it was improper to have sealed the record of the proceeding. Matter of Steinberg, 51 N.Y.2d 74, 83–84 (1980), Matter of Shilling, 51 N.Y.2d 397, 402 (1980), and Matter of Kuehnel, 49 N.Y.2d 465, 469 (1980), all held that removal of a judge did not require overt illegality or extreme moral turpitude since any “conduct on or off the Bench, inconsistent with proper judicial demeanor subjects the judiciary as a whole to disrespect and impairs the usefulness of the individual judge to carry out his or her constitutionally mandated function.” In Matter of Steinberg, supra, p. 83, the Court of Appeals agreed in principle “that the extreme sanction of removal should not be imposed absent truly egregious circumstances.” It therefore accepted the Commission’s recommendation of censure with respect to a judge who made racist remarks during court proceedings, Matter of Agresta, 64 N.Y.2d 327 (1985), and reduced the Commission’s removal sanction in Quinn v. State Commission on Judicial Conduct, 54 N.Y.2d 386 (1981), and Matter of Rogers, 51 N.Y.2d 224: in Quinn to retirement for disability of a judge who had been previously admonished for alcoholism but who had submitted his resignation from office, and in Rogers of a town court judge who was a dairy farmer and was not a lawyer, who had neglected his administrative duties. However, in Matter of Greenfield, 76 N.Y.2d 293 (1990), a four to two decision, it rejected the Commission’s censure sanction of the judge’s delay in resolving cases before him, in some cases for years because “[t]hese are failings but without more, not the kind of derelictions commonly associated with misconduct warranting formal penalties” (emphasis added). The additional factors that would justify sanctions would include defying administrative directives to subvert or attempting to subvert the system by falsifying records. In Matter of Washington, 100 N.Y.2d 873 (2003), a per curiam opinion, the Court applied Greenfield’s reasoning to sustain removal of a judge who “filed late, incomplete and false guaranty reports and maintained a persistent backlog, with some

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delays of longer than two years. Petitioner’s conduct demonstrated that she was either unwilling or unable to discharge her judicial duties and, as a result, the Commission’s determined sanction of removal was warranted.” In several cases, however, the Court of Appeals has imposed removal as the proper sanction when the Commission has recommended a lesser sanction, Matter of Sims, 61 N.Y.2d 349 (1984), and Matter of Shilling, supra; in several others it has reduced the Commission’s removal sanction to censure, Matter of Skinner, 91 N.Y.2d 142 (1997); Matter of Kiley, 74 N.Y.2d 364 (1989); Matter of Cunningham, 57 N.Y.2d 270 (1982); but in most cases it has confirmed a sanction of removal as recommended by the Commission. Illustrative of such confirmations, in addition to Washington, supra, are Matter of Aldrich, 58 N.Y.2d 279 (1983), confirming removal of a county court judge whose defense against charges that he used racist and vulgar language and threatened violence during court proceedings was based in part on his admission of alcoholism; Matter of Steinberg, supra, in which removal was confirmed with respect to a civil court judge who was found to have used the prestige of his office to persuade others to invest in private ventures and of misrepresenting his income on his Federal tax returns; Matter of Esworthy, 77 N.Y.2d 283 (1991) which confirmed removal of a family court judge who had addressed parties and their attorneys in intemperate and racial language and failed to inform litigants appearing before him of their rights, instead pressuring them to make admissions; and Matter of Schiff, supra, with respect to a judge of a village court who made racist remarks, failed to maintain adequate records or properly account for fines and surcharges, and who granted judgment to plaintiff in a civil case defended by a law firm one of whose partners was a town court justice who had dismissed traffic charges against the driver of a car who had been involved in an accident with the village court judge; see also Matter of Mulroy, 94 N.Y.2d 652 (2000); Matter of Romano, 93 N.Y.2d 161 (1999); Matter of Duckman, supra; Matter of Mogil, 88 N.Y.2d 749 (1996);Matter of Mazzei, supra; Matter of Cohen, 74 N.Y.2d 272 (1989); Matter of Lenney, supra; Matter of Vincent, supra; Matter of Gelfand, supra; Matter of Reeves, 63 N.Y.2d 105 (1984); and Matter of Sardino, 58 N.Y.2d 286 (1983). The standard for review by the Court of Appeals is preponderance of the evidence rather than clear and convincing evidence, Matter of Mogil, supra; Matter of Seiffert, 65 N.Y.2d 278 (1985), due deference being given to the Commission’s findings; Matter of Collazo, 91 N.Y.2d 251 (1998); Matter of Sims, supra. As to sanctions, the Court of Appeals has broad powers; the sanction need not be found shocking to one’s sense of fairness, Quinn v. State Commission on Judicial Conduct, 54 N.Y.2d 386 (1981). Since it is required to review

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the Commission’s findings of fact, the Court of Appeals review is unusually broad, Matter of Spector, supra, at 465, although apparently not so broad as to permit additional evidence to be presented before it, see Matter of Cunningham, supra, at 274. The judge’s failure to testify or to present any evidence may be considered on such review, Matter of Reedy, 64 N.Y.2d 299 (1985); Matter of Myers, 67 N.Y.2d 550 (1986); Matter of Conti, 70 N.Y.2d 416 (1987). The judge’s refusal may also be taken into account, through the Commission’s investigation and the proceeding before the referee to acknowledge the impropriety of his or her conduct, Matter of Duckman, supra, at 154. The fact that the judge has been elected to a different judicial office from the one he or she occupied when the improper conduct occurred does not proscribe removal from the newly elected office as a sanction, Matter of Bailey, 67 N.Y.2d 61 (1986). However, expiration of the judge’s term of office does not moot the proceeding, because a sanction of removal would render him or her ineligible for future judicial office (Matter of Mazzei, supra, at n.1). Therefore, the jurisdiction of the Court of Appeals and the Commission continue even after the judge resigns from office, if the Commission’s determination that he or she should be removed has been transmitted to the Chief Judge of the Court of Appeals, or if the Commission’s removal determination is transmitted to the Chief Judge within 120 days after receipt by the chief administrator of the Commission of the judge’s resignation (Judiciary Law, Section 47). 3. CONSTITUTION ARTICLE I, § 6

Article I, § 6 of the New York Constitution provides for forfeiture of office at the suit of the Attorney General of “any public officer” who refuses to sign a waiver of immunity against subsequent criminal prosecution. As construed by the Appellate Division, Third Department, People v. Doyle, 286 A.D. 276 (1955) and affirmed without opinion by the Court of Appeals, 1 N.Y.2d 732 (1956), the section was held not applicable to Doyle, then sitting as Surrogate, for refusing to waive immunity as to his prior office of District Attorney. Effective November 3, 1959, the section was amended to authorize forfeiture of office for refusal to testify concerning “the conduct of his present office or of any public office held by him within five years prior to such grand jury call to testify or the performance of his official duties in any such present or prior office.” Several Court of Appeals cases other than Doyle have considered Article I, § 6. In Matter of Cohen, 7 N.Y.2d 488 (1960), aff’d. sub nom Cohen v. Hurley, 366 U.S.117 (1961), reh.den. 370 U.S. 857, 374 U.S. 870, the Court of Appeals held, six judges to one, that an attorney who relied on the section in refusing to answer questions in good faith reliance on his privilege against self-incrimination could

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not be forced to waive immunity, but that as an attorney he was obligated to give full cooperation to the investigation and could not escape the consequences of his failure to do so. On appeal to the Supreme Court, Cohen’s disbarment was affirmed by a vote of six to three. However, the Cohen decision was overruled in Spevack v. Klein, 385 U.S. 511 (1967), reversing the decision of the New York Court of Appeals, 16 N.Y.2d 1048 (1965), which had held that records required by law to be kept by an attorney were not within the Fifth Amendment privilege. Matter of Gardner v. Broderick, 20 N.Y.2d 227 (1967) dealt with the section and the similarly worded provision of the New York City Charter and State v. Perla, 21 N.Y.2d 608 (1968), which considered the debates at the 1938 and 1949 constitutional conventions, held that the police officer in Gardner and the parking fee collector involved in Perla (both of whom refused to sign a waiver) could be removed from office for such refusal notwithstanding the Fifth Amendment to the Federal Constitution. Both were reversed by the United States Supreme Court, Perla in a one-line decision (392 U.S. 296 [1968]) citing its decision in Gardner (391 U.S. 273 [1968]), which held that discharge from office for failure to waive the Fifth Amendment privilege violated the Federal Constitution. See also Uniformed Sanitation Men Association v. Commissioner of Sanitation, 391 U.S. 280 (1968). Lefkowitz v. Turley, 414 U.S. 70 (1973), considered statutes with wording substantially similar to Article I, § 6. It held that testimony could be adduced under compulsion of the loss of office or contract or of being held in contempt, but that such testimony resulted in whatever immunity is required to supplant the privilege and consequently may not be used as a basis for prosecution and is not admissible in evidence. On the basis of Lefkowitz, the Court of Appeals held in People v. Avant, 33 N.Y.2d 265 (1973), accord People v. Leto, 33 N.Y.2d 952 (1974), that although violation of the constitutional privilege of one who is a “target” of a grand jury investigation would require dismissal of its indictment, the target is not immune from future prosecution or from loss of office provided only that in all subsequent proceedings that person’s constitutional rights are fully recognized.

D. On Questions Certified by a Federal or Out of State Court Such certified question matters are not direct appeals in the same sense as cases considered in the preceding three subdivisions, because a record has been created in the Federal or out-of-state court. They are, however, direct in the sense that they involve no prior consideration of the matters by a New York State court.

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The first efforts to establish a certified question procedure resulted from the Uniform Laws Annotated proposed law on the subject and took the form of a bill introduced in 1982 based on the ULA proposal. The bill was opposed by the Court of Appeals because the Legislature was without power to expand the jurisdiction of the Court, its jurisdiction being limited to Article VI, Section 3 to review as specified in that section (see Robbins, “The Uniform Certification of Questions of Law Act: A Proposal for Reform,” 18 Journal of Legislation 127, 166 ff [1992]). At the request of the Court of Appeals and the Law Revision Commission, the proposed constitutional amendment, instead of itself spelling out procedure, authorized the Court to “adopt and from time to time amend a rule to permit the Court to answer questions of New York law certified to it”; increased the courts authorized to certify question to include not only the Supreme Court of the United States and a court of appeals of the United States but also “an appellate court of last resort of another state”; and changed the basis for certification from “no controlling precedent in the decisions of the Court of Appeals of New York” to “not controlled by precedent in the decision of the courts of New York.” However, the amendment retained the requirement that the certified question “may be determinative of the cause then pending in the certifying court.” Those changes resulted from letters from the Court’s then clerk, Joseph Bellacosa, its then Associate Judge, Sol Wachtler, and the Law Revision Commission, id., at 167–170. On November 4, 1985, the voters ratified the proposed amendment which added paragraph (9) to Constitution Article VI, § 3(b), and effective January 1, 1986, the Court of Appeals implemented it by adopting 22 N.Y.C.R.R. § 500.17. The amendment did not contain the language used in the ULA proposal giving the court receiving a certified question authority to “answer, reject and modify” the question. Its language required no more than that the rule to be adopted “permit the court to answer questions” (emphasis supplied) and NYCRR § 500.17 subd.(d) authorized the Court of Appeals “on its own motion [to] examine the merits presented by the certified question, first to determine whether to accept the certification, and second, the review procedure to be followed in determining the merits.” To be noted also is subd. (f ), which requires the Clerk of the Court to notify the Attorney General in accordance with Executive Law § 17 if the certified question involves the constitutionality of an act of New York’s Legislature affecting the public interest. In the years since the certification procedure was adopted, more than twenty questions have been certified to the Court of Appeals, only one of which, Matter of Southeast Banking Corp., 93 N.Y.2d 178 (1999), certified by the Eleventh Circuit Court of Appeals, came from other than the Second Circuit Court of

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Appeals. Local Rule § 0.27 of the Second Circuit authorizes its certification “sua sponte or on motion of a party” of “an unsettled and significant question of state law that will control the outcome of a case pending before” that court. In five cases the Court declined to accept the certified question, in each case in a per curiam opinion. Rufino v. United States, 69 N.Y.2d 310 (1987) did not accept the damages issues tendered for review because those issues were currently before the Appellate Division and to accept the certified question would necessarily affect the ordinary state procedure then in progress for resolution of those issues. The case referred to, McDougald v. Garber, 132 Misc.2d 457, was affirmed by the Appellate Division (135 A.D.2d 80), but modified by the Court of Appeals, 73 N.Y.2d 246 (1989), in an opinion which held that loss of enjoyment of life was not to be separately fixed by the jury. Rather it was a permissible factor to be considered by the jury in assessing pain and suffering. Meanwhile, however, as the Court of Appeals noted (73 N.Y.2d at 256), the Second Circuit had held in Rufino v. United States, 829 F.2d 354 (1987), applying its prediction of New York law, that a separate award for loss of enjoyment of life should be allowed. Retail Software Services, Inc. v. Lashlee, 71 N.Y.2d 788 (1988), declined to answer the question whether New York’s Business Law § 686 dealing with one who sells or offers to sell a franchise in New York provided a basis for personal jurisdiction because defendants in the Federal action had apparently engaged in no activities in New York. Consequently, an answer to the certified question would not be determinative in the Federal action as required by the Constitution. Grabois v. Jones, 88 N.Y.2d 254 (1966), refused to accept an issue concerning the right of decedent’s second wife to ERISA payments where decedent’s prior marriage had never been legally dissolved, citing the rarity of the occurrence, the fact that the first wife appeared pro se and had submitted no brief, that the estate fiduciaries were mere stakeholders with no interest in the result, and that the interplay between Federal and State law in construing the ERISA statute was more appropriately to be determined by the Federal courts. In Yesil v. Reno, 92 N.Y.2d 455 (1998), the certified questions asked what contacts with New York of an Immigration and Naturalization Director located outside New York would give New York courts jurisdiction over the Director. The Court of Appeals declined to answer because of uncertainty whether the questions would be determinative, there being alternative ways to obtain jurisdiction over the Director so the answer might not be dispositive, and because the issue was unlikely to arise in state courts and as presented was overly generalized or abstract. And in Tunick v. Safir, 94 N.Y.2d 709 (2000), the Court, while noting the great value of the certification procedure, declined to answer a certified

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question raising the issue whether Penal Law § § 245.01 and 245.02, which proscribed photographs of nude bodies, was valid under New York’s Constitution, because that issue had not been raised, briefed, or argued in the Federal courts and therefore could not be responsibly considered when first briefed and raised in the Court of Appeals. Of note also is Goodlett v. Kaleshek, F3d (2000) (NYLJ 8/4/00 p. 25), a two to one decision of the Second Circuit in which Judge Feinberg dissented because the majority declined to certify a question of New York tort law to the Court of Appeals. Of the other cases responding to certified questions, only one—Kidney v. Kalmar Laboratories, 68 N.Y.2d 343 (1986)—the first case decided after the constitutional amendment—was dealt with in a per curiam decision; there was a concurring opinion in one—Wildenstein & Co. v. Wallis, 79 N.Y.2d 641 (1992); and a dissent in three—Bocre Leasing Corp. v. General Motors Corp., 84 N.Y.2d 685 (1995); Denny v. Ford Motor Company, 87 N.Y.2d 248 (1995); and Rooney v. Tyson, 91 N.Y.2d 685 (1998). Most of the answers to the certified questions by the Court of Appeals discussed only the New York law relating to the issue presented by the certified question, but some of the decisions also considered the certified question procedure. Thus, in Longway v. Jefferson County Board of Representatives, 83 N.Y.2d 17 (1993), which concerned how residence was to be determined for purposes of apportionment of districts under the Municipal Home Rule Law, the Court of Appeals noted that in view of the restricted nature of the question certified it need not address plaintiff’s contention that the Board’s apportionment plan was unconstitutional on its face. Bocre Leasing, supra, at page 691, held that a downstream purchaser could not recover in strict product liability and negligence against a manufacturer where the loss claimed flows from damage to the property itself. The Court noted that to allow such recovery where the product (here a helicopter) was unduly hazardous would in a sense contradict the certified question procedure which is designed and employed to provide certainty to and settlement of state law issues. Engel v. CBS, Inc., 93 N.Y.2d 195 (1999) dealt with the question whether in an action for malicious prosecution of a civil lawsuit where the plaintiff attorney’s representation of his client was actually undermined by the suit, the requirement of special injury could be satisfied where no provisional remedy is had against the defendant, the response of the Court of Appeals stated that on the facts given, it could not find the representation was in fact undermined and therefore answered the question in the negative. The Court noted, however, that the question of whether plaintiff could defeat a motion for summary judgment was not before it and would have to be decided by the Second Circuit based on the answer given.

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Rooney v. Tyson, supra, presented the question whether an oral personal service contract between a boxer and a trainer to last “as long as the boxer fights professionally” was for a fixed duration or a hiring at will presumed terminable at any time by either party. The Court—while noting that its role is confined by the precise and narrow question certified, that the matter was not a case or controversy, as such, in the state court system, and that the guidance it gives to the Federal court should be dispositive of the precise law question transmitted to it—held that in view of the above quoted language, the contract was for a definite duration and enforceable though oral. The certified question in Liriano v. Hobart Corporation, 92 N.Y.2d 232 (1998), was whether the manufacturer of a grinder that included a safety guard could be liable under a failure to warn theory in a case in which the substantial modification defense (removal of the guard) would preclude liability under a design defect theory and if so whether liability of the manufacturer was barred as a matter of law on the facts of the case, viewed in the light most favorable to the plaintiff. Answering the first part of the question in the affirmative, the Court of Appeals declined to answer the second part, noting that failure to warn liability is intensely fact specific, and would be appropriately addressed by the Second Circuit in light of the substantive law resolved by the answer to the first part of the question. The cases so far discussed concerned contract law (Rooney v. Tyson, supra), family and estate law (Grabois v. Jones, supra), damages (Rufino v. United States, supra), jurisdiction over out of state franchisors (Retail Software Services v. Lashlee, supra) and over an Immigration and Naturalization Services District Director whose office is located outside New York (Yesil v. Reno, supra), the definition of population for purposes of local legislative apportionment (Longway v. Jefferson County Board of Supervisors, supra) and tort law (Bocre Leasing Corp. v. General Motors Corp. and Liriano v. Hobart Corp., supra), and constitutional law (Tunick v. Safir, supra). The other questions answered by the Court of Appeals through April 1999 include: •

•

Arbitration: Westinghouse v. New York Transit Authority, 82 N.Y.2d 47 (1998), an arbitration clause that names as arbitrator an employee of a party but specifically provides that judicial review of the arbitrator’s decision is not against public policy. Banking law: Banque Worms v. Bank America International, 77 N.Y.2d 362 (1991), with respect to an electronic fund transfer mistakenly applied to the wrong account, the recipient is under no duty to make restitution if it made no misrepresentation and did not have notice of the transferor’s mistake.

56 •

•

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Conflict of laws: Tanges v. Heidelberg North America, Inc., 93 N.Y.2d 48 (1999), which held that Connecticut’s statute of repose barring an action for product liability not brought within ten years after the manufacturer parted with possession or control is substantive for the purpose of New York’s choice of law analysis and therefore bars plaintiff’s action brought in New York Federal court by a New York resident against the manufacturer and others for injury suffered in Connecticut. Contract law was the subject in Messner, Vetere, Berge, McNamee, Schmetterer Euro RSCG, Inc. v. Aegis Group, PLC, 93 N.Y.2d 229 (1999), which answered in the negative the question whether the part performance doctrine was adequately evoked by the claim that plaintiff took no action with respect to a preexisting written agreement because it was relying instead on defendant’s oral promise, and also held that only part performance by the party seeking to enforce an oral agreement is relevant. Contract law was also involved in West-Fair Electric Contractors v. Aetna Casualty and Surety Co., 87 N.Y.2d 148 (1995), which held a pay-when-paid provision in a contract between a general contractor and its subcontractor that transfers the risk of the owner’s default from the general contractor to the subcontractor is in violation of public policy as declared in Lien Law § 34. The law with respect to corporations was involved in Loengard v. Santa Fe Industries, Inc., 70 N.Y.2d 262 (1987), which held that there is no private cause of action under the Martin Act for fraud in relation to corporate merger. Insurance law was the subject of a number of cases: Kidney v. Kolmar Laboratories, Inc., 68 N.Y.2d 343 (1986), money advanced by insurer on behalf of its insured to the injured party is not “payment of money” within the meaning of New York Social Services Law § 104-b, which makes the validity of the lien turn on written notice of the lien prior to payment to the injured party. Insurance law was also the subject of the question certified in Home Insurance Company v. American Home Products Corp., 75 N.Y.2d 196 (1990), which answered in the negative the question whether New York would require an excess insurer to reimburse the insured for punitive damages awarded against the insured in a judgment of an out-of-state court because to do so would be contrary to New York’s public policy. Insurance law was also involved in Unigard Security Insurance Co. v. North River Insurance Co., 79 N.Y.2d 576 (1992), which held that in contrast to cases holding that a primary liability carrier can disclaim for breach of the prompt notice provision in the policy, breach of such a provision in a reinsurance policy furnishes no basis for disclaiming coverage unless the reinsurer can show that it was actually prejudiced by the delay. Based on that

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answer by the Court of Appeals, the Second Circuit in 4 F.3d 1049 (1993) held on review of the facts that Unigard, the reinsurer, had not shown that it suffered prejudice from the late notice.

Whether Lloyd’s insurance syndicate was doing business in New York when it issued insurance coverage to a New York insured or because it maintained a security fund as required by New York law was the issue involved in Landoil Resources Corp. v. Alexander & Alexander Services, 77 N.Y.2d 28 (1990). The question was answered in the negative by the Court of Appeals and on the basis of that answer the Second Circuit reversed the order of the district court, 925 F.2d 44 (1991), and directed that court to dismiss the action for lack of personal jurisdiction. Wildenstein & Co. v. Wallis, supra, held that neither New York’s Rule Against Perpetuities nor its common law rule against unreasonable restraints on alienation invalidated preemptive rights and future consignment interests in personal property (i.e., original paintings of renowned artists). It therefore answered the first two certified questions in the negative and held it unnecessary to answer the other questions certified. Involved in Hertz Corp. v. City of New York, 80 N.Y.2d 565 (1992), was statutory construction: whether state legislation concerning car rental practices preempted the enactment of legislation on the subject by a municipality. The Court answered in the negative, holding that while the State statutes referred occasionally to rental vehicles, they did not regulate the amount that could be charged to residents of various areas within the State. Three cases involved torts: Gonzalez v. Armac Industries, 81 N.Y.2d 1 (1993); Madden v. Creative Services, 84 N.Y.2d 738 (1995); and Denny v. Ford Motor Co., 87 N.Y.2d 248 (1995). Gonzalez held that under General Obligations Law § 15–108(c) a pretrial agreement between an injured plaintiff and one of several tortfeasors in return for a limited payment by the latter was a release within the meaning of the section and relieved the settling tortfeasor from contribution liability to any other person, while forfeiting the latter’s right to contribution from any other tortfeasor. In Madden, the Court of Appeals, which had accepted the certified question because it involved a state law issue of interest, held that the client had no cause of action, on the grounds of violation of the attorney-client privilege, against an intruder who had broken into the office of the client’s lawyer in order to inspect the client’s documents, and the Second Circuit then affirmed dismissal of the claim, 51 F.3d 11 (1995). Denny held that strict product liability and breach of implied warranty are not identical causes of action, and that it is hypothetically possible for there to be liability for breach of implied

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warranty even though strict product liability is not established. However, the Second Circuit denied Ford’s application for retrial of the action because it could have raised the issue in the earlier proceedings before the district court, 79 F.3d 12 (1996). Interestingly, although the Court of Appeals presumably had discretion under 22 NYCRR § 500.17 to refuse to accept the certified question, since the Federal district court had rejected Ford’s motion for a new trial on the ground that the question it sought to raise had been waived (see 87 N.Y. 2d 250), its failure to do so clarified the law for both Federal and State courts! Not until 1999, however, was a question certified by other than the Second Circuit. Matter of Southeast Banking Corp. v. First Trust of New York, 93 N.Y.2d 178, supra, dealt with a question certified by the Eleventh Circuit Court of Appeals which asked “what, if any, language does New York law require in a subordination agreement to alert a junior creditor to its assumption of the risk and burden of the senior creditors’ post–petition interest?” The Court of Appeals noted that the question did not call for the customary affirmative or negative response nor had it been previously considered by New York courts: “within the procedural boundaries imposed by the problem, by adopting the general framework of the so-called ‘Rule of Explicitness,’ that New York law would require specific language in a subordination agreement to alert a junior creditor to its assumption of the risk and burden of allowing the payment of a senior creditors’ post-petition interest demand.” What stands out from the foregoing analysis and from the number of cases in which the response of the Court of Appeals to a certified question has been cited by New York’s trial and intermediate appellate courts (e.g. Shepard’s citations to the West-Fair decision, supra) is that the procedure is beneficial not only to the Federal circuit courts but also to New York’s courts in clarifying previously unclear issues. In only one case, Rufino v. United, supra, was the Federal holding contradicted by a later decided Court of Appeals case and that occurred only after the question presented by the case was declined by the Court of Appeals. Would it not be better in such situations, rather than declining, to expedite the pending State case so that the Court of Appeals could review both it and the federally certified question together? It is also somewhat surprising that in all the years since the 1985 constitutional amendment authorizing question certification not only by Federal courts but also by an appellate court of last resort of another state, no questions have been presented by the appellate courts of other states or by the United States Supreme Court. See Lehman Brothers v. Schein, 416 U.S. 386, 390 n.5 (1974). Query also whether there should not be a Federal statute authorizing certification by a state court of last resort to Federal circuit courts of questions arising in State court proceedings under Federal statutes

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which are of less than general application, cf. Modave v. Long Island Jewish Medical Center, 501 F.2d 1065, 1074, n.12 (1974).

E. From a Final Judgment, Administrative Agency Determination, or Arbitration Award When the Appellate Division Made an Order on a Prior Appeal Which Necessarily Affects the Final Judgment, Determination, or Award CPLR § 5601 authorizes direct appeal to the Court of Appeals as of right from a final judgment entered in a court of original instance, from a final determination of an administrative agency, or from a final arbitrator award or from an order of the Appellate Division that finally determines an appeal from such a judgment or determination, in a case where (1) the Appellate Division has made a nonfinal order on a prior appeal in the action and that nonfinal order necessarily affects the judgment, determination, or award, and (2) from which two justices have dissented or (3) that directly involves construction of the Constitution of the State or of the United States.1 The right of direct appeal from such a judgment, determination, or award stems not from explicit wording of a constitutional provision but from the anomaly of requiring a second appeal to the Appellate Division before the issues determined on the first appeal and which necessarily affect the final judgment could be reviewed by the Court of Appeals, Gambold v. MacLean, 254 N.Y. 357, 359 (1930); Buffalo Electric Co. v. State of New York, 14 N.Y.2d 453 (1964); see First Westchester National Bank v. Olsen, 19 N.Y.2d 342 (1967). The inclusion of an arbitration award in the provision was a result of the Court of Appeals decisions in Matter of Local 345 Retail Store Employers Union v. Heinrich Motors, 61 N.Y.2d 900 (1984), and Matter of Ford v. Civil Source Employers Assn., 62 N.Y.2d 799 (1984), that an arbitration award was not a final determination of an administrative agency and, therefore, the CPLR § 560 as it then read did not include a final arbitration award. A study by the Advisory Committee on Civil Practice followed,2 and resulted in the enactment of chapter 316 of the Laws of 1986, effective January 1, 1987, amending CPLR § 5601(d) to include a final arbitration award. When a nonfinal order “necessarily affects” the final determination is not entirely clear. The quoted words became part of CPLR § 5601(d) at the urging of the Advisory Committee on Practice and Procedure of the Temporary Commission on the Courts, Second Preliminary Report, N.Y. Legis Doc 1958, No. 13, p. 105, which noted that the Court of Appeals was familiar with those words, which had also been part of Civil Practice Act § 580. In Matter of Aho, 39

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N.Y.2d 241, 248 (1976), the Court of Appeals held denial of a motion for change of venue necessarily affected the final judgment because reversal “would strike at the foundation” of the final judgment since the proceeding would have been submitted to a different court. Buffalo Electric Co. v. State of New York, supra at 461, found a sufficient nexus between an Appellate Division order eliminating a defense of release and the final judgment to treat them as a procedural entity because the earlier order “had a vital influence on the final judgment as entered” (see also Long v. Forest-Fehlhaber, 55 N.Y.2d 154, 158, n.5 [1982]). But an order dealing with in what state a deposition should be held did not necessarily affect the outcome of the trial there being “no reason to believe that the award would have been different if the place of hearing had been changed,” Matter of Marchant v. Mead-Morrison Mfg. Co., 252 N.Y. 284, 304 (1929). Cases involving the orders of an administrative agency can be complicated. The matter of whether or not a prior nonfinal order of the Appellate Division necessarily affects the agency’s determination depends upon whether the orders of the agency in question (e.g. the Workers’ Compensation Board) are subject to review by the Appellate Division or in an Article 78 proceeding. But in Matter of Civil Service Employees Assn. v. Newman, 61 N.Y.2d 641 and 1001 (1983) (see also 88 A.D.2d 685), the Court of Appeals held at p. 641 that “the only vehicle [for] review of the [prior] nonfinal order of the Appellate Division” is direct review of the prior order on appeal after entry of the administrative agency’s final determination (see also Matter of Berg v. Marsh, 293 N.Y. 766 [1944], and Matter of Albano v. Hammond, 267 N.Y. 590 [1935]). Note, however, that if Article 78 review of the administrative agency’s determination made after a prior Article 78 proceeding is sought the prior nonfinal order of the Appellate Division is not reviewable on direct appeal to the Court of Appeals, Matter of Acres Storage Company v. Chu, 73 N.Y.2d 914 (1989); Matter of Concerned Citizens v. Town Board, 54 N.Y.2d 957 (1981); Parker v. Rogerson, 35 N.Y.2d 751 (1974).

F. From an Order of the Appellate Division Granting a New Trial in an Action or a New Hearing in a Special Proceeding Where the Appellant Stipulates That, Upon Affirmance, Judgment Absolute or Final Order Shall Be Rendered Against Him The above heading is a verbatim statement of Constitution Article VI, § 3(b)(3) after a constitutional amendment became effective January 1, 1944. Prior to the amendment, appeal as a right was authorized only on a stipulation as to a new trial order in an action, and not a stipulation as to an order of the Appellate divi-

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sion in a special proceeding. CPLR § 5601(c) authorizes appeal as of right on such a stipulation only when the order was made in an action originating in the supreme court, a county court, a surrogate’s court, the family court, the court of claims, or an administrative agency. For an action originating in a court other than those listed in the statute, appeal upon stipulation for judgment absolute may be taken only by permission of the Appellate Division, CPLR § 5602(b)(2)(iii), Dukes v. Rotem, 82 N.Y2d 886 (1993). see section III.B.(2).(b). However, when the Appellate Division affirms the lower court no further appeal to the Court of Appeals may be taken, Tai On Luck v. Cirota, 29 N.Y.2d 747 (1971). Note, however, that an Appellate Division order remitting for a collateral source hearing does not grant a new trial or hearing within the meaning of CPLR 5601(c), Sternfeld v. Forciet, 92 N.Y.2d 1045 (1999). A stipulation for judgment absolute will require the Court of Appeals to affirm and render judgment absolute if its order was predicated on an issue of fact or the exercise of discretion by the Appellate Division, for (with exceptions irrelevant to the present discussion) the Court of Appeals is not empowered to consider either facts or the exercise of discretion even if the Appellate Division had also ruled erroneously on the law in the case, Rabinowitz v. Indursky, 11 N.Y.2d 724 (1962). However, since the enactment in 1942 of CPLR § 5615 (at the suggestion of the New York State Judicial Council, see, its 7th Annual Report [1941] pp. 559–562, and 8th Annual Report, p. 435 [1942]), affirmance and judgment absolute is not required if the Appellate Division order states “either that the questions of fact have not been considered or that the court has considered the questions of fact and has determined that it would not grant a new trial or hearing upon those questions.” That provision has been construed to include matters of discretion as well, Guasperi v. Gorsky, 29 N.Y.2d 891 (1972). The stipulation must be unconditional, Kraus v. Ford Motor Co., 42 N.Y.2d 1093 (1977), but the court has allowed an appellant to apply to it for leave to withdraw the appeal as an alternative to affirming and rendering judgment absolute, Claytor v. Wilmot & Cassidy Inc., 34 N.Y.2d 992 (1974), McMurren v. Carter, 38 N.Y.2d 742 (1975), cf., Thrower v. Smith, 46 N.Y.2d 835 (1978).

G. From a Judgment or Order of the Appellate Division Which Finally Determines the Action or Proceedings and Is One of Reversal or Modification Constitution Article VI, § 3(b)(1) provides for an appeal as of right from a judgment or order which is one of reversal or modification. However, § 3(b)(8) permits the Legislature to abolish such an appeal of right if no question involving

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the construction of the Constitution of the State or of the United States is directly involved, and the Legislature exercises that power, appeal in such cases shall be governed by § 3(b)(6) relating to appeals by permission. Experience with the statutory provision that authorized appeals as of right from a final order of reveral or modification ultimately resulted in repeal of that provision. Under the original language of § 3(b)(1) modification in any respect authorized an appeal as of right, Matter of Ruppert v. Egelhofer, 3 N.Y.2d 576, 580 (1958) (amendment of the title of the proceeding). The resulting flood of appeals as of right so burdened the Court that the Legislature amended CPLR § 5601(a) to require that the modification be “in a substantial respect . . . within the power of the court of appeals to review . . . and [by which] the party taking the appeal [was] aggrieved,” Laws of 1969, ch. 999. As originally enacted the amendment was of limited duration, but it was made permanent by the Laws of 1973, ch. 95. However, because the number of appeals based on reversal or modification remained high (the 1984 Annual Report of the Clerk of the Court states that 66 percent of the civil appeals decided by the Court in 1984 were filed under CPLR § 5061[a]), that section was amended by ch. 300 of Laws of 1985 to eliminate completely reversal and modification as bases for appeal as of right from an Appellate Division final order. Such appeals would thereafter be reviewable only upon permission granted by the Court of Appeals or the Appellate Division pursuant to CPLR § 5602.

II. Appeals as of Right from a Judgment or Order Entered Upon a Decision of the Appellate Division A. When the Decision Directly Involves Construction of the State or Federal Constitution Article VI § 3(b)(1) of the State Constitution authorizes such an appeal when the Appellate Division decision finally determines an action or proceeding which directly involves construction of the Constitution of the State or of the United States. As previously noted, subsection (8) of that subdivision expressly excludes such appeals from the power of the Legislature to abolish appeals as of right to the Court of Appeals. CPLR § 5601(b)(1) mirrors the language of § 3(b)(1) of the Constitution. The constitutional issue may be directly involved even though construction of the statute is required in order to reach the constitutional issue. Thus, where the Supreme Court interpreted Civil Service Law § 71 as authorizing dismissal

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of an employee absent by reason of disability for a cumulative rather than continuous period of one year and rejected the employee’s claim that such an interpretation of the statute violated the equal protection and due process provisions of the Constitution, the Court of Appeals held the appeal authorized by CPLR § § 5601(b)(1) and affirmed the Appellate Division’s affirmance of Supreme Court’s holding, Matter of Allen v. Howe, 84 N.Y.2d 665, 671 (1999); accord: Rent Stabilization Association v. Higgins, 83 N.Y.2d 156, 168 (1993). Nevertheless, while the constitutionality issue was decided by the courts below, the Court of Appeals is not required to determine that issue. The issue is nonetheless directly involved even if the Court of Appeals bypasses that question and decides the case on the basis of its interpretation of the statute, Matter of McBarnette v. Sobol, 83 N.Y.2d 333, 336–337 (1994); Matter of Campagna v. Shaffer, 73 N.Y.2d 237, 240 (1989); but see Matter of Twin Coast Newspapers v. State Tax Commission, 64 N.Y.2d 874, 876 (1985).

B. From an Appellate Division Order as to Which Two Justices Dissented on a Question of Law Article VI, § 3(b)(1) of the Constitution provides that appeals to the Court of Appeals may be taken as of right in civil cases and proceedings “where one or more of the justices of the appellate division dissents from the decision of the court,” and CPLR § 5601 requires that the action in which such an appeal is taken have originated in the supreme court, a county court, a surrogate’s court, the family court, the court of claims, or an administrative agency and be from an order of the appellate division that finally determines the action. Prior to the amendment of CPLR § § 5601 by Chapter 300, section 1 of the Laws of 1985, dissent by a single justice authorized such an appeal. The 1985 law, effective January 1, 1986, required that the dissent be “by at least two justices.” As the Governor stated in his memorandum approving the 1986 law, the revision was sought to enable the Court to better serve its function of deciding cases of statewide importance and was based on a study made by the American Judicature Society at the request of the Court of Appeals. McKinney 1985 Session Laws, 3292. As the wording of the provision makes clear, the two-justice dissent does not provide a basis for appeal to the Court of Appeals when the ground of the dissent is not the dissenters’ disagreement with the majority’s result but with the basis on which that result is reached, or as the Court of Appeals put it in Christovao v. Unisul-Uniao, 41 N.Y.2d 338, 339 (1977) “when the minority has given appellant the benefit of its vote, as well as the benefit of its views.”

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Jurisdiction of the Court of Appeals is, however, limited, with exceptions not pertinent to this discussion, to review of questions of law. Const. Art. VI§ 3(a), CPLR § 5601(a), Burr v. Eveready Insurance Co., 92 N.Y.2d 2041 (1999). Moreover, the question of law must have been raised by the appellant in the trial court, for, unlike the Appellate Division, which has jurisdiction to address unpreserved issues, the Court of Appeals may not do so. Merrill v. Albany Medical Center Hospital, 71 N.Y.2d 990 (1988); Guasperi v. Gorsky, 29 N.Y.2d 891 (1972). But all questions of law properly preserved may be reviewed on such a direct appeal even though a particular issue is not the basis for dissent, or the dissent is as to but one of several defendants, for the governing provisions concern “the right to appeal and not the scope of review, once an appeal is properly before the court.” Matter of Duchnowski, 31 N.Y.2d 991 (1973); Holtslander v. C.W. Whalen & Sons, 69 N.Y.2d 1016 (1987), 70 N.Y.2d 962 (1988).

III. Appeals by Permission A. In Criminal Cases Not Involving the Death Penalty As noted, Constitution Article VI, § 3(b) (first unnumbered paragraph) permits direct appeal to the Court of Appeals from a court of original jurisdiction where the judgment is one of death, and in other criminal cases authorizes the Legislature to determine when an appeal “from an Appellate Division or otherwise” is permitted. Under CPL § 460.20(2)(a) permission to appeal from the Appellate Division may be granted by either a judge of the Court of Appeals or a justice of the Appellate Division that entered the order. If the order dismissed the appeal, however, only a judge of the Court of Appeals may grant permission. CPL § 470.60(3), People v. Santos, 64 N.Y.2d 702, 704 (1984). While CPL § 460.20(2)(a) does not limit the justice to whom application can be made, the Court of Appeals in People v. Dorta, 46 N.Y.2d 818, 821 (1978), has characterized it as the better practice to apply to a justice who was a member of the panel that decided the case and the rules of the Appellate Division Second and Fourth Departments so require. Moreover, once an application has been made to a justice of the Appellate Division, no further application can be made to a judge or justice of either court. People v. Liner, 70 N.Y.2d 945 (1988); People v. Nelson, 55 N.Y.2d 743 (1981), although as to an application denied by a judge of the Court of Appeals that judge may entertain a motion for reconsideration. People v. Pepper, 53 N.Y.2d 213, 218 n. 1 (1981), cert. denied 454 U.S. 967 and 454 U.S. 1162.

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As to intermediate appellate courts other than the Appellate Division (i.e., the Appellate Terms of the First and Second Departments, the County Courts of the Third and Fourth Departments as to judgments or orders of local criminal courts in the particular county), CPL § 460.20(2)(b) provides that permission to appeal may only be granted by a judge of the Court of Appeals.

B. In Civil Cases 1. SOLELY BY THE COURT OF APPEALS

By voter approval effective January 1, 1952, of the constitutional amendment, proposed by concurrent resolution, Laws of New York 1951, p. 2090, of Article VI, § 7(5) (now § 3[b][5]), the Court of Appeals was authorized to grant leave to appeal from a nonfinal order of the Appellate Division in a proceeding instituted by or against one or more public officers or a board, commission, or other body of public officers or a court or tribunal, without regard to the availability of appeal by stipulation for final order absolute, which in its opinion involves a question of law which ought to be reviewed by it. However, CPLR § 5602(a)(2) specifically excepts from the Appellate Division’s authority an order granting, or affirming the granting, of a new trial or hearing. After 1944, when the stipulation for judgment absolute was extended to special proceedings, the Appellate Division was without authority to grant permission to the agency to appeal from an order reversing and remitting the agency’s determination and could not, because not a party aggrieved, review its own order after final judgment. Therefore, the 1952 revision was enacted limiting authority to grant leave to appeal in such cases to the Court of Appeals. Matter of Zeronda v. Town Board of the Town of Halfmoon, 37 N.Y.2d 198, 200–201 (1975). Accord: Gottlieb v. Laub & Co., 82 N.Y.2d 457, 461 (1993) which dismissed plaintiff’s appeal from an Appellate Division order affirming a supreme court order granting a new trial in the event plaintiff did not stipulate to the court’s setting aside the jury’s finding as against the weight of the evidence and plaintiff did not so stipulate, because the Appellate Division was not empowered to grant leave to plaintiff (see also Matter of Loewy v. Binghamton Housing Authority, 4 N.Y.2d 1036 [1958]). The Court of Appeals has, however granted leave to appeal on its own motion instead of dismissing an appeal as of right taken from a nonfinal order, e.g. Spears v. Berle, 48 N.Y.2d 254 (1979). 2. SOLELY BY THE APPELLATE DIVISION

a. From a Nonfinal Order of That Court Constitution Article VI, § 3(b)(4) permits appeal to the Court of Appeals from a nonfinal determination of an action or special proceeding where the Appellate

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Division certifies that one or more questions of law have arisen which, in its opinion, ought to be reviewed by the Court of Appeals, but limits review in such cases to the question or questions so certified and requires the Court of Appeals to certify to the Appellate Division its determination of such question or questions. CPLR § 5602(b) implements that provision, but excludes from its scope an order in a proceeding by or against one or more public officers or a board, commission, or other body of public officers or a court or tribunal granting or affirming the granting of a new trial or hearing. Also excluded is such an order whether made in an action originating in the Supreme Court, a county court, a surrogate’s court, the family court, the court of claims, or an administrative agency (CPLR § 5601[c]), or an action originating in a court other than the listed courts or administrative agency (CPLR § 5602[b][2]), or where appellant has stipulated that upon affirmance, judgment absolute shall be entered against him or her (CPLR § 5602[b][2][iii]). However, the Appellate Division is not authorized to grant leave on a certified question when it had reversed Supreme Court’s grant of judgment dismissing plaintiff’s complaint, awarded plaintiff judgment as to liability, and remanded the case to Supreme Court for a determination of damages, for though limited in scope the trial ordered constituted a new trial. Maynard v. Greenberg, 82 N.Y.2d 913 (1994). With respect to the limitation of review by the Court of Appeals to the question or questions certified, the Court of Appeals has stated that its “review does not extend beyond the certified question as it reads or is reasonably interpretable,” Price v. Price, 69 N.Y.2d 8, 13, n. 1 (1986), and that its practice has been “so to interpret a certified question as to present a problem of law, not a review of a purely discretionary decision.” Bata v. Bata, 304 N.Y. 51, 55 (1952). Moreover, CPLR § 5713 requires that the Appellate Division “certify the questions of law decisive of the correctness of its determination or any separable portion of it,” that is whether the appellant would be entitled to a reversal of the Appellate Division’s order “in the event the question were to be answered in the appellant’s favor.” Patrician Plastic Corp. v. Bernadel Realty Corp., 25 N.Y.2d 599, 604 (1970). CPLR § 5612(b) requires that on an appeal on a certified question the Court of Appeals presume that questions of fact as to which no findings are made in the order granting permission to appeal or in the order appealed from or in the opinion of the Appellate Division were determined in favor of the party who is respondent in the Court of Appeals. That presumption was added by Chapter 297 of the Laws of 1942 to the CPA section which became CPLR § 5612(b). It was added on recommendation of the New York Judicial Council after a study by that body noted confusion as to when the Court of Appeals would disregard

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the question and decide only issues within its jurisdiction, dismiss the appeal because it involved or might have involved questions of fact or discretion, or remit the matter to the Appellate Division for determination of issues of fact or discretion. Seventh Annual Report of the Judicial Council, pp. 507–514; Eighth Annual Report of the Judicial Counsel, pp. 53–54. The same 1942 statute added to the CPA section which became CPLR § 5613 the requirement that the Court of Appeals, upon reversing or modifying a determination of the Appellate Division, when it appears or must be presumed that questions of fact were not considered by the Appellate Division, must remit the case to that court for determination of questions of fact raised in the Appellate Division, for otherwise the Court of Appeals would be issuing an advisory opinion, which is beyond its function (cf., Cuomo v. Long Island Lighting Co., 71 N.Y.2d 349, 354 [1988]). It also added to the CPA section that became CPLR § 5614 the requirement that the Court of Appeals not only answer the questions certified but also direct entry of the appropriate judgment or order. b. In a Civil Case Originating in Inferior Trial Level Courts Constitution Article VI, § 3(b)(7) provides that in a civil case, except in a case directly involving construction of the State or Federal constitutions, an appeal can be taken from an order of the Appellate Division, where appeal to that court was from a judgment or order entered in an appeal from another court, only if the Appellate Division certifies that in its opinion a question of law is involved which ought to be reviewed by the Court of Appeals. That provision is implemented by CPLR § 5602(b)(2)(i) and, as the Court of Appeals held in Dukes v. Rotem, 82 N.Y.2d 886 (1993), CPLR § 5602(b)(2)(iii) requires that if the Appellate Division order grants or affirms the granting of a new trial or hearing the appellant stipulate that if the Court of Appeals affirms the Appellate Division judgment absolute shall be entered against the appellant, accord: Present v. Avon Products, 93 N.Y. 2d 1032 (1999). 3. BY EITHER THE APPELLATE DIVISION OR THE COURT OF APPEALS

Constitution Article VI, § 3 (b)(6) provides for appeal from a judgment or order entered upon the decision of an Appellate Division that finally determines an action or special proceeding but that is not appealable as of right where the Appellate Division or the Court of Appeals certifies that in its opinion a question of law is involved which ought to be reviewed by the Appellate Division, and that such an appeal shall be allowed when required in the interest of substantial justice and may be allowed upon application to the Appellate Division, and in case of refusal, to the Court of Appeals, or directly to the Court of Appeals. In a civil

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case application is by motion addressed to the Court of Appeals, but in a criminal case is made to an individual judge of the court, CPL § 460.20(2)(a). Prior to January 1, 1944, the effective date of the voters’ approval of amendment of Constitution Article VI, § 7(5) (now § 3[b][6], as proposed by concurrent resolution, Laws of New York 1943, p. 2585), the Court of Appeals could grant permission to appeal from a final determination of the Appellate Division only after that court had denied leave to do so. The 1944 amendment gave an appellant from such a determination the option of applying directly to the Court of Appeals or of seeking leave from the Appellate Division and, if leave was denied, of then applying to the Court of Appeals. CPLR § 5602(a),which implements Constitution Article VI, § 3(b)(6), also authorizes the Court of Appeals and the Appellate Division to establish rules, and expressly requires that the Court of Appeals rules shall grant leave upon the approval of two judges of that court. The section provides in its subdivision (l) that permission to appeal may be granted in an action originating in the supreme court, a county court, a surrogate’s court, the family court, the court of claims, an administrative agency or an arbitration, from an order of the Appellate Division which finally determines the action and which is not appealable as of right, or from a final judgment of such court, final determination of such agency, or final arbitration award when the Appellate Division has made an order on a prior appeal in the action which necessarily affects the final judgment, determination, or award; and the final judgment, determination, or award is not appealable as of right on the basis of dissent by two or more judges of the Appellate Division. Subdivision (2) of CPLR § 5602(a) authorizes the granting of permission by either court from an Appellate Division order that does not finally determine a proceeding instituted by or against one or more public officers or a board, commission, or other body of public officers or a court or tribunal, but excepts from the authority of an Appellate Division an order granting or affirming the granting of a new trial or hearing. Moreover, as the Court of Appeals observed in a footnote to the Zeranda opinion, supra at p. 301, and reiterated in Matter of Power Authority v. Williams, 60 N.Y.2d 315, 323 (1983), the subdivision “accords the benefits of the section to every party to the proceeding if any one party comes within its ambit.” To be noted also is CPLR § 5515(1) which states “that where an order granting permission to appeal is made, the appeal is taken when such order is entered.” That section had eliminated the confusion arising from the reference in CPA § 591 as the appealable paper to both the judgment in an action and the Appellate Division order in a special proceeding as such. Although the Constitution had not then been amended to remove the distinc-

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tion, the Court of Appeals in Purchasing Associates Inc. v. Weitz, 13 N.Y.2d 267, 275 (1963), found, somewhat ingeniously,” no material conflict between the Constitution and the statute since the CPLR may properly be read as treating the order of the Appellate Division in such circumstances as the equivalent of a judgment for purposes of appeal.” Note, however, Whitfield v. City of New York, 90 N.Y.2d 777 (1977), in which the Court held, without mention of the Purchasing Associates decision, that where the Appellate Division order granted a new trial on the issue of damages unless plaintiff stipulated to its reduced damage figure “and to the entry of an amended judgment accordingly,” and the reduced judgment is affirmed. The defendant’s motion to the Court for leave to appeal made after execution of the stipulation but before an amended judgment had been entered must be dismissed as not from a final judgment. 4. LIMITATIONS ON COURT OF APPEALS REVIEW

a. Exercise of Discretion Constitution Article VI § 3(a) provides that, with stated exceptions not here relevant, “[t]he jurisdiction of the Court of Appeals shall be limited to the review of questions of law” and CPLR § 5501(b) states that “[t]he Court of Appeals shall review questions of law only, except where the appellate division, on reversing or modifying a final or interlocutory judgment, has expressly or impliedly found new facts and a final judgment pursuant thereto is entered.” Note, however, that whether a lower court has abused its discretion may be a question of law. Thus in Matter of Von Bulow, 63 NY 2d 221, 225 (1984), the Court’s footnote referring to CPLR 5601(a)(iii), the predecessor to § 5501(b), stated: This statutory restriction on our jurisdiction gives particular importance to how the order and decision of the Appellate Division are formulated. When the Appellate Division decision rests on abuse of discretion by the lower court as a matter of law, and the order so recites, a question of law may be presented for our review. When, however, the Appellate Division concludes that there was an improvident exercise of discretion below and substitutes its own discretion, and the order recites that the modification is made as a matter of discretion, then the issues will be appealable only where this court determines that a substantial question of abuse has been presented or the result reached is so outrageous as to shock the conscience. Recitals in the orders of the Appellate Divisions and articulations in their opinions which fail to recognize and implement this distinction may lead to confusion as to appealability or scope of review in our court.

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See also Matter of Kelly v. Safir, 96 N.Y.2d 32, 37 (2001), stating that whether there has been an abuse of discretion as a matter of law “involves consideration of whether the impact of the penalty on the individual is so severe that it is disproportionate to the misconduct, or to the harm to the agency, or the public in general.” Nor is it sufficient that the Appellate Division denominates its reversal as “on the law” in a decision in which it reviewed unpreserved error of the lower court, the Court of Appeals construing the Appellate Division’s having done so as an exercise of discretion and beyond the Court of Appeals’ power of review, Brown v. City of New York, 60 N.Y.2d 893, 894 (1983); Feinberg v. Saks & Co., 56 N.Y.2d 206, 210–211 (1982). However, the constitutional duty to determine whether in a defamation action actual malice has been established with convincing clarity requires the exercise by the Court of Appeals of independent judgment notwithstanding the statutory constraints on its review power. Freeman v. Johnston, 84 N.Y.2d 52, 56 (1994); Prozeralik v. Capital Cities Communications, 82 N.Y. 2d 466, 474–475 (1993) (see Mahoney v. Adirondack Publishing Co., 71 N.Y.2d 31, 39 [1987]). When the Appellate Division has reviewed all of the relevant factors, however, its order permitting a class action to proceed in that form, Weinberg v. Hertz Corporation, 69 N.Y. 2d 979, 981 (1987), or denying class action status, Small v. Lorillard Tobacco Co., 94 N.Y.2d 43 (1999), is subject to review as to whether the Appellate Division abused its discretion as a matter of law in so doing. Mere conjecture, surmise, or speculation is not enough, Cummins v. County of Onondaga, 84 N.Y.2d 322, 325 (1994) (as to whether decedent was conscious following an accident as the basis for a claim for conscious pain and suffering). To raise any substantial question of abuse as a matter of law, either the results must be so outrageous as to shock the conscience or there must be extraordinary circumstances, factual or procedural, from which it might be concluded that there is a reasonable and substantial likelihood that on full consideration the Court will hold that there was an abuse of power or discretion, Patron v. Patron, 40 N.Y.2d 582, 585 (1976) (holding not reviewable orders denying counsel fees in a matrimonial action). But when mutual mistake is established by uncontradicted evidence the Court of Appeals has power of review, Lazarus v. Bowery Savings Bank, 16 N.Y.2d 793, 795 (1965), though not when the courts below permitted amendment of defendant’s answer to include defenses of set off and apportionment, there being no showing that the defenses plainly lacked merit or that plaintiff was prejudiced by allowance of the amendment, Herrick v. Second Cuthouse, Ltd., 64 N.Y.2d 692, 693 (1984). In three cases decided in one opinion—Leader v. Maroney, Ponzini & Spencer, Scarabaggio v. Olympia and York Estates Company, and Hafkin v.

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North Shore University Hospital, 97 N.Y.2d 95 (2001)—the Court determined the standards by which a lower court may exercise its discretion. The issues in each case involved CPLR 306-b which authorized a trial court to extend the time for service of a complaint “upon good cause shown or in the interest of justice.” The opinion noted that the interest of justice standard requires a careful judicial analysis of the factual setting of the case and a balancing of the competing interests presented by the parties. Unlike an extension request premised on good cause, a plaintiff need not establish reasonably diligent efforts at service as a threshold matter. However, the court may consider diligence, or lack thereof, along with any other relevant factor in making its determination, including expiration of the Statute of Limitations, the meritorious nature of the cause of action, the length of delay in service, the promptness of a plaintiff’s request for the extension of time, and prejudice to defendant. ... The statute empowers a court faced with the dismissal of a viable claim to consider any factor relevant to the exercise of its discretion. No one factor is determinative—the calculus of the court’s decision is dependent on the competing interests of the litigants and a clearly expressed desire by the Legislature that the interests of justice be served.

In each of the cases reviewed in the opinion the Appellate Division had divided three to two. In Leader the plaintiff’s attorney was unaware of the change in CPLR 306-b that discontinued the prior version which would have given plaintiff an automatic new 120 days for service, plaintiff showed that his cause of action was meritorious, and defendant made no showing of prejudice. The Court affirmed the Appellate Division majority stating that “[w]e discern no abuse of discretion here.” In Scarabaggio, the process service failed because defendant had apparently relocated but the server did not notify plaintiff who proceeded as if service had been made. When the error was discovered plaintiff moved for an extension of time, within two months after expiration of the statute of limitations and one month after the 120-day period. Defendant made no showing of prejudice, and there was some evidence in the record that it had actual notice of the action. The Court affirmed the Appellate Division majority stating that it had correctly affirmed the trial court’s extension of time to serve. In Hafkin the Appellate Division majority concluded that an extension of time was not warranted. The Court affirmed noting that the Appellate Division had weighed all relevant factors, that though limitations had expired plaintiff offered

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no explanation of their failure to serve defendant after commencement of its earlier action or any excuse for their eight months’ delay in moving to extend their time for service after the 120-day service period expired, and did not assert that they were unaware of the amendment of CPLR 306-b, even though they had an opportunity to put relevant evidence on the record. Moreover, defendants had no notice of plaintiff’s claims for nearly three years after their accrual, leading to an inference of substantial prejudice. As pointed out in Siegel’s New York State Law Digest No. 504: No single factor is decisive. It is the aggregate of the ingredients that must be looked to. For example, the fact that the statute of limitations has by now expired on the claim, which is among the things the Court lists for permissible consideration, can’t by itself mandate an extension of the 120-day service period, or every case would be preserved on that showing alone. But a factor would be the length of time that has expired after the statute did. Not listed but apparently also relevant would be how close the plaintiff let the case come to the end of the statute of limitations before even purporting to commence the action.

With respect to review of a decision of an administrative board, the Court of Appeals can decide as a matter of law what inferences shall be drawn “only where the circumstances admit of only one inference,” Matter of Rumsey Manufacturing Corp., 296 N.Y. 113, 118 (1947); but where there is relevant evidence before the agency that a reasonable mind might accept as adequate to support its conclusion, its findings must be accepted; Matter of Stork Restaurant v. Boland, 282 N.Y.256, 274 (1940); that is to say whether the evidence “is so substantial that an inference of the existence of the fact found may be drawn reasonably” from it; 300 Gramatan Ave. Associates v. State Division of Human Rights, 45 N.Y.2d 176, 181 (1978). Similarly with respect to a matter tried before a jury it can be concluded as a matter of law that a jury verdict is not supported by sufficient evidence only if “there is simply no valid line of reasoning and permissible inferences which could possibly lead rational men to the conclusion reached by the jury on the basis of the trial evidence,” Cohen v. Hallmark Cards, 45 N.Y.2d 493, 499 (1978), but if the Appellate Division reached its conclusion without review of the facts, the Court of Appeals must, in view of the constitutional limitation on its review of the facts, remit to the Appellate Division for its review of the facts, at 500. “However, in view of the state constitutional guarantee of the right to trial by jury . . . the Appellate Division may not, in a case tried by jury as of right,

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grant a final judgment based upon findings contrary to those of the jury.” Martin v. City of Albany, 42 N.Y.2d 13, 19 (1977). b. Mootness Black’s Law Dictionary (7th ed.) defines the mootness doctrine as “[t]he principle that American courts will not decide moot cases—that is cases in which there is no longer any actual controversy.” It “is a doctrine related to subject matter jurisdiction and thus must be considered by the court sua sponte.”Matter of Grand Jury Subpoenas, 72 N.Y.2d 307, 311 (1988), cert. denied 488 US 966, for the Court does “not decide mere abstract questions from the determination of which no practical result can follow.” People ex rel Geer v. Common Council, 82 NY 575, 576 (1880). Typically an action or proceeding has been held mooted when the voters rejected a plan of reapportionment which the proceeding sought to have declared invalid, Town of Greenburgh v. Board of Supervisors, 23 N.Y.2d 732 (1969), and when, after determination of the court below, the position of supervisor of education to which petitioners sought reinstatement was lawfully abolished due to budgetary considerations, Sedita v. Board of Education, 42 N.Y.2d 827 (1977), or when pending appeal from the Appellate Division’s ruling in favor of the Westchester County Clerk in his proceeding to annul the transfer of authority under Vehicle and Traffic Law Section 205(1) from the County to the Department of Motor Vehicles the Legislature amended that subdivision to exempt Westchester County from its provisions, Matter of Spano v. O’Rourke, 59 N.Y.2d 946 (1983). Though prior to the decision in Matter of Hearst Corporation v. Clyne, 50 N.Y.2d 707 (1980), the exception to the mootness doctrine was unclear, that decision stated the three common factors of the exception to be “(1) a likelihood of repetition, either between the parties or among other members of the public; (2) a phenomenon typically evading review; and (3) a showing of significant or important questions not previously passed on, i.e., substantial and novel issues,” id. at 714–715, accord Matter or Rodriguez v. Wing, 94 N.Y.2d 192, 196 (1999). In the Clyne case respondent Clyne, a judge of the Albany County Court, had closed his court during suppression hearings in a criminal case and refused a request by the news media for a transcript of defendant’s plea proceeding, but had furnished the transcript to petitioners before the Article 78 proceeding was commenced. The Court held that “an appeal will be considered moot unless the parties will be directly affected by the determination of the appeal and the interest of the parties is an immediate consequence of the judgment.” Id., at 714. It held the appeal moot and not of a character which should be reserved

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for review and, therefore, dismissed the appeal, solely on the ground of mootness, because two recent decisions of the Court had declared the underlying principles relating to when pretrial proceedings could be closed. When a party will be directly affected by determination of the appeal is illustrated by the decisions in Matter of Bickwid v. Deutsch, 87 N.Y.2d 862 (1995); Matter of Rochester Telephone Corp. v. Public Service Commission, 87 N.Y.2d 17 (1995); Matter of George L, 85 N.Y.2d 295 (1995); Matter of Williams v. Cornelius, 76 N.Y.2d 542 (1990); and Matter of Grand Jury Subpoenas, supra; see also Community Board 7 v. Schaffer, 84 N.Y.2d 148, 154 (1994); Matter of Codey, 82 N.Y.2d 521, 527 (1993). Bickwid concerned an accountant who as a result of his testimony as an expert witness was held in civil contempt and had served forty-eight days in jail. The Court held that though the jail time had been served the case was not moot because the contempt adjudication could be used in future cases in which he testified to attack his credibility and thus jeopardize his reputation and his means of earning a living. A similar conclusion was reached in Matter of Williams, supra, involving criminal contempt, although petitioner had been released from jail prior to completion of the sentence imposed. Matter of George L, supra, held the appeal by petitioner, a mentally disturbed individual who was released from confinement after having been found to be no longer dangerous but was designated a “track 1” defendant, not moot because that designation affected his status in all future proceedings concerning his commitment, but cf. Matter of Boggs v. New York City Health and Hospital Corp., 70 N.Y.2d 972 (1988), in which the mentally disturbed petitioner’s release from confinement apparently involved nothing similar to George’s track 1 designation and the Court dismissed her appeal as moot because the trial judge’s finding that she was not shown to be a danger within the meaning of the governing statute more nearly comported with the weight of the evidence. Rochester Telephone ruled that though a joint stipulation resolved the immediate issue of the authority of the Public Service Commission to rule concerning a royalty imposed upon petitioner, a live controversy remained as to the authority of the Commission to impose a royalty on all regulated utilities, and in Matter of Grand Jury Subpoenas, supra, the Court refused to dismiss the appeal because the Union’s membership lists remained under control of the Assistant District Attorney and continued to be used by him in the investigation. But in Matter of Dreikausen v. Zoning Board of Appeals of the City of Long Beach, 98 N.Y.2d 165 (2002), the Court dismissed as moot the appeal of litigants seeking to upset the Board’s grant of a variance pursuant to which the property owner had demolished buildings and made improvements to the property. The opinion held the issue moot, there having been substantial completion of the project, because of the challengers’ failure to seek preliminary injunctive relief or otherwise pre-

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serve the status quo to prevent construction from commencing or continuing during the pendency of the litigation. Finally to be noted is that although in most cases the Court simply dismisses the appeal, Matter of Boggs, supra, it has in a number of cases remitted the case to the Appellate Division with directions to dismiss the appeal as moot, Matter of Hearst Corp., supra, a direction the effect of which it had earlier declared in Matter of Park East Corp. v. Whelan, 43 N.Y.2d 735 (1977), “is not only to vacate the determinations heretofore made, but ‘to erase the whole case from the books’” or remitted the case to the trial court with direction to dismiss the action. Matter of Spano v. O’Rourke, supra, or with direction to vacate its judgment, Town of Greenburgh v. Board of Supervisors, supra. The Court of Appeals has not made clear what, if any, difference there is in the noted directions. c. Appealability CPLR 5511 describes a permissible appellant as “[a]n aggrieved party or a person substituted for him” and permits such a party to “appeal from any appealable judgment or order except one entered upon the default of the aggrieved party.” Aggrievement is jurisdictional and may be raised by the Court even though not raised by the respondent, Matter of Niagara Mohawk Power Corp. v. Green Island Power Authority, 94 N.Y.2d 891 (2000). To be aggrieved a party must be directly affected by the judgment or order appealed from. Thus in Scopelliti v. Town of New Castle, 92 N.Y.2d 944 (1998), an appeal from an Appellate Division order imposing sanctions upon appellant’s counsel was dismissed on the ground that appellant was not aggrieved by that order. Whether the result would be different if appellant had agreed with counsel that appellant would pay any sanction imposed on counsel is not clear for it may be held that such an agreement is contrary to the purpose of the rule governing sanctions (see CPLR 8303-a and Rules of the Chief Administrator of the Courts, 22 NYCRR Part 130) although neither the statute nor the rules contain a specific provision to that effect. So also Islamic Republic of Iran v. Pahlavi, 62 N.Y.2d 474, 478 n. 2 (1984), held that the action against her having been dismissed on forum non conveniens grounds, defendant’s cross appeal on the ground that the Court did not have jurisdiction over her was dismissed since, in view of the dismissal of the action against her, she was not aggrieved, and Whitfield v. City of New York, 90 N.Y.2d 777, 778 n* (1992), and Tongue v. Tongue, 61 N.Y.2d 809, 810 (1984), both held that a party who had stipulated to entry of judgment was not aggrieved within the purview of CPLR 5511 and, therefore, that his appeal was properly dismissed by the Appellate Division. But an appellant who assigned his judgment to a third party with recourse was held to be entitled to appeal because the possibility of recourse by the

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assignee gave appellant aggrieved status, Tri-City Roofers v. Northeastern Industrial Park, 61 N.Y.2d 779, 781 n* (1984). Likewise in People v. Dobbs Ferry Medical Pavilion, 40 A.D.2d 324, affd 33 N.Y.2d 584 (1973), the Court decided an appeal by doctors who were not parties to the action, since the judgment enjoined not only the defendant but also “any other person with knowledge of this injunction from operating an abortion clinic until a license had been issued.” As summarized by the Court in Parochial Bus System v. Board of Education, 60 N.Y.2d 539, 544–45 (1983), a successful party is not a person aggrieved unless the judgment or order did not grant him complete relief, or if it was less favorable than the appellant sought in some affirmative claim, or if a substantial right was denied. That he did not prevail on all issues or he disagrees with the rationale on which the court below based its decision in his favor, or modified the lower court’s judgment or order in a substantial aspect, does not constitute him an aggrieved party unless he can demonstrate actual aggrievement by the modification made, see also Matter of Delta Air Lines, 90 N.Y.2d 882 (1997), or as phrased in Matter of Wilson, 309 NY 1011, 1012 (1956) if appellant “lost something of considerable value.” In Wilson, a surrogate court discovery proceeding tried before a jury determined the issues favorably to appellants, but on appeal to the Appellate Division that court ordered the proceeding dismissed on the ground that the Surrogate’s Court lacked jurisdiction in a discovery proceeding to determine the issues submitted. The Court of Appeals held appellants aggrieved because although successful in the Appellate Division they “lost something of considerable value by that court’s reversal and dismissal of the proceeding in that they are now deprived of the lower court determination in their favor on the merits.” It is not clear, however, whether a party who prevailed below may argue for affirmance on a ground other than that on which the lower court based its decision. Compare Mitchell v. New York Hospital, 61 N.Y.2d 208, 213–14, n2 (1984), with Matter of Vogeler v. Smith, 48 N.Y.2d 974 (1979). As above noted, however, CPLR 5511 excepts “a judgment or order . . . entered upon the default of the aggrieved party.” Thus in Bank of Montreal v. Predovan, 71 N.Y.2d 844 (1988), and Matter of Dietz, 29 N.Y.2d 915 (1972), the Court dismissed a motion for leave to appeal from an Appellate Division order affirming the order of Supreme Court against the party moving for leave on the ground that an appeal does not lie from a default judgment entered upon an uncontested inquest. But a defaulting defendant admits only liability, not damages, and therefore may offer proof in mitigation of damages “if it involves ‘circumstances intrinsic to the transaction at issue’ in the plaintiff’s complaint,” Amusement Business Underwriters v. American International Group, 66 N.Y.2d

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878, 880 (1985), and is not barred from appealing to the Court of Appeals with regard to matters which were contested below, such as the sufficiency of the complaint, the measure of damages, and the availability of punitive damages, or from an intermediate order “necessarily affecting” the final determination, James v. Powell, 19 N.Y.2d 249, 256, n. 3 (1967), or the trial court’s denial of the right to contest damages, the default judgment having been entered by the trial court clerk and thus denied defendant its right to contest damages, Reynolds Securities v. Underwriters Bank and Trust Company, 44 N.Y.2d 568 (1978). Finality is a factor in the determination of appealability. The subject is a complex one and the Court’s rulings have not always been consistent. Thus, an order setting aside service of process is “ordinarily considered nonfinal,” but if the order directs dismissal of the complaint, the order is held final and an appeal may be taken to the Court. Feinstein v. Bergner, 48 N.Y.2d 234, 237 n. 1 (1979), Martino v. Golden Gift, Inc., 5 N.Y.2d 982 (1959). Karger’s discussion of finality in The Powers of the New York Court of Appeals, 3rd ed. devotes a total of 162 pages to discussion of finality (39–201), to which the reader is referred.. The shifts in position of the Court, as Karger characterizes it, have stemmed in part from the doctrine of implied severance of causes of action enunciated in Sontag v. Sontag, 66 N.Y.2d 554 (1985). As Karger states (127–129) Sirlin Plumbing Co. v. Maple Hill Homes, Inc., 20 N.Y.2d 401 (1967), had held that separate and distinct causes of action were impliedly severed even though the claims stemmed from the same transaction and involved some common issues, but the Court abruptly changed its position, and in Lizza Industries, Inc. v. Long Island Lighting Co., 36 N.Y.2d 754 (1975), adopted a stricter standard for determining severalability. Lizza held that for finality to attach to an order which finally disposed of one or more causes of action but left others undetermined, the finally determined causes would have to be “discrete from the transaction giving rise” to the undetermined causes. As Karger points out, however, though “discreteness” implied that to be severable the respective causes of action would have to stem from different transactions or occurrences, the Court modified its position in that regard in Ratka v. St. Francis Hospital, 49 N.Y.2d 604 (1978), and Created Gemstones, Inc. v. Union Carbide Corp., 47 N.Y.2d 250 (1979). However, Burke v. Crosson, 85 N.Y.2d 10 (1995), reverted to the strict approach taken in the Lizza case and held that implied severance does not sever part of a single cause of action and disaffirmed Sirlin, holding in an opinion by Judge Titone that “[t]he implied severance doctrine has had a somewhat checkered history and our past articulations of the rule have been somewhat difficult to recount . . . [and concluded that] the ‘implied severance’ doctrine has now evolved into a very limited exception to the general rule of nonfinality.” The

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Court in Burke directed that to the extent the Court’s prior decisions in Sirlin, supra, Ratka, supra, and Orange & Rockland Utilities, Inc. v. Howard Oil Co., 46 N.Y.2d 880 (1979), “indicate the contrary, they should not be followed” (85 N.Y.2d at 17, n. 3). d. Timeliness CPLR 5543 requires that an appeal be taken or a motion for leave to appeal be made within thirty days after service with written notice of entry of the judgment or order appealed from unless the appellant has served a copy of the judgment or order with written notice of entry. In that case an appeal must be taken or permission sought within thirty days of the service of the judgment by the appellant. In either case if the service was made by mail the time to file or move is extended pursuant to CPLR 2103(b)(2) to thirty-five days from the date of mailing. Although a party’s time to appeal or move is extended indefinitely if such service is not made, the Court has held in Matter of Haverstraw Park Inc. v. Runcible Properties Corp., 33 N.Y.2d 637 (1973), that a stipulation of the parties cannot confer jurisdiction on the Court to consider an untimely motion. Moreover, the Court will not consider a motion for permission when the Appellate Division has denied a motion to it which was untimely even though the motion to the Court is served within thirty days after the Appellate Division’s denial. Jones Lang Wooton USA v. LeBoeuf, Lamb, Green & MacRae, 92 N.Y.2d 962 (1998). e. Reviewability The Court will not review an issue that was not submitted for consideration to the trial court, jury, or administrative agency before whom the case was initially tried—People v. Pressley, 94 N.Y.2d 935 (2000), Cooper v. City of New York, 81 N.Y.2d 584, 588 (1993), Schillawski v. State, 9 N.Y.2d 235, 240 (1961)—unless the lower court is without jurisdiction under the governing statute. Lack of jurisdiction is illustrated by People v. Samms, 95 N.Y.2d 52 (2000) (sentence as a second felony offender under CPL 400.15 vacated when the earlier sentence was not imposed before commission of the second felony), People v. Morse, 62 N.Y.2d 205, 214, n. 2 (1984) (lawfulness of status as a predicate offender reviewable though not objected to at sentencing), or is an error of law affecting “the organization of the court or the mode of proceedings proscribed by law,” People v. Munroe, 90 N.Y.2d 982, 984 (1997), quoting from People v. Patterson, 39 N.Y.2d 288 (1976), aff’d 432 U.S. 197 (1977). It is not, however, a mode of proceeding error for the jurors to review out of the presence of the trial judge exhibits admitted in evidence during trial since that did “not implicate any of the Judge’s substantive roles in conducting the trial,” People v. Hernandez, 94

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N.Y.2d 552, 555 (2000), or for a judge to impose an enhanced sentence of defendant as a persistent felony offender, the prior felony conviction having been established during trial, People v. Rosen, 96 N.Y.2d 329 (2001). But some cases have held that an unpreserved issue may be considered if, or as it is sometimes said, unless the issue is both decisive of the appeal and could not have been “obviated or cured by factual showings or legal countersteps” if it had been raised below, Telaro v. Telaro, 25 N.Y.2d 433, 439 (1969), Persky v. Bank of America National Association, 261 NY 212, 219 (1933). An issue in the trial court or in the record is, however, available in the Court of Appeals, although not argued in the intermediate appellate court, Telaro v. Telaro, supra, at p. 438. Moreover, the Court may take judicial notice of public records, Affroniti v. Crosson, 95 N.Y.2d 713, 720 (2001) (census data, which is a legislative rather than an evidentiary fact), and, although the State did not rely on a statute below, may take judicial notice of its provisions and its legislative history, State of New York v. Green, 96 N.Y.2d 403, 408 n. 2 (2001) (environmental lien provision of the Navigation Law); Matter of Richardson v. Fiedler Roofing Co., 67 N.Y.2d 246, 250 (1986). But since Judiciary Law § 90(2) vests the Appellate Division with authority to censure, suspend, or remove an attorney, the Court of Appeals has jurisdiction to review its order of disbarment only if the evidentiary facts are undisputed and the only possible inference from those facts point to the innocence of the attorney, Matter of Zanger, 266 N.Y. 165 (1935); Matter of Flannery, 212 N.Y. 610 (1914); see Matter of Padilla, 67 N.Y.2d 440 (1986). Further exceptions to the rule stated in Cooper exist. When the issue involved is child custody, the Court held in Matter of Michael B, 80 N.Y.2d 299, 318 (1992), that to ignore the additional matter of which it had been informed “would exalt a procedural rule to the point of absurdity . . . since changed circumstances may have particular significance in child custody matters.’” Quoting from Cohen and Karger, supra. The Court also has held that in determining the meaning of a contract, the appellate judges are not “render[ed] automatons,” limited to choosing the meanings supported by trial counsel, but can determine meaning when the writing is in the record, each party had full opportunity to adduce all pertinent evidence bearing on its construction, and there is no claim or suggestion that either party would or could have offered any further evidence, Rentways, Inc. v. O’Neil Milk & Cream Co., 308 NY 342, 349 (1955). A related doctrine is that of primary jurisdiction, which defers review by the Court of matters within the jurisdiction of an administrative agency until the agency has expressed its views, Uniformed Firefighters Assn of Greater New York v. City of New York, 79 N.Y.2d 236, 241–242 (1992); Capital Telephone

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Company v. Pattersonville Telephone Company, 56 N.Y.2d 11, 22 (1982); cf. Flacke v. Onondaga Landfill Systems, 69 N.Y.2d 355, 362 (1987). As stated in the Capital Telephone case: [t]he doctrine is intended to co-ordinate the relationship between courts and administrative agencies to the end that divergence of opinion between them not render ineffective the statutes with which both are concerned, and to the extent that the matter before the court is within the agency’s specialized field, to make available to the Court in reaching its judgment the agency’s views concerning not only the factual and technical issues involved but also the scope and meaning of the statute administered by the agency.

f. The Rule of Necessity There apparently is no limitation, however, on the Court passing on the constitutionality of a statute when members of the Court may be affected by the outcome of the decision made, Maresca v. Cuomo, 64 N.Y.2d 242, 247 n. 1 (1984), app dismd 474 U.S. 802, on the legality of its own administrative order; Matter of New York State Association of Criminal Defense Lawyers v. Kaye, 95 N.Y.2d 556, 560 (2000) (“The adoption of the rule in question by the Judges of this Court acting in their administrative capacity does not preclude them from deciding, in their adjudicatory capacity, a subsequent case challenging the validity of the rule”);3 see also Matter of Morgenthau v. Cook, 56 N.Y.2d 24, 29, n. 3 (1982), or when the commissioner of an administrative body who, at the time of the hearings before an administrative law judge, was counsel to the agency reviews and accepts for enforcement the ALJ’s order, Matter of General Motors Corp. v. Rosa, 82 N.Y.2d 183 (1993). Each of those cases refers to the rule of necessity, which the Rosa opinion by Chief Judge Kaye states is a narrow exception to the due process requirement of an unbiased adjudication “requiring a biased adjudicator to decide a case if and only if the dispute cannot otherwise be heard” in order to ensure that “where all members of the adjudicative body are disqualified and no other body exists to which the appeal might be referred for disposition . . . neither the parties nor the Legislature will be left without the remedy provided by law,” but requiring that “‘necessity’ . . . be construed strictly in favor of delegating judicial authority to others whenever possible” (82 N.Y.2d at 188). The Court remitted the matter to the Human Rights Division for review by an impartial arbiter. The Morgenthau decision, which dealt with the temporary assignment of judges of the civil and criminal courts of the City of New York, noted in its footnote 3 that the Court of Appeals had “exclusive jurisdiction under the Consti-

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tution of this State to hear the appeal from the order of the Appellate Division; no other judicial body exists to which this appeal could be referred for disposition” and that the situation would be no different if all Court of Appeals judges recused themselves and other judges were substituted for them since the substitute judges “assume the institutional character of this Court and would therefore be subject to the same suggestion of disability that might be thought to exist as to the Court as presently composed.” Likewise the Maresca footnote relied on Morgenthau for its conclusion that the present members of the Court were required to hear and dispose of the appeal in that case. Also to be noted is Matter of Fuchsberg, 43 N.Y.2d (a)-(eee) (1978) in which the Court on the Judiciary (predecessor of the Commission on Judicial Conduct) censured a judge of the Court of Appeals. While decisions of the Commission are reviewable by the Court of Appeals—Const. Art. 6 § 22(d); Judiciary Law § 44, Subds. 7 and 9—as were decisions of the Court on the Judiciary, the judge had waived a formal hearing before the Commission on the charges and did not request review of its decision by the Court of Appeals. Short of such a waiver, however, the rule of necessity would, absent legislative enactment providing otherwise, apply. To be noted, however, is Sharkey v. Thurston, 268 N.Y. 123, 129 (1935), which holds that the Legislature may, if the judges of the Court of Appeals would otherwise be disqualified from hearing a case, designate by whom the appeal should be heard, which would apparently have obviated the Morgenthau holding that the substitute judges would be subject to the same disability as the Court of Appeals judges were.

3. Interrelation of the Court of Appeals, the Legislature, and the Executive

I. The Budget: The Functions of the Court, the Governor, and the Legislature Article VII of the New York State Constitution specifies procedures for the adoption of a State budget. The procedures, based on the concept of an executive budget, have been part of the State Constitution since the adoption of amendments in 1927 during the administration of Governor Alfred E. Smith. Basically, the executive budget approach involves the Governor’s submission of a proposed budget to the Legislature, together with appropriation bills. The content of the Governor’s submission is based on information submitted to the Governor by the various departments of government; the information also is submitted to the appropriate legislative committees. The power of the Legislature with respect to the Governor’s submission is limited and defined by the State Constitution. The Legislature may adopt or reject the bills submitted by the Governor or it may “strike out or reduce items.” No other alterations to the Governor’s bills are authorized except that the Legislature may add items “provided such additions are stated separately and distinctly from the original items of the bill [and each] . . . refer[s] to a single object or purpose.”1 When passed by the Legislature, the bills become law without further action by the Governor, except that the separate items, if any, added by the Legislature are subject to the Governor’s line-item veto. A vote by two-thirds of the elected members of each house may override a veto.

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The Constitution prescribes a slightly different procedure for the judicial budget. Article VII § 1 provides that “[i]temized estimates of the financial needs . . . of the judiciary, approved by the court of appeals and certified by the chief judge of the court of appeals, shall be transmitted to the Governor not later than the first day of December in each year for inclusion in the budget without revision but with such recommendations as he may deem proper. Copies of the itemized estimates of the financial needs of the judiciary also shall forthwith be transmitted to the appropriate committees of the legislature.” The Governor has a second opportunity to approve or disapprove appropriations for the judiciary when, after passage by both houses of the Legislature, the Governor may exercise a line item veto with respect to individual items of appropriation and approve the rest of the items. As with other appropriation bills, the items vetoed do not become law unless the Legislature overrides the veto by a two-thirds vote of the elected members of each house. The Court held in Silver v. Pataki, 96 N.Y.2d 532 (2001), in a 6–1 decision, that the Speaker has standing to seek judicial review of such vetoes. Separation of powers and checks and balances concepts have been the focus of the disputes concerning the implementation of the constitutional provisions governing adoption of a State budget, and the Court of Appeals on several occasions has dealt with disputes concerning the roles of the State government branches in the budget process.2 In People v. Tremaine, 281 N.Y. 1 (1939), the Court addressed the issue of itemization and disallowed the Legislature’s attempt to substitute lump sums for each department in lieu of the separate itemized lines in the Governor’s appropriation bill. The Court held that the Constitution only permitted the Legislature to strike items from the Governor’s bill or to add separately stated items, not to substitute lump sums for the separate items in the Governor’s bill, even though the lump sums reflected the sum of those items in the Governor’s bill. The question of itemization was again addressed in Saxton v. Carey, 44 N.Y.2d 545, 551 (1978), where the Court rejected a claim that the budget adopted for 1978–79 was unconstitutional because the budget submitted by the Governor to and approved by the Legislature (1) was insufficiently itemized and (2) gave the Governor power to transfer funds within particular programs and departments without further legislative approval. The Court rejected both contentions. The Court recognized that under the Constitution the budget process essentially resides in the Governor and the Legislature, and although the courts will always be available to resolve disputes concerning the scope of that authority which is granted by the Constitution to the other two

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branches of the government, [the Court] refuse[d] to extend the power of the robe into an arena in which it was never intended to play a role . . . [holding] that the degree of itemization and the extent of transfer allowable are matters which are to be determined by the Governor and the Legislature, not by judicial fiat. 44 N.Y.2d, at 551 (emphasis added)

[I]temization is necessary to facilitate proper legislative review of the proposed budget. Since this is so, the degree of itemization necessary in a particular budget is whatever degree of itemization is necessary for the Legislature to effectively review that budget. This is a decision which is best left to the Legislature, for it is not something which can be accurately delineated by a court. It is, rather, a function of the political process, and that interplay between the various elected representatives of the people which was certainly envisioned by the draftsmen of the Constitution. Should the Legislature determine that a particular budget is so lacking in specificity as to preclude meaningful review, then it will be the duty of that Legislature to refuse to approve such a budget. If, however, as here, the Legislature is satisfied with the budget as submitted by the Governor, then it is not for the courts to intervene and declare such a budget invalid because of a failure to measure up to some mythical budget specifically delineating the exact fate of every penny of the public funds. “Direct concern with the degree of particularization or subdivision of items lies exclusively with the executive and legislative branches of government simply because they are the sole participants in the negotiation and adoption of an executive budget” (Hidley v Rockefeller, 28 N.Y.2d, 445, supra; [Breitel, J, dissenting]). Should a Legislature fail in its responsibility to require a sufficiently itemized budget, the remedy lies not in the courtroom, but in the voting booth. A similar conclusion must prevail with respect to the provision for the intra-program transfer of funds after the budget has been approved. If the Legislature determines that the demands of government require a certain flexibility in the use of appropriated funds within a particular program or department, then the Constitution is satisfied, and the courts will not disturb that result. 44 N.Y.2d , at 550–551 (emphasis added)

New York State Bankers Association, Inc. v. Wetzler, 81 N.Y.2d 98, 104 (1993), stated that the no-alteration provision is “a limited grant of authority from the People to the Legislature to alter the budget proposed by the Governor, but only

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in specific instances.” Later, a plurality summarized the point: “In other words, all the power the Legislature has to alter the Governor’s appropriation bills stems from Article VII § 4.” Pataki v. Assembly, 4 N.Y.3d 75, 84 (2004), discussed at length infra. However, the Court has not considered the limitation in Article VII, §1 on the Governor’s authority with respect to the judiciary budget presented to him by the Court. Apparently that issue was involved in the action instituted by Chief Judge Wachtler against Governor Cuomo, but that action was settled prior to trial. See Note, “Wachtler v. Cuomo: Does New York’s Judiciary Have An Inherent Right Of Self-Preservation?” 14 Pace Law Review 153, 197 (1994), and particularly p. 199 where the author of the note concludes that the Governor’s failure to submit the judiciary’s budget “without revision” will not entitle the judiciary to the funds the Governor eliminated prior to submission of the budget to the Legislature; see also Glaser, “Wachtler v. Cuomo: the Limits of Inherent Powers,” 78 Judicature 12, 19 (1994). One of the significant publicly discussed concerns during the period covered by this book was a period of chronic significant delays in agreeing on a final budget. A measure to provide incentive for timely legislative action was enacted in 1998. The statute provided that if the Legislature failed to pass a budget by April 1, the beginning of the fiscal year, salaries of legislators would not be paid until the Legislature passed a state budget. It should be noted that the statute did not require the Legislature to approve the Governor’s proposal; it only need perform the Legislature’s constitutional duty to pass some budget by the beginning of the fiscal year. Several members of the Legislature who had voted against the 1998 provision and some who took office after its passage challenged its constitutionality in Cohen v. State of New York, 94 N.Y.2d 1 (1999). They contended that the provision violated (1) the separation of powers doctrine and (2) Article III, section 6, of the State Constitution which provides, inter alia, that “[n]either the salary of any member [of the Legislature ] nor any other allowance . . . fixed may be increased or diminished during, and with respect to, the term for which he shall have been elected.” In a 6–1 decision, the Court sustained the constitutionality of the measure in an opinion by Judge Bellacosa that addressed and rejected both contentions. In Pataki v. New York State Assembly and Silver v. Pataki, 4 N.Y.3d 75 (2004), the Court addressed the Constitution’s “no-alteration clause” and the executive’s roles in the executive budget–making process.3 Specifically, the Court examined the series of budgets first enacted in 1998 and three forms of legislative responses to the appropriation language contained in the Executive Budget submissions.

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The first type of legislative response occurred in 1998, when the Legislature passed the Executive’s appropriation bills without altering them except to strike out or reduce certain items, practices that are constitutionally permissible. However, as the result of a two-way budget accord between the Senate and Assembly, the Legislature amended the Governor’s other, non-appropriation budget bills to intentionally remove and replace the legal policy provisions which had been integrated into the appropriations submitted by the Governor and previously passed by the Legislature. The Governor used his line-item veto to delete many of these provisions, claiming that the Legislature had made an end-run around the constitutionally mandated executive budget indirectly undermining his budget-making and law-circumventing authority. The Legislature sued the Governor to invalidate his vetoes. The second form of legislative response to legal policy language and proscriptions adjunct to a monetary appropriation in an executive budget occurred in 2001, when the Governor submitted appropriation bills which included extensive, detailed programmatic language and alterations to existing law. For example, the appropriation bills created a state entity that did not previously exist, the Office of Cultural Resources, which was designated to receive funding for activities that were statutorily under the control of the Board of Regents. The Legislature, in addition to deleting entire items of appropriation funding such an office, a constitutionally permissible response, substituted its own language appropriating identical amounts of money for such purposes but subject to different conditions and restrictions. Finally, as a third form of response, as part of the same two-way legislative accord, the Legislature replaced some of the Governor’s multiple appropriation bills with single purpose bills that addressed the same appropriations. The Governor sued the Legislature over these alterations. In examining the State’s executive budgeting system, a majority of the Court of Appeals accorded the Governor the most expansive, flexible reading of his budget submission powers under section 3 of Article VII while construing the State Constitution’s limits on the Legislature’s role in the Executive Budget, i.e., section 4, as rigidly and literally as possible. Under the majority’s restrictive interpretation of section four, any attempt by the Legislature to strike out an appropriation and related proposed legislation and replace it with, or substitute for it language agreed upon by both houses of the Legislature either (1) in a stand alone bill, (2) by amendment of the appropriation or budget bill as submitted by the Governor or (3) in legislation that effectively changes or undermines the appropriation language submitted by the Governor, is unconstitutional. Moreover, the Court found that the authority of the Governor to craft legislation and include appropriation language that “relates specifically to some par-

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ticular appropriation in the bill,” while not unlimited, gives him wide latitude to include substantive legislation in his appropriation bills. While acknowledging that there might be some proposals that he could not include in an appropriation bill (e.g., raising the mandatory age of retirement of firefighters as a condition of appropriations to fire departments) and that nonfiscal and nonbudgetary matters could not properly be contained in such legislation, a plurality opinion of the Court found that since all appropriations are by nature substantive and implement a policy; the mere fact that an appropriation includes or changes policy, even if such policy is embodied in statute elsewhere, does not subject the Governor’s budget submission to anything other than the limited tools supplied to the Legislature by the Constitution. A concurring opinion offered a slightly more restrictive view of the Governor’s appropriation-shaping powers. Thus, while the Legislature may reject an appropriation in total or reduce the amount available, it cannot “substitute” its own policy-prescribing language for that contained in the executive budget. It may also include additions that are stated separately from the original items in the bill (subject to a veto by the Executive). The Court left to the “political process” any other differences between the Governor and the Legislature on these specific budget related issues. Simply stated, using the Court’s words, the Governor is the “constructor” of the budget while the Legislature acts only as a “critic.” In its capacity as critic, the Legislature may not, the majority opined, substitute its judgment for the terms and conditions of an appropriation and may express its dissatisfaction only by striking an appropriation or reducing it. The Legislature is also free to decline to enact legislation it believes is unsuitable or pernicious, “[b]ut it cannot adopt a budget that substitutes its spending proposals for the Governor’s.” The effect of these decisions on the budget process will in all likelihood be profound given this Governor’s propensity to include in his appropriations often profound annualized substantive changes to law and programs. The options available to both houses of the Legislature acting on their own or in unison have been narrowed to those specifically set forth in the New York Constitution, so that even an agreed-upon two-way budget may not infringe on the broad powers that the Court of Appeals has found vested in the Executive in its budgetmaking capacity. The Court also has considered several other objections to the budget submitted by the Governor. People v. Tremaine, 281 N.Y. 1, 11 (1939), held that the Legislature may not strike out the Governor’s items but may add items, the additions to be separately stated and each to refer to a single purpose. The Court held in Saxton v. Carey, 44 N.Y.2d 545, 551 (1978), that the courts will always

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be available to resolve disputes concerning the scope of the authority granted by the Constitution to the other two branches of the government, and in New York State Bankers Association, Inc. v. Wetzler, 81 N.Y.2d 98, 104 (1993), that Article VII § 4 constitutes a limited grant of authority to the Legislature to alter the budget proposed by the Governor, but only in specific instances. It has not, however, considered the limitation in Article VII § 1 on the Governor’s authority with respect to the judiciary budget presented to him by the Court. Apparently that issue was involved in the action instituted by Chief Judge Wachtler against Governor Cuomo, discussed supra, but as stated above on page 85, that action was settled prior to trial.

II. The Roles of the Court, the Legislature, and the Executive in Making Law Judiciary Law § 214 establishes the Judicial Conference of the State of New York, consisting of the Chief Judge of the Court of Appeals and the presiding justices of the appellate divisions, nine judges of named trial courts, and one member of the bar from each judicial department. Section 215 mandates that the Conference study and recommend changes in laws, statutes, and rules relating to civil, criminal, and family law practice which, in its opinion, will promote simplicity in procedure, the just determination of cases and controversies, and the elimination of unjustifiable expense and delay. Constitution Article VI § 30 gives the Legislature power to alter and regulate the jurisdiction and proceedings in law and equity that it has heretofore exercised and to delegate its power to regulate practice and procedure in the courts. Legislative Law § 70 creates the Law Revision Commission consisting of the chairman of the Committee on Judiciary and Codes of the Senate and Assembly and five additional members appointed by the Governor, four of whom shall be attorneys and counselors admitted to practice in New York and at least two of whom shall be members of the law faculties of universities or law schools within the State recognized by the Board of Regents. Constitution Article IV § 3 provides that the Governor shall communicate by message to the Legislature at every session the condition of the State, and recommend such matters to it as he shall judge expedient, Executive law § § 6 and 63(8) authorize the Governor to establish a Commission (referred to as a Moreland Commission) to investigate the management and affairs of any department, board, bureau, or commission of the state, but not of the Judicial or Legislative branches of government. As the Court of Appeals held in Matter of

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Johnson v. Pataki, 91 N.Y.2d 214, 223 (1997), when the Governor acts by Executive Order pursuant to a valid grant of discretionary authority, his actions are largely beyond judicial review. The complexity of the interpretation of the powers of the Court and the Legislature is well illustrated by a number of Court of Appeals decisions. In Saratoga Chamber of Commerce v. Pataki, 100 N.Y.2d 801 (2003), the decision related to a compact with an Indian tribe entered into on the authority of the Governor, without legislative approval, which permitted gambling on Indian reservations. In the Saratoga decision Judge Albert Rosenblatt opined: Stated succinctly, the separation of powers “requires that the Legislature make the critical policy decisions, while the executive branch’s responsibility is to implement those policies.” This is not to say that the functions of government can be neatly boxed into judicial, executive and legislative categories. The distinctions are often elusive, and the fluid functioning of government requires that the interactions among the three branches be allowed some “play in the joints.” It thus falls to the courts and ultimately to this Court, to determine whether a challenged gubernatorial action is “legislative” and therefore ultra vires. In this case we have no difficulty determining that the Governor’s actions were policymaking and thus legislative in character.” (citations omitted).

In Matter of A.G. Ship Maintenance Corp. v. Lezak, 69 N.Y.2d 1 (1986), the Court held that although the State Constitution delegated primarily to the Legislature authority to regulate practice and procedure in the courts, some matters are not subject to legislative control because they deal with the inherent nature of the judicial function. Nevertheless, court rules prescribing practice must be consistent with and may be abrogated by statute. It held that because frivolous litigation so seriously affects the proper administration of justice the courts may proscribe such conduct and impose sanctions in the exercise of their rule-making power in the absence of legislation to the contrary, but that because there was neither a statute nor a court rule at the time of petitioner’s contempt proceeding, no sanction could be imposed. Authority cited for its holding was Riglander v. Star Co., 98 AD. 101, aff’d. no op. 181 N.Y. 531 (1905), which had held unconstitutional, as depriving the courts of judicial discretion and in violation of due process of law, a statute that required that a case qualified for preference be set down for trial on a specified date at which time, without regard to the readiness of the parties, the court had to proceed with trial of the case.

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The Lezak rule applies as well to administrative agencies. Thus in Matter of Beer Garden v. New York State Liquor Authority, 79 N.Y.2d 266, 275 (1992), the Court held “that the SLA cannot take refuge in [a statutory grant of] general rulemaking authority as a means of circumventing the specific requirement in the Alcoholic Beverage Control Law” that, in effect, requires that the bar owner be aware of disorderly conduct as a condition for imposition of sanctions. Therefore, the SLA exceeded its authority in imposing a fine upon a licensee not shown to be aware of the disorderly conduct based on a general rule regulating disorderly conduct in licensed premises. A general authority to make regulation does not permit avoidance of the specific limitations on the statute. The Lezak rule has been applied as well to an award of attorney’s fees with the addition that agreement between the parties as well as statute or court rule permits such an award. Glenn v. Hoteltron Systems, 74 N.Y.2d 386, 393 (1989), Hooper Associates Ltd. v. AGS Computers, 74 N.Y.2d 487, 491, (1989). The Court has several times recognized that “[t]he power to regulate practice and procedure lies principally with the Legislature not the courts,” People v. Ricardo B, 73 N.Y.2d 228, 232 (1989), citing N.Y. Court Art. VI, § 30 and Lezak; see People ex rel Gonzalez v. Warden, Brooklyn House of Detention, 21 N.Y.2d 18, 24 (1967), holding that although the then bail system was subject to abuse, the adoption of a nonfinancially oriented bail system “is more properly within the province of the Legislature.,” See also Matter of Taylor v. Sise, 33 N.Y.2d 357, 365 (1974), holding that the Court “should not substitute its judgment for that of the Legislature in determining the particular method to meet a given need”; and Cohn v. Borchard Affiliations, 25 N.Y.2d 237, 247, 252 (1969), upholding the constitutionality of CPLR 3216 which required that defendant serve upon plaintiff a written demand that a note of issue be filed before defendant could move to dismiss plaintiff’s complaint for failure to prosecute the action. Its reasoning was that “the language of the Constitution leaves little room for doubt that the authority to regulate practice and procedure in the courts lies principally with the Legislature” (id., at 247) and “that the statute— whatever we may think of the policy it expresses—constitutes a valid exercise of legislative power” (id., at 252). Particularly when an anomaly in a statute “rests on nonavoidable statutory language, any modification would be for the Legislature to change,” People v. LaFontaine, 92 N.Y.2d 470, 475 (1998); see also Matter of Hogan v. Supreme Court, 281 N.Y. 572, 576 (1939). The deference of the Court to the Legislature is illustrated by Matisoff v. Dobi, 90 N.Y.2d 127, 133 (1997), quoting from Chamberlain v. Spargur, 86 N.Y. 603, 606 (1881), “that we are judges and not legislators, and must not assume to make exceptions or insert qualifications,

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however justice may seem to require it” and holding that “it was for the Legislature, not the courts, to weigh . . . policy interests and choose between a flexible or brightline rule,” and Credit Agricole Indosuez v. Rossiyskiy, 94 N.Y.2d 541, 551 (2000), stating that when asked to exercise inherent judicial powers to impose significant innovations in the field of provisional remedies, we have previously determined that the balancing of important competing interests and crafting of appropriate safeguards and standards to ensure that the balance is fairly administered in the individual case, are “task[s] best left to statutes and rules rather than ad hoc judicial decision-making” (Uniformed Firefighters Assn’of Greater New York v. City of New York, 79 N.Y.2d 236, 241). The same self-restraint and deference to a legislative solution applies here, where judicial innovation may have far-reaching impact on the existing balance between debtors’ and creditors’ rights.

There are, however, statutes in which the Legislature deliberately defines its subject broadly in order to give the courts necessary flexibility in a sensitive and difficult area, such as equitable distribution of marital property, Angelin v. Angelin, 80 N.Y.2d 553, 558–559 (1992), and see Chapter 23, Family Law, infra. Note, however, that with respect to duty as a matter of tort law “[w]hile the Legislature can create duty by statute, in most cases duty is defined by the courts, as a matter of policy,” Lauer v. City of New York, 95 N.Y.2d 95 (2000), or as stated in DeAngelis v. Lutheran Medical Center, 58 N.Y.2d 1053, 1055 (1983), “absent legislative intervention, the fixing of the ‘orbit’ of duty . . . in the end is the responsibility of the courts.” Thus, although McLean v. Triboro Coach Corp., 302 N.Y. 49, 51 (1950), questioned the correctness of the rule holding common carriers to a very high degree of care in transporting passengers, as also did the Court in Adams v. New York City Transit Authority, 88 N.Y.2d 116, 121 (1996), it was not until Bethel v. New York City Transit Authority, 92 N.Y.2d 348, 351, 356 (1998), that the Court held that rule was no longer viable and modified the rule so that common carriers owe only a duty of reasonable care. The Court has also recognized that some social problems are best and more appropriately explored and resolved by the Legislature, particularly where there are competing interests at stake, Hall v. United Parcel Services of America, 76 N.Y.2d 27, 34 (1990) (declining to recognize a cause of action for negligent administration of a lie detector test), and in Murphy v. American Home Products Corp., 58 N.Y.2d 293, 301–302 (1983) (refusing to recognize as a tort the abu-

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sive or wrongful discharge of an at-will employee), held that significant changes in the law are best left to the Legislature which “has infinitely greater resources and procedural means to discern the public will, to examine the variety of pertinent considerations, to elicit the views of the various segments of the community that would be directly affected and in any event critically interested, and to investigate and anticipate the impact of imposition of . . . liability.” However, the Court has not hesitated to express its discomfiture with the absence of a statutory mechanism to address a particular problem and suggest that legislation held unconstitutional by its decision should be rewritten to avoid the constitutional problem, Fred F. French Investing Company, Inc. v. City of New York, 39 N.Y.2d 587, 600 (1976), or “invite the Legislature’s prompt attention to” the problem, People v. Bachert, 69 N.Y.2d 593, 600 (1987), to the need for legislative reconsideration of the harsher aspects of a given statute identified in case law, In re Gleason (Michael Vee Ltd.), 96 N.Y.2d 117 (2001) (arbitration); Rosenbaum v. City of New York, 96 N.Y.2d 468 (2001) (real property law); Central General Hospital v. Chubb Group of Insurance Companies, 90 N.Y.2d 195, 201 (1997) (no fault insurance); Matter of Sarah K., 66 N.Y.2d 223 (1985) (adoption law); Camarella v. East Irondequoit Central School Board, 34 N.Y.2d 139, 142 (1974) (notice of claim provisions of General Municipal Law § 50-e). It has also in Simpson v. Loehmann, 21 N.Y.2d 305, 312 (1967), suggested that the Law Revision Commission and the Advisory Committee of the Judicial Conference study in depth and make recommendations with respect to the in rem jurisdiction of the courts. See also Henry v. City of New York, 94 N.Y.2d 275 (1999), which notes that the 1974 amendment to CPLR 208 resulted from a comprehensive study by the Law Revision Commission as to the effect of the Twenty-Sixth Amendment to the U.S. Constitution reducing voting age from 21 to 18 and In re Burchell’s Estate, 299 N.Y. 351 (1949), which, based on the dissent, resulted in the Commission’s recommendation of clarifying amendments (1951 Commission Report, 84, 85, 104), and the passage of N.Y. Session Laws 1951, Ch. 180, making the recommended changes. The same practice was followed with respect to a municipal regulation in Matter of New York City Coalition to End Lead Poisoning, Inc. v. Vallone, 99 N.Y.2d 502 (2003). Having held that New York City Council enactment of Local Law 38 of 1999 dealing with abatement of lead paint in multiple dwelling units was invalid for failure to comply with the State Environmental Quality Review Act the opinion by Judge Graffeo concluded with the statement that “[i]n holding Local Law 38 null and void and remitting to Supreme Court, we expect that the parties will continue to work cooperatively to ensure that the resurrection of Local Law 1 [which defined an owner’s abatement practices] does not further imperil New York City’s children.”

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The Legislature often responds to particular Court decisions. Thus as noted in Matter of Attorney General of the State of New York v. Firetog, 94 N.Y.2d 477 (2000), the 1980 amendment of CPL 210.30(3) legislatively overruled Jaffe v. Scheinman, 47 N.Y.2d 188 (1979), which had divested courts of any authority to allow defense counsel access to grand jury minutes for the purpose of preparing a challenge to the legal sufficiency of an indictment. Similarly, People v. Hamlin, 71 N.Y.2d 750, 751, 761 (1988), states that Criminal Procedure Law §§ 60.45 and 710.70(3) now spell out the procedure first set forth in People v. Huntley, 15 N.Y.2d 72, 78 (1965), with respect to the voluntariness of a confession: the People are required to give defendant notice that an alleged confession will be offered at trial, the defense is then entitled not only to a preliminary hearing on the issue but also to the right to challenge the confession before the jury. That a statute has been enacted or amended in response to a particular decision is often stated in post-amendment decisions. Thus, People v. Jeanty, 94 N.Y.2d 507 (2000), noted that CPL 270.35 re dismissal of a juror was amended in response to the Court’s ruling in People v. Page, 72 N.Y.2d 69 (1988); and three cases (Messenger v. Gruner + Jahr Printing and Publishing, 94 N.Y.2d 436 [1999]; Howell v. New York Post Company, 81 N.Y.2d 115, 123 [1993]; and Binns v. The Vitagraph Company, 210 N.Y. 51, 55 [1913]) each noted that sections 50 and 51 of the Civil Rights Law were enacted in response to the Court’s holding in Roberson v. Rochester Folding Box Company, 171 N.Y. 538 (1902), that New York does not recognize a common law right of privacy. See also DiMichel v. South Buffalo Railway Company, 80 N.Y.2d 184 (1992), and Bill Jacket, L. 1993 ch. 574 which, as noted in DiNardo v. Koronowski, 252 A.D.2d 69, 71 (1998), shows that the Legislature, in enacting CPLR 3101(g) and (h), wanted to codify the holding of DiMichel with respect to disclosure of surveillance tapes and to expand its holding, but not to restrict the timing of disclosure until after depositions, as the Court did in its DiMichel opinion. The Court has at times intentionally deferred to the Legislature rather than itself revise prior court-declared rulings. Thus in Loschiavo v. Port Authority of New York and New Jersey, 58 N.Y.2d 1040 (1983), the Court declined to change the well-settled, though widely criticized rule of evidence that excludes the hearsay statement of an employee unless the statement was an activity within the scope of the employee’s authority, but noted that a proposal for modification of the hearsay rule was then before the Legislature and the decision in Codling v. Paglia, 32 N.Y.2d 330, at 334–345 (1973), deferred to the Legislature rather than itself revise negligence law to include comparative negligence, even though the doctrine of contributory negligence was of judicial rather than legislative origin and had previously been criticized by the Court, comparative negligence being a topic more appropriate for legislative address.4

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Illustrations of legislative response to Court of Appeals decisions can also be found in the Legislative and Executive Memoranda reprinted in McKinney’s Session Laws. Because more extensive recitation is unnecessary, examples given are limited to the 1997, 1998, and 1999 Session Laws. The Legislative Memorandum relating to Chapter 435 of the 1999 Laws recites that it was introduced at the request of the Chief Administrative Judge upon recommendation of the judges of the Court of Claims with respect to service of process in cases in that court, as a result of the decisions in Finnerty v. New York State Thruway Authority, 75 N.Y.2d 721 (1989), and Brinkley v. CUNY, 92 A.D.2d 805 (1983). The Legislative Memorandum relating to Chapter 159 of the 1998 Laws stated that it was introduced at the request of the Chief Administrative Judge upon recommendation of his Advisory Committee on Criminal law and Procedure in response to the Court of Appeals decision in People v. Rodney E, 77 N.Y.2d 672 (1991), and the Legislative Memorandum relating to Chapter 510 of the 1998 Laws noted that its purpose was to clarify the meaning of the term “price gouging” by codifying the decision of the Court of Appeals in People v. Two Wheel Corp., 71 N.Y.2d 693 (1998). The Executive Memorandum reprinted in the 1996 McKinney’s Session Law relating to Chapter 630 of the 1996 Laws stated that it amended the Criminal Procedure Law in relation to discharge of sworn jurors as declared in People v. Spivery, 81 N.Y.2d 356 (1993), and People v. Pape, 72 N.Y.2d 69 (1988), and the Executive Memorandum concerning Chapter 631 of those Laws recited that it was a Governor’s Program Bill, the purpose of which was to reverse the Court of Appeals’ holding in People v. Bolden, 81 N.Y.2d 146 (1993), and People v. Luperon, 85 N.Y.2d 71 (1995), with respect to a defendant’s right to a speedy trial. It should also be noted that the Court has at times suggested change in an executive official’s procedure. See e.g. People v. Jones, 95 N.Y.2d 721, 728 fn. 3 (2001), which calls to the attention of district attorneys “that suppression motions would be more expeditiously handled if the People were to disclose the description [radioed by the drug purchasing officer to the arresting officer] outright to a defendant within the time limit in which a motion to suppress must be made.”

III. Stare Decisis The extent to which the Court of Appeals is bound by its own prior decisions turns in part on the relation between the Court and the Legislature, but as noted in People v. Hobson, 39 N.Y.2d 479, 487–490 (1976), involves a number of other

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factors as well. The Hobson opinion, by Chief Judge Breitel, concerned the right to counsel in a criminal case. In such a case, the Court held, legislative correction is confined (by the provision of the Constitution with respect to amendment of that document) and “the principle is well established that in cases interpreting the Constitution, courts will if convinced of prior error, correct the error,” provided the correction of error is imperative. But in election cases the Court has stated in Matter of Staber v. Fidler, 65 N.Y.2d 529, 535 (1985), “that there is room for judicious decision-making . . . without offending the policy of stare decisis.” Likewise in tort cases, especially personal injury cases, courts more readily reexamine established precedent to achieve the ends of justice in a more modern context when the precedent, though well established is found to be analytically unacceptable and, more important, out of step with the times and the reasonable expectations of members of society. Critical to adherence to precedent, the opinion noted, is the requirement that those who engage in transactions based on prevailing law be able to rely on its stability, especially in cases involving property rights, contractual rights, and property dispositions, whether by grant or testament, the absence of such factors making it easier to reassess an aberrational departure from precedent and accepted principles. Precedents involving statutory interpretation, the decision stated, are entitled to great stability, since if the legislative intent has been misinterpreted, the Legislature can correct it. An exception to that rule, however, exists when the statute is phrased in such general terms as to evidence the Legislature’s intent that the courts fill in on a case by case basis what it covers, though their flexibility in doing so is not unlimited. In each of the above instances, whether a prior decision will be followed turns in good part on whether it is but a conclusory statement of its result or is the result of reasoned and painstaking analysis. The Hobson case illustrates the correction of error in prior decisions involving the right to counsel under the State Constitution. In that case the sheriff’s deputy, who was aware that defendant had counsel, obtained defendant’s consent to speak with a detective, during which defendant confessed to the robbery in question. The Hobson opinion noted that in a number of cases, stretching over almost two decades, concerning a confession thus obtained it had been held that a defendant in custody could not waive his right to counsel unless the waiver was made in the presence of counsel. In three then recent cases the Court had reached contrary conclusions. The Court held that the earlier level of cases represented a prior doctrine more embracing in its scope, intrinsically sounder and verified by experience while the three recent cases, though they present recency in time, were surely in collision with the prior doctrine and were decided by the closest possible

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margin in the Court. It, therefore, reversed the Appellate Division’s order, which had upheld denial of a motion to suppress defendant’s incriminating statements and suppressed the statements. Note, however, the extended discussion of stare decisis in People v. Bing, 76 N.Y.2d 331 (1990), which overruled the holding in People v. Bartolomeo, 53 N.Y.2d 225 (1981), that defendant waived his right to counsel notwithstanding failure of the police, though aware of counsel in a prior pending proceeding, to inquire concerning representation of the defendant on the later charge on which he was interrogated. Judge Simon’s Bing opinion traced the history of the Bartolomeo rule and concluded that “there is little to be said for a rule which is not firmly grounded on prior case law, cannot be applied uniformly, favors recidivists over first-time arrestees, and exacts such a heavy cost from the public,” 76 N.Y.2d, at350.5 The stability principle referred to above is illustrated by cases such as Madfes v. Beverly Development Corp., 251 N.Y. 12, 18 (1929), remittitur amended 251 N.Y. 589, which held that gas ranges retained their character as personalty though attached to the gas service pipes in an apartment house, and that it was not the province of the Court to alter a rule of property so well established, and Meyers v. Credit Lyonnais, 259 N.Y. 399, 404 which in 1932 held that the rule established by an 1808 decision, Ruggles v. Keeler, 3 Johns 263, that in an action brought in New York between nonresidents on a cause of action which arose outside New York, the nonresident defendant could not plead New York’s statute of limitations, numerous amendments having been made to the New York statute none of which affected the rule of the Ruggles case, although if the question were an open one, defendant’s argument would “require most serious consideration.” But compare Matter of Higby v. Mahoney, 48 N.Y.2d 15, 18 n. 1 (1979), which stated that if strong arguments could not be made to support a different result, there would be no reason to rely on the doctrine, but also, at p. 19, that “in the face of continued and continuing legislative inattention or inertia the courts may properly step in to effect a change in statutory interpretation, [although] such instances are the exception rather than the rule.” The Court has recently reiterated in Eastern Consolidated Properties v. Adelaide Realty Corp., 95 N.Y.2d 785 (2000), that “the doctrine of stare decisis should not be departed from except under compelling circumstances.” When its departure results not from circumstantial distinction but from disagreement with the prior decision, its opinion will often call attention to that fact by stating that the prior precedent is “not to be followed” or some similar expression. However stare decisis being a matter of judicial policy rather than a rule of law, Heyert v. Orange and Rockland Utilities, 17 N.Y.2d 352, 360 (1966), change in the common law is not only the right but the duty of the Court when justice demands

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it, Woods v. Lancet, 303 N.Y. 349, 355 (1951). The Woods case permitted recovery on behalf of an infant born with permanent disability as a result of defendant’s negligence in treating the mother prior to birth of the infant, although a case decided thirty years earlier by a divided vote had denied recovery in such a case. Likewise Bing v. Thunig, 2 N.Y.2d 665 (1957), overturned the rule that respondeat superior did not impose liability upon hospitals for the negligence of their doctors, nurses, and other skilled personnel, after noting that the Court in several prior cases had indicated its dissatisfaction with the rule, notwithstanding the failure of the Legislature to change the rule. And as Silver v. Great American Insurance Co., 29 N.Y.2d 356, 363 (1972), held, the rule that forum non conveniens only applies when the action is between two nonresidents because, as a court-created rule of procedure, it need not be followed when reason and substantial justice call for change nor need legislative action be awaited. Stare decisis does not, however, require adherence to a prior precedent when the rule declared in the prior case is clearly distinguishable on its facts from the case before the Court. Poslock v. Teachers Retirement Board, 88 N.Y.2d, 46 (1996), is such a case. In Poslock the plaintiffs argued that, based on the exception to the dead man’s statute recognized in Ward v. New York Life Ins. Co., 225 N.Y. 314 (1919), as to life insurance proceeds which never belonged to decedent, testimony concerning decedent’s intentions with respect to distribution of his pension and retirement benefits were not barred by the statute. The Court distinguished the Ward case, pointing out that the assets in the retirement plan belonged to decedent during his lifetime, that he had the option to direct where his contributions would be invested and was eligible to borrow up to 75 percent of the funds invested, and if he had not designated any beneficiary the final payout upon his death would have gone directly to his estate. It held, therefore, that Ward’s was inapplicable and the testimony was admissible. The fine distinctions drawn in stare decisis analysis are demonstrated by the holdings in Woods v. Lancet, supra, Albala v. City of New York, 54 N.Y.2d 269 (1981), and Enright v. Eli Lilly and Co., 77 N.Y.2d 377 (1991). As already noted, Woods upheld a cause of action on behalf of a child for prenatal injuries incurred in utero, as a result of a tort committed against the child’s mother during pregnancy. Albala upheld dismissal of an action on behalf of an infant born with a damaged brain as a result of the perforation of his mother’s uterus during performance of an abortion four years before the infant’s birth. Enright concerned the strict product liability of the manufacturer of the drug DES, which was ingested by plaintiff’s grandmother, whose mother’s reproductive system was damaged by her in utero exposure to DES. The Court held that it was its duty to

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confine liability within manageable limits and that limiting liability to those who ingested the drug or were exposed to it in utero served that purpose. It therefore dismissed the granddaughter’s cause of action. To be noted also are cases such as Adirondack League Club v. Sierra Club, 92 N.Y.2d 591, 608 (1998), in which the Court dismissed an appeal as mooted by a legislative act passed after the Appellate Division’s decision, but remitted the case to that court with directions to discuss appellant’s petition on mootness grounds, since the Court’s dismissal of the appeal before it would have left the decision of the Appellate Division intact as precedent.

4. Common Law and the Court of Appeals

I. Cardozo Benjamin Nathan Cardozo is a central element in any description of the development of the common law by the Court of Appeals, as Judge Bergan recognized in The History of the New York Court of Appeals, 1847–1932, at 248–252. Judge Jerome Frank expressed deep admiration for Cardozo’s “candor” in his writings and lectures about how common law judges make decisions.1 To place ensuing development in context, it is useful to recall Cardozo’s description of how the Court works in dealing with its role and obligations. Judge Cardozo wrote: My analysis of the judicial process comes then to this, and little more: logic, and history, and custom, and utility, and the accepted standards of right conduct, are the forces which singly or in combination shape the progress of the law. Which shall dominate in any case, must depend largely upon the comparative importance or value of the social interests that will be thereby promoted or impaired. One of the most fundamental social interests is that the law shall be uniform and impartial. There must be nothing in its action that savors of prejudice or favor or even arbitrary whim and fitfulness. Therefore in the main there shall be adherence to precedent. . . . The social interest served by symmetry or certainty must then be balanced against the social interest served by equity and fairness or other elements of social welfare. . . .

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If you ask how he is to know when one interest outweighs another, I can only answer that he must get his knowledge . . . from experience and study and reflection, in short from life itself. . . . He legislates only between gaps. . . . How far he may go . . . [h]e must learn for himself as he gains the sense of fitness and proportion that comes with years of habitude in the practice of an art.2

Illustrative of the Court’s decision-making philosophy is Judge Adrian P. Burke’s statement in Woods v. Lancet, 303 N.Y. 349, 355 (1951): “We act in the finest common-law tradition when we adopt and alter decisional law to produce common-sense justice. . . . Legislative action there could, of course, be, but we abdicate our own function, in a field peculiarly nonstatutory, when we refuse to reconsider an old and unsatisfactory court-made rule.” The statement was later quoted by Judge Desmond in Battalla v. State of New York, 10 N.Y.2d 237, 239 (1961). Lancet and Battalla continued the approach characteristic of Judge Cardozo’s philosophy of judicial decision-making illustrated by his opinions in MacPherson v. Buick Motor Co., 217 N.Y. 382 (1916), and Hynes v. New York Central Railroad Company, 231 N.Y. 229 (1921). MacPherson extended the principles of earlier cases which dealt with implements which in “normal operation were implements of destruction to users of an instrument which the manufacturer knows will be used by persons other than the purchaser, without new tests, then, irrespective of contract, the manufacturer is under a duty to make it carefully. . . . There must be knowledge of a danger, not merely possible, but probable. . . . We have put aside the notion that the duty to safeguard life and limb, when the consequences of negligence may be foreseen, grows out of contract and nothing else. We have put the source of the obligation where it ought to be. We have put its source in the law.” 217 N.Y., at 389 (emphasis added). Hynes contained language characteristic of Cardozo’s approach to common law decision-making. Hynes was a precurser of later decisions that expanded the duty of landowners to persons on the land. In Hynes, a young boy was injured when he was struck by electric wires originating on the railroad’s right of way on land while he was jumping from the end of a springboard into the Harlem River. The springboard had been attached to the land and extended over the river. The issue was posed in terms of whether the boy was a trespasser and consequently not entitled to recover. Judge Cardozo ruled that he was entitled to recover. Succinctly, he stated the opposing contentions. “Jumping from a boat or a barrel, the boy would have been a bather in the river. Jumping from the end

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of a springboard, he was no longer, it is said, a bather, but a trespasser on a right of way. Rights and duties in systems of living law are not built upon such quicksands.” 231 N.Y., at 233 (emphasis added). Cardozo’s influence continues. See, for example, Norcon Power Partners, L.P. v. Niagara Mohawk Power Corp., 92 N.Y.2d 458 (1998), in which Judge Joseph W. Bellacosa states: Therefore, this Court chooses to take the traditionally subtler approach, consistent with the proven benefits of the maturation process of the common law, including in the very area of anticipatory repudiation which spawns this relatively newer demand for assurance corollary [quoting from Breitel, “The Lawmakers,” 2 Benjamin N. Cardozo Memorial Lectures], at 781–782 (1965): “The commonplace, for which the Holmeses and the Cardozos had to blaze a trail in the judicial realm, assumes the rightness of courts in making interstitial law, filling gaps in the statutory and decisional rules, and at a snail-like pace giving some forward movement to the developing law. Any law creation more drastic than this is often said and thought to be an invalid encroachment on the legislative branch.” 92 N.Y.2d, at 468 (citations omitted)

II. Constitutional and Statutory Provisions Article I § 14 of the New York Constitution directs that [s]uch parts of the common law, and of the acts of the legislature of the colony of New York, as together did form the law of the said colony, on the nineteenth day of April, one thousand seven hundred seventy-five, and the resolutions of the congress of the said colony, and of the convention of the State of New York, in force on the twentieth day of April, one thousand seven hundred seventyseven, which have not since expired, or been repealed or altered; and such acts of the legislature of this state as are now in force, shall be and continue the law of this state, subject to such alterations as the legislature shall make concerning the same. But all such parts of the common law, and such of the said acts, or parts thereof, as are repugnant to this constitution, are hereby abrogated.3

Originating as Article 35 of the Constitution of 1777, the reference to the constitutional and statutory provisions then in force has remained in the section

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as it proceeded through the Constitutions of 1821 (Article VII § 13), 1846 (Article I § 17), 1894 (Article I § 16) and the 1939 amendment (Article I § 14, effective January 1, 1939). It continues statutes in force at the time of adoption of each of those constitutional provisions, but does not update its reference to the common law in effect after April 19, 1775. As it is worded, therefore, its only effect as to rules of the common law is, pursuant to its final sentence, to abrogate such parts of the common law and statutes as were repugnant to other constitutional provisions at the time each of the constitutional provisions was adopted and which had not after April 1, 1777, expired, or been repealed or altered. Consistent with the Constitution’s reference to the common law as found in the law of the colony on April 1, 1775, the Court has looked to pre1775 English authorities. For example Morgan v. King, 35 N.Y. 454, 457–458 (1866), defined “navigable waters” in terms of English texts and case law, referring to 1 Blackstone Commentaries (1766), for “the general principle of the common law of England that English subjects, colonizing a new country, carry with them only so much of the law of the mother country as is applicable to their own situation and the condition of an infant colony.” The Court also cited another English text, Hale, DeJure Maris (1786),4 and an earlier decision of the New York Supreme Court, Ex Parte Jennings, 6 Cow. 518 (1826), for the English common law rule that the public has a right of way or easement paramount to the rights of riparian owners which, though not tidal or navigable, in the sense of the former rule, are navigable in fact; see also Adirondack Club v. Sierra Club, 92 N.Y.2d 591 (1998), which relied heavily on Morgan v. King, supra, for its holding that the record in the Adirondack case presented issues of material fact with respect to navigability which must be determined after a plenary trial. However, despite, or rather notwithstanding, the above quoted language of the constitutional provisions the Court of Appeals held in Town of Brookhaven v. Smith, 188 N.Y. 74, 78 (1907), that [t]he evidence of the common law, so far as it has not been declared in English statutes, we find in decisions of English courts rendered in existing controversies and those decisions will be given their due effect here, when the law has not been changed by our statutes; unless new conditions, or a different public policy, demand that the rule contended for be modified by our courts in its application. Different political and geographical conditions may justify modifications and whether common-law rules will be followed strictly by our courts will, necessarily, where no vested rights are actually concerned, depend upon the extent to which they are reasonable and in accord with our public policy and sentiment. In not applying, in all its strictness, the common-law

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doctrine, as declared by the English courts, this court has only interpreted the rule in a juster and more equitable sense and has affected no vested rights.

Yet the Court has not been consistent in looking to English law, recognizing in Agar v. Orda, 264 N.Y. 248, 253 (1934), which dealt with whether the seller of certificates of stock could hold the stock and sue for the contract price, that “[e]ven the old general common-law rule as formulated in this State differed from the common-law rule as formulated in England” and held that by enacting the Uniform Sales Act the Legislature had “enacted its preference for the general common-law rule as applied in England ‘to all personal property’” (id., at 253), which limited the seller to an action for damages rather than for the price of the stock. Nor is the common law as applied by the Court of Appeals limited to that of England. Thus in Madden v. Creative Services, Inc., 84 N.Y.2d 738, 744 (1995), it was held “[t]hat a proposed cause of action [that] has not previously been recognized by us, or indeed by any other court in the Nation, is itself inconclusive, for it is the strength of the common law to respond, albeit cautiously and intelligently to the demands of common sense justice in an evolving society” and (at 746) that “[i]mposing a new tort duty, and tort liability for compensatory and punitive damages, is unquestionably a ‘part of this Court’s important common law tradition and responsibility.’” As the Court stated in Matter of State Tax Commission v. Shor, 43 N.Y.2d 151, 159 (1977), “The common law . . . reflects the fair conduct and expectations of fair, reasonable persons” and where developments intervene after a prior opinion “those developments should not and cannot be ignored.” Accord: Gallagher v. St. Raymond’s Roman Catholic Church, 21 N.Y.2d 554, 558 (1968) (“the common law is . . . a living law which responds to the surging reality of changed conditions. We, therefore, do not hesitate to purify our law of what has, with the passage of time, become a most anomalous exception to the general common law rule of due care”); Woods v. Lancet, 303 N.Y. 349, 354 (1951) (the Court has “not only the right, but the duty to examine a question where justice demands it”); Rozell v. Rozell, 281 N.Y. 106, 112 (1939). The common law responsibility of the Court is not limited to the law of sales or to tort cases. Thus, in Matter of O’Connor, 72 N.Y.2d 517, 528, 529 (1988), the Court noted that it had long been the common law rule in New York that a person had the right to medical treatment, even life-saving treatment, and stated (at 531) that it had recognized living wills as a matter of common law although the Legislature had not sanctioned them. Similarly, except as abrogated by statute, the common law rule has been applied in relation to the navigability of

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New York rivers, Adirondack Club v. Sierra Club, supra, and Morgan v. King, supra, a landlord’s duty, Juarez v. Wavecrest Management Team Ltd., 88 N.Y. 2d 628 (1996), and to denial of counsel fees to a prevailing litigant, Gottlieb v. Laub & Co., 82 N.Y.2d 457 (1993), though not to a husband’s right to his wife’s affections, which the common law denominated a property right, Hanfgarn v. Mark, 274 N.Y. 22 (1937). The common law approach is not limited to matters of law. The Court has consistently applied it in equity matters as well, holding that in cases involving nuisance in which the damage to a property owner was small in comparison with the loss to the company which committed the nuisance that an injunction would be granted but would be vacated upon payment of damages to the property owner, Boomer v. Atlantic Cement Co., 26 N.Y.2d 219 (1970); Cox v. City of New York, 265 N.Y. 411 (1934); see, Ferguson v. Village of Hamburg, 272 N.Y. 234 (1936), applying that rule to an inverse condemnation claim. The common law policy of strictly construing penal laws has been expressly abrogated by Section 5 of the Penal Law and no longer applies in New York, thus permitting punishment of conduct that falls within the plain natural meaning of the language of the Penal Law, People v. Ditta, 52 N.Y.2d 657, 660 (1981). The continuing dynamism of the common law as applied by the Court of Appeals is illustrated by cases dealing with the tort liability of an employer under the fellow servant doctrine, of an owner of real property, and of a carrier of passengers, among others.5 In Fay v. DeCamp, 257 N.Y. 407 (1931), a chambermaid was injured while being transported between her employer’s several homes by the employer’s chauffeur in the employer’s car. The Court held that the two servants were contributing directly to the common object of their common employer in the enterprise for which their services were engaged, that the risks connected with the transportation were reasonably to be anticipated, and that the common law fellow-servant rule “now firmly established in the law” barred recovery. Thirtythree years later in Poniatowski v. City of New York, 14 N.Y.2d 76, 81 (1964), the Court noted that the inherent injustice of the rule may well suggest the desirability of abolishing the rule, but left decision of that question to the future, finding it unnecessary to do so in view of the enactment of General Municipal Law § 50-a, which it held benefited fellow police officers as well as other private persons. Then in Buckley v. City of New York, 56 N.Y.2d 300, 304–305 (1982), noting that the fellow-servant rule deprived an employee injured in the workplace by a fellow employee not only of recourse against the fellow employee, but also against the employer, the Court held that abolition of the rule was not strictly a

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matter for legislative attention and that it acted in the finest common law tradition when it altered decisional law to produce common-sense justice. It therefore rejected the rule entirely.6 Stemming from the fellow-servant rule was the firefighter’s rule, which under long-standing common law held firefighters to be licensees who took the property as they found it, Santangelo v. State of New York, 71 N.Y.2d 393, 396–397 (1988), see also Kenovan v. City of New York, 70 N.Y.2d 558 (1987), and Raymond v. Republic Light Heat & Power Co., 262 N.Y. 498 (1933), but in the cited cases the Court of Appeals predicated denial of liability on assumption of the risk of fire-related injuries by those who choose to become firefighters, and on public policy in that firefighters are employed precisely because special skills and expertise are required and firefighters trained and compensated to confront such dangers must be precluded from recovering damages for the situations that create the need for their services. The Santangelo action was one brought by police officers injured in the line of duty. The predicate for its ultimate holding, that the officers could not recover against the state, was that the same policy considerations were relevant to police officers as well as firefighters injured in line of duty. However, the Santangelo plaintiffs recovered nothing because, although General Municipal Law § 205-a which, as had been held in Kenovan, 70 N.Y.2d, at 566, created a cause of action where otherwise there would be no right of recovery for the injury or death of a firefighter, there was no similar legislative protection for police officers. The common law firefighter rule has been abrogated by legislation as to both firefighters and police officers; as to firefighters by GML § 205-a and 207-a and by GML § 205 as to volunteer firemen; as to police officers by GML § 205-e and 207-c; by General Obligations Law § 11–106 as to both. Note however, that auxiliary policemen are covered only by the Workers’ Compensation Law and only if the policeman is a member of an auxiliary police organization and the municipal corporation for which he or she works has elected pursuant to local law to include such auxiliary policemen within the definition of “employee” as authorized by WCL § 2, subdivisions 4 and 5. McGee v. Adams Paper & Twine Co., 26 A.D.2d 186 (1966), affirmed on the opinion below, 20 N.Y.2d 921 (1967), held that GML § 205-a was “to be construed liberally bearing in mind that it was the stated intention of the Legislature to create a cause of action in cases of the prescribed violation (of ordinances, statutes, etc. of federal, state and county, etc. authorities) where otherwise there would be no right of recovery,” and Ruotolo v. State of New York, 83 N.Y.2d 248 (1994), held that GML 205-e, as amended in 1990, was intended to be applied retroactively.

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Moreover, in Gonzalez v. Iocovello, 93 N.Y.2d 539, 549 (1999), the Court held that the fact that GOL § 11–106 as enacted in 1996 created actions for police officers and firefighters injured by the negligence or intentional conduct of any person other than an employer or co-employee, whereas GML § 205-e did not, required that the latter section be construed to permit an action against an employer or fellow officer. And in Galapo v. City of New York, 95 N.Y.2d 568 (2000), the Court similarly construed GML § 205-a which was amended by the same 1996 statute, Chap. 703, see § § 3 and 6 of that statute,7 though not entirely identical in wording with § 205-e. However, the Galapo majority, after review of the statute’s legislative history, held that it authorized suit only for breach by a fellow officer of a statute, ordinance, rule, order, or requirement, but was not intended to allow suit against a fellow police officer by an officer or his survivor for failure to follow directions contained in the Patrol Guide, an internal manual of the City’s police department. With respect to tort liability of an owner of real property McCabe v. Mackay, 253 N.Y. 440 (1930), ruled that at common law the owner of an office building owes no duty to tenants to provide the common ways with artificial light in the absence of defective conditions or conditions of peculiar danger and both Juarez v. Wavecrest Management Team, 88 N.Y.2d 628 (1996), and Altz v. Leiberson, 233 N.Y. 16 (1922), held that at common law the landlord of an apartment building had no duty to repair the rooms demised, other than the parts of the building which the occupants enjoyed in common. Each of those cases recognized, however, that the common law rule was subject to change pursuant to statute or ordinance and posited liability on whether the statute or ordinance enacted required action which the landowner had failed to take. Gallagher v. St. Raymond’s Roman Catholic Church, 21 N.Y.2d 554 (1968), is of particular interest. It dealt with the liability of the church for failing to keep lighted the exterior of the building to plaintiff who had attended a meeting in the school building and was thus required to exit in darkness. Although there was no statute or ordinance applicable to the village in which the school was located, the Court, predicated on statutes and ordinances governing public buildings in New York City, upheld the verdict in plaintiff’s favor notwithstanding McCabe’s common law ruling “because we recognize that the common law of this State is not an anachronism, but is a living law which responds to the surging reality of changed conditions. We, therefore, do not hesitate to purify our law of what has, with the passage of time, become a most anomalous exception to the general common law rule of due care.” 21 N.Y.2d, at 558. With respect to licensees and trespassers, Basso v. Miller, 40 N.Y.2d 233 (1976), Scurti v. City of New York, 40 N.Y.2d 433 (1976), and Barker v. Parnossa,

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Inc., 39 N.Y.2d 926 (1976), all decided on the same day, state the rules. Basso noted that “modern common-law courts have found it necessary to formulate increasingly subtle verbal refinements, to create subclassifications among traditional common law categories, and to delineate five gradations in the standards of care which the landowner owes to each” (40 N.Y.2d, at 240) thus producing confusion and conflict. The Court, therefore, abandoned the classifications entirely and announced adherence to the single standard of reasonable care, varying only with the foreseeability of use and the possibility of resulting injury. The Scurti and Barker cases each involved a teenaged trespasser. The Scurti decedent was electrocuted when he climbed on top of a freight car in defendant’s railroad property; the Barker decedent climbed up a coal silo and fell to its bottom. Noting the many variations in prior case law, the Court in both cases reversed the decision of the lower courts which had dismissed the complaint on the ground that decedent was a trespasser, a circumstance that as the Basso decision had noted had some relevance in determining the defendant’s liability but which under the reasonable case standard could no longer be considered determinative.8 Based in part on the Basso holding the Court in Bethel v. New York City Transit Authority, 92 N.Y.2d 348 (1998), held a common carrier liable to a passenger when a seat on a bus collapsed. Prior to Bethel a common carrier was held under a duty to exercise the utmost care for the sake of passengers. Although doubts as to its continuous use were expressed in some decisions it was not until Bethel that the Court held that the rule of a common carrier’s duty of extraordinary care is no longer viable. Except as to firefighters and police officers, however, statutes in abrogation of common law rules are to be strictly construed. Thus, the Juarez decision, supra, stated that it was to be presumed that the legislative body (there the City Council) was aware of the common law and abrogated it only to the extent of the clear import of its enactment; accord: Arbergast v. Board of Education, 65 N.Y.2d 161, 169 (1985), see, Madden v. Creative Services, Inc., supra, at 745; Gottlieb v. Laub & Company Inc., supra, at 464–465; Matter of Bayswater Health Related Facility v. Karagheuzoff, 37 N.Y.2d 408 (1975). Conversely, the Court has characterized the process by which the common law develops as incremental. Norcon Power Partners LLP v. Niagara Mohawk Power Corp., 92 N.Y.2d 458, 467 (1998). In that case it held that the seller under a contract for electrical power could demand adequate assurance of future performance by the buyer although New York recognized no common law or statutory right to do so except as provided in UCCL-609 with respect to the sale of goods, which, however, did not apply to the sale of power. It held that the gap in statutory and

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decisional rules could nevertheless be applied to the power contract as a common law analogue, the contract being complex and not reasonably susceptible of all security features being anticipated and incorporated in the contract, but deemed it unnecessary to go further in stating the law beyond that, id., at 468.

5. Statutory Interpretation

I. Approaches to Statutory Interpretation1 Similar to the experience of other jurisdictions, no single approach to statutory interpretation has been adopted or applied by the Court of Appeals. Basically, the Court has subscribed to the general proposition that its role is to effectuate the “intent” of the Legislature. In doing so, the Court has begun with the text of the statute and employed or referred to a variety of doctrines and tools when construing statutory language. The so-called “plain meaning” rule has been the most commonly accepted doctrine—that is, unless necessary to resolve ambiguity or if the result would be absurd or result in contradictions, the Court should not go beyond resort to plain or unequivocal statutory language when applying the statute to the case before it. As might be expected, whether the statutory language is even susceptible of plain meaning commonly has been disputed. Less commonly, the Court has addressed the more basic question concerning the primacy of the plain meaning standard. The opinions in the cases discussed below apply or describe the tools the Court has used in interpreting statutes. The cases are Matter of Raritan Dev. Corp. v. Silva, 91 N.Y.2d 98 (1997), Majewski v. Broadalbin-Perth Central School District, 91 N.Y.2d 577 (1998), Braschi v. Stahl Assocs. Co., 74 N.Y.2d 201 (1989), and People v. Hedgeman, 70 N.Y.2d 533 (1987).

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II. The Cases A. Raritan: “Plain Meaning,” Legislative History, and Administrative Agency Interpretation In Matter of Raritan Dev. Corp. v. Silva, 91 N.Y.2d 98 (1997), Judge Smith, writing for the 5–2 majority, described the “respectable principles and precedents . . . [which are the] primary sources of authority for the legitimacy of the plain-meaning doctrine” and rejected the dissent’s characterization and application of that “statutory construction tool.” 91 N.Y.2d, at 107. In Raritan, the Court reviewed a decision of an administrative agency whose decision was based on its interpretation of a regulation the agency was charged with implementing. The Court previously had set out some general principles applicable to judicial review of an agency’s interpretation of a statute. Contrary to the parties’ assertions, this Court has consistently applied the same standard of review for agency determinations. Where “the question is one of pure legal interpretation of statutory terms, deference to the [administrative agency] is not required” (Matter of Toys “R” Us v. Silva, 89 N.Y.2d 411, 419). On the other hand, when applying its special expertise in a particular field to interpret statutory language, an agency’s rational construction is entitled to deference (see, Matter of Jennings v. New York State Off. of Mental Health, 90 N.Y.2d 227, 239; Kurcsics v. Merchants Mut. Ins. Co., 49 N.Y.2d 451, 459). Even in those situations, however, a determination by the agency that “runs counter to the clear wording of a statutory provision” is given little weight (Kurcsics v. Merchants Mut. Ins. Co., 49 N.Y.2d, at 459; see also, Matter of Toys “R” Us v. Silva, 89 N.Y.2d, at 418–419). 91 N.Y.2d, at 102–3 (emphasis added)

In Raritan, the relevant provision stated: “In calculating the Floor Area Ratio (FAR) for zoning purposes, floor area includes the total amount of ‘floor space used for dwelling purposes, no matter where located within a building, when not specifically excluded; . . . However, the floor area of a building shall not include . . . cellar space.’” 91 N.Y.2d, at 100(emphasis supplied). Basically, the question for the Court was whether “cellar space” used for dwelling purposes was included in the FAR. The administrative agency, New York City’s Board of Standards and Appeals (BSA), had agreed with the City’s Department of Buildings position that the cellar space exclusion only applied to “ ‘true cellar space, space used for nonhabitable purposes, such as for furnace rooms, utility rooms,

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auxiliary recreation rooms, etc.’” and consequently, “cellar space” not used for residential purposes was properly included as part of the “floor area of a building” under the Multiple Dwelling Law and applicable regulations. 91 N.Y.2d, at 102. In addition, the “BSA noted that the Department of City Planning, ‘the drafters of the Zoning Resolution, strongly supports the determination of the Department of Buildings based upon the language of the Zoning Resolution, the legislative history of the definition of “floor area” and the interpretation of the Zoning Resolution in conjunction with the Multiple Dwelling Law.’” The BSA “found that DOB’s ruling had been ‘reasonable and rational’ [although there had been prior contrary rulings which the DOB claimed were in error].” 91 N.Y.2d, at 102. The Court characterized excluding all cellar space from the FAR as the “obvious” interpretation of the provision whose “language could not be clearer.” 91 N.Y.2d, at 103. The Court said that the regulation’s language was unambiguous, and it was not “absurd” to exclude all cellar space from the calculation of FAR. Consequently, the majority saw “no reason to depart from the legislative text” and the “plain meaning” of the regulation, despite the BSA’s argument that relied, inter alia, on an earlier version of the regulation whose language did support including cellar space used for dwelling purposes. Moreover, the majority concluded that the attempt to reach a contrary result based on construing the regulation in the context of the Multiple Dwelling Law also had to fail, because that attempt was based on an erroneous view of that law. This Court has long applied the well-respected plain meaning doctrine in fulfillment of its judicial role in deciding statutory construction appeals. We agree that “[i]t is fundamental that a court, in interpreting a statute, should attempt to effectuate the intent of the Legislature,” but we have correspondingly and consistently emphasized that “where the statutory language is clear and unambiguous, the court should construe it so as to give effect to the plain meaning of the words used” (Patrolmen’s Benevolent Assn. v. City of New York, 41 N.Y.2d 205, 208 [emphasis added] [citations omitted]; see, Doctors Council v. New York City Employees’ Retirement Sys., 71 N.Y.2d 669, 674-675). We have provided further clear teaching and guidance that “[a]bsent ambiguity the courts may not resort to rules of construction to broaden the scope and application of a statute,” because “no rule of construction gives the court discretion to declare the intent of the law when the words are unequivocal” (Bender v. Jamaica Hosp., 40 N.Y.2d 560, 562 [emphasis added] [citations omitted]). Lastly, “[t]he courts are not free to legislate and if any

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unsought consequences result, the Legislature is best suited to evaluate and resolve them” (id. [emphasis added]). 91 N.Y.2d, at 106–7 (emphasis in original)

Judge Levine’s dissenting opinion, concurred in by Judge Wesley, citing precedents, including some cited by Judge Smith, challenged the latter’s view of the primacy of the plain meaning doctrine. Judge Levine wrote: This case presents an unfortunate yet graphic example of the plain-meaning doctrine in operation, eschewing as it does other sources and evidence of legislative intent, such as context, legislative history and the purpose of the enactment. The majority appears to elevate the plain-meaning rule to a point of interpretive primacy not supported by our precedents. Although, to be sure, our Court has employed plain-meaning arguments in the past (see, e.g., Patrolmen’s Benevolent Assn. v. City of New York, 41 N.Y.2d 205, 208; Bender v. Jamaica Hosp., 40 N.Y.2d 560, 561–562), our prevailing view has been, wisely, that the overarching duty of the courts in statutory interpretation is always to ascertain the legislative intent through examination of all available legitimate sources. “The legislative intent is the great and controlling principle. Literal meanings of words are not to be adhered to or suffered to ‘defeat the general purpose and manifest policy intended to be promoted’” (People v. Ryan, 274 NY 149, 152 [(1937) (employed doctrine of ejusdem generis and other doctrines)]; see, Matter of Sutka v. Conners, 73 N.Y.2d 395, 403 [(1989) (reference to legislative history, including bill jacket); Matter of Albano v. Kirby, 36 N.Y.2d 526, 529-531 [(1975) ( “No rule of construction, however, permits the segregation of a few words from their context and from all the rest of the section or rule for purposes of construction”; Court referred to other regulations, judicial notice of an official notice and construction by agency)]; Matter of Petterson v. Daystrom Corp., 17 N.Y.2d 32, 38) [(1966) (“we are not bound to accord a literal interpretation to this language if to do so would lead to an egregiously unjust or unreasonable result).”] 91 N.Y.2d, at 107–8 (emphasis added)

Judge Levine continued: “Chief Judge Breitel articulated well the predominant view of this Court in New York State Bankers Assn. v. Albright (38 N.Y.2d 430): “Absence of facial ambiguity is . . . rarely, if ever, conclusive. The words men use are never absolutely certain in meaning; the limitations of finite man and the even greater limitations of his language see to that. Inquiry into the meaning of statutes is never foreclosed at the threshold” (id., at 436). The Court

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went on to quote, with approval, the Supreme Court’s opinion in United States v. American Trucking Assns. (310 U.S. 534, 544): “‘Frequently, however, even when the plain meaning did not produce absurd results but merely an unreasonable one “plainly at variance with the policy of the legislation as a whole” this Court has followed that purpose, rather than the literal words. When aid to construction of the meaning of words, as used in the statute, is available, there certainly can be no “rule of law” which forbids its use, however clear the words may appear on “superficial examination”’ (New York State Bankers Assn. v. Albright, 38 N.Y.2d at 437, supra [emphasis added]). “Criticism of the plain-meaning doctrine has long been expressed by legal scholars as frustrating legislative objectives and placing unrealistic demands upon the legislative process. . . . More recently, in the current debate over the ‘new textualism’ . . . legal and linguistic scholars have criticized the plainmeaning doctrine for oversimplifying the task of interpretation and for, itself, creating new interpretative problems. . . . “Simply put, even if a court might encounter that rare case where the words of a statute are so utterly and indisputably clear (notwithstanding the litigants’ dispute over their meaning) that the court could correctly interpret the statute’s meaning merely by reading its words, this is not that case.” 91 N.Y.2d, at 108–110 (citations omitted, emphasis in original)

B. Majewski: Retrospective Effect of Statute—Resort to Legislative History, Including Debates and Memoranda by Legislators and by the Governor, and Reliance on Maxims of Construction In Majewski v. Broadalbin-Perth Central School District, 91 N.Y.2d 577 (1998), the Court was concerned with whether a provision that a statute was “effective immediately” meant the statute was applicable to proceedings pending at the time of enactment or whether its application was limited to proceedings commenced on or after the effective date of the statute. Whether or not a statute should be applied retrospectively frequently had been considered by the Court and was dealt with rather exhaustively in Shielcrawt v. Moffett, 294 N.Y. 180 (1945), a case cited in Majewski. Shielcrawt involved a statute designed to discourage so-called strike suits by corporate shareholders. One provision of the new statute, section 61-a of the General Corporation Law, provided that if the derivative action failed the shareholder could be held responsible for the corporation’s expenses incurred

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in defending the action. The statute also added section 61-b to the General Corporation Law authorizing the Court, at the instance of the corporation anytime during the pendency of the action “instituted or maintained,” to require a shareholder who brought a derivative suit to post security for those possible expenses, if the shareholder did not own at least 5 percent of the corporation’s shares or own shares with a value of at least $50,000. Prior to the enactment of the statute, when the Shielcrawt action was commenced, the corporation was responsible for the expenses incurred by shareholders who successfully prosecuted the suit, and a derivative action could be instituted by a shareholder who owned even one share regardless of the number or value of outstanding shares, and if the suit failed, the shareholder was not liable for the corporation’s expenses. The question for the Court was whether the new statute authorized requiring the shareholder to provide security for those expenses in the pending lawsuit. The new statute, which provided that it “shall take effect immediately,” was enacted after the shareholder action in Shielcrawt had commenced. Chief Judge Lehman, writing for a unanimous Court, held that the security for expenses provision did not apply to the pending lawsuit. He relied on several commonly accepted judicial propositions governing statutory interpretation. First, the “general rule” is that a statute presumptively is deemed to apply prospectively, but second, in the absence of language to the contrary, application to accrued or pending actions is presumed when the provision is remedial, i.e., provides a “change in the form of remedy or provides a new remedy for an existing wrong,” or only is procedural. 294 N.Y., at 188. The Chief Judge also recognized that what is or is not remedial is not always clear and subtle judgment often is required in determining whether there are changes in antecedent rights or changes in remedies for existing rights. “The word ‘remedy’ itself conceals at times an ambiguity, since changes of the form are often closely bound up with changes of the substance (citing cases). The problem does not permit us to ignore gradations of importance and other differences of degree. In the end, it is in considerations of good sense and justice that the solution must be found’ (Matter of Berkovitz v. Arbib & Houlberg, 230 N.Y. 261, 271).” 294 N.Y., at 189. Relying in large measure on the Governor’s Approval Memorandum that the new statute was designed to meet the problem of so-called strike suits or baseless suits, the Court concluded that the statute created new rights for the corporation and as a practical matter reduced the shareholder’s previous power and right to institute a suit. In addition, the Court found that the language of § 61-b did not support retrospective application of the security requirement. It rejected the argument that

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the provision authorizing a security requirement for actions “instituted or maintained” was intended to apply to pending actions. Although the use of the word “maintained” could support applying the section to a pending action, it was at best equivocal and ambiguous. The corporation further argued that inasmuch as § 61-a expressly provided that the newly created liability for expenses be applied to pending actions, § 61-b, the security for expenses provision which supplemented § 61-a, also should be applied to pending actions. The Chief Judge concluded those facts supported the contrary position. He observed that the Legislature’s choice to explicitly provide that § 61-a be applied to pending actions underscored that the Legislature was aware of the question and was quite capable of explicitly providing that the security provision should apply to pending actions. However, the Legislature had not done so, and the general principle favoring prospective application meant that § 61-b should not be applied retrospectively. Therefore, security for expenses could not be required in the pending suit. Majewski, supra, involved the question of whether one of several 1996 amendments to the Workers’ Compensation Law was applicable to a pending action that had begun prior to its enactment. The statute provided that the provision, one of many in the Omnibus Workers’ Compensation Reform Act of 1996, was designated “to take effect immediately.” The provision modified the effect of Dole v. Dow Chemical Co., 30 N.Y.2d 143 (1972) (providing for apportionment of liability between persons liable for tortious injury), by relieving an employer of liability for contribution or indemnity to any third person based upon liability for injuries sustained by the employer’s employee while acting within the scope of the employment unless the claimant proves through competent medical evidence that the employee has sustained a grave injury. In Majewski, the defendant moved for summary judgment based on applying the new law to the action which was pending when it was enacted. Judge Smith, writing for a unanimous Court, citing Raritan, supra, acknowledged the “plain meaning” rule as a corollary of the doctrine of separation of powers between the Court and the Legislature, reflected in the Court’s obligation to effectuate the intent of the Legislature. As for the specific question before the Court, he also observed that although the provision that an act take effect “immediately” imports some sense of “urgency,” it does not have any necessary meaning in determining whether a provision should have retroactive application. “[T]he date that legislation is to take effect is a separate question from whether the statute should apply to claims and rights then in existence (citing Shielcrawt, supra).” 91 N.Y.2d, at 583. In the case at bar, the question was even more difficult to answer, because the Legislature had explicitly provided either

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prospective or retrospective application of designated provisions in what was a broad revision of the Workers’ Compensation Law. Judge Smith recognized the limitations of relying on maxims. The maxims at issue in Majewski were the presumption that a statute is intended to be applied prospectively, rather than retrospectively, and the maxim that presumes retrospective application of a “remedial” statute. However, such construction principles are merely navigational tools to discern legislative intent. Classifying a statute as “remedial” does not automatically overcome the strong presumption of prospectivity since the term may broadly encompass any attempt to “supply some defect or abridge some superfluity in the former law” (McKinney’s Cons Laws of NY, Book 1, Statutes § 321). As we have cautioned, “General principles may serve as guides in the search for the intention of the Legislature in a particular case but only where better guides are not available.” . . . To that end, we turn to legislative history to steer our analysis. 91 N.Y.2d, at 484 (citations omitted, emphasis added)

Judge Smith then turned to a broad array of legislative history sources and evaluated them. Most of the documents were set out in 1996 McKinney’s Session Laws of New York; some were in the Bill Jacket. Judge Smith concluded that modification of Dole was clearly intended, citing legislative debates and the Assembly Memorandum in Support. In addition, the statute contained an explicit statement of purpose: “It is the further intent of the legislature to create a system which protects injured workers and delivers wage replacement benefits in a fair, equitable and efficient manner, while reducing time-consuming bureaucratic delays, and repealing Dole liability except in cases of grave injury.” L 1996, ch 635, § 1. As for the question of retroactive application, Judge Smith also considered contemporary memoranda and the Governor’s Approval Memorandum. Although these sources contained statements that the statute would restore and reinforce the “exclusive [workers compensation remedy],” statements that supported labeling the statute as remedial, according to Judge Smith, they did not, in view of other evidence of legislative intent, conclusively establish retrospective application. Indeed, “[l]egislators made declarations during floor debates that conclusively stated that the Act was not intended to be applied retroactively (231 A.D.2d, at 109)”; and an Assembly majority report explicitly stated that the leg-

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islation would be applied only to accidents that occurred after the legislation’s effective date. Although these averments “may be accorded some weight in the absence of more definitive manifestations of legislative purpose”; . . . such indicators of legislative intent must be cautiously used. . . . As the Supreme Court has noted: “it is impossible to determine with certainty what construction was put upon an act by the members of a legislative body that passed it by resorting to the speeches of individual members thereof. Those who did not speak may not have agreed with those who did; and those who spoke might differ from each other”2 91 N.Y.2d, at 585–86. (Citations omitted) . . . On the same footing are statements contained in the Governor’s Memorandum issued with the signing of the Act. In it, the Governor states his view that the legislation was intended to be retroactive (1996 McKinney’s Session Laws of NY, at 1912 [“(o)f primary importance is the retroactive repeal” of Dole]). “Although postenactment statements of the Governor [and by members of the Workers Compensation Board, together with a letter from the Superintendent of Insurance contained in the Bill Jacket] may be examined in an analysis of legislative intent and statutory purpose . . . ,3” such statements suffer from the same infirmities as those made during floor debates by legislators. Here, the reports and memoranda simply indicate that various people had various views. 91 N.Y.2d, at 586–87

In addition, the court may look at changes made in the proposed legislation during the course of its consideration by the Legislature to determine intent. “The initial draft of the Act expressly provided that it would apply to ‘lawsuit[s] [that have] neither been settled nor reduced to judgment’ by the date of its enactment. . . . That language does not appear in the enacted version. . . . Here, such evidence is consistent with the strong presumption of prospective application in the absence of a clear statement concerning retroactivity.” 91 N.Y.2d, at 587. Another general principle of construction was invoked by the party favoring retrospective construction, “that legislation is to be interpreted so as to give effect to every provision. A construction that would render a provision superfluous is to be avoided.” While Judge Smith agreed with the principle, after a detailed examination of the relevant provisions which involved a complex analysis concerning the creation of reserves and methods of accounting, he

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refused to read the accounting provisions as “necessitat[ing] the wholesale dismissal of pending Dole claims [based upon a reluctance] to assume that the Legislature would choose such a vexing and circuitous means of conveying [the] intent [to apply the statute retrospectively].” 91 N.Y.2d, at 589. Another argument in favor of retrospective application was that it would further the purpose of the legislation advanced in the legislative debates and in the Governor’s Approval Memorandum to reduce the cost of doing business in New York. Although Judge Smith agreed that this was one of the purposes, he concluded that “[p]rospective application of the legislation would still accomplish the legislative purpose of reducing insurance premiums and workers’ compensation costs for employers.” 91 N.Y.2d, at 589. Judge Smith concluded that there was an absence of “clear evidence” to overcome the presumption that favored prospective over retrospective application of the statute. [T]he discernible legislative purpose does not mandate a particular result. “In the end, it is in considerations of good sense and justice that the solution must be found” . . . in the specific circumstances of each case . . . [quoting Cardozo, J.] [P]rospective application of the subject legislation to actions by employees for on-the-job injuries against third parties filed after the effective date of the relevant provisions is eminently consistent with the over-all and specific legislative goals behind passage of the Act. 91 N.Y.2d, at 589–90 (citation omitted)

C. Braschi: “Purpose” of Statute and “Consequences” as Basis for Determining Meaning of Statutory Term In Braschi v. Stahl Assocs. Co., 74 N.Y.2d 201 (1989), the Court was called upon to determine whether Braschi, the gay life partner of Blanchard, the deceased tenant of record of a rent-controlled apartment in New York City, was protected from eviction by the landlord under New York City Rent and Eviction Regulations. The resolution of the question turned upon the meaning of the term “family” in the applicable regulation that provided “upon the death of a rentcontrol tenant, the landlord may not dispossess ‘either the surviving spouse of the deceased tenant or some other member of the deceased tenant’s family who has been living with the tenant.’” 74 N.Y.2d, at 206 (emphasis in original). The Court of Appeals found for Braschi and reversed the Appellate Division which had found for the landlord on the ground that protection against eviction

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extended only to “family members within traditional, legally recognized familial relationships” (143 A.D.2d 44, 45) and the relationship between Blanchard and Braschi was not formally recognized by law. The Appellate Division had reversed the Supreme Court, which had held for Braschi, “finding that the long-term interdependent nature of the 10-year relationship between [Braschi] and Blanchard “fulfills any definitional criteria of the term ‘family.’” 74 N.Y.2d, at 207. Judge Titone, in an opinion concurred in by Judges Kaye and Alexander, voted for Braschi and reversal. Judge Bellacosa also voted for reversal, but wrote a separate opinion, in which he disagreed with both the reasoning of Judge Titone and that of the dissent. Judge Simons, with Judge Hancock concurring, wrote a dissenting opinion. Chief Judge Wachtler did not participate. Judge Titone’s opinion sustaining Braschi’s claim that he was protected from eviction under a regulation that protected the “surviving spouse of the deceased tenant or some other member of the deceased tenant’s family who has been living with the tenant” began with a statement of some general principles of statutory construction, citing New York and United States Supreme Court cases and provisions of Book I of McKinney’s Consolidated Law of NY, entitled, Statutes, and an article by Associate Justice Felix Frankfurter: It is fundamental that in construing the words of a statute “[t]he legislative intent is the great and controlling principle.” Indeed, “the general purpose is a more important aid to the meaning than any rule which grammar or formal logic may lay down.” Statutes are ordinarily interpreted so as to avoid objectionable consequences and to prevent hardship or injustice. Hence, where doubt exists as to the meaning of a term, and a choice between two constructions is afforded, the consequences that may result from the different interpretations should be considered. In addition, since rent-control laws are remedial in nature and designed to promote the public good, their provisions should be interpreted broadly to effectuate their purposes. Finally, where a problem as to the meaning of a given term arises, a court’s role is not to delve into the minds of legislators, but rather to effectuate the statute by carrying out the purpose of the statute as it is embodied in the words chosen by the Legislature (see, Frankfurter, “Some Reflections on the Reading of Statutes,” 47 Colum L Rev 527, 538–540). 74 N.Y.2d, at 207–8 (citations omitted, emphasis added)

Judge Titone focused on the purpose of the rent-control legislation, as the key to determining the meaning of “family” in the regulation. “Rent control was enacted [in 1946] to address a ‘serious public emergency’ created by ‘an acute

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shortage in dwellings,’ which resulted in ‘speculative, unwarranted and abnormal increases in rents.’” 74 N.Y.2d, at 208. Protection against eviction was a necessary element of the protection against the threat of oppressive rent increases and the vicissitudes of the market. Although originating as a measure to meet the housing emergency created by World War II, the emergency continued and the rent-control law, with amendments, was renewed. In addition to protecting tenants against sudden eviction, the Legislature also was concerned with restoring rental units to the market. To this end, the rent stabilization law was enacted in 1969. It provided that upon the termination of occupancy by those protected by the rent-control legislation, those units would be systematically decontrolled, but not left wholly to market forces; rather, they would remain subject to a more limited regulation under rent stabilization regulations. The language of the rent stabilization legislation could not be read to protect Braschi, and Judge Titone, rejecting the dissenters’ position, refused to adopt the narrower protection of the allied rent stabilization law into the rent-control law. Also rejecting an argument by the dissenters, he refused to limit the scope of “family” by the intestacy laws which, he pointed out, served a wholly different purpose than the rent-control laws. Moreover, Judge Titone argued that reliance on blood relationship under the intestacy laws could result in an almost limitless number of persons who could be deemed family members with indefinite rent-control protection for the subject rental units, thereby undermining the decontrol purposes of the rent stabilization law. In concluding that Braschi and Blanchard constituted “family” under the rent-control law, Judge Titone relied on what he viewed as the “reality” of the family in contemporary society, a concept supported by cited dictionary definitions4 of the term, as well as the protective purpose of the statute.5 . . . we conclude that the term family, as used in [the Rent-control regulations] should not be rigidly restricted to those people who have formalized their relationship by obtaining, for instance, a marriage certificate or an adoption order. The intended protection against sudden eviction should not rest on fictitious legal distinctions or genetic history, but instead should find its foundation in the reality of family life. In the context of eviction, a more realistic, and certainly equally valid, view of a family includes two adult lifetime partners whose relationship is long term and characterized by an emotional and financial commitment and interdependence. This view comports both with our society’s traditional concept of “family” and with the expectations of individuals who live in such nuclear units (see also, 829 Seventh Ave. Co. v. Reider, 67 N.Y.2d 930, 931–932 [interpreting 9 NYCRR 2204.6 (d)’s additional

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“living with” requirement to mean living with the named tenant “in a family unit, which in turn connotes an arrangement, whatever its duration, bearing some indicia of permanence or continuity” (emphasis supplied)]). In fact, Webster’s Dictionary defines “family” first as “a group of people united by certain convictions or common affiliation” (Webster’s Ninth New Collegiate Dictionary 448 [1984]; see, Ballantine’s Law Dictionary 456 [3d ed 1969] [“family” defined as “(p)rimarily, the collective body of persons who live in one house and under one head or management”]; Black’s Law Dictionary 543 [Special Deluxe 5th ed 1979]). Hence, it is reasonable to conclude that, in using the term “family,” the Legislature intended to extend protection to those who reside in households having all of the normal familial characteristics. Appellant Braschi should therefore be afforded the opportunity to prove that he and Blanchard had such a household. 74 N.Y.2d, at 211 (emphasis added)

Judge Simons’ dissenting opinion was generally in accord with Judge Titone’s statement of the statute’s purpose and history, but he concluded that the term “family” had the more restricted “traditional” meaning. He also cited the precedents that Judge Titone distinguished, as well as additional dictionary definitions. Basically, Judge Simons voiced a more restrictive view of the exercise of judicial power when construing statutes. He pointed out that in view of the fact that the rent-control law was “in substantial derogation of property owners’ rights[, t]he court should not reach out and devise an expansive definition in this policy-laden area based upon limited experience and knowledge of the problems. The evidence available suggests that such a definition was not intended and that the ordinary and popular meaning of family in the traditional sense should be applied. If that construction is not favored, the Legislature or the agency can alter it. . . .” 74 N.Y.2d, at 223.

D. Hedgeman—Interpretation of a Criminal Statute In People v. Hedgeman, 70 N.Y.2d 533 (1987), Hedgeman had been the getaway driver in a bank robbery. He had never entered the bank but waited outside in the car about 15 feet from the bank while another person obtained money from the teller by making threats of physical harm. The bank employees were neither aware of Hedgeman nor had they seen him. He was convicted of robbery in the second degree, which required that the robbery be committed with “the aid of a person actually present.” If he was not “actually present,” then the crime was robbery in the third degree. Thus, the question for the Court was whether

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within the meaning of the Penal Law and under the facts, Hedgeman was “actually present” when the robbery was committed. The Court acknowledged that the 1965 Penal Law explicitly rejected the view that criminal statutes should be strictly construed. The Legislature has instructed us that in interpreting the Penal Law, the provisions must be read “according to the fair import of their terms to promote justice and effect the objects of the law” (Penal Law § 5.00; People v. Ditta, 52 N.Y.2d 657, 660, 439 N.Y.S.2d 855, 422 N.E.2d 515). As with other statutory provisions, those contained in the Penal Law are generally to be construed so as to give effect to their most natural and obvious meaning (see, McKinney’s Cons. Laws of N.Y., Book 1, Statutes § § 94, 232; People v. Sansanese, 17 N.Y.2d 302, 306, 270 N.Y.S.2d 607, 217 N.E.2d 660). This is particularly important where the definition of a crime is at issue, because courts must be scrupulous in insuring that penal responsibility is not “extended beyond the fair scope of the statutory mandate” (People v. Wood, 8 N.Y.2d 48, 51, 201 N.Y.S.2d 328, 167 N.E.2d 736; see also, People v. Gottlieb, 36 N.Y.2d 629, 632, 370 N.Y.S.2d 884, 331 N.E.2d 670; McKinney’s Statutes § 271[c] ). Applying these general rules, we examine the statute in question by analyzing its plain meaning, legislative history, and underlying sense and purpose. 70 N.Y.2d, at 537

The Appellate Division had affirmed the conviction with a majority holding that “the history of the Penal Law ‘suggests an elimination’ of the distinction between actual and ‘constructive’ presence,” but a dissenter disagreed, contending that “both the legislative history and the plain meaning of the phrase ‘actually present’ rule out the interpretation that it could include a person who was only constructively present at the crime scene.” 70 N.Y.2d, at 535–36. Judge Hancock, writing for the 5–2 majority, agreed with the dissent in the Appellate Division and concluded that Hedgeman had not been “actually present” within the meaning of the statute. First, he concluded the term “actually” was intended to be contrasted with the concept of “constructive” presence. Judge Hancock referred to the rules of construction contained in McKinney’s Statutes; in this case, § 94, which provided, “The legislative intent is to be ascertained from the words and language used, and the statutory language is generally construed according to its natural and most obvious sense, without resorting to an artificial or forced construction.” He also referred to Black’s Law Dictionary and the Oxford English Dictionary which among other things contrasted “actually” with “constructive.” He

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concluded that not recognizing the distinction “would denude the phrase [“actually”] of its plain meaning and, moreover, violate the accepted canon of construction, especially critical when interpreting penal provisions, that words which define or delimit the reach of statutory provisions may not be disregarded as superfluous, but must be given meaning and effect. . . .” 70 N.Y.2d, at 538–39. In addition, Judge Hancock detailed the history of the inclusion of the term “actually present” in the criminal statutes from 1881 to 1965 and judicial decisions construing the earlier statutes. Those judicial decisions had recognized that both the prior statutes and the common law had used the concepts of “actual” and “constructive” presence to distinguish principals in the first degree and second degree. Although the 1965 Penal Law no longer distinguished first and second degree principals, it had retained reliance on the concept of “presence” for the purpose of grading offenses. He also noted that the Criminal Code replaced by the 1965 Penal Law had specifically included use of a motor vehicle as an aggravating factor for robbery, a provision that had not been included in the new Penal Law. In addition, the other aggravating factors in the 1965 Penal Law involved the ability to create the risk or fear of immediate physical harm beyond that presented by one unarmed robber, a danger presented by an accomplice who is “actually present.” In addition, Judge Hancock cited standard criminal law textbooks in support of the distinction between actual and constructive presence. He held for the majority that “[w]here an accomplice to a robbery acts solely as the getaway driver and participates in neither the threat of force, its use, nor the taking of property, and is not in the immediate vicinity of the robbery or so positioned as to be capable of rendering immediate assistance to the robber, he is not ‘another person actually present’ within the meaning of the aggravating accomplice factor of robbery, second degree (Penal Law § 160.10 [1]).” 70 N.Y.2d, at 535.

6. Form of Opinions and Reports

1

CASES ARE NORMALLY decided in one of three forms: Opinion— defined in Black’s Law Dictionary (7th ed.) as “A court’s written statement explaining its decision in a given case, usually including the statement of facts, points of law, rationale and dicta.” Per curiam—“An opinion handed down by an appellate court without identifying the individual judge who wrote the opinion” (id.). Memorandum opinion—“A unanimous opinion stating the decision of the court; an opinion that briefly reports the court’s conclusion, usually without elaboration because the decision follows a well-established legal principle or does not relate to any point of law” (id.). Black defines a concurrence as “1. Agreement; assent. 2. A vote cast by a judge in favor of the judgment reached, often on grounds differing from those expressed in the opinion or opinions explaining the judgment. 3. A separate written opinion explaining such a vote” and defines a dissenting opinion as “An opinion by one or more judges who disagree with the decision reached by the majority.”

I. Opinions2 While opinions of the Court conform to the definition above, the form in which decisions are handed down has differed substantially over the years. Thus, in the earlier years opinions usually began with a statement of facts, or alternatively detailed the facts in the reporter’s “Statement of Case,” the decision dealing only with the point or points of law decided and fitting the case into prior deci-

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sions of courts in other states or of New York lower courts (e.g. Chittick v. Thompson Hill Development Corp., supra, 259 N.Y. 223, 224 (1932). But by 44 N.Y.2d the title of the reporter’s “Statement of Case” was preceded by the word “Summary” and in many cases detailed the entire history of the case,3 the opinion then beginning with a statement of the issues being litigated, followed by development of the facts, the holdings of the lower courts, and only then the Court’s analysis of the law (e.g. Binghamton Civil Service Forum v. City of Binghamton, 44 N.Y.2d 23 [1978], see also Udell v. Haas, 21 N.Y.2d 463 [1968]; TNS Holdings, Inc. v. MKI Securities Corp., 92 N.Y.2d 335 [1998]). The present practice as illustrated by current decisions appears to be the statement of the Court’s holdings in the first paragraph of the opinion followed by the factual backgrounds, holdings below, and reasons for the conclusion reached (e.g. Rangolan v. County of Nassau, 95 N.Y.2d 873 [2001]; City of New York v. Stringfellow, 95 N.Y.2d 845 [2001]). The Court has not, however, always been completely careful in the language of its rulings. Thus the memorandum in Matter of Atkinson v. City of New York, 96 N.Y.2d 809 (2001),in holding that a workers compensation lien could not be enforced against a worker’s recovery under the National Vaccine Injury Program (42 USC § § 300-aa-1 et seq) because that act expressly stated that compensation “shall not be made” for damages recoverable “under any State compensation program,” and enforcing the lien may raise questions as to the validity under the Supremacy Clause (Art. VI, cl. [2]) of the Federal Constitution that memorandum stated that “we choose to interpret the Workers’ Compensation Law to avoid these constitutional concerns” (emphasis supplied). That ruling, based on law rather than discretion, should not, therefore, have included the emphasized words. A further contrast exists with respect to the use of subheadings or roman numerals or both to set off the subdivisions of the opinion. No such decisions are to be found in 259 N.Y. or 21 N.Y.2d, but by the time of common practice to use both subheadings and also subheadings indicating the law discussed in succeeding paragraphs, e.g. Campaign for Fiscal Equity, Inc. v. State of New York, 100 N.Y.2d 893 (2003) (six separate subdivisions, entitled Overview, The Standard, The Evaluation, Causation, The Remedy, and Conclusion with subheadings of the Evaluation subdivision discussing Inputs, Instrumentalities of Learning, Test Results, and subheadings of the Causation subdivision of Socioeconomic Disadvantage, Comparative Spending, City Management, Local Funding); Saratoga County Chamber of Commerce v. Pataki, 100 N.Y.2d 801 (2003) (eight separate subdivisions with two subheadings in one and separate opinions, one concurring in part and dissenting in part and one three judge dissent). Matter of

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Schulz v. New York State Executive, 92 N.Y.2d 1, 7, 10 (1998) (“Single Work or Purpose Requirement,” “Incorporation by Reference”), Matter of Jacob, 86 N.Y.2d 651 (1995) (nine separate subheadings), or simply to divide the opinion by roman numerals without subheadings, Drattel v. Toyota Motor Corporation, 92 N.Y.2d 35 (1998), or by roman numerals and subheadings, e.g. the dissent in Drattel, 92 N.Y.2d at 53–67, or to set off the rationale of the decision under the one-word subheading “Discussion,” e.g. Jamaica Public Service v. AIU Insurance Co., 92 N.Y.2d 631, 636 (1998). The content of an appellate opinion is primarily a matter of decision for the judge preparing it but depends in part on the comments and criticisms of his or her colleagues on the Court. In the earlier stages of the Court opinions tended to be more discursive of prior case law than decisive of new law questions. See, for example, Sheldon v. Edwards, 35 N.Y. 279 (1866). Strangely, however, as the Sheldon case and many other cases in the same volume of reports illustrates, a dissent was reported simply as “Hunt, J., dissented” without any further statement of the reason for disagreement with the majority opinion. The probable explanation is that law secretaries to assist with preparation of opinions and motion reports did not become available to the judges until 18974 and a central legal staff to help with the preparation of motion reports was not created until 1975.

II. Per Curiam The per curiam form is now used by the Court of Appeals for matters involving its own actions taken in an administrative capacity, e.g., Matter of New York State Association of Criminal Defense Lawyers v. Kaye, 96 N.Y.2d 512 (2001), or relating to discipline of judges, e.g. Matter of Duckman, 92 N.Y.2d 141 (1998), imposition of sanctions upon an attorney, e.g. Pires v. Frota Oceanica Brasileira, 92 N.Y.2d 200 (1998), with respect to actions by judges against the Chief Administrator of the Courts, D’Amico v. Crosson, 93 N.Y.2d 29 (1999), or in relation to questions concerning New York law certified to the Court pursuant to New York Constitution Article VI, § 3(b)(9), e.g. Yesil v. Reno, 92 N.Y.2d 455 (1998). Note, however, that with respect to such certified questions acceptance of the issues thus presented is normally indicated by a simple statement to that effect, e.g. Tanges v. Heidelberg North America, 92 N.Y.2d 918 (1998). At the 1932 state of the Court’s history, however, the per curiam had a broader use. Thus 259 N.Y. includes among the opinions reported eleven per curiam decisions in various civil and criminal cases, in at least two of which, Willis v. S.M.H. Corporation, 259 N.Y. 144 (1932), and Matter of Murtha, 259 N.Y. 456 (1932), there were dissents and in one of which, Matter of Burrows,

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259 N.Y. 449 (1932), one judge is recorded as “not voting.”5 At that time and in 21 N.Y.2d the per curiam format was also used to decide motions, e.g. Gwynne v. Board of Education, 259 N.Y.2d 634 (1932); People v. Roper, 259 NY 635 (1932); People v. Smith, 21 N.Y.2d 698 (1967). However, no such per curiam motion decision was found in 92 N.Y.2d.

III. Memoranda Much of the Court’s work is disposed of by memoranda, either ruling on a motion or deciding an appeal or other proceeding before the Court. Rulings on motions are generally one or two sentences. Those deciding an appeal may be a few paragraphs or may run to a number of pages, or they may be simply “Order affirmed, no opinion” or “Judgment affirmed, no opinion.” If the Court reverses or modifies a judgment or order without opinion, CPLR 5522(a) requires that it “briefly state the grounds of its decision.” However, that provision requires no more than “Order reversed for the reasons stated in the dissenting opinion below.” See Matter of Estate of Gross v. Three Rivers Inn, 92 N.Y.2d 970 (1998).6 In each of the reports reviewed opinions and memoranda were preceded by a paragraph “Prepared by State Reporter from Appeal Papers” setting forth the history of the case in the courts below, and relatively often memorandum decisions are not unanimous. The 259 N.Y. report covers decisions rendered from March 15, 1932, to and including July 19, 1932. Because the vacancy created by the resignation of Chief Judge Cardozo on March 7, 1932, was not filled until the appointment of Judge Crouch on March 28, 1932, the Court consisted of but six judges during that interval. The 259 report includes 96 matters decided by opinion and 155 matters decided by memorandum. The decisions reported include 81 opinions and 15 per curiams. The memoranda reported include 26 which decided motions and 129 which affirmed, reversed, or dismissed “no opinion,” from four of which there were dissents, in one case by three judges. Several of the no opinion memoranda included the citation of a case preceded by “on authority of” and a number listed one or more judges as “not sitting.”

IV. Format Generally As Judge Hugh R. Jones put it in his 1979 Cardozo Lecture before the Association of the Bar of the City of New York, 34 The Record 543, 548:

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. . . in recent years it has been the practice in our Court to assure a writing in every case; we no longer have recourse to the once familiar acronym, “ANOPAC” (Affirmed, No Opinion, All Concur). In general, our present practice is as follows. If there is a writing in a court below, in the intermediate appellate court or at nisi prius, which adequately articulates the grounds for the correct disposition, we rely on and refer to that opinion, both for affirmance or for reversal. If there is no such writing and the case is judged to have little precedential value (no case has none!) a very brief memorandum is prepared which without elaboration informs counsel and the litigant why we reached the result we did.7

Moreover, the Court has been careful to make clear what its ruling does not decide. Thus in Village of Monroe v. Benjamin, 259 N.Y. 305 (1932), the Court affirmed in a per curiam but stated that by so doing it had not approved a specified finding of the trial judge and that “We leave this question open,” and in People v. David W, 95 N.Y.2d 130 (2000), made clear that “this Court has not addressed the availability of such [Article 78] review [of the Division of Probation’s ruling], we do not decide that issue today,” and see Jamaica Public Service v. AIU, 92 N.Y.2d 631, 637 (1998). It also has not hesitated to suggest to trial judges how a given subject should be dealt with by these judges. Thus in People v. Chambers, 97 N.Y.2d 417 (2002), it wrote with respect to jury selection “For more than a century, a juror’s use of the word ‘think’ has been challenged as equivocal. . . . We therefore remind trial courts that, when a prospective juror qualifies a ‘yes’ or ‘no’ response regarding the ability to be fair with words such as ‘I think’ or ‘I’ll try,’ an additional question or two at voir dire would easily dispel any doubt as to equivocation, assure an impartial jury, and avoid the delay, and risk, of appeals.” Nor has it hesitated to call to the attention of the Legislature the need for revision of a particular statute. Thus in Matter of Sarah K, 66 N.Y.2d 223, 242 (1985), cert. en.sub nom Kosher v. Stamatis, 475 U.S. 1108 (1986), the desirability for the Legislature to review construction of a statute previously passed with which subsequent case law or literature has identified dissatisfaction as to its actual application. With respect to individual judges not joining in the ruling, the 259 N.Y. report simply listed the judge as “not sitting,” but in the 21 N.Y.2d and 92 N.Y.2d reports such a judge was listed as “taking no part,” apparently to make clear that the judge not only did not sit for argument but also did not take part in court conferences concerning the case. In some cases, usually when more than one judge was disqualified to hear an appeal, a judge of a lower court would be designated pursuant to Constitution, Article VI, § 2a to serve as an

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Associate Judge of the Court of Appeals on that case; see e.g. Freihofer v. Hearst Corporation, 65 N.Y.2d 135 (1985), in which Justice Bentley Kassal of the Appellate Division, First Department, was designated, and in fact was the author of the Court’s unanimous opinion. Concurrences take a number of different forms: concurrence in result with a short statement of the reasoning which differs from the majority opinion, Seckendorff v. Halsey, Stuart & Co., 259 N.Y. 353 (1932); concurrence in result without any statement as to differences, Drake v. Reiner, 259 N.Y. 308 (1932); concurrence in part and dissent in part, James v. Delaware, Lackawanna and Western Railroad Co., 259 N.Y. 609 (1932); Matter of Union Indemnity Insurance Co., 92 N.Y.2d 107, 129 (1998);8 and concurrences on constraint of a prior decision of the Court by a judge who was not a member of the Court when the prior case was decided, e.g. Matter of Steinhardt v. Johns-Manville Corp., 54 N.Y.2d 1008, 1114 (1981), or who dissented from the prior decision, e.g. Matter of Mennella v. Lopez-Torres, 91 N.Y.2d 474 (1998); Simpson v. Loehmann, 21 N.Y.2d 305, 314 (1967). Concurrences are sometimes written to call to the attention of the Legislature the necessity of more clearly defining a word or term used in a statute. As to concurrences see e.g. People v. McGee, 49 N.Y.2d 48 (1979), noting the importance to privacy of the eavesdropping law as requiring legislative review, limitation, or proscription of participant monitoring of conversations; and O’Brien v. O’Brien, 66 N.Y.2d 576 (1985), suggesting the need for legislative revision of Domestic Relations Law § 236(B)(5)(d)(10) in view of the potential for unfairness involved in distributive awards based upon a license for a professional still in training. Dissents are more often based on analysis of the legislative history of a statute to contradict the majority’s reasoning as to legislative intent; see e.g. Galapo v. City of New York, 95 N.Y.2d 568 (2000); People v. Lawrence, 64 N.Y.2d 200 (1984); or on analysis of both case law and legislative background, e.g. Heller v. U.S. Suzuki Motor Corp., 64 N.Y.2d 407 (1985). In some cases the majority opinion responds to a dissent. For example, Ware v. Valley Stream High School District, 75 N.Y.2d 114 (1989), at p. 130 n. 6, characterizes the dissent as “undeservedly critical” and is responded to in turn by the dissenter, id., at 138, n. 3. But in most cases a dissent is written to point out that the interpretation of the majority is unfair to one of the litigants and not required by the language of the statute being construed; see e.g. the dissent in Matter of Robert Paul, 63 N.Y.2d, at 239 (1984), reasoning that one homosexual partner can adopt his younger partner because a parent-child relationship is not a condition precedent to adoption; see also Strauss v. Belle Realty Co., 65 N.Y.2d 399 (1985), or, as Chief Judge Wachtler put it in Zimmer v. Chemung County Performing Arts, 65 N.Y.2d

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513, 527 (1985), to “urge the Legislature to amend the statute to makes [its] intent more clear.” See also former Chief Judge Fuld’s article “The Voices of Dissent,” 62 Columbia Law Review 923, 927 (1962), citing In re Burchell’s Estate, 299 NY 351 (1949). On occasion two judges dissenting have written separate opinions differing with each other on the basis for dissent; see, e.g., Schumacher v. Richards Shear Company, Inc., 59 N.Y.2d 239 (1983), from the majority opinion in which Judges Jasen and Jones wrote separate dissents; and Matter of Sayeh R, 91 N.Y.2d 306 (1997), decided four to three, but in which two of the three dissenting judges wrote separate dissenting opinions based on differing reasoning but in both of which all three dissenters agreed. But the ultimate in decisions by a divided court is People v. Cahill, 2 N.Y.3d 14 (2003), decided November 24, 2003, in which Judge Rosenblatt wrote a sixty-three page decision, Judge Smith wrote a forty-three page concurrence, Judge Gaffeo wrote a twenty-nine page concurrence in part and dissent in part and Judge Read wrote a forty-four page concurrence in part and dissent in part.9 The Cahill decisions are not the first in which all members of the Court detailed their reasoning, but the view presented by the dissents states the rule to be generally applied: that is, even if all of the judges of the Court disagree with the Legislature their personal beliefs as to whether defendant is an appropriate candidate for first-degree murder is irrelevant for one very basic reason—they are judges, not legislators. Abbreviations to refer to procedures designated by statute or regulation have been used by the Court in more recent decisions, rather than repeatedly to spell out by its full name the procedure referred to. Illustrative are opinions dealing with the constitutional provision with respect to education in Board of Education, Levittown Union Free School District v. Nyquist, 57 N.Y.2d 27 (1982); Campaign For Fiscal Equity, Inc. v. State of New York, 86 N.Y.2d 307 (1995); Campaign for Fiscal Equity, Inc. v. State of New York, 100 N.Y.2d 893 (2003). Both the Levittown and the first Campaign decisions spelled out the names or titles of the agencies referred to, but the later opinions used abbreviations by initials after the first reference to the agency. By the time the 2003 opinions were written the practice had expanded to the point that the Fiscal Equity decision referred to used “GED” for “General Equivalency Degree,” “PLP” for “Pupil Evaluation Program,” “PET” for “Program Evaluation Test,” “SRF” for “State Reference Point,” “DRP” for “Degree of Reading Power,” and “RCT” for “Regency Competence Tests.” While the practice is understandable, it may be suggested that opinions would be more readily understandable if a list of such

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abbreviations were set forth as an endnote to which reference would then be made when the first such abbreviation appeared in the opinion. Finally to be noted is the frequent reference in decisions of the Court to the “totality of the circumstances.” Originally defined by the United States Supreme Court in Illinois v. Gates, 462 U.S. 213 (1983), as the proper standard for determining probable cause for the issuance of a search warrant based on information from an informant, it was recently applied by that Court in Dickerson v. United States, 530 U.S. 428 (2000), with respect to the voluntariness of a confession, to require consideration of “the totality of all the surrounding circumstances—both the characteristics of the accused and the details of the interrogation,” id., at 434. The phrase has been applied by the Court of Appeals in numerous criminal cases, e.g. People v. Tankleff, 84 N.Y.2d 992, 994 (1994), relating to the voluntariness of a confession), and to civil cases as well, e.g. David v. Biondo, 92 N.Y.2d 318, 324 (1998) (relating to when a party’s relationship to a prior proceeding will collaterally estop him or her from making the same argument in a later proceeding); Matter of Kemp and Beatley, 64 N.Y.2d 63, 73 (1984) (whether corporate directors have been guilty of oppressive conduct); Friederwitzer v. Friederwitzer, 55 N.Y.2d 89, 95–96 (1982) (whether custody of the child of divorced parents should be changed in the best interests of the child). The difficulty with use of the phrase is that unless the opinion spells out the circumstances considered by the Court and the weight to be given to each of them it is difficult, even by reviewing the record, to assess the Court’s reference to “totality.” As U.S. Supreme Court Justice Antonin Scalia put it in his article entitled “The Rule of Law as a Law of Rules,” 56 University of Chicago Law Review, 1175, 1180; “. . . it is no more possible to demonstrate the inconsistency of two opinions based upon a ‘totality of circumstances’ test than it is to demonstrate the inconsistency of two jury verdicts”; see also Alan M. Dershowitz, “Supreme Injustice,” at 126–27, and Cook, “Fuzzy Logic and Judicial Decision Making,” 85 (2) Judicature, 70. It may be queried whether “totality of the evidence” is consistent with the definition of “substantial evidence” in relation to tax assessment cases as stated in Matter of FMC Corporation v. Mack, 92 N.Y.2d 179 (1998), and Matter of Niagara Mohawk Power Corporation, 92 N.Y.2d 192 (1998). While noting that the Court had not defined the precise contours of “substantial evidence,” it stated (92 N.Y.2d at 187–88) that generally a determination is regarded as being supported by substantial evidence when the proof is “so substantial that from it an inference of the existence of the fact found may be drawn reasonably. . . .” [I]t means such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate

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fact. . . . Essential attributes are relevance and a probative character. . . . In final analysis, substantial evidence consists of proof within the whole record of such quality and quantity as to generate conviction in and persuade a fair and detached fact finder that, from that proof as a premise, a conclusion or ultimate fact may be extracted reasonably—probatively and logically. (300 Gramatan Ave. Assocs. v. State Div. of Human Rights, 45 N.Y.2d 176, 179–81)

The opinion made clear that in the context of tax assessment cases “substantial evidence” required only that petitioner demonstrate a valid and credible dispute based on sound theory and objective data, but required less than proof beyond a reasonable doubt; and that once a petitioner has rebutted the presumption of validity that attaches to assessment the court must then weigh the entire record to determine whether petitioner has established by a preponderance of the evidence that its property has been overvalued. Id., at 188.

7. The Great Depression

I. Introduction: Economic Decline Leads to Crucial Constitutional Questions Federal and State measures to deal with the Great Depression presented the New York Court of Appeals and the United States Supreme Court with crucial constitutional questions and substantial issues of statutory construction. Widespread unemployment, unstable markets, and business and bank failures were some of the conditions those measures were intended to meet. Indeed, the Court of Appeals concluded that conditions were so manifestly serious that it “is common knowledge that widespread unemployment has undermined standards of living to a degree which threatens the economic stability of state and nation and affects the welfare of all the American people.” New York Steam Corporation v. City of New York, 268 N.Y. 137, 143 (1935). The Supreme Court relied on several lines of attack when it rejected the constitutionality of State or Federal power to deal with the economic emergency. Foremost among these lines of attack was the Supreme Court’s reliance on the so-called substantive due process doctrine to invalidate State and Federal legislation. Lochner v. New York, 198 U.S. 45 (1905).1 In addition, legislation was invalidated by the Court’s narrow view of the breadth of congressional powers, as well as its broad reading of the prohibition on impairing obligations of contract. In addition, the Supreme Court relied on the equal protection clause and other provisions as well. Its positions were sometimes at odds with a

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state court’s application of its own state constitution. For example, see not 8, infra.

II. Some Inroads on Lochner A. Mortgage Moratorium Legislation 1. THE UNITED STATES SUPREME COURT: HOME BUILDING AND LOAN ASS’N. V. BLAISDELL

In what can be viewed as a departure from the philosophy of its Lochner decision, the Supreme Court, in Home Building and Loan Ass’n. v. Blaisdell, 290 U.S. 398 (1934), sustained the constitutionality of Minnesota’s mortgage moratorium legislation.2 Many states, including New York, had enacted or subsequently enacted similar legislation designed to limit the foreclosure rights of mortgagees against defaulting mortgagors during the economic emergency. In Blaisdell, the Supreme Court rejected constitutional attacks on the Minnesota legislation that claimed the statute violated the Federal Constitution’s prohibition on impairment of contracts and its equal protection and due process clauses. While reserving to the courts the power and the duty to review the legislative determination that an emergency existed, the Court took judicial notice of the facts concerning the existence of the public economic emergency relied on by the State Legislature and held that, subject only to “constitutional limitations safeguarding essential liberties,” the State’s police power was not so limited that it was disabled from dealing with the extreme conditions presented by what became known as the Great Depression. The Chief Justice stated: While emergency does not create power, emergency may furnish the occasion for the exercise of power. Although an emergency may not call into life a power which has never lived, nevertheless emergency may afford a reason for the exertion of a living power already enjoyed. The constitutional question presented in the light of an emergency is whether the power possessed embraces the particular exercise of it in response to particular conditions. . . . When the provisions of the Constitution, in grant or restriction, are specific, so particularized as not to admit of construction, no question is presented. . . . But, where constitutional grants and limitations of power are set forth in general clauses, which afford a broad outline, the process of construction is essential to fill in the details. That is true of the contract clause. 290 U.S., at 426–27 (citations omitted, emphasis supplied)

The Great Depression 135 2. NEW YORK MORTGAGE MORATORIUM LEGISLATION

New York enacted mortgage moratorium legislation in 1933 (Laws 1933, c. 794 and 793). It does not appear that the Court of Appeals addressed its constitutionality under the State Constitution, but its constitutionality under the Federal Constitution was unanimously sustained on the reasoning and on the authority of Blaisdell. People by Van Schaick v. Title & Mortgage Guarantee Co. of Buffalo, 264 N.Y. 69 (1934) (Judge O’Brien concurred solely on the authority of Blaisdell); Klinke v. Samuels, 264 N.Y. 144, 149 (1934) (“such legislation, reasonably seeking only temporary relief, is not unconstitutional”). Also see, Honeyman v. Hanan, 271 N.Y. 564 (1936), and 271 N.Y. 662 (1936) (amending remittitur). The statute applied to mortgages entered into before July 1, 1932. National City Bank of New York v. Gelfert, 284 N.Y. 13, 15 (1940). In Provident Savings Bank & Trust Co. v. Steinmetz, 270 N.Y. 129 (1936), the Court of Appeals held that the provisions of New York’s mortgage moratorium law applied only to mortgages on real property located in New York. Consequently, in Steinmetz the Court held that a debtor was not entitled to the benefits of that statute in a suit brought in New York on notes secured by a mortgage on Florida realty. Although the purpose of the legislation was to protect mortgagors who could not pay principal, the moratory statutes also provided some protection for the mortgagee. It provided that if the mortgaged property produced a surplus in excess of interest, taxes, and carrying charges for a period of six months and the mortgagor failed to apply the surplus to the reduction of principal, the mortgagee could apply for a court order requiring that the surplus be paid to the mortgagee in reduction of the principal. If the mortgagor defaulted on the order to pay, the statutory stay of foreclosure would be lifted and foreclosure proceedings could proceed, and whatever rights the mortgagee had prior to the moratorium legislation would revive, including rights against the mortgagor on the note or bond, if any. However, a subsequent purchaser of the property who had not assumed the mortgage or signed a note or bond was not subject to personal liability for any surplus. As would have been the case before the moratory legislation, the mortgagee’s only right against the subsequent owner was to foreclose on the property. In re Chase National Bank of the City of New York, 283 N.Y. 350 (1940). 3. THE EXTENSION OF THE 1933 NEW YORK LEGISLATION

East New York Savings Bank v. Hahn, 293 N.Y. 622 (1944), dealt with the 1943 extension of the 1933 legislation. The Court described the 1933 legislation and

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put the 1943 extension in historical context. The Court said that the 1933 legislation provided, inter alia, that no action should be brought to foreclose a mortgage for a default in the payment of principal. . . . Each year thereafter the Legislature on similar findings decreed that the remedy provided in 1933 should remain in force for another year. . . . In 1943 the Legislature again declared that “the serious public emergency, which existed at time of the enactment [of the 1933 legislation] having continued, in the judgment of the Legislature, to the present time and still existing, the provisions of the [1933 legislation shall] remain and be in full force and effect until July first, nineteen hundred forty-four.” [The 1943 extension also provided that a mortgagor should not be permitted to assert the suspension of the mortgagee’s foreclosure right unless the mortgagor] amortized the principal at the rate of one per cent per annum. 293 N.Y., at 626–27

In East New York Savings Bank v. Hahn, the mortgagee contended that the 1943 extension was unconstitutional notwithstanding the Legislature’s finding that the 1933 emergency conditions continued into 1943. The mortgagee did not claim that the Legislature did not have the power to exercise its emergency powers if the 1933 conditions were present in 1943. Chief Judge Lehman, writing for the 6–1 majority, posited that the Court had the duty to determine whether legislative power was exercised within constitutional limits and the court was not bound by the Legislature’s declaration of emergency. However, he stated, “upon such an inquiry the legislative findings are entitled to great weight and the legislative remedy will not be stricken down unless its invalidity is clearly established.” 293 N.Y., at 627. Lehman noted that although the specific conditions in 1933 did not exist in 1943, the Legislative findings included findings that conditions “resulting” from the 1933 conditions did exist in 1943. Moreover, the 1943 Governor’s message also called to the attention of the Legislature “the fact that abnormal conditions incident to a war economy or resulting from other causes might still constitute a threat ‘to the welfare, comfort and safety of the people of the state’ and might call for the exercise of legislative power to provide an extraordinary remedy for extraordinary conditions.” 293 N.Y., at 628. The Chief Judge relied on the presumption that the Legislature “inquired and found” the conditions requisite to the exercise of its extraordinary powers, and it did not matter whether the Legislature relied on the continuance of the

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original 1933 emergency conditions and its results or whether the “war economy” emergency alluded to by the Governor created a new emergency. The question for the Court was whether the remedy was “reasonable and legitimate” to deal with “present” conditions, and he found that it was. 293 N.Y., at 628–29 (emphasis added). In his dissent, Judge Lewis criticized the majority’s failure to examine the factual conditions alleged to support the moratorium. He pointed out that the legislative findings of emergency in the 1943 and the 1933 moratorium legislation and all the extensions in between were identical. He argued, based on a detailed analysis of the economic conditions related to mortgages, that those 1933 conditions simply did not exist nor could present conditions be deemed the result of that 1933 emergency. Although professing adherence to the respect due legislative findings, he also adhered to the view that the Court had the obligation to review those findings in determining the constitutionality of a statute. To Judge Lewis, that review required the Court to declare the 1943 legislation to be unconstitutional.

B. Fixing Commodity Prices and Wages3 1. COMMODITY PRICES: NEBBIA AND MINIMUM MILK PRICE LEGISLATION

In People v. Nebbia, 262 N.Y. 259 (1933), affirmed sub nom., Nebbia v. New York, 291 U.S. 502 (1934), the Court of Appeals, in a 5–1 decision,4 affirmed the conviction of a Rochester retail grocer for selling milk below the minimum price set by the Milk Control Board. The Board was established by a State statute (Laws of 1933, c. 158) “adopted after a thorough legislative investigation of the conditions under which milk was produced in this State.” The statute begins with a finding “that the milk business is one affecting the public health and interest, and that an emergency exists.” 262 N.Y., at 261. The Nebbia opinions sharply reflect the conflicts concerning the interpretation of precedents and the appropriate scope of judicial review of the constitutionality of legislative enactments. The defendant argued that the Supreme Court had “definitely excluded the production and sale of food from the field of price regulation,” and the Court of Appeals responded, “This is not so.” 262 N.Y., at 265. Analyzing and distinguishing Supreme Court cases, the Court concluded that “all businesses are subject to some measure of public regulation” and the question is “whether the business justifies the particular restriction . . .” 262 N.Y., at 265. The Court cited

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the findings of a special joint legislative committee that milk, an important human food product and a major State industry, “is of such paramount importance to justify the assertion that the general welfare and prosperity of the state in a very large and real sense depend on [the milk industry] . . .” The Committee described how the flow of milk to the city was jeopardized by milk producers being subject to the shippers’ offers of a price so low “that milk cannot profitably be produced” and recommended, and the Legislature agreed, that it was necessary to regulate the price of milk to “protect the farmer from the exactions of purchasers against which [the farmer] cannot protect himself.” 262 N.Y., at 266. 5 In addition to its acquiescence in the Committee’s findings about the effects of intolerable ruinous and cutthroat competition in the milk industry, the Legislature in enacting the legislation also agreed with the Committee’s conclusion that it was “‘clear that the economic law of supply and demand cannot be relied upon either to insure the consumers of a continuous and adequate supply of wholesome milk, or to prevent grave injury to this important industry and its possible disintegration.’” 262 N.Y., at 268. Also contributing to the passage of the price control legislation was that “the condition [of the industry] has given rise to scenes of violence and disorder in the attempt to organize the so-called milk strikes as a protest against the low prices paid for milk.” 262 N.Y., at 268. In an insightful analysis of the judicial process, Chief Judge Pound, writing for the majority, reviewed the strands of precedents that supported6 or militated against7 the constitutionality of the milk price legislation. He conceded that “[d]oubtless distinctions may be drawn, holdings to the contrary cited, and false analogies pointed out,” 262 N.Y., at 269, but, he cautioned, “[a]ll these decisions are to be read in the light of surrounding circumstances. . . . Classifications, however sharply defined, appear on closer study to be separated only by imaginary lines. Sentences in judicial opinions are misleading if taken out of their context and read as if they were the gist of the decision. Mechanical concepts of jurisprudence make easy a decision on the strength of seeming authority.” Id., at 270 (emphasis added). Referring to Lochner v. New York, 198 U.S. 45 (1905),8 the Chief Judge recognized that “[d]oubtless the statute before us would be condemned by an earlier generation as a temerarious interference with the rights of property and contract; with the natural law of supply and demand. But we must not fail to consider that the police power is the least limitable of the powers of government and that it extends to all the great public needs; that constitutional law is a progressive science; that statutes aiming to establish a standard of social justice, to conform the law to the accepted standards of the community, to stimulate the production of

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a vital food product by fixing living standards of prices for the producer, are to be interpreted with that degree of liberality which is essential to the attainment of the end in view; and that mere novelty is no objection to legislation.” Id., at 270–71 (citations omitted; emphasis added). The Chief Judge’s view of the role of state courts in the process of judicial review was that “State courts should uphold state regulation whenever possible. They should be clearly convinced that a statute is unconstitutional before they declare it invalid.” Id., at 271. In determining the constitutionality of a statute, he pointed out, the court is not concerned with “the wisdom of the legislation,” even though it might not be wise to interfere with market forces of supply and demand to set prices and that the legislation might not effectively ameliorate the effects of those market forces. Id., at 271. As for application of the Federal Constitution to the milk price statute, Pound stated: With full respect for the Constitution as an efficient frame of government in peace and war, under normal conditions or in emergencies; with cheerful submission to the rule of the Supreme Court that legislative authority to abridge property rights and freedom of contract can be justified only by exceptional circumstances and, even then, by reasonable regulation only, and that legislative conclusions based on findings of fact are subject to judicial review, we do not feel compelled to hold that the “due process” clause of the Constitution has left milk producers unprotected from oppression and to place the stamp of invalidity on the measure before us. Id., at 271 (citations omitted)

We are unable to say that the Legislature is lacking in power, not only to regulate and encourage the production of milk, but also, when conditions require, to regulate the prices to be paid for it, so that a fair return may be obtained by the producer and a vital industry preserved from destruction. The policy of non-interference with individual freedom must at times give way to the policy of compulsion for the general welfare. Id., at 272 (citations omitted)

Judge O’Brien, dissenting, id., at 272, argued that milk price controls violated both the State and Federal Constitutions’ due process clauses. He relied on the cases cited by the majority as arguably militating against constitutionality, and he claimed that the cases cited by the majority as favoring constitutionality involved

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either wartime, not peacetime, emergencies, or they involved monopoly market power, a condition not present in the milk market. Moreover, he disagreed with the contention that it was “common knowledge” that the deterioration of prices for milk threatened the public health, welfare, and morals. He said that “the real emergency was a commercial one” engendered by a surfeit of wholesome milk in the market, and this did not constitutionally justify the restraints on the property right to contract for price. If there were a real threat to a “wholesome” supply of milk, the danger could be met by more rigid inspections and licensing. Although legislative findings were entitled to great respect, they did not reduce the role of the Court to decide constitutionality. He wrote: The police power, although “a dynamic agency, vague and undefined in its scope” cannot rise superior to the Constitution. This great instrument of government is not a thing merely to be extolled in academic halls, to be the subject of juvenile orations, and to be tolerated as innocuous only so long as its prohibitions are unnecessary in practical ways. It is not quiescent; it is vibrant. It cannot become obsolete until the States vote to amend or repeal it. It was designed to safeguard not only life and liberty but also property rights in times of stress and suffering when despairing and desperate majorities in good faith seek by forbidden methods to correct temporary evils which, serious and distressing as they are, will prove less harmful and enduring than would the subversion of our fundamental principles of government. If the effort manifested by this statute to regulate private contract by fixation of prices on a product which does not constitute a public use be sustained, then the police power is not only undefined but it is boundless. Its operation will extend to every trade and every occupation. Each citizen will become enmeshed in an inextricable tangle of bureaucracies such as are now so prevalent in foreign countries but utterly alien to our institutions. Liberty will cease to exist. Since the warning was sounded in Matter of Jacobs, 98 N.Y. 98 . . . the Constitution, which of course was never intended as a document of perfect rigidity, has yielded to reasonably flexible and prudent interpretations by conservatively progressive judges, but the time has not yet come when the courts of this State ought to surrender to the doctrine that governmental prefects, in times of peace and plenty, may supervise the rearing of cattle or the price of milk. Until the people, in whom reside all political power, decide to amend their Constitutions, the provisions of section 6 of article I of the New York Constitution and the Fourteenth Amendment of the Federal Constitution prevent, as valid, the recognition of the price-fixing element of this statute. 262 N.Y. 259, at 276–77 (citations omitted)

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The United States Supreme Court, invoking its Lochner ”due process” decision and other Federal Constitution provisions, often had invalidated state and Federal legislation both before and after its Nebbia decision. Thus, its affirmance of the Court of Appeals in Nebbia and the earlier decision in Blaisdell might have been seen as either anomalies or, perhaps, as the onset of a relaxation by the Supreme Court of its prior general hostility to government regulation of private transactions. In Noyes v. Erie & Wyoming Farmers Cooperative Corporation, 281 N.Y. 187 (1939), the Court of Appeals rejected an attack on the constitutionality of legislation that gave the Commissioner of Agriculture and Markets the power to establish a plan for the equalization of milk prices so that each producer or cooperative would receive the same base price for milk subject to adjustments for quality and location. The Court held that discretion to be exercised by the Commissioner was sufficiently guided and limited by the standards and principles set forth in the statute and that the promulgated plan did not deprive the challenger of property without due process of law. 2. MINIMUM WAGE LAWS

In 1933, the State legislature enacted the Minimum Wage Law for Women (L. 1933, c. 584, effective, April 19, 1933). The statute regulated the wages of women and children. The Supreme Court previously had held that a Federal law regulating the wages of women in the District of Columbia interfered with the parties’ liberty of contract and thereby violated the due process clause of the Fifth Amendment (Adkins v. Children’s Hospital of District of Columbia, 261 U.S. 525 [1923]. In People ex rel. Tipaldo v. Morehead, 270 N.Y. 233 [1936], affirmed sub nom., Morehead v. People of the State of New York ex rel. Tipaldo, 298 U.S. 587 [1936]), the constitutionality of the New York statute was challenged, and the Court of Appeals, on the authority of Adkins, held that the statute was unconstitutional. In the Court of Appeals, there were two main facets to the defense of the constitutionality of the statute. First, in view of Nebbia sustaining the milk price fixing statute and the economic circumstances in which New York’s minimum wage statute was enacted, the authority of Adkins was so much in doubt that it should not be followed simply because the statute covered wages, i.e., the price of labor, and not the price of commodities, as in Nebbia. Second, the New York statutory language differed from the statute in Adkins, in that the language responded to the objections in Adkins. The Court of Appeals 4–3 majority considered the differences between the Adkins and the New York statutes to be inconsequential insofar as constitutionality was concerned. The majority did not believe that its role was to reexamine

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the principles underlying Adkins. Consequently, the Court of Appeals held, on the authority of Adkins, that the New York statute violated the due process clause of the Fourteenth Amendment. Judge Lehman’s dissenting opinion, in response to the Attorney General’s argument that “time and experience [had] demonstrated the soundness of the dissenting opinions in [Adkins9], and that the Supreme Court would now decide differently if the same objections were now presented,” declined to attack the Supreme Court’s construction of the Constitution in Adkins. 270 N.Y., at 242. Rather, he proceeded to consider the constitutionality of the New York statute on the basis of the principles relied on by the Supreme Court in Adkins and Nebbia. Relying on Nebbia, Judge Lehman accepted the general rule that the “reserved power of the state” in the exercise of the police power was constitutionally restricted by due process requirements, but this “only” required that the “‘law shall not be unreasonable, arbitrary or capricious, and that the means selected shall have a real and substantial relation to the object sought to be attained. (Nebbia, 291 U.S. 502, 525).’” 270 N.Y., at 244 (emphasis supplied). Quoting Adkins, he posed the issue as follows: “There is, of course, no such thing as absolute freedom of contract . . . But freedom of contract is, nevertheless, the general rule and restraint the exception; and the exercise of legislative authority to abridge it can be justified only by the existence of exceptional circumstances. Whether these circumstances exist in the present case constitutes the question to be answered.” [quoting from Adkins, at 546] . . . The difference of opinion in [Adkins] concerned only the question of whether the circumstances were so exceptional as to justify, reasonably, the restraints imposed. 270 N.Y., at 243–44 (emphasis supplied).

Judge Lehman reviewed the circumstances surrounding the employment of women and their ability to obtain a fair wage for their services and a wage sufficient to meet the minimum demands of the cost of living. He accepted the legislative findings that appeared in the statute, and stated: Though no reasonable man, today, can doubt the mental capacity of women and though, happily, in this country there are few vestiges of the ancient law which discriminated between men and women and incapacitated women from entering upon industrial, business, or professional careers, yet it is notorious that in the free competition of such careers they are at a disadvantage with men. . . . Whatever may be the reason, the fact is patent that often

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women are willing or forced to accept lower compensation for service than men receive in the same occupation. . . . If wages [do not meet the standards set in the statute in that they] are both less than “the fair and reasonable value of the services rendered” and less than sufficient to meet the minimum cost of living necessary for health, some element of inequality or oppression may reasonably be found to enter into the bargain. 270 N.Y., at 246 (emphasis in original)

The family and the community are threatened by the dangers to women’s health consequent upon oppressive wages so low and the State has an interest in dealing with the problem even if it requires interference with competition in the market. In addition, he reasoned that oppressive wages in one part of the economy can have a chain-like effect on the rest of the economy—these consequences are subjects of legitimate public concern. Judge Lehman distinguished the standard for minimum wages in the Adkins statute from the New York statute and concluded that the means used to meet those matters of public concern satisfied due process. Indeed, he pointed out that there was language in the Adkins opinion that a statute like the New York statute might be deemed constitutional, and he argued that the Legislature had taken pains to meet the Adkins objections. 270 N.Y., at 248–50, passim. The Supreme Court, in a 5–4 decision, affirmed the Court of Appeals holding that the statute was unconstitutional. Morehead v. People of the State of New York ex rel. Tipaldo, 298 U.S. 587 (1936). The majority, in an opinion by Justice Butler, claimed that whether Adkins should be overruled or modified was not properly before the Court and did not reexamine Adkins, but rather applied it and held that the statute was unconstitutional. Chief Justice Hughes dissented, claiming that the New York statute was sufficiently different from the statute in Adkins so as to satisfy due process requirements. Justices Stone, Brandeis, and Cardozo joined with the Chief Justice and Justices Cardozo and Brandeis joined in a separate dissenting opinion by Justice Stone, who would have overruled Adkins as irreconcilably inconsistent with Nebbia. In 1937, the Supreme Court, in a 5–4 decision, overruled Adkins, in an opinion by Chief Justice Hughes, with Justices Van Devanter, McReynolds, Butler, and Sutherland, dissenting. West Coast Hotel v. Parrish, 300 U.S. 379 (1937). After West Coast Hotel, no question was presented concerning the constitutionality of New York’s minimum wage legislation. For example, see Mary Lincoln Candies, Inc. v. Department of Labor, 289 N.Y. 262, 265 (1942), which held that the Labor Law authorized the Board of Standards and Appeals to establish socalled “Guaranteed Wages,” i.e., for male and female minors and for women,

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regardless of the number of hours worked. The Board’s regulation set a minimum payment for those who worked a minimum number of hours.

III. New York and the NIRA In 1933, Congress, exercising its commerce clause powers, enacted the National Industrial Recovery Act, a key element of the New Deal legislation designed to deal with effects of the Depression. In summary, the legislation, containing findings that a national emergency existed, authorized the establishment of so-called industry codes of “fair competition” for the purpose of dealing with destructive methods of competition in those industries for which codes are established. The codes were to be established voluntarily by trade associations and members of the industry, but the President also had the power to order that such codes be established. The codes, subject to approval or modification by the President and by those charged with administering the codes, were binding on those who engaged in the activities covered by the codes. On the finding of an emergency, the codes could fix prices. New York State enacted its counterpart of the NIRA, the State Recovery Act, Laws of 1933, chapter 781, whose findings echoed those set out in the NIRA. In substance, the New York statute resulted in the adoption of the NIRA codes for those engaged in intrastate business in New York when the codes and their attendant regulations were filed with the State’s Secretary of State. In substance, the New York statute “[made] the filing of any code approved by the President the law of [New York], a violation of which is a misdemeanor.” Darweger v. Staats, 267 N.Y. 290, 303 (1935). Darweger, a 4–3 decision, held that the New York statute was unconstitutional as a delegation of legislative power in violation of Article 3, section 1, of the State Constitution, which provides that “[t]he legislative power of this State shall be vested in the Senate and Assembly.” The opinion by Chief Judge Crane recognized that delegation of power to make rules and regulations was necessary for effective government, including the power to make regulations that would be subject to criminal penalties. Although the Legislature could “simply establish rules and principles, leaving execution and details to other officers,” including the promulgation of enforceable regulations, the Chief Judge found that in the State Recovery Act, there was “no such establishment of a rule or principle. The Legislature has declared an emergency in industry and left it for others [national bodies or officials] beyond its control or power to do the rest.” 267 N.Y., at 306. A means utilized by codes for dealing with the emergency in

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an industry was to fix prices, and in Darweger, the attacks on the legislation came from those who objected to the fixing of prices in the intrastate sales of coal. The Court rejected Nebbia as authority for sustaining the fixing of prices for coal in that Nebbia involved legislative detailed investigations and findings concerning the milk industry and the Legislature established the rules and principles for setting prices in the milk industry. However, the State Recovery Act was constitutionally defective under the State Constitution because it did not involve the Legislature or any state agency in establishing the policy for fixing the price of coal or any other commodity. Judge Lehman’s dissent, in substance, argued the necessity for the state to deal with the serious economic conditions that had paralyzed the nation and the state and the difficulty of determining, until the Supreme Court acted, what were the respective limits of Federal and State legislative power. He maintained that the cooperation with the Federal government represented by the State Recovery Act should not be barred by finding that law to be unconstitutional.10 One month after the decision in Darweger, on May 27, 1935, the United States Supreme Court unanimously declared the National Industrial Recovery Act to be unconstitutional under the Federal Constitution in part because the Court found that Congress had delegated its legislative powers without adequate rules or principles for its exercise. A.L.A. Schechter Poultry Corporation v. United States, 295 U.S. 495 (1935).

IV. Dealing with Unemployment A. Earmarking Tax Revenues An important measure directed at the problem of unemployment was earmarking certain tax revenues for that purpose. In New York Steam Corporation v. City of New York, 268 N.Y. 137 (1935), the Court of Appeals upheld a 1933 statute (the Buckley Act) authorizing cities of one million or more to exercise the same taxing power the Legislature had, provided the “revenue derived from such taxes [was limited] to the defrayal of the cost of granting unemployment relief . . .” Such cities could exercise the power only from September 1, 1933, to February 28, 1934, a period of six months. New York City was the only city with a population of “one million or more”; thus, as a practical matter, the provision empowered only the City of New York. 268 N.Y., at 141–42. Under the authority of the Buckley Act, the City imposed a tax measured by the gross revenues of any business that was subject to the supervision of the State

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Public Service Commission. New York Steam challenged the constitutionality of the Buckley Act claiming it violated Article 12, § 2, the Home Rule provision of the State Constitution and it violated the equal protection clause of the Fourteenth Amendment to the Federal Constitution. As for the Home Rule issue, New York Steam argued that the Buckley Act was a local or special law “relating to the property, or affairs or government of the city,” and that it had not been passed in compliance with the State’s constitutional requirement that such a law be passed by a two-thirds majority of each house of the Legislature on a message of necessity from the Governor. The City maintained that the statute was a general law and required only a simple majority of each house of the Legislature. The Court noted that while in form the Buckley Act was general in terms and in effect, form alone was not sufficient to constitute it a “general law”; however, under the prevailing economic conditions, its subject and purpose did qualify it as a general law. The Court reasoned: It is only matters of paramount state concern, as discriminated from those of dominant local significance, that are not subject to the requirements of section 2 of article 12 of the Constitution. . . . However hard the problem of classification may be in other situations . . . , choice of the category in this instance is, we think, free from doubt. It is common knowledge that widespread unemployment has undermined standards of living to a degree which threatens the economic stability of State and nation and affects the welfare of all the American people. More than half the population of the state live in the city of New York. “Anything that affects the health and the welfare of the city of New York, touches almost directly the welfare of the State as a whole.” . . . “If the moral and physical fibre of its manhood and its womanhood is not a State concern, the question is, what is?” 268 N.Y., at 143–44 (citations omitted)

The lower court had sustained the constitutionality of the Buckley Act in reliance on section 5 of Article 12 of the State Constitution, which authorized the legislature to enlarge the powers of local government by general law, but the Court of Appeals eschewed basing its decision on § 5, 268 N.Y., at 144.11 Instead, the Court found that the statute was one that dealt with the taxing powers of local government, a subject that, despite the Home Rule limitations on the State Legislature, was subject to regulation by the Legislature through general laws (Article 12, § 1). The difficulty with this position was that § 1 spoke of the Legislature’s power to “restrict” a local government’s fiscal powers. The

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court concluded that the Act’s seven-month limitation during which the City could act and its limitation on the use of revenues for unemployment relief were restrictions on the City’s taxing power that satisfied Article 12, § 1. Addressing the equal-protection challenge created by the Fourteenth Amendment, the Court found that in view of the protection from the vicissitudes of competition enjoyed by public utilities as compared with other businesses, the City’s decision to deal with public utilities as a separate class was reasonable. Of course, it was likely that consumers would end up paying the new tax on utilities, and on the same day New York Steam was decided, the Court also decided Garfield v. New York Telephone Co., 268 N.Y. 549 (1935). In Garfield, a telephone user who had been charged 24 cents on his telephone bill as a 2 percent New York City tax sought to enjoin the City from collecting the tax, claiming that the Buckley Act and the Local Law imposing the tax on telephone service for the relief of the unemployed were unconstitutional. The Court in a memorandum sustained the constitutionality of the legislation on the authority of New York Steam. Two years later, the Court of Appeals again dealt with the constitutionality of New York City’s tax on gross receipts on public utilities in New York Rapid Transport Corporation v. City of New York, 275 N.Y. 258 (1937). Although the tax had been upheld with respect to other public utilities, Special Term, affirmed by the Appellate Division, 251 A.D. 710 (1st Dept. 1937), agreed with New York Rapid that because, by contract with the City, it was limited to charging a fare of five cents, its ratio of net to gross earnings was much smaller than that of other utilities not so limited in income. New York Rapid had argued that as a result of lumping it in the same class with other utilities, it paid a percentage of its profits “radically” greater than was paid by other utilities, an inequity so “gross” that the classification was unconstitutional. 275 N.Y., at 265. The Court of Appeals disagreed with New York Rapid and reversed the Appellate Division. The Court concluded that the fact that the burden falls unevenly on members of a group otherwise reasonably classified does not result in unconstitutionality. Indeed, the Court pointed out that if the smaller and larger utilities had been placed in separate classes and the same tax was imposed on each, there could not be a valid objection. Hence, merging the classes did not cause the tax to be invalid. 275 N.Y., at 266–67. The Court also rejected New York Rapid’s claim that the tax impaired the obligations of its contract with the city to maintain a five cents fare, its challenge to the earmarking of the tax revenues, and a challenge to the classification because it did not include competitors of New York Rapid, such as taxicabs and city-owned subways.

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B. Unemployment Compensation In W.H.H. Chamberlin, Inc. v. Andrews, 271 N.Y. 1 (1936), plaintiffs challenged the constitutionality of New York’s Unemployment Insurance Law (Laws of 1935, ch. 468; Labor Law, art. 18). The law imposed a 3 percent tax on payrolls of employers who employed more than four employees during each of thirteen weeks or more of the calendar year. The proceeds of the levy were to be deposited in a fund, administered by the State, and to be used to pay unemployed persons as defined by the statute. Employment of a spouse or minor child, of farm labor, and in certain charities was excluded. The plaintiffs claimed that the legislation violated the due process and equal protection clauses of the State and Federal Constitutions. The Court of Appeals rejected the constitutional challenges. Chief Judge Crane wrote the opinion for the 5–2 majority. In his opinion sustaining the legislation, he set out perhaps the most complete statement of the philosophical and factual justifications for that legislation and the standards for judicial determination of its constitutionality. The principles he laid down in this opinion would be applicable to many of the other enactments directed at the ills of the Great Depression. The Chief Judge stated: The courts can take judicial notice of the fact that unemployment for the last five or six years has been a very acute problem for State and Federal government. There have always been from earliest times the poor and unfortunate whom the State has had to support by means of money raised by taxation. We have had our homes for the poor and the infirm, hospitals, infirmaries, and many and various means for taking care of those who could not take care of themselves. The institutions housing our insane have grown to be an enormous expense, illustrating that the legality of the expenditure of public moneys for vast numbers of those who were without means of support or help has never been questioned. Another problem has faced society which has been a source of study, discussion, agitation and planning. Unemployment, from whatever cause, has increased enormously in every part of the country, if not throughout the world. Is there any means possible to provide against unemployment, the loss of work, with its serious consequences to the family, to the children and to the public at large? When such a matter becomes general and affects the whole body politic, a situation has arisen which requires the exercise of the reserve power of the State, if there be a practical solution. Some have suggested that for the periodical recurrence of panics and hard times, the actuary might be

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able to work out a scheme of insurance. We need not pause to determine whether this can be done or not. The fact is that in the past few years enormous sums of State and Federal money have been spent to keep housed and alive the families of those out of work who could not get employment. Such help was absolutely necessary, and it would be a strange kind of government, in fact no government at all, which could not give help in such trouble. The Legislature of the State, acting after investigation and study and upon the report of experts, has proposed what seems to it a better plan. Instead of solely taxing all the people directly it has passed a law whereby employers are taxed for the help of the unemployed, the sums thus paid being cast upon the public generally through the natural increase in the prices of commodities. Whether relief be under this new law of the Legislature or under the dole system the public at large pays the bill. We may concede that much of unemployment is due to other factors than business depression. Just what does cause slumps in business, panics and unemployment has never been satisfactorily explained, but a very large percentage of those who are out of work have lost their jobs or positions by reason of poor business conditions and hard times. I can see, therefore, nothing unreasonable or unconstitutional in the legislative act which seeks to meet the evils and dangers of unemployment in the future by raising a fund through taxation of employers generally. .... Unequal protection of the laws and unfair classification are charged against this act because employers who have had no unemployment are obliged to contribute to a fund to help those who have lost positions in failing or bankrupt businesses; also because the line is drawn at four employees instead of including all and any employer. We do not think that this narrow view is required by any constitutional provision. People have to live and when they cannot support themselves someone has to look after them. When ablebodied, willing men cannot find work they may be treated as a class, irrespective of their particular calling or trade. The peril to the State arises from unemployment generally not from any particular class of workers. So likewise, employers generally are not so unrelated to the unemployment problem as to make a moderate tax upon their payrolls unreasonable or arbitrary. As stated before, unemployment and business conditions generally are to a large extent linked together. 271 N.Y., at 8–10 (emphasis added)

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After describing the Act in some detail, the Chief Judge asked: What shall we say about this act? At least it is an attempt to solve a great and pressing problem in government. We have had such problems thrust upon our attention arising out of emergencies such as the rent laws . . . , the housing laws, and the milk laws. The Legislature seeks to meet the future now without waiting for the emergency to arise. Can it do so? Unless there is something radically wrong, striking at the very fundamentals of constitutional government, courts should not interfere with these attempts in the exercise of the reserve power of the State to meet dangers which threaten the entire common weal and affect every home. No large body of men and women can be without work and the body politic be healthy. 271 N.Y., at 13 (citations omitted)

Responding to the argument of the dissent that money collected was not a tax, but rather the product of a police measure, the Chief Judge wrote: Whether we consider such legislation as we have here a tax measure or an exercise of the police power seems to me to be immaterial. Power in the State must exist to meet such situations, and it can only be met by raising funds to tide over the unemployment period. Money must be obtained and it does not seem at all arbitrary to confine the tax to a business and employment out of which the difficulty principally arises. 271 N.Y., at 14

He continued: It is said that this is taxation for the benefit of a special class, not the public at large, and thus the purpose is essentially private. The Legislature, after investigation, has found the facts to be that those who are to receive benefits under the act are the ones most likely to be out of employment in times of depression. The courts cannot investigate these facts and should not attempt to do so. The briefs submitted show that the classification or selection made by the Legislature has followed investigation and has sought to reach the weakest spot. Experience may show this to be a mistake. No law can act with certainty; it measures reasonable probabilities. Judicial inquiry does not concern itself with the accuracy of the legislative finding, but only with the question whether it so lacks any reasonable basis as to be arbitrary. . . . ....

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Whether or not the Legislature should pass such a law or whether it will afford the remedy or the relief predicted for it, is a matter for fair argument but not for argument in a court of law. Here we are dealing simply with the power of the Legislature to meet a growing danger and peril to a large number of our fellow citizens, and we can find nothing in the act itself which is so arbitrary or unreasonable as to show that it deprives any employer of his property without due process of law or denies to him the equal protection of the laws. 271 N.Y., at 14–15 (citation omitted; emphasis supplied)

The dissent argued that the situation in Railroad Retirement Board v. Alton R.R. Co., 295 U.S. 330 (1935), which found a Federal law concerning required pensions for a vast range of employees related to the railroad industry, the Railroad Retirement Act of June 27, 1934, to be unconstitutional, was indistinguishable from situation before the court in W.H.H. Chamberlin. Chief Judge Crane disagreed and reasoned that in Alton R.R. Co. the Federal law “could not be sustained as a police regulation or within the police power as no such power exists in the Federal government and the act failed to come within the field of interstate commerce as stated in the opinion.” 271 N.Y., at 15. He also noted that “[e]ven the police power of the State might fall far short of enabling the Legislatures of the States to provide for pensioning employees in favored industries or employment.” Id. Alton R.R. Co. was never expressly overruled, although Federal courts have treated the case as having been “effectively” overruled. Commonwealth Edison Company v. United States, 271 F.3d 1327, 1343 (Fed. Cir. 2001).12

V. Labor Relations During the Depression, both the Federal and state governments enacted legislation to redress what was viewed as a harmful imbalance favoring management in the collective bargaining positions of labor and management. In 1937, the Supreme Court sustained the constitutionality of the National Labor Relations Act of 1935 (Laws of 1935, 49 Stat. 449) as an exercise of Congressional power under the commerce clause (NLRB v. Jones & Laughlin Steel Corp. 301 U.S. 1). In 1937, exercising the police power, the State Legislature enacted the New York State Labor Relations Act (Laws of 1937, ch. 443). The constitutionality and scope of the State act were considered in Metropolitan Life Insurance Co. v. New York State Labor Relations Board (Industrial Insurance Agents Union et al., Interveners), 280 N.Y. 194 (1939).

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Section 700 of the Labor Law declares that the New York State Labor Relations Act “shall be deemed an exercise of the police power of the state for the protection of the public welfare, prosperity, health and peace of the people of the state” and explicitly states the reasons for and the purposes of the Act and sets out the standards to govern its interpretation: Under prevailing economic conditions individual employees do not possess full freedom of association or actual liberty of contract. Employers in many instances organized in corporate or other forms of ownership associations with the aid of government authority have superior economic power in bargaining with employees. This growing inequality of bargaining power substantially and adversely affects the general welfare of the state by creating variations and instability in competitive wage rates and working conditions within and between industries and by depressing the purchasing power of wage earners, thus (a) creating sweat shops with their attendant dangers to the health, peace, and morals of the people, (b) increasing the disparity between production and consumption, and (c) tending to produce and aggravate recurrent business depressions. The denial by some employers of the right of employees to organize and the refusal by employers to accept the procedure of collective bargaining tend to lead to strikes, lockouts and other forms of industrial strife and unrest, which are inimical to the public safety and welfare and frequently endanger the public health. Experience has proved that protection by law of the right of employees to organize and bargain collectively removes certain recognized sources of industrial strife and unrest, encourages practices fundamental to the friendly adjustment of industrial disputes arising out of differences as to wages, hours, or other working conditions, and tends to restore equality of bargaining power between employers and employees. In the interpretation and application of this article, and otherwise, it is hereby declared to be the public policy of the state to encourage the practice and procedure of collective bargaining and to protect the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection, free from the interference, restraint or coercion of their employers. All the provisions of this article shall be liberally construed for the accomplishment of this purpose. 280 N.Y., 201–2 (emphasis supplied)

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In large measure the State act mirrored the Federal act by establishing a Labor Relations Board to administer its provisions and declaring the rights of employees. The main question in Metropolitan Life Insurance was whether insurance agents, concededly white-collar employees, were covered by the act. Prior to the enactment of the State act, Article 1 of the Labor Law contained a definition of employee that did not include white-collar employees; however, the State Labor Relations Act, added to the Labor Law as Article 20, contained its own broader definition of “employee” in terms of inclusion and exclusion. The question was whether the definition in Article 1 limited the definition of employee in the State Labor Relations Act. There was an ambiguity that had to be resolved and the 4–3 majority, in an opinion by Judge Loughran, concluded that white- collar workers were covered by the protection of the act. Addressing and rejecting the fine reading of the act urged by the employer, Judge Loughran’s majority opinion said: We think it unnecessary to set forth our analysis of the many critical refinements which . . . [the employer’s] idea implies. Over and above all such argumentation stands the engendering principle of the New York act as declared by the words already quoted from section 700. The purposes and policy there avowed–and the scheme of the act as a whole–dispel all doubt that these agents of Metropolitan are employees in the sense of section 701. (280 N.Y., at 205–6) (emphasis supplied)

Three judges dissented on the grounds that the State act included only industrial blue-collar workers and not white-collar workers. They did not consider the other grounds ruled on by the majority. 280 N.Y., at 209. The majority, however, also rejected Metropolitan’s contentions that the act unlawfully delegated power to the Board because of the absence of sufficiently definite standards for determining what constitutes an appropriate bargaining unit, and relying on the United States Supreme Court decision in Jones & Laughlin, supra, the majority dismissed the argument that the State act unconstitutionally abridged “freedom of contract.” 280 N.Y., at 206–7.

VI. Insolvent Banks—Shareholders Liability Article 8, § 7, of the New York State Constitution, a provision that in somewhat different form appeared in several New York State constitutions and which was

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repealed by amendment in the 1935 general election, effective January 1, 1936, provided: The stockholders of every corporation and joint-stock association for banking purposes, shall be individually responsible to the amount of their respective share or shares of stock in any such corporation or association, for all its debts and liabilities of every kind.

The depression gave rise to many bank insolvencies, and before and after the repeal of Article 8, § 7, the Court dealt with the liability of shareholders under the constitutional provision and its implementing statutes. In Broderick v. Aaron, 268 N.Y. 260 (1935), the Court of Appeals addressed the question of whether “a person who acquires stock in a banking corporation after the Superintendent of Banks has taken possession of its business and assets is subject to the liability imposed by law upon stockholders of a bank.” Although the constitutional provision uses the term “stockholders,” the term is not selfdefining, and the Court pointed out that the Constitution was “silent” on “whether those who are to be held responsible are the stockholders of record, the legal owners of the stock, or the equitable owners.” The Court concluded that Article 8, § 7, was “not self-executing,” and the Legislature had the power to provide the “rules or tests to determine when liability arises, upon whom it falls, . . . how long it continues . . . how the ‘stockholder’s’ responsibility shall be enforced.” The Legislature implemented the Constitution by dealing with those issues in various Banking Law provisions. However, in Broderick v. Aaron, supra, the Court was presented with whether a person who became a stockholder within the statutory definition of that term, but after the “bank became insolvent or after default, and after it had ceased to do business,” was subject to liability. The statute did not expressly address this question and, of course, neither did the Constitution. The Court reasoned that there must be a time for fixing a shareholder’s liability—when the responsibility could not be transferred— and it “cannot be later than the closing of the bank, when such closing is followed by liquidation.” Further, transfers of stock after the bank had ceased to do business did not result in the transferor avoiding personal liability. However, the Court held that personal liability did not fall on a transferee who acquired the stock after the bank had “ceased to do business under the mandate of state.” 268 N.Y., at 262, 263–64, 268. Although a good-faith transfer of shares prior to a bank’s closing ordinarily would result in the transferor avoiding personal liability, this was not the result when the transfer was to a nonresident of New York State. In Broderick v. Adam-

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son (Gordon), 270 N.Y. 228 (1936), the resident transferor of bank shares argued that he was not a stockholder and the Legislature could not treat him as stockholder for the purpose of personal liability. The Court held that the Legislature could and did so in Banking Law § 120, which provided: No person who has in good faith, and without any intent to avoid liability as a stockholder, caused his stock to be transferred on the books of the bank when such bank is solvent to any resident of this state of full age previous to any default in the payment of any debt, or liability of the bank, shall be subject to any personal liability for any contracts, debts engagements of the bank (emphasis added).

The Court, stating that the “constitutional provision” is not self-executing and that the Legislature has the power to implement it, rejected the transferor’s argument that because the immunity granted to the transferor in § 120 did not affirmatively impose a continuing liability on a transferor to a nonresident, his personal liability did not continue after the transfer. The Court viewed the statute as setting bounds for avoiding personal liability that could otherwise be imposed under the constitutional provision and concluded that “an act outside the limits leaves the stockholder liable.” 270 N.Y., at 232. Because this was not a transfer to a “resident of this state,” as the statute provided, the transferor’s personal liability continued after the transfer. In Broderick v. Adamson (Robert), 273 N.Y. 628 (1937), the customer of a broker purchased shares of the Bank of the United States through the broker on November 27, 1930, paid for them in full, and the certificates were issued in the name of the broker. The bank closed after business on the night of December 10, 1930. On December 10, the customer ordered his broker to sell the shares; they were sold on that day. A certificate was delivered to the purchaser on December 11, and the seller’s account was credited on that day. The Court held that the customer who had purchased and later sold the share was liable for an assessment against the shares, and not the broker who was “merely a custodian or agent” of his customer. Broderick v. Weinsier, 278 N.Y. 419 (1938), held that the repeal of Article 8, § 7, did not affect the liability of shareholders that had accrued prior to the repeal. The Court also considered the question of whether the personal liability of each shareholder was “equal and ratable” or whether they were each liable, “one for another.” The relevant banking-law provision provided the Superintendent of Banks with a statutory cause of action for recovery of the assessment equal and ratable. The Superintendent sought recovery from the shareholders, “one for

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another,” relying on the constitutional provision and not the statute and claiming that the statute could not limit the power conferred by the Constitution. After reviewing the history of the enforcement of the constitutional provision which showed that no claim for recovery contended for by the Superintendent had ever been made and citing Broderick v. Aaron, 268 N.Y. 260 (1935) (the provision is not self-executing), the Court rejected the Superintendent’s position and concluded that he was limited to the statutory action as contended by the shareholders.

8. New Judicial Federalism

I. Introduction: State Constitutional Protection of Individual Rights Broader Than Required by Federal Constitution It is undisputed that the Federal Constitution acts as a floor for individual constitutional rights and that the states have the power to recognize more expanded rights under their own constitutions. What has been disputed is whether and when a state should expand individual rights beyond those resting on the Federal Constitution.1 Symptomatic of this dispute are the amendments to the Florida, California, and Rhode Island Constitutions ratified in the 1980s. As a result of a referendum, the Florida Constitution was amended to prevent the Florida courts when applying the Florida Constitution in search-and-seizure cases to go beyond United States Supreme Court Fourth Amendment interpretations.2 The California electorate approved a state constitutional amendment that limited California courts in search-and-seizure matters and some additional criminal procedure areas as well; however, Raven v. Deukmejian, 801 P.2d 1077 (Cal. 1990) 157 held that the California amendment was unconstitutional under the California Constitution because of procedural deficiencies in its adoption. Rhode Island’s approach was the opposite of Florida’s and California’s. In 1986, it added a provision to the Rhode Island Constitution that made it clear that the construction of the Federal Constitution would not serve to limit rights guaranteed by its constitution.3

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Two Chief Judges of the New York State Court of Appeals defended state constitutional enhancement of Federal constitutional rights. In 1987, then Associate Judge Judith Kaye, who would later become Chief Judge, referred to what she described as the “new judicial federalism.” She observed that the “literature indicates that, more often now, state courts are deciding that standards set by the United States Supreme Court under the Federal constitution do not satisfy the more rigorous requirements of similar provisions of state constitutions, as to which state courts are in general the final arbiters. Some describe this as a new judicial federalism; others, more pejoratively, as an unprincipled reaction to particular criminal law decisions and perceived directions of the Supreme Court” (emphasis added). In response to these “pejorative” attacks, Judge Kaye argued that despite “deliberate duplication [in the state and Federal constitutional provisions] there was no thought that state constitutions were thereby superseded or their Bill of Rights rendered redundant. To the contrary, the contemplation was that the states would remain the principal protectors of individual rights— ’the immediate and visible guardians of life and property’—[quoting from The Federalist Papers, No. 17] . . .”4 In 1989, Chief Judge Sol Wachtler wrote: We are now experiencing a renaissance with respect to state constitutional rights. As the U.S. Supreme Court retreats from the field, or holds the line on individual rights, state courts and litigants seeking solutions to new problems are turning with greater frequency to the state Constitutions, which for many years lay dormant in the shadow of the Federal Bill of Rights. This is not, as some observers have suggested, a way of evading the edicts of a conservative Supreme Court. It is the resumption of a role that the state constitutions were originally designed to fulfill, as the primary guardian of the rights of all individuals within each state’s borders. New York has been an active participant in this movement. In several recent cases, the Court of Appeals has held that the New York Constitution does indeed afford greater rights protections that its federal counterpart.5

The principle underlying the “new judicial federalism” is not novel. In People v. Barber, 289 N.Y. 378 (1943), without citing prior authority, a unanimous court declared: Parenthetically we may point out that in determining the scope and effect of the guarantees of fundamental rights of the individual in the Constitution of

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the State of New York, this court is bound to exercise its independent judgment and is not bound by a decision of the Supreme Court of the United States limiting the scope of similar guarantees in the Constitution of the United States. 289 N.Y., at 384 (emphasis added)

The Barber decision stated that in deciding these cases the Court of Appeals was “bound to exercise its independent judgment” in determining constitutionality under the State Constitution. How this “binding” obligation has been exercised is the subject of this chapter’s description of the New York Court of Appeals and the “new judicial federalism.”

II. Some Basic Principles: Two First Amendment Cases The New York Court of Appeals has dealt with the question of whether the State Constitution provides greater protection than the Federal Constitution for similar rights in a variety of contexts. Most cases have involved criminal procedure questions and, not surprisingly, they have been the most contentious.6 However, other individual rights also have been the subject of the new judicial federalism, including First Amendment-related rights. It should be noted that when a Court of Appeals decision rests on a clear and adequate independent State ground, Supreme Court review of a Court of Appeals decision is avoided, and a decision based on a State constitutional rule that does not offend the Federal Constitution is such a ground. Reliance on the State rather than the Federal Constitution for decision has occurred in several different contexts. First, in some instances, the Court of Appeals simply rejected a Federal constitutional rule in favor of broader protection under the State Constitution. Most of the cases in this chapter reflect this situation, but it should be noted that it is sometimes unclear what the applicable Federal rule would be. Second, the Court of Appeals decides both the Federal and State constitutional issues or decides the case solely on a construction of the State Constitution. See, e.g., People v. Isaacson, 44 N.Y.2d 511 (1978) (police conduct was so egregious as to violate the State Constitution’s due process clause and bar prosecution, although no Federal constitutional violation found), discussed, infra, in section IV A. Third, when the Court of Appeals decision rests on the Federal Constitution alone, the decision is reviewable by the Supreme Court, and when the Supreme

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Court does review the case, the most clear and direct rejection of the Federal constitutional rule can occur—that is, when the Supreme Court reverses the Court of Appeals decision because it disagrees with the Court of Appeals construction of the Federal Constitution and remands to the Court of Appeals and, on remand, the Court of Appeals reaffirms its prior decision by invoking a State constitutional rule that provides broader protection than the Federal constitutional rule employed by the Supreme Court. In 1986, two cases presenting First Amendment-related issues exemplify this third category of cases: People ex rel. Arcara v. Cloud Books, Inc. 68 N.Y.2d 553 (1986), on remand from Arcara v. Cloud Books, 478 U.S. 697 (1986), reversing People ex rel. Arcara v. Cloud Books, Inc., 65 N.Y.2d 324 (1985), and People v. P.J. Video, Inc., 68 N.Y.2d 296 (1986), on remand from New York v. P.J. Video, Inc., 475 U.S. 868 (1986), reversing People v. P.J. Video, Inc., 65 N.Y.2d 566 (1985). In each case the Supreme Court reversed the Court of Appeals, rejecting its finding that there had been a Federal constitutional violation. In P.J. Video, the Court of Appeals had found a warrant for the seizure of films violated the Fourth Amendment, and in Arcara the Court held that an order directed at a bookstore violated the First Amendment.7 On remand, the Court of Appeals elucidated and applied some basic principles the Court had followed up to that time when determining whether the State Constitution afforded broader protection than the Federal Constitution. In Arcara, Chief Judge Wachtler looked to New York’s traditions as a basis for New York’s inclination to favor broader protection of rights of expression than perhaps would be tolerated in other states. After quoting the language from Barber set out above, Chief Judge Wachtler went on to say: The Supreme Court’s role in construing the Federal Bill of Rights is to establish minimal standards for individual rights applicable throughout the Nation. The function of the comparable provisions of the State Constitution, if they are not to be considered purely redundant, is to supplement those rights to meet the needs and expectations of the particular State. Freedom of expression in books, movies and the arts, generally, is one of those areas in which there is great diversity among the States. Thus it is an area in which the Supreme Court has displayed great reluctance to expand Federal constitutional protections, holding instead that this is a matter essentially governed by community standards (Miller v. California, 413 U.S. 15 [1973] . . . ). However, New York has a long history and tradition of fostering freedom of expression, often tolerating and supporting works which in other States would be found offensive to the community. . . . Thus, the minimal

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national standard established by the Supreme Court for First Amendment rights cannot be considered dispositive in determining the scope of this State’s constitutional guarantee of freedom of expression. 68 N.Y.2d 553, 557–58 (citations omitted)8

In P.J. Video, Judge Simons summarized the Court’s method for determining when the State Constitution guarantees protections broader than those under the Federal Constitution. He described the so-called interpretive and noninterpretive methods or approaches to construing the State Constitution. Courts and commentators have identified many considerations and concerns upon which a State court may rely when determining that its constitution accords greater protection to individual liberties and rights than the protection guaranteed by the Federal Constitution. . . . One basis for relying on the State Constitution arises from an interpretive review of its provisions. If the language of the State Constitution differs from that of its Federal counterpart, then the court may conclude that there is a basis for a different interpretation of it. . . . Such an analysis considers whether the textual language of the State Constitution specifically recognizes rights not enumerated in the Federal Constitution; whether language in the State Constitution is sufficiently unique to support a broader interpretation of the individual right under State law; whether the history of the adoption of the text reveals an intention to make the State provision coextensive with, or broader than, the parallel Federal provision; and whether the very structure and purpose of the State Constitution serves to expressly affirm certain rights rather than merely restrain the sovereign power of the State. To contrast, noninterpretive review proceeds from a judicial perception of sound policy, justice and fundamental fairness. . . . A noninterpretive analysis attempts to discover, for example, any preexisting State statutory or common law defining the scope of the individual right in question; the history and traditions of the State in its protection of the individual right; any identification of the right in the State Constitution as being one of peculiar State or local concern; and any distinctive attitudes of the State citizenry toward the definition, scope or protection of the individual right. 68 N.Y.2d at 302–3 (citations omitted, emphasis supplied)9

Both whether and how the interpretive or noninterpretive or some other method of analysis should be applied in a particular case have been the subject of sometimes sharp disputes.10 Judge Kaye was moved to observe:

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Perhaps more than any other issue, the State constitutional law cases over the past decade have seemed to fracture the Court. On a Court where more often than not there is consensus, in State constitutional law cases—civil as well as criminal—we have been uncommonly divided [cases cited] where the Court of Appeals found that the New York constitutional rule differed from the Federal rule. A recent decision evoked four separate writings. . . . Whether this is a consequence of the “new” judicial federalism and a process of hammering out approaches and methodologies to accommodate it, or the consequence of other factors, is a subject for fuller discourse elsewhere. What is pertinent to the present case, and significant, is that at least four Judges (not always the same four) in these cases invariably have perceived something distinctive about New York State, or about the particular case, that called upon the Court to differ from the United States Supreme Court. The concurrences and dissents in these cases invariably have contended that there was no unique New York interest warranting greater protection than that afforded by the Supreme Court under the Federal Constitution. People v. Scott, 79 N.Y.2d 474, 503 (1992) (citations omitted; emphasis supplied)

Of course, when the State court decision rests solely on the Federal Constitution, the Supreme Court does not always review the State decision. This occurred with People v. Onofre, 51 N.Y.2d 476 (1980), certiorari denied, 451 U.S. 987 (1981), which involved the high-profile question of the constitutionality of criminalizing consensual sodomy. Onofre held the New York Penal Law provision outlawing private acts of consensual sodomy to be unconstitutional as a violation of the right of privacy and of equal protection of the law under the Federal Constitution. Onofre did not deal with constitutionality under the State Constitution, and certiorari was denied by the Supreme Court. However, six years later, the Supreme Court, in Bowers v. Hardwick, 478 U.S. 186 (1986), considered a Georgia statute like New York’s outlawing private consensual conduct, and contrary to Onofre, upheld the statute, finding that consensual sodomy was not protected by the due process or equal protection clauses of the Federal Constitution. Subsequently, the Georgia Supreme Court provided a classic case of the new judicial federalism when it found that the Georgia statute upheld in Bowers v. Hardwick violated rights of privacy protected by the Georgia State Constitution. Powell v. State, 270 Ga. 327, 510 S.E.2d 18 (1998). Subsequently, the New York State Legislature repealed the statute considered in Onofre, L. 2000, c.1, § 6, and Lawrence v. Texas, 539 U.S. 558 (2003), overruled Bowers v. Hardwick.

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III. The State Constitution and Search and Seizure A. Introduction 1. THE CONSTITUTIONAL PROVISIONS

The search-and-seizure provisions of the United States Constitution’s Fourth Amendment and Article I, § 12, of the New York State Constitution are identical and provide: The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The Fourth Amendment was adopted as part of the original Bill of Rights; Article I, § 12, was adopted subsequently, in 1938.11 Article I, § 12, was derived from identical language in a statute enacted in 1828, now section 8 of New York’s Civil Rights Law. Despite the identical constitutional language, the Court of Appeals has not felt bound by Supreme Court Fourth Amendment decisions when construing Article I, § 12, of the State Constitution, and it has produced an extensive body of law concerning search and seizures under the State Constitution that provides broader protection than the Fourth Amendment. 2. SOME CASES WHERE COURT OF APPEALS ADOPTED FEDERAL RULE AS STATE CONSTITUTIONAL RULE

However, the Court has also often adopted the Federal rule as a measure of State constitutional protection. By way of example, the Court of Appeals held that Article I, § 12, of the New York State Constitution, like the Fourth Amendment, limits government conduct and not searches and seizures by private persons. People v. Gleeson, 36 N.Y.2d 462 (1975). After the United States Supreme Court, in United States v. Salvucci, 448 U.S. 83 (1980), overruled Jones v. United States, 362 U.S. 257 (1960), which had adopted the “automatic standing” rule for possessory offenses under the Federal Constitution and held that a defendant must have a reasonable expectation of privacy in order to have standing to move to suppress the product of an unlawful search, People v. Ponder, 54 N.Y.2d 160 (1981), abrogated the “automatic standing” rule previously adopted in People v. Hansen, 38 N.Y.2d 17 (1975), as part of State constitutional law and replaced it with the rule in Salvucci. Ponder noted that, among other factors,

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“identity of language [in the State and Federal constitutional provisions] supports a policy of uniformity in both State and Federal courts.” 54 N.Y.2d, at 165. The Court of Appeals has dealt with so-called “pretextual” stops and searches, and thus far the Court has adopted the approach of the Supreme Court. People v. Calhoun, 49 N.Y.2d 398 (1980), unanimously found neither a State nor Federal constitutional violation when the Court adopted the conclusion in Michigan v. Tyler, 436 U.S. 499, 510 (1978), that “ ‘officials’ need no warrant to remain in a building for a reasonable time to investigate the cause of a blaze after it has been extinguished.” 49 N.Y.2d, at 404. However, Calhoun did say that if the entry had been a pretext primarily to search for evidence of a crime, “the warrantless intrusion might well have exceeded the bounds of the emergency exception and trespassed on the constitutional guarantees.” 49 N.Y.2d at 403. Subsequently, People v. Robinson, 97 N.Y2d 341 (2001), a 4–3 decision, rejected the contention that a police officer violates Article I, § 12 of the New York State Constitution when, with probable cause to believe the driver committed a traffic violation, he stops a vehicle, although the officer’s primary motivation is to conduct another investigation; instead, the Court adopted the contrary position of Whren v. United States, 517 U.S. 806 (1996), as a matter of state law. The dissent argued Whren did not accord with the requirements of the State Constitution.

B. “An Emerging Body of State Constitutional Precedent” 1. PEOPLE V. BELTON

People v. Belton, 55 N.Y.2d 49 (1982), on remand from New York v. Belton, 453 U.S. 454 (1981), reversing 50 N.Y.2d 447 (1980), involved the suppression of evidence obtained by a police officer who, after he had stopped a vehicle for speeding, from outside the car smelled the aroma of marijuana emanating from the vehicle and viewed an envelope which contained marijuana on the floor of the car. He ordered the occupants out of the vehicle, arrested them, unzipped the pocket of a jacket lying on the back seat, and found marijuana in the pocket. The Court of Appeals previously had held the search violated the Federal Constitution’s Fourteenth Amendment and reversed the conviction. 50 N.Y.2d 447 (1980). The Supreme Court reversed, holding the search to be incident to a lawful arrest and thus lawful. New York v. Belton, 453 U.S. 454 (1981). On remand, Chief Judge Cooke, with Judges Jones, Meyer, and Wachtler concurring, considered whether the search violated the State Constitution although this issue had not been previously raised. The Court held that the search did not violate

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the State Constitution, but on a rationale different than the one used by the Supreme Court in construing the Fourteenth Amendment. Instead of the “search incident to arrest” rationale relied on by the Supreme Court, the Chief Judge relied on the “automobile exception” to State constitutional warrant requirements to sustain the search. People v. Belton, 55 N.Y.2d 49 (1982) [on remand]. The difference between the rationales was significant. See People v. Torres, 74 N.Y.2d 224 (1989), infra, subsection H. Chief Judge Cooke said, “The identical wording of the two provisions does not proscribe our more strictly construing the State Constitution than the Supreme Court has construed the Federal Constitution. . . . We do not find it necessary to consider the Supreme Court’s rationale as applied to our Constitution. . . .” 55 N.Y.2d at 51 (citations omitted). The Chief Judge argued that the Supreme Court in its Belton decision by permitting a search and seizure of items beyond the “grabbable area” of the person arrested had gone beyond prior cases authorizing a warrantless search incident to an arrest. Concerned that the Supreme Court’s approach imposed no spatial limits on the search incident to an arrest, Chief Judge Cooke turned to the “automobile exception” to sustain the warrantless search under the State Constitution. Justification for an automobile search contemporaneous with a valid arrest arises, however, not only from the mobility of an automobile, or the reduced expectation of privacy as to materials within the automobile, or both, but also from the circumstances which validate the arrest. Thus, by way of contrast, a motorist stopped for a traffic infraction may not be searched unless when the vehicle is stopped there are reasonable grounds for believing the driver guilty of a crime, as distinct from a traffic offense (People v. Marsh, 20 N.Y.2d 98, 101). However, a valid arrest for a crime authorizes a warrantless search—for a reasonable time and to a reasonable extent—of a vehicle and of a closed container visible in the passenger compartment of the vehicle which the arrested person is driving or in which he is a passenger when the circumstances give reason to believe that the vehicle or its visible contents may be related to the crime for which the arrest is being made (as possibly containing contraband or as having been used in the commission of the crime) or there is reason to believe that a weapon may be discovered or access to means of escape thwarted. . . . In the present case, in light of the discovery of the marihuanafilled envelope on the car floor and the odor of the substance, there clearly was reason to believe that the automobile might contain other drugs . . . 55 N.Y.2d at 54–55 (citations omitted)

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Judge Gabrielli, with Judge Jasen concurring, agreed that the search did not violate the State Constitution, but maintained that the Court of Appeals simply should have decided the case on the “search incident to an arrest” rationale that the Supreme Court had employed. Judge Fuchsberg, dissenting, contended that the search violated the State Constitution. Prior to Belton, the Court of Appeals had specifically rejected a rule under the Federal Constitution in favor of broader protection under the State Constitution in one case, Bellanca v. New York State Liquor Authority, 54 N.Y.2d 228 (1981). (First Amendment and topless dancing in a bar, discussed in chapter 10, infra.). In another case, the Court recognized that its construction of the State Constitution might afford broader protection than the Supreme Court had under the Federal Constitution. People v. Elwell, 50 N.Y.2d 231 (1980) (search and seizure under Aguilar-Spinelli, discussed infra). The analysis in People v. Belton, 55 N.Y.2d 49 (1982), in which the Court of Appeals rejected the Supreme Court rationale for sustaining a search and seizure but found the search to be valid under the State Constitution, “foreshadowed” the Court’s tendency to develop “an emerging body of [State constitutional] precedent rather than to follow the Federal position.” People v. Torres, 74 N.Y.2d 224, 228 (1989). 2. PEOPLE V. SMITH

In People v. Smith, 59 N.Y.2d 454 (1983), Judge Meyer, with Chief Judge Cooke and Judges Jones and Wachtler concurring, expounded on the effect of Belton and the differences between Federal and State warrant requirements. In Smith, the defendant was stopped by two detectives after he entered a subway station by passing through the exit gate without paying a fare or having the appropriate pass. After he was stopped, he falsely denied that he was wearing a bulletproof vest. He was then arrested, taken to a porter’s room about ten feet away, handcuffed, and searched. The detectives then took possession of a briefcase the defendant was carrying; they unzipped the briefcase and found a revolver, handcuffs, and a handcuff key. Defendant claimed violations of the Federal and State Constitutions. Judge Meyer wrote: Although both Federal and State warrant requirements derive from the common law . . . , they are measured differently. The Supreme Court has interpreted the United States Constitution to permit if not require the drawing of a bright line for reasons of efficiency between permissible and impermissible searches, even though the result is occasionally to forbid a reasonable search or permit an unreasonable one. . . . We have interpreted the New York Con-

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stitution to require that the reasonableness of each search or seizure be determined on the basis of the facts and circumstances of the particular case. . . .

Judge Meyer concluded that under the Supreme Court’s position in Belton, supra, and other cases, there was no Federal constitutional violation in the search of defendant’s briefcase, because the Supreme Court “cases permit the search of any closed container taken from the person of, or within the ‘grabbable area’ accessible to, the person arrested, even though the police have no reason to fear for their safety or to suspect that evidence of the crime for which the arrest is made will be found within the container.” 59 N.Y.2d, at 458. Judge Meyer reasoned: The State Constitution, however, has not been read so broadly. A person’s privacy interest in a closed container readily accessible to him may become subordinate to the need of the People, under exigent circumstances, to search it for weapons or evidence that otherwise might be secreted or destroyed. . . . Whether the circumstances are such as to justify a warrantless search incident to arrest is to be determined, as we recognized in our first Belton decision (50 N.Y.2d at p 452, n 2), at the time of the arrest, but the justification does not necessarily dissipate with the making of the arrest. For compelling reasons, such as the safety of the officers or the public or to protect the person arrested from embarrassment, a search “not significantly divorced in time or place from the arrest” may be conducted even though the arrested person has been subdued and his closed container is within the exclusive control of the police. . . . There must, however, be circumstances at the time of the arrest justifying the search. Although probable cause to believe that the person arrested has committed a crime will justify the search of his person . . . , it will not necessarily justify the search of a container accessible to him. Thus a container may not be searched for a weapon or evidence if it is apparent that it is so securely fastened that the person arrested cannot quickly reach its contents . . . , or the person arrested makes unmistakably clear that he will not seek to reach the contents (see People v. Caldwell, 53 N.Y.2d 933 [defendant placed package on the ground and moved away prior to arrest]) or the container is so small that it could not contain a weapon or evidence of the crime. Applying those principles to the facts of the present case, we conclude that the warrantless search of defendant’s briefcase was permissible under the State as well as the Federal Constitution. At the time of arrest defendant was holding the briefcase in his hand; its contents were, therefore, readily accessible to

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him and it was of sufficient size to contain a weapon. Defendant had just committed a crime and while that crime was not one suggestive of the presence of a weapon, the fact that defendant was wearing a bullet-proof vest certainly was, and was enhanced by his denial of the fact. The arrest and search of the briefcase were for all practical purposes conducted at the same time and in the same place. The conduct of the search was reasonable; one detective handcuffed defendant and searched his person while the other simultaneously searched the briefcase. Whether in fact defendant could have had access to the briefcase at the moment it was being searched is irrelevant. He clearly could have had when arrested and neither the distance from nor the time elapsed since the arrest was sufficient to dissipate the reasonableness of conducting a search of the briefcase without a warrant. 59 N.Y.2d at 457–59 (citations omitted)

Judge Jasen wrote a separate concurring opinion, in which Judge Simons concurred. Judge Jasen objected to recognizing a standard under the State Constitution for searches incident to an arrest that differed from the Federal constitutional standard. He argued: (1) the arrest alone provides the basis for a constitutional search under the State and Federal constitutions, provided only that the search be in “close spatial and temporal proximity to the arrest,” 59 N.Y.2d at 459; and (2) there is no satisfactory reason for different rules under the State and Federal Constitutions on this subject. Judge Jasen wrote: The rules set forth by the majority have the same infirmities complained of by the Supreme Court in New York v. Belton and by the concurring Judges when this court heard People v. Belton on remand from the Supreme Court—that is, that the task of discerning the acceptable scope of a search incident to an arrest requires the evaluation of so many variables that “‘a person cannot know the scope of his constitutional protection, nor can a policeman know the scope of his authority.’” (People v. Belton, 55 N.Y.2d 49, 57, quoting New York v. Belton, 453 U.S. 454, 459–460, supra.) If anything, those infirmities previously complained of will be exacerbated by the existence of two standards in this State. 59 N.Y.2d, at 460 3. PEOPLE V. GOKEY

People v. Gokey, 60 N.Y.2d 309 (1983), presented another opportunity for the Court to delineate the difference between the Federal and State standards for a search incident to an arrest. Relying on a warrant for defendant’s arrest for lar-

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ceny, police arrested defendant in a bus station and handcuffed him. The police also had a tip from an informant that the defendant was in possession of marijuana. A police dog sniffed a duffle bag belonging to the defendant, on the ground near the defendant, and the dog reacted in a manner to suggest the presence of marijuana. The police opened the bag and found marijuana. Defendant moved to suppress. In a unanimous decision the Court decided that the motion to suppress should have been granted.12 Chief Judge Cooke wrote that in Belton, the Supreme Court “set forth a general rule under the Fourth Amendment of the United States Constitution that a custodial arrest will always provide sufficient justification for police to search any container within the ‘immediate control’ [of the arrestee. Consequently, in Gokey], it is clear that defendant’s Federal constitutional rights were not violated.” 60 N.Y.2d, at 312 (emphasis supplied). The Chief Judge then went on to sharply distinguish between the Federal and State constitutional positions. In substance, the Court, unlike the Supreme Court’s position under the Fourth Amendment, included the so-called “grabbable area” as an area in which the defendant has a privacy interest that can be invaded by a warrantless search incident to arrest only if there are “exigent circumstances.” The exigent circumstances are “(1) the safety of the public and the arresting officer; and [(2)] the protection of evidence from destruction or concealment. . . . The reasonableness of a police officer’s assertion of the presence of either or both of these predicates to justify a warrantless search is measured at the time of the arrest. Moreover, the search must have been conducted contemporaneously with the arrest.” 60 N.Y.2d 309, at 312 (emphasis supplied). The Court found that neither exigency existed in Gokey.

C. Hearsay Information: The Aguilar-Spinelli Two-Pronged Test and the “Totality of the Circumstances” Approach People v. Hanlon, 36 N.Y.2d 549 (1975), permitted a warrant to be issued based on affidavits that contained hearsay information from an undisclosed informant. Previously, Jones v. United States, 362 U.S. 257 (1960),13 had approved the use of hearsay under the Federal Constitution to establish probable cause where there was a “substantial basis for crediting” it. In Hanlon, Judge Wachtler summarized New York’s approach to search and seizure up to that time. He noted New York’s “strong, yet qualified, preference for [search] warrants,” 36 N.Y.2d, at 559,14 and its adherence to the rules concerning warrants under the Fourteenth Amendment announced by the Supreme Court in Aguilar v. Texas, 378 U.S. 108 (1964), Spinelli v. United

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States, 393 U.S. 410 (1969), and United States v. Harris, 403 U.S. 573 (1971). Aguilar and Spinelli set conditions for the use of hearsay in establishing probable cause, and Judge Wachtler “note[d] a similarity of analysis” by the Court of Appeals under the State Constitution. 36 N.Y.2d, at 558. Aguilar adopted a two-pronged approach. The first prong, “the veracity test,” “concerns the trustworthiness of the person supplying the information and requires the affiant to set forth the reasons that led him to conclude that the informer was credible or that his information was reliable.” The second prong, the “basis of knowledge test” is “directed toward the trustworthiness of the information and requires that the affiant delineate the facts and circumstances relied on by the informer in reaching his conclusions.” Hanlon, supra, at 556. Spinelli provided that the first prong (the veracity test) could be satisfied by “independent investigation which tended to corroborate the hearsay report,” and that the second or “basis of knowledge” test, in the absence of a statement recounting the manner in which the information was gathered, could be satisfied by “providing such a detailed description of the suspect’s criminal activity as to constitute self-verification.” Hanlon, supra, at 556. Harris, supra, held that the first prong of the test was established despite the absence of an independent police investigation, “where the informant spoke against his penal interest and the defendant was known to the police as a gambler”—these two elements respectively established “personal credibility” and “corroborative verification.” Hanlon, supra, at 557. In support of the proposition that New York had employed an analysis similar to the Aguilar-Spinelli approach Judge Wachtler reviewed Court of Appeals cases that had upheld warrants. After showing how the prior New York cases mirrored the Aguilar-Spinelli approach, he concluded that the “key factor in [those] cases had been the presence of a substantial basis for crediting the hearsay statement.” Id., at 557. The reason for concern about the reliability of the hearsay information under both the Federal and State Constitutions was to assure that the warrant would be issued only after examination of the evidence by an independent judicial officer who “would be assured that the source was reliable, and could judge for himself the persuasiveness of the facts relied on thereby determining the probable accuracy of the information and of the soundness of the logical deductions drawn from the information.” Id., at 556 and 558–60, passim. Aguilar-Spinelli could be read either more or less rigidly, and in what might have been a concern about a too rigid approach, Judge Wachtler noted that infallible formulas for determining reliability were not possible and warned that warrant applications should not be read hypertechnically. Rather, the applications should be read in the “clear light of everyday experience,” and the issuing

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magistrate should take into account all factors that bore on reliability—the “sources of information,” the “experience and expertise of the officers,” “the extent to which the information had been verified,” “the nature of the crime and the exigencies, if any, involved.” Id., at 559. In People v. Elwell, 50 N.Y.2d 231 (1980),15 a 4–3 majority elaborated on the Aguilar-Spinelli test under the State Constitution and conceded its approach might afford protection broader than required by Spinelli under the Federal Constitution. Judge Meyer, with Judges Jones, Wachtler, and Fuchsberg, concurring, wrote: To the extent that Spinelli and Draper [v. United States, 358 U.S. 307,] may be read as imposing a less stringent test under the Federal Constitution, we decline to construe the parallel provision of our State Constitution similarly and adopt the [following] rule . . . as a matter of State constitutional law. 50 N.Y.2d, at 235

[For] police observation to constitute the verification that will establish probable cause and permit a warrantless search or arrest predicated upon data from an informer who has not revealed the basis for his knowledge, it is not enough that a number, even a large number, of details of noncriminal activity supplied by the informer be confirmed. Probable cause for such an arrest or search will have been demonstrated only when there has been confirmation of sufficient details suggestive of or directly related to the criminal activity informed about to make reasonable the conclusion that the informer has not simply passed along rumor, or is not involved (whether purposefully or as a dupe) in an effort to “frame” the person informed against. 50 N.Y.2d, at 234–35

Reliability of the informant as distinct from his information can be established either by the arresting, or warrant-seeking, officer attesting to past instances of reliability or by the personal observation by the police of sufficient details corroborative of the informant’s data to indicate that he knew whereof he spoke. Reliability of the informant, therefore, can be corroborated by details concerning dress, mannerisms, route or conveyance to be used by the subject of the information, which in themselves are wholly unsuggestive of crime. That the informant has demonstrated general reliability in the past is, however, no index of the reliability of specific information he passes on; he may have received it from a totally unreliable source. There being no presumption that the informant speaks with personal knowledge . . . , the basis of knowledge

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test is, therefore, intended to weed out, as not of sufficient quality, data received by the informant from others who have not themselves observed facts suggestive of criminal activity. It follows that when the basis of the informant’s knowledge is not given, personal police observation corroborative of data received from the informant should be regarded as sufficient only when the police observe facts suggestive of criminal activity. Otherwise privacy and liberty may be invaded by a warrantless search or arrest based solely on the quality of the informant and not at all on the quality of the information, i.e., its suggestiveness of criminal activity. 50 N.Y.2d, at 237 (citations omitted)

Judge Jasen, dissenting, with Chief Judge Cooke and Judge Gabrielli, concurring, argued that neither prior cases nor principles of fair law enforcement supported the majority’s position. He conceded that prior State decisions were not “easily reconcilable,” but he also argued that the Court of Appeals had “never judicially endorsed the per se rule espoused by the majority.” Id., at 245. In 1985, the Supreme Court abandoned the Aguilar-Spinelli analysis for determining probable cause based on an informant’s information in favor of the so-called “totality of the circumstances” approach. Illinois v. Gates, 462 U.S. 213 (1983). The Court of Appeals refused to do so as a matter of State constitutional law. People v. Johnson, 66 N.Y.2d 398 (1985). Judge Simons wrote the opinion for the Johnson majority, in which Chief Judge Wachtler and Judges Meyer, Kaye, and Alexander concurred. Judge Titone wrote a separate opinion concurred in by Judge Jasen, which concurred in the result. Gates and Johnson differed in that the Gates search was based on a search warrant, while Johnson involved a warrantless arrest and search. Inasmuch as the Gates adoption of the “totality of the circumstances” test, in large measure, rested on the role of the magistrate in issuing a warrant,16 the rejection of “totality of the circumstances” in Johnson did not necessarily mean that under the State Constitution it would be rejected where the search was based on a warrant. Consequently, the question remained open as to whether the State Constitution permitted the use of “totality of circumstances” when the search is based on a warrant.17 In Johnson, Judge Simons retained the Aguilar-Spinelli test, see, Hanlon, supra, and rejected the Gates’ “totality of the circumstances” method of reviewing probable cause on the grounds that the Gates approach violated Article 1, § 12, of the State Constitution. Inasmuch as the Supreme Court had not yet ruled on whether “the totality of the circumstances” could be employed in war-

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rantless search cases under the Federal Constitution, Judge Titone would not have construed the Federal Constitution so as to extend Gates to warrantless searches, but would have continued to apply the Aguilar-Spinelli test to warrantless searches, and therefore found the search was unconstitutional under the Federal Constitution. He contended that it was inappropriate, at this point, for the Court to decide the case on State constitutional grounds, because “it was the custom of [the Court of Appeals] to decide unsettled constitutional questions upon Federal grounds, and to accord broader rights to an accused only after the Supreme Court has declined to do so. [He] would continue to follow that policy.” 66 N.Y.2d, at 415. In Bigelow and Johnson, although both Judges Simons and Titone would have excluded the evidence, they disagreed on the basis for such an exclusion. Judge Simons based the exclusionary rule on the State Constitution in both cases. Judge Titone objected to relying on the State Constitution for the exclusionary rule on two grounds: first, because of cases he cited as contrary New York precedents; and, second, the fact that, after pointed debate, the 1938 Constitutional Convention, the source of Article 1, § 12, had rejected a provision that would have made the exclusionary rule a part of the State Constitution. Consequently, he would not have excluded illegally obtained evidence on the basis of the State Constitution, thereby leaving the Legislature free to abolish or modify the rule. Judge Titone would have decided the search violated the Federal Constitution and would have excluded the evidence on Federal constitutional grounds. If not excluded on Federal constitutional grounds, Judge Titone, unlike the majority in Bigelow and Johnson, would have excluded the evidence on State common law, not State constitutional, grounds.18 As previously noted, Johnson, supra, involved a warrantless search, and although Bigelow, supra, note 16, involved a warrant, inasmuch as the Court unanimously agreed that the search met neither the Aguilar-Spinelli nor the Gates standards for probable cause, it was unnecessary to decide which test was applicable when a warrant was supported by probable cause under Gates, but not under Aguilar-Spinelli. People v. Griminger, 71 N.Y.2d 635 (1988), addressed the unanswered question. The Court unanimously decided that, under the State Constitution, the Aguilar-Spinelli test and not the “totality of the circumstances” applied to searches pursuant to a warrant as well as to warrantless searches. Interestingly, the warrant in Griminger had been issued by a Federal magistrate; nevertheless, because the defendant had been tried for a violation of the State’s Penal Law and the trial was in a State court, the Court of Appeals held that he was entitled to the protection afforded by the State Constitution, and consequently, Aguilar-Spinnelli applied.

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D. Rejection of Leon ”Good Faith” Test In People v. Bigelow, supra, note 16, the People argued under United States v. Leon, 468 U.S. 897 (1984), that even if the warrant had been issued without probable cause, the evidence obtained should not be suppressed, because the police had acted on the good-faith belief that the warrant was valid. In Leon, the Supreme Court reasoned that where the police act on the good-faith belief that a warrant issued by a judge was valid, suppressing the evidence when the warrant is invalid would not deter police misconduct. The Court of Appeals rejected Leon under the State Constitution, reasoning that whether or not the police acted in good faith, the “exclusionary rule’s purpose [would be] completely frustrated” if the evidence could be used. The Court “decline[d], on State constitutional grounds, to apply the good-faith exception the Supreme Court stated in United States v. Leon, supra.” 66 N.Y.2d, at 427.

E. People v. Class People v. Class, 67 N.Y.2d 431 (1986), is another instance in which the Court of Appeals found a State constitutional violation when the Supreme Court, in the same case, had found no Federal constitutional violation. In Class, two police officers saw the defendant speeding, and his automobile had a cracked windshield. Both are traffic violations under New York law. They ordered the defendant to pull over. After he did so he left the car, approached one of the officers, and provided him with a registration certificate and proof of insurance; but he stated that he had no driver’s license. Meanwhile, the other officer, who had gone to the car, opened the door to look for the VIN (Vehicle Identification Number) on the left doorjamb where it is located on pre-1969 automobiles. On later model cars, the VIN is located on the dashboard; and when the officer did not find the VIN on the doorjamb, he reached into the interior of the car to move some papers obscuring the area of the dashboard where the VIN would be located. At that time, the officer saw a gun handle slightly protruding from underneath the driver’s seat. The officer seized the gun, promptly arrested the defendant, and issued him summonses for his traffic violations. The Court of Appeals found that the intrusion violated the Federal and State Constitutions, People v. Class 63 N.Y.2d 491 (1984), reversed sub nom. New York v. Class, 475 U.S. 106 (1986). On appeal, the Supreme Court entertained the Federal constitutional question and reversed on Federal constitutional grounds, finding that the 1984 Class decision “did not rest on ‘an independent and adequate state ground’ because it lacked the requisite ‘plain statement.’” On remand, the Court of Appeals unanimously adhered to its original decision that the non-

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consensual entry into the vehicle “based solely on a stop for traffic violations” was an unconstitutional search under the State Constitution, even if viewed as something less than a full-blown search.

F. People v. P.J. Video, Inc., 68 N.Y.2d 296 (1986)19 In People v. P.J. Video, Inc., 68 N.Y.2d 296 (1986), on remand from New York v. P.J. Video, Inc., 475 U.S. 868 (1986), reversing People v. P.J. Video, Inc., 65 N.Y.2d 566 (1985), after the Supreme Court found that the warrant issued by a magistrate did not violate the Federal Constitution, the Court of Appeals, on remand, held that the State Constitution’s search-and-seizure provisions imposed greater limits on the power of a magistrate to issue a search warrant than did the Federal Constitution. The decision once again rejected the “totality of circumstances” approach to the determination of probable cause; this time the case involved the issuance of a warrant based on a police officer’s affidavit of what he knew, rather than, as in Gates, based on information from an informant. Judge Simons reviewed prior civil and criminal decisions in which the Court had held that the State Constitution either afforded broader protection than the Federal Constitution or where there was uncertainty about the scope of Federal protection, and the Court found the rights protected by the State Constitution.20 As for P.J. Video, Judge Simons, writing for the 6–1 majority, said it “rest[ed] on noninterpretive grounds,” and explained the refusal to follow the Supreme Court’s lead under the Federal Constitution: We rely principally on established Federal and State law because we believe the arguments supporting that body of law are more persuasive than the arguments supporting application of the Gates rule in this obscenity case, and are consistent with the admonition of an earlier Supreme Court that constitutional provisions for the security of persons and property are to be liberally construed (see, Boyd v. United States, 116 U.S. 616, 634). Our decision, however, is also based on principles of federalism and on New York’s long tradition of interpreting our State Constitution to protect individual rights. In this case, we consider two fundamental rights, the right of free expression and the right of citizens to be free from unlawful governmental intrusions. 68 N.Y.2d, at 303

Specifically, the Court found that the warrant issued for the search and seizure of allegedly obscene materials did not satisfy the probable-cause requirements of the State Constitution, because the magistrate’s determination rested on conclusory assertions in the police officer’s affidavit concerning two

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elements of the alleged statutory offense—first, that the film as a whole appealed predominantly to prurient sex and, second, that the film lacked serious literary, artistic, political, or scientific value. According to Judge Simons, the Supreme Court had employed the “totality of the circumstances” test to the affidavit as a whole to find the warrant satisfied Federal constitutional requirements. In substance, Judge Simons wrote, “the Supreme Court extended the reach of this ‘totality of the circumstances/fair probability’ standard and applied it, for the first time, to an obscenity case to permit the magistrate to focus generally on the explicit nature of pornographic material without specifically considering the other statutory elements of the crime.” 68 N.Y.2d at 301 (emphasis supplied). To the contrary, the majority held that under the State Constitution there had to be sufficient facts before the magistrate to establish probable cause for each element of the offense. As for two of the statutory elements—predominantly prurient and lacking value—the police officer’s affidavit contained conclusions, not sufficient factual allegations. The effect of relying on conclusions, not facts, undermined the magistrate’s function under the State Constitution as previously described in People v. Hanlon, supra. For it is the function of the magistrate, not the affiant, to determine probable cause, and this determination had to be based on specific facts, not the affiant’s conclusions, and to be “objectively verifiable.” 68 N.Y.2d at 307 (emphasis supplied). In addition to Hanlon, Judge Simons explained that the “decision to rely on Article I, § 12, rather than on the Supreme Court’s Fourth Amendment pronouncement in [P.J. Video was] motivated also by concerns of federalism and separation of powers.” The decision also took into account the special consideration warranted by the elements of freedom of expression in this obscenity prosecution.21 As for the federalism component, Judge Simons emphasized that under the Federal Constitution, the State Legislature had the power to determine what is criminal, subject, of course, to limitations in the Federal Constitution, none of which had been exceeded in the case at bar, and the Supreme Court did not have the power to modify an otherwise constitutional state statute. As for the separation of powers element, it was the State Court’s obligation to apply the criminal statute as enacted by the State Legislature, and the statutory definition of the crime was the touchstone for determining whether there was probable cause to believe that a crime had been committed. [As for] a warrant to search and seize [it] cannot issue absent a magistrate’s careful consideration of the elements of the crime involved and a searching review of the facts alleged to support the affiant’s belief that this [emphasis in original] crime has been committed. . . . Given that our Legislature, conso-

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nant with Federal constitutional mandates . . . , has determined that an offensive, explicit depiction of sexual conduct, standing alone, is not obscene (see, Penal Law § 235.00 [1]), neither an issuing magistrate nor a reviewing court can legitimately override that legislative intent and find probable cause that the crime of obscenity has been committed based solely on a showing that sexually oriented material is explicit and offensive. . . . The Supreme Court’s decision in this case has, in effect, stated that certain elements of our statutory definition of a crime are not significant. We are not free to similarly ignore or recast the legislative mandate. 68 N.Y.2d, at 307–8 (emphasis supplied; citations omitted)

G. “ The War on Drugs” 1. USE OF DOGS—“CANINE CANNABIS CONNOISSEURS”

Specially trained dogs, often described as “canine cannabis connoisseurs,” were frequently used in the so-called “war on drugs” to sniff out the presence of marijuana within luggage and other closed containers. People v. Dunn, 77 N.Y.2d 20, 21 (1990). Courts were presented with the question whether the detection of marijuana within a closed container constituted a search within the meaning of the Federal and State Constitutions. People v. Price, 54 N.Y.2d 557 (1981), was the first case on this subject decided by the Court of Appeals. The Court did not address the State constitutional issue because the warrantless dog sniffing took place in California, but the seizure of the luggage took place in New York pursuant to a warrant. The Court held that the use of the dogs to sniff aromas emanating from the closed containers did not constitute a search under the Fourth Amendment. Distinguishing the question of whether a warrant was necessary to permit the dog to sniff the air around the luggage on the floor of an airport from whether a warrant was necessary to allow the police to open and search the suitcase, six judges concluded that the defendant had no “reasonable expectation of privacy” in the air surrounding the suitcase. Consequently, there had been no search under the Fourth Amendment. Judge Meyer concurred in the result, but maintained that there had been a search subject to the Fourth Amendment. He reasoned: In practical effect there is no difference between the emanations of odor sniffed by the dog and the sound vibrations sensed by [a magnetometer scanning luggage for a weapon (People v. Kuhn, 33 N.Y.2d 203, 208) or a spike mike and other listening devices attached to the wall of an apartment (Katz v. United States, 389 U.S. 347). Both originate from inside a private area and

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travel beyond its perimeters. . . . I would hold that the lesser intrusion of the canine nose into the atmosphere surrounding the suitcases is permissible on the lesser basis of “reasonable suspicion.” In sum, there was a “search” within the purview of the Fourth Amendment but it was justified by reasonable suspicion which the Los Angeles officer clearly had in this case. 54 N.Y.2d, at 565 (citation omitted)

Subsequently, the United States Supreme Court held that information obtained from a dog that sniffed luggage was not a search under the Fourth Amendment. United States v. Place, 462 U.S. 696 (1983). In substance, the Court reasoned that this was a minimal intrusion that would result only in revealing the presence of the contraband and no other private fact, unlike rummaging through the suitcase to find the marijuana. In People v. Dunn, 77 N.Y.2d 19 (1990), the Court of Appeals again addressed the question of whether the use of the dogs constituted a search and, while following Place, found it was not a search under the Federal Constitution. Judge Titone, writing for five members of the Court, held that it was a search under the State Constitution. In Dunn, the dogs were used to smell marijuana emanating from an apartment into the hallway of an apartment building and not from luggage in the public area of an airport. Judges Simons and Bellacosa concurred in the result but, writing separately, concluded that there was no search under either the Federal or the State Constitution. Judge Titone wrote: Thus, we conclude that the “canine sniff” in question here was a search within the meaning of article I, § 12 of our State Constitution. To hold otherwise, we believe would raise the specter of the police roaming indiscriminately through the corridors of public housing projects with trained dogs in search of drugs. . . . Such an Orwellian notion would be repugnant under our State Constitution (see, People v. Belton, 55 N.Y.2d 49, 52,on remand from New York v. Belton, 453 U.S. 454 [“(T)he State Constitution protects the privacy interests of the people of our State . . . against the unfettered discretion of government officials to search or seize.”](emphasis in original). Our conclusion that there was a search, however, does not end the inquiry . . . [A] “canine sniff” is far less intrusive than a full-blown search of a person’s home. . . . It does not entail entry into the premises or exposure of one’s personal effects to the police. Given the uniquely discriminate and nonintrusive nature of such an investigative device, as well as its significant utility to law enforcement authorities, we conclude that it may be used without a warrant or probable cause, provided that the police have a reasonable suspi-

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cion that a residence contains illicit contraband (see, People v. Class, 63 N.Y.2d 491, 495, revd New York v. Class, 475 U.S. 106, on remand 67 N.Y.2d 431, supra [noting that since a vehicle identification number inspection is a lesser invasion than a full-blown search a lesser justification than probable cause may be required]) . . . (emphasis supplied). Here it is undisputed that law enforcement authorities had a reasonable suspicion that defendant’s apartment contained illegal drugs. Since this was a sufficient justification for the police, while lawfully in the common hallway outside the apartment, to conduct a “canine sniff,” defendant’s rights under article I, § 12 of our State Constitution were not infringed. 77 N.Y.2d, at 25–26 (citations omitted) 2. URINE TESTING OF GOVERNMENT EMPLOYEES

The Court of Appeals dealt with the constitutionality of random testing of government employees for drug use in three cases. A unanimous court in Matter of Patchogue-Medford Congress of Teachers v. Board of Education, 70 N.Y.2d 57 (1987), held the practice unconstitutional, but the constitutionality of random drug testing was sustained by split decisions in Matter of Caruso v. Ward, 72 N.Y.2d 432 (1988), and Matter of Seelig v. Koehler, 76 N.Y.2d 87 (1990). a. Patchogue-Medford In Patchogue-Medford, Chief Judge Wachtler, with Judges Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concurring, held that a Board of Education requirement that all probationary teachers submit to a urine analysis to determine if the teacher had used drugs violated the State Constitution. A teacher who refused to submit to testing would not be recommended for tenure. Federal constitutional limits on random drug testing requirements had not yet been determined by the Supreme Court. Although Judge Simons concurred in the result, he objected to relying on the State Constitution, which he said had not been argued. He maintained that even if the Federal constitutional rule is uncertain, the state court should employ its best effort to answer the Federal constitutional question rather than rest on the state constitution alone. In particular Judge Simons argued that the failure of the parties to argue the State ground should preclude deciding the State constitutional question. To do so, he argued, would serve as an avenue for avoiding Supreme Court review. Judge Simons was expressing a concern that the Court was perhaps going out of its way to avoid Supreme Court review by deciding the case on an independent State ground, the State constitutional question. The majority argued that the pleadings claimed a violation of “constitutional rights,” and if this was sufficient to present

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the Federal constitutional question it also was sufficient to raise the State constitutional question. Moreover, one brief dealt exclusively with the State constitutional issue, and inasmuch as this was a declaratory judgment action, where a judgment is intended to guide the future conduct of the parties, the relief would be incomplete without addressing the State constitutional question. The Court decided that requiring urine testing at the will of the Superintendent of Schools without reasonable suspicion or, indeed, as in this case, no suspicion that any of the teachers had used drugs violated the search-and-seizure provisions of the Federal and State Constitutions. The Court reasoned that the search-and-seizure provisions protected individuals against search and seizure of the body as well as property, and that there was a reasonable expectation of privacy with respect to bodily fluids, even waste fluids, unless they are abandoned by the person. Here, of course, there was no such abandonment because the teachers were required to collect and preserve the urine and give it to the school district representative. Answering another contention, the Court decided that the absence of bodily invasion as in blood tests was not decisive, because the interest in and expectation of privacy was present with respect to analyzing the contents of the urine. The Court concluded: Ordering a person to empty his or her bladder and produce the urine in a container for inspection and analysis by public officials is no less offensive to personal dignity than requiring an individual to empty his pockets and produce a report containing the results of a urinalysis examination. In short, we conclude that the government’s act of requiring a person to submit to urinalysis for drug abuse constitutes a search and seizure. 70 N.Y.2d., at 68

Having decided the school district’s conduct constituted a search, the Court addressed the standard for permitting the search. It decided that neither probable cause nor a warrant was required, but reason for the search was required, and reasonable suspicion, a lesser standard than probable cause, would be acceptable under the Constitution. By restricting the government to reasonable searches, the State and Federal Constitutions recognize that there comes a point at which searches intended to serve the public interest, however effective, may themselves undermine the public’s interest in maintaining the privacy, dignity and security of its mem-

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bers. Thus random searches conducted by the State without reasonable suspicion are closely scrutinized, and generally only permitted [as had been approved with respect to students in school districts with heightened drug problems] when the privacy interests implicated are minimal, the government’s interest is substantial, and safeguards are provided to insure that the individual’s reasonable expectation of privacy is not subjected to unregulated discretion. . . . In this case those requirements have not been satisfied. 70 N.Y.2d, at 70 (citation omitted)

The School District has an interest in seeing that its teachers are fit and that drug abuse does not impair their ability to deal with the students. Teachers in this State are generally required to submit to an examination to determine their physical and mental fitness to perform their duties (Education Law § 913). They therefore have a diminished expectation of privacy with respect to State inquiries into their physical fitness to perform as teachers, and it is not unreasonable to require teachers to submit to further testing when school authorities have reason to suspect that they are currently unfit for teaching duties. 70 N.Y. 2d, at 69

b. Caruso In Caruso, a 5–2 decision, the Court sustained the constitutionality under the Federal and State Constitutions of a New York Police Department regulation providing for periodic random drug testing of all incumbent members of its Organized Crime Control Bureau (OCCB). Judge Bellacosa, writing for the majority, in an opinion concurred in by Chief Judge Wachtler and Judges Simons, Alexander, and Hancock, noted that the Supreme Court had not yet “decided whether individualized suspicion is an ‘essential element’ of work-related search . . . nor has it ruled specifically on the constitutionality of employee drugtesting programs conducted on a uniform or random basis.” 72 N.Y. 2d, at 437. Judge Bellacosa contrasted the position of the police officers under the circumstances of the OCCB with those of the probationary teachers in Patchogue. He reasoned that even under Patchogue “all public employees have some diminished expectations of privacy in respect to inquiries by the State into their physical fitness to perform on the job,” and although drug testing of the police was as intrusive as that of teachers, he concluded that the intrusion by random testing of the OCCB officers was insubstantial for several reasons. First, the sensitive nature of the officer’s job often depended on the ability to make quick

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judgments under dangerous conditions. Second, the fact that the police were a “paramilitary organization.” Third, all through training as a police officer they had been subjected to drug testing. Fourth, the officers had volunteered for OCCB. Of crucial significance in this case is that OCCB members have a very diminished expectation of privacy due to their pursuit of service in the elite unit based on conditions known in advance, including many unchallenged components of Interim Order No. 36 itself. All members enter this service informed, fairly and reasonably, that they will be held to the strictest standards of probity and purity, over and above those already imposed on the police force at large. They enter with professionally sophisticated eyes wide open to the reality that they will operate in fishbowl-like circumstances undreamed of by Calpurnia herself. The officers agree to undergo microscopic examinations of their personal lives, their financial affairs and their professional judgment calls. Realistically, the proposed random drug testing in these narrow circumstances is just another layer of an already heightened, persistent and employee-expected scrutiny. Notably, these special officers also enjoy job benefits they sought out, including greater promotional opportunity and exciting challenging work. 79 N.Y.2d, at 440 (emphasis added)

In contrast, no similar facts existed in Patchogue showing that the teachers had been subjected to mandatory drug testing in the past or that the school district had a long-standing drug-testing policy with which the teachers were familiar. The teachers there had neither consented to any drug testing nor made any concession as to the justification for such testing. Thus, there was no basis in that case for concluding that the teachers understood and accepted that drug testing was necessary to maintain the integrity of the teaching profession. Moreover, notwithstanding the widespread use of drugs in the schools by students, the teaching positions in Patchogue—unlike the OCCB positions involved here— did not carry with them an obvious drug risk. Clearly, there is a direct correlation between the substantive work of an OCCB member and drugs that must be considered in evaluating the magnitude of petitioners’ privacy interest in not being tested for drug use on the job. 72 N.Y.2d, at 439–40 (emphasis added)

Judge Kaye wrote a dissenting opinion, with Judge Titone’s concurrence.

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Today’s decision is an abrupt about-face from Matter of Patchogue-Medford Congress of Teachers v. Board of Educ. (70 N.Y.2d 57), where only last year this court concluded that the proposed random urine testing of probationary teachers constituted a search, that having to urinate under the observation of another person was at least as intrusive as a strip search, and that—despite the teachers’ diminished expectation of privacy, the public importance of unimpaired teachers, and the prevalence of drugs in schools—such searches were constitutionally prohibited in the absence of individualized reasonable suspicion. Now, the court upholds a proposed program of random urine testing under the observation of another person without any individualized suspicion, and without any reviewable procedural safeguards yet in place, because this is an elite voluntary corps of police officers with access to narcotics, because of the strong public interest in the purity and integrity of these employees, and because of their diminished privacy interest. 72 N.Y.2d, at 442–43 (emphasis added)

Judge Kaye’s opinion revealed sharp differences between her approach and Judge Bellacosa’s approach to analyzing search-and-seizure questions under the State Constitution. Cf. Scott and Keta, at subsection III-J, infra. She argued that the differences between the OCCB officers and the probationary teachers did not justify different results under Patchogue and the traditional constitutional search-and-seizure standards. First, the basic proposition is that a search should be conducted pursuant to a warrant issued on probable cause. Second, a search without a warrant was permissible only under narrowly defined exceptions, for example, incident to an arrest, exigent circumstances, evidence in plain view. Third, under very narrow circumstances, a search could be constitutionally justified on reasonable suspicion that a violation has occurred. According to Judge Kaye, the random searches of the officers did not satisfy probable cause or individualized reasonable suspicion requirements. Most significantly, the Commissioner has demonstrated no need in this case for surprise drug testing. The majority opinion incorrectly inverts and thus bypasses the proper order of analysis, reasoning from the premise that the OCCB officers have a reduced expectation of privacy to the conclusion that they therefore may be searched without cause. Unless at the outset the standard of reasonable suspicion is inadequate to allow identification of substanceabusing officers, the government lacks an interest that justifies departure from an individualized suspicion standard, and a random search is impermissible.

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The Police Commissioner’s own statistics show 10 instances where narcotics-related disciplinary charges were filed against OCCB members over a four-year period. As the majority recognizes, this is “meager and unpersuasive to support an assertion of pervasive illegal drug use.” (Majority opn, at 442.) The Commissioner does not suggest that job performance declined or unusual incidents increased in a way consistent with pervasive undetected drug use. There is nothing to indicate that the prevalence of drug use in the general public is also a problem among OCCB officers. Indeed, the only evidence before us is decidedly to the contrary, supporting the conclusion that with the heightened scrutiny to which they are already subjected, “those finally accepted for membership in OCCB are among the best in the force and of a nature even less likely to use drugs than others in the Department.” .... The majority identifies as a strong government interest the integrity of the highly specialized OCCB unit itself. There are references to elite, special, highly sensitive employment. The implicit conclusion is that certain public employees, simply by virtue of their position and without any proof of wrongdoing, may be required to demonstrate their innocence upon demand. This not only provides little guidance as to who is subject to random tests, but also reduces the constitutional limitations on the government’s power to search to a hollow promise, and cannot be squared with Patchogue. If the integrity of a group of public employees is enough of an interest to justify random searches of ostensibly innocent persons it is difficult to imagine who should be exempt from such intrusion. The public clearly has an interest in the integrity of every employee who serves it; equally clearly, that alone does not give the State the power to conduct intrusive searches of their person. .... While placing these officers “in fishbowl-like circumstances undreamed of by Calpurnia herself” (majority opn, at 440), the majority nonetheless says that OCCB members retain important personal privacy rights, particularly the right to be secure against unreasonable searches and seizures of their persons, homes, cars, lockers and other personal effects (majority opn, at 442). I believe these retained privacy rights include the right to be free of the “very serious,” “severe privacy intrusion” (majority opn, at 438) now proposed. 72 N.Y.2d, at 444–47 (citations omitted)

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c. Seelig v. Koehler After Caruso was decided, the United States Supreme Court held that government random drug testing was a search subject to the Fourth Amendment which, under special circumstances, could be conducted without the usual constitutional protections. Treasury Employees v. Von Raab, 489 U.S. 656 (1989); Skinner v. Railway Labor Executives’ Assn., 489 U.S. 602 (1989).22 The Court of Appeals next addressed this question in Matter of Seelig v. Koehler, 76 N.Y.2d 87 (1990). Judge Bellacosa, who had written the majority opinion in Caruso, also wrote the majority opinion in Seelig, a 4–3 decision, sustaining the constitutionality of random drug testing of corrections officers. Chief Judge Wachtler, who was with the majority in Caruso, this time wrote a sharp dissenting opinion concurred in by the Caruso dissenters, Judges Kaye and Titone. Judge Bellacosa listed the factors that he claimed brought the case under the Patchogue-Caruso and Supreme Court precedents and supported the constitutionality of random testing of the guards in Seelig under the Federal and State Constitutions. Among those factors were the “unique, high-risk, hazardous settings” of serving as a prison guard, and that the guards had consented to their privacy interests being compromised: they had “voluntarily agreed to submit to a previously enacted series of urinalyses, both random and suspicion-based,” and they were “already subject to a host of intrusive searches of person and property with no suspicion predicate.” Moreover, there had been “demonstrated drug use [among the guards] and an inability to stop it with currently available procedures. In addition, there was danger inherent in drug use by prison guards—danger to the inmates and fellow officers and risk of breach of prison security in that “drugs and weapons are more easily gotten into jail and prisoners can more easily be gotten out.” As for the testing itself, “both privacy and dignity of the guards are preserved “as carefully as possible and the “accuracy and integrity of the test results are meticulously circumscribed.” In addition, a “significant appeals process is granted to those who test positive.” 76 N.Y.2d, at 90–91. The Chief Judge dissented and claimed that the majority had not adhered to the Patchogue-Caruso precedents and, relying on the “narrow exception permitting such searches only under the most extraordinary circumstances,” the majority had created broad exceptions to two basic constitutional requirements: “a warrant and probable cause or reasonable suspicion.” 76 N.Y.2d, at 97. Permitting random urine testing of “every uniformed member of the Department of Correction in the City of New York,” he claimed, abandoned the limitations established in Caruso, and sanctioned “a ‘fact-specific’ analysis which apparently will vary from case to case without fixed or discernible limits.” 76 N.Y.2d, at 98.

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Following this precedent [i.e., Seelig] it would be difficult to imagine how any officer, or anyone employed in the world of law enforcement or even anyone associated with the criminal justice system, would be free of the requirement of random, suspicionless urine testing once someone in authority found it desirable. This turns the narrow exception into a general warrant permitting the government to intrude in the most offensive manner on the privacy and dignity of a large segment of our community. But they are equally difficult to reconcile with the Constitution23 when the result is a progressive erosion of prior restrictions and a continuous expansion of the government’s power to search large segments of our community without a warrant, without probable cause, and without reason to suspect them of illegal acts. Searching thousands of innocent people to discover a few offenders has long been considered the hallmark of unreasonableness. This basic constitutional principle was not meant to protect only criminals, or those suspected of crime; it was designed to protect us all, including those who serve in the law enforcement community. It is neither reasonable nor just to expect those who routinely enforce the law to submit to indignities which those who violate the law can constitutionally escape. 76 N.Y.2d, at 101

Judge Wachtler went on to warn: “Even if the present drug crisis abates, these precedents will endure. Today’s decision makes an important constitutional right the latest casualty in the war on drugs” (id.). Responding, Judge Bellacosa wrote: Our holding today, despite the hyperbolic attributions of the dissenting opinion, does no more than conclude that the particular combination of crucial circumstances comprising the paramilitary workplace milieu of jail guards, their severely diminished privacy expectations under a sedulous set of testing procedures, in the face of the significant State interest, satisfy the analytic and constitutional underpinnings of Patchogue and Caruso—a concededly rigorous set of standards. 76 N.Y.2d, at 90 (emphasis added)

H. People v. Torres, 74 N.Y.2d 224 (1989) In Torres, two homicide detectives acting on an anonymous tip that the defendant, an alleged homicide suspect, was carrying a weapon while driving an auto-

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mobile, stopped the car, ordered the defendant out of the car, and immediately frisked him. Although they discovered nothing to lead them to believe he had a weapon, they, nevertheless, searched a shoulder bag lying on the front seat of the car and found a gun. Torres refused to construe the State Constitution the same as Michigan v. Long, 463 U.S. 1032 (1983), where the Court had read the Fourteenth Amendment to permit a police officer who lawfully stops a driver to make an inquiry to enter and search the passenger compartment of a vehicle for a weapon solely because the officer reasonably suspects that the driver may reenter the vehicle to retrieve a weapon if he is not arrested. In People v. Lindsay, 72 N.Y.2d 843, 845 (1988), the Court of Appeals had left open the question of whether this type of warrantless search was lawful under the State Constitution.24 In Torres, the Court addressed this open question and while it agreed that a “police officer acting on reasonable suspicion that criminal activity is afoot and on an articulable basis to fear for his own safety may intrude upon the person or personal effects of the suspect, [but] only to the extent that is actually necessary to protect himself from harm while he conducts the inquiry authorized by CPL 140.50 (1).” 74 N.Y.2d, at 226. Torres, a 6–1 decision, Judge Bellacosa dissenting, held that the search contravened the State Constitution even though it would be permitted under the Federal Constitution. 74 N.Y.2d, at 226. Judge Bellacosa claimed that the case was more analogous to a street encounter, rather than the automobile search situation, and that the “Court should face the reality of the day and gauge the reasonableness of police officers’ conduct in the full light of that harsh glare. It is not reasonable to hold that police officers—thrust into this kind of emergency situation where their official duty obligates them to act and where the difference between life and death is often measured in seconds—must differentiate on the spot between finely spun legal doctrines of authority to frisk based on a multiple choice test of the available categories.” 74 N.Y.2d, at 235–36 (citation omitted).

I. People v. Harris, 77 N.Y.2d 434 (1991) In Payton v. New York, 445 U.S. 573 (1980), the Supreme Court reversed a conviction, holding that a warrantless and nonconsensual entry into a person’s residence to make an arrest for a routine felony violation violated the Federal Constitution. In People v. Harris, 77 N.Y.2d 434 (1991) [on remand from New York v. Harris, 495 U.S. 14 (1990)], the defendant made inculpatory statements to the police after he was arrested in violation of Payton. He made the first statement in his apartment immediately after he was arrested; a second statement,

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one hour later in the police station; and the third, on videotape. The first was suppressed because of the illegal arrest and the third because it was involuntary. The issue before the Court involved the second statement, which defendant claimed should be suppressed under the State and Federal Constitutions. The Court of Appeals first held that the second statement had been obtained in violation of the Federal Constitution, because the exit from the apartment after the illegal arrest was not so attenuated as to break the causal connection between the illegal arrest and the second statement. The Supreme Court reversed the Court of Appeals, holding that no attenuation was required, because the “value of suppressing this type of statement was minimal” insofar as it concerned a removal of a police incentive to violate Payton. New York v. Harris, 495 U.S.14 (1990), reversing and remanding People v. Harris, 72 N.Y.2d 614 (1988). On remand, the Court of Appeals, in a 5–2 decision, held that the rule was different under the State Constitution, and the “statements obtained from the accused following a Payton violation must be suppressed unless the taint resulting from the violation has been attenuated.” Rejecting the Supreme Court’s rule, the Court of Appeals said “it does not adequately protect the search and seizure rights of the citizens of New York.” 77 N.Y.2d, at 437. The Court summarized the factors involved in determining whether to expand rights under the State Constitution beyond those found by the Supreme Court under the Federal Constitution. Because the language of the Fourth Amendment of the United States Constitution and section 12 of article I of the New York State Constitution prohibiting unreasonable searches and seizures is identical, it may be assumed, as a general proposition, that the two provisions confer similar rights. . . . Such consistency is desirable because it facilitates implementation of search and seizure rules. Nonetheless, the two documents do not present a monolithic legal code. Our federalist system of government necessarily provides a double source of protection and State courts, when asked to do so, are bound to apply their own Constitutions notwithstanding the holdings of the United States Supreme Court. . . . Sufficient reasons appearing, a State court may adopt a different construction of a similar State provision unconstrained by a contrary Supreme Court interpretation of the Federal counterpart. The present case comes to us on remand to determine whether we should do so here. We detailed some general rules governing independent State review . . . and have revisited the subject several times since. . . . Two different analyses are employed: an interpretive analysis which examines the language of the provisions and a noninterpretive analysis which “proceeds from a judicial

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perception of sound policy, justice and fundamental fairness.” . . . In the present case, the language of the Fourth Amendment of the Federal Constitution and section 12 of article I of our own Constitution not only contain similar language but share a common history. . . . If a distinction is to be made in what they require, therefore, it must rest on a noninterpretive analysis of the State provision in which the Court focuses not on the text of the clause but on matters peculiar to this State. In doing so, we have considered such factors as “any preexisting State statutory or common law defining the scope of the individual right in question; the history and traditions of the State in its protection of the individual right; any identification of the right in the State Constitution as being one of peculiar State or local concern; and any distinctive attitudes of the State citizenry toward the definition, scope or protection of the individual right.” 77 N.Y.2d, at 437–38 (citations omitted)

The Court found this distinctive aspect of New York constitutional rights in the State’s Right to Counsel clause, which by virtue of constitutional and statutory interpretation provides more expansive rights than does the Federal system. In New York, unlike the Federal system, “once an arrest warrant is authorized, criminal proceedings have begun, the indelible right to counsel attaches and police may not question a suspect in the absence of an attorney.” 77 N.Y.2d, at 440. In the Federal system, issuing a warrant does not require nor does it mean the commencement of a criminal proceeding, and the defendant may be questioned without counsel even if a warrant has been issued. Thus, the Federal system does not provide an incentive to avoid Payton, but the State system does provide such an incentive, that is, to arrest without a warrant. Consequently, the requirement of attenuation does provide protection for New York citizens that the Federal system would not, and therefore, the Court adhered to its original rationale and found that the second statement was obtained in violation of the State Constitution.25 Judge Bellacosa, with Chief Judge Wachtler concurring, dissented. He asserted: The United States Supreme Court has ruled that the New York State Court of Appeals erred in reversing the murder conviction of defendant-appellant Harris. . . . Undeterred, the same majority of this Court creates a new theory upon which to again reverse and suppress a station house confession, deciding that it is mandated by State constitutional considerations. We strongly disagree and would affirm the conviction.

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The majority’s dogged choice in this case is not compelled or supported by existing Federal or State precedents or principles. Rather, to accomplish its result, the majority: (1) rejects the analysis, wisdom and experience of the United States Supreme Court with respect to its Payton . . . rule; (2) rejects the undisturbed attenuation fact findings of both of our own lower courts in violation of our own State constitutional review limitations; (3) rests its result on a significantly expanded State right to counsel concept, injected into this case for the first time after all appeals have been exhausted, including to the United States Supreme Court; (4) converts a pure Fourth Amendment search and seizure dwelling protection case into a theoretical right to counsel construct; (5) justifies its yonder reach as necessitated by a perceived enhancement of deterrence policy; (6) bypasses this Court’s long-standing “issue preservation” principles; and (7) unsettles law principles in all of the above areas and, most disconcertingly, adds the implication that the police are legally and constitutionally required to commence a criminal proceeding as soon as they believe they have probable cause. The choice to discount and disregard all these jurisprudential policies and principles in this unworthy case is astonishing and is effected against a most unusual evidentiary and procedural backdrop. 77 N.Y.2d, at 442–43

J. Scott and Keta People v. Scott and People v. Keta, 79 N.Y.2d 474 (1992), presented sharp disagreements on the Court over expanding State constitutional rights beyond the Federal rights recognized by the Supreme Court. Scott rejected the Supreme Court’s “open fields” doctrine. Keta held that a New York statute authorizing warrantless administrative searches violated the State Constitution, despite a Supreme Court holding that it did not violate the Federal Constitution. In each case, the same 4–3 majority found in favor of the defendant’s State constitutional claims. In Scott, Judge Hancock wrote the majority opinion, concurred in by Judges Kaye, Alexander, and Titone; Judge Titone wrote the opinion in Keta, concurred in by Judges Kaye, Alexander, and Hancock. Judge Kaye also wrote a separate concurring opinion, concurred in by Judges Alexander, Titone, and Hancock. Judge Bellacosa wrote a dissenting opinion, concurred in by the other two dissenters, Chief Judge Wachtler and Judge Simons. The opinions by Judge Bellacosa and Judge Kaye were sharply worded

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and highlight the intensity of the differences on the Court concerning the “new judicial federalism.” 1. PEOPLE V. SCOTT: THE “OPEN FIELDS” DOCTRINE AND AERIAL AND GROUND OBSERVATION

In People v. Reynolds, 71 N.Y.2d 552 (1988), a 4–3 majority26 rejected a claim that the State Constitution had been violated by warrantless aerial and groundlevel police surveillance of an open field and what appeared to be commercial production of marijuana. Based on the information so obtained, the police applied for and obtained a search warrant, which was executed by police entering onto the land and seizing the marijuana. The majority concluded that under Supreme Court holdings there had been no Fourth Amendment violation, and that there was no such “expectation of privacy” that would support finding a State constitutional violation either. In California v. Ciraolo (476 U.S. 207), the Supreme Court found it permissible for the police, by overflight, to make warrantless observations of marihuana growing in a backyard which was surrounded by fences. From the holdings in United States v. Dunn (480 U.S. 294, 107 S Ct 1123, 1139) and Oliver v. United States (466 U.S. 170), the rule evolves that neither the erection of fences nor the posting of “No Trespassing” signs on otherwise open land will establish a legitimate expectation of privacy in the sense required by the Fourth Amendment. 71 N.Y.2d, at 556

As for the State constitutional claim, Judge Dillon, for the majority reasoned: The purpose of the State and Federal warrant clauses is to protect people from unreasonable government intrusion into their legitimate expectations of privacy. . . . A protected privacy interest is established when a person has exhibited a subjective expectation of a privacy right which society recognizes as reasonable. . . . Generally, however, conduct and activity which is readily open to public view is not protected. It is for that reason that we decline to declare as a matter of State constitutional law that an owner has a reasonable expectation of privacy in open fields and woods where no precautions have been taken to exclude the public from entry. Consequently, the warrantless observations of marihuana on defendant’s property provided probable cause for issuance of the search warrant. 71 N.Y.2d, at 557 (emphasis supplied)

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The majority found there were no posted signs or other manifestations of a subjective expectation of privacy; consequently, they concluded that the Court need not address the question of whether “No Trespassing” signs or the equivalent would lead to a different result under the State Constitution The dissenters disagreed with the majority in three respects. First, they argued that the case at bar was factually distinguishable from the Supreme Court cases; second, they argued that the State should not follow the Supreme Court decisions in construing the State Constitution; and third, they claimed that there was an unresolved factual issue as to whether there were signs barring entry which required a hearing. People v. Scott presented the Court of Appeals with the question it had deferred in Reynolds. The Scott majority rejected the teaching of Oliver v. United States, 466 U.S. 170 (1984). Judge Hancock stated: In Oliver v. United States (466 U.S. 170) the Supreme Court fully reaffirmed the doctrine . . . that in areas outside the curtilage, an owner of “open fields” enjoys no Fourth Amendment protection. This is so, the Oliver majority held, even for secluded lands and notwithstanding efforts of the owner to exclude the public by erecting fences or posting “No Trespassing” signs. In this appeal by defendant from a conviction for illegally growing marihuana on his land, we address the question expressly left open in People v. Reynolds (71 N.Y.2d 552): whether the Supreme Court’s categorical ruling in Oliver should be adopted as the law of this State under Article I, § 12 of the New York State Constitution. For reasons which follow, we hold that the Oliver ruling does not adequately protect fundamental constitutional rights (see, People v. P. J. Video, 68 N.Y.2d 296, 303–306) and we decline to adopt it. There should, therefore, be a reversal. 79 N.Y.2d at 478

Judge Hancock pointed out that it was not inappropriate for the Court of Appeals to construe Article 1, § 12 differently than the Fourth Amendment. Indeed, in so doing, he noted that the Court of Appeals was acting consistently with a number of prior cases he cited in which State Constitution’s Article I, § 12, had been construed more broadly than the Fourth Amendment. Second, Judge Hancock examined the Oliver reasoning in detail. He concluded that Oliver represented a sharp departure from Katz v. United States, 389 U.S. 347 (1967), in which the Supreme Court held that wiretap eavesdropping was subject to the Fourth Amendment. Oliver had reaffirmed Hester v. United States, 265 U.S. 57 (1924), in which Justice Holmes had stated that “the special

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protection of the Fourth Amendment to the people in their ‘persons, houses, papers, and effects’ is not extended to the open fields.” Id., at 59. Judge Hancock characterized this as “founded on a literal interpretation of the language of the Fourth Amendment.” Scott, at 481 (Emphasis added). After Hester, the Supreme Court decided Katz which overruled Olmstead v. United States, 277 U.S. 438 (1928), a wiretapping case, which together with Hester was based on the view that without an actual or physical trespass into the residence or the curtilage there could be no violation of the Fourth Amendment. Judge Hancock summarized the situation before Oliver: In 1967, the Supreme Court, in its seminal decision in Katz v. United States (389 U.S. 347, supra), abandoned the Hester-Olmstead property-oriented, physical trespass approach to its Fourth Amendment jurisprudence and declared that the “Fourth Amendment protects people—and not simply ‘areas’—against unreasonable searches and seizures”(id., at 353) . . . In what came to be accepted as the Katz ‘expectation of privacy’ formulation, Justice Harlan introduced a two-step analysis: (1) whether the individual has manifested a subjective expectation of privacy from the challenged search; and, (2) if so, whether society would find that expectation objectively reasonable. 79 N.Y.2d, at 481–84 (emphasis added)

Katz created some uncertainty about whether the Hester approach to open fields survived. Oliver, decided seventeen years after Katz, reaffirmed Hester and rejected the “expectation of privacy’ test for fenced or posted open fields however secluded and limited that test to the “residence and its immediate environs.” Oliver reiterated the literal language argument of Hester and, in its attempt to reconcile its conclusion that as a matter of law, open fields are not subject to the protection of the Fourth Amendment, with the second element of the Katz “expectation of privacy” test, Oliver concluded that society does not recognize as reasonable an expectation of privacy in open fields. Judge Hancock, rejecting Oliver as the rule of the State Constitution, reasoned: (1) Oliver was inconsistent with the principle that the Fourth Amendment protects people, not places; (2) Oliver’s literal language argument as applied to the State Constitution is not wholly relevant, and in part, is irrelevant. The Supreme Court itself had diverted from that approach in such cases as G.M. Leasing Corp. v. United States, 429 U.S. 338 (1976) (business premises are protected by

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the Fourth Amendment), and Oliver’s reliance on history to support its literal language approach to the Fourth Amendment, such as the rejection of Madison’s proposal that the phrase, “other persons” be included in the Amendment, is irrelevant to construing the State Constitution, which has a separate, albeit sparse, documented history. Moreover, Article I, § 12, of the State Constitution, unlike the Federal Constitution, explicitly restricts wiretapping. People v. Scott, supra, at 485–86. (3) The more basic question concerns Oliver’s expectation of privacy analysis and its conclusion that society is not prepared to recognize as reasonable an expectation of privacy in posted secluded open fields. Judge Hancock disagreed with this conclusion as it applied to New York. He asserted: A constitutional rule which permits State agents to invade private lands for no reason at all—without permission and in outright disregard of the owner’s efforts to maintain privacy by fencing or posting signs—is one that we cannot accept as adequately preserving fundamental rights of New York citizens. Such a rule is contrary to New York decisions, particularly those adopting the Katz rationale in search and seizure cases. .... . . . [I]t is in the search and seizure cases decided after Katz that it becomes plain that the Oliver majority’s categorical no-protection rule would be inimical to New York law. Our Court, in applying both Federal and State law, has consistently adhered to the concept introduced in Katz: that the Fourth Amendment and article I, § 12 protect the privacy rights of persons, not places. . . . Reverting to the Oliver majority’s pre-Katz, property-oriented approach would subvert New York’s acceptance of article I, § 12 and the Fourth Amendment as affording protection not to places, but to an individual’s legitimate expectation of privacy. 79 N.Y.2d, at 486–88.

In a sense, Oliver rests on the idea that law-abiding persons have nothing to hide. In part, Oliver argued that there could be no expectation of privacy in open fields, knowing the kind of criminal activity such as planting marijuana that could be conducted in the fields. This, of course, Judge Hancock argued, is wrong. First, it puts the cart before the horse because the question is whether the Constitution protects against the intrusive conduct that leads to the discovery of that activity and it is illogical to rely on the nature of the activity to deter-

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mine whether the intrusion that discovers it is permissible. Second, Oliver would permit intrusions where the activity is both expected to be private and is lawful, activities that law-abiding persons have a right to hide. Judge Hancock responded to Judge Bellacosa’s dissenting opinion, but expressed a willingness to rest on Judge Kaye’s concurring opinion for a detailed response. Judge Kaye’s and Judge Bellacosa’s opinions are discussed infra. 2. PEOPLE V. KETA: WARRANTLESS ADMINISTRATIVE INSPECTION OF A REGULATED BUSINESS

People v. Keta, 79 N.Y.2d 474 (1992), was the occasion for intensive analysis of warrantless administrative searches. Prior to Keta, the Court of Appeals, in In the Matter of Glenwood TV, Inc. v. Ratner, 65 N.Y.2d 642 (1985), appeal dismissed, 474 U.S. 619 (1985), had rejected a claim that New York City Administrative Code provisions were unconstitutional because they authorized a warrantless and surprise inspection of licensed radio and television repair premises and the records the Code required the licensees to keep. The Court rested its decision on the opinion in the Appellate Division of then Justice Titone, later a judge of the Court of Appeals, that upheld the constitutionality of the Code provisions. In the Matter of Glenwood TV, Inc. v. Ratner, 103 A.D.2d 322 (2d Dept. 1984). Justice Titone had found that the provisions were aimed at serious consumer abuses in the radio and television repair business and that there was no merit to the constitutional objection which focused on the provisions that authorized the warrantless surprise inspection of the required records and penalized refusals to submit the records to inspectors. Justice Titone wrote: The difficulty with this thesis is that the warrant clause has long been deemed inapplicable to “required records” which “are in the public domain” and, as a result, “their custodian is not afforded the traditional protections of the fourth or fifth amendments.” . . . It is clear that “the modern businessman has little or no expectation of privacy in his business records, especially those documents prepared in compliance with regulatory requirements.” Numerous authorities demonstrate this principle. . . . In short, statutory schemes requiring licensees to have books and records available for inspection during reasonable business hours are quite common. . . . There is “no meaningful difference between an obligation to maintain records for inspection, and such an obligation supplemented by a requirement that those records be filed periodically with [governmental] officers. . . . ‘[r]egulations permit records to be retained, rather than filed, largely for the convenience of the persons regulated’” (Marchetti v. United States, 390 U.S. 39, 56, n. 14, 88 S.Ct. 697, 707, n. 14, 19 L.Ed.2d 889).

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The authority to inspect records, which is at issue, is essentially an analogue of the power conferred upon an agency to issue a subpoena duces tecum. The Fourth Amendment is satisfied if the authority to inspect is exercised reasonably and if judicial review is available before a person is ultimately required to submit to an inspection. To be sure, there are limitations. “Unbridled” administrative discretion will not do. . . . The propriety of a warrantless administrative inspection scheme is measured by a balancing of enforcement goals and needs against the privacy and regulatory guarantees within the statutory framework. . . . Inasmuch as the inspections here were limited to required records and the licensees’ public areas, the statutory safeguards were sufficient to protect their legitimate privacy concerns. . . . Similarly, the “certainty and regularity” of the scheme’s application is sufficiently tailored to goals and enforcement needs and thus “provides a constitutionally adequate substitute for a warrant.” . . . The legislative findings, to which we defer . . . plainly support the need for surprise “if inspection is to be effective and serve as a credible deterrent” . . . Parenthetically we note that discretion is limited through the use of a standard uniform checklist issued to inspectors, and the employment of a computerized random selection process. In this regard, we are not persuaded that an ex parte warrant or subpoena is a necessary condition precedent to an administrative inspection. Since the administrative orders are not self-executing and may only be enforced with judicial assistance (Administrative Code, § 773–5.0), there is an adequate forum for the licensee to obtain judicial review of any constitutional claims prior to enforcement. . . . 103 A.D. 2d, at 328–30

In Keta, the Court of Appeals dealt with the constitutionality of provisions of a New York State statute and the New York City Administrative Code that authorized warrantless inspections of the vehicle dismantling business premises which the United States Supreme Court, in a 6–3 decision, had held did not violate the Fourth Amendment, reversing a unanimous decision of the New York Court of Appeals that had reached a contrary conclusion. New York v. Burger, 382 U.S. 691 (1987), reversing People v. Burger, 67 N.Y.2d 338 (1986). Although the Supreme Court remanded Burger, the Court of Appeals did not further consider the case, but subsequently, in Keta, supra, in an opinion by Judge Titone who had written the Appellate Division opinion in In the Matter of Glenwood TV, Inc. v. Ratner, supra, found the provisions violated the State Constitution.

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In Burger, the Court of Appeals, without referring to the State Constitution, had found a Federal constitutional violation, reasoning that unlike the situations in prior Supreme Court cases that had sustained warrantless administrative searches, [t]he fundamental defect in the statutes . . . is that they authorize searches undertaken solely to uncover evidence of criminality and not to enforce a comprehensive regulatory scheme. The asserted “administrative schemes” here are, in reality, designed simply to give the police an expedient means of enforcing penal sanctions for possession of stolen property. Furthermore, an otherwise invalid search of private property is not rendered reasonable merely because it is authorized by a statute, for to so hold would allow legislative bodies to override the constitutional protections against unlawful searches. 67 N.Y.2d 338, at 344

The Supreme Court, in reversing the Court of Appeals, invoked the exception to the warrant requirement that “warrantless inspections of pervasively regulated businesses are valid if necessary to further an important state interest, and if authorized by a statute that carefully limits their time, place and scope.” 482 U.S., at 718 (Brennan J. dissenting opinion). In People v. Keta, 79 N.Y.2d 474 (1992),27 the Court of Appeals again considered the constitutionality of the statutes the Court described as “author[izing] the police to conduct random warrantless searches of vehicle dismantling businesses to determine whether such businesses are trafficking in stolen auto parts” and found they violated the New York State Constitution. 79 N.Y.2d, at 492. Judge Titone declared that the Supreme Court decisions on warrantless administrative searches provided a “perplexing legal backdrop.” 79 N.Y.2d, at 494. He wrote: Initially, the Supreme Court held that the Fourth Amendment’s warrant requirement applied only to searches undertaken to procure evidence of criminality and not to administrative inspections or searches undertaken to implement a regulatory scheme, [but subsequently the Court] abandoned that position in Camara v. Municipal Ct. (387 U.S. 523) and See v. City of Seattle (387 U.S. 541), holding instead that the Fourth Amendment applies to searches undertaken for regulatory purposes as well as to searches for criminal evidence, although warrants for searches in the former category need not be supported by probable cause in the traditional sense since they “are neither

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personal in nature nor aimed at the discovery of evidence of crime”(Camara v. Municipal Ct., 387 U.S., at 537, supra). Shortly after Camara and See were decided, the Supreme Court carved out an exception to the warrant requirement it had established in those cases. . . . [T]he Court held that the Fourth Amendment does not demand a warrant for an inspection or search of business premises where the particular industry is subject to close governmental supervision and the authorizing statute prescribes specific procedural rules to govern the manner in which the search is conducted. In a subsequent case, the Court explained that the . . . exception was a response to “relatively unique circumstances” where “[c]ertain industries have such a history of government oversight that [the proprietor could have] no reasonable expectation of privacy.” . . . Nevertheless, only three years later, the Court substantially broadened the exception, holding that it is not limited to industries having a long tradition of government regulation. . . . Rather, it is the “pervasiveness and regularity”—not the longevity—of regulation that determines whether a warrant is necessary. 79 N.Y.2d, at 493–94 (citations omitted; emphasis in original)

In Keta, in rejecting the Supreme Court’s assessment of the statutes in Burger, Judge Titone stated that “[a]n independent construction of our own State Constitution is particularly appropriate where a sharp or sudden change in direction by the United States Supreme Court dramatically narrows fundamental constitutional rights that our citizens have long assumed to be part of their birthright.” 79 N.Y.2d at 497 (emphasis supplied). The Supreme Court’s approach in Burger, according to the Keta majority, was that, as an exception to the probable cause requirement, it would authorize warrantless administrative searches to be “undertaken solely to uncover evidence of criminality,” 79 N.Y.2d at 498, and this would be so contrary to prior administrative search jurisprudence as to be akin to sanctioning a “ ‘20th Century equivalent’ of colonial writs of assistance.” 79 N.Y.2d at 497 [quoting Justice O’Connor in Illinois v. Krull, U.S. 340, 364 (dissenting opinion)]. Judge Titone wrote that notwithstanding [the Supreme Court’s decision in] Burger, the Court of Appeals original decision in Burger, refusing to permit warrantless administrative searches solely to uncover evidence of a crime, “remain[ed] analytically sound, since, without such a limitation, what was originally conceived as a narrow exception would swallow up the rule and permit circumvention of the traditional probable cause and warrant requirements where their protections are most needed.” 79 N.Y.2d, at 498–9928

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Motivated by the belief that the warrantless administrative search exception should “remain a narrow and carefully circumscribed one,” 79 N.Y.2d, at 499, Judge Titone undertook a detailed analysis of the Supreme Court Burger opinion and responded to some of the points made in Judge Bellacosa’s dissent. He concluded that the regulation of the vehicle dismantling business was neither pervasive nor could the authorization of warrantless searches be justified under the State Constitution as necessary support of a substantial government interest. Consequently, the four-judge majority concluded that the Court of Appeals should adhere to its original analyses in Burger, and this time found the statutes violated the State Constitution. Although the Supreme Court had found that the vehicle dismantling business was “pervasively” regulated for purposes of the Federal Constitution, the Keta majority held that “more is required” to satisfy this element under the State Constitution. 79 N.Y.2d at 499. Determining what kind of regulation would justify warrantless administrative searches obviously was a key inquiry so as to avoid sanctioning warrantless searches of practically all commercial premises. Judge Titone wrote: While a precise and all-encompassing definition of what constitutes a “pervasive” regulatory scheme is not possible, such minimal regulatory requirements as the obligations to register with the government, to pay a fee and to maintain certain prescribed books and records are not, in themselves, sufficient. Indeed, in modern society, many trades and businesses are subject to licensing, bookkeeping and other similar regulatory measures. If the existence of such relatively nonintrusive obligations were sufficient, few businesses would escape being labeled “closely regulated,” and warrantless, suspicionless general inspections of commercial premises would become the rule rather than the exception (cf., Matter of Glenwood TV v. Ratner, 103 A.D.2d at 328–330, supra. [upholding administrative inspection scheme that is limited to inspection of required records and business’s public areas]). 79 N.Y.2d, at 499 (emphasis supplied)

Judge Titone found that the statutes in question were “constitutionally deficient in [their] failure to delineate rules to guarantee the “certainty and regularity of . . . application” necessary to provide a “constitutionally adequate substitute for a warrant.” 79 N.Y.2d, at 499 (citation omitted) (emphasis supplied). Judge Titone dismissed the Supreme Court’s reliance on the need to meet the challenges presented by automobile theft as a “substantial government interest” supporting warrantless searches. He pointed out that “when the regulatory activity in question has a law-enforcement goal,” the argument for a

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warrantless search always is available; “there would be few, if any situations in which the protections [of citizens’ privacy rights under] article I, § 12 would operate.” 79 N.Y.2d, at 500. Judge Titone concluded that with respect to the vehicle dismantling business there was no “additional particularized factor” or “exigency” nor had the Legislature provided a “constitutionally adequate substitute” that would justify dispensing with adherence to constitutional requirements for a search and seizure. Constitutionally sufficient administrative inspections of the vehicle dismantling business could exist if the “inspection provisions [, unlike those before the Court, were] part of a comprehensive administrative program that is unrelated to the enforcement of the criminal law.” 79 N.Y.2d, at 501–2. Alluding to Judge Bellacosa’s dissenting opinion, Judge Titone rejected the contention that the “‘staggering statistics” concerning auto theft demonstrated the constitutionally necessary support for warrantless searches without probable cause.29 Despite alarming problems concerning drug traffic and unlicensed weapons, he said, few would seriously argue that those unfortunate facets of modern life justify routine searches of pedestrians on the street or any other suspension of the privacy guarantees that are there to protect all of our citizens. The fact is that, regrettably, there will always be serious crime in our society, and there will always be upsurges in the rate of particular crimes due to changes in the social landscape. 79 N.Y.2d, at 501 (citations omitted) 3. CONCURRING AND DISSENTING OPINIONS

In Keta and Scott, as he had in People v. Harris, 77 N.Y.2d 434 (1991), discussed supra, Judge Bellacosa wrote a sharply worded dissent. He summarized his position as follows: In these two cases, the Court cuts its own constitutional path through a commercial marihuana farm nestled in 165 acres of idyllic “open fields” in Chenango County, New York State, to the open yard of an alleged “chop shop,” an urban auto dismantling business, in Maspeth, Queens County, New York City. The Court’s declaration of independence from the Supreme Law of the Land (Oliver v. United States, 466 U.S. 170; New York v. Burger, 482 U.S. 691) and from this Court’s own recent noninterpretative constitutional analysis and definitive guidance (People v. Harris, 77 N.Y.2d 434; People v. Reynolds, 71 N.Y.2d 552) propels the Court across a jurisprudential Rubicon into a kind of Articles of Confederation time warp. The “movement” has been

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dubbed the “New Federalism” (Gardner, The Failed Discourse of State Constitutionalism, 90 Mich L Rev 761, 762). This Court’s metaphorical journey is marked by the Court: • Supplanting its own noninterpretative method of constitutional analysis; • Transforming the essential nature of the constitutional protection against unreasonable searches and seizures; • Substituting privacy as an abstract desideratum instead of considering the nature and new, sweeping scope of the expectation of privacy interest conferred within its proper contextual criminal jurisprudence framework; • Rejecting uniformity of Federal and State law in appropriate areas such as are at issue here; • Discarding the United States Supreme Court’s guidance in the two categories of law involved; and • Undermining stare decisis by pulling the analytical props out from under several of this Court’s guiding precedents. The identical constitutional texts at issue in both cases prohibit “unreasonable searches and seizures” (U.S. Const 4th Amend; NY Const, art I, § 12). Simply stated, the common issue is whether this Court has a justifiable basis, within its recently rearticulated method of noninterpretative analysis, to apply New York’s mirror equivalent of the Fourth Amendment prohibition against unreasonable searches and seizures differently from the United States Supreme Court in these cases. The Court severs the expectation of privacy attribute from its essential unreasonable searches and seizures mooring, and invests both cases in the alluring cloak of a generalized privacy interest, as a matter of unique New York concern. In these cases therefore, we must respectfully dissent and would affirm the orders of the Appellate Division, because no appropriate basis, unique to New York, has been advanced warranting this double-barrelled declaration of peculiar New York-style separatism, bestowing enhanced New York privacy rights on an open fields commercial marihuana grower and on a commercially regulated auto dismantler. 79 N.Y.2d, at 506–7 (footnote omitted)

Judge Bellacosa argued, inter alia, that the majority had failed to provide a principled framework for departing from Supreme Court precedents and had failed to follow Court of Appeals precedents, at times ineffectively attempting to distinguish prior cases. Inasmuch as the language of the Federal and State constitutional provisions governing warrants and searches and seizures was identical, the majority had the burden of making a convincing case for refusing to interpret the later-adopted State provision in the same way that the Supreme Court had construed the Federal provision. In failing to do so, the majority

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failed to follow New York precedents, which dictated an interpretive approach to construing the State provision in these cases; and in employing the noninterpretive approach, the majority had failed to provide sufficient reasons for reaching its conclusions. An underlying fault of the majority’s approach was that it had relied on some “expectation of privacy” concept, instead of dealing with the specifics of the constitutional provision, which was concerned with government conduct in the context of the criminal justice system. Further, Judge Bellacosa insisted that he and those who concurred with him did not believe that the State courts had to follow the Supreme Court in lockstep; rather, he reiterated his belief that the State could properly act independently of the Supreme Court, but there had to be principled reasons for doing so.30 He conceded that his language had been blunt, but, he asserted—“The brief response to the tonal accusations of [Judge Kaye’s] concurring opinion is that we have discussed the issues with direct language because the principles and consequences are profound.” 79 N.Y.2d, at 511.31 Explaining why she filed a separate concurring opinion, Judge Kaye said, “I write separately only to respond to the broader statements and implications [in Judge Bellacosa’s] dissent about State constitutional law, and especially about us.” 79 N.Y.2d, at 503. She maintained that the decisions were in accord with precedent and that “under the State Constitution, defendants’ reasonable expectation of privacy—not [as Judge Bellacosa claimed], some new privacy right, but the privacy right encompassed within the guarantee against unreasonable searches and seizures, as that guarantee is uniformly defined has been transgressed.” 79 N.Y.2d, at 502. She pointed out: Time and again in recent years, the Supreme Court as well as its individual Justices have reminded State courts not merely of their right but also of their responsibility to interpret their own Constitutions, and where in the State courts’ view those provisions afford greater safeguards than the Supreme Court would find, to make plain the State decisional ground so as to avoid unnecessary Supreme Court review. The Supreme Court is not insulted when we do so [citing cases and quoting Supreme Court Justices]. 79 N.Y. 2d, at 505

Indeed, she reminded that experimentation and meeting local values and needs constituted the essential strength of dual sovereignty under our Federal system. 79 N.Y.2d, at 505–6, passim.

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Turning to the dissent’s claim that the majorities had departed from the method (interpretive v. noninterpretive) for distinguishing and expanding rights under the State Constitution from the minimum guaranteed by the Federal Constitution, Judge Kaye “disagreed with the dissent that, in an evolving field of constitutional rights, a methodology must stand as an ironclad checklist to be rigidly applied on pain of being accused of lack of principle or lack of adherence to principle.” 79 N.Y.2d, at 504. It should be noted that although Chief Judge Wachtler was one of the Judges who concurred in Judge Bellacosa’s dissent which criticized the “Court’s declaration of independence . . . from this Court’s own recent noninterpretative constitutional analysis and definitive guidance,” 79 N.Y.2d, at 507 (emphasis added), Judge Wachtler previously had explored the appropriate approach to construing the State Constitution where there are parallel provisions in the State and Federal Constitutions. The Chief Judge, writing for a unanimous court in People v. Alvarez, 70 N.Y.2d 375 (1987),32 said: [I]n People v. P. J. Video (supra) we did not stop our inquiry with an interpretive analysis. We recognize that regardless of whether there exists a Federal constitutional provision parallel to a State provision, we must undertake a “noninterpretive” analysis, proceeding from “a judicial perception of sound policy, justice and fundamental fairness.” [33] Under this analysis relevant considerations include whether the right at issue has historically been afforded greater protection in New York than is presently required under the Federal Constitution, whether the right is “of peculiar State or local concern,” or whether the State citizenry has “distinctive attitudes” toward the right. 70 N.Y.2d, at 378–79 (emphasis added; citations omitted)

IV. Other Criminal Law Issues A. “Egregious” Police Conduct In People v. Isaacson, 44 N.Y.2d 511 (1978), the Court of Appeals reversed a conviction on the grounds that “the police conduct, when tested by [State] due process standards, was so egregious and deprivative as to impose upon [the Court] the obligation to dismiss.” Chief Judge Cooke wrote for the 5–2 majority; Judge Gabrielli wrote for the two dissenters. The Appellate Division had affirmed the conviction having held that the defendant had a predisposition to commit the drug-selling offense, and consequently, the affirmative defense of

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entrapment had not been established. Both the Appellate Division and the dissent in the Court of Appeals condemned police conduct as reprehensible, as did the Isaacson majority. However, in view of the police conduct, the Isaacson majority considered the defendant’s predisposition irrelevant. Except for the question of the defendant’s predisposition, there was basic agreement on the facts. A witness at defendant’s trial, who was previously arrested on drug charges and brutalized by the police, agreed at that point to assist the State Police as an informant, even though the police deceived him by not revealing that the charges relating to the drug arrest would not stand up in court. Acting as an informant, he telephoned various persons indiscriminately for the purpose of setting up drug sales in which the police would arrest the sellers. One such individual contacted was defendant, a graduate student at Penn State University with no previous arrest record who resided at State College, Pennsylvania, and whom he had known for two years through a mutual friend. Defendant claimed that the informant cried and sobbed on the phone, relating that he was facing 15 years to life in Attica, that his parents had turned him away as had his friends, and that he was looking for ways to make money to hire a decent lawyer. Initially, defendant refused to arrange a sale of drugs, but after seven persistent phone calls, defendant finally agreed to supply the informant with two ounces of cocaine. Defendant lacked access to someone who could supply him with the cocaine, but, through his girl friend, a drug user who later became a prosecution witness, was able to locate a supplier. The specifications for the sale were detailed by the State Police to the informant, including the instruction that the transaction must take place in New York, even though defendant feared New York’s drug laws and did not want to enter the State. To cause defendant to sell drugs in the State, the informant kept changing the destination progressively northward towards the Pennsylvania-New York border, at a spot where it would be difficult for defendant to ascertain his exact location. Defendant was arrested during the course of the drug transaction and, following a trial at which defendant raised the defense of entrapment and urged that his due process rights were violated, he was found guilty. 44 N.Y.2d, at 511–12

The Court found that “the fortunately rare, and inexplicable . . . reprehensible police action, including violence and deception, culminating in the further deceitful luring of a Pennsylvania resident into New York solely to make a sale of cocaine” violated the State Constitution’s due process clause. 44 N.Y.2d, at

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514. Although the Court relied on the State Constitution, it cited with approval the ideas expressed in several Supreme Court decisions, including United States v. Russell, 411 U.S. 423, 431–32 (1972) (“[W]e may some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction, cf. Rochin v. California, 342 U.S. 165 [1952]”). Chief Judge Cooke described the concept of due process as not a technical or mathematically precise one, but rather reflecting protection of basic and immutable liberties, taking into account time and circumstances. He set out factors to be taken into account when dealing with police misconduct is alleged to violate due process. Illustrative of factors to be considered are: (1) whether the police manufactured a crime which otherwise would not likely have occurred, or merely involved themselves in an ongoing criminal activity . . . ; (2) whether the police themselves engaged in criminal or improper conduct repugnant to a sense of justice . . . ; (3) whether the defendant’s reluctance to commit the crime is overcome by appeals to humanitarian instincts such as sympathy or past friendship, by temptation of exorbitant gain, or by persistent solicitation in the face of unwillingness; and (4) whether the record reveals simply a desire to obtain a conviction with no reading that the police motive is to prevent further crime or protect the populace. No one of these submitted factors is in itself determinative but each should be viewed in combination with all pertinent aspects and in the context of proper law enforcement objectives—the prevention of crime and the apprehension of violators, rather than the encouragement of and participation in sheer lawlessness. As a bare minimum, there should be a purposeful eschewal of illegality or egregious foul play. A prosecution conceived in or nurtured by such conduct, as exemplified in these guidelines, so as to cast aside and mock “that fundamental fairness essential to the very concept of justice” should be forbidden under traditional due process principles. 44 N.Y.2d, at 521–22 (citations omitted; emphasis added)

The majority found each of the illustrative factors to be present in Isaacson. As for the dissent’s claim that there was much stronger evidence of defendant’s disposition to commit the offense than the majority allowed, the Chief Judge held that the question need not be decided in view of the police misconduct, which amounted to a violation of due process. The dissent also claimed that the defendant should not be able to rely on the violence and deception inflicted on

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the witness, but the majority rejected this point because the violence and deception had but one purpose—to convict the defendant.

B. People v. Vilardi and Brady Material In People v. Vilardi, 76 N.Y.2d 67 (1990), a four-judge majority rejected the Supreme Court’s test under the Federal Constitution for determining when, under the requirements of Brady v. Maryland, 373 U.S. 83 (1963), the prosecution’s failure to turn over Brady material specifically requested by the defense, constitutes reversible error. Three judges concurred in the result, but refused to subscribe to the rejection of the Supreme Court test. After Brady, the Supreme Court decided United States v. Agurs, 427 U.S. 97 (1976), which established a two-tier test. First, where material is requested, there need be only a reasonable possibility it would have altered the verdict; second, where there is no defense request but only the Brady obligation to disclose the material, it is a constitutional violation when there is reasonable probability it would have altered the verdict. Subsequently, the Supreme Court decided United States v. Bagley, 473 U.S. 667 (1985), which eliminated Agurs’ two-tier test with the consequence that under the Federal Constitution the defendant must show there is reasonable probability the evidence would have altered the verdict, regardless of whether the defendant had requested disclosure of the evidence. Under Bagley, determining whether there was this reasonable probability would take into account all the circumstances including the request, but a request would not serve as a basis for invoking a different standard. Although all seven judges agreed that the failure to disclose evidence in Vilardi constituted reversible error, Judge Kaye rejected Bagley’s elimination of the Agurs two-tier test, whereas Judge Simons argued that there was no reason to adopt a different rule under the State Constitution than the Supreme Court’s Bagley position under the Federal Constitution.34 Judge Kaye employed a noninterpretive approach, in the course of which she examined the Bagley rationale and the New York approach to Brady. She noted that Bagley had relied on the reasoning of Strickland v. Washington, 466 U.S. 668 (1984), which had dealt with ineffective assistance of counsel and had adopted the reasonable probability test. But Judge Kaye argued that the Court of Appeals had not adopted the Strickland test for counsel, citing People v. Rivera, 71 N.Y.2d 105 (1988), and People v. Benn, 68 N.Y.2d 105 (1986). Judge Simons, while agreeing that New York had not adopted Strickland, also claimed that neither had New York rejected it.

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Judge Kaye also argued that New York had been following Agurs, citing People v. Smith, 63 N.Y.2d 41, 67 (1984), a Court of Appeals decision she claimed was premised on Agurs, as well as several lower court cases that demonstrated Agurs “has been understood and cited again and again as the governing standard throughout the State.” 76 N.Y.2d, at 77. She claimed that the “reasonable possibility” test simply and essentially was a reformulation of the “seldom if ever excusable” standard announced in Brady. Moreover, Judge Kaye said that New York had developed its rules concerning turning over evidence and due process independently of the Federal law and she refused to abandon them to “conform to the lesser protections of Bagley.” Judge Simons, exploring the interpretive and noninterpretive approaches to construing the State Constitution, pointed out that the majority’s reasoning is similar to the reasoning that led to the Court of Appeals’ refusal to abandon Aguilar-Spinelli, but he argued it was not justified with respect to Agurs-Bagley. He denied that New York had rules concerning Brady material separate from the Federal rules. He also denied that the Supreme Court had adopted a twotier approach in Agurs, and consequently it could not have abandoned it in Bagley. He concluded that the reasons proffered in Judge Kaye’s noninterpretive rationale were insufficient for New York to refuse to follow the Supreme Court’s application of Brady-Agurs-Bagley view of the Federal due process clause, a clause substantially similar to the New York constitutional provision.

C. Effective Assistance of Counsel Powell v. Alabama, 287 U.S. 45 (1932), held that under the due process clause of the Fourteenth Amendment a defendant had the right to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668 (1984), established a presumption of effective representation and to overcome that “a defendant must demonstrate that (1) the attorney’s performance was deficient, and (2) but for counsel’s unprofessional errors, there is a ‘reasonable probability’ that the outcome of the proceedings would have been different. . . . The United States Supreme Court has held that the ‘touchstone’ of the second prong of the analysis is whether counsel’s performance rendered the proceeding fundamentally unfair or left an unreliable result. . . .”35 People v. Henry, 95 N.Y.2d 563, 566 (2000) (emphasis added). New York’s standard for determining whether defendant’s counsel was effective or ineffective differed from the Federal Strickland standards. The significant difference between the Federal Strickland and the New York approaches is that

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the Federal approach focuses on the causal connection between the attorney’s conduct and the result of the proceeding, i.e., there is a “reasonable probability” that the outcome of the proceedings would have been different, while the New York approach focuses on the more “flexible” inquiry as to whether defendant received “meaningful representation.” People v. Benevento, 91 N.Y.2d 708, 712 (1998). New York’s approach, adopted prior to Strickland, was described in Benevento: The question is whether the attorney’s conduct constituted “‘egregious and prejudicial’” error such that defendant did not receive a fair trial (People v. Flores, 84 N.Y.2d 184, 188-189 . . . see also, People v. Hobot, 84 N.Y.2d 1021, 1022 . . . [test is whether counsel’s errors “seriously compromise a defendant’s right to a fair trial”]; People v. Jones, 30 A.D.2d 1038, 1039 . . . [counsel’s errors were “so prejudicial to the defendant” that they deprived him of a “fair trial”], affd. 25 N.Y.2d 637 . . . ). Stated another way, a court must examine whether counsel’s acts or omissions “prejudice[d] the defense or defendant’s right to a fair trial” (People v. Hobot, 84 N.Y.2d 1021, 1024 . . . ; see also, People v. Bennett, 29 N.Y.2d 462, 464 . . . [question is whether “the representation of a defendant by his assigned lawyer was so inadequate and ineffective as to deprive him of a fair trial”]; People v. Aiken, 45 N.Y.2d 394, 401, . . . [“basic issue” is “whether a defendant’s counsel, appointed or retained, failed to provide effective legal representation, thereby depriving the defendant of a fair trial”] ). While the inquiry focuses on the quality of the representation provided to the accused, the claim of ineffectiveness is ultimately concerned with the fairness of the process as a whole rather than its particular impact on the outcome of the case. 91 N.Y.2d, at 713–14 (emphasis added)

In Henry, supra, the Court of Appeals rejected the invitation to adopt the Strickland standard as more precise than New York’s long-employed “meaningful representation” standard and described the New York standard as follows: So long as the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided “meaningful representation,” a defendant’s constitutional right to the effective assistance of counsel will have been met. . . . “[M]eaningful representation” [has been clarified] to include a prejudice on the outcome of the case component which focuses on the “fairness of the process as a whole

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rather than [any] particular impact. [citing Benevento]. No further clarification of the standard is required. People v. Henry, supra, at 566 (citations omitted)

For additional consideration of ineffective assistance of counsel, see discussion of People v. Claudio, 83 N.Y.2d 76 (1993) [Claudio II] in chapter 17, Criminal Law.

D. Increased Sentence on Retrial for Same Offense In North Carolina v. Pearce, 395 U.S. 711 (1969), the Supreme Court held that the Federal due process clause is violated when a defendant is retried after a reversed conviction and receives a more severe sentence than he had received on the original conviction. However, there were circumstances when a more severe sentence would not be unconstitutional. Thus, “where the subsequent sentencer acted on ‘events subsequent to the first trial’ . . . provided that ‘whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding.’” . . . (emphasis added). The holding has been interpreted as creating a rebuttable presumptive of invalidity where the same judge does the subsequent sentencing. People v. Van Pelt, 76 N.Y.2d 156, 159–60 (1990) (citations omitted). Thereafter, courts had to determine what circumstances rebut this presumption of invalidity. One rationale of the Pearce rule was to serve as a prophylactic measure with respect to institutional vindictiveness against the successful appellant. New York had occasion to apply Pearce in People v. Miller, 65 N.Y.2d 502, cert denied 474 U.S. 951 (1985), and concluded that an enhanced sentence could be imposed on a retrial when the defendant successfully appealed his original conviction for rape, which had been based on a guilty plea and sentence under a plea bargain. The defendant elected to go to trial after the reversal, and he was convicted by a jury. The trial court imposed a longer sentence than he received on his guilty plea, and Miller held that the presumption established by Pearce had been rebutted. The enhanced sentence did not represent institutional vindictiveness, because the original sentence was based on the plea bargain, which was designed to relieve the rape victim from the burden of testifying, and by going to trial and compelling her to testify the defendant had lost the benefit of the sentence under the plea bargain.

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The Supreme Court next held that where a judge set aside the verdict after the jury had imposed the first sentence, and the judge who set aside the verdict imposed an enhanced sentence after a retrial, Pearce had not been violated. Texas v. McCullough, 475 U.S. 134 (1986). McCullough reasoned that there had been no increased sentence, because there were two different sentencers. People v. Van Pelt, 76 N.Y.2d 156 (1990), addressed the Pearce question in the context of two sentencers when, after a reversed conviction, defendant was retried and convicted and received an increased sentence on the second conviction, and the first and second sentences had been imposed by different judges. Judge Bellacosa, writing for a unanimous Court, found that regardless of whether the Federal Constitution had been violated, the enhanced second sentence violated the State Constitution. Miller, supra, decided by the Court of Appeals, and the Supreme Court’s McCullough case each involved two sentencers. Judge Bellacosa distinguished Miller, finding that it upheld the enhanced sentence on the plea bargain factor discussed above. As for McCullough, Judge Bellacosa decided that even if it could be read as eliminating the Pearce presumption of invalidity when two sentencers are involved, New York was not bound by McCullough as a matter of State constitutional law. Van Pelt did not reflect an articulated basis for increasing the sentence on the retrial—a different sentencer was an insufficient basis on which to rebut the presumption of invalidity, and the fact that the robbery victims in Van Pelt had to testify again did not bring it within the rationale of Van Pelt, there having been no plea bargain that supported the first sentence. The first sentence was imposed on the defendant without any quid pro quo arrangement as in Miller. That of necessity the victim had to testify again under these circumstances cannot be sufficient to overcome the Pearce presumption, because that common fact would swallow the rule itself if given plenary and undistinguished acceptance and application. Finally, defendant did nothing different in this respect compared to the first trial cycle, except that he successfully pursued his appeal rights. The consequence of the victim having to testify a second time cannot be attributed to defendant in this case, as it was in Miller. Here, it happened because of the errors of the trial court in the first case. 76 N.Y.2d, at 162

Judge Bellacosa concluded that the State policy reflected in statutes and prior Court of Appeals cases concerning review of sentences and convictions would be undermined by holding the fact that there were different sentencers

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constituted a sufficient rebuttal of the Pearce presumption of invalidity. He argued that it is not so insurmountable a burden to require the second sentencer to articulate facts of record to justify an enhanced sentence in order to avoid the consequences of institutional vindictiveness that the requirement should be ignored; moreover, a contrary view might discourage meritorious appeals for fear that a second trial could involve a second sentencer. Consequently, under State constitutional law, the fact there were two sentencers, standing alone, was insufficient to rebut the presumption of invalidity of an enhanced second sentence.

V. Noncriminal Cases: The Issue of State Action The issue of State action has presented further opportunities for the State and Federal courts to differ on constitutional questions. First, there is the question of whether a constitutional violation must rest on State action. While the language of the Fourteenth Amendment is directed explicitly at action by a State, not all of the State Constitution’s counterpart provisions of the Federal Bill of Rights are explicitly directed against government action; consequently, the Court of Appeals has had to decide whether “State action” is a necessary element of a violation of those State provisions. Second, even if it is determined that state action is a necessary element, what constitutes State action also must be decided, and Federal and State decisions can differ. These questions were addressed in Sharrock v. Dell Buick-Cadillac, 45 N.Y.2d 152 (1978), SHAD Alliance v. Smith Haven Mall, 66 N.Y.2d 496 (1985), and Svendsen v. Smith’s Moving and Trucking Company, 54 N.Y.2d 865 (1981).

A. The State Due Process Clause and State Action 1. SHARROCK V. DELL BUICK-CADILLAC

In Sharrock v. Dell Buick-Cadillac, 45 N.Y.2d 152 (1978), a 4–3 majority36 held that certain sections of the New York Lien Law, “insofar as they empower a garageman to [enforce a possessory lien by] conduct[ing] an ex parte sale of a bailed automobile, fail to comport with traditional notions of procedural due process embodied in the State Constitution, as they deprive the owner of the vehicle of a significant property interest without providing any opportunity to be heard.” 45 N.Y.2d, at 156. The majority decided that State action was a necessary element of a violation of the State’s due process clause and also identified factors to be considered in determining whether State action is present.

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In Flagg Bros. v. Brooks, 436 U.S. 149 (1978), the Supreme Court, dealing with a different warehouseman’s possessory lien under the Uniform Commercial Code, rejected the argument that a private sale for enforcing a lien constituted State action for the purposes of the Fourteenth Amendment, the Supreme Court having found a “total absence of overt official involvement.” 436 U.S., at 157. The Sharrock majority conceded that the similarities between the statutes before it and the Flagg Bros. statutes might have required the Court to find there was no State action under the Federal Constitution, but it clearly refused to decide the Federal constitutional question.37 Instead, the Sharrock majority addressed only the due process clause of the State Constitution. Article 1, § 6, of the State Constitution guarantees that “[n]o person shall be deprived of life, liberty or property without due process of law.” The State due process provision does not explicitly require State action as does the Federal Constitution; nevertheless, both the Sharrock majority and dissent agreed that State action was required for a violation of the State Constitution’s due process clause. They disagreed on whether there was State action in Sharrock. However, as the Court had in other cases, the majority recognized that the meaning of the State Constitution was not bound to the Supreme Court’s interpretation of the Federal Constitution and found for purposes of due process that there was State action under Article 1, § 6, whether or not it constituted State action under the Fourth Amendment. Chief Judge Cooke declared: “This independent construction finds its genesis [in two factors:] specifically in the unique language of the due process clause of the New York Constitution as well as the long history of due process protections afforded the citizens of this State and, more generally, in fundamental principles of federalism.” 45 N.Y.2d, at 159–60.38 As for the State Constitution’s “unique language,” the majority reasoned that the absence of specific reference to State action permitted a greater flexibility in applying the “state involvement” requirement for State action than the Supreme Court’s current Fourteenth Amendment position. As for the historical differences between the two due process clauses, the Court emphasized that, on the one hand, before the adoption of the Fourteenth Amendment, which is concerned with establishing uniform minimum standards of liberty against government action throughout the nation, the Federal Constitution was concerned primarily with the structure of government and limiting the powers of the national government. While, on the other hand, the State’s provision had: long safeguarded any threat to individual liberties, irrespective of from what quarter that peril arose. Thus, as early as 1843, Justice Bronson, in speaking of

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the due process clause of our State Constitution, noted: “The meaning of the section then seems to be, that no member of the state shall be disfranchised, or deprived of any of his rights and privileges, unless the matter be adjudged against him upon trial and according to the course of the common law. It must be ascertained judicially that he has forfeited his privileges, or that some one else has a superior title to the property he possesses, before either of them can be taken from him” (Taylor v. Porter, 4 Hill 140, 146; see, also, Wynehamer v. People, 13 N.Y. 378, 394 [1856]). 25 N.Y.2d, at 160–61 (emphasis added)

In Sharrock, the Court detailed the extent of the Lien Law provisions governing nonjudicial foreclosure and concluded “that New York has so entwined itself into the debtor-creditor relationship as to constitute sufficient and meaningful State participation which triggers the protections afforded by “the State’s due process clause. It was not the common law right to a possessory lien that was the subject of challenge, but rather the non-judicial foreclosure that was being attacked,” and the Court reasoned that for “State action purposes, there is a fundamental distinction between a statute which, in regulating previously lawful conduct [i.e., the possessory lien] does nothing more than merely acknowledge its lawfulness . . . and one which authorizes otherwise impermissible or unconstitutional conduct [the nonjudicial foreclosure, as does New York’s Lien Law].” 45 N.Y.2d at 161. In addition, the Court characterized the statutory provisions authorizing the nonjudicial foreclosure as endowing the garageman with the powers of the sovereign normally reserved to the State, i.e., the power to determine disputes usually reserved to the State and, like a sheriff, the power to make final dispositions of the property. The majority opinion summarized factors to be taken into account in determining whether State action is involved: Despite its outward simplicity as a concept, State action is in fact an elusive principle, one which cannot be easily discerned by resort to ritualistic incantations or precise formalisms. . . . Instead, a number of factors must be considered in determining whether a State is significantly involved in statutorily authorized private conduct. These factors include: the source of authority for the private action; whether the State is so entwined with the regulation of the private conduct as to constitute State activity; whether there is meaningful State participation in the activity; and whether there has been a delegation of what has traditionally been a State function to a private person. . . . As the test

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is not simply State involvement, but rather significant State involvement, satisfaction of one of these criteria may not necessarily be determinative to a finding of State action. 25 N.Y.2d, at 158 (emphasis added; citations omitted) 2. SVENDSEN V. SMITH’S MOVING AND TRUCKING COMPANY

In Svendsen v. Smith’s Moving and Trucking Company, 54 N.Y.2d 865 (1981), the Court of Appeals held that the warehouseman’s enforcement of a possessory lien under New York’s Uniform Commercial Code provision was unconstitutional. Sharrock had dealt with the garageman’s lien; the provision in Svendsen was the same provision that the Supreme Court had upheld in Flagg Bros, supra, under the Federal Constitution. Although the garageman’s lien provisions had been subsequently amended in order to meet Sharrock’s State constitutional objections, the Court of Appeals found that the warehouseman’s lien had not been amended, and following its reasoning in Sharrock, it too was held unconstitutional under the State Constitution’s due process clause. Judge Jasen concurred in Svendsen, citing stare decisis and Sharrock.

B. State Action: New York’s Freedom of Expression Provision In SHAD Alliance v. Smith Haven Mall, 66 N.Y.2d 496 (1985), the Court held that Article 1, § 8 of the State Constitution, which guarantees freedom of expression and, like the State’s due process clause, contains no explicit State action requirement, nevertheless provides protection against State action and not private conduct. The Court applied the standards set out in Sharrock and found there was no significant government action involved in a shopping mall owner’s blanket ban of leaflet distribution on its premises. SHAD involved opposing claims based on property rights under the due process clause and the freedom of expression clause when Smith Haven Mall imposed a blanket prohibition on the distribution of leaflets on mall property, and Shad Alliance sought to distribute leaflets opposing nuclear energy. Shad claimed that the restriction violated its rights under Article 1, § 8 of the State Constitution, which guarantees freedom of expression, and like the State’s due process clause contains no explicit State action requirement. Smith Haven claimed that its restriction did not involve State action; moreover, to compel it to permit the leaflet distribution would violate its property rights under the Federal and State constitution. Shad contended that, with respect to the State constitutional guarantees of freedom of expression, there neither exists nor should

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exist a requirement of State action that would permit private conduct, such as the shopping mall ban, to limit its constitutional exercise of freedom of expression. Judge Titone, writing for a majority consisting of Judges Simons, Kaye, and Alexander, held that a shopping mall owner’s blanket ban on the distribution of leaflets on mall property did not violate the State Constitution’s Article 1, § 8, guarantees of freedom of expression because of the absence of significant government involvement. The Supreme Court had reached the same conclusion under the Federal Constitution’s First and Fourteenth Amendments because of the absence of the State action required by the Fourteenth Amendment. Hudgens v. NLRB, 424 U.S. 507 (1976); Lloyd Corp. v. Tanner, 407 U.S. 551 (1972), although “[t]he Supreme Court ha[d] acknowledged that, in certain circumstances, a State may recognize broader free speech rights as a matter of State law without offending any Federally guaranteed rights enjoyed by the property owner (PruneYard Shopping Center v. Robins, 447 U.S. 74).” 66 N.Y.2d, at 500, n. 3. Judge Jasen, in a separate opinion, concurred in the result, and Chief Judge Wachtler wrote a dissenting opinion in which Judge Meyer concurred. Judge Titone reviewed the history of Article 1, § 8, as well as how other states dealt with their constitutional free expression guarantees. He concluded that the New York provision fell under the general principle that “[a] State Constitution is a document defining and limiting the powers of State government, not a blueprint for the judiciary to turn what it perceives to be ‘desirable’ social policies into law.” While agreeing with the dissenters that the Court should be willing to interpret the Constitution in the light of changing conditions, he disagreed that it should dispense with the State-action requirement because of changing circumstances. Indeed, according to Judge Titone, to do so would cast the Court in the role of the legislature and demonstrably express a disrespect for the separation of powers. He cautioned that there “is a profound difference, however, between interpreting constitutional provisions and dispensing with constitutional requirements. In circumstances such as these, where State action has historically been a component of the constitutional inquiry, the principled ‘modern’ approach would not dispense with the requirement, but rather would question how it is appropriately defined given the novel context.” 66 N.Y.2d., at 504. To determine whether Smith Haven Mall’s conduct constituted State action, Judge Titone turned to the standards announced in Sharrock, supra. He rejected any similarity between the Smith Haven Mall and the “‘company town’ in Marsh v. Alabama (326 U.S. 501, 502), which consisted of ‘residential buildings, streets, a system of sewers, a sewage disposal plant and a ‘business block.’ The Mall is closed to the public after business hours and the owner does not perform ‘the full spectrum of municipal powers’ or ‘[stand] in the shoes of the

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State.’ (Lloyd Corp. v. Tanner, 407 U.S. 551, 569).” 66 N.Y.2d at 506, note 7. He concluded that there was no real involvement of the State in Smith Haven’s ban on leafletting nor was the Mall the equivalent of a municipality.39 Judge Wachtler’s dissenting opinion disagreed with Judge Titone’s review of the history of Article 1, § 8, contending that there was no basis for concluding that, except for that part of the provision dealing with legislation concerning libel, there was a total absence of evidence that Article 1, § 8 was directed against State or other government action and not private conduct. Thus, based on the differences in the language of the First and Fourteenth Amendments and Article 1, § 8, and the history and traditions of the State, the Court should have taken into account the vast size of Smith Haven Mall, the contemporary role of shopping malls as places where people in the community congregate, and the fact that in the case at bar other forms of expression—meetings, conferences, and the like—were permitted in the mall. He reviewed the historical function of such places as sites for public forums and the necessity of such places as an inexpensive means of communicating ideas and as making the rights of freedom of expression a reality and not an abstraction. The majority dwells on the requirement of State action under article I, § 8, and on the absence of the traditional indicia of State action set forth in the context of equal protection and due process claims. However, because the Mall, though privately owned, has, through its size, nature of use and broad invitation to the public, become the functional equivalent of a traditional public forum, and because a complete denial of access will have a significant adverse effect on the dissemination of ideas in the community, any requirement of State action under article I, § 8 has been satisfied, and the Mall should not be able to ban the distribution of leaflets on its premises. The mall owner, of course, would be entitled to adopt time, place and manner restrictions on the leafletting designed to prevent any interference with the commercial functions of the Mall [citing PruneYard Shopping Center v. Robins, 447 U.S. 74, inter alia] . . . Our State Constitution is an innovative document. It was intended to ensure that rights and privileges granted in the past would be preserved in the future under changing conditions. In the past, those who had ideas they wished to communicate to the public had the unquestioned right to disseminate those ideas in the open marketplace. Now that the marketplace has a roof over it, and is called a mall, we should not abridge that right. 66 N.Y.2d, at 514–15 (citations omitted)

9. Motion Picture Censorship

I. Motion Picture Censorship in Context: An Overview It is almost a commonplace to describe as “tolerant” and as “fostering freedom” the New York Court of Appeals’ treatment of freedom of speech, of the press, of religion, and of assembly and to characterize those rights as broader under the New York State Constitution than under the Federal Constitution. People ex rel. Arcara v. Cloud Books, Inc., 68 N.Y.2d 553, 557 (1986); People v. P.J. Video, 68 N.Y.2d 296, 308–9 (1986); Town of Islip v. Caviglia, 73 N.Y.2d 544, 556 (1989); also see, Judith S. Kaye, “Dual Constitutionalism in Practice and Principle,” 61 St. Johns L. Rev. 399, 412 (1987). As accurate as this perception may have been when the statements were made, the road to this more “tolerant” approach to First Amendment–related rights was not without substantial detours. Indeed, there were times when the New York Court of Appeals viewed those rights as having a narrow scope. The Court’s treatment of motion picture licensing and censorship is instructive on how the Court dealt with constitutional problems presented by a new medium of communication. In 1921, the New York Legislature enacted a motion picture censorship statute. Chapter 715 of the Laws of 1921 created the Motion Picture Commission of the State of New York. Upon submission of a film to the Commission, it was required to issue a license “unless such film or a part thereof is obscene, indecent, immoral, inhuman, sacrilegious or is of such a character that its exhibition would tend to corrupt morals or incite to crime.” Without the license, the

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film could not be exhibited. In the 1950s and 1960s, the meaning and constitutionality of the New York movie censorship provisions were the focus of a deeply divided New York Court of Appeals whose decisions provided the occasion for landmark decisions by the United States Supreme Court. Pathé Exchange Inc. v. Cobb, 236 N.Y. 539 (1923), affirming 202 AD 450 (1922), the first Court of Appeals decision to deal with the licensing provisions, affirmed unanimously (Judge Cardozo was absent) and without opinion a unanimous Third Department decision that sustained the constitutionality of the 1921 statute against a challenge by a producer of newsreels. Unanimity might have represented harmony in the New York courts when deciding Pathé Exchange Inc. However, sharp disagreement on the Court of Appeals was the hallmark of the decisions on motion picture censorship when, twenty-eight years later, the Court revisited the subject in Joseph Burstyn, Inc. v. Wilson, 303 N.Y. 242 (1951), reversed, 343 U.S. 495 (1952), and disagreement continued in the cases that followed. Today, it is difficult to imagine the conditions that impelled legislative and judicial acceptance and often a spirited defense of motion picture censorship when Pathé Exchange was decided and during the following four decades. An awareness of the context and background in which censorship was enacted and sustained on judicial review is important for an understanding of Pathé Exchange Inc. and the Court of Appeals cases that followed. First, there was strong public demand and support for censorship. Second, the views of motion picture censorship held by the New York State Legislature and the Court of Appeals, at least when censorship was first adopted, were similar to those in other parts of the nation. Third, a trilogy of 1915 United States Supreme Court cases reasonably could be read as supporting the constitutionality of movie censorship.

A. Motion Picture Content and Demand for Censorship Early motion picture films were silent and their themes were “either melodramatic, with a sentimental regard for the victory of the poor and virtuous, or quite risqué. In the first stage of laissez-faire pictures, roughly 1900–1917, almost any vulgarity passed . . .” The audiences were usually fed extravagant spectacles with a definite sex emphasis. . . . The court testimony of innumerable juvenile delinquents shows that the youngsters were often inspired to depart from the straight path by watching a Hollywood badman at work. Apparently, they had been less impressed by the reit-

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erated moral conclusion that crime does not pay. The level of presentation was seldom above the fourteen-year-old level . . . Harvey Wish, Society and Thought in Modern America, vol. II (New York Longmans, Green, 1952), at 291

It also has been suggested that Pathé, a French enterprise (Pathé-Frères), presented some special problems. Pathé, which had had tremendous success against its rivals, Edison, Biograph, and Vitagraph, in a “rapidly expanding market” was assisted by a turn-of the-century vogue for French cultural exports and the diversity and quality of its films. . . . [A]s the nickelodeon craze swept the country, it ignited calls for new legislation and debates about the moral dangers that certain subjects might pose to women and children. “Vulgar” or “low” entertainments, also associated with the French, were increasingly under attack. Book Review, Richard Abel, The Red Rooster Scare, Making Cinema American, 1900–1910, Times Literary Supplement, April 30, 1999, at page 36

In 1927, Warner Brothers presented The Jazz Singer, the first serious alltalking picture. Soon, however, the “depression drove away about a third of the usual motion picture audiences.” In the fight for audiences in shrinking markets in the United States and in Europe, social issues, if addressed at all, were addressed in an “innocuous” way. Consequently, “Europeans as well as Americans came to see celluloid as a land of lust, violence, divorce, lightheadedness, and life at the penthouse,” and “‘Talkies’ intensified the qualities of illusion for the motion picture . . .” (Wish, at 522–23). From the outset, the constant expression of concern about the influence of motion pictures on children was the most common and perhaps the most influential single factor relied on by those who favored censorship and regulation of motion pictures. “Parents often complained of the sophisticated ideas to which their children were exposed; sociologists protested the false moral standards which encouraged delinquence” (Wish, at 523).

B. State and Local Censorship and Regulation Out of concerns about immoral influences in general and adverse effects on children in particular, both private citizens and governments made efforts to censor motion pictures. Several states had censorship or licensing statutes even before New York enacted its statute in 1921: Pennsylvania, Ohio, and Kansas, in

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1913; and Maryland, in 1916. Other states followed: Florida, in 1921; Virginia, in 1922; Connecticut, in 1925; and Louisiana, in 1935. Moreover, the absence of a state statute did not mean that there was no movie censorship in the state. As many as ninety local authorities undertook their own censorship schemes, and even where there was a state administered censorship system, it was not uncommon for local authorities to have their own licensing and censorship procedures. By the mid-1960s, there still were fifty or more local censorship boards, some active, some not. See Zachariah Chafee, Jr., Free Speech in the United States (Cambridge: Harvard University Press, 1942), at 540–47, 580–85; Richard S. Randall, Censorship of the Movies (Madison, University of Wisconsin Press, 1968), at 11, 77–80. Although support for censorship was widespread, acceptance was not universal. In 1923, New York Governor Alfred E. Smith sought, albeit unsuccessfully, to persuade the New York Legislature to repeal New York’s motion picture licensing statute. Congress rejected President Coolidge’s proposal for a national censor. In 1912, New York City Mayor Gaynor vetoed a proposed ordinance that would have given the Board of Education the power to censor “every screen in New York City.” A lower court found the Florida statute to be unconstitutional under the state constitution, Connecticut repealed its statute in 1927, and, in 1922, Massachusetts voters defeated a referendum proposal to adopt censorship. See Volume III, Revised Record of the Constitutional Convention of the State of New York (1938), 2474; Chafee, at 548, 574–597, passim. The subjects of censorship varied. “[I]n 1913, the [Cleveland, Ohio] censors reported that they had cut approximately 10 per cent of the reels they had seen for such things as scanty costumes, details of a jail break, portrayal of police graft, prize fights, and scenes devoted to crime” (Wish, at 291). In New York City, “the Children’s Society of New York brought about the arraignment of a theatre manager because his establishment was allegedly packed with youngsters watching The Great Thaw Trial . . . [and] the mayor of New York tried to close all nickelodeons as immoral places of amusement” (Randall, at 11). (The trial had concerned the 1906 murder of architect Stanford White by Harry K. Thaw, whose wife the architect had seduced. Thaw was found not guilty by reason of insanity.) Local authorities employed a variety of tools aimed at suppressing or controlling motion pictures. One common method was licensing theaters and charging heavy license fees, often directed at discouraging theaters from opening at all. However, as the motion picture industry prospered, high license fees proved not to be a barrier (Randall, at 11, 122–27). By 1917, “the motion picture industry had become a mighty national business with fabulously expensive stars and equipment,” and by the 1920s. “there were an estimated 50,000 admissions paid each week; some attended 2 or 3 times a week” (Wish, at 291, 456).

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The first government-administered “pre-exhibition” censorship system was instituted in Chicago in 1907. It was administered by the police who were charged with the “inspection and licensing of all films to be shown in the city.” In the same year, a privately established and administered censorship system was instituted in New York. A group of “‘public-spirited citizens’ formed the National Board of Censorship (later to be called the National Board of Review) to preview and evaluate films before release to the public.” Later, the Legion of Decency was organized to boycott pictures they considered immoral and to encourage more suitable themes, and Hollywood itself established an internal censorship office to meet public criticism (Randall, at 11–12; Wish, at 523). Local government regulation was instituted in New York, even before the establishment of the state’s Motion Picture Commission in 1921. In 1917, the Commissioner of Licenses of the City of New York threatened to revoke a theater’s license if it exhibited a film about Margaret Sanger that dealt with birth control and the effect of having large families on those living in poverty and squalor. The Commissioner claimed the film was “detrimental to the war effort, ridiculed public officials and that by virtue of its subject matter, birth control and the problems of the poor,” exhibition of the film would be contrary to morality, decency, and public welfare. The First Department set aside a restraining order against the Commissioner and sustained broad discretionary authority in the Commissioner to require a license for the showing of motion pictures in a theater. Message Photo-Play Co., Inc. v. Bell, 179 A.D. 13 (1st Dept. 1917), reversing 100 Misc. 267 (Sup. N.Y. 1917). In addition, the courts determined that the local ordinance lodged practically unlimited discretion in the Mayor of the City of New York to grant or deny licenses to “common shows,” which was interpreted to include motion picture theaters. See, e.g., People ex rel. Moses v. Gaynor, 77 Misc. 576 (Sup. N.Y. 1912), aff’d, 160 A.D. 881 (1st Dept. 1913), and McKenzie v. McClellan, 62 Misc. 342 (Sup. N.Y. 1909). Other methods of control included limitations on who could attend motion picture exhibitions and when motion pictures could be exhibited. See, People v. Van Brink, 219 N.Y. 603 (1916), affirming a conviction for admitting a child under 16 to a moving picture performance in violation of N.Y. Penal Law § 484 and People v. Bender, 174 A.D. 517 (3d Dept. 1916), holding that exhibition of motion pictures violated the Sabbath laws.

C. The 1915 United States Supreme Court Mutual Film Cases The United States Supreme Court first dealt with motion picture censorship when Mutual Film Corporation, a film distributor, challenged the Ohio and Kansas censorship statutes in the Federal courts. Mutual Film Corporation v.

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Industrial Commission of Ohio, 236 U.S. 230 (1915) (sometimes referred to herein as the “Ohio” case) and Mutual Film Corporation of Missouri v. George Hodges, 236 U.S. 248 (1915) (sometimes referred to herein as the “Kansas” case). A third case, Mutual Film Corporation v. Industrial Commission of Ohio, 236 U.S. 247 (1915), decided at the same time as the other two Mutual Film cases, did not bear directly on the First Amendment-related constitutional issues. When the Supreme Court decided the Mutual Film cases, Gitlow v. New York, 268 U.S. 652 (1925), in which the Court assumed, but did not hold, that the Fourteenth Amendment protected freedom of speech and the press from state action, and Near v. Minnesota ex rel. Olson, 283 U.S. 697 (1931), condemning state-imposed prior restraints on the press as violations of the First and Fourteenth Amendments, two of the Supreme Court’s leading state First Amendment–related cases, had not yet been decided. For Federal court jurisdiction, Mutual Film relied on Federal question and diversity of citizenship jurisdiction. As to Federal question jurisdiction, Mutual Film claimed that the state statutes violated the Federal Constitution’s commerce clause and the First and Fourteenth Amendments. There were also diversity-of-citizenship causes of action. First, Mutual Film claimed that the state statutes violated their respective state constitutional guarantees of freedom of expression, and second, that the statutes violated State Constitution separation of powers requirements because the statutes delegated legislative power to the censorship agencies without providing adequate standards. The Court rejected the Federal commerce clause claim and the contention that, under the state constitutions, there had been an unlawful delegation of power to the board of censors. In rejecting the contention that the delegation of legislative power to the board of censors was unlawful because the standards were too vague or general, the Court appeared to be more concerned with not unduly hindering denials of licenses than with the free speech-related interest. This aspect took on important implications for New York, because many of the terms in the Ohio and Kansas statutes were similar to those in the statutes subsequently adopted in New York. In the Ohio case, the plaintiff’s First and Fourteenth Amendment claims were rejected practically out-of-hand by the Federal district court, and Mutual abandoned those issues in the Supreme Court. It is unclear whether the First and Fourteenth Amendment contentions were still before the Supreme Court in the Kansas case. If they were, the Court merely referred to them but did not discuss them, and disposed of them simply by referring to the Ohio case where, as previously noted, the Federal constitutional claims had been abandoned. In both the Ohio and the Kansas cases, the plaintiff lost on the Federal constitutional

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issues, but the Court retained jurisdiction to decide the state constitutional questions under the aegis of the diversity-of-citizenship jurisdiction. In the material that follows reference to Mutual Film is to the Ohio case, Mutual Film Corporation v. Industrial Commission of Ohio, 236 U.S. 230 (1915), because that opinion’s discussion of the censorship issues is the one referred to, relied on, and quoted extensively in subsequent cases, including New York opinions. The Ohio statute required a determination by the censoring agency that the film had merit and was not harmful as a condition for issuing a license. The statute provided that “only such films as are, in the judgment and discretion of the board of censors, of a moral, educational, or amusing and harmless character shall be passed and approved by such board.” Unlike the Ohio statute, the 1921 New York statute did not require the state agency to find that the film had merit as a condition for issuing a permit to have it shown; it only had the power to deny a permit in the event it found that the film was harmful in the respects described in the statute. The Supreme Court’s conclusions in the Ohio case concerning the guarantee of freedom of expression and motion picture censorship addressed several questions. Perhaps the most important point was the Court’s rejection of the argument which “[sought] to bring motion pictures and other spectacle into practical and legal similitude to a free press and liberty of opinion.” The Court responded that “[t]he judicial sense supporting the common sense of the country is against the contention” (id., at 244, emphasis added). Subsequently, this language was quoted in Pathé Exchange v. Cobb, 202 A.D. 450, at 457. The Court distinguished motion pictures from other forms of communication and found the potential for “evil” was such that pre-exhibition regulation was reasonable. The Court conceded that motion pictures may have “many useful purposes as graphic expressions of opinion and sentiments, as exponents of policies, as teachers of science and history, as [something that is] useful, interesting, amusing, educational, and moral. . . .” Nevertheless, the Supreme Court, despite those possible good qualities, noted that motion pictures “may be used for evil, and [it was] against . . . [the] possibility [that film may be used for evil] that the statute was enacted.” The Court described the potential evils of motion pictures: Their power of amusement, and, it may be, education, the audiences they assemble, not of women alone nor of men alone, but together, not of adults only, but of children, make them the more insidious in corruption by a pretense of worthy purpose or if they should degenerate from worthy purpose. Indeed, we may go beyond that possibility. They take their attraction from the general interest, eager

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and wholesome it may be, in their subjects, but a prurient interest may be excited and appealed to. Besides, there are some things which should not have pictorial representation in public places and to all audiences. And not only the state of Ohio, but other states, have considered it to be in the interest of the public morals and welfare to supervise moving picture exhibitions. We would have to shut our eyes to the facts of the world to regard the precaution unreasonable or the legislation to effect it a mere wanton interference with personal liberty. .... [Although Mutual Film conceded that there may be an “evil” employment of motion pictures, Mutual Film . . . insists], that as no law may be passed “to restrain the liberty of speech or of the press,” no law may be passed to subject moving pictures to censorship before their exhibition. 236 U.S., at 241–242 (emphasis added)

The Supreme Court refused to find that motion pictures were like the press. Instead, the Court held that motion pictures did not have the same constitutional protections enjoyed by speech and the press. 236 U.S., at 242. In sum, Mutual Film, construing the Ohio Constitution, concluded that motion pictures were not equivalent to the press or speech or other forms of protected communication. This conclusion was buttressed by characterizing motion pictures essentially as entertainment, as a “spectacle” or “show,” and the conditions under which this type of entertainment was exhibited were such that, it was reasonable to regulate it by requiring a license to exhibit every film and, in appropriate circumstances, by preventing the public from viewing undesirable films, i.e., by pre-exhibition censorship. Even though the Mutual Film cases dealt with the Ohio and Kansas constitutions, their conclusions and rationales, particularly in the Ohio case, came to be treated by the New York Court of Appeals as the Supreme Court’s view of the First and Fourteenth Amendment as well as an authoritative and principled approach to construing the New York State Constitution on the issue of motion picture censorship.

D. The New York Statutes: Pathé Exchange Inc. Pathé Exchange Inc. v. Cobb, 236 N.Y. 539 (1923), affirming without opinion, 202 AD 450 (3d Dept. 1922), rejected constitutional challenges to New York’s motion picture licensing provisions by a producer of newsreels. Inasmuch as the Court of Appeals affirmed without opinion, it is to the Appellate Division opin-

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ion we must turn for the reasons for sustaining the constitutionality of the statute under both the Federal and New York State Constitutions. The only cases Pathé Exchange cited on the censorship issues were the three Mutual Film cases with particular reliance on the Ohio case. Noting that the Ohio constitutional provision was similar to Article 1, section 8, of the New York Constitution and subscribing to the concerns about the dangers of motion pictures elucidated in the Supreme Court’s Mutual Film opinion, the Court found that pre-exhibition censorship of motion pictures was constitutional. Moreover, the Appellate Division said that Pathé Exchange would lose “on principle,” even if Mutual Film was not the authority for sustaining the constitutionality of the New York statute. 202 A.D. 450, at 455–57. On the issue of censorship of motion pictures generally, Pathé Exchange echoed Mutual Film’s refusal to assimilate motion pictures to the print press and subscribed to its concerns about the vulnerability of children, and added illiterates to those susceptible to the dangers from motion pictures. Also following the lead of Mutual Film, Pathé Exchange characterized a motion picture as a “show or spectacle,” not to be equated with newspapers for constitutional purposes. Pathé Exchange, a newsreel producer, claimed that newsreels were different from motion pictures generally and argued that they should receive the same protection as current events reported in newspapers. The Court rejected the proffered distinction, stating, even the newsreel “is a spectacle or show, rather than a medium of opinion, . . . [T]he latter quality is a mere incident to the former quality.” Moreover, there was the concern about the vulnerability of children and susceptible illiterates. . . . The newspaper offers no particular attraction to the child, and much that is contained in it that might be harmful to the child is not understood by it for lack of literacy or imagination. But the moving picture attracts the attention so lacking with books, or even newspapers, particularly insofar as children and the illiterate are concerned, and carries its own interpretation. It needs no other illumination than the bright light behind the film, which moves so rapidly that it reproduces the life of the world as it in fact exists, and as it is portrayed in fiction, the evil as well as the good. . . . The child soon becomes sophisticated, as he attends this school of experience, where current events may be revealed in all their nakedness . . . where character may be shaped most readily the one way or the other, according to the sentiments conveyed. . . . Nothing is left to the imagination, as with the printed page. The

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picture creates its own atmosphere so vividly, so attractively, that even the child and the illiterate adult may see and learn. 202 A.D., at 456

The commercial character and consequent business motives of the motion picture industry, according to Pathé Exchange, also presented a danger and another reason for distinguishing newsreels from the print media. The “show” business is clearly different from the newspaper business, and those who engage in the show business are none too likely to confine their productions to the things which are just, pure and of good report; but in order to continue to attract patrons, many would cast discretion and self-control to the winds, without restraint, social or moral. . . . They appreciate the business advantage of depicting the evil and voluptuous thing, with poisonous charm. . . . Certainly there are some things which are happening in actual life today which should not have pictorial representation in such places of public amusement as are regulated by this legislation, places where the audiences are not confined to men alone, or women alone, and where children are particularly attracted. 202 A.D., at 457

II. Censorship Statutes in New York after Pathé Exchange The original 1921 licensing statute that was the subject of Pathé Exchange had distinguished newsreels from other motion pictures in that it permitted but did not require the Motion Picture Commission to issue newsreels a “permit . . . without [prior] inspection” (L. 1921, ch. 715). Three years after Pathé Exchange, the legislature further distinguished newsreels from other motion pictures by providing that “newsreels,” as a matter of right, could be “exhibited without inspection by the commission” and without a permit or payment of a fee (L. 1926, ch. 304). Administration of motion picture censorship also was changed shortly after the decision in Pathé Exchange. Another 1926 statute abolished the original 1921 Motion Picture Commission and replaced it with the Motion Picture Division of the State Education Department, which was charged with licensing and censorship duties and with authority to issue licenses and permits pursuant to the amended 1921 law (L. 1926, ch. 544). A 1927 amendment (L. 1927,

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ch.153) repealed the 1921 law and detailed the powers and duties of the Motion Picture Division. The procedure and the substantive basis for issuing or denying a license remained essentially the same under the 1927 law as under the original 1921 law. Unless the “film, or a part thereof,” submitted for examination was “obscene, indecent, immoral, inhuman, sacrilegious, or is of such a character that its exhibition would tend to corrupt morals or incite to crime,” issuance of a license was required. The significance of the words, “or a part thereof,” was that a license could be denied if a scene or even a lesser portion of the film fell under the prohibitory language, even though the theme of the film as a whole was acceptable. The licensing provisions also created three categories of motion pictures: those that required a license; those that required a permit; and those that required neither license nor permit. (1.) Newsreels and those reporting current events, like those in Pathé Exchange, could be exhibited without a permit or a license, but exhibitors and others could be held accountable after the films were exhibited if the films were in violation of the law. (2.) Scientific and educational films required a permit (not a license), and the permit was to be issued without a prior inspection of the film. (3.) All other films could not be exhibited without a license issued after preexhibition examination and the payment of fees.

Until the 1950s, other than Pathé Exchange, in New York there was practically no judicial consideration of the constitutionality of the licensing provisions. Judicial decisions generally were limited to considerations of administration of the licensing provisions in cases where the constitutional questions do not appear to have been raised. Denials of licenses consistently were sustained. See, e.g., Public Welfare Pictures Corporation v. Lord, 224 A.D. 311 (3d Dept. 1928) (sustaining denial of license for Naked Truth, graphic portrayals of “the dangers and results of association with lewd women”); Eureka Productions v. Byrne, 252 A.D. 355 (3d Dept. 1937) appeal denied, 276 N.Y.2d 688 (1938) (sustaining denial of license for Ecstasy on grounds it was “indecent,” “immoral” and that “it would tend to corrupt morals” in that it “unduly emphasizes the carnal side of sex”). Although the Appellate Division decisions generally were unanimous, dissents to those sustaining denials of licenses began to appear. For example, in Matter of Foy Productions, Ltd. v. Graves, 253 A.D. 475 (3d Dept. 1938), aff’d

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278 N.Y. 498 (1938) (per curiam, without opinion), the Court sustained the denial of a license for Tomorrow’s Children, a film that dealt with sterilization, on the grounds it was “indecent,” “immoral,” and that “it would tend to corrupt morals” in that almost every announcement and speaking part “interpret and elucidate sterilization as a means and method of contraception and birth control, or tend to that end.” The vigorous dissent in the Appellate Division contested the majority’s construction of the term “immoral” in the statute, but the dissent did not address the constitutionality of the statute. In addition, there was increased judicial scrutiny of local licensing of theaters. For example, while the Court conceded that under city ordinances the Commissioner of Licenses of the City of New York had discretion to refuse to issue a license for a motion picture theater based upon concerns about public safety, to wit, traffic, the Commissioner did not have discretion to deny a license “because, in the opinion of the Commissioner, a theater at that location would impair the general welfare.” Small v. Moss, 279 N.Y. 288, 298 (1938), and Matter of Goelet v. Moss, 248 A.D. 499 (1st Dept. 1936), aff ’d 273 N.Y. 503 (1937). In 1940, the Court of Appeals, per curiam and without opinion, affirmed a 3–2 Appellate Division decision sustaining the board’s denial of a license to exhibit the film, The Birth of a Baby, on the grounds that the film was “indecent,” “immoral” and would “tend to corrupt morals.” American Committee on Maternal Welfare v. Mangan, 283 N.Y. 551 (1940), affirming 257 AD 570 (3d dept. 1939). The Board had been willing to issue an educational exhibition permit but refused to issue a license for general exhibition. The Appellate Division dissenters argued against denial of the license on a subject they stated was useful to persons who needed the information and dealt with the subject and provided advice in a clean, dignified, and reverent manner. As with the other postPathé Exchange cases discussed above, the decision turned on a construction of the statute and none of the opinions discussed constitutional issues. Criminal prosecution was another method of controlling exhibition of films, in addition to pre-exhibition licensing and censorship and licensing theaters. The Education Department had issued a license for The Outlaw, a film featuring Jane Russell and produced by Howard Hughes. Despite the license, criminal prosecution was threatened by the New York City license commissioner and the city police commissioner who claimed that the film was “obscene, indecent, and immoral” under the applicable Penal Law provisions. Hughes sought a declaratory judgment and injunction against the threatened prosecution, claiming that the issuance of the license by the Education Department barred the threatened subsequent criminal prosecution. The Court of Appeals agreed with the lower courts that the issuance of a license would not immunize the exhibitor from criminal prosecution on the grounds

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the film was “obscene, indecent and immoral.” Hughes Tool Company v. Fielding, 297 N.Y. 1024 (1948), affirming without opinion, 272 A.D. 1048 (1st Dept. 1947), affirming without opinion, 188 Misc. 947 (1947). This left a state-licensed motion picture potentially open to prosecution in every locality whose view as to what constitutes an obscene film was different from the view of the board that had issued the license. In 1950, the legislature amended the Penal Law to prohibit prosecution, on the ground of obscenity, of a film licensed under the Education Law. (L. 1950, ch. 624).

III. The 1938 New York State Constitutional Convention There was an attempt to deal with motion picture censorship in the 1938 New York State Constitutional Convention. (See Volume III, Revised Record of the Constitutional Convention of the State of New York [1938], at 2473–77.) The futility of the attempt can be seen as part and parcel of only a slight concern about the constitutionality of New York’s licensing provisions evidenced in the judicial opinions referred to thus far, and it undoubtedly reflected the vigor of the support for and the weakness of the opposition to prior restraints on the exhibition of motion pictures. The Poletti Report, charged with presenting information to aid the Convention’s deliberations, noted that while the Legislature had respected the New York tradition of maintaining the stage free from prior restraint and direct censorship, motion pictures were not accorded the same treatment. In its summary of reasons for licensing motion pictures, the Report included only those stated in Pathé Exchange. (See Report of the Subcommittee on Bill of Rights and General Welfare of the New York State Constitutional Convention Committee [1938], at 176–177.) The first sentence of Article 1, section 8, of the New York State Constitution reads: Every citizen may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press.

In the 1938 Convention, Mr. Henry Hirschberg introduced a proposal (Int. No. 71) to add the following to that sentence: or the liberty of the cinema, motion or talking pictures, the drama, radio or any writings or medium for the dissemination of ideas, nor shall there be any

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censorship in advance of publication, but nothing herein contained shall prevent civil or criminal prosecution for any abuse of the rights herein. Revised Record, Volume I, at 74, 219

The proposal, by a 9–1 vote, was not even reported out of the Bill of Rights Committee to which it was referred. Hirschberg cast the only vote for reporting the proposal to the convention. Moreover, no one appeared before or wrote to the committee in support of the proposal. “[C]ommunications had been received from representatives of parent-teachers associations, the New York State School Board, also the State Board of Regents, the State Education Department, Associated Principals, New York State Teachers’ Association, the Chamber of Commerce of Rochester, and others,” but it was not claimed that those organizations opposed the amendment; rather, it was noted that they were silent on the subject (Revised Record, Volume III, at 2476–77). The overwhelming defeat of Hirschberg’s motion to report the proposal out of committee to the full convention might have reflected general public and political leadership support for censorship or fear of opposing censorship or even indifference. Probably all three factors were at play and could explain the paucity of constitutional challenges and the consequent absence of intensive judicial treatment of the subject. The vote was 18 ayes and 62 noes (Revised Record, Volume III, at 2477). Several reasons for the 9–1 committee vote were offered by Clarence R. Runals, the leading spokesman in opposition to reporting the proposed amendment. According to Runals, the basic reason, of course, was that “the proposed amendment would take from the Legislature the power to exercise any supervision or control over the exhibition of motion pictures.” It would render unconstitutional the 1927 enactment and remove the state’s power to refuse to license a film that in whole or in part “is obscene, indecent, immoral, inhuman, sacrilegious or is of such a character that its exhibition would tend to corrupt morals, or to incite to crime” (Revised Record, Volume III, at 2476–77). Runals also reported that no one had appeared before the committee to criticize the administration of the law and claimed that no need or abuse had been shown that required correction or that would “justify tying the hands of the legislature on this subject. . . .” Indeed, he noted that no person except Hirschberg, its sponsor, had appeared before or had written a letter to the committee in support of the proposal. Moreover, Runals urged that there was popular support for a system of controlling motion pictures, as evidenced by the successful voluntary crusade by citizens, led by the League of Decency, to exert economic pressure on the motion picture industry to change the “vulgar” and “indecent” fare the industry was purveying (Revised Record, Volume III, at 2476–77).

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Hirschberg was persistent in support of the proposed amendment despite the obvious impatience of the chair and despite what he understood would be a futile plea that the convention be permitted to consider the proposed amendment (Revised Record, Volume III, at 2473–76, passim). While confessing that he had no delusions that he would be able to convince the Convention as a whole, just as he had failed to convince the Bill of Rights Committee, he offered the following prediction and justification for his insistent support of the amendment: . . . the time is coming when the same liberty will be accorded to those mediums as the press now enjoys, and someone from time to time in order that ultimate aim be accomplished must agitate for and keep alive the spirit opposed to the un-American doctrine of censorship. Revised Record, Volume III, at 2474

IV. From Burstyn to Trans-Lux: The Court of Appeals, Movie Censorship, and the United States Supreme Court The Court of Appeals treated motion pictures as a communication medium that was not entitled to the constitutional protections enjoyed by the press, even after several other states had abandoned similar positions. Until 1965, a majority of the Court persisted in this position despite a series of Supreme Court decisions that consistently and continually undermined the likelihood that New York’s censorship scheme could be sustained under the Federal Constitution. Moreover, during this period Court of Appeals opinions did not consider the censorship issues under the State Constitution separate and apart from Federal constitutional considerations. This is particularly striking in view of the later development of the so-called New Judicial Federalism (See, Judith S. Kaye, “Dual Constitutionalism in Practice and Principle,” 61 St. Johns L. Rev. 399 [1987]). The deep division in the Court of Appeals concerning motion picture censorship in the middle of the twentieth century reflected the uncertainty about the possibility that this new and potentially powerful communication medium could be responsible for adverse effects on the society at large and the uncertainty about how and whether government properly could respond to those effects. The concerns addressed and the language employed time and time again in those opinions hearkened back to the earlier Mutual Film and Pathé Exchange cases and should have a ring familiar to those conversant with contemporary debates about the dangers posed by television and the Internet.

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The fight in the Court of Appeals can be said to have begun with Joseph Burstyn, Inc. v. Wilson, 303 N.Y. 242 (1951), reversed, 343 U.S. 495 (1952), and ended in 1965, with Trans-Lux Distributing Corp. v. Board of Regents of the University of the State of New York, 16 N.Y.2d 710, after the United States Supreme Court reversed the Court of Appeals decision sustaining the constitutionality of motion picture licensing, 380 U.S. 259 (1965), reversing 14 N.Y.2d 488 (1964). In a series of cases in which both sides on the censorship issues were tenacious in their positions, the Court of Appeals had sustained the constitutionality of the licensing statute practically phrase by phrase. The United States Supreme Court, in turn, had reversed each decision.

A. “Sacrilegious” as a Ground for Denial It will be recalled that under the statute a license could be denied if a film was found to be “obscene, indecent, immoral, inhuman, sacrilegious, or is of such a character that its exhibition would tend to corrupt morals or incite to crime.” One by one, most of these terms became the subject of Court of Appeals attention in the 1950s and 1960s. In Burstyn, the Board of Regents had revoked a license it had previously issued for The Miracle on the grounds that the film was “sacrilegious,” and, in a 5–2 decision, the Court upheld the license revocation. Judge Froessel, with Chief Judge Loughran and Judges Lewis and Conway concurring, wrote the opinion for the Court. Judge Desmond concurred in a separate opinion. Judge Fuld dissented in an opinion concurred in by Judge Dye. Judge Froessel’s opinion affirmed the State Legislature’s power to authorize licensing of motion pictures, sustained the Board’s power to revoke a license, and also held that “sacrilegious” was not an indefinite standard, so that to employ it as a standard did not violate constitutional rights of freedom of religion. In upholding the power of the Board to revoke a license, Judge Froessel reiterated and endorsed the Mutual Film and Pathé Exhange characterization of motion picture production as a business and as a potential for “evil.” These qualities provided the context for the Court’s broad construction of the licensing provisions and its holding that the Board had the right to revoke a license. In short, a power to revoke a license mistakenly issued was necessary to protect the public. Judge Fuld disagreed, on the basis of his view of the statutory pattern and legislative history and influenced by his serious doubts about the continuing vitality of Mutual Film and Pathé Exhange. As for the claim that the censorship law violated the First and Fourteenth Amendments as prior restraints on protected speech, Judge Froessel concluded

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that the Mutual Film cases and Pathé Exchange had directly settled that motion picture licensing and censorship were not constitutionally prohibited by the First and Fourteenth Amendments because a film was “spectacle” or “entertainment” and not to be treated like the press. Moreover, “technical developments which increase the force of impact of motion pictures simply render the problem more acute. It does not avail to argue that there is now greater ability of transmission, when it is precisely that ability which multiplies the dangers already inherent in the particular form of expression.” 303 N.Y. 242, at 260–61. Judge Fuld, dissenting, called the New York licensing system “censorship in its baldest form.” He contended that the “early” Mutual Film decision, “urged as establishing that motion pictures are beyond the First Amendment’s coverage[,] no longer has the force or authority claimed for it.” 303 N.Y. 242, at 267–68. As for “sacrilegious,” Judge Froessel concluded that it was not unconstitutionally indefinite or vague as a standard for administrative action. This part of the opinion is of interest not only because of its bearing on the movie censorship issue, but because of the technique of statutory interpretation employed as well. After referring to a dictionary definition and to several cases, Judge Froessel concluded that “the claim that the word ‘sacrilegious’ does not provide a sufficiently definite standard may be passed without further consideration, since it is without substance” (emphasis supplied). 303 N.Y. 242, at 256. According to Judge Froessel, “The dictionary furnishe[d] a clear definition [of sacrilegious}, were it necessary to seek one, e.g., ‘the act of violating or profaning anything sacred’ (Funk and Wagnall’s New Standard Dictionary [1937 ed.]).” Based on the word “profaning” in the dictionary definition, the opinion proceeds to characterize “sacrilegious” as synonymous with “profane” and asserts that the courts have had no problem with either word. 303 N.Y. 242, at 255. To demonstrate that courts had no problem with either word, the opinion cited Mutual Film Corporation of Missouri v. Hodges, 236 U.S. 248 (1915), one of the three Mutual Film cases discussed above. In that case, the United States Supreme Court had denied that the Kansas movie censorship provision was an unconstitutional delegation of legislative power under the Kansas constitution. The Kansas provision contained the term “sacrilege,” but none of the Mutual Film cases discussed or considered a challenge specifically directed to that term. Having equated the terms “sacrilegious” and “profane,” the Court cited cases that dealt with the word, “profane,” but not with “sacrilegious.” None dealt with “profaning” religion; they dealt with “profane” in the context of obscenity and vulgarity. The cases cited were Winters v. New York, 333 U.S. 507, 510,

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(“publications are ‘subject to control if they are lewd, indecent, obscene or profane’”) and Chaplinsky v. New Hampshire, 315 U.S. 568 (no constitutional protection for “certain well-defined and narrowly limited classes of speech. . . . These included the lewd and obscene, and the profane”). Judge Froessel also noted that Congress had “found the word ‘profane’ a useful standard for both administrative and criminal sanctions against those uttering profane language or meaning by means of radio.” 303 N.Y., at 256. Having concluded that “sacrilegious” constituted a sufficiently definite standard, the Court addressed its role in reviewing the decision to revoke the license as very limited. The Court could “not interfere unless the determination made was one that no reasonable mind could reach,” citing Matter of Foy Productions, Ltd. v. Graves, 253 A.D. 475 (3d Dept.), aff’d 278 N.Y. 498 (1938) (per curiam, without opinion). 303 N.Y., at 256. In reviewing the Board’s decision that The Miracle was sacrilegious, the Court refused to consider the opinions of others about the film, characterizing them as “unsworn communications expressing personal opinions [that] are of little help to the [court].” Instead, Judge Froessel wrote the entire Court viewed the film in question and saw “the principal basis for the charge of sacrilege [as] found in the picture itself, the personalities involved, the use of scriptural passages as a background for the portrayal of the characters, and their actions, together with other portions of the script and the title of the film itself.” 303 N.Y., at 256. Judge Froessel described The Miracle as a film in which no miracle is shown. It was a depiction of a demented peasant girl seduced by a stranger she calls “St. Joseph” who abandons her. Sexual intercourse is suggested by a “blackout” in the film. The girl becomes pregnant, there is a mock religious procession, and she is thrown out by her former lover. The film was judged by the Board as encroaching on the sacred relationship between Christ and Mary and Joseph and associating it with drunkenness and with sexual passion and gratification as a way of love. 303 N.Y., at 257. The Court refused to interfere with the Board’s determination that the film was sacrilegious. In affirming the revocation of the license, Judge Froessel used language from Mutual Film and Pathé Exchange about motion pictures and the First Amendment, and concluded: A public showing of an obscene, indecent, immoral or sacrilegious film may do incalculable harm, and the State, in making provision against the threat of such harm, Education Law, s.122, may afford protection as broad as the danger presented.” 303 N.Y., at 251

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Declaring that “we are essentially a religious nation,” Judge Froessel concluded that it was appropriate for the state to protect the public from motion pictures that would attack this core national value. Doing so did not infringe on rights of speech and religion guaranteed by the First Amendment. 303 N.Y., at 258–60. Judge Desmond, in his separate concurring opinion affirming the Board’s decision, agreed that the Board had the authority to revoke a license, that “sacrilegious” was a sufficiently definite standard, and that it was not unreasonable to conclude that The Miracle was sacrilegious. However, he also said, “Motion pictures are, it would seem, not excluded from First Amendment coverage,” citing United States v. Paramount Pictures, Inc., 334 U.S. 131, 166, a Sherman Antitrust Act case that contained dicta to that effect (303 N.Y., at 262–64), although Judge Froessel’s opinion explicitly rejected Paramount Pictures as in any way affecting the authority of Mutual Film and Pathé Exchange. Id., at 261. As noted, Judge Fuld would have held the entire censorship statute unconstitutional as a prior restraint on rights protected by the First Amendment and as an infringement of freedom of religion. He also argued that the term “sacrilegious” was unconstitutionally vague. Any possible doubt that the term is essentially vague is dispelled by a reference to the variant and inconsistent definitions ascribed to it by the board of regents and by the Appellate Division and Judge FROESSEL. Thus, the regents, frowning upon the dictionary definition as “technical,” nevertheless assure us that “everyone knows what is meant by this term” and, by way of demonstrating that fact, proceed to define the word as describing a film which “affronts a large segment of the population”; offends the sensibilities by ridiculing and burlesquing anything “held sacred by the adherents of a particular religious faith”; is “offensive to the religious sensibilities of any element of society.” Indeed, any semblance of either general meaning or specific content is, I suggest, abandoned by the regents themselves when they assert that, since “anything is only sacrilegious to those persons who hold the concept sacred,” the opinions of nonbelievers are “worthless.” By such reasoning, the adherents of a particular dogma become the only judges as to whether that dogma has been offended! And, if that is so, it is impossible to fathom how any governmental agency such as the board of regents, composed as it is of laymen of different faiths, could possibly discharge the function of determining whether a particular film is “sacrilegious.” Judge FROESSEL and the Appellate Division state that the statutory proscription against the “sacrilegious” is intended to bar any “visual caricature of religious beliefs held sacred by one sect or another.” . . . Though Judge

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FROESSEL also defines “sacrilegious” in terms of “attacking” or “insulting” religious beliefs or treating them with “contempt, mockery, scorn and ridicule” all words of ephemeral and indefinite content the basic criterion appears to be whether the film treats a religious theme in such a manner as to offend the religious beliefs of any group of persons. If the film does have that effect, and it is “offered as a form of entertainment,” it apparently falls within the statutory ban regardless of the sincerity and good faith of the producer of the film, no matter how temperate the treatment of the theme, and no matter how unlikely a public disturbance or breach of the peace. The drastic nature of such a ban is highlighted by the fact that the film in question makes no direct attack on, or criticism of, any religious dogma or principle, and it is not claimed to be obscene, scurrilous, intemperate or abusive. Nor is there any evidence of any malicious purpose or intention on the part of the producers of the film to revile or even attack Catholic doctrine or dogma, and no suggestion of any reasonable likelihood of a breach of the peace resulting from the film’s exhibition.[Footnote omitted] So broad, indeed, is the suggested criterion of “sacrilege” that it might be applied to any fair and temperate treatment of a psychological, ethical, moral or social theme with religious overtones which some group or other might find offensive to its “religious beliefs.” 303 N.Y., at 271–72 (footnote omitted)

As for characterizing the film as sacrilegious, Judge Fuld noted that one writer, associated with the University of Notre Dame, writing in The Commonweal said that, “while some critics have questioned its dramatic validity and others, the director’s taste in his choice of theme, ‘No serious or responsible critic . . . has questioned the sincerity or honesty’ of the director’s ‘intention in making the film, an intention abundantly moral.’” 303 N.Y., at 272, note 3. Apparently responding to the majority’s refusal to consider the submissions containing opinions of others, Judge Fuld said: It may lend perspective to recall that we are here concerned with a motion picture that has passed the rigid scrutiny of a numerous array of critics of undenied religiousness. There is, of course, no suggestion that “The Miracle” is a product of heathen hands. The story was written by a Roman Catholic and the picture produced, directed and acted solely by Roman Catholics. It was filmed in Italy, and first exhibited in Rome, where religious censorship exists. There, the Vatican Newspaper, L’Osservatore Romano, in reviewing it, alluded to the story and weighed the artistry of the production without condemning the moving picture or even intimating that there was any impropri-

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ety in its being viewed by Catholics. . . . And thereafter the film passed the United States Customs with no objection registered against it. In 1949 and again in 1950, successive directors of the motion picture division of the State Education Department licensed the film for state-wide exhibition. It won the approval of the National Board of Review of Motion Pictures. It drew general acclaim from the press and was designated, as part of a trilogy, the best foreign language film of 1950 by the New York Film Critics, an association of critics of the major metropolitan newspapers. Finally, one important Roman Catholic publication, after deploring “these highly arbitrary invocations of a police censorship [that] must ultimately result . . . in great harm to the cause of religion as well as art,” noted that the film “is not obviously blasphemous or obscene, either in its intention or execution” . . . and all Protestant clergymen who expressed themselves publicly—and they constituted a large number representing various sects—found nothing in the film either irreverent or irreligious. 303 N.Y., at 264 (citations omitted, emphasis in original)

However, according to Judge Fuld, the license was revoked when the “contrary opinion also found strong voice, eventually reaching the board of regents.” 303 N.Y. 242, at 265. Indeed, the Appellate Division, in sustaining the license revocation, said: “The text and content of the picture itself, together with the complaints received, constituted substantial evidence upon which the Regents could act.” 278 A.D. 253, 260 (3d Dept. 1951) (emphasis added). The United States Supreme Court reversed the New York Court of Appeals in Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952), and declared motion pictures to be within the free speech and press guarantees of the First Amendment. However, unlike other forms of protected expression, the Court did not say that pre-exhibition restraints are categorically prohibited by the First and Fourteenth Amendments. The Court said: To hold that liberty of expression by means of motion pictures is guaranteed by the First and Fourteenth Amendments, however, is not the end of our problem. It does not follow that the Constitution requires absolute freedom to exhibit every motion picture of every kind at all times and all places. That much is evident from the series of decisions of this Court with respect to other media of communication of ideas. Nor does it follow that motion pictures are necessarily subject to the precise rules governing any other particular method of expression. Each method tends to present its own peculiar problems. But the basic principles of freedom of speech and the press, like the First Amendment’s command, do not vary. Those principles, as they have frequently been

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enunciated by this Court, make freedom of expression the rule. There is no justification in this case for making an exception to that rule. 343 U.S., at 502–3

The Court also found the term “sacrilegious” to be unconstitutionally vague and indefinite. In substance, the Court subscribed to Judge Fuld’s criticism of “sacrilegious” as too indefinite to serve as a standard for administrative action. Justice Clark said: New York’s highest court says there is “nothing mysterious” about the statutory provision applied in this case: “It is simply this: that no religion, as that word is understood by the ordinary, reasonable person, shall be treated with contempt, mockery, scorn and ridicule. . . . This is far from the kind of narrow exception to freedom of expression which a state may carve out to satisfy the adverse demands of other interests of society. In seeking to apply the broad and all-inclusive definition of “sacrilegious” given by the New York courts, the censor is set adrift upon a boundless sea amid a myriad of conflicting currents of religious views, with no charts but those provided by the most vocal and powerful orthodoxies. New York cannot vest such unlimited restraining control over motion pictures in a censor. . . . Under such a standard the most careful and tolerant censor would find it virtually impossible to avoid favoring one religion over another, and he would be subject to an inevitable tendency to ban the expression of unpopular sentiments sacred to a religious minority. Application of the “sacrilegious” test, in these or other respects, might raise substantial questions under the First Amendment’s guaranty of separate church and state with freedom of worship for all. However, from the standpoint of freedom of speech and the press, it is enough to point out that the state has no legitimate interest in protecting any or all religions from views distasteful to them which is sufficient to justify prior restraints upon the expression of those views. It is not the business of government in our nation to suppress real or imagined attacks upon a particular religious doctrine, whether they appear in publications, speeches, or motion pictures. 343 U.S., at 504 (citations and footnotes omitted)

Justice Clark also indicated the limits of the Supreme Court’s Burstyn decision: Since the term “sacrilegious” is the sole standard under attack here, it is not necessary for us to decide, for example, whether a state may censor motion

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pictures under a clearly drawn statute designed and applied to prevent the showing of obscene films. That is a very different question from the one now before us. We hold only that under the First and Fourteenth Amendments a state may not ban a film on the basis of a censor’s conclusion that it is “sacrilegious.” 343 U.S., at 506

Although Justice Clark’s view of the decision was reasonable, his statement contributed to the continuing resistance by the Court of Appeals to finding the New York statute to be unconstitutional under the Federal Constitution. In the course of the next thirteen years attacks on the censorship statute accelerated. In Burstyn, Judge Froessel and Judge Fuld sounded themes they and other members of the Court of Appeals would continue to pursue, and sharp differences on the Court of Appeals with respect to the constitutionality of motion picture censorship would become manifest.

B. “Immoral” and “Would Tend to Corrupt Morals” as Grounds for Denial of a License In 1953, the year following the Supreme Court’s decision in Joseph Burstyn, Inc. v. Wilson and after the publication of an article by Judge Desmond defending motion picture censorship,1 the Court of Appeals decided In the Matter of Commercial Pictures Corp. v. Board of Regents of University of State of New York, 305 N.Y. 336, which sustained the Board’s denial of a license to exhibit the French film, La Ronde. The license was denied on the grounds that the motion picture was “immoral” and “would tend to corrupt morals.” In a 4–2 decision, the Court sustained the Board’s denial of the license. The majority consisted of four of the five judges who had sustained the denial of a license in Burstyn. Chief Judge Loughran, who was part of the Burstyn majority, died after the case was heard, but before the decision was rendered. Judge Froessel wrote an opinion sustaining the Board, an opinion in which Judge Lewis concurred. Judge Desmond wrote his own concurring opinion sustaining the denial. Judge Conway concurred in the opinions of both Judge Froessel and Judge Desmond. Judges Dye and Fuld, the dissenters in Burstyn, also dissented in Commercial Pictures. Judge Fuld joined in Judge Dye’s dissenting opinion and also wrote a separate opinion. As might be expected, the differences between the majority and the dissenting judges began with their differing emphases when describing the film. Judge Froessel described La Ronde as follows:

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The film from beginning to end deals with promiscuity, adultery, fornication and seduction. It portrays ten episodes, with a narrator. Except for the husband and wife episode, each deals with an illicit amorous adventure between two persons, one of the two partners becoming the principal in the next. The first episode begins with a prostitute and a soldier. Since the former’s room is ten minutes walk from their meeting place on the street, and the soldier must hurry back to his barracks, they take advantage of the local environment. She informs him that “civilians” pay, but for “boys like you it’s nothing.” The cycle continues with the soldier and a parlormaid; the parlormaid and her employer’s son; the latter and a young married woman; the married woman and her husband; the husband and a young girl; the girl and a poet; the poet and an actress; the actress and a count, and finally the count and the prostitute. At the very end, the narrator reminds the audience of the author’s thesis: “It is the story of everyone.” 305 N.Y., at 339

The description in Judge Dye’s dissent highlighted reviews by “premier drama critics of eminent publications”: “La Ronde is all of a piece, as any round should be, setting up a mocking harmony of desire and disillusion, vanity, pleasure and deceit. It is never prurient, smirking or pornographic. For all the intimacy of its nuances, the film’s approach is dryly detached and completely charming; it spoofs sex rather than exploits it, much as Britain’s satiric Kind Hearts and Coronets makes sport of murder.” Time Magazine, Oct. 22, 1951. “Here is a lovely motion picture, a gay, a glad, a sad, a sentimental movie . . . about Vienna at the turn of the century, the Vienna of candlelight and carriages, of wine, women and waltzes. . . . All this is told with a combination of irony, candor and gentleness that makes of the whole a total gem of a motion picture. . . . a picture about illicit love, but it is told without prudishness and with a deftness, discretion and understanding that make it more moral than most censor-shackled pictures on the subject.” Daily News, Los Angeles, Sept. 21, 1951. “The players . . . are among the cream of French talent and virtually flawless here.” Los Angeles Times, Sept. 21, 1951. “The . . . players . . . represent the cream of France’s romantic actors.” . . . The Evening Star, Washington, D.C., July 28, 1951.

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. . . a splendid and glittering cast that includes Anton Walbrook, Gerard Philipe, Isa Miranda, Dannielle Darrieux, Daniel Gelin, Simone Simon, Jean-Louis Barrault, Fernand Gravet, and Odette Joveux. . . . their portrayals have that quality of nuance that makes a second viewing almost obligatory. . . . Through the strata of a world-weary Viennese society the story spirals, until we find we have arrived at much the same point from which we have begun. It’s more sad than bitter, more ironic than funny, and there’s some haunting little message underneath it all, though, to be sure, you are never quite told what it is. . . . delicately done and in excellent taste.” Saturday Review of Literature, Nov. 10, 1951. Id., at 359

Although voting to sustain the Board’s denial of a license, Judge Desmond “agree[d] with appellant’s counsel that [the film] ‘has a distinguished cast and a brilliant production . . .’.” Id., at 349. In partial response to Judge Dye’s quotations from those reviews, Judge Froessel pointed out: The author of the original work himself felt that it “might very well be misunderstood and misinterpreted,” and so it was privately published. Even among the favorable reviews submitted by petitioner were such comments as: “The details are concrete enough to make one blush unseen” . . . “With something less than tremulous delicacy, he [the director] and his associate artists, speak quite freely upon the joys and woes of amorous adventure.” Id., at 347

Commercial Pictures made three arguments in its challenge to the denial of the license: (1) censorship of film was unconstitutional; (2) even if licensing or censorship were permissible, the statutory standards for denying a license on the grounds that a film is “immoral” and “would tend to corrupt morals” was unconstitutionally vague and indefinite; and (3) even if the standards were not unconstitutional, they were improperly applied to La Ronde. The four judges in the majority rejected all Commercial Pictures’ contentions. First, the majority held there was no categorical prohibition of state censorship of motion pictures. The opinions by Judge Froessel and Judge Desmond relied on Justice Clark’s statement in Burstyn that even though motion pictures

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are protected by the First and Fourteenth Amendments, it does not “follow that motion pictures are necessarily subject to the precise rules governing any other particular method of expression. Each method tends to present its own peculiar problems.” 353 U.S., at 503. In any event, both opinions treated Pathé Exchange as still good law, and if state censorship of motion pictures was constitutionally prohibited, Judge Desmond wanted to be told so directly by “higher judicial authority.” Id., at 352. According to the majority opinions, the “substantive evil” threatened by motion pictures was a “clear and present danger” to the morals of society and justified pre-exhibition censorship as the only measure that could deal effectively with the “peculiar problems” posed by motion pictures. Judge Froessel analogized the power to censor with the right of the state to require vaccinations, Jacobson v. Commonweatlh of Massachusetts, 197 U.S. 11 (1905), and to require the sterilization of imbeciles, Buck v. Bell, 274 U.S. 200 (1927). If the state could defend against disease and the generational perpetuation of imbecility, he asked, “may it not likewise act to prevent moral corruption, when the consequences thereof affect not only family life, as we know it in this State and country, but the health and welfare of our people as well?” 305 N.Y., at 341. Judge Froessel argued that the danger to society presented by “indiscriminate sexual immorality “should not be thwarted by any doctrinaire approach to the problems of free speech . . . [That P]ander[ing] to base human emotions is a breeding ground for sensuality, depravity, licentiousness and sexual immorality can hardly be doubted . . . [and that] these vices represent a ‘clear and present danger’ to the body social seems manifestly clear.” Id., at 342. Judge Froessel elaborated that there was a danger of “evil social consequences” as a result of the effect on both youth and adults from a “presentation wholly devoted to promiscuity, seductively portrayed in such manner as to invite concupiscence and condone its promiscuous satisfaction.” The danger was magnified by the fact that a “single motion picture may be seen simultaneously in theatres throughout the State.” Moreover, in view of the development of three-dimensional films, “[t]here can be no doubt that attempts will be made to bring the audience right into the bedchamber if it be held that the State is impotent to apply preventive measures.” Id., at 342. Judge Dye’s dissenting opinion argued that although the Supreme Court in Burstyn left the question of the constitutionality of prior censorship of motion pictures to another day, it did hold that motion pictures were not excluded from First Amendment protections. He concluded: “[I]t follows . . . that prior censorship of motion pictures is as to . . . [motion pictures] as it is in other fields of expression, a denial of due process.” 305 N.Y., at 357. The standard applied by the majority did not require a showing that there was an overriding need or a

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clear and present danger, such as a threat to public safety or an “apparent and imminent” threat to overthrow the government, that would justify the use of prior restraint with respect to La Ronde. Consequently, he argued, prior censorship in this case violated due process requirements. Turning to the statutory standards relied by the Board for denying a license, i.e., La Ronde was “immoral” or “would tend to corrupt morals,” both Judge Froessel and Judge Desmond found that those standards were not unconstitutionally vague or indefinite. Among the factors militating in favor of finding the terms “immoral” and “morals” to be constitutionally acceptable was the use of “immoral, or its variants, in numerous other statutes,” such as the immigration statutes that included the term “moral turpitude.” Judge Desmond pointed out that Burstyn dealt only with “sacrilegious” as a standard, and it had not overruled that aspect of Mutual Film Corporation v. Industrial Commission of Ohio, 236 U.S. 230 (1915), that had specifically found “immoral” as a standard for censorship in the Ohio statute to be sufficiently definite to withstand constitutional attack. In addition, according to Judge Froessel, the potential for government abuse of licensing and censorship powers was significantly reduced by lodging administration of the licensing provisions in the hands of State and not local officials, thereby obviating whatever dangers there might be if films were subject to the individual eccentricities of local views of morality. In concluding that “immoral” was a sufficiently definite standard, Judge Desmond endorsed the idea that the “interest to be protected” outweighed “semantics” in any concern about the indefinite character of the terms used for the standard. 305 N.Y., at 351–52. In a similar vein, Judge Froessel, quoting from Beauharnais v. People of State of Illinois, 343 U.S. 250, 253, stated, “In the case now before us, we should not ‘parse the statute as grammarians or treat it as an abstract exercise in lexicography.’” 305 N.Y., at 345. Although they agreed that “immoral” as a standard was not unconstitutionally vague or indefinite, Judge Froessel and Judge Desmond disagreed about what it meant in New York’s motion picture licensing statute. Judge Froessel concluded that the word “immoral” in the statute meant “sexual immorality,” as defined by the common standards of the community. 305 N.Y., at 344–345. This was sufficiently definite, according to Judge Froessel, inasmuch as “[i]t should be remembered that we are not here dealing with a moral concept about which our people widely differ; sexual immorality is condemned throughout the land.” Id., at 347. Judge Desmond concluded that “immoral” in the licensing statute was not limited to, but, of course, included sexual immorality. He argued that although in the statutes cited by Judge Froessel, the word “immoral is limited to sexual

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morals, [s]exual impurity is only one form of immorality” and the meaning of immoral was not so limited in the licensing statute. According to Judge Desmond, “immoral” and “morals” in the licensing statute encompassed “the usual or dictionary meanings . . . and . . . [‘immoral’ and ‘morals’ refer] to the generally accepted civilized code of morals. Its prohibition is of material ‘contra bonos mores.’” 305 N.Y., at 354. In support of his broader definition, Judge Desmond, quoting from Lyon v. Mitchell, 36 N.Y. 235 (1867), wrote: “‘Sound morals, as taught by wise men of antiquity, as confirmed by the precepts of the gospel . . . are unchangeable. They are the same yesterday and today.’” Id., at 354 (emphasis supplied). In their dissenting opinions, Judges Dye and Fuld concluded the statutory standards were so indefinite as to constitute an unconstitutional delegation of legislative power without adequate criteria to guide the Board’s actions. The crux of their concern was that the inadequacy of the statutory language left the meaning of immoral and morals to be developed by the practically unrestrained discretion of administrators. In the absence of an authoritative definition of immoral, divorcing immoral from “obscene” (and it was not claimed that La Ronde was obscene) left the censoring agency to choose from a variety of possible meanings of immoral. Indeed, the very fact that in their respective opinions Judge Froessel and Judge Desmond differed significantly about the meaning of immoral dramatically demonstrated and highlighted the indefiniteness of the term. 305 N.Y., at 361–64, 366–67. Applying the standards to La Ronde, Judge Froessel and Judge Desmond agreed that the film was immoral and would tend to corrupt morals. The film itself is “concerned solely with promiscuous sex relations and [viewers] are told: ‘It is the story of everyone.’ While there is no ‘vulgar pornography’, there is ‘suggestive dialogue and action’ implying that promiscuity constitutes natural and normal relations between the sexes, whether married or not. . . . That a motion picture which panders to base human emotions is a breeding ground for sensuality, depravity, licentiousness and sexual immorality can hardly be doubted . . . [to be immoral and to tend to corrupt morals].” 305 N.Y., at 342. Judge Dye argued that the film presented no danger to any public interest: According to the record, the picture “La Ronde” since its admission through Customs without objection . . . has been exhibited throughout the United States in cities and towns in the States of Arizona, California, Colorado, Connecticut, Delaware, Florida, Kentucky, Louisiana, Maine, Massachusetts, Michigan, Missouri, New Jersey, Oklahoma, Oregon, Texas and Washington, D.C. Nowhere has the showing of “La Ronde” been banned except in New

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York. While experience elsewhere is not binding on the courts in New York, the opinions of qualified critics may be considered. . . . We deem it significant that in the States of Louisiana . . . and Massachusetts, . . . having censorship laws, though to be sure, not as comprehensive as that in New York, the picture has had an unhampered showing as well as in places where municipal codes are in effect such as Detroit, Michigan; Salem, Oregon and Houston, Texas, to mention a few, a circumstance indicating that in a large segment of society the picture is not offensive per se. Such a showing in other States and cities of this country, where prior restraint was available and not invoked, and elsewhere having no such statutes, all without untoward incident or complaint is a convincing testimonial that it is not inimical to the public peace, welfare and safety. 305 N.Y., at 358–359

The dissenters also were critical of treating judicial review of denial of a motion picture license the same as the review of an ordinary administrative agency decision, i.e., the agency decision would not be disturbed if there were any warrant in the record that the decision was reasonable. In essence, when there are so many variant views of the term “immoral,” under this standard, there could not and would not be any effective judicial review at all even though important constitutional rights were at stake. Judge Dye wrote: However correct the [usual approach] might be as a rule of thumb in the review of administrative cases turning on a controverted issue of fact, it is inapplicable in a case involving fundamental civil rights secured by the State and Federal Constitutions for then a determination must be so clear, as the dissenting Judges in the court below observed, “that any conclusion to the contrary would not be entertained by any reasonably mind. It is wholly inconsistent with a constitutional guarantee to leave any debatable issue of morals, involved in any form of protected expression, to the final decision of an administrative agency.” Matter of Commercial Pictures Corp. v. Board of Regents, 280 App.Div. 260, at 265. In such a situation “the reviewing court is bound to re-examine the whole record” in the light of the challenge made, Joseph Burstyn, Inc., v. Wilson, 343 U.S. 495. 305 N.Y., at 356

In a per curiam disposition, without opinion, only citing Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952), the Supreme Court in Matter of Commercial Pictures Corp. v. Board of Regents of University of State of New York, 346 U.S.

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587 (1954), reversed the Court of Appeals. Justice Douglas did write an opinion in which Justice Black concurred. Addressing the “prior restraint” question, Justice Douglas stated: “In this nation every writer, actor, or producer, no matter what medium of expression he may use, should be freed from the censor.” 346 U.S., at 589. Thus, after Burstyn. and Commercial Pictures, the Supreme Court had held “sacrilege,” “morals,” and “immoral” to be unconstitutionally vague as standards for licensing motion pictures and had held that motion pictures were entitled to the protection of the First and Fourteenth Amendments. In 1954, in response to Commercial Pictures Corp., the Legislature enacted a definition of “immoral” and required the denial of a license to motion pictures that are immoral because they portray “acts of sexual immorality . . . as desirable, acceptable or proper patterns of behavior” (L. 1954. ch. 620) (emphasis supplied).

C. “Indecent” as a Ground for Denial of a License: Excelsior Pictures Corp. Matter of Excelsior Pictures Corp. v. Regents of the University of the State of New York, 3 N.Y.2d 237 (1957), affirming 2 A.D.2d 941, a 4–3 decision, was the first case in which the Court of Appeals overturned the denial of a license by the Motion Picture Division. A license to exhibit the film Garden of Eden had been denied on grounds it was “indecent” because of its depiction on the screen of a nudist camp with the players actually in the nude. The four-judge majority consisted of Judges Desmond, Dye, Fuld, and Van Voorhis. Judge Desmond wrote an opinion with which Judges Dye and Fuld concurred in part. Judges Dye and Fuld wrote separate opinions and Judge Van Voorhis concurred with Judge Desmond and with Judge Fuld. The dissenters consisted of Chief Judge Conway and Judges Burke and Froessel. Judge Burke and Chief Judge Conway wrote dissenting opinions. Judge Desmond, after reviewing the New York Court of Appeals and United States Supreme Court cases, concluded that “cumulatively” the Supreme Court cases meant that all grounds in the New York statute for denying a license, with the probable exception of obscenity, are unconstitutional. In Excelsior Pictures the ground for denial was that the film was “indecent,” and Judge Desmond found that “indecent,” standing alone, was too indefinite and vague as a standard. He conceded that in the context of “obscene,” “indecent” might satisfy constitutional requirements, but Garden of Eden was neither “indecent” nor “obscene.” The film also did not fall under § 1141 of the Penal Law’s prohibition of

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“the distribution of obscene, lewd, lascivious, filthy, indecent” pictures, because in the context of § 1141, “indecent” was the equivalent of “obscene.” 3 N.Y.2d, at 243. The board, in finding the film to be “indecent,” relied on Penal Law, § 1140b, the so-called “antinudism law,” which prohibited the willful exposure by persons of the opposite sex of their “private parts” to each other. Judge Desmond pointed out that the provision does not mention nudity, and literally, it could apply to members of a family “unclad” in their own home. “[W]hatever that strange enactment may mean,” Judge Desmond said, “it certainly does not deal with the exhibition of any motion picture.” 3 N.Y.2d, at 245. In any event, even if a publication were subject to criminal sanctions, it does not follow that it could be constitutionally subject to censorship. But let us suppose that section 1140-b makes criminal any and every practice of nudism in New York State. It is still a non sequitur that picturing such activity becomes criminal or “indecent” or that it justifies censorship. To say that representation of criminal activity is criminal is to abolish the drama and the novel in one stroke. Illustrations are unnecessary. Everyone will think of his own. The showing of crimes in book, play or cinema is evil only when it is done in a dirty way or when it glorifies the criminal act. So to characterize “The Garden of Eden” is impossible. 3 N.Y.2d, at 245

Judge Desmond expressed his continued belief in the necessity of censorship and this contributed to his reasons for finding “indecent,” standing alone, to be unconstitutionally indefinite and for annulling the Board’s denial of the license. He was concerned that by overreacting and expanding the scope of censorship beyond reasonable limits, all censorship might be abolished. In only four States of the Union (New York, Kansas, Maryland, Virginia) is censorship of motion pictures still carried on by State agencies. The number has been declining and will decline further unless reason and moderation be employed. . . . Some of us, while proclaiming the necessity for “a viable solution of the problem of censorship by law in a democratic society” have realized that we must “eschew the extremes and shun the extremists.” . . . We have publicly recognized that “obscenity, real, serious, not imagined or puritanically exaggerated, is today as in all the past centuries, a public evil, a public nuisance, a public pollution.” We “see no reason why democratic government should not use democratic processes on a high administrative level,

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under the control of the courts, to suppress such obscenity.” . . . But censorship is a necessary evil, a last resort, to be used only when necessary and limited to the necessity. . . . “Censorship,” once wrote the great American political thinker Alfred E. Smith, “is not in keeping with our ideas of liberty and of freedom . . . of speech.” . . . “The point here, as in most problems, is that a minimum of censorship is far more likely to prove beneficial, rather than an attempted maximum.” . . . In the present case the Board of Regents, doubtless because of a mistaken belief that section 1140-b mandated such action, went far beyond even the permissible maximum of censorship. In the interest of reasonable censorship itself, this unlawful exercise of the censorship power must be overruled by the courts. 3 N.Y.2d, at 246 (emphasis supplied)

In separate opinions, concurred in by Judge Van Voorhis, Judges Dye and Fuld agreed with Judge Desmond’s conclusions that “the showing of the motion picture entitled Garden of Eden may not be barred on the ground that it is obscene and indecent” (3 N.Y.2d, at 246), but they did not believe that the constitutionality of the licensing statute had to be reached. Judge Fuld, in his concurring opinion, said: While I am in wholehearted agreement with [Judge Desmond’s] thought that “obscenity, real, serious, not imagined or puritanically exaggerated, is today as in all the past centuries, a public evil” . . . it does not follow that the proper remedy is suppression at the “administrative level.” The evil, it seems to me, may be adequately dealt with by resort to the courts in the first instance, either by criminal prosecution (Penal Law, s 1141) or by injunctive process. . . . Be that as it may, though, since the court is holding that “The Garden of Eden” is not “indecent” or ‘obscene’ and that, therefore, “there is no legal basis for censorship,” we are not called upon to decide the constitutionality or unconstitutionality of those sections of the Education Law which provide for the licensing of motion pictures by an administrative body. The disposition of that question must be left for decision in a case where the problem is presented. 3 N.Y.2d, at 247–48

In a dissent in which its tone manifested the sensitiveness of the issues in motion picture licensing cases, Judge Burke, with the concurrence of Judges Conway and Froessel, reviewed the history of the so-called antinudity law and concluded that the legislative history demonstrates that nudity in the film

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Garden of Eden, is “indecent” under the licensing statute. He also challenged the claim that “prior restraint” doctrine presents a barrier to licensing except in cases of obscenity.

D. Lady Chatterley’s Lover; “Immoral” as a Ground for Denial, Revisited As previously noted, after Commercial Pictures Corp., a definition of “immoral” was added to the licensing statute that required a license to be denied if the film portrays “acts of sexual immorality . . . as desirable, acceptable or proper patterns of behavior” (L. 1954. ch. 620, emphasis supplied). In Matter of Kingsley International Pictures Corporation v. Regents of the University of the State of New York, 4 N.Y. 2d 349 (1958), reversed 360 U.S. 684 (1959), the new statutory definition of “immoral” was in issue. The Court of Appeals sustained the denial of a license to Lady Chatterley’s Lover, because the film portrayed adultery as proper behavior and contained scenes suggestive of sexual acts, although none were explicitly shown. Judge Conway, with the concurrence of Judges Burke and Froessel, addressed the challenge of vagueness. “The vileness of the matter [the definition of immoral] seeks to reject is clear,” and the film falls within the definition of immoral. “No one will deny that the Regents of New York State, just as members of this court, know what an act of sexual immorality is, and that adultery is such an act.” 4 N.Y.2d, at 355. Moreover, he maintained, the film not only espouses adultery, but also contains “actual scenes of a suggestive and obscene nature.” Id., at 356. Judge Conway also maintained that even without the 1954 amendment, “immoral” was not a vague standard. He also argued that the Supreme Court’s reversal of the Court of Appeals in Commercial Pictures Corp. was not dispositive of the question because the Supreme Court only cited Burstyn as authority, and that case dealt with “sacrilegious” as a standard. Id., at 356. Judge Conway denied that obscenity is the only basis for regulating expression and reiterated many of the same arguments he had made in Commercial Pictures Corp. He would employ a concept of universal and permanent moral standards as a basis for giving content to the terms, morals, and morality, and he argued that the “inherent evil [of sexual immorality is] not at all dependent on the times.” 4 N.Y.2d at 356. He again reviewed the nature and characteristics of and the dangers presented by the motion picture and concluded that licensing was an appropriate protection and remedy to combat those dangers. He expressed a

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more general concern about the clear and present danger to civilized society presented by new methods of mass communications when used to disseminate immoral ideas. Id. at 360–62. Judge Desmond, concurring in the result, expressed concern about the constitutionality of the New York statute under the Federal constitution. He said: Our question is whether New York may constitutionally refuse exhibition to a film because its subject matter is adultery presented as being right and desirable for certain people under certain circumstances. I confess doubt as to the validity of such a statute . . . 4 N.Y.2d, at 369

Judge Desmond also addressed the question of “prior restraint” and recognized it could present a serious obstacle to sustaining the statute. He noted that “[t]he ‘operation and effect’ [quoting the phrase from Near v. Minnesota] of [the statute] in this instance has been to keep from the screen a motion picture the theme of which is adultery, alluringly and approvingly depicted. Until the highest national tribunal says otherwise, we should let our statute so operate.” Id. Judges Dye, Fuld, and Van Voorhis dissented. Judge Dye maintained that the statutory standard is still vague (as did Judges Fuld and Van Voorhis) in that it leaves it to the censor’s personal view that a film is contra bonos mores. In any event, censorship is unconstitutional, and he noted that all but six states have discontinued or do not have movie censorship. 4 N.Y.2d at 372. Judge Fuld also asserted that the film based as it was on so significant a piece of literature cannot be banned under the First Amendment. Id., at 373. In Kingsley International Pictures Corporation v. Regents of the University of the State of New York, 360 U.S. 684 (1959), the Supreme Court reversed the New York Court of Appeals. The Court reasoned that the Court of Appeals had attributed to the Legislature a prohibition that goes to the core of the First Amendment—the advocacy of unpopular or unconventional ideas with no claim of clear and present danger that unlawful conduct will follow. This was so clearly beyond the state’s power to restrict that the Supreme Court saw no need to discuss the question of prior restraint or licensing. While sacrilege, indecent and immoral, as a practical matter, had been eliminated as constitutional grounds for denial of a motion picture license, licensing, as such, had not been found unconstitutional. The only remaining significant basis for pre-exhibition censorship was that a film was “obscene.” The reported cases indicated an increased judicial willingness to examine board determinations of “obscenity.” For the second and third time, in 1962 and

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1965, denials of licenses were overturned when the Court, in two memorandum decisions, affirmed Appellate Division decisions annulling the Board’s denials of licenses on the grounds that the films were “obscene.” In Matter of The Connection Company v. Regents of the University of the State of New York, 12 N.Y.2d 779, affirming without opinion 17 A.D.2d 671 (1962), the Court of Appeals unanimously affirmed the Appellate Division’s decision to annul the Regents’ determination to deny a license for the moving picture The Connection. The Connection dealt with narcotics traffic, and in the narcotics world the word “shit” was used to refer to drugs. The board, because the word “shit” was used in the film, refused to issue a license on the ground of “obscenity,” even though most of the time the word was used to refer to narcotics. In overturning the board’s decision, the Appellate Division held that although the offending word “might be classified” as vulgar, it was not obscene under the licensing statute. Matter of Metzger v. Couper, 15 N.Y.2d 802 (1965), affirmed without opinion an Appellate Division decision, 21 A.D.2d 920 (1964), to overturn the Board’s denial of a license to Twilight Girls. The Appellate Division, in a short unanimous per curiam opinion, stated without elaboration that the parts of the motion picture “[which involved lesbianism and nudity], directed by the Board of Regents to be eliminated as ‘obscene’, in our opinion do not constitute an appeal to prurient interest in violation of the statute [Citing Excelsior Pictures Corp., 3 N.Y.2d at 242, and Kingsley Pictures Corp., 360 U.S. 684].” Only Judge Scillepi dissented from the affirmance by the Court of Appeals. Without elaboration he cited Matter of Trans-Lux Distributing Corp. v. Board of Regents of the University of the State of New York, 14 N.Y.2d 88 (1964), a 4–3 decision that was reversed by the United States Supreme Court two months later. In two additional cases, the Court, without discussion, unanimously reversed convictions relating to obscene films. People v. Revo, 15 N.Y.2d 743 (1965) (citing, without discussion, the Supreme Court decisions in Jacobellis, Grove Press v. Gerstein, Manual Enterprises, Kingsley Pictures v. Regents and others)2 and People v. Moran, 15 N.Y.2d 926 (1965) (No opinion, citing Revo).

E. Trans-Lux Distributing Corp.: The End of the Trail Trans-Lux Distributing Corp. v. Board of Regents of the University of the State of New York, 380 U.S. 259 (1965), marked the demise of the licensing statute. In Trans-Lux, the Supreme Court reversed the Court of Appeals 4–3 decision, 14 N.Y.2d 88 (1964), that had sustained the Board’s denial of a license to A Stranger Knocks because the Board found it to be “obscene.” The Supreme Court remanded the case to the New York Court of Appeals. In the memorandum

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decision reversing, the Supreme Court only cited Freedman v. State of Maryland, 380 U.S. 87(1965). Freedman would require certain procedural safeguards that were not in the New York statute if censorship were employed by the State. On remand, by simply amending the remittitur, the Court of Appeals, without opinion, declared the New York censorship statute (Title I, Article 3, Part II of the Education Law) unconstitutional because it violated the Fourteenth Amendment. Trans-Lux Distributing Corp. v. Board of Regents of the University of the State of New York, 16 N.Y.2d 710 (1965). Eighteen years later, the Legislature repealed the motion picture licensing provisions. L.1983, c. 876.

Some Observations Despite their strongly held views, those judges who opposed censorship and licensing of motion pictures, neither in dissent nor when in the majority, relied on the New York State Constitution, separate and apart from the United States Constitution’s First Amendment, as a limitation on state legislative power. However, the opinions favoring licensing and censorship reflected more than a view of the limited scope of judicial review of an administrative agency decision and more than dedication to the presumption of constitutionality of legislative enactments. The views concerning morals and the government’s role with respect to them were fervently held and strongly stated and represented the views of a substantial segment of society that found its expression in the licensing statutes. Those views are substantially the same as those advocated by Lord Devlin and clearly expounded in his famous 1959 lecture. Lord Devlin contended that laws directed at the defense of a society’s “established morality” are “parallel” to laws directed against treason and sedition; moreover, he asserted that there are no “theoretical limits” to government’s power to deal with either threat, the political threat or the threat to established morality. According to this view “an established morality is as necessary as good government to the welfare of society. . . . There is disintegration when no common morality is observed and history shows us that the loosening of moral bonds is often the first stage of disintegration, so that society is justified in taking the same steps to preserve its moral code as it does to preserve its government and other essential institutions.” Lord Patrick Devlin, “The Enforcement of Morals: Maccabean Lecture in Jurisprudence,” March 18, 1959, reprinted as Chapter I in The Enforcement of Morals 1, 13–14 (London: Oxford University Press, 1965).

10. Obscenity, Indecency, and Immorality

I. Introduction: Indecency and Morality Have Always Concerned Legislators Legislators have always been concerned with indecency and immorality, particularly with respect to sexual matters, and the concept of obscenity was a focus of these concerns. State exercise of its police power and Federal legislation based on congressional power to regulate the mails and interstate and foreign commerce attacked obscenity in a variety of ways. The New York statutes at the outset presented issues of statutory interpretation, and later they became the subject of State and Federal constitutional questions as well. In important respects, how the New York Court of Appeals dealt with obscenity was both similar and dissimilar to its experience with pre-exhibition censorship of motion pictures. Both censorship and obscenity issues began with unanimity on the Court, but that soon changed to sharp, sometimes emotionally charged, divisions between those who strongly defended government power to define and its duty to defend moral values and those who more readily found constitutional restrictions on those powers in the State and Federal constitutions. In both areas, obscenity and motion picture censorship, the United States Supreme Court played a significant role in the development of New York law. Unlike the cases of motion picture censorship, in which the New York Court of Appeals frequently was reversed by the Supreme Court, Court of Appeals decisions on obscenity, for the most part, were upheld by the Supreme Court. Unlike Supreme Court Justices Black and Douglas, no judge of the Court of

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Appeals wrote an opinion that took the absolutist position that any legislative prohibition of obscene publications violated the Constitution. On the other hand, while no New York Court of Appeals opinion denied that the State had the power to regulate and even prohibit obscene publications, sharp disagreement developed on the Court over defining obscenity and the proper application of any given definition.

II. The Early Cases Obscenity and Indecency: Muller, Eastman, and the Hicklin Test Defining obscenity has been one of the most frustrating projects that courts and legislatures have undertaken in New York and elsewhere. Although there seems to have been little opposition to the idea that the government has the right and even the duty to suppress obscene publications, there has been substantial disagreement about what constitutes an “obscene” publication. Despite judicial and legislative efforts to define obscenity, it has been generally agreed that imprecision cannot be totally eliminated, and precision surely has not been the hallmark of any of the proposed or adopted definitions. When the Court of Appeals began to consider obscenity and indecency issues, neither State nor Federal constitutional questions were addressed. After Federal and State constitutional limitations entered into judicial consideration of obscenity, it became even more difficult for the courts and the Legislature to define obscenity. People v. Muller, 96 N.Y. 408 (1884), and People v. Eastman, 188 N.Y. 478 (1907), were the earliest New York Court of Appeals cases that dealt with “obscenity.” Muller began the Court of Appeals consideration of three questions that, in the ensuing years, would emerge as among the most important recurring issues concerning the legal regulation of obscenity. First, what is obscenity? Second, what are the respective roles of the reviewing court and the trial court as fact finder when the trial court determines a publication is obscene? Third, what evidence is admissible to determine whether a publication is obscene? New York Penal Code Section 317, derived from several earlier provisions and enacted as part of New York State’s first complete Penal Code (L. 1881, ch. 676), made it a misdemeanor for a person “to sell, lend, give away or offer to give away, or show, or have in his possession, with intent to sell or give away, or to show . . . an obscene or indecent book, writing, paper.” The statute contained no definition of “obscene” or of “indecent.”

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In Muller, the defendant appealed his jury conviction of violating § 317 of New York’s Penal Code for selling and for possessing with intent to sell photographs of paintings of nude female figures, paintings that previously had been exhibited in a Paris salon. Judge Andrews’ opinion for a unanimous Court of Appeals relied on an 1868 English case, Regina v. Hicklin, L. R. 3 Q. B. 360, to supply the definition of or test of what is “obscene” in section 317: The test of an obscene book was stated in Regina v. Hicklin . . . to be, whether the tendency of the matter charged as obscenity is to deprave or corrupt those whose minds are open to such immoral influences, and who might come into contact with it. We think it would also be a proper test of obscenity in a painting or statue, whether the motive of the painting or statue, so to speak, as indicated by it, is pure or impure, whether it is naturally calculated to excite in a spectator impure imaginations, and whether the other incidents and qualities, however attractive, were merely accessory to this as the primary or main purposes of the representation. 86 N.Y., at 411

Although the opinion stated that the “motive of the painting” was relevant, Judge Andrews rejected the contention that the defendant’s “intent” or motive could be relevant in determining whether a publication was obscene. However, while defendant’s subjective state of mind was irrelevant, circumstances could be relevant. For example, illustrations proper in a medical textbook could be obscene if published separately. Thus, in Muller, the idea appears to have been that determination of whether a publication is obscene should be limited to an examination of the publication itself and the objective circumstances of publication. As for who decides whether a publication is obscene, Judge Andrews viewed that determination as a question of fact quite within a jury’s competence to make. Consequently, Muller found no error in the trial court’s exclusion of expert testimony on whether the pictures were obscene, because the opinion of an expert would not aid the jury in making a determination it could make based on its own experience. [T]he words [obscene or indecent] used in the statute are themselves descriptive. They are words in common use, and every person of ordinary intelligence understands their meaning, and readily and in most cases accurately applies them to any object or thing brought to his attention which involves a judgment as to the quality indicated. It does not require an expert in art or literature to

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determine whether a picture is obscene or whether printed words are offensive to decency and good morals. These are matters which fall within the range of ordinary intelligence, and a jury does not require to be informed by an expert before pronouncing upon them. . . . The question whether a picture or writing is obscene is one of the plainest that can be presented to a jury . . . 86 N.Y., at 410, 412

The broad confidence placed in the jury did not mean that there were no limits on what the jury could decide. The Court limited the scope of what could be found to be obscene, stating, “It is evident that mere nudity in painting or sculpture is not obscenity.” Muller, supra, at 411. This was a matter of statutory construction, i.e., the meaning of “obscene” in Penal Code § 317. The court had addressed neither State nor Federal constitutional questions. Section 317 was amended in 1884 and in 1900 (Laws 1900, ch. 731). The 1900 amendment expanded the list of adjectives from “obscene” and “indecent,” so that section 317 read: A person who sells, lends, gives away or shows . . . or has in his possession with intent to sell, lend or give away, or to show . . . any obscene, lewd, lascivious, filthy, indecent or disgusting book, magazine, pamphlet, newspaper, story paper, writing, paper . . . or any written or printed matter of an indecent character . . . is guilty of a misdemeanor. (emphasis added)

Whatever unanimity on the Court Muller may have portended, it soon ended with People v. Eastman, 188 N.Y. 478 (1907). Muller had declared that “obscene” in section 317 had its everyday common meaning. Twenty-three years later, in Eastman, the Court held that the meaning of “indecent” in section 317, was more limited than its meaning in ordinary usage. “The definitions [of indecent] given by the standard lexicographers are not controlling in deciding its legal signification. Many meanings as used in ordinary conversation are irrelevant.” 188 N.Y., at 479. Eastman involved a publication that used offensive language and made scurrilous accusations in attacking the Roman Catholic clergy. The Court, in a per curiam opinion, with two judges dissenting, sustained a demurrer to and dismissed the complaint. The opinion said that Section 317 was “not an attempt to regulate manners.” Thus, although a publication might be “improper, intemperate, unjustifiable, and highly reprehensible, nevertheless it is not ‘indecent’ as that word is employed in section 317 of the Penal Code.” 188 N.Y., at 479.

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Rather, the majority per curiam opinion stated that “indecent” in section 317 was defined by its relationship to “obscene.” Section 317, as amended, contained adjectives in addition to obscene and indecent, and Chief Judge Cullen, in his concurring opinion, elaborated by taking into account all of Section 317’s additional adjectives, as well its statutory context. As to statutory context, he noted that the section preceding section 317 punished indecent exposure and the next section condemned the sale of articles for indecent or immoral use. He concluded that “[f]rom the context of the statute it is apparent that it is directed against lewd, lascivious, and salacious or obscene publications, the tendency of which is to excite lustful and lecherous desire” 188 N.Y., at 480 (emphasis added).1 Judge O’Brien, in a dissenting opinion (Judge Haight concurring), stated that “in my opinion, it would be difficult to compose any writing more indecent and more immoral.” 188 N.Y., at 482. Nevertheless, he included the entire text of the allegedly indecent publication. He explained: It is so indecent that, in my opinion, it is unfit to appear upon the records of this court, and it would not appear as a part of this opinion except for the contention at the bar and in the court itself that it is not indecent. Of course, if it is not, then I must be in error in supposing that it is unfit to appear in the records of this court. Therefor we must allow the writing to speak for itself; and here it is: . . . Id.

Interestingly, Chief Judge Cullen argued that by virtue of the fact Judge O’Brien caused the document to be published as part of his opinion, it was “clear” that the publication did not have the prohibited effect. [F]rom the fact that . . . [the Judge] who writes the dissenting opinion publishes it in full, and I am entirely certain that, did he believe the tendency of the article was lecherous and salacious, he would find no justification for its publication in the fact that the majority of the court, from whose decision he feels constrained to dissent, entertain a contrary view. . . . I regret that the publication should appear in the reports of this court, not because I deem it lewd, but because I feel that the reports of this court should not be made the means of perpetuating a scurrilous and wanton slander on any class of the community. Eastman, at 480–81

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III. Halsey v. New York Soc. for Suppression of Vice and People v. Pesky Section 1141, subdivision 1, enacted in 1909, was derived from and replaced section 317. It provided: A person who sells, lends, gives away, distributes or shows, or offers to sell, lend, give away, distribute, or show, or has in his possession with intent to sell, lend, distribute or give away, or to show, or advertises in any manner, or who otherwise offers for loan, gift, sale or distribution, any obscene, lewd, lascivious, filthy, indecent or disgusting book, magazine, pamphlet, newspaper, story paper, writing, paper, picture, drawing, photograph, figure or image, or any written or printed matter of an indecent character; or any article or instrument of indecent or immoral use, or purporting to be for indecent or immoral use or purpose. . . . [I]s guilty of a misdemeanor.

The New York Society for the Suppression of Vice, “by its act of incorporation was granted one-half of the fines levied on people successfully prosecuted by the Society or its agents.” Anthony Comstock, who was responsible for the enactment of the forerunner of section 1141 and for the 1873 Federal AntiObscenity Act, also was responsible for the organization of the Society. Ginsberg v. State of New York, 390 U.S. 629, 651 (Douglas, J., dissent). Incorporated by a special act of the Legislature, the Society was given the power to make arrests and to prosecute violations of the criminal laws against obscene literature. It was an active player of the day in the fight against obscenity. The power of the Society to “chill” expression is starkly illustrated by the case of Dreiser v. John Lane Co., 183 A.D. 773 (1st Dept. 1918). The Society had threatened prosecution of a publisher if it published Theodore Dreiser’s book The Genius. The publisher refused to take the risk, and Dreiser instituted an action for a declaratory judgment that the book was not obscene. The case was submitted on an agreed statement of facts. The Appellate Division dismissed the proceeding, holding that because competing inferences could be made from even the agreed statement of facts, a proper question was not presented for a declaratory judgment. The obscenity statutes and the corporate powers conferred on the Society by the Legislature combined to create a powerful censorship force. The mere threat of prosecution by a private party could and did intimidate publishers not to publish. 1. HALSEY V. NEW YORK SOC. FOR SUPPRESSION OF VICE

In Halsey v. New York Soc. for Suppression of Vice, 234 N.Y. 1 (1922), the Court, in a 5–2 decision, affirmed a judgment in favor of the plaintiff for mali-

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cious prosecution in a civil suit against the New York Society for the Suppression of Vice. The plaintiff in Halsey had been acquitted in a prosecution brought by the Society, which had charged the plaintiff with publishing a book that violated Penal Law § 1141. The book was a 1917 English translation from the French of Théophile Gautier’s Mademoiselle de Maupin. After the plaintiff was acquitted, he sued the Society for malicious prosecution. A jury found for the plaintiff in the civil action. The Court of Appeals concluded that the jury in the malicious prosecution suit necessarily had found that there was an absence of probable cause to believe that the book was obscene or indecent and rejected the Society’s efforts to overturn the jury verdict as erroneous as a matter of law. In doing so, the Court addressed several significant issues in the developing law of obscenity. a. Halsey—Publication to be viewed as a whole The Court of Appeals rejected the Society’s invitation to find the book to be obscene as a matter of law based on isolated passages in the book marked by the Society. The Court said that although the book “contains many paragraphs . . . which, taken by themselves, are undoubtedly vulgar and indecent, [n]o work may be judged from a selection of such paragraphs alone. . . . The book . . . must be considered broadly as a whole.” 234 N.Y., at 4. Although Halsey did not refer to Hicklin, the requirement that “[t]he book . . . must be considered broadly as a whole” came to be viewed as a modification of the Hicklin test adopted in Muller, because Hicklin had been read as permitting a finding of obscenity based on isolated passages. b. Halsey and Pesky—Obscenity as a question of fact The Court viewed proof of probable cause to believe the publication was obscene, an element of the Halsey malicious prosecution cause of action, as no different from proof of facts to establish an element of any other cause of action. The question was to be submitted to and determined by the jury when circumstances are in dispute or when different inferences may be drawn from the circumstances. Otherwise it could be a question of law. Halsey, 234 N.Y., at 3, 7. The Court also considered how the stature of the author, including critical acclaim or condemnation, should be considered on the issue of obscenity. At the time of its publication in France in 1836, Mademoiselle de Maupin, as well as its author, received fiery negative and affirmative responses; even up to the time of the publication of the English translation, the book and Gautier and his other works continued to be the subject of passionate attacks and responses from critics of substantial stature. The majority noted that it “know[s] that a book merely obscene soon dies” and that this book has the qualities of “admirable

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style,” “written by a great author, which has become a part of classical literature.” By like token, the Court also pointed out that a great writer could write a book that “may be thoroughly indecent.” Who, then, was to make the determination of whether a book was obscene? On this question the Court expressed its concern about censorship and its belief that the dangers of censorship could be significantly mitigated when a jury, rather than a homogenous group or a group of professionals, such as members of the Court or literary critics, determine whether a book is obscene. Indeed, members of those groups could be in dispute among themselves, as was the case with the members of the Halsey Court and the critics of Gautier. Far better than we [the Court] is a jury drawn from those of varied experiences, engaged in various occupations, in close touch with the currents of public feelings, fitted to say whether the defendant has reasonable ground to believe that a book such as this was obscene or indecent. 234 N.Y., at 6

Halsey made no distinction between a jury finding that a publication was obscene and any other jury finding of fact. Although in this case, the Court upheld a jury finding that a book was not obscene, the reasoning in Halsey, of course, also would support sustaining a jury finding that a book was obscene. In the developments that followed, Federal and State constitutional issues would cause reexamination of the respective roles of the appellate courts and juries in determining whether a publication was obscene. People v. Pesky, 254 N.Y. 373 (1930), without citing Halsey, gave the same weight to the trial court’s finding of fact even when the finder of fact was not a jury, but the Justices of Special Sessions. In Pesky, the Court of Appeals affirmed a 3–2 appellate division (230 A.D. 200 [1930]) affirmance of a Special Sessions conviction for unlawful possession of an indecent book within the meaning of the statute. The book, Hands Around, was characterized as one that presented “amatory etiquettes” and consisted of tales of a series of liaisons. Chief Judge Cardozo and Judges Pound, Crane, O’Brien, and Hubbs concurred in the per curiam opinion. Judges Lehman and Kellogg dissented. In the Court of Special Sessions, one Special Sessions Justice had dissented (230 A.D., at 201). In affirming the conviction in Pesky, the Court of Appeals treated the finding of obscenity by the Special Sessions judges the same way it would have treated the finding by a jury under Halsey. The opinion did not discuss the possible distinctions between a finding by a jury and a finding by judges of Special Sessions. In this respect, Pesky could be viewed as undermining the reasons given in

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Halsey for relying on a jury finding of obscenity as an ordinary question of fact, for Special Sessions judges were not fact finders “drawn from those of varied experiences, engaged in various occupations, in close touch with the currents of public feelings.” Halsey, 234 N.Y., at 6. The Pesky per curiam opinion stated: This court is a court of review, restricted in cases of this order to a pronouncement of the law, and without power to act as a trier of the facts. If those charged with the duty to pass judgment upon the facts might say not unreasonably that the book sold by the defendant was obscene, lewd, or indecent beyond a reasonable doubt (Penal Law, § 1141 [Consol. Laws, c. 40]), we are not at liberty to substitute our judgment for theirs, or to supersede their function as the spokesmen of the thought and sentiment of the community in applying to the book complained of the standard of propriety established by the statute. A different question would be here if we could say as a matter of law that the writing is so innocuous as to forbid the submission of its quality to the triers of the facts. We cannot say that here. Pesky, at 373–74

Thus, in Pesky, the Court, as it had with respect to jury findings of fact, by focusing on the Court’s limited powers to review lower court decisions restated its support of local communities determining what was and what was not obscene under the state statute. A possible result could be that a book might be judged to be obscene (or not obscene) in some, but not all communities in the state, and perhaps by different juries in the same community. The emphasis on local community standards was of a piece with the rejection of expert testimony in Muller and somewhat typical of a judicial attitude that would give little or no value to the assessment of a publication by foreigners. See, e.g., People v. Seltzer, 122 Misc.329 (Sup. N.Y. 1924) (“we are essentially an idealistic and spiritual nation and exact a higher standard than some others,” at 334); People v. Friede, 133 Misc. 611 (NYC Magistrate’s Court, 1929) (Well of Loneliness held, obscene). At this time, the Court did not deal with constitutional questions. Later, however, when constitutional issues had to be considered, it would become necessary to develop standards applicable throughout the state and for the Court to abandon or modify the simple law-fact dichotomy on which it had thus far been relying. However, even before constitutional problems might compel the Court of Appeals to become more involved in what constitutes obscenity, the Court of

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Appeals in Muller and Eastman, as a matter of statutory interpretation, had determined that a publication was not obscene or indecent despite trial court determinations to the contrary. The Court continued to deal with these questions as a matter of statutory interpretation.

The Nineteen Thirties 1. CONTINUING DEVELOPMENT OF WHAT IS OBSCENE: WENDLING AND OTHER CASES

Two years after Pesky, the Court of Appeals in People v. Wendling, 258 N.Y. 451 (1932), a 4–3 decision, reversed a conviction for a violation of Penal Law § 1040a for producing an “obscene” play. Judge Pound wrote the opinion for the Court, with Chief Judge Cardozo and Judges Lehman and Kellogg concurring. Judges Crane, O’Brien, and Hubbs dissented, without opinion. Citing Muller and Eastman, the Court relied on Judge Cullen’s test in Eastman, “whether the tendency of the play [Frankie and Johnnie] is to excite lustful and lecherous desire,” to decide that the play did not satisfy that test for obscenity. The play dealt with prostitutes and some rather rough characters on the frontier. Judge Pound conceded that the play “was in bad taste and used language more appropriate to the bedroom than the parlor,” and that it was clearly “‘indecent from every consideration of propriety’”; but those qualities did not constitute a violation of the statute. The opinion declared that “coarse scenes and vulgar language . . . [do not] in themselves create [the] . . . thoughts” that meet the test of obscenity under Eastman. Wendling, at 453. Although the Court recognized that in Pesky it had been “held the finders of fact might pronounce the book [in question] obscene by applying local standards of propriety,” there was a limit to how much the fact finders’ application of local standards could control. As for the play in question, it was an uncultured depiction of a phase in the frontier life of the middle west. A coarse realism is its dramatic offense. Perhaps in an age of innocence the facts of life should be withheld from the young, but a theater goer could not give his approval to the modern stage as “spokesman of the thought and sentiment” of Broadway (citing Halsey) and at the same time silence this rough hewn and profane representation of scenes which repel rather than seduce. . . . Unless we say that it is obscene to use the language of the street rather than that of the scholar, the play is not obscene under the Penal Law (section 1140-a[Consol. Laws, c. 40]), although it might be so styled by the censorious. Wendling, at 454–55

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In any event, “the court is not a censor of plays and does not attempt to regulate manners.” Id, at 453. In Wendling and the cases that preceded it, the Court of Appeals had applied the test for obscenity formulated in Judge Cullen’s Eastman opinion. The Court also had supported the principle that substantial, often decisive, weight should be given to the local community standards reflected in the findings of fact made by juries and the courts below. Except for the exclusion of paintings of nudes and coarse language, as such, from the definition of “obscene,” the only thing certain was the uncertainty of what constitutes an “obscene” publication. This created serious problems for the lower courts. Contributing to the uncertainty was the variety of publications that were questioned as obscene, the lack of specific standards in the statutes, the reluctance to include sufficient factual information in appellate opinions and, often, the absence of any opinion at all, either by the majority or the dissent. See, for example, emphasizing and even complaining about the uncertainty: People v. Seltzer, 122 Misc. 329 (Sup. N.Y. 1924); People v. Berg, 241 A.D. 543, affirmed People v. Berg, 269 N.Y.514 (1935); and People on the Complaint of Savery v. Gotham Book Mart, Inc., 158 Misc. 240 (City Magistrate’s Court, 1936). During the 1930s, Court of Appeals decisions did not provide much guidance on the law of obscenity. For example, it is difficult to know the precise basis for four Court of Appeals decisions that affirmed obscenity convictions between 1934 and 1936 or to know what issues divided the Court in those cases. There were no opinions by the majority or by the dissenters in any of the cases, and only one decision was unanimous. There were Appellate Division opinions in two of the cases, but, other than bare conclusions or characterizations as to whether the materials were obscene, the opinions do not contain the factual basis for the decisions. There were no Court of Appeals or Appellate Division opinions in People v. Curl, 264 N.Y. 560 (1934), affirming 240 A.D. 967, and in People v. Streep, 264 N.Y. 666 (1934), affirming 240 A.D. 887. There were Appellate Division but no Court of Appeals opinions in the other two cases, People v. Berg, 269 N.Y. 514 (1935), affirming 241 A.D. 543, and People v. Fellerman, 269 N.Y. 629 (1936), affirming 243 A.D. 64. In People v. Berg, supra, the Court of Appeals decision affirming the Appellate Division’s affirmance of the conviction was per curiam, with no opinions by the Court of Appeals majority, Chief Judge Crane and Judges O’Brien, Hubbs, and Loughran, and no opinions by the dissenters, Judges Lehman and Finch. There was a unanimous Appellate Division per curiam opinion. Even if it is a fair inference that the Court of Appeals majority rested its decision on the unanimous Appellate Division opinion, the basis for the dissents in the Court of Appeals was not revealed.

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The opinion of the Appellate Division in People v. Berg, supra, characterizes the rules concerning what is obscene under the statute “as emerging somewhat hazily” from the court of Appeals opinions and as providing inadequate guidance on the subject. However, the Berg Appellate Division opinion itself exemplified the inadequacy of appellate opinions concerning obscenity. Having read the book, and viewing the question of whether it violated the law as “a mixed question of law and fact,” the Appellate Division gave an opinion essentially so conclusory as to provide no greater guidance or explanation than those opinions that were the subject of the Appellate Division’s complaint. First, the Court even refused to identify the book that was the subject of the prosecution so as not “to excite the curiosity of the prurient by naming the book— as might be desired by those interested in its publication and sale.” 241 A.D., at 544. Second, the opinion neither described the book nor detailed the basis for finding that it violated the statute. . . . We can think of no reason any person of reasonably clean mind would have to read the book other than that arising by the imposition of a duty [e.g., to decide this case]. . . . It is sufficient to say that it is fully and completely of the type that the language of the statute condemns in article 106 of the Penal Law as a result of legislative effort to forbid indecency in different forms. In addition, it lacks literary merit. It teaches no lesson and points no moral. It describes no period of history and the people or characters of that time and their conduct and habits of life, such, for instance, as the “Elizabethan Age”; and no folklore or tales of primitive people living in isolated regions. We cannot believe that the story is one even possibly true or representative of any individual or of any limited class. In our opinion, it is obscene, lewd, lascivious, and disgusting, and nothing more; and was so intended to be for purely mercenary purposes. [The Court conceded that it “may be true”] that the intent and purpose of the Legislature in enacting the statute has been whittled away by judicial interpretation; and that in these changing times former notions of propriety and decency have in many respects been discarded. . . . [The Court concluded that judicial opinions in obscenity cases where the publications has been found not to violate the statute contain] no clear standard given for determining obscenity and indecency; [nevertheless the Court summarized the rules it believed] emerge[d], somewhat hazily [from those cases]: . . . an obscene book is one that “tends to corrupt the morals of youth,” or “to lower the standards of right and wrong specifically as to the sexual relation.” To be deemed obscene it must show “sexual impurity” and result in “the exciting of lustful and lecherous thoughts and desires” or tend “to stir sex

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impulses or to lead to sexually impure thoughts.” [Granting that the] application of these standards in any particular case must in large measure depend upon the enlightened and discriminating reaction of the judicial mind . . . . applying these tests to the [unidentified and undescribed] book in question . . . , we say that in our judgment the book falls within the class outlined by these standards as well as that condemned by the more precise and definite language of the statute. Filth, however it may be bedizened or its grossness concealed, must remain plain filth in all ages. 241 A.D., at 544–45 (emphasis added) 2. NUDITY: BURKE AND FELLERMAN

Two cases in 1935 and 1936 involved live nudes and photographs of nudes; in each case, the defendants claimed they were not subject to criminal prosecution because they acted in support of the principles of “nudism.” The Court of Appeals reversed the conviction involving live nudes and affirmed the conviction in the case of the photographs. In People v. Burke, 267 N.Y. 571 (1935), affirming 243 A.D. 83 (1934), the owners of a gymnasium and the director of an organization devoted to the furtherance of the principles of nudism were convicted of four misdemeanors for permitting men and women to appear naked in front of each other while engaging in gymnastics and while attending meetings concerning the principles and advocacy of nudism as a way of life. They were convicted of four counts. The main counts charged indecent exposure, i.e., willfully and lewdly procuring others to expose themselves and their private parts in a place where others are present (Penal Law § 1140) and “willfully and wrongfully commit[ting] an act which openly outrages public decency” (Penal Law § 43). They also were convicted of permitting a building to be used for and to maintain a public nuisance (Penal Law § 1533, subd. 1), with “public nuisance” defined by the statute as an act that “offends public decency” (Penal Law § 1530, subd. 2). The dissenter in the Court of Special Sessions had written: I don’t feel that the law at present, enacted a number of years ago, is sufficiently broad enough to render a conviction on this evidence. It is possible, should the legislature see fit to stop this practice—I think it should be dealt with at the next opportunity to pass laws in this regard. 243 A.D., at 84

The Appellate Division, 4–1, reversed the convictions, with the majority expressing its agreement with the dissent in the Court of Special Sessions. The

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Court of Appeals, in a 4–2 decision, without opinion, affirmed the reversal of the convictions, in effect, relying on the Special Sessions dissent. Judges Lehman, O’Brien, Crouch, and Loughran concurred in the reversal; Chief Judge Crane and Judge Hobbs dissented in a short opinion by the Chief Judge, with which Judge Hobbs concurred. The statute required the defendant to have “willfully and lewdly” exposed him or herself. Justice Merrell, dissenting in the Appellate Division, argued that the conduct was prohibited by the clear language of the statute, and intentional public nudity and exposure of a person’s “private parts” was willful and lewd, even if the conduct was inspired by, accompanied by, and in furtherance of socalled “pure motives,” in this case, furthering the principles of nudism. Justice Merrell reviewed how the attitudes about nudism by the broader general public, if not the beliefs of “a comparatively very small coterie of people,” justified the statutory prohibitions against offending “public decency,” regardless of the defendant’s “purity of motive.” If the defendant’s subjective state of mind (other than intentional exposure of private parts) were deemed relevant, he argued, the statute would become a dead letter. 243 A.D., at 88, 90, and 92. It is the acts of exposure of private parts and public nudity that constitute the offense, a position similar to Judge Andrews’s disposition of defendant’s intent in Muller. In People v. Fellerman, 269 N.Y. 629 (1936), affirming 243 A.D. 64 (1934), the only judicial description of the facts is in the Appellate Division opinion. The Court of Appeals, per curiam, without opinion, affirmed a unanimous Appellate Division decision affirming a conviction for selling an obscene magazine in violation of Penal Law § 1141. Chief Judge Crane and Judges O’Brien, Hubbs, and Loughran concurred in the affirmance and Judges Lehman, Crouch, and Finch dissented, also without opinion. The allegedly obscene magazine, Nudist, contained pictures of persons engaged in nudist activities. The Appellate Division did not contest the statement in the appellant’s brief that the “publication is admittedly not trying to publish provocative pictures which are just within the law, but which is sincerely fostering the nudist movement by means of educational text and photographs.” Fellerman, 243 A.D., at 64–65 (emphasis added). The Court did not challenge appellant’s assertion because defendant’s intent was irrelevant, and, in any event, the defendant had a mercenary motive because “the magazine was placed on sale to the general public, where it could have been purchased by the young as well as the old. . . .” The opinion concludes, without “hesitation . . . that the pictures published are obscene, lewd, lascivious, filthy, and indecent, and, furthermore, that they

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are calculated to appeal to the baser instincts of mankind.” However, the opinion does not describe any picture in the magazine and only quotes the caption of one picture. Surely they cannot be classified as photographs of works of art but rather as “provocative pictures” by no means educational in character. Take, for example, the one which appears on page 9 of the magazine with its accompanying note, which reads: “If simple life in the outdoors contributed to the rich development of the arts during the classical period, why not now?” We would say of it, that it “tends to lower the standards of right and wrong,” that it offends against modesty, and that it is subversive of morality. 243 A.D., at 65

In People v. Muller, 96 N.Y. 408 (1884), the Court had said, “It is evident that mere nudity in painting or sculpture is not obscenity.” Muller dealt with whether photographs of paintings of nudes were obscene and held they were not. Fellerman dealt with photographs of live nudes and in holding they were obscene pointed out that the photographs in question “cannot be classified as photographs of works of art.” It is not clear what role was played in the Fellerman decision by the fact that the Fellerman photographs were of live nudes and not of paintings of nudes, as in Muller. Fellerman found that photographs of nude persons with a caption advocating nudism were obscene. Burke dealt with live nudists, naked in the presence of each other, and the Court held that those who “promoted” such conduct had not violated statutes that condemned conduct that “openly outrage[s] public decency,” that “offends public decency,” and that specifically prohibited exposure of a person’s “private parts” in the presence of another. Viewed as a whole, and in the absence of any Court of Appeals opinions in Burke and Fellerman, those cases together with Muller present an ambivalent picture of how the Court of Appeals, up to that time, dealt with nudity in the context of statutes concerned with obscenity, morality, and public decency.

IV. People v. Winters: Indecency Other Than “Sexual Impurity” and Constitutional Questions of Vagueness In 1884, largely as a result of a campaign by Anthony Comstock and the New York Society for the Suppression of Vice and the New York Society for the Prevention of Cruelty to Children, subdivision 2 of section 1141, limited to sales to

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children, was enacted. Section 1141 was part of Article 106, entitled “Indecency.” After the limitation as to children was removed in 1887 (L.1887, ch. 692), subdivision 2 of section 1141 read:

§ 1141. Obscene Prints and Articles.

A person . . . who . . . 2. Prints, utters, publishes, sells, lends, gives away, distributes or shows, or has in his possession with intent to sell, [etc.] . . . , any book, pamphlet, magazine, newspaper or other printed paper devoted to the publication, and principally made up of criminal news, police reports, or accounts of criminal deeds, or pictures, or stories of deeds of bloodshed, lust or crime . . . . is guilty of a misdemeanor . . . .

A. Winters: Distinguishing “Obscenity” from Other Types of Indecent Publications In People v. Winters, 294 N.Y. 545 (1945), reversed 333 U.S. 507 (1948), the Court of Appeals affirmed a conviction for possession with intent to sell certain magazines in violation of Penal Law § 1141, subd. 2. The Court characterized the contents of the magazines as “nothing but stories and pictures of criminal deeds of bloodshed and lust . . . ‘embellished with pictures of fiendish and gruesome crimes, and . . . besprinkled with lurid photographs of victims and perpetrators,’” featuring articles with lurid titles. 294 N.Y., at 551. The defendant claimed that Penal Law § 1141, subdivision 2, by virtue of its inclusion in Article106 (Indecency), was limited to matters that were sexually impure and, in any event, the statute was unconstitutionally vague. The Court of Appeals majority rejected both contentions. It will be recalled that in People v. Eastman, supra, 288 N.Y., at 479, the Court held that the statutory term, “indecent,” in section 317 was defined in its relationship to “obscene” so as to involve an appeal to sexual impurity, a position taken by the Court consistently through People v. Wendling, 258 N.Y. 451 (1932). In Winters, the Court rejected defendant’s argument that the prohibitions in Penal Law § 1141, subdivision 2, were limited to appeals to sexual impurity on two grounds. First, if the provision were construed as limited to matters of sexual impurity, it would be substantially redundant in view of the coverage of obscenity by subdivision 1. Second, the Court distinguished the policy served by subdivision 1’s coverage of obscenity and its appeal to sexual impurity and the policy served by subdivision 2. Subdivision 2 was concerned, not with appeals

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to sexual impurity, but with the threat to public order from “collections of pictures or stories of criminal deeds of bloodshed or lust [that] unquestionably can be so massed as to become vehicles for inciting violent and depraved crimes against the person. . . .” 294 N.Y., at 550 (emphasis added).

B. Winters and the Constitutional Question of Vagueness The defendant claimed the statute was so broad that it condemned crime stories, whether “truth, fiction, or statistics”; consequently, the statute would “outlaw all commentaries on crime from detective tales to scientific treatises.” The Court rejected this “full literal meaning” of the statutory text “on the short ground that its manifest injustice and absurdity were never intended by the legislature.” 294 N.Y., at 549. Nevertheless, the defendant contended the statutory language covered protected speech and “that the statute [wa]s unconstitutional [in that it violated the Fourteenth Amendment of the United States Constitution] because the criterion of criminal liability thereunder is ‘a personal taste standard, uncertain, indefinite and ex post facto in its practical operation.’” 294 N.Y., at 551. The opinion concedes that “indecency and obscenity are not and never have been technical terms of the law and hence we are without any full or rigorous definition of the uses made thereof in the administration of justice.” 294 N.Y., at 550. Moreover, even if the defendant was correct about the coverage under the “full literal meaning” of the provision, no more precise definitions were feasible. The Court accepted that its meaning necessarily will have changing content with changing times, and it was a question of fact as to whether or not a specific publication fell within the ban of the statute to be determined by reference to whether it “would bring about the corruption of public morals or other analogous injury to the public order.” 294 N.Y., at 551. As to the risk to a publisher or seller presented by the Court’s approach, the Court responded, “‘the law is full of instances where a man’s fate depends on his estimating rightly, that is, as the jury subsequently estimates it, some matter of degree.’ . . . [W]hen reasonable men may fairly classify a publication as necessarily or naturally indecent or obscene, a mistaken view by the publisher as to its character or tendency is immaterial.” 294 N.Y., at 552. In any event, the Court reasoned, inasmuch as in Winters the magazines contained nothing but “stories and pictures and pictures of criminal deeds and lust,” whether the “statute extends to accounts of criminal deeds not characterized by bloodshed or lust” was not presented. 294 N.Y., at 553. Judge Lehman dissented. In an opinion that reflected substantially the position later taken by the United States Supreme Court, he found the statute and

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the majority’s construction of the statute to be unconstitutionally vague. Winters, 294 N.Y., at 553. The United States Supreme Court reversed the Court of Appeals. People v. Winters, 333 U.S. 507 (1948). Justice Reed wrote the opinion for the Court, and Justice Frankfurter (with Justices Jackson and Burton concurring) dissented in an opinion that vigorously questioned the Court overturning a considered judgment of the State Legislature and placing in question similar long-standing statutes in other states. The Supreme Court held that the statute on its face and as construed by the Court of Appeals was unconstitutionally vague in that it prohibited constitutionally protected speech as well as speech that might be subject to State regulation. Although the Supreme Court assumed (but did not decide) that judicial construction could save an otherwise vague statute, the interpretation of subdivision 2 of section 1141 by the New York Court of Appeals did not cure its unconstitutional vagueness. The majority opinion stated: The subsection of the New York Penal Law, as now interpreted by the Court of Appeals prohibits distribution of a magazine principally made up of criminal news or stories of deeds of bloodshed, or lust, so massed as to become vehicles for inciting violent and depraved crimes against the person. But even considering the gloss put upon the literal meaning by the Court of Appeals’ restriction of the statute to collections of stories so massed as to become vehicles for inciting violent and depraved crimes against the person . . . not necessarily . . . sexual passion, we find the specification of publications, prohibited from distribution, too uncertain and indefinite to justify the conviction of this petitioner. Even though all detective tales and treatises on criminology are not forbidden, and though publications made up of criminal deeds not characterized by bloodshed or lust are omitted from the interpretation of the Court of Appeals, we think fair use of collections of pictures and stories would be interdicted because of the utter impossibility of the actor or the trier to know where this new standard of guilt would draw the line between the allowable and the forbidden publications. No intent or purpose is required—no indecency or obscenity in any sense heretofore known to the law. “So massed as to incite to crime” can become meaningful only by concrete instances. This one example is not enough. The clause proposes to punish the printing and circulation of publications that courts or juries may think influence generally persons to commit crimes of violence against the person. No conspiracy to commit a crime is required. . . . It is not an effective notice of new crime. The

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clause has no technical or common law meaning. Nor can light as to the meaning be gained from the section as a whole or the Article of the Penal Law under which it appears. . . . It leaves open, therefore, the widest conceivable inquiry, the scope of which no one can foresee and the result of which no one can foreshadow or adequately guard against. The statute as construed by the Court of Appeals does not limit punishment to the indecent and obscene, as formerly understood. When stories of deeds of bloodshed, such as many in the accused magazines, are massed so as to incite to violent crimes, the statute is violated. It does not seem to us that an honest distributor of publications could know when he might be held to have ignored such a prohibition. Collections of tales of war horrors, otherwise unexceptionable, might well be found to be “massed” so as to become “vehicles for inciting violent and depraved crimes.” Where a statute is so vague as to make criminal an innocent act, a conviction under it cannot be sustained. Winters, 333 U.S., at 518–20 (emphasis added; citations omitted)

Before Winters, the Supreme Court had not expressed its view on the constitutionality of a state obscenity statute and had not dealt substantially with the Federal anti-obscenity legislation banning the mailing of obscene materials. Indeed, it was not until nine years after Winters was decided that the Supreme Court directly addressed obscenity under the First and Fourteenth Amendments. Roth v. United States, 354 U.S. 476 (1957). However, in Winters, although the constitutionality of New York’s obscenity statute (Penal Law § 1141, subdivision 1) was not before the Court, Justice Reed’s opinion voiced approval of that statute as “an example” of how a state Legislature “may . . . punish circulation of objectionable printed matter, assuming that it is not protected by the principles of the First Amendment, by the use of apt words to describe the prohibited publications.”

V. “Prurient Interest” and the Rejection of the Hicklin Test A. 1957. The United States Supreme Court: Butler and Roth 1. BUTLER V. STATE OF MICHIGAN

In 1957, the United States Supreme Court decided two cases that would have a significant impact on the constitutionality of state obscenity statutes. In Butler

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v. State of Michigan, 352 U.S. 380 (1957), a unanimous Court declared unconstitutional the Michigan obscenity statute that made it a crime to distribute a publication to the general public “tending to incite minors to violent or depraved or immoral acts, manifestly tending to the corruption of the morals of youth.” The Butler opinion found the statute unconstitutional because its effect would be “to reduce the adult population of Michigan to reading only what is fit for children.” 352 U.S., at 383. 2. ROTH V. UNITED STATES

The opinion in Roth v. United States, 354 U.S. 476 (1957), stated that Roth was the “first time” the question of whether obscenity is protected speech or press under the First and Fourteenth Amendments had been “squarely presented” to the Supreme Court. 354 U.S., at 481. While Roth was the first time the Supreme Court wrote an opinion on those issues, actually, it was not the first time that the Court had rendered a decision on those questions. In 1947, Doubleday & Company, Inc. was convicted of violating New York Penal Law § 1141, subd. 1 for publishing and selling Memoirs of Hecate County, by Edmund Wilson, an allegedly obscene book. The defendant had submitted “reviews by many magazines and critics indicating that the book had literary merit,” but the trial court found that one of the stories in the book was obscene. Doubleday claimed the statute as applied violated the Federal and State constitutions. The conviction was affirmed by the Appellate Division and by the New York Court of Appeals and, in turn, by the United States Supreme Court. Neither the United States Supreme Court nor any of the state appellate courts issued an opinion and the opinion of the trial court, if any, was not published. Doubleday & Company. Inc. v. People of the State of New York, 335 U.S. 848 (1948), affirming People v. Doubleday & Company, Inc., 297 N.Y. 687 (1947), affirming 272 A.D. 799 (1947). The opinion in Roth covered two cases decided by the Supreme Court at the same time: Roth itself involved a Federal statute, and a state statute was involved in Alberts v. California. Convictions in both cases were affirmed. Roth was the first of a series of opinions in the development of Federal constitutional doctrine on obscenity. Justice Brennan wrote the opinion for the Court. Chief Justice Warren concurred in the result in a separate opinion. Justice Harlan, in an opinion that raised issues considered in greater detail in future cases, concurred in Alberts, the State case, and dissented in the Federal statute case, Roth. Justice Brennan’s opinion held that obscenity was not protected speech under the First and Fourteenth Amendments, a proposition that was to become

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the foundation of the developing law of obscenity. In reaching this conclusion, Justice Brennan stated: “All ideas having even the slightest redeeming social importance—unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion—have the full protection of the guarantees, unless excludable because they encroach upon the limited area of more important interests. But implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance.” 354 U.S., at 484 (emphasis added). Justice Brennan’s constitutional definition of obscenity was an adaptation of the definition in the American Law Institute’s Model Penal Code, “whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.” 354 U.S., at 489 (emphasis added). He also pointed out that the definition need not be in the statute itself. When “obscenity” or some equivalent was used in a statute and if the term was properly defined by the courts, it would pass constitutional muster. Justice Harlan, in his opinion, inter alia, doubted that the real problems would be faced by simply responding with a definition of obscenity to the question, What is obscenity? Among the problems that particularly concerned him was that by relying on the definitional approach to the issues, whether material was obscene would be viewed simply as a question of fact to be resolved by the fact finder applying the definition to the evidence. Moreover, he had doubts about the utility of so general a definition in dealing with the complex questions often presented by obscenity cases. According to Justice Harlan, the question of what is obscenity and, therefore, may be constitutionally suppressed is a “question of constitutional judgment of the most sensitive and delicate kind” (354 U.S., at 498) and is “one of particularized judgments which appellate courts must make for themselves.” 354 U.S., at 497. (Harlan, J., dissenting, emphasis added.) In this connection, consider the approaches of Muller and those Court of Appeals cases that followed and treated obscenity as a question of fact.

B. The New York Court of Appeals after Roth: Richmond County News and “Hard-core Pornography” The so-called Roth definition was only the bare beginning of judicial attempts to define obscenity for constitutional purposes. In the 1966 case of Mishkin v. New York, 383 U.S. 502, 508, note 7, the Court recognized that the “basic question for decision . . . [in Roth and Alberts] was whether the publication and sale of obscenity, however defined, could be criminally punished in light of First

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Amendment guarantees. Our discussion of definition was not intended to develop all the nuances of a definition required by the constitutional guarantees (emphasis added). Roth rejected the so-called Hicklin test, which judged “obscenity by the effect of isolated passages upon the most susceptible persons,” as “unconstitutionally restrictive of the freedoms of speech and press.” 354 U.S., at 489. It will be recalled that People v. Muller, 96 N.Y. 408 (1884), had adopted the definition of obscenity in Regina v. Hicklin. However, it is of interest that no New York case was discussed by the Supreme Court or included in its list of cases that had adopted Hicklin and no New York case appeared in the list of “later decisions [that had] rejected” the Hicklin test. Before Roth, the Court of Appeals had not focused on the task of sharply delineating the definition of obscenity. After Roth, all state courts and state legislatures, including New York, were compelled to deal explicitly with definitions of obscenity in light of Roth and the ensuing Supreme Court decisions. As for the Hicklin test, rejected by Roth and accepted in Muller, some lower New York courts had judged obscenity under the Hicklin test by the effect of the material “upon the most susceptible persons.” E.g., People v. Seltzer, supra, at 139 (“the statute looks to the protection not of the mature and the intelligent, with minds strengthened to withstand the influences of the prohibited data, but of the young and immature, the ignorant and sensually inclined”). However, the refusal of the Court of Appeals in Halsey to judge whether a book was obscene on the basis of isolated passages and its statement that the book must be “considered broadly as a whole,” suggests that New York had already rejected the other leg of Roth’s concern about the Hicklin test. People v. Richmond County News, Inc., 9 N.Y.2d 578 (1961), was the first New York Court of Appeals case after Roth that dealt extensively and in depth with obscenity, and, for a time and perhaps even now, is the single most important obscenity case decided by the New York Court of Appeals. The Court of Appeals in Richmond County News affirmed an Appellate Division reversal of a conviction for selling and publishing Gent, a magazine alleged to be an obscene publication. The Appellate Division reversal found the magazine to be obscene, but found that there was a failure of proof on the question of defendant’s knowledge of the obscene character of the publication. Judge Fuld’s opinion in support of reversing the convictions, with Judge Van Voorhis concurring, announced principles of judicial construction of obscenity statutes in the context of constitutional concerns and explored the definition of obscenity. The opinion became the focal point for addressing the issues of legal regulation of obscenity in New York.

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Chief Judge Desmond, with Judge Dye concurring, agreed that the convictions should be reversed, but on the ground that there was reasonable doubt as to whether the publication met constitutional tests of what constitutes obscenity. 9 N.Y.2d, at 589. Judge Froessel’s dissenting opinion, with Judges Burke and Foster concurring, took issue with Judge Fuld’s approach to statutory interpretation.

C. Richmond County News: The Role of the Appellate Court in Reviewing a Lower Court Finding That a Publication Was Obscene Citing Justice Harlan’s concurring opinion in Roth, Judge Fuld held that the New York Court of Appeals, like the United States Supreme Court, could not properly discharge its duty by reviewing a lower court’s finding of obscenity merely as a question of fact. (Cf. the discussion, supra, of People v. Muller, 96 N.Y. 408 [1884], Halsey v. New York Soc. for Suppression of Vice, 234 N.Y. 1 [1922] and People v. Pesky, 254 N.Y. 373 [1930]). Judge Fuld wrote that appellate review of a jury’s finding of obscenity involves not a simple question of fact, but a mixed question of fact and constitutional law, calling upon the court to make an appraisal of a publication and its contents against the requirements embodied in both the State and Federal constitutions (N.Y. Const., Art. 1, § 8; U.S. Const. 1st and 14th Amdts.). Consequently, if an appellate court were to rely upon and be bound by the opinion of the trier of the facts as to the obscenity of a publication it would be abdicating its role as an arbiter of constitutional issues. 9 N.Y.2d at 581 (emphasis added) 1. RICHMOND COUNTY NEWS AND THE BROAD SCOPE OF FIRST AMENDMENT PROTECTION: NARROW CONSTRUCTION OF OBSCENITY STATUTES

Judge Fuld, quoting Roth, stated that even though obscenity does not enjoy constitutional protection, it is necessary that the Court construe obscenity provisions narrowly in order to avoid intrusion into areas protected by the First Amendment. In view of the diversity of “contemporary society,” the statute should be interpreted (a) “to include only those prohibitions which find the widest acceptance, and reflect the most universal moral sensibilities” and (b) to avoid prohibitions on the “advocacy of ideas . . . even if mischief would result were it followed.” Publications for entertainment enjoy the same protection as advocacy of ideas; “ ‘[w]hat is one man’s amusement, teaches another’s doctrine,’” citing Winters v. People of the State of New York.

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Judge Fuld also described the doubts among experts concerning the dangers presented by obscenity and the lack of significant scientific evidence on the subject. 9 N.Y.2d, at 581–83. The broader the prohibitions we read into our statute, the more unlikely it is that these prohibitions are reasonably related to the legitimate ends which the legislation seeks to serve. Thus, the constitutional background of the legislation, the inherent nature of the subject of regulation and the available knowledge concerning the possible effects of such legal regulation all point to and necessitate a very limited definition of the statutory prohibition of obscenity. 9 N.Y.2d, at 584. 2. RICHMOND COUNTY NEWS: THE COMPROMISE OR THE “CRITICAL POINT”—“HARD-CORE PORNOGRAPHY” AS THE NEW YORK TEST FOR OBSCENITY

To this point, the New York Court of Appeals had approved explicitly only the Hicklin test as the test for obscenity. Although it is arguable that Hicklin had been modified by implication, that test had not been rejected by the Court of Appeals, and the Court had not developed any other definitive test. In the aftermath of Roth and Butler, it was necessary for New York to establish its own test for obscenity, provided, of course, that it was consistent with the Supreme Court’s teachings. Judge Fuld recognized that “although the Butler and Roth cases destroy the Hicklin rule, they do not lay down a test of obscenity binding on . . . [New York’s] interpretation of . . . [its] obscenity statute. . . .” In Butler, the Court “condemned the statute before it without suggesting a constitutionally sanctioned alternative.” As for the tests laid down in Roth, according to Judge Fuld, the statements in Roth “can only indicate the broad boundaries of any permissible definition of obscenity under the United States Constitution; they do not pretend to, and cannot, give specific content to the meaning of ‘obscene’ as it appears in our [the New York] statute.” 9 N.Y.2d, at 585–86. Judge Fuld relied on the opinion in Brown v. Kingsley Books, 1 N.Y.2d 177, 181–182 (1956), affirmed, sub nom. Kingsley Books, Inc. v. Brown, 354 U.S. 436 (1957),2 to set the context in which the Court determines what is obscene. [T]he concept of obscenity is “imprecise,” its “vague subject-matter” being largely “left to the gradual development of general notions about what is decent.” Accordingly, the problem involved in laying down a standard is to find “the present critical point in the compromise between candor and shame at which the community (has) arrived” . . . [citation omitted]. To be sure,

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there are some in the community who regard any realistic portrayal of sexuality, any form of erotic realism, as an insupportable threat to the social order. And there are others who view any intrusion of the State’s power in this area as unnecessary and improper. The “critical point in the compromise” lies between these extremes. “All that we can say is that the line (must) be higher than the lowest level of moral principle and practice, and lower than the highest.” Cardozo, Paradoxes of Legal Science, p. 37. 9 N.Y.2d, at 586 (emphasis added)

To meet the demands of the compromise described by Judge Fuld, he announced what would become the characteristic shorthand label for the Court of Appeals’ test for obscenity, “hard-core pornography.” Mindful of the constitutional necessity to open the door barring state intrusion into this area “only the slightest crack necessary” [citing Roth] and desirous of erecting a standard which embodies the most universal moral sensibilities and may be applied objectively, we are of the opinion that the prohibitions of section 1141 of the Penal Law should apply only to what may properly be termed “hard-core pornography” (emphasis added). The mere undemonstrated possibility of harm to the community from realistic accounts of normal sexuality is not of sufficient moment to warrant the exercise of the public force in their suppression. And this is true whether the narratives concerned may be said to have artistic or scientific justification or whether they lack anything of “any possible value to society.” 9 N.Y.2d, at 586 (citations omitted)

Judge Fuld elaborated on what was and what was not “hard-core pornography.” First, he agreed with the Supreme Court in Roth that “‘sex and obscenity are not synonymous.’ “ Judge Fuld said: Under our statute, section 1141 of the Penal Law, the test of the obscene, of the pornographic, is not in the tendency or appeal of the material, but rather in its content objectively appraised. . . . It focuses predominantly upon what is sexually morbid, grossly perverse and bizarre, without any artistic or scientific purpose or justification. Recognizable “by the insult it offers, invariably, to sex, and to the human spirit” (D. H. Lawrence, Pornography and Obscenity [1930], p. 12), it is to be differentiated from the bawdy and the ribald. Depicting dirt for dirt’s sake, the obscene is the vile, rather than the coarse, the blow to sense, not merely to sensibility. It smacks, at times, of fantasy and

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unreality, of sexual perversion and sickness and represents, according to one thoughtful scholar, “a debauchery of the sexual faculty.” . . . [However] if any single item, considered as a whole, were pornographic, the circumstance that it was included in a collection otherwise without taint would not save it from criminal prosecution. . . . Numerous pictures and cartoons of nude or seminude women and numerous descriptions and depictions of sexual arousal and satisfaction are to be found in Gent, but it contains nothing which smacks of sick and blatantly perverse sexuality. 9 N.Y.2d, at 587

Judge Froessel disagreed with Judge Fuld’s basic approach—strict construction of section 1141. Contrary to Judge Fuld’s (and Chief Judge Desmond’s) position, Judge Froessel, for the three dissenters, “found nothing in the First Amendment or in the language” of Roth that required strict construction of section 1141. The dissenters claimed that Judge Fuld’s “hard-core pornography” test was more stringent than Roth required, and that under Roth, Gent could constitutionally be labeled as obscene. Judge Froessel also suggested that in Brown v. Kingsley Books, 1 N.Y.2d 177, supra, Judge Fuld had supported a narrower version of constitutional restrictions on defining obscenity than his views in Richmond County News. Although language in Judge Fuld’s Kingsley Books opinion reasonably might be viewed as Judge Froessel did in Richmond County News, the issue before the Court in Brown v. Kingsley Books was not to identify the constitutional restrictions on defining obscenity, because the defendant in the earlier case had conceded that the materials in question were obscene. The issue before the Court in Brown v. Kingsley Books was whether an injunction could issue to prevent the distribution of concededly obscene materials. Moreover, Roth had not yet been decided.

VI. Scienter A. Smith v. California In 1960, the United States Supreme Court held that scienter was a constitutionally required element for a statute criminalizing possession of obscene material, when it declared unconstitutional a Los Angeles ordinance that criminalized “mere possession” of obscene materials without requiring proof of scienter. Smith v. People of the State of California, 361 U.S. 147 (1959). However,

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the Supreme Court did not define the mental element constitutionally required to prosecute “a bookseller for carrying an obscene book in stock; whether honest mistake as to whether its contents in fact constituted obscenity need be an excuse; whether there might be circumstances under which the State constitutionally might require that a bookseller investigate further, or might put on him the burden of explaining why he did not, and what such circumstances might be.” 361 U.S., at 354. Prior to 1960, a 1958 Second Department opinion in People v. Shapiro, 6 A.D.2d 271, carefully, convincingly, and in detail reviewed the legislative history of section 1141 and concluded that, by legislative design, scienter was not an element of the obscenity offense. Largely as a result of this opinion, the prevailing view in New York became that New York Penal Law § 1141 did not require scienter. In 1960, shortly after the Supreme Court decided Smith v. People of the State of California, the Court of Appeals in People v. Engel, 7 N.Y.2d 1002 (1960), reversed a conviction of violating § 1141, in which, although the information had charged the defendant with “willfully” dealing in obscene materials, the defendant claimed that he had been tried and convicted without proof of scienter. The Appellate Division in a split decision had rejected the defendant’s position. The dissent in the Appellate Division had conceded that § 1141 did not require proof of scienter, citing Shapiro, but argued that the prosecution was required to prove scienter because it had been alleged in the information. 8 A.D. 2d 619, 620 (2d Dept. 1959). The Court of Appeals reversed without opinion “upon the authority of” Smith v. People of the State of California, 361 U.S. 147.

B. The Court of Appeals and Scienter 1. PEOPLE V. FINKELSTEIN

In 1961, the Court of Appeals directly dealt with scienter in People v. Finkelstein, 9 N.Y. 2d 342. In a 4–3 decision, the majority reasoned that, although scienter was not expressly included in § 1141, it also was not explicitly excluded, thereby creating an ambiguity. The Court, fulfilling its view of its obligation to resolve ambiguity so as to sustain the validity of a legislative enactment, construed New York Penal Law § 1141 as requiring proof of scienter as an element of the offense. The Court defined scienter, as follows: A reading of the . . . [section 1141] as a whole clearly indicates that only those who are in some manner aware of the character of the material they attempt to

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distribute should be punished. It is not innocent but calculated purveyance of filth which is exorcised. 9 N.Y.2d, at 344–45 (emphasis added)

Reasoning that the defendants might have been misled by relying on decisions such as Shapiro, supra, about whether scienter was an element of the offense, the Court ordered a new trial in order to provide the defendants with the opportunity to offer proof on the issue of knowledge. Judge Froessel dissented, in an opinion in which Judges Van Voorhis and Foster concurred. The dissent criticized the “sometimes . . . heroic treatment” statutes receive “at the hands of courts in construing them to sustain their constitutionality,” and in any event, those judicial efforts should be more limited in criminal cases than in civil cases. They denied that the language of § 1141 required proof of scienter or that the provision was ambiguous, and there certainly was no ambiguity after the history of the reception of the carefully crafted opinion in Shapiro. The dissenters would have declared the statute unconstitutional and dismissed the informations. 2. PEOPLE V. KIRKPATRICK AND THE PRESUMPTION OF SCIENTER

In 1965, the Penal Law was amended to include a presumption that anyone who sold obscene material in the course of his business was presumed to know its content and character (Penal Law § 235.10). The constitutionality of the presumption was sustained in People v. Kirkpatrick, 32 N.Y.2d 17 (1973), in an opinion by Judge Breitel, concurred in by Judges Burke, Jasen, and Gabrielli. Chief Judge Fuld dissented in an opinion, concurred in by Judges Jones and Wachtler. The majority opinion focused on the due process requirements for presumptions and concluded that the statutory presumption did not run afoul of due process limitations. The dissenting opinion disagreed that the presumption satisfied due process requirements, but even if it did, the Chief Judge also maintained that a presumption that implicated First Amendment rights was unconstitutional because it “creates and occasions a system of ‘self-censorship.’” 32 N.Y.2d, at 31 (dissenting opinion). The Chief Judge wrote: Although the State may generally regulate the allocation of the burden of proof through legislation, its is clear that a statute may not, where the First Amendment is involved, declare a person presumptively guilty of a crime or presume that he has committed one of its material elements. . . . Freedom of

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speech is too important a right to allow it to be seriously impeded or impaired by a presumption. 32 N.Y.2d, at 33–34 (dissent, citations omitted)

VII. The 1964 Cases, Further Developments in the Court of Appeals and the Supreme Court: Tropic of Cancer, Jacobellis, and Fanny Hill A. Tropic of Cancer Judicial experience with the controversial books Tropic of Cancer and Fanny Hill demonstrated that any verbal formula that purported to provide a test for obscenity would suffer from lack of precision and would not be very useful as a means of predicting judicial determinations. By the time the New York Court of Appeals, in People v. Fritch, 13 N.Y.2d 119 (1963), dealt with whether Tropic of Cancer was obscene in violation of section 1141, the Court of Appeals had developed a tripartite test for obscenity, a test more restrictive on legislative power than the Supreme Court had required. The Supreme Court, in Manual Enterprises, Inc. v. Day, 370 U.S. 478 (1962), added the requirement that an allegedly obscene publication be “patently offensive” to current community standards to Roth’s “prurient interest” test for obscenity. To these two requirements, the Court of Appeals in Richmond County News had added the requirement that the challenged material had to be “hard-core pornography,” a greater limitation on legislative power than required by Roth and Manual Enterprises. Prior to Fritch, other state courts (Massachusetts, California, and Wisconsin) applied only the Supreme Court’s less restrictive standards on legislative power and had found Tropic of Cancer not to be obscene. In Fritch, the Court of Special Sessions had found that Tropic of Cancer was obscene. The County Court reversed the Court of Special Sessions. 38 Misc.2d 333. The Court of Appeals, by a 4–3 majority, reversed the County Court and found the book to be obscene. Judge Scileppi and Chief Judge Desmond wrote opinions in which Judges Burke and Foster concurred. Judges Dye and Fuld dissented in separate opinions in each of which the other concurred, with Judge Van Voorhis concurring in both dissenting opinions. The Court of Appeals majority, applying the three-part New York obscenity test, made its own “independent constitutional appraisal” (Richmond County News), and found the book to be obscene. Judge Fuld, dissenting, characterized the book as “not without literary importance as attested by recognized critics

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and scholars” and as a “serious expression of views and reactions toward life.” 13 N.Y.2d, at 133. However, the majority concluded that Roth did not insulate a book from a finding that it was obscene because the book had “substantial literary merit” and thereby could not be “utterly without redeeming social importance.” The Court reasoned from its reading of Roth that if a publication could not be labeled “obscene” because of its appeal to the “prurient interest” of “only a particular segment of the community, such as children, the pious or the prudish, then conversely, its nonobscenity may not be gauged by the lack of impact it has on the literary community.” 13 N.Y.2d, at 124–25 (emphasis added). One year later, on June 22, 1964, in a case arising in Florida, the Court of Appeals rationale and its conclusion were rejected by the Supreme Court, and the Court of Appeals concluded that Grove Press v. Gerstein, 378 U.S. 577 (1964), had “overruled” Fritch. Larkin v. G.P. Putnam’s Sons, 14 N.Y.2d 399, 404 (1964).

B. Jacobellis and Further Supreme Court Elaboration of Roth On June 22, 1964, the Supreme Court reversed three State-Court findings that a publication was obscene. Jacobellis v. State of Ohio, 378 U.S. 184 (motion picture), Grove Press v. Gerstein, 378 U.S. 577 (Tropic of Cancer), and Tralens v. Gerstein, 378 U.S. 576 (book). Justice Brennan’s opinion in Jacobellis, which reversed a state-court conviction for exhibition of an allegedly obscene motion picture, served as the basis for the reversals in the other two cases. The opinion dealt with several major questions. First, the opinion declared that the Court itself had the constitutional obligation to make an independent judgment as to whether a motion picture or other publication is obscene, citing Justice Harlan in Manual Enterprises. Second, although Justice Brennan reaffirmed the Court’s adherence to the Roth test for obscenity, he added that the Roth standard “requires in the first instance a finding that the material “goes beyond customary limits of candor in description or representation” of those matters that appeal to the prurient interest. Third, Justice Brennan also rejected any suggestion that the “contemporary community standards” element of the Roth test meant “the particular local community from which the case arises.” Whether something is obscene “must be determined on the basis of a national standard.” 378 U.S. 184, at 191–192, 195. Fourth, Justice Brennan also suggested that statutes designed to protect children might be judged by a standard not as stringent as Roth, i.e. a so-called “variable standard” might be constitutionally acceptable. The “variable obscenity” question in New York is addressed infra. Justice Stewart, concurring, recognized the difficulty in the struggle to define obscenity. He conceded that Roth and Alberts could be read “in a variety of

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ways” and noted that later decisions, by “negative implication,” even had limited criminal laws to “hard-core pornography,” citing Richmond County News. He declined to attempt the difficult task of further elucidating what constitutes hard-core pornography or obscenity and concluded with a phrase that probably always will be associated with Justice Stewart: “I know it when I see it.” 378 U.S. 184, at 197. Less than one month after the Supreme Court announced its decisions in Jacobellis and Grove, the opinions in two New York Court of Appeals cases decided on July 10, 1964, demonstrated the Court’s sharp division on obscenity questions. The opinions bluntly stated the opposing philosophies concerning First Amendment values and defense by government of traditional views of public morality in a way that paralleled the contentiousness in the motion picture censorship cases.

C. Fanny Hill John Cleland’s Memoirs of a Woman of Pleasure, also known as Fanny Hill, was the subject of Larkin v. G.P. Putnam’s Sons, 14 N.Y.2d 399 (1964), and People v. Bookcase, Inc., 14 N.Y.2d 409 (1964). In Larkin, Special Term dismissed New York City’s application for an injunction prohibiting the publisher from selling and distributing Fanny Hill. The Code of Criminal Procedure authorized such an application for an injunction if the book was obscene under Penal Law § 1141 (40 Misc.2d 28), and a divided Appellate Division reversed (20 A.D.2d 702). A 4–3 majority of the Court of Appeals found that Fanny Hill was not obscene, and reversed the Appellate Division and dismissed the complaint. Judge Bergan wrote the majority opinion in which Judges Dye, Fuld, and Van Voorhis concurred. Chief Judge Desmond and Judge Scileppi wrote dissenting opinions in which each concurred with the other, and Judge Burke concurred in both opinions. In Bookcase, Inc. the defendant was convicted of selling Fanny Hill to a minor under eighteen years old in violation of Penal Law § 484-h. The same 4–3 majority as in Larkin found section 484-h to be unconstitutionally vague and reversed the conviction. Judge Van Voorhis wrote the opinion for the majority. Chief Judge Desmond and Judge Scileppi wrote separate dissenting opinions in which each concurred with the other, and Judge Burke concurred in both opinions. At this point, our concern with Bookcase, Inc. is its contribution to the tenor of the division on the Court. The problem of “variable obscenity” presented by § 484-h is dealt with below. Judge Bergan’s opinion in Larkin elaborated on the difficulties of defining obscenity and the dangers of applying the definition in a specific case. Echoing

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Justices Brennan and Harlan, he observed that “[j]udicial definitions of one sort or another have been fashioned to describe tests by which a book will be suppressed, giving due weight to constitutional considerations; but the experience of the profession demonstrates that definitions are unsafe vehicles in obscenity cases.” 14 N.Y.2d, at 401. Judge Bergan then proceeded to demonstrate the difficulty of defining obscenity by analyzing two cases in which the publication had been suppressed as obscene (Roth and Fritch) and two where they were found not to be obscene and the “suppression was annulled on constitutional grounds [Manual Enterprises and Richmond County News].” He concluded: The differential examination of these cases suggests at once the inherent difficulty in reaching consistency in any review of acts of censorship, criminal or administrative, and the large measure of judicial subjectivity inherent in the process. It is not easy to distinguish the cases on the basis of real differences in the material under scrutiny. Still the decisions are not whimsical and haphazard judicial choices, but resulted in each case from earnestly searching out the significant constitutional issues. In Roth, for example, the discussion in the United States Court of Appeals and in the Supreme Court together reaches close to 30,000 words. From a comparative study of the decisions the Bar must be able to form an intelligent professional judgment to predict, as well as it can, future judicial action in obscenity cases and advise those who would print books accordingly. And in this field, as in others, it is an essential judicial function to provide a reasonable measure of reckonability. 14 N.Y.2d at 402–3

Pointing out that the “history and tradition of our institutions stand against the suppression of books,” Judge Bergan concluded that the difficulty in defining and identifying obscene publications “may be helped along, perhaps, by placing a burden on the censor to bring himself within an area in which the exercise of his powers is constitutionally permissible and by resolving all doubtful cases in favor of the freedom to print.” 14 N.Y.2d, at 401, 403 (emphasis added). Judge Bergan described Fanny Hill as “an erotic book, concerned principally with sexual experiences, largely normal, but some abnormal, [as having] slight literary value and [as affording] . . . some insight into the life and manner of mid-18th Century London,” but “within the area of permissible publications.” Chief Judge Desmond’s dissenting opinion focused, in part, on Judge Bergan’s description. Judge Bergan concluded:

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It had become increasingly clear in a long line of decisions which foreshadowed those of June 22[, 1964] that State obscenity statutes would no longer afford a constitutionally sound basis for the suppression of a book of the type of ‘Fanny Hill.’” 14 N.Y.2d, at 403–5

Chief Judge Desmond’s dissenting opinion pointed out that standard histories of obscenity characterized Fanny Hill as “‘the pornographic best-seller of all time’” and as an “explicit ‘how to do it manual of illicit sex.’” Fanny Hill, he argued, “was never anything more than an 18th Century potboiler written . . . and sold as under-the-counter pornography.” Chief Judge Desmond contended that the explicit descriptions of a large variety of sexual experiences easily met the “pornography” requirement of Richmond County News. 14 N.Y.2d., at 405. He found the majority’s reasons for reversal “unclear” and its description of the book, “inadequate.” Nevertheless, focusing on Judge Bergan’s “inadequate” description of Fanny Hill, a book the majority had declared to be nonobscene, Chief Judge Desmond feared that “[h]ereafter, pornography no matter how gross . . . is immune and safe so long as critics praise its writing style and discover “social significance,” whatever that may mean” [citing Grove Press v. Gerstein, “validating ‘Tropic of Cancer’”). 14 N.Y.2d at 405–6. His consternation was exacerbated by the decision in People v. Bookcase, Inc., (the sale of Fanny Hill to a minor) that found section 484-h to be unconstitutionally vague, thereby exposing this unwholesome and pornographic book to purchasers of any age. Chief Judge Desmond wrote, “It would be as easy as it is unnecessary to resort to superlatives in describing this extraordinary result but it speaks for itself.” 14 N.Y.2d at 407. Chief Judge Desmond and Judge Scileppi, in their dissenting opinions, gave voice to their alarm and even to a sense of frustration about what they viewed as unjustified attacks, in the guise of constitutional doctrine, on efforts by the state to protect basic traditional moral values. Chief Judge Desmond also expressed concern about the excessive reliance on literary critics, about the reduced roles of juries vis-à-vis appellate court judges in obscenity cases, and with the frustration that state enforcement of obscenity statutes causes with the United States Supreme Court. The Chief Judge wrote: It is today’s fashion to find literary values in any sexy writing and to ridicule as blue-nosed prying Puritans and enemies of art and literature all those who try to preserve a modicum of public decency in our society. And into the law itself there has come from nowhere a new constitutional theory which licenses the

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most unrelieved sexual filth either on the theory of “prevailing community standards” [citing Larkin, 14 N.Y. 2d 869] . . . or on a finding of literary merit or social values [citing Grove Press v. Gerstein] . . . As to “community standards,” who measures and discovers them? When local courts with or without juries find that a book or movie is below standard, the appellate courts reject the findings because the court “cannot avoid making an independent constitutional judgment on the facts of the case.” . . . I refuse to believe that all this can continue to be the law. I predict that the wheel will turn and the pendulum swing back. As things now stand, New York State has obscenity statutes of the sort consistently held to be constitutional (Roth v. United States, 354 U.S. 476) but with equal consistency refused application by the highest Federal court to any particular book or movie. (14 N.Y.2d, at 406–7, emphasis added)

Judge Scileppi wrote: It is inconceivable that judicial thinking can become so beclouded by unwarranted fears and spurious cries of censorship as to result in giving constitutional protection to . . . one of the foulest, sexually immoral, debasing, lewd and obscene books ever published, either in this country or abroad. . . . If this classic example of pornography is not obscene, then I doubt if any written matter can ever be found to be obscene. The growing tendency to narrow the definition of obscenity and to demand impossible standards makes it virtually impossible to enforce any existing obscenity law or to enact any new legislation which can adequately protect our people from indecent and obscene publications. This is an incredible result which cannot long stand, for an aroused public is sure to bring about a change in the attitude that “anything goes” in the area of printed material and motion picture productions. The majority opinion here, in my view, sounds the death knell of the longhonored standards of American decency which have remained an integral part of our national heritage. I cannot agree that our society, even in 1964, has become so depraved that it has come to accept the kind of trash represented by Fanny Hill and similar books, the publishers and purveyors of which are now given unbridled permission to advertise obscenity for sale with complete immunity. . . . In balance, public decency and morality are more important than the deprivation resulting from the banning of noxious publications which seem to appeal to that small segment of our people whose baser instincts make reading of obscenity and pornography their favorite pastime. 14 N.Y.2d, at 407–8, emphasis added

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In People v. Bookcase, Inc., 14 N.Y.2d 409 (1964), the Court of Appeals reversed a conviction for selling Fanny Hill to a minor in violation of Penal Law § 484-h, which prohibited the sale to a minor under eighteen years of “any book . . . the cover or content of which exploits, is devoted to, or is principally made up of descriptions of illicit sex or sexual immorality” (emphasis added). In order to convict a person of violating section 484-h, the prosecution did not have to establish that Fanny Hill was obscene. Bills containing previous versions of the statute had been vetoed in 1949 and 1952 by Governor Thomas E. Dewey on the grounds they violated the teachings of Winters. In 1955, Governor Harriman signed the bill enacting 484-h with the comment that while there were questions about its constitutionality, “[i]n view of the condition with which [the State] . . . was trying to cope, it seems to me [the Governor] that such question should be left to the courts for determination.” 14 N.Y.2d, at 413. The question of the constitutionality of § 484-h came before the Court of Appeals in Bookcase, and the majority concluded that the section was unconstitutionally vague under Winters. Unconstitutionality of an otherwise vague statute, the Court concluded, could not be obviated by applying it only to minors. Moreover, in this case, the statute was so broad that it covered publications whose distribution could not constitutionally be prohibited even to minors (e.g., sociological discussions of sexual matter, the Oedipus legend, etc). The Court did not directly address the question of whether a statute could be drawn that constitutionally could prohibit the sale of nonobscene publications to minors, but it did not exclude the possibility and recognized that such statutes have been recommended by commentators and their constitutionality upheld in at least one state. In any event, the Court held that section 484-h was unconstitutionally vague for a criminal statute. Judge Burke’s dissenting opinion strongly castigated the majority’s use of the vagueness concept. He argued that with the long legislative history of 484-h, there could be no doubt about the purpose of the Legislature in enacting it. He contended that the vagueness concept often was used out of antagonism to legislative policy rather than due to uncertainty about the meaning of the statute. Implicitly, he suggested, the former was the motive for majority “unblushingly inform[ing] the Legislature that . . . [the Court is] not quite sure what . . . [the Legislature] is talking about when, after 11 years of study” it enacted 484-h. He also criticized the majority for not avoiding a declaration of unconstitutionality, when the Court could have followed the common course and practice of adopting a limiting construction of the allegedly overbroad section 484-h. Judge Burke also pointed out that, in Jacobellis, Justice Brennan had suggested that different standards from those applicable to adults could be applied

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to children. Of course, the majority had not rejected the concept of variable obscenity; it had held that even a standard applicable only to children could not be unconstitutionally vague or overbroad.3

VIII. The Supreme Court, March 21, 1966: Memoirs, Mishkin, and Ginzburg On March 21, 1966, the United States Supreme Court decided three important obscenity cases: Mishkin v. State of New York, 383 U.S. 502; A Book Named “John Cleland’s Memoirs of a Woman of Pleasure” v. Attorney General of the Commonwealth of Massachusetts, 383 U.S. 413; and Ginzburg v. United States, 383 U.S. 463. Each elaborated on or changed, depending on the view of the observer, the test for obscenity laid down in Roth. Memoirs narrowed the scope of what constitutionally can be labeled obscenity. Ginzburg and Memoirs addressed the relevance of methods of dissemination and characteristics of production in determining whether material is obscene. Mishkin modified the prurient appeal element in Roth and also approved New York’s approach to scienter.

A. Memoirs and the “Utterly Without Redeeming Social Value” Element in Roth Memoirs was a 6–3 decision that reversed the finding of the highest court of Massachusetts that Fanny Hill was obscene. Two justices joined in Justice Brennan’s opinion, four others concurred in the result, and three dissented. It will be recalled that Roth required that “three elements must coalesce”: (a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value.

The deficiency in the State Court’s application of Roth was that in its interpretation of the third element, that the material is utterly without redeeming social value, it did not require that to be found obscene a book “must be unqualifiedly worthless.”

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Justice Brennan declared that the element of social value or social importance is a distinct and independent third element that had to be established by the prosecution. A book cannot be proscribed unless it is found to be utterly without redeeming social value. This is so even though the book is found to possess the requisite prurient appeal and to be patently offensive. Each of the three federal constitutional criteria is to be applied independently; the social value of the book can neither be weighed against nor canceled by its prurient appeal or patent offensiveness. Hence, even on the view of the court below that Memoirs possessed only a modicum of social value, its judgment must be reversed as being founded on an erroneous interpretation of a federal constitutional standard. 383 U.S., at 420

The dissenters were concerned that by virtue of what they viewed as a substantial change in the approach adopted in Roth, the burden the change would place on the prosecutor would make it practically impossible to find that a publication is obscene. These and related concerns were addressed in subsequent Supreme Court changes in obscenity law. Justice Clark’s unabashedly angry dissent attested that he had voted with the majority in Roth “solely because the Court had held that the test of obscenity” consisted of two elements, “appeal to the prurient interest” and “community standards.” His discussion of the content of Fanny Hill displays outrage of a kind similar to that of the dissenters in the earlier New York Fanny Hill cases, Larkin v. G.P. Putnam’s Sons and People v. Bookcase, Inc. Justice Clark wrote: It is with regret that I write this dissenting opinion. However, the public should know of the continuous flow of pornographic material reaching this Court and the increasing problem States have in controlling it. Memoirs of a Woman of Pleasure, the book involved here, is typical. I have “stomached” past cases for almost 10 years without much outcry. Though I am not known to be a purist or a shrinking violet this book is too much even for me. It is important that the Court has refused to declare it obscene and thus affords it further circulation. In order to give my remarks the proper setting I have been obliged to portray the book’s contents, which causes me embarrassment. However, quotations from typical episodes would so debase our Reports that I will not follow that course. 383 U.S., at 441

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B. Mishkin and Section 1141 1. MISHKIN AND VAGUENESS

The Supreme Court in Mishkin, supra, affirmed a New York Court of Appeals affirmance, without opinion, of a conviction for selling obscene magazines in violation of section 1141. People v. Mishkin, 15 N.Y.2d 671 (1964). The Supreme Court sustained the constitutionality of section 1141 against a claim of vagueness and also approved the “hard-core pornography” standard of Richmond County News. In sustaining the statute against a claim of vagueness, the Court relied on the construction of the provision by the New York courts. Cf. Justice Brennan in Roth, p. 23, supra. Concluding that the New York Court of Appeals in Richmond County News had defined “obscene” as embracing a “narrower class of conduct than that delimited under the Roth definition” and relying on and quoting extensively from Richmond County News, the Court found that taking into account the State Court’s construction of section 1141, the statute “provide[d] reasonably ascertainable standards of guilt.” 383 U.S., at 506. In relevant part section 1141 provided: 1. A person who . . . has in his possession with intent to sell, lend, distribute . . . any obscene, lewd, lascivious, filthy, indecent, sadistic, masochistic or disgusting book . . . or who . . . prints, utters, publishes, or in any manner manufactures, or prepares any such book . . . (emphasis added).

Defendants claimed that the italicized words were vague and, consequently, the statute was unconstitutional. The Supreme Court, relying on New York’s judicial construction of the terms, rejected the claim. The Supreme Court reasoned that Roth had held that “obscene” was not an unconstitutionally vague term, and inasmuch as the New York courts had held that “sadistic,” “masochistic,” and the other adjectives in the provision were synonymous with “obscene,” those also were not unconstitutionally vague. Because of New York’s construction of the statutory terms, the Court did not, and held it need not, decide whether the adjectives (other than “obscene”), standing alone, were unconstitutionally vague. 2. MISHKIN’S APPROVAL OF NEW YORK’S SCIENTER ELEMENT

The Supreme Court also approved earlier New York Court of Appeals interpretations of section 1141 so as to include scienter, as well as the definition of sci-

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enter adopted by the Court of Appeals in People v. Finkelstein, 9 N.Y.2d 342 (1961): A reading of . . . [section 1141] as a whole clearly indicates that only those who are in some manner aware of the character of the material they attempt to distribute should be punished. It is not innocent but calculated purveyance of filth which is exorcized. 9 N.Y.2d, at 342.

Although Judge Froessel in a subsequent case, also entitled, People v. Finkelstein, 11 N.Y.2d 300, 304 (1962), had spoken of the definition as including “knowledge of the contents” of the materials, the Supreme Court in Mishkin stated it did not read the later Finkelstein case as having modified the definition in the first Finkelstein case, and it approved that definition of scienter as “fully meet[ing] the demands of the Constitution.” The Supreme Court explicitly refused to address as unnecessary to its decision a question left open in Smith v. People of the State of California, 361 U.S. 147, 154 (1959), “what sort of mental element is requisite to a constitutionally permissible prosecution[?].” 3. MISHKIN’S “ADJUSTMENT” OF ROTH’S PRURIENT APPEAL ELEMENT

An inventive argument on behalf of the defendant in Mishkin, caused the Supreme Court to “adjust” the Roth formulation. Defendant contended that the challenged publications did not satisfy Roth’s requirement that the publications “appeal to a prurient interest of the ‘average person’ in sex,” because the depictions were of “various deviant sexual practices, such as flagellation, fetishism, and lesbianism,” practices that “instead of stimulating the erotic, they disgust and sicken” the “average person.” 383 U.S., at 508 (emphasis added). The Court characterized this argument as based on an “unrealistic interpretation” of the prurient-appeal element; nevertheless, in order to obviate the possible weakness in the Roth formulation, the Court “adjust[ed]” it. We adjust the prurient-appeal requirement to social realities by permitting the appeal of this type of material to be assessed in terms of the sexual interests of its intended and probable recipient group; and since our holding requires that the recipient group be defined with more specificity than in terms of sexually immature persons, it also avoids the inadequacy of the most-susceptibleperson facet of the Hicklin test. 383 U.S., at 509 (emphasis added)

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C. Ginzburg and Pandering: The Relevance of the Circumstances of Production, Sale, and Publicity In Mishkin, the Supreme Court described in detail the manner in which the publications were produced, including the publisher’s instructions to authors, the quality of the printing, the editing, and the like, but the opinion did not directly address the question of how that evidence was relevant if the challenged publication standing alone was not obscene. Although the Memoirs opinion, unlike that in Mishkin, did not describe any record evidence concerning the circumstances of the distribution and production of Fanny Hill, Justice Brennan did address the relevance of those facts. It does not necessarily follow from this reversal that a determination that Memoirs is obscene in the constitutional sense would be improper under all circumstances. On the premise, which we have no occasion to assess, that Memoirs has the requisite prurient appeal and is patently offensive, but has only a minimum of social value, the circumstances of production, sale, and publicity are relevant in determining whether or not the publication or distribution of the book is constitutionally protected. Evidence that the book was commercially exploited for the sake of prurient appeal, to the exclusion of all other values, might justify the conclusion that the book was utterly without redeeming social importance. It is not that in such a setting the social value test is relaxed so as to dispense with the requirement that a book be utterly devoid of social value, but rather that, as we elaborate in Ginzburg v. United States . . . where the purveyor’s sole emphasis is on the sexually provocative aspects of his publications, a court could accept his evaluation at its face value 383 U.S., at 420 (emphasis added)

The record in Ginzburg v. United States, decided the same day as Mishkin and Memoirs, did present the question of the relevance of circumstances, and Justice Brennan wrote for a 5–4 majority: In the cases in which this Court has decided obscenity questions since Roth, it has regarded the materials as sufficient in themselves for the determination of the question. In the present case, however, the prosecution charged the offense in the context of the circumstances of production, sale, and publicity and assumed that, standing alone, the publications themselves might not be obscene. We agree that the question of obscenity may include consideration of the setting in which the publications were presented as an aid to deter-

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mining the question of obscenity. . . . As in Mishkin . . . , we view the publications against a background of commercial exploitation of erotica solely for the sake of their prurient appeal. . . . Besides testimony as to the merit of the material, there was abundant evidence to show that each of the accused publications was originated or sold as stock in trade of the sordid business of pandering—“the business of purveying textual or graphic matter openly advertised to appeal to the erotic interest of their customers.” . . . This evidence, in our view, was relevant in determining the ultimate question of obscenity and, in the context of this record, serves to resolve all ambiguity and doubt. 383 U.S., at 465–66, 467, 470 (emphasis added)

IX. Continuing Uncertainty in the Attempts to Define or Apply a Definition of Obscenity A. People v. G.I. Distributors, Inc. People v. G.I. Distributors, Inc., 20 N.Y.2d 104, cert. denied, 389 U.S. 905 (1967), serves as a stark example of the difficulties of determining what is obscene under the then prevailing definitions. A 6–1 majority of the Court of Appeals agreed that a magazine consisting of photographs of nude males in a variety of poses, but not actually touching one another, was obscene within the meaning of Penal Law § 1141 and that no constitutional limits had been exceeded. Judge Breitel for the majority and Chief Judge Fuld, the lone dissenter, agreed on the applicable tests for constitutionality, but reached different results based in large measure on how each would describe the photographs. However, agreement on the verbal formulae to determine obscenity could not avoid disputes about whether a specific publication was obscene. Much depended on how each member of the Court would describe the contents of the publication, because the description or characterization of the contents carried with it the implicit conclusion of whether the publication was obscene. Judge Breitel noted that in a case where the Supreme Court had found the contents of a publication were not obscene, the Court had concluded that the government’s characterization of the contents was “inaccurate” (Manual Enterprises v. Day, 370 U.S. 478), and Judge Breitel went on to observe that “[p]resumably, if the description had been accurate the case might have been decided differently.” 20 N.Y.2d at 107. In G.I. Distributors, Inc., the majority and dissent disagreed on how the pictures should be described. To the majority, the individual “photographs in the

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context of the others in the pamphlet indicate that the pamphlet taken as a whole is designed to portray a full range of sexual behavior between young males from byplay to pederasty.” 20 N.Y.2d at 106–7. Judge Fuld characterized the majority’s description of the magazine’s contents as “overdrawn” and thought that the photographs were “merely ‘suggestive.’” 20 N.Y.2d at 108.

B. Redrup v. State of New York: The Failure of a Court Majority to Support a Single Test for Obscenity While the majority and the dissent in the 1967 case of People v. G.I. Distributors, Inc., supra, accepted the same constitutional test for obscenity, that same year, the Justices of the United States Supreme Court continued to disagree on the appropriate test. In Redrup v. State of New York, 386 U.S. 767 (1967), the Supreme Court reversed the conviction of a New York City newsstand vendor for selling so-called “girlie” photo magazines alleged to be obscene in violation of subdivision 1 of section 1141. The Supreme Court had granted certiorari from a decision of the Appellate Term affirming the conviction. The New York Court of Appeals had not considered the case. The Supreme Court, with two Justices dissenting, found the conviction to be unconstitutional. The per curiam opinion for the majority simply noted that whichever of four identified approaches to the constitutional test for obscenity adhered to by different members of the Supreme Court was applied, the conviction would have been unconstitutional. No further elaboration was deemed necessary inasmuch as the challenged conduct was not so “obtrusive as to make it impossible for an unwilling individual to avoid exposure to it[;] . . . there was no evidence of the sort of pandering which the Court [had] found significant” in Ginzburg, and there was no claim “that the statute . . . reflected a specific and limited concern for juveniles.” 386 U.S., at 769. The failure or inability of the Court sufficiently to agree on a rationale for reversal so as to be able to give reasons for its decisions was a matter of concern later noted in Miller v. California, 413 U.S. 15 (1973).

C. 1965 Legislative Definition of Obscenity On September 1, 1967, New York’s new Penal Law went into effect. Section 235.00, its obscenity provision, was an adaptation of the Model Penal Code provision on that subject (L. 1965, ch. 1030, eff. Sept.1, 1967; American Law Institute, Model Penal Code, Proposed Official Draft, May 4, 1962, Section 251.4). The drafters of § 235.00, in defining obscenity, “sought to restate the most recent

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decisional rules.” People v. G.I. Distributors, Inc., 20 N.Y.2d 104, 106 (1967). Subdivision 1 of § 235.00 provided: Any material or performance is “obscene” if (a) considered as a whole, its predominant appeal is to prurient, shameful or morbid interest in nudity, sex, excretion, sadism or masochism, and (b) it goes substantially beyond customary limits of candor in describing or representing such matters. Predominant appeal shall be judged with reference to ordinary adults unless it appears from the character of the material or the circumstances of its dissemination to be designed for children or other specially susceptible audience.

X. Miller v. California: Reformulation of the Constitutional Standard for Obscenity A. Miller v. California: “Utterly Without Social Value” No Longer Part of the Test for Obscenity In 1973, the United States Supreme Court, in a 5–4 decision, decided Miller v. California, 413 U.S. 15, and loosened the constitutional restraints on legislative power to deal with obscenity by modifying the definition of obscenity employed in Roth and its progeny. The Miller opinion, in summarizing what it described as the “somewhat tortured history of the Court’s obscenity decisions,” posited that, except for the decision in Roth, no definition of obscenity had gained acceptance by a majority of the Court. The Court conceded that disagreement was “not remarkable, for in the area of freedom of speech and press the courts must always remain sensitive to any infringement on genuinely serious literary, artistic, political, or scientific expression. This is an area in which there are few eternal verities.” 413 U.S., at 20, 22–23. However, a consequence of the failure of even a bare majority to agree on the constitutional standard for obscenity was that since the 1967 decision in Redrup v. New York, supra, the Court had been engaged in “the practice of summarily reversing convictions for the dissemination of materials that at least five members of the Court, applying their separate tests, found to be protected by the First Amendment” (emphasis added). See, for example, Cobert v. New York, 388 U.S. 443 (1967), simply citing Redrup, in reversing People v. Cobert, 15 N.Y.2d 1020 (1965). The Court unhappily noted that the result of this practice was that it “cast . . . [the Court] in the role of an unreviewable board of censorship for the

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50 States, subjectively judging each piece of material brought before . . . [the Court].” 413 U.S., at 22 , note 3. In Miller, all five Justices in the majority agreed on a reformulated test for obscenity. The Court rejected the approach of Justices Black and Douglas, which it characterized as an “absolutist ‘anything goes’ view of the First Amendment, [even though that approach] would lighten [the Court’s] burdens” to determine what was constitutionally protected. Moreover, expressing federalism concerns, the Court noted that the “absolutist view” would deprive the states of power to regulate in an area in which they had exercised regulatory power since the beginning of the nation. In announcing its reformulated standard, the Court expressed confidence that under its reformulation “no one would be subject to prosecution for sale or exposure of obscene materials unless these materials depict or describe patently offensive ‘hard core’ sexual conduct specifically defined by the regulating state law, as written or construed.” 413 U.S., at 27 (emphasis added). First, the Court reiterated that obscenity was not protected by the First Amendment. Second, it limited the “permissible scope” of legislation regulating obscenity to “works which depict or describe sexual conduct.” Third, it required that the conduct “must be specifically defined by the applicable state law, as written or authoritatively construed.” Fourth, and most significantly, the Court rejected the requirement that, to be constitutionally regulated as “obscene,” a work must be “utterly without social value” or without “social importance.” Cf., Jacobellis, supra. Fifth, if “a state law that regulates obscene material is thus limited, as written or construed, the First Amendment values applicable to the States through the Fourteenth Amendment are adequately protected by the ultimate power of appellate courts to conduct an independent review of constitutional claims when necessary.” 413 U.S., at 23–29, 33–36, passim.

B. People v. Heller, Miller v. California, and the constitutionality of Penal Law § 235.00 1. PEOPLE V. HELLER I REMANDED TO THE COURT OF APPEALS BY THE SUPREME COURT.

The New York Court of Appeals, in People v. Heller, 29 N.Y.2d 319 (1971), (Heller I), a 5–2 decision, sustained a determination that a challenged motion picture was obscene under Penal Law § 235.00. The Court of Appeals decided Heller I in 1971, two years before the Supreme Court decided Miller v. California. The defendant had contended that Penal Law § 235.00, subd. 1, was overbroad and unconstitutionally vague and also had claimed that “films shown

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only to consenting adults in private have a particular claim to constitutional protection.” The majority consisted of Judge Bergan, who wrote the opinion in Heller I, and Judges Burke, Scileppi, Breitel, and Jasen, who concurred. Judge Chief Judge Fuld and Judge Gibson dissented. Heller I also dealt with the adequacy of the procedure for issuing a warrant, a question that is considered infra. The Supreme Court granted certiorari in Heller I. Between the time the Court granted certiorari and decided Heller I, the Supreme Court decided five obscenity cases, including Miller v. California and Paris Adult Theatre I v. Slaton, 413 U.S. 49. In its review of Heller I, the Court decided that the procedure for issuing the warrant was constitutional, but the Court (5–4) vacated the judgment and remanded the case to the Court of Appeals to consider the constitutionality of the New York statute in the light of Miller v. California and Paris Adult Theatre I v. Slaton, judgment vacated and remanded, sub nom., Heller v. New York, 413 U.S. 483 (1973). Justice Brennan, joined by Justices Stewart and Marshall, dissented, and concluded that the New York statute was “unconstitutionally overbroad and therefore invalid on its face” and, therefore, the judgment of the Court of Appeals should have been reversed. 413 U.S., at 494. Justice Douglas, in a separate opinion, 413 S. Ct. 494, also found the statute to be unconstitutional on the absolutist grounds he had consistently espoused.

2. PEOPLE V. HELLER ON REMAND FROM THE SUPREME COURT: CONSTITUTIONALITY OF PENAL LAW § 235.00 AND ISSUES OF STATUTORY CONSTRUCTION

In 1973, the personnel of the Court of Appeals had changed since its 1971 5–2 decision in Heller I. On remand, the Court of Appeals, in a 4–3 decision, sustained the constitutionality of Penal Law § 235.00. People v. Heller, 33 N.Y.2d 314 (1973) (Heller II). This time the majority consisted of Judges Breitel, Jasen, and Burke, three of the five who had constituted the majority in 1971, and Judge Gabrielli, who wrote the opinion with which the others concurred. The dissenters comprised Chief Judge Fuld, one of the two dissenters in the 1971 decision, and Judge Wachtler; both concurred with Judge Jones’s dissenting opinion. Judge Wachtler also wrote a separate dissenting opinion that raised compelling questions concerning the role of the Court in interpreting the statute and challenged whether the majority’s construction of § 235.00 could withstand scrutiny. The majority recognized that the definition of “obscene” in § 235.00, subd. 1, was a “codification of the Roth-Memoirs criteria” and relied on statements in Federal decisions antedating Miller v. California that dealt dismissively with

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claims that the statute was unconstitutionally vague. The task of the majority was to determine whether and how Miller affected the constitutionality of § 235.00. The Miller Court said that a state statute as “written or authoritatively construed” that complied with the Miller standards would meet constitutional requirements. The majority then proceeded to construe § 235.00 in a manner that would satisfy the new Miller tests. First, the majority concluded that the reference in the section to the “ordinary adult” was the equivalent of the “average person” in Miller v. California and that the Court of Appeals had already held, as Miller required, that the community standards to be applied were “a State standard which is definable by the State’s appellate courts.” 33 N.Y.2d, at 324–27. Turning to Miller’s requirement that vagueness was to be avoided by specifically defining the condemned conduct, the majority concluded that the language of the statute, i.e., sex, nudity, sadism, masochism, excretion, were commonly understood terms, some of which described conduct that could be considered malum in se when the subject is commercial exploitation. Moreover, the “entire sense” of the statutory definition of “obscene,” together with prior statements by the Court in applying and construing the section and its predecessor (§ 1141), were sufficient to enable the statute to withstand a constitutional attack on the ground of vagueness. 33 N.Y.2d at 327–28. The vice of permitting unfettered official discretion in applying a criminal statute, the core sin of vagueness, could not be “successfully . . . directed against section 235.00 which is easily interpreted as pertaining to hard-core pornography and the average man, whether he be smut peddler or the policeman, knows it when he sees it [citing Jacobellis],” the majority opinion declared. 33 N.Y.2d, at 328. With respect to Miller’s abandonment of the “utterly without redeeming social value” test in favor of a broader test , the majority concluded that inasmuch as § 235.00, subd.1, contains the stricter test, the defendant had no basis for complaint. Retention of the stricter test was constitutionally permissible and its retention did not adversely affect the constitutionality of the other part of the statutory definition. According to the majority, the consequence was that the reach of § 235.00 was no broader than it was before Miller and “remain[ed] a bit narrower than the allowable limits” insofar as the “utterly without redeeming social value” element was concerned. 33 N.Y.2d, at 331. Judge Jones’s dissenting opinion challenged the majority’s approach to Miller’s specificity requirement. Accepting that, under Miller, “the required specificity of conduct may be found either in the explicit language of the statute as written or in authoritative construction of the statute,” Judge Jones assumed that “authoritative construction [means] actual interpretation by decisions in

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our court, and possibly by interpretations of the lower courts of our State left undisturbed on application for review by [the Court of Appeals].” Judge Jones also assumed that all would agree that section 235.00, subd. 1, “without more, does not on its face meet the Supreme Court test for specificity of sexual conduct,” and he noted that “four Justices in the Supreme Court without more would have held [§ 235.00] unconstitutional.” The central question in the case was whether the statute had been or could be “so construed as to supply the requisite particularity.” The dissenters viewed the Miller specificity requirement as “distinct from and quite beyond that predictability generally required to hurdle the more familiar void-for-vagueness obstacle to constitutionality.” [The] treatment of the subject in the Supreme Court, the care and length of its articulation in the Miller opinion, lends no support to a conclusion that this is indeed nothing more than a fresh restatement of a time-honored rubric and that it could as well have been left unstated. I cannot, therefore, agree with the majority, that “Element ‘(b)’ of the new test [specificity] presents no practical change whatsoever.” Thus understood, in my view our statute has not been nor can it now be so construed as to meet this extra demand now imposed by the Supreme Court. 33 N.Y.2d, at 335.

The core of Judge Jones’s dissent was that the majority had relied in large measure on the concept of hard-core pornography derived from its reading of Richmond County News. This was unacceptable because, he contended, the Court of Appeals cases did not contain a test of what constitutes “hard-core pornography.” Indeed, hard-core pornography as set out in Richmond County News and other cases was not a test at all, and if it was a test, it was too imprecise. The hardcore pornography test focused on characterizing or describing the quality of the prohibited acts or conduct and not on describing or defining the acts themselves. Moreover, the dissent claimed that the Court of Appeals can “be said to have gently laid the hard-core pornography test aside” (33 N.Y.2d, at 338); “rather than being consistently followed . . . the hard-core pornography test was used [only] once [and even then,] as an alternative ground with mixed results,” citing Fritch, supra. 33 N.Y.2d, at 337. As a consequence of both of these failings, reliance on the hard-core pornography test did not meet the Miller specificity standards. Judge Wachtler, who had concurred in the Jones dissent, also wrote separately. He focused on the proper role of the Court, as well as expanding on the

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issue of vagueness. Judge Wachtler would have declared the statute unconstitutional and left it to the Legislature to fashion a new statute paying attention to the requirement of specificity and to define what is meant by community standards. With the law concerning obscenity already a hodgepodge, the course of prudence dictates that we declare the existing statute constitutionally inadequate and leave the legislative function to the Legislature. Our alternative is to fashion the Emperor’s new clothes, only to await the inevitable day we are asked to judge if the wardrobe fits. Since, in the end, the only real test of obscenity is the subjective perception of a majority of this court, the prospect of passing upon a home-made statute hardly seems becoming or appropriate. .... I am in total agreement with the legal axiom that whenever possible a court should construe a legislative enactment in a way that would make it comply with the Constitution. But what we would have to do in this case goes far beyond construction. In order to make our statute constitutional, we would be doing more than construing it, we would be rewriting it. If a court were permitted to provide detailed provisions of a statute, then there would never be a need to declare any statute unconstitutional for being too vague or overbroad. The judicial officer could merely assume a legislative role and rewrite the defective law. Although we often go quite far to construe a statute in order to make it comply with the Constitution, the line should be drawn when judicial construction becomes transmogrified into legislative creation. 33 N.Y.2d, at 339, 341

Judge Wachtler also expressed concern about how the Court had construed the statute, when at the same time that it recognized that the language of section 235.00 contained the “utterly without redeeming social value” test, the Court also claimed that the statutory language had been construed previously to embody Miller’s test. Judge Wachtler chided: . . . the majority then implicitly concedes that this court has, in effect, neglected the “utterly without” test in favor of the “serious value taken as a whole” Miller test for some time before Miller came down. Such action may have shown great prescience as well as pragmatism on the part of this court, but until the Legislature changes its Memoirs test to a Miller test, a disregard of the “utterly without” criteria amounts to judicial nullification of a duly passed and unarguably constitutional legislative act. This is then but another reason

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why the Legislature and not this court should refashion the criminal obscenity statute.

C. Legislative Amendment of the Definition of “Obscene” Within the year after the second Heller decision, the state Legislature amended § 235.00, subd. 1, to reflect explicitly the standards, including the specifics, set out in Miller. ( L.1974, c. 989, § § 1, 2). After the amendment, “obscene” was defined, as follows: Any material or performance is “obscene” if (a) the average person, applying contemporary community standards, would find that considered as a whole, its predominant appeal is to the prurient interest in sex, and (b) it depicts or describes in a patently offensive manner, actual or simulated: sexual intercourse, sodomy, sexual bestiality, masturbation, sadism, masochism, excretion or lewd exhibition of the genitals, and (c) considered as a whole, it lacks serious literary, artistic, political, and scientific value. Predominant appeal shall be judged with reference to ordinary adults unless it appears from the character of the material or the circumstances of its dissemination to be designed for children or other specially susceptible audience.

This definition should be compared with the version it replaced: Any material or performance is “obscene” if (a) considered as a whole, its predominant appeal is to prurient, shameful or morbid interest in nudity, sex, excretion, sadism or masochism, and (b) it goes substantially beyond customary limits of candor in describing or representing such matters. Predominant appeal shall be judged with reference to ordinary adults unless it appears from the character of the material or the circumstances of its dissemination to be designed for children or other specially susceptible audience.

The 1974 amendment contained the term, “contemporary community standards,” but the statute did not explicitly state whether or not the community standards were to be considered as “statewide.” In People v. Calbud, 49 N.Y.2d 389 (1980), the Court was called upon to consider whether fatal error had been committed when the District Attorney had instructed the grand jury in the language of the statute, but had failed to advise the grand jury whether the “contemporary community standards” were local or statewide. In the context of the case, the Court held that the failure did not vitiate the indictment and affirmed

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that the provision as amended incorporated the statewide community standards it declared had been “articulated” in Heller. The Court rejected the prosecution’s contention that the statewide community standard should be modified, even though the Court conceded that the Supreme Court had “indicated that the issue of what constitutes obscenity may be determined with reference to local community standards (Jenkins v. Georgia, 418 U.S. 153 . . . ).” 49 N.Y.2d at 393. Judge Meyer, with Judge Wachtler concurring, contended that the language and legislative history did not offer certain guidance as to whether the Legislature had intended to incorporate the statewide community standard and there was no need in the context of a grand jury instruction such as the one in the case at bar for the Court to resolve that question.

D. Constitutionality of Defenses to Penal Law § 235.15 Penal Law § 235.15 contained two affirmative defenses. Section 235.15 (2) provided that an affirmative defense to a charge of obscenity could be established if the defendant was a nonmanagerial employee of a motion picture theater and had no financial interest in the motion picture theater other than that of an employee and was not responsible for acquiring the obscene material. A similar defense was not provided for employees of a bookstore charged with disseminating obscene books. In People v. Illardo, 48 N.Y.2d 408 (1979), the Court of Appeals unanimously rejected a claim that the distinction violated the equal protection clause of the Fourteenth Amendment. The Court, without citing any legislative history, speculated about the possible reasons for the distinction. However, inasmuch as the Court concluded that any of the possible reasons cited by the Court provided a rational basis for the distinction, and relying on the presumption of constitutionality, its constitutionality was sustained. The second affirmative defense to a charge of disseminating obscenity could be established if disseminated to “persons or institutions having scientific, educational, governmental or other similar justification for possessing or viewing” the materials. The Court rejected the contention that the defense, especially the clause “other similar justification,” rendered the offense unconstitutionally vague.

XI. The Protection of Minors A. “Variable Obscenity” In 1955, the New York Legislature enacted a provision that criminalized the sale of certain nonobscene materials to minors (later it became Penal Law § 484-h). As

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previously noted, the Court of Appeals held the provision to be unconstitutional on the grounds of vagueness. People v. Bookcase, Inc., 14 N.Y.2d 409 (1964), discussed supra. In People v. Kahan, 15 N.Y.2d 311 (1965), the prosecution relied on a different clause in 484-h than the clause relied on in People v. Bookcase, Inc., and the Court again held § 484-h to be unconstitutional. However, the per curiam opinion noted that while the provision suffered from “defects in draftsmanship . . . [the defects] seem to be remediable both in respect of its substantive definitions and in respect of scienter as to contents and the age of the customer.” 15 N.Y.2d, at 312. Judge Fuld, in a separate concurring opinion, reflected a common and generally accepted view that government had the responsibility and necessarily the power to protect children: Underlying the First Amendment is the premise that government cannot be trusted to regulate thought or opinion and that the people may and, in fact, must be left to reject for themselves false or harmful doctrine whether it involves political, moral or other precepts. . . . But the same reliance need not be and has never, either in theory or practice, been placed on the judgment of children, and the Constitution does not secure to them the same, almost absolute, right assured to adults to judge and determine for themselves what they may read and what they should reject. 15 N.Y.2d, at 312

Nine months earlier, in Jacobellis v. State of Ohio, 378 U.S. 184 (1965), Justice Brennan also had recognized that there could be special concerns respecting the protection of minors: We recognize the legitimate and indeed exigent interest of States and localities throughout the Nation in preventing the dissemination of material deemed harmful to children. But that interest does not justify a total suppression of such material, the effect of which would be to “reduce the adult population to reading only what is fit for children.” [citing Butler]. State and local authorities might well consider whether their objectives in this area would be better served by laws aimed specifically at preventing distribution of objectionable material to children, rather than totally prohibiting its dissemination. 378 U.S. (1965), at 195 (emphasis added)

In 1965, in response to Kahan, the New York Legislature replaced § 484-h with a new section 484-h, and one week later, it added a new section, 484-i. While § 484-h dealt with affording access to the sanctioned materials by minors

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under the age of seventeen, section 484-i prohibited distribution of materials to minors under the age of eighteen years. In addition to the age of the minors protected by the provisions, § 484-i differed from § 484-h in two additional important respects. First, unlike 484-h, supra. Section 484-i described the prohibited materials as posed or presented in such a manner as to exploit lust for commercial gain and which would appeal to the lust of persons under the age of eighteen years or to their curiosity as to sex or to anatomical differences between the sexes . . . which are distinguished from flat and factual statements of the facts, causes, functions or purposes of the subject . . . such as would be found in bona fide medical or biological textbooks[;] and, second, although § 484-i contained a provision requiring scienter as to the character and content of the material, it did not contain a provision requiring scienter as to the age of the minor. The Court of Appeals upheld the constitutionality of 484-h and 484-i in a declaratory judgment action in which the Court stated it was holding “only that the Legislature has the constitutional power to pass such a statute. Questions of vagueness and scienter requirements . . . [had to] await other cases.” Bookcase, Inc. v. Broderick, 18 N.Y.2d 71, 78 (1966), appeal dismissed for want of a properly presented federal question, sub nom. Bookcase, Inc. v. Leary. 385 U.S. 12 (1966)

Two years after the Court of Appeals decided Bookcase, Inc. v. Broderick, the Supreme Court, in a 6–3 decision, sustained the constitutionality of section 484-h “on its face.” Ginsberg v. State of New York, 390 U.S. 629 (1968). The question was posed in terms of the First and Fourteenth Amendment rights of minors under seventeen years of age to have access to the kind of “girlie” photo magazines that the Court had held were “not obscene for adults” in Redrup. In finding § 484-h to be constitutional, the Court concluded that it “[could not] say that the statute invades the area of freedom of expression constitutionally secured to minors.” 390 U.S., at 634, 637. In the course of its opinion, the Court emphasized that the statute did not intrude on the parents’ right to determine what a minor may read. Referring to a commentator who had suggested that without this parental right, the statute might be unconstitutional, the Court noted that “the prohibition against sales to minors does not bar parents who so desire from purchasing the magazines for their children.” 390 U.S., at 639. Ginsberg also rejected the claim that the definition of obscenity in § 484-h, subsection (f ), as “harmful to minors” was unconstitutionally vague, concluding that in Bookcase, Inc. v. Broderick, supra, the Court of Appeals had con-

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strued this definition to be “virtually indentical” to the Supreme Court’s statement of the elements of obscenity in A Book Named “John Cleland’s Memoirs of a Woman of Pleasure” v. Commonwealth of Massachusetts, 383 U.S. 413 (1966). The Supreme Court also rejected the claim that the scienter requirement in 484-h was constitutionally inadequate. Justice Fortas, in his dissenting opinion, objected to the Court’s failure to assess whether the magazines in this case were “obscene” for minors in that the Court did not define the difference between what may be banned for a seventeen-year-old and banned for a sixteen-year-old, because, according to the majority, counsel did not raise the issue. In this First Amendment case, according to Justice Fortas, the Court had a duty to address the question, regardless of counsel’s position. 390 U.S. 629, 671 et. seq. (Fortas, dissent). There appears to have been general uncertainty concerning why § 484-i was enacted. People v. Tannenbaum, 18 N.Y.2d 268 (1966), appeal denied, 388 U.S. 439 (1967), sustained the constitutionality of § 484-i, rejecting defense claims that it was unconstitutional because it was vague and overbroad and because it failed to require the prosecution to prove scienter with respect to the age of the purchaser. Nevertheless, § 484-i was repealed in 1967. Two weeks after the Supreme Court in Ginsberg upheld the constitutionality of section 484-h, the Court decided that § 484-i was unconstitutional. Rabeck v. New York, 391 U.S. 462 (1968). The Supreme Court found that the clause in § 484-i that prohibited the sale of “any . . . magazines . . . which would appeal to the lust of persons under the age of eighteen years or to their curiosity as to sex or to anatomical differences between the sexes” to be unconstitutionally vague. Rabeck was decided after § 484-i had been repealed. Justice Harlan dissented in Rabeck. In addition to disagreeing with the finding of unconstitutionality, he also considered “it a particularly fruitless judicial act to strike down on the score of vagueness a state statute which has already been repealed.” 391 U.S., at 463. However, it was not a “fruitless judicial act” insofar as Mr. Tannenbaum was concerned. The New York Court of Appeals, on reargument, reversed Tannenbaum’s conviction, because Rabeck had declared section 484-i to be unconstitutional. People v. Tannenbaum, 23 N.Y.2d 753 (1968).

B. Child Pornography 1.PEOPLE V. FERBER: MILLER TEST MODIFIED FOR CHILD PORNOGRAPHY

In People v. Ferber, 52 N.Y.2d 674 (1981), the Court of Appeals applied the Miller test and held that New York Penal Law § 263.15, which prohibited the

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promotion of nonobscene sexual performances by a child under the age of sixteen, violated the Federal Constitution’s First Amendment. The Supreme Court held that the statute did not violate the First Amendment and reversed and remanded. New York v. Ferber, 458 U.S. 747 (1982). The Supreme Court conceded that, based on Miller and its other decisions, it was not unreasonable for the Court of Appeals to have concluded that the statute violated the First Amendment. However, the Supreme Court concluded that the Miller test “was not a satisfactory solution to the child pornography problem”; focusing on the protection of the child as the central concern, the Court revised the Miller test when applied to child pornography. First, the Miller requirements that the “work, taken as a whole, appeals to the prurient interest of the average person” and that “a sexually explicit depiction” be “patently offensive” were held to be not applicable to child pornography. Further, the Court concluded that “a work which, taken on a whole, contains serious literary, artistic, political, or scientific value [and is protected by Miller] may nevertheless embody the hardest core of child pornography,” and thus, that element of the Miller test was found to be irrelevant to the abused child. 458 U.S., at 760. On remand, the Court of Appeals found § 263.15 to be constitutional under the New York State Constitution and unanimously affirmed the conviction. People v. Ferber, 57 N.Y.2d 256 (1982). Although the Court of Appeals recognized that the State Constitution could afford greater protection to speech than is required by the First Amendment, in this, the first case in which the constitutionality of an obscenity test was considered under the State Constitution, the Court concluded that the conduct involved in Ferber did not enjoy that broader protection. The Court declined to “address or to anticipate questions as to the constitutionality of the statute as applied to other factual situations.” 57 N.Y.2d, at 257. Judge Meyer, with Judge Fuchsberg, concurring in a separate opinion, contended that, in anticipation of the likelihood that § 263.15 could have some unconstitutional applications, the Court of Appeals should have recognized an affirmative defense for scientific and educational writings similar to the one provided in the basic New York obscenity statute (New York Penal Law § 235.15). 2. EDUCATIONAL, SCIENTIFIC, RESEARCH JUSTIFICIATION

In 1996, the State Legislature provided an educational, scientific, etc., defense to a charge of disseminating indecent materials to a minor (L. 1996, ch. 600, § 1). However, the defense was not provided for § 263.15, promoting indecent performances by a minor, the statute involved in Ferber. People v. Fraser, 96 N.Y.2d 318 (2001), a prosecution for violating § 263.15, rejected defendant’s First Amendment and State and Federal equal protection claims. The Court of

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Appeals relied on the United States Supreme Court position sustaining the constitutionality of § 263.15 in New York v. Ferber, 458 U.S. 747 (1982), reversing People v. Ferber, 52 N.Y.2d 674 (1981) and on Osborne v. Ohio, 495 U.S. 103 (1990), sustaining a statute that condemned possession of child pornography. The Supreme Court opinions in both cases recognized that the state’s compelling interest in stamping out child pornography provided government with a power that was constitutionally less restricted than its power to regulate obscenity. Relying on that doctrine, the Court reasoned that the First Amendment did not require the State to recognize an educational and scientific justification defense, particularly in view of the Supreme Court’s statement in Ferber that material with strong literary or scientific value “may embody the hardest core of child pornography.” 458 U.S., at 761. Additionally, the defendant argued that because the same material could be the subject of the defense under the obscenity statute but not under child pornography provision, the failure to afford the defendant the defense in a child pornography prosecution violated State and Federal constitutional equal protection provisions. Relying on the State’s broad power to suppress child pornography, the Court of Appeals also rejected the defendant’s equal protection claim, and refused to hold the provision unconstitutional or to provide a judicially created justification defense. 3. PEOPLE V. KEYES–ACQUISITION OF CHILD PORNOGRAPHY

In People v. Keyes, 75 N.Y.2d 343 (1990), the Court of Appeals unanimously construed Penal Law § 263.15, criminalizing promoting sexual performance by a child, to prohibit acquisition of photographs of a child engaging in a sexual performance. In construing this statute the Court rejected a narrow interpretation of what constitutes “promoting,” concluding that conviction did not require that the defendant in acquiring the photographs have the purpose to further distribute the photographs. Moreover, the Court refused to consider the constitutional defense under Stanley v. Georgia, 394 U.S. 557, 564–65 that would have protected mere possession of the photographs for personal use, because the defendant had been charged with “promotion of sexual performance” and not with “possession” of the photographs. Against a background of serious concern about child pornography described in the opinion, the Court had construed the statute broadly and the indictment narrowly. 4. CYBERSPACE AND PROMOTING CHILD PORNOGRAPHY

In People v. Foley, 94 N.Y.2d 668 (2000), the defendant was charged with attempted dissemination of indecent material to a minor in violation of Penal Law § 235.22 when with knowledge of its content he used the Internet with the

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intent to transmit to a minor a communication containing indecent material with the further intent to “ ‘importune, invite or induce’ the minor to engage in sexual conduct for the sender’s benefit.” § 235.22 was “enacted to address the convergence of predatory pedophile activity with Internet technology.” Foley, at 668–69.4 The Court rejected defendant’s First Amendment attacks on the constitutionality of the provision, relying on the culpable mental states that the provision required for conviction. The Court of Appeals distinguished § 235.22 from the Federal statute that was declared unconstitutional in Reno v. American Civil Liberties Union, 521 U.S. 844 (1997), on the grounds it was overbroad. Unlike the Federal statute, which simply “prohibited the knowing transmission [to a minor over the Internet] of ‘obscene or indecent’ comments” or certain offensive images to any person under the age of eighteen, § 235.22 required that the prosecution had to prove that the defendant intentionally transmitted the communication with knowledge of its content and with the further intent to induce the minor to engage in sexual acts. According to the Court, these culpable mental state requirements sufficiently narrowed the statute so as to exclude from its prohibition innocent conduct that might be protected by the First Amendment. “Penal Law § 235.22 is a preemptive strike against sexual abuse of children by creating criminal liability for conduct directed toward the ultimate acts of abuse.” Foley, at 679.

XII. Applying the New York State Constitution in Obscenity Cases Since 1821, Article 1, § 8, of the New York State Constitution has provided, in relevant part: Every citizen may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press . . .

Although the Court of Appeals had stated that the New York State Constitution could provide rights broader than those guaranteed by the First Amendment, it was not until 1981 that the Court actually recognized a right to freedom of expression under the State Constitution broader than that required by the Federal Constitution. Indeed, until Bellanca v. New York State Liquor Authority, 54 N.Y.2d 228 (1981), neither majority nor dissenting opinions when dealing

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with the definition of obscenity relied on Article 1, section 8, of the New York State Constitution, although Judge Fuld cited, but did not separately discuss, the State constitutional provision in the leading case of People v. Richmond County News, Inc., 9 N.Y.2d 578, 581 (1961), supra. On the other hand, when the Court of Appeals dealt with various aspects of enforcing the laws dealing with obscenity, indecency, and related statutes, e.g., search warrant requirements, zoning, and injunctions, the Court not uncommonly recognized broader limitations on state power under the State Constitution than did the Supreme Court under the United States Constitution. Treating the Federal bill of rights as providing only a minimum standard of protection and actually recognizing broader rights under the State Constitution, a practice often referred to as “our federalism” or the “New Judicial Federalism,” often occasioned intense controversy on the Court of Appeals in both obscenity- and nonobscenity-related cases. See, e.g., People v. Keta, 79 N.Y.2d 474 (1992), and chapter 8. This section considers those cases only insofar as they bear on obscenity and obscenity-related questions.

A. Bellanca v. New York State Liquor Authority Bellanca v. New York State Liquor Authority, 54 N.Y.2d 228 (1981), is the first case in which the application of Article 1, section 8, of the New York State Constitution yielded a different result than did the application of the Federal Constitution’s First Amendment. Bellanca involved a provision of the New York State Alcoholic Beverage Control Law that prohibited all topless dancing on licensed premises. When Bellanca was first considered by the Court of Appeals, it held, in a 4–3 decision, that the provision violated the First Amendment to the Federal constitution. Bellanca v. New York State Liquor Authority, 50 N.Y.2d 524 (1980). The Supreme Court granted certiarori and reversed the Court of Appeals. New York State Liquor Authority v. Bellanca, 452 U.S. 714 (1981). The Supreme Court reasoned that even if the prohibited dancing otherwise was protected by the First Amendment, this protection gave way to the complete power of the states to regulate liquor within its boundaries under the Twenty-First Amendment. Consequently, the Supreme Court held that New York’s power to establish the conditions for the operation of licensed premises was not limited by the First Amendment. On remand from the Supreme Court, the New York Court of Appeals held that even if the statute did not violate the First Amendment, it did violate Article 1, section 8, of the New York State Constitution. Bellanca v. New York State

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Liquor Authority, 54 N.Y.2d 228 (1981). The majority opinion by Judge Jones, in which Judges Wachtler, Fuchsberg, and Meyer concurred, reasoned that the New York State Constitution could afford rights broader than those protected by the First Amendment, and whatever effect the Twenty-First Amendment might have on the First Amendment, it did not modify the guarantees of Article 1, section 8, of the New York State Constitution. The Court posited that nonobscene dancing not on licensed premises is a constitutionally protected form of expression under the New York State Constitution. The Court conceded that while some appropriate regulation of topless dancing on licensed premises could be constitutional, the blanket prohibition of all topless dancing was unconstitutional under the State Constitution even if the statute did not violate the Federal Constitution. There were two dissenting opinions in Bellanca. Chief Judge Cooke and Judge Jasen concurred in Judge Gabrielli’s dissenting opinion. Judge Jasen, in a separate dissenting opinion, challenged what was later to become the concept of the “New Federalism.” In his opinion Judge Jasen challenged particularly the wisdom of recognizing “a right to freedom of expression broader than the rights under the First Amendment.” He stated: In my view, however, this would be most unfortunate. There is no significant difference between the language of the First Amendment and of section 8 of article I of the New York State Constitution. Nor is any compelling reason offered to justify such an expansion of the State right to freedom of expression. Finally, such a holding would require that we deviate, for the first time, from the Supreme Court’s interpretation of constitutionally protected rights in this area. 56 N.Y.2d, at 246 (emphasis added)

Strictly speaking, however, Bellanca did not involve a direct conflict between the Supreme Court’s views about the content of the First Amendment, on the one hand, and the State Constitution’s protection of freedom of expression, on the other. Indeed, a credible argument could be made, absent the effect of the Twenty-First Amendment, that the Supreme Court might well have held in Bellanca that the New York statute violated the First Amendment. Cf. Doran v. Salem Inn, Inc., 422 U.S. 922 (1975). Bellanca was not the beginning of a trend, for in the next case in which the Court of Appeals addressed the question of whether the sanctioned conduct satisfied the constitutional test for obscenity, the Court reached the same conclusion under the State Constitution as had the Supreme Court under the First Amendment, see, People v. Ferber, 57 N.Y.2d 256 (1982), discussed supra. “Topless dancing” is considered further, infra.

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B. Warrants Authorizing the Seizure of Allegedly Obscene Materials Search and seizure problems in obscenity and indecency cases involved the convergence of issues raised by the need for specificity in the warrant in order to avoid the evils of general warrants and the imperative that a judge determine whether material is obscene. Questions concerning search warrants in cases involving freedom of expression became the occasion for the Court of Appeals increasingly to read the State Constitution as guaranteeing rights broader than the United States Constitution. 1. RELIANCE ON THE FOURTH AMENDMENT

At first, the Court of Appeals usually relied solely on the Fourth Amendment to the United States Constitution in determining the constitutionality of search warrants issued to enforce obscenity statutes. In People v. Matherson, 16 N.Y.2d 180 (1965), the District Attorney conceded that a warrant that described the objects of the search to be seized as “obscene, lewd and indecent books and material” was defective as a general warrant, although the seizure was upheld as incident to a lawful arrest. In People v. Rothenberg, 20 N.Y.2d 35 (1967), a warrant that “authorized a search of appellant’s premises for and a seizure of ‘obscene, indecent and “hardcore pornographic” pictures, photographs and motion picture films’” was held to be insufficiently specific to satisfy the Fourth Amendment. Id, at 38 (emphasis added). The critical point for the Court of Appeals in Rothenberg was that what is “permitted as free speech under the First Amendment to the United States Constitution cannot be left to the determination of police chiefs and patrolmen everywhere. . . . The basic defect is that the [insufficient specificity of the] language of the warrant delegates to the police officer executing it the function of determining whether the material is obscene.” 20 N.Y.2d, at 38. Judge Van Voorhis wrote the opinion for the court, with Chief Judge Fuld and Judges Bergan and Breitel concurring. Judges Scileppi and Keating, concurred in a dissenting opinion by Judge Burke. On the authority of Rothenberg, warrants were held to violate the Fourth Amendment in People v. Abronovitz, 31 N.Y.2d 160 (1972) (magazines that were the basis of conviction were not named in the warrant or referred to in the affidavits) and People v. S & L Processing Lab, Inc., 33 N.Y.2d 851 (1973) (4–3 decision). People v. Heller, 29 N.Y.2d 319 (1971), supra, sustained a warrant against a challenge that it had been issued in violation of the Fourth Amendment. Marcus v. Search Warrants, 367 U.S. 717 (1961), had been the principal case that dealt with the requirements of the Fourth Amendment for warrants authorizing

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the seizure of obscene materials. Heller read Marcus, in substance, as requiring that “seizure of evidence as obscene, and arrests on this ground, should not be left to the judgment of policemen, but should have judicial supervision” (29 N.Y.2d, at 322), and Heller held that Marcus was satisfied when the judge had viewed the film in a commercial movie house before issuing the warrant that authorized its seizure in order to preserve the film for evidence. The Court of Appeals rejected the defendant’s contention that an adversary hearing had to follow the issuance of the warrant before seizure even if the warrant was the product of adequate judicial scrutiny. The Supreme Court agreed, distinguishing cases like Heller from those like Marcus. In Heller, the warrant authorized the seizure of one copy of the allegedly obscene material in order that it be copied or otherwise preserved as evidence and there was no evidence that the defendant was restrained from showing other copies of the film that might be under his control. In Marcus, if there was a seizure of a large quantity of materials or the seizure were for the purpose of destroying the materials that would as a practical matter result in a prior restraint without a judicial hearing. Heller (discussed supra) was vacated on other grounds and remanded, sub nom., Heller v. New York, 413 U.S. 483 (1973). A warrant issued by a judge who participated in the investigation and seizure of the items was constitutionally suspect, in part because the neutrality of the judicial officer was cast in doubt. In Lo-Ji Sales, Inc. v. New York, 442 U.S. 319 (1979), on direct review of a decision of the Appellate Term, the United States Supreme Court reversed a State conviction, on the grounds that a search warrant had been issued in violation of the Fourteenth Amendment. A Town Justice, at the request of a state police investigator whose affidavit alleged that a store was selling obscene materials, issued a two-page warrant that listed two items to be seized. The warrant became a sixteen-page warrant when additional items were added after the Town Justice, with the warrant in hand, accompanied the investigator to the store, examined and seized items in the store, and later inventoried the items at the police station and added them to the warrant. The Supreme Court held that the warrant violated the Fourteenth Amendment, because, like a general warrant, it left to the investigating officer’s total discretion the determination of whether an item was likely to be obscene. Moreover, the Fourteenth Amendment did not permit open-ended warrants with the items to be seized entered on the warrant after the search and seizure were completed. In addition, the Town Justice was not the neutral and detached judicial officer required by the Fourteenth Amendment; in fact, he was the leader of the investigation and the leader of the search party. The Court distinguished this case

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from Heller, supra. In Heller, the judge had not led an investigation; he had simply personally examined the evidence (the film) as the basis for issuing the warrant. Indeed, it was essential that the issuing judge (or magistrate) personally examine the evidence. In Monserrate v. Upper Court Street Bookstore, Inc., 49 N.Y.2d 306 (1980), evidence was suppressed when the Court concluded that it was inconceivable that the judge who issued the warrant could have examined literally thousands of items seized and not presented to him in the original warrant application. The failure of the magistrate to “actually and in fact, draw inferences from the evidence presented to him” was the reason for the unanimous holding in People v. Potwara, 48 N.Y.2d 91 (1979), that the warrant violated both the State and Federal constitutions. In accepting the police officer’s statement that other judges had concluded that the named magazines were probably obscene, the issuing magistrate made no attempt to learn whether the entire publication or merely a portion of each had been reviewed. He failed to test the manner in which the absentee judges reached their conclusions, to learn who presented the materials and how, or even to discover whether the purpose of the purported determinations was known to the judges passing on the materials. The cursory nature of the issuing Magistrate’s inquiry is demonstrated by the fact that he demanded no independent evidence of the findings made by the other Judges, if any. Indeed, the record indicates that the very identity of one of the absentee Judges was unknown to the issuing Magistrate. Even if the issuing Magistrate had made such inquiries the warrant would fail because he did not personally exercise his own faculties to draw whatever inferences were permissible from the facts presented to him. . . . We conclude that because in the case at bar the Justice failed to personally conduct the searching inquiry necessary to a proper determination of probable cause the warrant issued was invalid. . . . Nor does the mere fact that the Magistrate joined the police validate the otherwise invalid warrant (citing Lo-Ji Sales v. New York, supra). . . . [W]here the Magistrate conducts a measured and comprehensive examination into the basis for the warrant, the factual determination as to probable cause will be given substantial deference on review. By the same token, where the Magistrate merely acts as a rubber stamp, the validity of the warrant will be suspect. 48 N.Y.2d, at 94–96, passim

314 Obscenity, Indecency, and Immorality 2. PEOPLE V. P.J. VIDEO, INC. AND WARRANTS UNDER THE STATE CONSTITUTION

Article I, § 12, of the New York State Constitution was added in 1938 and provides: The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Prior to 1938, the subject was covered by statute. The language of both the State Constitution and that of the Fourth Amendment of the United States Constitution is identical, and thus far the Court of Appeals either relied solely on the Fourth Amendment or viewed the State and Federal constitutional protections as identical. This changed with People v. P. J. Video, Inc., 68 N.Y.2d 296 (1986), a decision following remand from New York v. P. J. Video, Inc., 475 U.S. 868 (1986), in which the Supreme Court reversed a Court of Appeals determination that the warrant in question violated the Fourth Amendment. People v. P. J. Video, Inc., 65 N.Y.2d 566 (1985). People v. P. J. Video, Inc., 68 N.Y.2d 296 (1986), is significant for several reasons. First, after reargument following remand the Court of Appeals announced that the “State Constitution imposes a more exacting standard for the issuance of search warrants authorizing the seizure of allegedly obscene material than does the Federal Constitution.” 68 N.Y.2d, at 299. Second, the opinion by Judge Simons set out the principles that would guide the Court of Appeals in determining whether rights under the State Constitution are broader than under the Federal Constitution. This aspect of the opinion, including the interpretive and noninterpretive approaches to determining the content of state constitutional protections, is considered in greater detail in chapter 8. Third, the opinion discussed the differing rules governing searches and seizures under the State and Federal constitutions, a subject also addressed in greater detail in chapter 8. In New York v. P.J. Video, Inc., 475 U.S. 868 (1986), the Supreme Court rejected the Court of Appeals determination in 65 N.Y.2d 566 (1985), that the magistrate issued a warrant in violation of the Fourth Amendment. The Court of Appeals stated: In this case, the Supreme Court’s “totality of the circumstances/fair probability” approach sanctioned a determination of probable cause based solely on

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the police affiant’s showing that the films contained numerous sexually explicit scenes and his conclusory assertions that the scenes were representative of the films as a whole. . . . According to the Supreme Court, the magistrate’s action in issuing the warrant was acceptable because the court deemed the evidence of explicit, offensive sexual content sufficiently strong to compensate for the officer’s failure to submit evidence that the films lacked intrinsic worth and violated community standards. 68 N.Y.2d, at 306

The Court of Appeals viewed the Supreme Court’s approach as “in effect, stat[ing] that certain elements of [New York’s] statutory definition of [obscenity] are not significant,” and the Court concluded that it was “not free to similarly ignore or recast the legislative mandate.” 68 N.Y.2d, at 308. Moreover, inasmuch as this involved a warrant for materials that “presumptively enjoyed” the protection of the freedom of expression provisions of the State and Federal constitutions, this supported fashioning a State constitutional right against unreasonable searches and seizures broader than the right granted under the Fourth Amendment, one that required the magistrate “to perform his duty with ‘scrupulous exactitude.’” 68 N.Y.2d, at 309. The constitutional requirement that the test for obscenity refer to community standards militated in favor of the state fashioning its own requirements for issuing a warrant. In New York, the Court of Appeals concluded that this would result in more exacting requirements than those mandated by the Fourth Amendment, even though Federal and state search and seizure provisions are identical. Finally, it should be noted that obscenity cases differ from other crimes because, by definition, they are predicated on contemporary community standards. While fundamental First Amendment restraints on State power do not vary from community to community, “[p]eople in different States vary in their tastes and attitudes, and this diversity is not to be strangled by the absolutism of imposed uniformity” [citing Miller v. California, 413 U.S. 15, 33]. When viewed as a whole, a challenged work may be a valueless piece of pornography, appealing only to the prurient interests, and the proof before the magistrate may establish this in the view of the reviewing Judges. But the work is not criminally obscene unless so judged when applying contemporary community standards. The parameters of the “community” whose standard is to be applied are not only nonnational, but also are to be defined according to State law [citing People v. Heller, 33 N.Y.2d 314 (adopting a State-wide community standard for New York, rather than a locality-based one)]. Thus, New York law

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requires the magistrate, or the finder of fact at trial, to determine the average New Yorker’s evaluation of, and reaction to, the challenged material [citation omitted]. This perception of “the average New Yorker” involves a mix of factors peculiar to this State, including our legal traditions and our cultural and historical position as a leader in the educational, scientific and artistic life of our country, as well as a recognition that New York is a State where freedom of expression and experimentation has not only been tolerated, but encouraged. 68 N.Y.2d at 308–9 (emphasis added).

Thus, in P.J. Video, Inc., based on its “ legal reasoning . . . , [its] understanding of principles of federalism, and [New York] State’s legal and cultural traditions,” the Court of Appeals concluded that it should depart from the Federal rule and rely on probable cause requirements based on the State Constitution. 68 N.Y.2d, at 309.

C. People ex rel. Arcara v. Cloud Books, Inc., Injunctions and the State Constitution The same year in which the Court of Appeals decided P.J. Video, Inc., the Court decided a second case in which it held that the State Constitution provided broader protection than the First Amendment. In People ex rel. Arcara v. Cloud Books, Inc., 68 N.Y.2d 553 (1986), a district attorney, acting under a provision of the Public Health Law aimed at preventing public nuisances, applied for an order closing for one year a bookstore that sold books and showed movies that were sexually explicit, but not obscene. The claim of nuisance was based on a contention that the premises were being used for indecent and illegal sexual acts by some patrons. Although there was a claim that illegal activities took place on the premises and that the owner was aware of the conduct, there was no claim that the owner was criminally responsible. Moreover, the District Attorney was aware of those activities, but there had been no arrests, criminal prosecutions, or applications for an injunction. The order would only have prevented the use of the premises in question, and the owner would remain free to engage in business next door or at any other place. When the case was first considered by the Court of Appeals, the Court held that the closing of the bookstore under the statute violated the First Amendment as an impermissible prior restraint. People ex rel. Arcara v. Cloud Books, Inc., 65 N.Y.2d 324 (1985). The Supreme Court reversed the Court of Appeals, sub nom., Arcara v. Cloud Books, 478 U.S. 697 (1986), and held that the store’s First Amendment rights were not affected, because the “legislation providing the clo-

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sure sanction was directed at unlawful conduct having nothing to do with books or other expressive activity.” Consequently, the legitimate bookselling activities were too remote to implicate First Amendment concerns. 478 U.S., at 708. In addition the Supreme Court had rejected the “least restrictive means” test that had been relied on by the Court of Appeals and, citing United States v. O’Brien, 391 U.S. 367 (1968), the Supreme Court said the test was “applicable only when the government’s action was triggered by and directly aimed at curtailing ‘conduct that has an expressive element.’” On remand from the Supreme Court, the Court of Appeals unanimously concurred in Chief Judge Wachtler’s opinion holding that the statute in question violated Article 1, § 8, of the New York State Constitution, despite the Supreme Court’s holding that the statute did not violate the First Amendment to the United States Constitution. The opinion relied on and further developed the thesis of P.J. Video, Inc. that the very nature of rights to freedom of expression would vary from state to state with the Federal Constitution only providing “minimal standards for individual rights applicable throughout the nation.” Moreover, because the area of freedom of expression was one “in which the Supreme Court has displayed great reluctance to expand Federal constitutional guarantees, holding instead that this is a matter essentially governed by community standards,” citing Miller v. California, 68 N.Y.2d, at 557, it was necessary that New York’s “long history and tradition of fostering freedom of expression, often tolerating and supporting works which in other States would be found offensive to the community interests,” be reflected in the application of its State Constitution. Id, at 557–58. The Court reiterated New York’s hostility to prior restraint on freedom of expression by adopting the least restrictive means test, 68 N.Y.2d., at 558, and thereby directly disagreed with the Supreme Court’s position on government action that had an incidental effect on freedom of expression as opposed to action directed at expressive conduct. On remand, the Court of Appeals described its prior opinion as resting on the conclusion that the order in question “would have an incidental impact on the bookseller’s First Amendment rights and that the prosecutor had not demonstrated that closing the defendant’s store was the ‘least restrictive means’ to abate the nuisance created by some of its customers.” Id., at 554 (emphasis added). Judge Wachtler’s opinion described the position of the Court of Appeals, as follows: [New York Court of Appeals cases have] settled that when government regulation designed to carry out a legitimate and important State objective would incidentally burden free expression, the government’s action cannot be

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sustained unless the State can prove that it is no broader than needed to achieve its purpose. 68 N.Y.2d., at 558 (citations omitted; emphasis added)

As for the order in Arcara v. Cloud Books closing the defendant’s bookstore for a year to prevent illegal acts by patrons, the Court declared that the order had a “substantial impact” on the constitutionally protected activity of the bookstore. It rejected the prosecutor’s argument “that this impact may be constitutionally ignored when, as here, the State’s purpose is not to interfere with the store’s legitimate bookselling activities but is aimed at preventing patrons from committing illegal acts having no expressive content.” Conceding that the impact on freedom of expression may be incidental or not direct, and that actions of this type are subject to lesser scrutiny than those directed at restraining free expression, . . . they cannot be said to have absolutely no constitutional implications. The crucial factor in determining whether State action affects freedom of expression is the impact of the action on the protected activity and not the nature of the activity which prompted the government to act. The test, in traditional terms, is not who is aimed at but who is hit. Of course a bookstore cannot claim an exemption from statutes of general operation aimed at preventing nuisances or hazards to the public health and safety. It is, however, entitled to special protection, and no undue burden is placed on the State by requiring it to prove that in seeking to close the store it has chosen a course no broader than necessary to accomplish its purpose. If other sanctions, such as arresting the offenders, or injunctive relief prove unavailing, then its burden would be met. . . . [C]losing a bookstore for a year, as is required by this statute, cannot be said to have such a slight and indirect impact on free expression as to have no significance constitutionally. 68 N.Y.2d, at 557–59, passim (emphasis added)

It should be noted that the Court of Appeals had not ruled out injunctions in freedom of expression cases. Thirty years earlier it had approved an injunction in Brown v. Kingsley Books, Inc., 1 N.Y.2d 177 (1956), affirmed, sub nom. Kingsley Books, Inc. v. Brown, 354 U.S. 436 (1957), discussed supra. That case involved a Code of Criminal Procedure provision that authorized the chief executive officer of a municipality to seek an injunction against the sale and distribution of obscene materials (whose sale and distribution also would violate the Penal Law), and if an injunction is issued, it also must direct the defendant to surrender the material “to the sheriff who ‘shall be directed to seize and

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destroy’” it. 1 N.Y.2d, at 180. No injunction could issue except after a full trial and a finding that distribution would violate the Penal Law provision. Id., at 182. The Court of Appeals unanimously rejected defendant’s claim that the issuance of an injunction against the distribution of concededly obscene materials was unconstitutional under the First Amendment as a prior restraint on freedom of expression. Although Brown v. Kingsley Books, Inc., made no reference to the New York State Constitution, subsequently, Arcara v. Cloud Books, 68 N.Y.2d 553 (1986), decided on the basis of the State Constitution, did refer to injunction as possibly a less restrictive alternative to closing the bookstore in that case. After the Court of Appeals decided Brown v. Kingsley Books, Inc., but prior to its affirmance by the Supreme Court, Judge Desmond, in a review of a book on the English law of obscenity, addressed the problem of enforcing obscenity laws. Charles S. Desmond, “Review of Norman St. John-Stevas, Obscenity and the Law,” 32 Notre Dame Lawyer 547 (1957). Concluding that “as to the immediate problem of obscenity and the public necessity of controlling it, [St. JohnStevas,] offer[ed] little in the way of solution.” Id., at 350, Judge Desmond wrote: In considering a solution, it seems that one must realize that any method used in a democratic society must not be corrupted by blind adherence to the view of an extremist minority. Above all a powerful group like the Catholics must not, in the American pluralistic society, use extra-legal pressures to keep distasteful things from the public merely because of the distastefulness of those things. [note 21, citing Commonweal article ‘concerning the “forced” cancellation of a Chicago telecast of the film Martin Luther]. It is submitted that an effective plan for controlling obscenity can be carried out either by moderate and cautious use of the democratic process on a high administrative state level, under control of the courts, or by the courts in the first instance. [note 22, citing Brown v. Kingsley Books, Inc., 1 N.Y.2d 177 (1956), probable jurisdiction noted, 352 U.S. 962 (1957).

Judge Desmond took similar positions in another article, “Legal Problems Involved in Censoring the Media of Mass Communication,” 40 Marquette Law Review 38 (1956).

XIII. Zoning and Adult Entertainment Unable to totally ban the use of property for nonobscene adult uses, localities turned to zoning powers to exclude adult entertainment uses of property from

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designated areas and to confine them to other specified areas. The Court of Appeals sustained the constitutionality of this use of the zoning power in Town of Islip v. Caviglia, 73 N.Y.2d 544 (1989), and Stringfellow’s of New York, Ltd. v. City of New York, 91 N.Y.2d 382 (1998). Islip was a 4–3 decision in which the minority in opinions by Judge Titone and Chief Judge Kaye would have found the ordinance unconstitutional under the State Constitution; Stringfellow’s was a unanimous decision sustaining the constitutionality of the New York City ordinance in an opinion by Judge Titone. Judge Titone’s opinion relied on the teachings of both Islip and Arcara without criticizing Islip, in which he had written a strong dissenting opinion claiming that the Town of Islip ordinance violated the State Constitution. In both Stringfellow’s and Islip, the judges agreed that Federal and State constitutional freedom of expression differed in light of Arcara. However, in Stringfellow’s, all concurred in Judge Titone’s opinion that concluded that their application would not yield different results with respect to the ordinance before the Court. Aside from the substantive result of sustaining the constitutionality of the zoning ordinances, the cases are of some interest because what might have been a schism in the Court reminiscent of the earlier obscenity cases did not develop. Judge Titone wrote: This Court has long recognized the considerable authority of municipalities to implement zoning plans and programs to meet the increasing encroachments of urbanization on the quality of their residents’ lives [citation omitted]. Because they are legislative enactments, these land-use regulations generally enjoy a strong presumption of constitutionality as valid exercises of the State’s police power to advance the public health, safety and welfare [citations omitted]. Thus, even if the validity of a provision is “fairly debatable,” the municipality’s judgment as to its necessity must control [citations omitted]. Municipal zoning authority is not, however, completely unfettered. Ordinances such as the one challenged here that aim to curb “adult” uses implicate speech or conduct that is protected by the First Amendment [citations omitted] and by article I, § 8 of the New York State Constitution. Consequently, in weighing the validity of such zoning regulations, courts must consider the intertwined constitutional values of free expression. In this State, the proper balance between community needs and free expression under our Constitution has been delineated in Matter of Town of Islip v. Caviglia, 73 N.Y.2d 544. . . . At issue in Islip was a zoning ordinance that confined adult uses to industrially zoned areas and prohibited them from

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locating within 500 feet of a number of certain sensitive receptors or within one-half mile of each other. The ordinance had been prompted by studies of conditions locally and elsewhere which demonstrated the harmful impact of adult businesses on the surrounding community. We concluded that the ordinance satisfied both Federal constitutional standards (see, Renton v. Playtime Theatres, 475 US 41) and the distinct protections afforded by our State Constitution. In so ruling, the Court considered whether the “predominant purpose” of the challenged ordinance was to ameliorate the negative secondary effects of adult uses rather than to suppress their content, whether the ordinance was “narrowly tailored to affect only those uses shown to produce the unwanted secondary effects” and whether it provided adequate alternative locations for adult businesses within the Town [citations omitted]. With respect to the State constitutional claims in Islip, the Court considered whether the Town’s ordinance was “justified by concerns unrelated to speech,” whether it was “‘no broader than needed to achieve its purpose’” under the State constitutional principles set forth in People ex rel. Arcara v. Cloud Books, 68 N.Y.2d 553 . . . and, finally, whether “if the ordinance [were] enforced the total number of adult bookstores w[ould] decline or . . . fewer potential customers w[ould] be able to conveniently patronize them” (73 N.Y.2d at 557–560). It is against the template of Islip, that we measure plaintiffs’ claims in these cases. The threshold issue here is whether the City’s zoning amendments are purposefully directed at controlling the content of the message conveyed through adult businesses or are instead aimed at an entirely separate societal goal. The Federal constitutional analysis requires examination of the ordinance’s “predominant purpose” (see, Renton v. Playtime Theatres, [475 U.S. 41]), while the State constitutional inquiry focuses on whether there has been “a purposeful attempt to regulate speech” (Matter of Town of Islip v. Caviglia, supra, at 557). In the context of these facts, however, the difference in verbiage does not significantly affect the outcome, since it is apparent from the amendments’ legislative history that ameliorating the negative social consequences of proliferating adult uses was the City’s only goal. 91 N.Y.2d, at 396–97

The adult entertainment industry’s persistent attacks on and attempts to avoid the restrictions of the New York City ordinances continued, and the Court of Appeals again dealt with those ordinances in DJL Restaurant Corp. v. City of New York, 96 N.Y.2d 91 (2001), and City of New York v. Stringfellow’s of New York, Ltd., 96 N.Y.2d 51 (2001). In DJL, the Court rejected the contention of a topless

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dancing bar that the City’s Adult Zoning Regulation (AZR) was beyond the City’s power when applied to premises licensed by the State Alcoholic Beverage Commission, because City power was preempted by the State Alcoholic Beverage Commission Law (ABC Law). The Court, citing the 1998 Stringfellow’s decision, discussed supra, and other cases, concluded that the because the ABC Law and the AZR were designed to deal with different matters—ABC Law with the sale and distribution of alcohol and AZR with land use—the AZR’s incidental or “peripheral” effect on the sale of alcohol did not warrant inferring that the ABC Law preempted the City’s local powers with respect to zoning. In the 2001 Stringfellow’s decision, the Court dealt with Stringfellow’s attempt to avoid falling under that part of the AZR that defined an “adult drinking or eating establishment” as one “which is not customarily open to the general public during such features [live performances with emphasis on ‘specific anatomical areas’ and ‘specified sexual activities’] because it excludes minors by reason of age.” Stringfellow’s, 96 N.Y.2d at 55 (emphasis in original). Stringfellow’s found itself in a dilemma; if it excluded minors because of age, it would be an adult drinking or eating establishment under the AZR, but if minors were freely admitted, Stringfellow’s would violate the Penal Law. Its attempt to avoid the dilemma was reflected in a written “minors policy” that admitted minors, with no age minimum, provided, inter alia, that the minor’s parent or guardian examined the premises and the parent and the minor signed statements that viewing the performances would not harm the minor. During the fifteen or so months that the policy had been in effect, “Stringfellow’s admitted only one minor, a 13-year old child from Caracas, Venezuela. This event was unusual enough to be reported in the newspapers.” Id., at 54. The Court concluded: Stringfellow’s so-called minors policy is an obvious attempt at an end run around the AZR. Under any definition, Stringfellow’s is not “customarily open to the general public.” . . . When the lawmakers’ purpose is as clear as it is here, we will not bend their words into the shape of a loophole. . . . The AZR was designed to keep children away from these establishments, not to invite them in as customers. . . . With supreme irony, the more children the management were to admit, the more secure would be its claim that it is customarily open to the public. We cannot countenance this construction. 96 N.Y.2d, at 56–57

Although the Court consistently sanctioned the City’s use of its zoning power to regulate adult entertainment, the Court also required the City to abide by its

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own rules and regulations. Thus, in City of New York v. Les Hommes, 94 N.Y.2d 267 (1999), the Court of Appeals unanimously reversed a judgment granting the City an injunction prohibiting the adult use of certain premises. The Court held that the City was bound by its own guidelines, and the Court was obligated to enforce “as written” the City’s administrative guidelines for determining whether premises are adult use premises. The Court could not consider factors such as “whether the owner [of the premises] had a good-faith desire to sell nonadult products, whether the “essential nature” of Les Hommes is adult or nonadult, or whether the volume of nonadult stock, here, books and videos, is “stable or profitable” when, according to the guidelines, the only question was “whether items are accessible or available as stock. [The Court] cannot rewrite the City’s guidelines to include these additional considerations.” Id., at 273.

XIV. Public Nudity There has not been a definitive resolution of the extent of legislative power to regulate public nudity. The Court of Appeals cases considered to this point that dealt with pictures of nudes and with persons nude in the presence of others, on the whole, were ambivalent on the relationship between nudity and obscenity and indecency. The discussion that follows deals with further efforts of the Court to deal with nudity issues in the context of public nudity statutes and nude dancing. In 1967, the Penal Law was amended to include § 245.01 (Exposure of a Female) (L. 1967, ch. 367, § 1), which provided that a “female is guilty of exposure when, in a public place she appears in such a manner that the portion of her breast below the top of the areola is not covered with a fully opaque covering.” The provision explicitly excepted from its prohibition “any female entertaining or performing in a play, exhibition, show or entertainment.” In addition to the provision’s explicit exception, the Court of Appeals found implicit exclusions from the prohibition in the 1967 version of § 245.01 and the later version that replaced it (L. 1983, ch. 216, § 1, amended L. 1984, ch. 633, § 1). People v. Price, 33 N.Y.2d 831 (1973), and People v. Santorelli, 80 N.Y.2d 875 (1992).

A. People v. Price In Price, the Court unanimously reversed the conviction of a woman for violating § 245.01 when she walked along a public street wearing “a fishnet pullover through the openings of which the areola portions of breasts were visible.”

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Although the defendant would appear to have been in violation of the statute literally applied, the Court construed the statute so as to exclude defendant’s noncommercial nonlewd conduct, because statutes “punishing indecent exposure, though broadly drawn, must be carefully construed to attack the particular evil at which they are directed,” and the 1967 version of § 245.01 “was aimed at discouraging ‘topless’ waitresses and their promoters . . . [citing] the Practice Commentary in McKinney’s Consolidated Laws of New York) . . . .” Although it cited neither the State nor Federal constitution, the Court also apparently recognized constitutional limitations on government regulation of dress, when it stated: “Certainly, legislation may not control the manner of dress, absent commercial exploitation of exposure, or absent conduct or dress under circumstances creating or likely to create public disorder.” 33 N.Y.2d at 832.

B. People v. Hollman Section 245.01 was repealed and replaced in 1983 to expand what had been the section’s sole concern with exposure by females to include exposure by any “person . . . if he appears in a public place in such a manner that the private or intimate parts of his body are unclothed or exposed.” A female’s private or intimate parts were defined to “include” the portion of the breast described in the 1967 version of the section. The 1983 version retained the exception for entertainment and made it applicable to both males and females, and in 1984, § 245.01 was amended so as “not to apply to the breastfeeding of infants.” In People v. Hollman, 68 N.Y.2d 202 (1986), the male defendant was charged with violating § 245.01 by sunbathing in the nude on a public beach. The Court of Appeals, in an opinion by Judge Titone, unanimously rejected defendant’s contention that charging him with a violation of § 245.01 infringed on the exercise of his rights to freedom of expression under the First Amendment of the Federal Constitution and Article 1, § 8, of the New York State Constitution in that his nude sunbathing was symbolic expression that “asserted his belief in the Naturist philosophy that open social nudity promotes health, that it permits heightened awareness of human similarity and vulnerability and it presents an alternative to the repression of puritanism and the degradation of pornography” (68 N.Y.2d, at 204). The Court applied a two-part test and held that defendant’s conduct was not “sufficiently expressive” to enjoy the protections of the First Amendment or that of Article 1, § 8, of the State Constitution. First, “[t]o be characterized as expressive, the conduct must be intended to convey a particularized message and [second] there must be a great likelihood that, given the surrounding circumstances,

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the message would be understood by those who viewed it.” Even conceding that defendant’s conduct met the first element of the test, i.e., defendant by his nudity intended to convey a message, the second element was not satisfied. Nudity on a beach is “commonplace,” and it is not “likely that it would be understood by the viewer as intending to convey a particular point of view.” 68 N.Y.2d, at 206. Moreover, even if it was assumed that the conduct was expressive, it would not preclude regulation of time, place, and manner of “declaring one’s opinion,” if (1) the regulation “ ‘is within the constitutional power of the Government; [2] if it furthers an important or substantial governmental interest; [3] if the governmental interest is unrelated to the suppression of free expression; and [4] if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest’” (quoting from United States v. O’Brien, 391 U.S. 367, 377 [1968]). 68 N.Y.2d, at 207. The Court concluded that regulation of public nudity on a public beach met all four requisites for constitutionality. In addition to finding that the statute was not unconstitutional as applied to the defendant, the Court rejected the contention that the language of the statute was so overbroad that it could reach and thereby “chill” constitutionally protected conduct. A statute would be unconstitutional on the asserted ground, “only when the statute’s unconstitutional reach is substantial and the statute is incapable of a reasonable limiting construction.” 68 N.Y.2d, at 208 (citations omitted). Otherwise, the general rule that a party is limited to raising those issues that affect him applies, citing Ferber, supra. Applying these standards, the statute was not unconstitutional on the grounds of overbreadth. In addition, the Court denied defendant’s claim that there is a “fundamental right to appear nude in public.” Id., at 209.

C. People v. Santorelli People v. Santorelli, 80 N.Y.2d 875 (1992), involved three women defendants who appeared in a public park with their breasts exposed in the manner described in § 245.01 for the purpose of protesting that the statute permitted men but not women to appear in public with uncovered breasts. The defendants claimed that their constitutional rights were violated in two respects: (1) § 245.01 violated the equal protection clauses of the Federal and State Constitutions because of its discriminatory treatment of women; and (2) as applied, the defendants’ rights to freedom of expression were violated. The Court of Appeals unanimously reversed the County Court. The majority concluded it did not have to decide the constitutional issues,5 because, relying on the approach in

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Price, the court held that § 245.01 did not cover the conduct of the defendants in the circumstances presented in Santorelli and reversed their convictions. Judge Titone, in a separate opinion concurring in the result, contended that the constitutional issue could not be avoided, because the language and legislative history of the statute clearly established that § 245.01 was intended to prohibit the very conduct engaged in by the defendant “in order to protect the sensibilities of those who wish to use the public beaches and parks.” Judge Titone reasoned that inasmuch as the “statute prohibits the public exposure of female—but not male—breasts, it betrays an underlying legislative assumption that the sight of a female’s uncovered breast in a public place is offensive to the average person in a way that the sight of a male’s uncovered breast is not.” The State had not satisfied its burden of showing an “exceedingly persuasive justification” whether protecting “sensibilities” by this sex-based discrimination was “in fact a reflection of archaic prejudice or a manifestation of legitimate government objective.” Consequently, as applied to the female defendants, the statute violated their equal protection rights under the Federal and State Constitutions. 80 N.Y.2d, at 881–83, passim.

D. Tunick v. Safir Tunick v. Safir, 209 F.3d 67 (2d Cir. 2000), involved an appeal to the Court of Appeals for the Second Circuit by the City of New York and its Police Commissioner from a preliminary injunction issued by the United States District Court prohibiting the City from “interfering with a proposed photo shoot of 75 to 100 nude models arranged in an abstract formation, to be conducted by plaintiff Spencer Tunick on Sunday . . . between 5:30 a.m. and 6:30 a.m. in a residential Manhattan neighborhood. The City contend[ed] that the injunction must fall, because New York State law prohibits public nudity [Penal Law § 245.01] and the promotion thereof [§ 245.02] and because the exemption [in the cited Penal Law sections for] any person entertaining or performing in a play, exhibition, show or entertainment” does not apply to the proposed photo shoot. 209 F.3d, at 68. The Second Circuit certified the following questions to the New York Court of Appeals and requested they be considered on an expedited basis: (1) whether a photographic shoot involving 75 to 100 nude models arranged in an abstract formation on a public street constitutes entertainment or performance in a “play, exhibition, show or entertainment” within the meaning of the exemption to N.Y. Pen. Law § 245.01 and § 245.02; (2) if the answer to the first question is yes, whether the exemption to N.Y. Pen. Law § 245.01 and § 245.02 is limited to indoor activities; and

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(3) if the answer to the first question is no, or if the answers to the first and second questions are both yes, whether N.Y. Pen. Law § 245.01 and § 245.02, so interpreted, are valid under the Constitution of the State of New York. 209 F.3d, at 68–69

The New York Court of Appeals declined to accept the certification because the parties did not brief, raise, or argue the constitutional issue which “explicitly weighed in the balance favoring certification” and because the procedural posture of the case presented the “definite possibility of mootness.” Tunick v. Safir, 94 N.Y.2d 709 (2000).

E. Nude Dancing: Bellanca v. New York State Liquor Authority Bellanca v. New York State Liquor Authority, 54 N.Y.2d 228 (1981), discussed in detail, supra, held a statute that banned all topless dancing at licensed premises unconstitutional under Article 1 § 8 of the New York State Constitution. In Bellanca, Judge Jones set out the principles governing treatment of dancing as constitutionally protected expression. First, the Court of Appeals read Supreme Court decisions as recognizing “dancing as a form of expression and . . . that topless dancing, like nudity in art and sculpture, was to be accorded at least limited protection under the First Amendment.” Nevertheless, topless dancing can be completely prohibited if it is obscene, and “although not obscene may be regulated, [e.g., by prescribing the minimum distance between the dancer and patrons]. [Moreover, topless dancing even may be prohibited] in circumstances so functionally related to the exercise of the State’s authority to regulate the sale and consumption of alcoholic beverages as to overcome the [constitutional] protection” of freedom of expression. 54 N.Y.2d, at 231. However, because there was an absence of legislative findings that related to a total ban on topless dancing to the State’s authority to regulate licensed premises, the statute in Bellanca was declared unconstitutional. Subsequently, in City of Erie v. Pap’s A.M., 529 U.S. 277 (2000), the Supreme Court sustained the application of an Erie, Pennsylvania, ordinance banning public nudity to a dancing establishment featuring nude erotic dancing. The court applied the less burdensome test in United States v. O’Brien, 391 U.S. 367 (1968), and relied on the findings in the ordinance concerning the secondary effects of public nudity and nude erotic dancing, in particular. Pap’s A.M. in the context of nude dancing has not been considered by the Court of Appeals;6 if and when it is, the questions raised in Bellanca, in the context of nude dancing, and by Judge Wachtler in People ex rel Arcara v. Cloud Books, Inc., 68 N.Y.2d 553 (1986), in the context of bookstores, will have to be addressed.

11. Religion

I. Questions in the Foreground at the Time of the 1938 Constitutional Convention Four provisions of the current New York State Constitution deal explicitly with the relationship of the state and religion. The basic provision, Article I, § 3, which guarantees freedom of worship and religious freedom, and Article XI, § 3, known as the Blaine Amendment, which prohibits the use of public funds in aid of denominational schools except for transportation of students, have been the sources of the greatest amount of litigation. The other two provisions are Article VI, § 32, which expresses a preference, “when practicable,” for matching the religious persuasion of adoptive or foster parents with that of the adopted or foster child, and Article XVI, § 1, which restricts the power to alter or repeal tax exemptions for property used for religious purposes. Ultimately the First Amendment to the United States Constitution, which in relevant part, simply provides “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” became the most important element in state litigation concerning the constitutionality of the relations between the state and religion, but it was not until 1940 and 1947 that the Supreme Court employed the incorporation doctrine and held that the free exercise and establishment clauses of the First Amendment applied to the states through the Fourteenth Amendment. Cantwell v. Connecticut, 310 U.S. 296 (1940) (free exercise clause); Everson v. Board of Education, 330 U.S. 1 (1947) (establishment clause). Indeed, the Report of the Subcommittee on Bill of

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Rights and General Welfare of the New York State Constitutional Convention Committee (1938) (hereafter Poletti Committee Report), at 269–70 identified only three Supreme Court cases as bearing on Federal constitutional protection of religion against state action: Cochran v. Louisiana State Board of Education, 281 U.S. 370 (1929), which held that the Federal Constitution was not violated by the state supplying textbooks to students attending denominational schools; Pierce v. Society of Sisters, 268 U.S. 510 (1925), which held an Oregon statute that required all children to attend public schools to be unconstitutional under the Fourteenth Amendment’s due process clause, because it deprived private schools of property and deprived the children’s parents of their liberty; and Hamilton v. Regents, 293 U.S. 245 (1934). However, even prior to the Supreme Court’s use of the incorporation doctrine, there was a sense that the Fourteenth Amendment’s due process clause protected religious liberty against state action as part of a concept of ordered liberty. For example, although Hamilton v. Regents, supra, found no Federal constitutional violation when the Regents of the University of California refused to permit those students who had declined to participate in military training courses to attend the University, the Court said the Fourteenth Amendment “does include the right to entertain the beliefs, to adhere to the principles and to teach the doctrines on which these students base their objections to the order prescribing military training.” 293 U.S., at 262. The Poletti Committee Report, at 270, concluded: “[Hamilton] definitely holds that religious liberty is one of the liberties protected against state action by the due process clause of the Fourteenth Amendment.” Although after 1940 much of the religion-related issues in the New York Court of Appeals would be concerned with the constitutionality of state action under the Federal Constitution’s First and Fourteenth Amendments, the constitutionality of statutes and government action under the State Constitution continued to receive attention. New York State constitutional questions included interpreting and applying provisions of the State Constitution and determining whether state action not prohibited by the Federal Constitution nevertheless was prohibited by the State Constitution. Article I, section 3, of the New York State Constitution, contains three substantive clauses: The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed in this state to all mankind; and no person shall be rendered incompetent to be a witness on account of his opinions on matters of religious belief; but the liberty of conscience hereby secured shall not be so construed as to excuse acts of

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licentiousness, or justify practices inconsistent with the peace and safety of the state.

The first clause, concerning “free exercise,” and the third clause, concerning “justify[ing] practices,” were in the original 1777 State Constitution. The second clause, which eliminates religious tests for the competency of testifying witnesses, was added by the 1846 Constitution. Each has been the subject of Court of Appeals decisions. The Poletti Committee Report (chapters III, XVIII, and XIX) provides some sense of which constitutionally related “religion” issues were seen as demanding or as having received attention prior to Cantwell, supra, and Everson, supra. Under the general heading of religious liberty, the distinction between beliefs and practices had been a focal point in cases involving Christian Scientists and Jehovah’s Witnesses, and the distinction also had been relevant in determining whether the religious beliefs of a witness could be the subject of inquiry as a matter affecting credibility. People v. Pierson, 176 N.Y. 201 (1903), People v. Cole, 219 N.Y. 98 (1916), Brink v. Stratton, 176 N.Y. 150 (1903). Thus, in Pierson, the Court distinguished “between beliefs and acts of worship,” which were constitutionally protected, and “practices based in [an individual’s] religious tenets,” which were not constitutionally protected, when the Court affirmed the defendant’s conviction for failing to provide medical attention for a minor child and defendant’s defense that he acted on the belief that disease could be cured by prayer. However, in Cole, while the Court recognized the “belief-acts” distinction for the purpose of defining constitutional protection, the conviction of a Christian Scientist for practicing medicine without a license was reversed, because the Court held that the statute in question did not prohibit the defendant’s religion-based practices involved even if those practices were not constitutionally protected. At the time of the 1938 Constitutional Convention, a contention of Jehovah’s Witnesses that requiring their children to salute the flag in school unconstitutionally violated their religious beliefs was pending before several courts and had not yet been decided by the New York Court of Appeals or by the United States Supreme Court. Poletti Committee Report, 27–34. Article IX, section 4, now Article XI, section 3, of the State Constitution,1 generally prohibited state aid to denominational schools. On the general question of the use of public funds to aid denominational schools, there had been no direct Court of Appeals determinations or advice, except for a comment on the policy of denying state aid to denominational schools, “Neither the Constitution

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nor the law discriminates against religion. Denominational religion is merely put in its proper place outside of public aid or support.” People ex rel. Lewis v. Graves, 245 N.Y. 195, 198, reargument denied, 245 N.Y. 620 (1927) (not unconstitutional to excuse children from public school to attend denominational school for public instruction where it was during a study hour and the students missed no public school instruction and received no credit). In 1904, the Court of Appeals addressed the question of whether it was unconstitutional for the State to use public funds to aid denominational institutions that were concerned only in part with education, and the Court had held that aid to an orphan asylum maintained by a religious organization was not prohibited, because the orphan asylum was not a “school” for purposes of the State constitutional prohibition. Sargent v. Board of Education of Rochester, 177 N.Y. 317 (1904). In addition to People ex rel. Lewis v. Graves, supra, denominational influence in the public schools was dealt with in O’Connor v. Hendrick, 184 N.Y.421 (1906). In a report to the 1938 constitutional convention, O’Connor was characterized as “the leading case” on this aspect of the interpretation of Article IX, section 4, in which “the Court of Appeals . . . construed this section as indicating the State’s policy against any sectarian influence in the public schools, even if it does not take the form of actual instruction.” Consequently, the Court declared it would have been unconstitutional to pay a Catholic sister who taught in the public schools while wearing her religious garb. Poletti Committee Report, 276. However, an Attorney General’s opinion found no constitutional barrier to giving one high school credit for outside Bible study under an approved teacher. 51 St. Dept. Reports 70 (1934). It is apparent that some of the most difficult constitutional questions concerning the relationship between state action and religion remained to be addressed by the Court of Appeals at the time of the 1938 Constitutional Convention. Thus, while it was noted that Bible reading in the public schools had not yet been addressed by the Court, the Poletti Committee Report, at 279, noted there was some evidence that the “draftsmen of Article IX, section 4, apparently believed that Bible reading was not a denominational influence since they did not intend it to be prohibited.” The constitutionality of a state-financed purchase of a book of Bible readings and hymn books had not yet been decided, although there had been cases on this subject dismissed on procedural grounds. Lewis v. Board of Education, 258 N.Y. 117 (1932); Lewis v. Board of Education, 276 N.Y. 490 (mem.) (1937). In addition, the Poletti Committee Report, at 282, commented that “singing of Christmas carols and the holding of Christmas celebrations are well-known

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practices in the public school and this practice has not been contested in the courts.” The constitutionality of a 1936 state statute mandating that transportation be provided for all students attending public and private schools, including denominational schools, had not yet been passed on by the Court of Appeals, but when the convention began the constitutionality of the statute had been upheld in Judd v. Board of Education of Union Free School Dist. No. 2, Town of Hempstead, Nassau County, 164 Misc. 889 (Sup. Nassau 1937). Judd was later reversed by the Court of Appeals, 278 N.Y. 200 (1938). See II-A, infra. In common with most questions arising under State and Federal Bill of Rights provisions, religious freedom and establishment issues reflect conflicts that often sharply divide society at large. However, unlike the First Amendment questions addressed in previous chapters, where the issues arise in the relatively narrow context of publication, conflict over religious questions can be present in many facets of social endeavor. Thus, this chapter presents the Court of Appeals and the constitutional religious questions it has faced by focusing on the many contexts in which those questions have arisen.

II. Religious Freedom and Establishment Questions and the Schools2 A. A Constitutional Amendment in Response to a Court of Appeals Decision: Transportation of Students to Denominational Schools When the 1938 Constitutional Convention began, the constitutionality of a 1936 state statute mandating that transportation be provided for all students attending public and private schools, including denominational schools, had not yet been passed on by the Court of Appeals; but its constitutionality had been upheld by the Supreme Court in Nassau County. Judd v. Board of Education of Union Free School Dist. No. 2, Town of Hempstead, Nassau County, supra. Before the Convention ended, the Court of Appeals did address the question and held it was unconstitutional under Article IX of the New York State Constitution to use public funds to provide students with transportation to religious schools. Judd v. Board of Education of Union Free School Dist. No. 2, Town of Hempstead, Nassau County, 278 N.Y. 200 (1938), reversing 253 A.D. 907 (2d Dept. 1938). In a 4–3 decision, the majority held that providing school transportation to parochial schools violated Article IX of the State Constitution, rejecting the argument that providing transportation was an acceptable means of implementing the State’s compulsory education laws and at the same time

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constituted recognition that parents had the constitutional right to choose education in a denominational over a public school. See Pierce v. Society of Sisters, supra. In response to Judd, the 1938 Constitutional Convention proposed and the People approved an amendment to the State Constitution to permit the use of public funds for student transportation to religious schools. See 1938 New York State Constitutional Convention, Revised Record, pp. 1055–56. The United States Supreme Court subsequently held in a New Jersey case that the State’s provision of funds to be used to transport students to parochial schools did not violate the Federal Constitution. Everson v. Board of Education, 330 U.S.1 (1947). Part of the reasoning in Everson sustaining the constitutionality of the statute under the Federal Constitution was similar to the plaintiffs’ argument rejected in Judd. This Court has said that parents may, in the discharge of their duty under state compulsory education laws, send their children to a religious rather than a public school if the school meets the secular educational requirements which the state has power to impose. See Pierce v. Society of Sisters, 268 U.S. 510, . . . It appears that these parochial schools meet New Jersey’s requirements. The State contributes no money to the schools. It does not support them. Its legislation, as applied, does no more than provide a general program to help parents get their children, regardless of their religion, safely and expeditiously to and from accredited schools. 330 U.S., at 18

Justice Black’s opinion in Everson also contained the metaphor, “a wall of separation between church and state,” which became the focal point for intensive judicial debate in the Federal and state courts: The “establishment of religion” clause of the First Amendment means at least this: neither the state nor the Federal government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force or influence a person to go to or remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for professing or entertaining religious beliefs or disbelief, for church attendance or nonattendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form that they adopt to teach or practice religion. Neither a state or Federal government can, openly or secretly, participate in the affairs of any religious organizations or groups and

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vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect “a wall of separation between church and state.” 330 U.S., at 15–16 (emphasis added)

B. Released Time In Zorach v. Clausen, 303 N.Y. 161 (1951), the Court of Appeals was faced with a constitutional challenge, under the Federal and State constitutions, to a New York City Board of Education program that authorized parents to withdraw children from public schools for one hour a week in order to receive religious instruction. The instruction was provided away from public school premises by religious teachers who were not paid, approved, or supervised by public school or other state or local officials. The program was adopted by the City Board of Education pursuant to regulations, authorized by statute, promulgated by the State Board of Education. Parents of children who did not participate in the program challenged it, claiming that the program violated the First Amendment’s establishment and free exercise clauses through the Fourteenth Amendment and the free exercise clause of the State Constitution.3 The plaintiffs relied on McCollum v. Board of Education, 333 U.S. 203 (1948), which declared unconstitutional a Champaign, Illinois, school district program that permitted religious instruction on school premises in places designated by the school authorities and by teachers supervised and approved by those authorities. In addition, in the Champaign program, students were solicited on school premises to participate in the program, registration cards were distributed by the school authorities, and, if students took such instruction, they were segregated by their religious faiths. Moreover, there was no statute that authorized the program. None of the foregoing elements of the Champaign program were present in the New York City program. There was no dispute concerning the facts, and even though there was a claim that the manner of implementing the regulations violated the Constitution, no evidence on that claim was presented. Thus, the Court treated the issue as one of pure questions of law involving the constitutionality of the regulations and the statute. The City regulation, in addition to prohibiting use of public property for the religious instruction, prohibited school authorities from making any announcement in the public schools of the program nor could teachers or other school authorities comment on the participation or nonparticipation of a student in the program. “All that the school [did] besides excusing the pupil [was] to keep a record which [was] not available for any other purpose in order to see that the

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excuses [were] not taken advantage of and the school deceived . . . the same procedure the school would take in respect of absence for any other reason.” 303 N.Y., at 168. Judge Froessel’s opinion, concurred in by five judges, with Judge Fuld dissenting, read McCollum as not prohibiting all released-time programs. The Court sustained the constitutionality of the City’s Board of Education program based on the facts that distinguished Zorach from McCollum, and what the Court viewed as minimal administrative involvement of the school and no other involvement except providing the opportunity for students to obtain one hour of religious education per week off public property. In Zorach, the Court noted that in People v. Friedman, 302 N.Y. 75 (1951) (Sunday closing laws not unconstitutional), it had “recognized that separation of church and State does not mean that every State action remotely connected with religion must be outlawed.” The Court noted that more than 200,000 children in the State and more than 2 million throughout the country were enrolled in released-time programs, so that care should be taken to make certain that enforcing the prohibition on establishing religion does not destroy the right to the free exercise of religion. Thus, some sort of accommodation is required to protect both interests. “It is . . . clearly beyond cavil,” Judge Froessel wrote that the Constitution does not demand that every friendly gesture between church and State shall be discountenanced. The so-called “wall of separation” may be built so high and so broad as to impair both State and church, as we have come to know them. Indeed, we should convert this “wall,” which in our “religious nation,” . . . is designed as a reasonable line of demarcation between friends, into an “iron curtain” as between foes, were we to strike down this sincere and most scrupulous effort of our State legislators, the elected representatives of the People, to find an accommodation between constitutional prohibitions and the right of parental control over children. In so doing we should manifest “a governmental hostility to religion” which would be “at war with our national tradition.” . . . 303 N.Y., at 172

The Court reasoned: [P]arents have the right to educate their children elsewhere than in the public schools, provided the State’s minimum requirements are met, . . . and thus, if they wish, choose a religious or parochial school where religious instruction is freely given. That being so, it follows that parents, who desire to

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have their children educated in the public schools but to withdraw them therefrom for the limited period of only one hour a week in order to receive religious instruction, may ask the public school for such permission, and the school may constitutionally accede to this parental request. There is nothing in the Constitution commanding that religious instruction may be given on the Sabbath alone, and on no other day. 303 N.Y., at 173–74

Judge Fuld argued that, even if McCollum could be distinguished on the facts, McCollum was based on broad principles that required avoiding the danger of backing the religious program with the prestige and power of endorsement by secular authority and with isolating students who did not participate in a religious program. These concerns posed a danger to religious liberty and fostered the very dangers the prohibition on established religion was intended to obviate. However, in a 6–3 decision, the Supreme Court agreed with the Court of Appeals majority and affirmed. Zorach v. Clausen, 343 U.S. 306 (1952). The Supreme Court dissenters argued, as did the dissent in the New York Court of Appeals, that the factual differences between Zorach and McCollum did not call for different results, and contended that, as a practical matter, McCollum had been overruled by Zorach. See id., at 325.

C. School Prayer In 1951 and in 1955, “the Board of Regents, governing body of [the] State public school system, recommended to all local school boards that at the commencement of each school day the act of allegiance to the Flag might well be joined with this act of reverence to God”: Almighty God we acknowledge our dependence on Thee, and we beg Thy blessings upon us, our parents, our teachers and our country. 10 N.Y.2d, at 179

A school board adopted the recommendation, and parents of various faiths sought an order directing the Board to discontinue the practice. The plaintiffs claimed that the practice of saying the prayer in the public schools violated the Federal Constitution’s First Amendment “free exercise” and “establishment” clauses and Article I, section 3, of the State Constitution, “The free exercise and enjoyment of religious profession and worship, without discrimination and preference, shall forever be allowed in this state to all mankind.”

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Special Term reviewed the history of prayer in the schools, the history of the First and the Fourteenth Amendments and the State Constitution, including all relevant Supreme Court and New York cases. Among the Supreme Court cases reviewed were: Everson v. Board of Education, 330 U.S.1 (1947) (sustaining the constitutionality of state provision of student transportation to parochial schools); McCollum v. Board of Education, 333 U.S. 203 (1948) (holding unconstitutional a released time program); and Zorach v. Clausen, 343 U.S. 306 (1952), affirming 303 N.Y. 161 (1951) (distinguishing McCollum and sustaining the constitutionality of a New York City released time program). The Justice at Special Term found inconsistencies among the opinions and a softening of the “wall of separation” concept announced in Everson. Special Term concluded that, with proper precautions to avoid coercion of student participation in the prayer, reciting the Regents Prayer violated neither the Federal nor State Constitution. Engel v. Vitale, 18 Misc.2d 659 (Sup. Nassau 1959), affirmed 11 A.D.2d 340 (2d Dept. 1960), affirmed 10 N.Y.2d 174 (1961). The Court of Appeals affirmed in a 5–2 decision. Chief Judge Desmond wrote the majority opinion sustaining the constitutionality of the Regents Prayer program, in which Judge Foster concurred; Judge Froessel concurred in an opinion in which Judge Van Voorhis concurred; Judge Burke concurred in a separate opinion; and Judge Dye dissented in an opinion, in which Judge Fuld concurred. The majority opinions were fairly short and did not repeat the reasoning and history detailed in the Special Term opinion, but not surprisingly, they expressed strong beliefs in no uncertain terms. Thus to Judge Desmond there was only one issue: The order here appealed from contains adequate provisions to insure that no pupil need take part in or be present during the act of reverence, so any question of “compulsion” or “free exercise” is out of the case (see Zorach v. Clauson, 343 U.S. 306). What remains of appellants’ argument is this: that the saying of the “Regents prayer” as a daily school exercise is a form of State-sponsored religious education and is accordingly an unconstitutional “establishment of religion.” 10 N.Y. 2d, at 179–80

Addressing the “establishment” issue, Judge Desmond wrote that to hold that this “profession of a belief in God” violates the First Amendment “would be a defiance of all American history, and such a holding would destroy a part of the essential foundation of the American governmental structure. . . . That the First Amendment was ever intended to forbid as an ‘establishment of religion’ a

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simple declaration of belief in God is so contrary to history as to be impossible of acceptance.” 10 N.Y.2d, at 180. Judge Desmond continued As Justice Beldock of the Appellate Division wrote in this case: “The contention that acknowledgments of and references to Almighty God are acceptable and desirable in all other phases of our public life but not in our public schools is, in my judgment, an attempt to stretch far beyond its breaking point the principle of separation of church and State and to obscure one’s vision to the universally accepted tradition that ours is a Nation founded and nurtured upon belief in God.” The “universally accepted tradition” referred to by Justice Beldock has been maintained without break from the days of the Founding Fathers, all of whom believed in the existence of God (see Cousins, In God We Trust), to the day of the inauguration of President Kennedy. It is an indisputable and historically provable fact that belief and trust in a Creator has always been regarded as an integral and inseparable part of the fabric of our fundamental institutions. It is not a matter of majority power or minority protection. Belief in a Supreme Being is as essential and permanent a feature of the American governmental system as is freedom of worship, equality under the law and due process of law. Like them it is an American absolute, an application of the natural law beliefs on which the Republic was founded and which in turn presuppose an Omnipotent Being. The motives and purposes of the Regents and of the local board are noble. The success of the practice is problematical. But there is no problem of constitutionality. 10 N.Y.2d, at 181–82; (emphasis added)

Judge Burke attacked the dissenters’ opinion as one that “not only inadvertently distorts the purposes of the First Amendment, but is also self-contradictory.” Id. at 184. He wrote: The amendment, [the dissenting opinion] concedes, encourages diverse religious tenets. But the opinion reads into the amendment an attempt to compel conformity in the field of education—in other words, a “compulsory unification of opinion” in all school boards to totally reject any religious element in education and banish it from the schools. This, of course, would force on the children a culture that is founded upon secularist dogma. This interpretation rests on a misunderstanding. There is no language in the amendment which gives the slightest basis for the interpolation of a Marx-

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ist concept that mandates a prescribed ethic. According to the [dissenting] opinion, the separation of church and State which was intended to encourage religious interests among our people would become the constitutional basis for the compulsory exclusion of any religious element and the consequent promotion and advancement of atheism. It is not mere neutrality to prevent voluntary prayer to a Creator; it is an interference by the courts, contrary to the plain language of the Constitution, on the side of those who oppose religion. 10 N.Y.2d, at 184 (emphasis added)

Judge Dye’s dissenting opinion reviewed some of the key Supreme Court opinions and concluded that they required “a complete and unequivocal separation” of and the maintenance of a high and impregnable wall between church and state. He concluded that these touchstones were violated by the school board’s requirements concerning the Regents Prayer. Running through the fabric of these definitive decisions, like the pattern of a tree of life in an intricate tapestry, is a clearly defined line of demarcation between church and State, which may not be overstepped in the slightest degree in favor of either the church or the State. In such light, a board of education may not require the saying of the Regents prayer as a daily school procedure. It is a form of State-sponsored religious education; in fact, according to the Regents, its purpose is “teaching our children, as set forth in the Declaration of Independence, that Almighty God is their Creator” (1951 Statement of Belief ) and “will give to the student an understanding and appreciation of his role as an individual endowed by his Creator . . . and of reverence for Almighty God.” It would thus “fulfill its [the school’s] high function of supplementing the training of the home” (Fundamental Beliefs, Regents Recommendations, adopted March 25, 1955). This requirement falls squarely within the categories of disability accounting for the decisions in Everson and McCollum [supra.;]: use of public school classrooms during regular school hours, limitation of participation to those children whose parents consent and, in addition, being led by a teacher or by a person designated by the teacher. Under such announced purpose and method of performance, it cannot be less than instruction contrary to the establishment and freedom clauses, nor can the requirement be excused on the theory that the saying of the prayer—although conducted in the presence of the student body in the assembly hall of the classroom—is nonetheless a voluntary act, since no child is “required or encouraged to join in said prayer against his or her wishes” (Answering Affidavit), or on the theory that during the saying the child may

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remain silent, leave the room or report late. This is no answer, for it contains the very elements the prayer is supposed to eliminate: divisiveness, a type of compulsion, exerting as it does a pressure which an immature child is unable to resist because of his inherent desire to conform, and constituting a subtle interference by the State with the religious freedom guaranteed by the First Amendment. As Mr. Justice Frankfurter so aptly phrased it:”Separation means separation, not something less. . . .” 10 N.Y.2d, at 189–90 (emphasis added)

The United States Supreme Court reversed the Court of Appeals and held that the daily invocation of God’s blessings in a prayer prescribed by the New York State Board of Regents violated the First Amendment. Engel v. Vitale, 370 U.S. 421 (1962). The Supreme Court held, as did the trial court (and the School Board agreed), that the program was a “religious activity” and the nature of the prayer was “religious.” Moreover, the Court said that the “constitutional prohibition against laws respecting an establishment of religion must at least mean that in this country it is no part of the business of government to compose official prayers for any group of the American people to recite as part of a religious program carried on by government.” 370 U.S., at 424–25.

D. Books Purchased with Public Funds Loaned to Parochial School Students In 1966, the State Legislature amended the Education Law to authorize local school authorities to lend textbooks purchased with public funds free of charge to students enrolled in private schools, including parochial schools. The constitutionality of the statute was challenged by local school authorities in Board of Ed. of Cent. School Dist. No. 1, Towns of East Greenbush Rensselaer County, et al. v. Allen, 20 N.Y.2d 109 (1967), on the grounds that it violated the state constitutional prohibition against using public funds for denominational schools (Article 11, § 3, N.Y. Const., the Blaine Amendment) and the First and Fourteenth Amendments to the Federal Constitution. It will be recalled that the Court of Appeals had held that public funding of transportation for parochial school students violated the State Constitution. Judd v. Board of Education of Union Free School Dist. No. 2, Town of Hempstead, Nassau County, 278 N.Y. 200 (1938). See discussion, II-A, supra. After Judd was decided the Blaine Amendment was itself amended to permit the State to provide the transportation prohibited by Judd,4 and Judd had not been over-

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ruled when the Schoolbook Case, Board of Ed. of Cent. School Dist. No. 1, Towns of East Greenbush Rensselaer County, et al. v. Allen, came before the Court. The Federal Constitution contained no Blaine Amendment equivalent. In the Schoolbook Case, a 4–3 decision, Judge Scillepi’s opinion for the Court of Appeals majority expressed disagreement with the reasoning of the Judd majority and held “that it should not be followed.” 20 N.Y.2d, at 115. The majority in the Schoolbook Case, relying on the approach to the “wall of separation” between church and State stated by Judge Froessel in Zorach v. Clausen, quoted in subdivision II-B, supra, reasoned that the words “direct” and “indirect” in the Blaine Amendment “relate solely to the means of attaining the prohibited end of aiding religion as such.”5 The crucial distinction relied on by the Court was that of intentional aid to religion as opposed to collateral benefit. With respect to providing textbooks as authorized by the statute, there was no intent to aid religion, but rather to improve the quality of education for all children. 20 N.Y.2d, at 116. As for the Federal constitutional contentions, the Court, relying on Everson v. Board of Education, held the statute did not violate the Federal Constitution. Judge Van Voorhis wrote a dissent, concurred in by Chief Judge Fuld and Judge Breitel. The dissenters argued that except for the amendment permitting expenditures for school transportation, nothing had changed since Judd was decided, and indeed, providing textbooks more likely was a violation of the Blaine Amendment than providing school transportation. The dissenters also rejected the so-called student benefit theory that held the benefit was for the student and not the religious institution; supplying textbooks at least “indirectly” benefited the institution and this violated the language and purpose of the Blaine Amendment. In a 6–3 decision the United States Supreme Court affirmed the Court of Appeals. Board of Ed. of Cent. School Dist. No. 1, Town of East Greenbush Rensselaer County, et al. v. Allen, 392 U.S. 236 (1968).

E. Two Supreme Court Establishment Clause Cases Lemon v. Kurtzman, 403 U.S. 602 (1971), became an important touchstone for determining whether the First Amendment’s Establishment Clause was violated. It stated that the First Amendment’s Establishment Clause is not violated if all three prongs of the following test are met: First, the statute must have a secular legislative purpose: second, its principal or primary effect must be one that neither advances nor inhibits religion;

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finally, the statute must not foster “an excessive government entanglement with religion.” 403 U.S., at 612–13 (citations omitted)

Although the Court of Appeals did not have the opportunity to consider the questions presented in Committee for Public Education v. Nyquist, 413 U.S. 756 (1973), the United States Supreme Court’s disposition of the issues in that case provide additional context for the Court of Appeals’ disposition of establishment questions. New York had enacted a statute that contained legislative findings of secular needs that stated the statute was designed to assure that those secular needs were adequately met. The legislative scheme consisted of three parts. First, grants of state funds were to be given to qualifying nonpublic schools for maintenance and repair of their physical facilities in order to assure the health and safety of the children; second, tuition grants in the form of reimbursement of tuition for nonpublic elementary and secondary schools paid by parents who met certain income requirements; and third, income tax deductions for parents who did not satisfy the income requirements for tuition grants. Applying the tripartite test of Lemon v. Kurtzman and distinguishing Everson, supra, and Allen, supra, the Supreme Court in Nyquist, a multi-opinion decision that included some total and partial dissents, held the three legislative elements violated the First Amendment’s Establishment clause in that they had the primary effect of advancing religion. 6

F. Student Activity College student newspapers in two college components of the tax-supported City University of New York, which were financed by taxes and mandatory student fees, had published vituperative attacks on religious beliefs. Several students and taxpayer parents sought an order compelling college officials to suppress the publication of articles grossly offensive to religion. The complainants argued that financing the publications violated Federal constitutional commands that government remain neutral with respect to religion. The Court of Appeals affirmed the lower courts’ rejection of the request. Panarella v. Birenbaum, 32 N.Y.2d 108 (1973). The Court found that the colleges merely provided a neutral public forum for debate. There was no intent on the part of the college officials to foster attacks on religion, there was no evidence that contrary views had been excluded, and so long as the content of the occasional articles was constitutionally protected by the First Amendment, there was no constitutional basis for the

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petitioners’ complaints. “Only if the colleges continued financial support to a newspaper systematically attacking religion over a period of time, without balance, might there be an attempt to ‘establish’ a ‘secular religion.’” 32 N.Y.2d, at 112.

G. Curriculum Requirements and Development: Free Exercise and Establishment Issues Not unexpectedly, the introduction of instruction concerning sexual activities and mores into the school curriculum raised religion-related questions. Education Law § 3204(5) anticipated some of those questions by providing that, subject to the Board of Regents rules and regulations, students could be excused from health and hygiene instruction if the instruction conflicted with the religion of the student’s parents. A student’s exemption had to be “consistent with the requirements of public health and safety” and the existence of religious conflict had to be certified by “a proper representative of the religion.” Regulations designed to use school-sponsored instruction as a means of dealing with the AIDS (Acquired Immune Deficiency Syndrome) crisis presented the Court with sharply contested religion-related issues in Ware v. Valley Stream High School District, 75 N.Y.2d 114 (1989), and New York State School Boards Ass’n v. Sobol, 79 N.Y.2d 333 (1992). In Ware, a small religious group known as the Christian Brethren sought exemption of their children from regulations issued by the State Commissioner of Education that required primary and secondary school students to receive instruction about AIDS. The instruction was to be given in the schools during schooltime, but the regulations contained provision for granting exemptions from instruction on the methods of AIDS prevention, provided the applicant for an exemption gave assurance that the exempted student “will receive such instruction at home.” The school district refused to give the Brethren a wholesale exemption, but did exempt them from some of the instruction. On appeal to the Commissioner and later in the courts, the Brethren argued that subjecting their children to the AIDS education program violated their Federal constitutional rights to religious freedom and the privacy rights of the parents to raise their children. The Brethren “asserted no claim under the Free Exercise clause of the State Constitution (N.Y. Constitution, art I, § 3).” 75 N.Y.2d at 123, note 3. They maintained that they were a small and socially isolated community and, except for the “practical necessity” to attend school and the work place in order to earn a living, they had no contact with those outside their religious group. In the entire United States the Brethren had only 2,000

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adherents in their “local gatherings” or “fellowships,” and in New York State the total was 140 in Valley Stream and 120 in Rochester. Their children did not socialize with nonmembers of their religion; they did not even eat with them. The Brethren adhered to strict religious tenets that prohibited extramarital sex and also prohibited exposure of their followers “to instruction concerning sexuality and morality other than that which is imparted by [their] community. [Moreover,] an order exempting their children would not present a danger to the public, in light of the improbability of their children’s participation in activities that transmit AIDS.” The Commissioner denied the appeal, concluding that at that stage in the battle against AIDS, the public interest would best be served by education as the strongest weapon against the spread of the disease. The Commissioner refused to consider the “novel” constitutional questions because he deemed them to be inappropriate for the Commissioner’s determination. 75 N.Y.2d, at 219. The Brethren sought judicial review of the Commissioner’s determination. The Supreme Court granted the Commissioner’s motion for summary judgment with findings that the Brethren were integrated into the local community and not outside the zone of persons that needed protection, that the required instruction would not violate the Brethren’s religious beliefs or be destructive of the community, and “that in any event compelling state interests justify the [AIDS instruction] requirement.” The Appellate Division affirmed, but “acknowledged that the compulsory exposure of the [Brethren’s] children to the details of evil which their religion instructs them to avoid may burden [their] religious rights[, however,] compelling interest in AIDS education justified that burden.” 75 N.Y. 2d, at 121–22. Judge Kaye, writing for a 5–2 majority, applied an “obviously fact-sensitive” two-step test, based on United States Supreme Court and other Federal cases. First, a claimant must show a sincerely held religious belief that is burdened by a State requirement. . . . Second, the State must demonstrate that the requirement nonetheless serves a compelling governmental purpose, and that an exemption would substantially impede fulfillment of that goal. 75 N.Y.2d, at 124

Judge Kaye posited three propositions distilled from the “less than clear” guidance of Federal cases as to what was not such a burden on religion so as to constitute a First Amendment “free exercise” violation. First, the “free exercise” clause is not violated by government action that merely offends religious beliefs, especially with respect to school curriculum questions that require deference to

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education authorities. Second, there is “general agreement” that the First Amendment is not offended by “mere exposure to ideas that contradict religious beliefs.” Third, the First Amendment neither guarantees a curriculum that will not offend some religious group nor does it give parents a right “to tailor public school programs to individual preferences.” 75 N.Y.2d, at 125. The Brethren relied on Wisconsin v. Yoder, 406 U.S. 205 (1972), where the Supreme Court held that the First Amendment would be violated by compelling children of the Amish to attend public schools after the eighth grade, because after examining the culture and life of the Amish in great detail, the Court concluded that “what was in issue were long-standing beliefs shared by an organized group, that the beliefs related to religious principles that pervaded and regulated Amish daily life, and that the state law threatened the continuing existence of the Old Order Amish church community.” 75 N.Y.2d at 126 (emphasis added). Judge Kaye recognized the similarities between the claims of the Brethren and those of the Amish in Yoder. Pursuing the analogy with the Amish in Yoder on the question of the burden on the Brethren’s religious freedom that would be affected by denying the requested exemption, Judge Kaye found that it was not clear from the record how much the Brethren were integrated into the local community. Similarly, with respect to the claim of the permanent damage that might accrue to the community if the children were subjected to the AIDS curriculum, the factual record was not as well developed in the case at bar, as it had been about the Amish in Yoder. As for the “compelling state interest” aspect of the inquiry, Judge Kaye acknowledged that “[e]ven religious rights must bow to the compelling interests of the State, pursued by the least restrictive means.” If the Brethren could show that their religious rights were burdened, the State’s refusal to grant an exemption would be subject to “strict scrutiny.” Here, too, Judge Kaye found that the record was insufficient to grant summary judgment to either side. Consequently, the majority reversed the granting of summary judgment to the Commissioner, affirmed its denial to the Brethren, and reinstated the complaint. There were two dissents, and they disagreed with each other and with the majority. Each dissenter thought the record sufficient, but Judge Titone would have reversed the Appellate Division and granted the Brethren’s motion for summary judgment, while Judge Bellacosa would have affirmed the grant of summary judgment to the Commissioner. Judge Titone detailed the facts of record and argued that further evidence would not change what he claimed the evidence already showed: that under Yoder, the requested exemption from the AIDS program should have been granted. Judge Titone continued:

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While I share the abhorrence of ignorance that characterizes much of modern western culture, I cannot overlook the fact that our contemporary faith in the power of secular education has not immunized us from such ills as rampant drug abuse, an inordinately high drop-out rate, family dissolution and spiritual demoralization, as well as socially transmitted diseases such as AIDS. Accordingly, like the Yoder court, I am most reluctant to assume that today’s prevailing culture, which places its faith in objective knowledge, is “right” while plaintiffs and others like them, who place their faith in moral and spiritual guidance, are “wrong.” For these reasons, I would prefer to simply grant plaintiffs’ request for summary judgment and direct defendants to exempt plaintiffs’ children from the AIDS curriculum to which they object. In light of the limited number of individuals involved, the uniqueness of plaintiffs’ sect and the narrowness of the exemption from compulsory education they seek, I can see no compelling reason to deny them that relief without further litigation. 75 N.Y.2d. at 138, (citation and footnote omitted)

Judge Bellacosa’s vigorous dissent argued that the facts necessary for decision already were in the record and that the case was materially unlike Yoder in that the Brethren, for whatever reason, were participants in the local community in the core aspects of school, work, and dwelling, and already they had been granted substantial exemption from the AIDS instruction program. He said: The facts are the facts for whatever reason—and if undeniable, they are not triable. Indeed some categories of cases are, for transcendental jurisprudential and policy reasons, particularly suitable to summary judgment resolution. This is such a case and such a category, and the record supports only that relief in my view. . . . The constitutionality of the . . . AIDS . . . program should be upheld . . . and the children should get on with their full and necessary education. 75 N.Y.2d, at 139–40 (citations omitted; emphasis added)

While Ware involved a Federal free exercise constitutional claim, the First Amendment’s establishment clause was implicated in New York State School Boards Ass’n v. Sobol, 79 N.Y.2d 333 (1992). NYSBA involved a challenge to the constitutionality of a regulation that required representatives of religious organizations to be included on advisory councils established to develop AIDS programs for public schools. “The mandatory list of participants on the councils include[d] ‘parents, school board members, appropriate school personnel, and

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community representatives, including religious representatives.’” 79 N.Y.2d, at 341. Although “individual justices of the United States Supreme Court [had] expressed varying viewpoints on the continued utility and validity of the Lemon test,” the Court of Appeals was “unanimous” that Lemon, supra, continued to govern the area and both the majority and the minority applied it in NYSBA. 79 N.Y.2d, at 338–39. Judge Bellacosa, writing for the five-judge majority, rejected the Association’s claim that the challenged regulation ran afoul of the “effect” or second prong of the Lemon test, because the Association, while conceding the secular purpose of the regulation, argued that specifying and mandating religious representation on the advisory council “conveys a message of endorsement of religion and thus creates the forbidden ‘symbolic link’ between church and State.” Id., at 340. Judge Bellacosa reasoned that the Lemon approach was a distillation of recent establishment cases, which recognized that total separation of church and State was neither possible nor desirable and might result in State hostility rather than neutrality toward religion. Moreover, acknowledgment of religion or taking it into account was not prohibited. Thus, especially with respect to challenges to the facial validity of a statute or regulation, if the State “‘maintain[s] a course of neutrality among religions, and religion and non-religion’ . . . its actions will withstand Establishment Clause scrutiny.” Id., at 338. As for the regulation at issue, first, its secular purpose was conceded, and Judge Bellacosa rejected the Association’s “symbolic link” argument, concluding that it was “not sufficiently likely” that believers or nonbelievers would perceive the State, through this regulation, as “endorsing or disavowing religion or nonbelievers.” 79 N.Y.2d, at 341. Moreover, citing Ware, supra, secular, not religious, purposes would be advanced by the inclusion of broadbased community representation, including religion, in an advisory capacity, because its inclusion could result in significant increased popular support for AIDS programs. Id., at 340. Although only religious representation is specifically mentioned in the regulation, it also mandated inclusion of community representatives generally, and, according to Judge Bellacosa, on its face, specific mention of religious representation gave no greater “hierarchal” weight to religious than to other community groups. The majority also rejected as speculative the argument that on its face there was “excessive entanglement” of government with religion, because the boards of education would have to sift through the recommendations to “screen out” those that “could impermissibly advance religion.” Determination of this “excessive entanglement” challenge would depend on the facts

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of the particular situation and could not be resolved on the face of the regulation alone. Judge Titone, dissenting, with the concurrence of Judge Alexander, argued that the regulation established a symbolic link between the State and religion and violated the establishment clause. Particularly in the context of the education of “highly impressionable” children, he contended, the link established by the regulation presented the significant danger that “highly impressionable” young minds would view the mandatory inclusion of religious representatives as the State’s endorsement of religion. He viewed the majority’s analysis as incomplete. Although he agreed that the purpose of the regulation was secular, he argued that the effect of the mandatory inclusion of religious representatives constituted a statement “in most direct terms, that, above all other interested groups in society, religion has a unique and indispensable role to play on the councils of government. . . . The ‘endorsement of religion, as distinguished from nonreligion’ could not be clearer.” 79 N.Y.2d, at 345–46.

H. Religious Educational Institutions’ Employer-Employee Relations 1. EXCLUSION FROM UNEMPLOYMENT INSURANCE COVERAGE

Matter of Klein (Hartnett), 78 N.Y.2d 662 (1991), cert. denied, sub nom., Klein v. Hartnett, 504 U.S. 912 (1992), rejected a challenge to the constitutionality of Labor Law § 563, subd. 2(c), which excluded persons performing duties of a religious nature at a place of worship from unemployment insurance coverage. Klein involved the denial of benefits to a teacher who taught English at a high school operated by a Jewish congregation in which all the students were Jewish girls, the teachers were required to be Jewish women, the curriculum was designed by the school, and the textbooks were monitored “so as to exclude any secular material ‘damaging to the faith.’” 78 N.Y.2d, at 664, 665. The teacher claimed that “because the statute serves no secular legislative purpose, has the purpose and effect of favoring nonreligious schools over religious schools, and results in excessive entanglement of government with religion,” it violated the Establishment Clause. She also argued that the provision’s discrimination favoring nonprofit “secular or atheist schools” over nonprofit religious schools denied her equal protection of the laws. 78 N.Y.2d, at 664–65. The Court reviewed the legislative history of the provision and, applying the Lemon test, found that “the clear secular legislative purpose was to extend unemployment insurance coverage to previously exempt employees of nonprofit organizations, while retaining the exemption for the benefit of a range of

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nonprofit organizations whose employees were not active members of the work force in the true sense and whose employment was stable.” Religious organizations received only an incidental benefit accorded to a range of other organizations, and this “incidental benefit does not render the exemption unconstitutional.” 78 N.Y.2d, at 668–69. The Court also found that the legislation did not have the purpose of advancing religious over nonreligious schools. Rather, by avoiding the necessity of a governmental inquiry into a religious institution’s religious tenets to determine whether or not a teacher had been discharged for reasons related to those tenets, the statute minimized governmental intrusion into religious affairs. 78 N.Y.2d, at 669. In addition, the Court held that whatever financial benefit religious institutions enjoyed from not having to pay unemployment taxes does not have the principal or primary effect of advancing religious schools impermissibly over nonreligious schools any more than exemption from property taxes violates the Establishment Clause. Indeed, the Court found that the exemption “minimized” the “entanglement between church and State” and “effectuat[ed] a more complete separation between the two.” Id., at 670–72. The Court also rejected the Equal Protection challenge, and applied the rational basis test to the statutory scheme, reasoning that because there was no fundamental right to unemployment insurance, the statute did not involve a suspect classification. The Court found that the classification was rationally related to legitimate government purposes by “sparing certain tax exempt, non profit organizations from the burden of general taxation . . . [by promoting] the efficient administration of the unemployment insurance program by avoiding undue government involvement in problems peculiar to religious employment.” 78 N.Y.2d, at 672. 2. DISCRIMINATION ON RELIGIOUS GROUNDS

In Scheiber v. St. Johns University, 84 N.Y.2d 120 (1994), the Roman Catholic University discharged Scheiber, a vice president for student life, who was Jewish. Scheiber sued the University claiming, in addition to breach of contract, that his dismissal was due to his religious beliefs and consequently was unlawful under New York State Executive Law § 296 and under Federal law. The New York State Constitution guarantees that “no person shall, because of . . . religion, be subjected to any discrimination because of his civil rights by any other person or by any firm, corporation, or institution. . . .” New York State Constitution Article I, § 11. The constitutional provision contains no exemption for religious institutions, but the Executive Law does. The statute provides that a religious organization or institution may give preference to persons of its faith “in employment . . . in

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order to promote the religious principles of such institution.” Executive Law § 296 (11). The Court found that the University was a religious institution under the law and could avail itself of the exemption. The University denied that it had fired Scheiber because of his religion, but also claimed that as a religious institution it had the blanket power to hire and fire for that reason. The Court concluded that the law did not give the University a blanket power to discriminate on the basis of religion, but only, as stated in the Executive Law, the limited power to do so “in order to promote [its] religious principles.” The Court recognized that issues “concerning a hiring decision calculated to promote religious principles of a religious institution highlight the tension between constitutional Free Exercise and Establishment clauses, as well as the potential for excessive entanglement in religion affairs.” The essential facts, as noted, were in dispute. Consequently, the Court refused to consider the constitutional issues “or other absorbing matters” unless and until those factual issues were resolved. 84 N.Y.2d, at 127–28. 3. COLLECTIVE BARGAINING

In New York State Employment Relations Board v. Christ the King Regional High School, 90 N.Y.2d 244 (1997), in an opinion by Judge Bellacosa, a unanimous Court of Appeals rejected the claim of a Roman Catholic secondary school that the free exercise and establishment clauses of the First Amendment would be violated if the school were held to be subject to the New York State Labor Relations Act. The question arose on the appeal of the school from an order of the State’s Labor Relations Board that required the school to bargain in good faith with the union representing its lay faculty and to reinstate certain striking teachers that the Board found had been wrongfully discharged. In rejecting the “free exercise” claim, the Court of Appeals applied the standard announced by the Supreme Court in Employment Division v. Smith, 494 U.S. 872 (1990): Now, a generally applicable and otherwise valid enactment, which is not intended to regulate religious conduct or beliefs but which may incidentally burden the free exercise of religion, is not deemed to violate the First Amendment. 90 N.Y.2d, at 248

Smith had rejected the balancing test previously announced in Sherbert v. Verner, 374 U.S. 398 (1963). Under that approach, if a generally applicable enactment imposed a substantial burden on the free exercise of religion, the government had the burden of establishing a compelling interest in not recog-

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nizing an exception favoring the free exercise of religion.7 Congress had reinstated Sherbert v. Verner’s balancing test as part of the Religious Freedom Restoration Act of 1993, but the Supreme Court declared the RFRA to be unconstitutional. City of Boerne v. P.F. Flores, 521 U.S. 507 (1997).8 Christ the King was the first case decided by the Court of Appeals in which the application of the Smith rule was decisive.9 It also should be noted that in that case the plaintiffs had claimed only violations of the Federal and not the State Constitution. It remains for future decisions to determine whether Smith, Sherbert v. Verner, or some other standard will govern free exercise claims under the State Constitution when a generally applicable statute is involved. Applying the Smith standard, the Court held that the Labor Relations Act “is a facially neutral, universally applicable and secular regulatory regimen” that did not implicate nor purport to impose any burden on religious beliefs or activities. The burden claimed by the school, “particularly in contrast to the sweeping threshold immunity that it seeks, is plainly incidental, inchoate and speculative.” 90 N.Y.2d, at 249. The Court of Appeals also rejected efforts to limit Smith to criminal statutes or to find that the case at bar involved the “hybrid exception” mentioned in Smith. Under the “hybrid exception,” Smith’s generally applicable standard would not apply where the free exercise clause is considered in conjunction with other discrete “high-ranking constitutional protections, such as freedom of speech and of the press.” Here, the school argued the exception applied because there was a claimed interference with the rights of the parents in the religious education of their children. Judge Bellacosa refused to recognize this as a “hybrid exception”—it would destroy the utility of Smith in school labor settings. The Court also rejected the school’s claim that the State’s Labor Relations Act violated the Establishment Clause. The opinion declared, in reliance on Supreme Court cases it cited, that “ ‘total separation [of church and state is] not possible in an absolute sense, [for s]ome relationship between government and religious organizations is inevitable,’” and to determine the establishment claim, the Court had to address “excessive entanglement,” the third Kurtzman prong. The Court found that “the [State Labor Relations] Board’s supervision over collective bargaining involving secular terms and conditions of employment ‘is neither comprehensive nor continuing,’” consequently, the Board was insufficiently involved in “surveillance” of the negotiation process to conclude that mandatory collective bargaining alone constitutes excessive entanglement. As for the school’s claim that the Board’s potential role in collective bargaining could affect the school’s religious rights and concerns, the Court decided that if

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that were to occur, it could then address the claim in the context of a specific application of the Act. The mere possibility that such a situation could arise was not a sufficient reason to declare the Act unconstitutional unless a threshold exemption from the Act for religious organizations was recognized.

I. Kiryas Joel I, II, and III: Creation of School Districts and the Establishment Clause 1. BACKGROUND

a. The Kiryas Joel Community It will be recalled that Ware, supra, dealt with the contentions of a religious sect that to apply a generally applicable law to its members would violate their religion-related constitutional rights. A somewhat different set of issues was presented by the State Legislature’s creation of Kiryas Joel Village School District. The legislation was designed and, as a practical matter, was limited to meet only the special needs and concerns of the Satmarer or Satmar10 Hasidic religious sect. The Court of Appeals dealt with the creation of Kiryas Joel Village School District in Grumet v. Board of Education of the Kiryas Joel Village School District, 81 N.Y.2d 518 (1993) (Kiryas Joel I), affirmed sub nom. Board of Education of the Kiryas Joel Village School District v. Grumet, 512 U.S. 687 (1994); Grumet v. Cuomo, 90 N.Y.2d 57 (1997) (Kiryas Joel II); and Grumet v. Pataki, 93 N.Y.2d 677 (1999) (Kiryas Joel III), cert. denied 528 U.S. 946 (1999). The Kiryas Joel trilogy involved sharply conflicting views concerning the application of the presumption of the constitutionality of legislative enactments and the factors to be taken into account in determining whether or not a statute is facially unconstitutional. In addition, the uncertainty surrounding Supreme Court establishment clause doctrine was exposed and provided ample arguments for the diverse views represented on the State Court of Appeals. The Kiryas Joel decisions also provided further examples of the Court’s readiness to avoid State constitutional issues in the area of religion-related constitutional rights. A more than usual detailed exposition of the facts perhaps is necessary to understand the issues involved. The Village of Kiryas Joel was formed by, and is composed almost entirely of members of the Satmarer Hasidic sect.11 In addition to separation from the outside community, separation of the sexes is observed within the Village. Yiddish is the principal language of Kiryas Joel. No television, radio, or English language publications are generally used. There is a male and female

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dress code. For the most part, the children are educated in religious affiliated schools. The boys attend the United Talmudic Academy and are educated in the Torah. The girls attend Bais Rochel and are instructed on what they will need to function as adult women. ... Prior to the decision of the United States Supreme Court in Aguilar v. Felton (473 U.S. 402 [1985]), the handicapped children living in Kiryas Joel received special education services from Monroe-Woodbury Central School District personnel in an annex to one of the Kiryas Joel religious schools. 81 N.Y.2d 518, at 523–24 (1993)

b. Wieder and Kiryas Joel’s Relation with the Local Public School District The Monroe-Woodbury Central School District, the public school district in which the Satmar community was located, stopped providing these special education services in response to Aguilar,12 in which the Supreme Court declared unconstitutional the Federal statute that authorized the use of Federal funds to pay salaries of public employees who taught in parochial schools. Thereafter for a short time, some of the sect’s handicapped children did attend special education classes in the public schools. “However, allegedly because of the ‘panic, fear and trauma [the children] suffered in leaving their own community and being with people whose ways were so different than theirs,’ the parent stopped sending them to programs offered at the public schools.” Board of Education of the Monroe-Woodbury School District v. Wieder, 72 N.Y.2d 174, 181 (1988). Wieder reflected the confrontational attitudes that had developed between the school district and the Satmar community. The district claimed that the State statute permitted it to provide special education services only in regular public school classes, while the Satmar Hasidim insisted that the statute required the services to be provided on the premises of the child’s regular school, in this case the religious school. During the litigation, each bent a little; the district would “recognize certain exceptions” and Satmar “would accept services at a neutral site.” 72 N.Y.2d, at 178–79. The Court concluded that the statute did not compel compliance with the views of either party, but rather that the board of education had the option of providing special education to handicapped private school children in regular public school classes or in other places. The Satmar Hasidim also alleged constitutional violations, but the Court in Wieder found that the record did not sufficiently present constitutional claims because the Satmar Hasidim, in “the trial court insisted that, as a class, they

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should be exempted from public school placements only for nonreligious reasons—most particularly because of the emotional impact on the children of traveling out of Kiryas Joel . . . , [and they] made no showing that any sincere religious beliefs were threatened by requiring limited public school attendance, only for special services.” 72 N.Y.2d, at 189. Judge Kaye, writing for a unanimous Court, addressed the difficulty of determining the content of United States Supreme Court establishment clause doctrine, stating that “determining which services may be rendered by a public body to parochial school students and which may not, is perhaps best illustrated by Wolman v. Walter, 433 U.S. 229 . . . (1977), a Supreme Court decision with so many categories and splintered votes that it can only be read with a scorecard.” 72 N.Y.2d, at 189, n. 3. 2. KIRYAS JOEL I

Subsequently, in 1989, the New York State Legislature created a new union school district, Kiryas Joel Village School District, in the Incorporated Village of Kiryas Joel in the Town of Monroe, Orange County. (L. 1989, Ch. 748). The new school district was located within the public school district and was coterminous with the Hasidic community of Kiryas Joel. The legislation also established a five- to nine-member school board, to be elected by the village, whose members would serve for terms not exceeding five years. In signing the legislation, the Governor characterized it as “‘an effort to resolve a longstanding conflict between the Monroe-Woodbury School District and the village of Kiryas Joel, whose population are all members of the same sect’” (Governor’s Approval Mem., 1989 N.Y.Legis.Ann., at 324). 81 N.Y.2d, at 525. The trial court granted plaintiffs’ motion for summary judgment and found the statute unconstitutional under the establishment clause of the First Amendment and Article XI § 3 (the Blaine Amendment) of the State Constitution, emphasizing that the purpose of the statute was not secular, but rather to advance religion, thereby violating the first prong of the Lemon test. The Appellate Division affirmed on State and Federal constitutional grounds reasoning that the statute violated the second prong of the Lemon test because its principal or primary effect was to advance religion. Grumet v. New York State Education Department, 151 Misc.2d 60 (1992), affirmed sub nom. Grumet v. Board of Education of the Kiryas Joel Village School District, 187 A.D.2d 16 (3d Dept. 1992). Neither court made a separate analysis of the State constitutional contentions, and each discussed only the Lemon analysis. In Kiryas Joel I, a 5–2 majority of the Court of Appeals affirmed, holding the statute to be unconstitutional. Judge Smith wrote for the five-judge majority that included Chief Judge Kaye and Judge Hancock, who each also wrote separate

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concurring opinions. Judge Bellacosa dissented in an opinion in which Judge Titone concurred. Grumet v. Board of Education of the Kiryas Joel Village School District, 81 N.Y.2d 518 (1993), affirmed sub nom. Board of Education of the Kiryas Joel Village School District v. Grumet, 512 U.S. 687 (1994). Judge Smith’s opinion for the Court affirmed the finding of unconstitutionality solely on Federal and not on State constitutional grounds. First, he explained, the “subject of the parties’ focus” in the Court of Appeals was on the First Amendment’s Establishment Clause. Second, Judge Smith disagreed with the trial court’s view of the State Constitution’s Blaine Amendment as a “counterpart” to the First Amendment’s Establishment Clause, declaring that the Blaine Amendment is “significantly different from the Establishment Clause, both in text and history. . . .” 81 N.Y.2d, at 531–532. Concluding that the Village of Kiryas Joel School District statute was unconstitutional because it violated the second or “principal or primary effect” of the Lemon prong, Judge Smith found it unnecessary to address the other Lemon prongs. Chief Judge Kaye and Judge Hancock agreed with Judge Smith that the statute ran afoul of Lemon’s second prong, but the Chief Judge, in her concurring opinion, contended that Lemon was not the “preferred” framework for analyzing the Kiryas Joel issues, 81 N.Y.2d, at 532, and Judge Hancock, in his concurring opinion, referred to and addressed all three Lemon prongs. In determining whether the “principal or primary effect” of the legislation advanced or inhibited religion, Judge Smith posited that the prohibition on government involvement with religion was not limited to “direct and funded efforts to indoctrinate citizens in specific religious beliefs but includes a close identification of the responsibilities of government and religion.” 81 N.Y.2d, at 527 (emphasis added). Judge Smith concluded that the Kiryas Joel School District statute effected the kind of “symbolic union” between government and religion that is prohibited by the Establishment Clause, because, “in context,” particularly from the vantage point of children, this government action was “likely to be perceived as [government] endorsement of religion.” 81 N.Y.2d, at 528. The majority rejected the Hasidim’s contention that the proper analysis would employ the “objective observer” approach in determining whether the Establishment Clause was violated. That approach, suggested by Supreme Court Justice O’Connor in her concurring opinion in Wallace v. Jaffree, 472 U.S. 38, 76 (1985), would make “the relevant issue . . . whether an objective observer, acquainted with the text, legislative history, and implementation of the [challenged] statute, would perceive it as [the State’s endorsement of the Satmar Hasidic faith].” 81 N.Y.2d, at 528. Judge Bellacosa, conceding that the “objective observer” approach had not yet been adopted by the Supreme Court,

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employed it as part of his analysis and concluded that under that approach the statute was not unconstitutional. 81 N.Y.2d, at 551, et seq. (Bellacosa, J., dissent). The majority opinion in Kiryas Joel I reasoned that there was a “symbolic union” between government and religion where the State “authorizes a religious community to dictate where secular public educational services shall be provided to the children of the community . . . where only Hasidic children will attend the public schools in the newly established school district, and only members of the Hasidic sect will likely serve on the school board. . . . [T]his . . . is sufficiently likely to be perceived by the Satmarer Hasidim as an endorsement of their religious choices, or by nonadherents as a disapproval of their individual religious choices. Thus the principal or primary effect of [the statute] is to advance religious beliefs.” 81 N.Y.2d, at 528–529

Judge Smith, noting that services for the handicapped children were available, but not on the terms demanded by the Satmar Hasidim, concluded that the primary purpose of the creation of the school district was not to provide those services, but to yield to the demands of a religious community whose separatist tenets create a tension between the needs of its handicapped children and the need to adhere to certain religious practices. Regardless of any beneficent purpose behind the legislation, the primary effect of such an extensive effort to accommodate the desire to insulate the Satmarer Hasidic students inescapably conveys a message of governmental endorsement of religion. Thus, a “core purpose of the Establishment Clause is violated.” 81 N.Y.2d, at 531 (citations omitted)

Chief Judge Kaye concurred with Judge Smith’s Lemon analysis, but also contended that Lemon was not the “preferred analytical framework.” Rather, she urged, the statute in Kiryas Joel I is “precisely the sort of legislation that should be strictly scrutinized, because it provides a particular religious sect with an extraordinary benefit: its own public school system.” 81 N.Y.2d, at 532 (emphasis added). Chief Judge Kaye began with noting the uniqueness of the Kiryas Joel statute. Unlike all the prior Supreme Court cases on education and religion, Kiryas Joel I neither “provide[d] aid to a parochial school [nor] prescribe[d] reli-

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gious practices for a public school [, and even more fundamentally, the statute involved] is not one of the myriad ‘government programs that neutrally provide benefits to a broad class of citizens defined without reference to religion.’” 81 N.Y.2d at 532–33 (citations omitted). Rather, the statute undoubtedly was designed to meet the problems of and to benefit a specific religious group by segregating that group so as to enable it to pursue its own religious purposes. Simply stated, although aiding the handicapped children can be assumed to be a public purpose, the legislative solution went too far. Indeed, its “overbreadth [went] beyond symbolism.” 81 N.Y.2d at 537. On its face, the legislative solution exceeded its purported purpose of dealing with handicapped children; for the legislation gave the new school district all the powers of a union free school district, and that would include the power to establish a public school program for nondisabled children. If the concern was the trauma endured by the children attending public school classes, she reasoned, a more narrowly addressed solution, such as having the public school district provide services at a neutral site, could have met that concern. Moreover, citing Brown v. Board of Education, 347 U.S. 483 (1954), and other cases, she posited that the history and background of the district established by the Kiryas Joel statute effected a segregated school system that might well run counter to the teachings of Brown and its progeny. 81 N.Y.2d, at 537–38. The Chief Judge noted the irony that “in the wake of the Legislature’s creation of a new school district for the Satmar, Monroe-Woodbury now argues that the ‘provision of secular instructional services to students of the same faith at a neutral site is constitutionally permissible.’” She recommended a legislative solution that would permit offering services at a neutral site. This solution, according to Chief Judge Kaye, “would not offend the Establishment clause” and “could well obviate the need for any further legislative intervention.” 81 N.Y.2d, at 539, 540. Compare the positions of the parties in Board of Education of the Monroe-Woodbury School District v. Wieder, 72 N.Y.2d 174 (1988), discussed, supra. Judge Bellacosa’s dissenting opinion argued that only a facial challenge to the legislation was presented, and he concluded that finding it to be facially defective reversed the presumption of constitutionality enjoyed by legislative enactments. 81 N.Y.2d, at 545–46. Chief Judge Kaye responded that the dissent itself relied on how the statute was implemented—“for example, that the new district presently provides only special education services”—and that on “this facial challenge, the Court must consider the full scope of the statute, which creates a new school district vested with ‘all the powers and duties of a union free school district’ (L.1989, ch. 748; emphasis added).” Id., at 537 (Kaye, C.J., concurring).

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Judge Bellacosa reviewed the history of and context in which the new school district had been created and concluded that on its face and within a reasonable doubt the “principal or primary effect of the legislation [did] not advance religion in this unique context, and that no endorsement of religion may be inferred.” 81 N.Y.2d, at 555. He argued that without some evidentiary basis to conclude the contrary, there was a secular purpose to and effect of the legislation—to benefit handicapped children—and that “[t]ruly objective observers should be able to conscientiously accept this legislation as secular, neutral and benign within the reasonable doubt spectrum.” Id., at 552. Judge Bellacosa, sounding the keynote of his dissent, concluded: I would therefore reverse and not declare chapter 748 unconstitutional on its face. The judicial nullification of the democratic prerogatives and solution for this intractable town-wide controversy is not justified. Instead it seems to spring from a reflexive veneration of a symbolic metaphor that sacrifices concededly necessary special education services of a small group of handicapped pupils. A real wall of separation thus arises and solidifies to a mythic height and density. 81 N.Y.2d, at 559

3. KIRYAS JOEL I IN THE UNITED STATES SUPREME COURT

The United States Supreme Court granted a writ of certiorari and affirmed the judgment in Kiryas Joel I in Board of Education of the Kiryas Joel Village School District v. Grumet, 512 U.S. 687 (1994). There were six opinions, including a dissent by Justice Scalia, whose views on the scope of the Establishment Clause were sharply disputed by Justice Souter. In substance, the major reasons for finding the legislation unconstitutional stated in Justice Souter’s opinion were: (1) The statute departed from the constitutional command that government remain neutral toward religion because it delegated “the State’s discretionary authority over public schools to a group defined by its character as a religious community, in a legal and historical context that gives no assurance that governmental power has been or will be exercised neutrally.” 512 U.S., at 696. (2) The State’s criteria for creating the new district and thereby conferring civil authority, were religious. 512 U.S., at 702. “It [was] undisputed” that the village boundaries were drawn “so as to exclude all but Satmars,” and the Legislature was aware of this fact when it created the new district. In addition to the Legislature’s awareness of how the boundaries of the district were formed, two

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additional factors supported the conclusion that there was a religious criterion in the creation of the new district—the anomalous facts that creation of a new school district ran counter to the New York trend of consolidating school districts, rather than creating new ones wholly located in an existing district, and that the district was created by special act instead of employing the general statute applicable to creating school districts. 512 U.S., at 699–701. (3) While the Constitution does not prohibit government accommodation of religion, “accommodation is not a principle without limits . . . [Chapter 748] singles out a particular religious sect for special treatment, and whatever the limits of permissible legislative accommodations may be . . . , it is clear that neutrality among religions must be honored.” 512 U.S., at 706. 4. KIRYAS JOEL II—GRUMET V. CUOMO

Relying on language in Justice Souter’s opinion13 and in Justice O’Connor’s concurring opinion,14 in Board of Education of the Kiryas Joel Village School District v. Grumet, 512 U.S. 687 (1994), the State Legislature passed chapter 241 of the laws of 1994 four days after the Supreme Court decision. Chapter 241 was an attempt to enact a “religion-neutral” law based on the suggestions contained in Justice O’Connor’s opinion. Chapter 241 amended Education Law § 1504 by adding a new subdivision (3) that provided for any municipality to form its own school district without legislative intervention. The new provision permitted “any municipality located wholly within a single central or union free school district but whose boundaries are not coterminous with boundaries of the preexisting school district ‘[to do so] whenever the educational interests of the community require it,’” provided certain requirements are met. 90 N.Y.2d, at 66. The criteria dealt with the proportion of students and property valuation in the existing and the new district. A “municipality” was limited to “city, town or village in existence as of the effective date of [the new provision].” Id., at 67. The procedure for creating the new school district required the majority vote of the new school district and of the trustees of the existing district or a majority vote of the residents of the existing school district, excluding the residents of the proposed new district. The trustees of the existing district unanimously approved the creation of the new district and the residents of Kiryas Joel approved it by a vote of more than 8–1. The constitutionality of chapter 241 was challenged by the same taxpayers who were plaintiffs in Kiryas Joel I. Chapter 241 appeared to be facially neutral, but in fact it appeared that at the time of enactment or in the future, no group or municipality other than the Kiryas Joel community would be able to create its own school district under the new law. Judge Ciparick’s opinion for the Court

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reasoned that the unconstitutionality of conferring this kind of benefit on a religious community could not be avoided by merely formal facial neutrality. 90 N.Y.2d, at 70 ff. The Court of Appeals unanimously held that chapter 241 of the Laws of 1994, like chapter 748 of the Laws of 1989, “violate[d] the Establishment Clause by effectively singling out the Village of Kiryas Joel for special treatment and thereby demonstrate[d] impermissible governmental endorsement of this religious community,” Id., at 64, although the Court also said that a statute that had “general applicability that the Village of Kiryas Joel, as one in a broad array of eligible municipalities, might have invoked” might survive a constitutional challenge. Id., at 75. As in Kiryas Joel I, the Court based its holding on the United States Constitution and did not reach the State constitutional issues. 5. KIRYAS JOEL III–GRUMET V. PATAKI

Three months after the Kiryas Joel II decision, the State Legislature enacted the “Kiryas Joel School Bill,” chapter 390 of the Laws of 1997. Chapter 390 differed from the statute declared unconstitutional in Kiryas Joel II in two major respects: the new statute did not contain the offending aspect of the definition of municipality that the municipality be in existence on the effective date of the new statute, and a criterion relating to property valuation that the Court had found to be unrelated to a legitimate object also was eliminated. The same taxpayer plaintiffs in Kiryas Joel I and II challenged the constitutionality of chapter 390 under the Federal and State constitutions. By a vote of 4–3, the Court declared chapter 390 of the Laws of 1997 to be unconstitutional. Grumet v. Pataki, 93 N.Y.2d 677 (1999). Chapter 390 was attacked by plaintiff taxpayers as facially unconstitutional, because it was not neutral and was intended to and did benefit the Satmars as a religious sect. The majority, in an opinion by Judge Smith, with the concurrence of Chief Judge Kaye and Judges Ciparick and Rosenblatt, found that the statute violated the Establishment Clause of the Federal Constitution, and, as in Kiryas Joel I and II, the Court concluded that it “need not address the challenges posed under the State Constitution.” 93 N.Y.2d at 697. There was sharp disagreement between the majority and Judge Bellacosa’s dissent, in which Judges Levine and Wesley concurred. While facially the statute appeared to be neutral, the majority reasoned: Significantly, the facial neutrality of a law is not dispositive [citing Kiryas Joel II, 90 N.Y.2d at 70, and Church of Lukumi Babalu Aye v. City of Hialeah, 508 US 520, 534 (“The Free Exercise Clause, like the Establishment Clause, extends beyond facial discrimination”)]. In determining whether a statute comports with fundamental Establishment Clause principles, and is “truly

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religion-neutral and generally applicable,” a court must scrutinize the law both in form and effect (Grumet v. Cuomo, 90 N.Y.2d, supra, at 70). 93 N.Y.2d, at 689 (emphasis added)

The majority found the effect to be nonneutral with respect to Kiryas Joel. It will be recalled that in Kiryas Joel II, chapter 241 was found to have benefited only the village of Kiryas Joel, and the Court unanimously found that statute to be unconstitutional despite the neutral form of the statutory criteria. As for chapter 390, the statute involved in Kiryas Joel III, although the Legislature had deleted the criteria criticized in Kiryas Joel II, as having no legitimate purpose, i.e., a factor related to the value of taxable property and the part of the definition of municipality that limited a municipality that could create a new district to one in existence on the effective date of the statute, the majority, nevertheless, found chapter 390 to be unconstitutional. Considering both the form and the effect of the statute now before us, we conclude that chapter 390 violates fundamental Establishment Clause neutrality principles. Although chapter 390 sets forth facially neutral criteria, any attempt to characterize the statute as a religion-neutral law of general applicability is belied by its actual effect [Board of Educ. of Kiryas Joel Vil. School Dist. v. Grumet, 512 U.S., at 703]. Presently, chapter 390 potentially benefits only the Village of Kiryas Joel and one other of the State’s 1,545 municipalities—the Town of Stony Point. In practical effect, therefore, the religious community of Kiryas Joel is not “merely one in a series of communities” eligible for equal treatment under chapter 390’s special school district laws [citing 512 U.S., at 703–704; Kiryas Joel II, 90 N.Y.2d, at 73]. That only two municipalities in all of New York State qualify under chapter 390 underscores the fact that groups finding themselves in a situation similar to that confronting the Satmar community will be unable to avail themselves of the statute’s benefits. Indeed, because the statute’s qualifying criteria are consciously drawn to benefit Kiryas Joel, other communities—both religious and secular—with similar educational needs will not have equal opportunity to create a publicly funded school district under chapter 390. Thus, the nonneutral effect of the statute is to secure for one religious community a unique and significant benefit—a “public school” where all the students adhere to the tenets of a particular religion—unavailable to other, similarly situated communities. In doing so, chapter 390 violates Establishment Clause principles by preferring one religion over others [512 U.S., at 703]. 93 N.Y.2d at 689–90. (footnotes omitted); (emphasis added)

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Except for unanimous agreement that the three-pronged Lemon test continued to be applicable to Establishment Clause issues, the Kiryas Joel III majority and dissent took sharply different views of the facts and the applicable law. The dissent found the majority’s approach to be seriously flawed. There was some dispute concerning the number of communities that could benefit from chapter 390. The majority responded to Judge Bellacosa’s dissent: The dissent cites a 1997 memorandum submitted by the Governor in support of the statute’s enactment, noting that 10 municipalities would be eligible to form school districts under chapter 390 [93 N.Y.2d at 706 (Bellacosa, J., dissenting opinion)]. Both lower courts, however, concluded from the record statistics that only two are eligible—Kiryas Joel and Stony Point. Appellants themselves do not assert that there are 10 eligible municipalities. Appellants themselves say only that the number of present and future municipalities that qualify under the statute “remains uncertain” and “may exceed” the two that have been identified. They identify no additional eligible municipalities. Defendants’ tenuous and speculative assertions that other municipalities will qualify under the statute’s criteria in the future raise only “theoretical possibilities” that lend no meaningful support to the contention that chapter 390 is a religion-neutral law of general applicability (Kiryas Joel II, 90 N.Y.2d 57, 71, 73). Kiryas Joel III, 93 N.Y.2d, at 689, note 7 (emphasis in original)

The Court reasoned the “eligibility requirements under chapter 390 are still limited in such a way that permits the statute’s benefits to flow almost exclusively to the the religious sect it was plainly designed to aid. Thus like its predecessor, chapter 390 is not a neutral law of general application.” Id., at 690–91 (emphasis added). In response to the dissent’s observation that chapter 390 was a direct legislative response to the Court’s criticism of chapter 241, Kiryas Joel III, 93 N.Y.2d, at 701 (dissent), the majority denied that Kiryas Joel II ever suggested that “the mere deletion of [the] defective provisions would render the statute constitutional. To the contrary, the [Kiryas Joel II] Court observed that ‘the Legislature might have achieved a constitutionally acceptable result had it enacted a truly religion-neutral law of general applicability that the Village of Kiryas Joel, as one in a broad array of eligible municipalities, might have invoked. This was not done.” Id., at 691, note 9. (Citation omitted). The majority also denied the dissent’s claim that it had adopted a so-called “broad-spectrum” test—that is “that statutes that do not apply to a sufficiently

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broad spectrum of religious groups will automatically be considered unconstitutional,” stating that there was “nothing in our analysis that stands for that proposition.” Kiryas Joel III, 93 N.Y.2d, at 696, n. 11. Sharp differences between the majority and the dissent concerning Supreme Court cases decided during the Kiryas Joel trilogy were revealed and explored in Kiryas Joel III. For example, the majority relied on Agostini v. Felton, 521 U.S. 203 (1997), which overruled Aguilar v. Felton, 473 U.S. 402 (1985), and held that it was not unconstitutional under appropriate conditions for government funds to be used to pay public employees who performed services on parochial school premises. The majority used that case as a basis for concluding that there was a constitutional avenue for dealing with the problem of the Satmar handicapped children that could be tailored to their specific conditions. Kiryas Joel III, 93 N.Y.2d, at 696–97. The dissent argued that the majority’s reliance on Agostini was misplaced, and more basically, the dissent claimed that the majority had violated important tenets of judicial review. While conceding, in response to the dissent, that in the light of Agostini the “status” of the “endorsement test” employed in Kiryas Joel II was “uncertain,” the majority explicitly stated that it was not relying on the “endorsement” test, but rather on the “actual effect” aspect of Lemon. Kiryas Joel III, 93 N.Y.2d, at 694, n. 10. The dissent insisted that the majority, albeit “not expressly,” had relied on the “endorsement” test. Id., at 704, 707. The dissent also claimed that, unlike the majority, its approach gives due deference to the separation of powers and the presumption of constitutionality due a legislative enactment. Kiryas Joel III, 93 N.Y.2d, at 707–8. Moreover, the “precatory” expression of the majority that the parties settle their differences by relying on Agostini, while desirable, was an inappropriate basis on which to declare a statute unconstitutional. Id., at 707–8. The dissent argued that the success of “this minority community” in utilizing the democratic process should not be “turned topsy-turvey,” by setting aside the “lawmaking product of the [executive and legislative] Branches.” Id., at 709.

III. Religious Preference of Parents A. Education Rights of Noncustodial Parent In Auster v. Weberman, 302 N.Y. 883 (1951), appeal dismissed, 342 U.S. 884 (1951), two Orthodox Jewish parents had been divorced, and pursuant to their agreement the father was given custody of the son. Thereafter, the mother

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brought a habeas corpus proceeding to obtain custody of the son, alleging that he was being educated in a Yeshiva that did not teach the subjects required for all students by the State Education Law. The father claimed, and the mother denied, that the Orthodox Jewish religion prohibited the systematic teaching of secular subjects and that to require him to subject his son to such instruction violated the father’s rights under the United States Constitution. The lower courts granted custody to the mother and concluded that, under the facts of this case, it would not be unconstitutional to enforce the provisions of the State Education Law and, indeed, it was the duty of those courts to enforce that law. The courts also refused to resolve the theological dispute between the parents as involving questions inappropriate for judicial resolution. Application of Auster, 198 Misc. 1055 (Sup. Kings 1950), affirmed sub nom., Auster v. Weberman, 278 A.D. 656 (2d Dept. 1951). The Court of Appeals, without extensive discussion, agreed that the father’s constitutional rights were not implicated and affirmed the grant of custody to the mother.

B. Adoption—“Same Religious Persuasion,” “When Practicable” Article VI, § 32, of the New York State Constitution requires that a child “shall be . . . placed [for adoption], when practicable, in an institution . . . or in the custody of a person, of the same religious persuasion as the child.” Section 32, originally section 18 when adopted in the latter part of the nineteenth century, constitutionalized existing statutes that had imposed the same religious matching requirements as the constitutional provision, and those matching requirements were continued in statutes that followed. See, Family Court Act, § 116, subd. (g), Social Services Law, § 373, subd. 7, and Domestic Relations Law, § 113. The Court of Appeals, in Matter of Maxwell’s Adoption, 4 N.Y.2d 429 (1958), construed the term “when practicable” in the religious matching statute that was in effect at the time (Domestic Relations Law, § 111), and because the constitutional provision also contained that term, it is reasonable to conclude that its construction in the statute also applied to Article VI, § 32, of the State Constitution. In Maxwell, the Court laid down the standard for the application of the “when practicable” requirement of the statute. It is, of course, the settled policy of this state to insist upon adoption by persons of the same religious faith as that of the child. But this policy does not require a court to deny custody to adoptive parents where a child has been accepted by them following a declaration or representation by the mother,

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which may or may not be true, that she does not embrace any religious faith. . . . If the rule were otherwise, the foster parents would ever run the risk of not being able to adopt the child, and the child ever subjected to the danger of having attachments formed painfully severed, for how may it be known that the natural mother has not lied about her religious affiliation? Section 373 of the Social Welfare Law contains no absolute requirement that the faith of the foster parents be that of the child. The statute calls upon the court to give custody to persons of the same religious faith as that of the child “when practicable.” That term is of broad content, necessarily designed to accord the trial judge a discretion to approve as adoptive parents persons of a faith different from the child’s in exceptional situations. Had the legislature intended that in every case the child be adopted by persons of its own religious faith, it obviously would have made its design known by language far different from that which it used. The presence in the statute of the words “when practicable” was to enable the court to relax the requirement in the unusual case such as the one before us.15 The statute may not be employed as a means of wiping out a relationship between foster parents and child which originated in good faith and has continued for the entire four and a half years of the youngster’s life. To upset the determination of both the Trial Court and the Appellate Division, to tear the child from the love and care of these respondents, the only mother and father he has ever known, and send him instead to an institution until other parents are found, would be inordinately cruel and harsh. No law requires consequences so distressing. 4 N.Y.2d, at 434–35 (citations omitted; emphasis added)

In Matter of Starr v. Rocco, 25 N.Y.2d 1011 (1969), affirming 19 A.D.2d 662 (2d Dept. 1968), the Court affirmed the Appellate Division’s reversal of Special Term, which had found that the best interests of the children, Roman Catholics, would be served if custody were granted to the Starrs, who lived in Massachusetts and were members of the Episcopal Church, rather than to the De Roccos, who were Roman Catholics and resided in New York. The question of custody arose because the father of the children had killed the mother and then himself. The Starrs and the De Roccos were of equal degree of consanguinity with the children, and both applicants for custody were personally qualified to take care of the children. Special Term had found that the children’s best interests would be served by awarding custody to the Starrs, who had promised to raise the children in the Roman Catholic religion if the court so ordered, rather than having the children return to New York, the locale of the tragedy, where the other relatives

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lived. The Appellate Division, in reversing Special Term, reasoned that the court did not have the discretion to award custody to the Starrs, whose religion differed from that of the children, unless there was some compelling reason to do so, and in the absence of a compelling reason, the statutory and constitutional mandate for religious matching should be followed, “when practicable.” The Appellate Division found no such compelling reason had been shown and also found it was practicable to follow the religious matching requirement. The Court of Appeals affirmed without opinion. Judge Jasen dissented in an opinion, in which Chief Judge Fuld joined. In 1970, partially in response to Matter of Starr v. Rocco, supra, the statutes which required religious matching of child and adoptive and foster care parents “when practicable” were broadened (Domestic Relations Law, § 113) to provide that such religious “matching” “consistent with the best interests of the child” be applied (L. 1970, ch. 494). The “when practicable” provision of the State Constitution and implementing statutes were addressed in Matter of Dickens v. Ernesto, 30 N.Y.2d 61 (1972), appeal dismissed, 407 U.S. 917 (1972). The Court unanimously affirmed the Appellate Division’s decision and upheld the constitutionality of the State constitutional provision under the Federal Constitution. The Court also affirmed the order that the statutes and the applications be processed by the Department of Social Services. Mr. and Mrs. Dickens, the prospective adoptive parents, were denied permission to file an application as adoptive parents with the Erie County Department of Social Services, ”solely on the ground that they did not have a religious affiliation.” 30 N.Y.2d, at 64. They brought an Article 78 proceeding contending that the State constitutional provisions and the State statutes violated the Establishment and Free Exercise clauses of the First Amendment and denied them equal protection of the laws under the Fourteenth Amendment. The Court of Appeals, in rejecting the constitutional challenges, read the implementing statutes as making religion a nonmandatory factor among many factors in determining what would constitute the best interests of the child in a placement decision. Thus, the provisions implement a secular purpose, that is, “the best interests of the child.” As the Court construed those provisions, they purported to give effect to the wishes of the natural parent who could express indifference or no preferences as to religion. Moreover, contrary to the Dickenses’ claim that their free exercise rights were violated because they are required to profess a religion in order to adopt a child, the Court reasoned that the applicants need not profess a religion in order to be able to adopt a child, for there are children whose religious affiliations are unknown who are available for adoption in Erie and other counties. The Court also rejected their equal pro-

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tection claim, reasoning that the problem faced by the applicants is not with a classification that recognizes the right of the natural parent to express a religious preference, but rather lies in the shortage of parents who do not have a religious preference or of children without a religious affiliation. Id., at 68.

IV. Judicial Involvement in Disputes Between Private Parties—the “Neutral Principles of Law”Approach In addition to government action through legislative and administrative bodies, judicial decision-making in private disputes has also presented constitutional questions with respect to religion-related matters, most commonly in matrimonial disputes and internal disputes of religious congregations. The constitutional problem of judicial decision-making in cases with a religious content is the risk that the establishment clause or free exercise clause or both could be violated when the Court, as an agency of government, makes a decision for either side. In response to this risk, the United States Supreme Court and the New York Court of Appeals developed approaches that would permit courts to decide civil lawsuits without involving the courts in the resolution of religious doctrinal disputes.

A. The Ketubah Avitzur v. Avitzur, 58 N.Y.2d 108 (1983), cert. denied, 464 U.S. 817 (1983), involved the “enforceability of the terms of a document, known as a Ketubah, which was entered into as part of the [Jewish] religious marriage ceremony.” 58 N.Y.2d at 111. The Avitzurs, the parties to the lawsuit, had entered into the Ketubah when they were married in a traditional Jewish ceremony. They later obtained a civil divorce. However, under Jewish law, the wife is not considered divorced and cannot remarry until a Rabbinical court (a “Beth Din”) grants a divorce known as a “Get.” The Ketubah contained several provisions, including an agreement that the husband would submit to the jurisdiction of a specified Beth Din. However, after the civil divorce, despite the Ketubah provision, the husband refused to appear before the Beth Din. Mrs. Avitzur sought a declaration that the Ketubah is a marriage contract and that the husband had breached that contract. She also sought an order compelling him to perform the terms of the Ketubah by appearing before the Beth Din. In a 4–3 decision, the Court of Appeals rejected the husband’s contention that enforcement of the provision of the Ketubah would involve the Court in the enforcement “of a religious practice arising solely out of religious law.” 58

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N.Y.2d at 113. The Court recognized that several U.S. Supreme Court cases had declared that “judicial involvement in matters touching upon religious concerns has been constitutionally limited in analogous situations and courts should not resolve such controversies in a manner requiring consideration of religious doctrine.” Id., at 114. However, in Jones v. Wolf, 443 U.S. 595 (1979), “the Supreme Court, in holding that a State may adopt any approach to resolving religious disputes which does not entail consideration of doctrinal matters, approved the use of the neutral principles of law approach . . . [which] contemplates the application of objective, well-established principles of secular law to the dispute thus permitting judicial involvement to the extent that it can be accomplished in purely secular terms.” 58 N.Y.2d, at 114–15 (citations omitted; emphasis added). Both the Avitzur majority and the minority subscribed to the “neutral principles of law approach,” but they disagreed with respect to its application in the case at bar. It should be noted that the Appellate Division had held that the agreement could not be constitutionally enforced by the courts, while Special Term had found it was enforceable. Id., at 113. Judge Wachtler, writing for the majority, concluded that the case could be decided “solely upon the application of neutral principles of contract law, without reference to any religious principle.” The Court found that the “religious origin of the agreement” or the fact that it was part of religious ceremony or that “the obligations undertaken by the parties to the Ketubah are grounded in religious belief” were not constitutional barriers to enforcing the husband’s promise to appear. 58 N.Y.2d, at 115. Thus, even if all of the Ketubah’s provisions could not be judicially enforced, the agreement to submit to a Beth Din is a secular promise, and, like any other enforceable antenuptial agreement that provides for the resolution of postmarital problems by submission to a nonjudicial tribunal, the Ketubah’s submission provision can be enforced without reference to religious doctrine or by interfering with religious authority. By like token, the religious tribunal could not interfere with the secular divorce that already had been granted. “In short, . . . [to] the extent that an enforceable promise can be found by the application of neutral principles of contract law, plaintiff will have demonstrated entitlement to the relief sought.” 58 N.Y.2d, at 115. Judge Jones’s dissenting opinion argued that it would be impossible to isolate a secular promise in the Ketubah. He pointed out that the next step would be a trial in which the religious origin of the Ketubah, its adoption as part of the religious marriage ceremony, and (on the basis of the affidavits already submitted), the evidence that the wife could be expected to present at trial necessarily will involve the civil courts in religious doctrine. Moreover, Judge Jones pointed out

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that the Ketubah itself did not contemplate secular court involvement, although it contemplated that the Beth Din would have jurisdiction. As an overarching point, the dissent maintained that New York State’s interest in the parties’ marital status had ended with the final judgment of divorce rendered by the State court and the State court had no business exercising jurisdiction over a lawsuit whose object was a religious divorce.

B. Internal Disputes of Religious Institutions 1. THE COLD WAR AND THE RUSSIAN ORTHODOX CHURCH LITIGATION

After the 1917 Russian Revolution, control of the Russian Orthodox Church in the United States implicated these religion-related constitutional issues that ultimately involved the New York State Legislature, the New York Court of Appeals, and the United States Supreme Court. Saint Nicholas Cathedral of Russian Orthodox Church in North America v. Kedroff, 302 N.Y. 1 (1950), reversed, Kedroff v. St. Nicholas Cathedral of Russian Orthodox Church in North America v. Kedroff, 344 U.S. 94 (1952), sought to resolve a conflict as to who controlled the use of the properties of the Russian Orthodox Church, among which was a cathedral located in New York City. Under dispute was whether control would be lodged in the church organized in North America or subject to the control of the church hierarchy in Moscow. The disputes had begun almost immediately in the time of the Kerensky revolution and intensified after the 1917 Bolshevik Revolution. There had been several lawsuits by the time Kedroff came to the Court of Appeals, and the twists and turns of the history of the Church and the lawsuits in the context of the Russian Revolution and the responses in New York and the United States are detailed in Kedroff. 302 N.Y., at 4–31. In brief, Kedroff involved a dispute between church authorities in North America and the authorities in Moscow, each of whom had appointed an archbishop who would have controlling authority over church properties in New York. The Court of Appeals addressed the contention that the Moscowdominated church was not the proper authority to control the church properties under common-law trust theory—i.e., whether it could be relied on to hold and to administer the properties in the interests of the church and to carry out its religious purposes. The Court, while recognizing that it could have been fruitful for the lower courts to have made such an inquiry, held that regardless of the outcome of the application of the trust theory, a statute governed the case. In 1945 and 1948 the Legislature had enacted amendments to the State’s Religious Corporations Law while the case was still in the lower courts. Those

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amendments, according to the Court, explicitly provided that the controlling church was the church in North America, and they were determinative of the dispute. Kedroff. 302 N.Y., at 21, 24. In deferring to legislative competence to make the decision, the Court relied on the legislative role to make findings of fact that would support the legislative policy reflected in the statute. Judge Conway, writing for the 4–3 majority, first referred to and quoted from an opinion by Supreme Court Justice Jackson: The judicial technique of ascertaining the legislative finding of fact supporting a particular enactment is shown in Justice Jackson’s opinion in the [American Communications Ass’n v. Douds, 339 U.S 382, at 424-433]. He [Justice Jackson] wrote: “From information before its several Committees and from facts of general knowledge, Congress could rationally conclude that, behind its political party facade, the Communist Party is a conspiratorial and revolutionary junta, organized to reach ends and to use methods which are incompatible with our constitutional system. A rough and compressed grouping of this data would permit Congress to draw these important conclusions as to its distinguishing characteristics . . . “It rejects the entire religious and cultural heritage of Western civilization, as well as the American economic and political systems. This Communist movement is a belated counter-revolution to the American Revolution, designed to undo the Declaration of Independence, the Constitution, and our Bill of Rights.” . . . [339 U.S. at 425]. 302 N.Y., at 32

Judge Conway continued: The Legislature of the State of New York, like the Congress, must be deemed to have investigated the whole problem carefully before it acted. The Legislature knew that the central authorities of the Russian Orthodox Church in Russia had been suppressed after the 1917 revolution, and that the patriarchate was later resurrected by the Russian Government. The Legislature, like Congress, knew the character and method of operation of international communism and the Soviet attitude toward things religious. The Legislature was aware of the contemporary views of qualified observers who have visited Russia and who have had an opportunity to observe the present status of the patriarchate in the Soviet system.16 The Legislature realized that the North American church, in order to be free of Soviet interference in its affairs, had declared its temporary adminis-

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trative autonomy in 1924, pursuant to the ukase of 1920, while retaining full Spiritual communion with the patriarchate, and that there was a real danger that those properties and temporalities long enjoyed and used by the Russian Orthodox Church worshippers in this State would be taken from them by the representatives of the patriarchate. On the basis of these facts, and the facts stated [earlier in the opinion, 302 N.Y., at 4–31] and no doubt other facts we know not of, our Legislature concluded that the Moscow Patriarchate was no longer capable of functioning as a true religious body, but had become a tool of the Soviet Government primarily designed to implement its foreign policy. Whether we, as judges, would have reached the same conclusion is immaterial. It is sufficient that the Legislature reached it, after full consideration of all the facts. It is clear, therefore, that the plaintiff corporation and the autonomous metropolitan district which it represents, must prevail in this action in accordance with the legislative finding and mandate and be reinvested with the possession and administration of the temporalities of St. Nicholas Cathedral. 302 N.Y., at 32–33

Judge Desmond, dissenting, disagreed with the majority’s reading of the statute, but argued that even if the majority was correct, the result was unconstitutional. He wrote: None of us, of course, deny that the present Russian Government is frankly and grossly anti-religious and irreligious. But judicial recognition of that wellknown fact is of no help in deciding this lawsuit. We are dissenting here because we strongly feel that this decision is an unlawful intrusion into the internal affairs of a religious body, contrary to first principles of American government, violative of the First Amendment’s guaranty of freedom of religions from such governmental interference, and in conflict with the controlling decisional law. . . . For the decision about to be made is just this: that the judicial and legislative branches of the Government of this State have the power (and that the New York State Legislature has exercised the power) to oust from the archdiocesan cathedral of the Russian Orthodox Church in New York City, a prelate (defendant Benjamin) who has been appointed archbishop of that archdiocese by the Patriarch of Moscow, supreme head of that church. No other decision reaching such a result can be found in the books. In aid of clarity we set down these indisputable and uncontested propositions: ....

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Under the law of New York, see Religious Corporations Law, s 5, religious denominations, such as the world-wide Russian Orthodox Church, have denominational control over their constituent churches, parishes or branches, and the constituents cannot escape such control by secession. The appointment of Archbishop Benjamin, as an official act of the highest Russian Orthodox Church authority, was a decision on a denominational matter of internal church government, and as such is final, and absolutely binding on the civil courts of this State. The sum of those plain propositions is this: that Archbishop Benjamin’s possession of the cathedral is not subject to control by any civil authority or by any judgment of a civil court, and that no civil court may decree to the independent or nonconformist group (which controls plaintiff corporation), possession of that cathedral, hostile to the authority and action of the mother church. 302 N.Y., at 35–37 (citations omitted)

In reversing the Court of Appeals, the Supreme Court determined it was bound by the State Court’s construction of the Religious Corporations Law. The Supreme Court held that legislative transfer of power from the central hierarchy of the church to the plaintiff violated the principle of separation of church and state and was unconstitutional, as a prohibition of the free exercise of religion. It should be noted that the opinion does not make clear whose “free exercise” had been violated. The Supreme Court exercised jurisdiction in Kedroff solely to consider the constitutionality of the statute upon which the Court of Appeals decision was based. The Court of Appeals had agreed that the Court was bound by the authoritative decision of the legitimate power in a hierarchal church, but, because the evidentiary basis had not been sufficiently developed, it had not decided whether the central organization of the Russian Orthodox Church existed as a “true organization . . . capable of functioning as the head of a free international religious body.” One year after the Supreme Court decision, the Court of Appeals, in a 5–2 decision, refused to enter judgment for the appointees of the Moscow Patriarchate, and instead remanded the case for a new trial to determine on common law grounds, in the exercise of equity jurisdiction, whether the trustees of religious property are properly administering the religious trust. Saint Nicholas Cathedral of Russian Orthodox Church in North America v. Kedroff, 306 N.Y. 38 (1953). On remand, in the ejectment action brought by the Church in North America, Trial Term found for the Patriarchate and dismissed the complaint, 9 Misc.2d 1069 (1957), and the Appellate Division unanimously affirmed, without opinion. 6 A.D.2d 866 (1st Dept. 1958). The Court of Appeals

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reversed and said that “the ultimate and determinative issue to be tried [on remand] was as to the domination of the Patriarch by the Communist government; as to whether the appointees of the Patriarchate were ‘mere puppets’ of a monolithic and atheistic secular power; and as to whether the Patriarchate, though nominally re-established, cannot function except as an arm or agent of an antireligious civil government.” Saint Nicholas Cathedral of Russian Orthodox Church in North America v. Kreshik, 7 N.Y.2d 191, 203–4 (1959) (citations omitted). Contrary to the lower courts’ approach to the issues, the Court of Appeals held that the question was not whether there was a functioning Moscow church, but whether the Moscow church had been subverted “into an instrumentality of the Kremlin,” with the resultant subversion of the trust for religious purposes. The Court’s 4–3 majority concluded that the evidence on this issue clearly required the conclusion that the Patriarchate had been so subverted. Saint Nicholas Cathedral of Russian Orthodox Church in North America v. Kreshik, 7 N.Y.2d 191 (1959), reversed, sub nom., Kreshik v. Saint Nicholas Cathedral, 363 U.S. 190 (1960). In its per curiam opinion reversing the Court of Appeals, the Supreme Court’s entire reason for reversal was as follows: As the opinions of the Court of Appeals make evident . . . , the decision now under review rests on the same premises which were found to have underlain the statute struck down in Kedroff. But it is established doctrine that ‘[i]t is not of moment that the State has here acted solely through its judicial branch, for whether legislative or judicial, it is still the application of state power which we are asked to scrutinize. Accordingly, our ruling in Kedroff is controlling here, and requires dismissal of the complaint [and reversal of the Court of Appeals]. 363 U.S., at 191 (citations omitted) 2. THE COURT’S ACCEPTANCE OF THE “NEUTRAL PRINCIPLES” RULE INSTEAD OF THE “COMPLETE DEFERENCE RULE” IN INTRA-CHURCH PROPERTY DISPUTES

In First Presbyterian Church of Schenectady v. United Presbyterian Church in the United States, 62 N.Y.2d 110 (1984), First Presbyterian, a local church, sought a declaration “of their independent status and a permanent injunction preventing defendants [United Presbyterian] from interfering with [First Presbyterian’s] use and enjoyment of the local church property.” 62 N.Y.2d, at 113. The Court of Appeals ruled that the State courts could not decide whether or not First Presbyterian’s withdrawal had been effective, because this would require the Court

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to construe church doctrine, and the courts could not decide ecclesiastical matters, citing the First Amendment and Kedroff, supra, and other cases. United Presbyterian contended that because a church commission had determined that the hierarchal church, that is United Presbyterian, was entitled to the use and control of the local church’s property, the Court was bound to give complete deference to the property decision. The Court of Appeals, in lieu of following a rule that would have required it to give “complete deference” to the hierarchal church’s decision, adopted and followed the rule that it was not bound by the church’s decision, “if it proves possible to decide the controversy through application of ‘neutral principles of law.’” 62 N.Y.2d, at 120. The Supreme Court, in Jones v. Wolf, 443 U.S. 595 (1979), said that a state had the option, but was not compelled, to adopt the “neutral principles of law” approach. Although the Court had applied the rule in Avitzur and other Ketubah cases, supra, in First Presbyterian it stated that it was explicitly adopting the rule as useful in resolving church property disputes, and upon examining the deeds and other documents that could affect title, including church charters, unanimously found that title to the property remained with the local church. The “neutral principles” approach was employed in two subsequent Court of Appeals cases, Morris v. Scribner, 69 N.Y.2d 418 (1987), and Park Slope Jewish Center v. Congregation B’nai Jacob, 90 N.Y.2d 517 (1997). Both decisions were unanimous. In Morris v. Scribner, plaintiffs sought to enjoin church trustees from pursuing with church funds the profit-seeking activity the trustees claimed would benefit the church. The Court held that it was not constitutionally precluded from deciding the case, because it required only that the Court construe the provisions of a statute, Religious Corporations Law § 5, which gave the trustees the duty and obligation to use church property “for the support and maintenance of the corporation.” The Court, as it would with directors of a business corporation, said that under the statute the wisdom of the trustees’ pursuit of profitseeking activities was for the church members, not for the Court, to determine. In Park Slope Jewish Center, members of Park Slope Jewish Center quarreled over a religious tenet, and one group formed a new congregation, Congregation B’nai Jacob. After a lawsuit was commenced concerning control of the property, a settlement was reached. The agreement provided for division of the use of the property by the two congregations: Park Slope would retain title to the property, and B’nai Jacob would pay Park Slope for the use of the property. Provision was made for division of the proceeds of the property upon sale or other disposition. It also was agreed that Park Slope would permit members of B’nai Jacob to apply

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for membership in Park Slope, but that Park Slope could determine its own criteria for membership. B’nai Jacob would receive credit against amounts due for use and occupancy for the dues paid to Park Slope by B’nai Jacob members. Some B’nai Jacob members applied for membership in Park Slope, but decided they could not join because Park Slope decided to permit women to participate in the services, a condition the B’nai Jacob members found offensive to their religious beliefs. Payments for use of the property ceased, and Park Slope sued B’nai Jacob for payment based on the agreement and to eject B’nai Jacob. The Appellate Division affirmed the dismissal of Park Slope’s complaint, holding that the court could not decide the case without resolving the underlying religious disputes in violation of the Establishment Clause. 230 A.D.2d 779 (2d Dept. 1996). The Court of Appeals reversed. It reasoned that because the agreement provided for the disposition of the property and also clearly stated that Park Slope could determine its own membership criteria, resolution of the action did not require the Court to be involved in determinations of religious doctrine and the case could be decided by reference to the terms of the agreement employing neutral principles of law.

C. Breach of Confidential Communication Between Clergy and Communicant New York statutes contain rules of evidence17 restricting the disclosure of certain confidential communications involving attorney and client, physician and patient, and other professional relationships, as well as communications between spouses and between clergy and communicant. Breach of the obligation of confidentiality on the part of some professionals has been recognized by some lower New York courts as grounds for common law causes of action for breach of contract or breach of fiduciary duty.18 In Lightman v. Flaum, 97 N.Y. 2d 128 (2001), the Court of Appeals addressed the question of whether “CPLR 4505 [which contains the evidence rule with respect to clergy and communicant confidential communications] imposes a fiduciary duty of confidentiality upon members of the clergy that subjects them to civil liability for the disclosure of confidential communications.” Id., at 131. The Court held that it did not, and interpreted CPLR 4505 in the light of “constitutional implications” of a contrary conclusion. Id., at 137. In Lightman, the defendants were two Orthodox rabbis who had disclosed information given to them by the plaintiff, Mrs. Lightman, concerning her marital situation. The disclosures were contained in their affirmations submitted by Mr. Lightman during the course of a divorce proceeding in opposition to Mrs.

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Lightman’s attempt to obtain temporary custody of the children. The husband submitted the affirmations in order to prove that the wife had stopped following and did not follow Jewish religious law, and, consequently, he maintained that she should be denied custody because she would undermine the upbringing of the children as Orthodox Jews. Mrs. Lightman sued the rabbis, alleging that they had breached their fiduciary duty by disclosing her communications to them, a duty based on CPLR 4505 (the clergy-penitent privilege). The rabbis claimed that 4505 was only an evidentiary rule and did not give rise to a cause of action for breach of fiduciary duty, and in any event, the First Amendment compelled dismissal “because the disclosures were required under Jewish law.” The parties disputed the proper construction of CPLR 4505 and whether or not the disclosures were required under Jewish law. The Court agreed with the rabbis on the construction of CPLR 4505, expressing deep concern about permitting courts to determine what constitutes the correct version of religious doctrine, citing First Presbyterian Church of Schenectady, supra, Park Slope Jewish Center, supra, and Avitzur, supra. The Court stated: [T]he prospect of conducting a trial to determine whether a cleric’s disclosure is in accord with religious tenets has troubling constitutional implications. To permit a party to introduce evidence or offer experts to dispute an interpretation or application of religious requirements would place fact-finders in the inappropriate role of deciding whether religious law has been violated. The United States Constitution protects the right of individuals to “believe what they cannot prove. They may not be put to the proof of their religious doctrines or beliefs . . . . [I]f those doctrines are subject to trial before a jury charged with finding their truth or falsity, then the same can be done with the religious beliefs of any sect. When the triers of fact undertake that task, they enter a forbidden domain” (United States v. Ballard, 322 U.S. 78, 86–87). As we explained in a different context, “civil courts are forbidden from interfering in or determining religious disputes. Such rulings violate the First Amendment because they simultaneously establish one religious belief as correct . . . while interfering with the free exercise of the opposing faction’s beliefs.” . . . Guided by these well-settled principles and in the absence of a statute, regulation or other source delineating the scope and nature of the alleged fiduciary duty, we view the CPLR 4505 privilege in the manner intended by the Legislature—as a rule of evidence and not as the basis of a private cause of action. 97 N.Y.2d, at 137–38 (citations omitted)

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V. Requirement of a Permit for Religious Worship on a Public Street Chief Judge Pound, speaking for a unanimous Court in People v. Smith, 263 N.Y. 255 (1934), appeal dismissed, 292 U.S. 606 (1934), sustained the constitutionality of a New York City ordinance that made it “unlawful for any person to be concerned or instrumental in collecting or promoting any assemblage of persons for public worship or exhortation, or to ridicule or denounce any form of religious belief, service or reverence, or to preach or to expound atheism or agnosticism, or under any pretense therefor, in any street.” The ordinance excepted clergymen or a “duly authorized representative” of atheism from the prohibition provided they had received a permit from the police commissioner to hold the public meeting in the public place or street designated in the permit.19 In Smith, the defendant, an atheist, argued that the statute unconstitutionally deprived him of the equal protection of the laws, because it required a permit for those exhorting or preaching religion, but not for speakers on other subjects. The Court concluded that the “ordinance is not aimed against free speech. It is directed towards the manner in which the street may be used,” and because the “legislative power might forbid public meetings and speaking in the streets entirely,” it “may limit the use of the streets to certain purposes.”20 263 N.Y. 255, at 257. The Court upheld the legislative classification, stating: The passion, rancor, and malice sometimes aroused by sectarian religious controversies and attacks on religion seem to justify especial supervision over those who would conduct such meetings on the public streets. That the ordinance does not cover all street meetings is no objection to a reasonable classification. Practical exigencies and common experience may permit the recognition of degrees of harm and the limitation of regulation to classes where the need is deemed to be clearest. 263 N.Y., at 257

In 1951, the United States Supreme Court found the ordinance to be unconstitutional because it did not provide administrative authority with sufficient standards to determine whether or not to issue a permit. Kunz v. People of State of New York, 340 U.S. 290 (1951), reversing People v. Kunz, 300 N.Y. 273 (1949). Kunz involved defendant’s speaking without a permit after a permit previously issued had been revoked by the Police Commissioner. The New York Court of Appeals had sustained the constitutionality of the licensing procedure as it had been administratively construed by the New York City Police Department.

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The Court of Appeals majority recognized that the provision making it unlawful for anyone to “ridicule or denounce” religion might be unconstitutional, but reasoned that Kunz had no standing to raise the question, because he had been issued a license without regard to the subject of his speech. The majority, citing Chaplinsky v. State of New Hampshire, 315 U.S. 568 (1941), found the license revocation to be justified, because the speech constituted “insulting” or “fighting words” under circumstances that could be prohibited, i.e., they had a tendency to incite an immediate breach of the peace. In a dissenting opinion, Judge Conway argued that while the ordinance was not unconstitutional on its face, it had been unconstitutionally applied to the defendant because the license was revoked by the commissioner solely because defendant had ridiculed or denounced religion. As a practical matter he could not obtain a permit, and this amounted to an unconstitutional prior restraint on speech under the Federal and State constitutions. Judge Conway concluded that the statute, if constitutional, could be enforced only by a criminal prosecution or by a proper charge of disorderly conduct, but not by the Police Commissioner’s administrative determination of guilt. Judge Bromley, with the concurrence of Judge Fuld, concluded that the statute was unconstitutional on its face, because it gave the Police Commissioner unbridled authority to deny or issue a permit. The fact that the Commissioner had always issued licenses was irrelevant insofar as the constitutionality of the statute was concerned, because there were no standards for the issuance or denial of a permit in the statute. Judge Bromley cited several United States Supreme Court decisions in support of his conclusion. The Court of Appeals previously had upheld statutes requiring a permit to speak, People v. Nahman, 298 N.Y. 95 (1948), and People v. Hass, 299 N.Y. 190 (1949), but Judge Bromley rejected the claim that the ordinance in Kunz was analogous to the ordinances in those cases.

VI. Regulation and Taxation of Religious Organizations A. Restrictions on Real Property 1. ZONING: PROPERTY VALUES, TRAFFIC HAZARDS, AND SIMILAR CONCERNS

In 1956 and 1968, there was virtual unanimity among members of the Court when it decided three major cases concerning denials of applications for religious use permits. Diocese of Rochester v. Planning Bd. of Town of Brighton, 1 N.Y.2d 508 (1956) (6–1 decision, Judge Van Voorhis, dissenting); Community Synagogue v. Bates, 1 N.Y.2d 445 (1956) (6–1 decision, Judge Van Voorhis, dis-

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senting); Westchester Reform Temple v. Brown, 22 N.Y.2d 488 (1968) (unanimous). By 1975, the unanimity had disintegrated, and the members of the Court espoused diametrically opposing views of the applicable law. Reconstructionist Synagogue of North Shore, Inc. v. Incorporated Village of Roslyn Harbor, 38 N.Y.2d 283 (1975), certiorari denied, 426 U.S. 950 (1976). There was no dispute about the general proposition that government, in the exercise of the police power, could restrict an owner’s use of property through zoning ordinances, provided the restrictions bore “a substantial relation to the public health, safety, morals, or general welfare.” The disagreement centered around the correctness, the continuing vitality, and the application of a corollary concerning religious uses that the Court had announced in Rochester when it declared that inasmuch as “churches and schools occupy a different status from mere commercial enterprises . . . , when the church enters the picture, different considerations apply.” Diocese of Rochester v. Planning Bd. of Town of Brighton, 1 N.Y.2d 508, 523 (1956) (emphasis added). On July 11, 1956, the Court of Appeals reviewed two denials of permits to use real property in residential areas for religious purposes. As has been previously noted, each was a 6–1 decision.21 In Rochester, an application for a permit to build a Catholic church and school had been denied; in Bates, there had been a denial of an application for a permit to convert a large mansion for use as a synagogue. The Court posited the generally accepted propositions that when reviewing decisions of zoning authorities a court should reverse a decision only if it is “arbitrary and unreasonable and constitutes an abuse of discretion”; it also recognized that an arbitrary and unreasonable application of the ordinance to a “particular piece of property” would constitute an unconstitutional invasion of property rights even though the ordinance is “constitutional on its face.” To its observation, referred to above, that special considerations apply when a church or synagogue is involved, the court also accepted the principles that a zoning ordinance is unconstitutional if it attempts to wholly exclude a church or synagogue from a residential district ordinance or “if it attempts to exclude private or parochial schools from any residential area where public schools are permitted.” Diocese of Rochester v. Planning Bd. of Town of Brighton, 1 N.Y.2d, at 520–22, passim (citing authorities). In Rochester, the Diocese and the others who joined in the application claimed that the zoning ordinance itself was unconstitutional and, in any event, that in the application of the ordinance they had been denied equal protection of the laws and deprived of property without due process of law as well as their right to free exercise of religion. The Court of Appeals refused to consider the

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constitutionality of the ordinance because its reversal of the decision to deny the permits on other grounds made it unnecessary to do so. Special Term had rejected the other constitutional claims on the ground that no “intentional or purposeful discrimination” had been alleged. Although the Court agreed that the equal protection claim required an allegation of discrimination, it held that the due process and religious freedom claims required no such allegation. 1 N.Y.2d, at 521. The Court held that the denial of the permit was arbitrary and unreasonable because the proposed structures would not interfere with the public health, morals, safety, and welfare of the community and, moreover, the zoning authority had relied on impermissible factors in denying the permit. One such factor was that the area already was built-up with residences and the addition of the church would change the character of the use and enjoyment of the area, and, besides, there were more sparsely settled areas that could better accommodate the new church building. In response, the Court declared, “We know of no rule of law that requires that churches may only be established in sparsely settled areas. On the contrary as was said in [the Illinois case of ] O’Brien v. City of Chicago . . . ‘wherever the souls of men are found, there the house of God belongs.’” To sustain the denial based on this finding, the Court reasoned, would mean that, through its use of the zoning powers, the Government could by indirection create a residential area free of churches—something that Government could not do directly. 1 N.Y.2d at 523–24. Community Synagogue involved a similar contention and judicial disposition; the Court held that the zoning authority could not demand that the applicant for a religious use permit demonstrate that other more suitable locations were not available. In Rochester, the Court also said that a decrease in property values consequent upon the building of the church was an unacceptable and an unauthorized reason for denying the permit. “[I]n view of the high purposes, and the moral value, of these institutions, mere pecuniary loss to a few person should not bar their erection and use.” 1 N.Y.2d, at 524 (emphasis added). Similarly, in Community Synagogue, the Court rejected as a basis for denying the permit a finding that to grant the permit would not “conserve values.” Id., at 454–55. Loss of tax revenues also would not justify denying the permit, because that would be contrary to the policy of the State Constitution (Article 16, § 1) and state statutes, which declared that religious and educational institutions should be exempt from taxation. The Court also rejected an alleged creation of traffic hazards as a ground for denying a permit because it was a ground not authorized by the statute. In its discussion of the issue, the Court also noted, with

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apparent approval, that other jurisdictions had held the denial of a permit because of possible traffic hazards to be arbitrary and unreasonable. 1 N.Y.2d at 524–25. In Community Synagogue, the board claimed that it had the power to deny an application for the location of a church at a “precise spot.” The Court concluded that the board had no such power, for if the government could reject a permit because it was not the right spot, then, as a practical matter, the government could determine what is the right spot; to cede government this power would run counter to the freedom of religion precepts expressed in Article 1, section 3, of the New York State Constitution. 1 N.Y.2d, at 458. In both Rochester and Community Synagogue, the Court declared that the constitutional protections of freedom of religion applicable to religious use zoning decisions were not confined to a building which was used only as a house of prayer. Thus, in Rochester the Court recognized that a school, a sisters’ home, and a priests’ mansion are all “integral parts of the Roman Catholic Church,” and parking lots and playgrounds are “clearly in furtherance of the public morals and general welfare.” Consequently, those accessory uses should be treated as the church building itself in assessing a religious use permit application. 1 N.Y.2d, at 526–27. Similarly, in Community Synagogue the Court rejected the zoning board’s refusal to grant a use permit because it claimed that the building and premises in question were to be used for other than religious purposes where the application stated that in addition to the use of the premises as a house of prayer and a school, it was to be used for social activities, such as a men’s group, a sisterhood, youth groups, and activities of community service organizations, because “the synagogue is a place of fellowship and friendship among its adherents.” The Court said that a “a church is more than merely an edifice affording people the opportunity to worship God. . . . Strictly religious uses and activities are more than prayer and sacrifice. . . . Churches have always developed social groups . . . where the fellowship of the congregation . . . is strengthened . . . [for which there is] evidence . . . in the Old Testament. . . . It is a religious activity for the church to provide a place for these social groups to meet, since the church by doing so is developing into a stronger and closer knit group.” 1 N.Y.2d, at 453. In Westchester Reform Temple v. Brown, 22 N.Y.2d 488 (1968), the Court unanimously reaffirmed the principles it had declared in Rochester and in Community Synagogue, and as it did in the two earlier cases, it found that there had been an unconstitutional application of a zoning ordinance.22 The Court declared that the same principles apply to expanding an existing structure as are applicable to a use permit for a new structure and emphasized that to “sustain

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the Planning Commission’s decision [denying an application to expand a Temple facility], it must be convincingly shown that the Temple’s proposed expansion will have a direct and immediate adverse effect upon the health, safety or welfare of the community.” 1 N.Y.2d, at 493 (emphasis added). As it did in Community Synagogue and Rochester, the Court in Westchester found that the “record [was] devoid of anything upon which to base a conclusion that the limitations imposed by the commission are related to the public health, safety or welfare.” 22 N.Y. 2d, at 493. In each of two cases decided by Westchester, the Court reiterated and applied the principles previously announced in Rochester and Community Synagogue. In one of the two cases, the Court rejected as a basis for denying the permit that the proposed structure would adversely affect values, use and enjoyment, and the appearance of the neighborhood. In the second case, to meet objections concerning the effect of the structure on property values, appearance, use and enjoyment, and traffic conditions, the Commission had imposed as a condition of approval that the Temple make certain changes that would have cost over $100,000. The Court found the conditions to be unacceptable because, as it had ruled in Rochester, conditions of approval could not indirectly exclude a religious use when it could not be directly excluded. Westchester sought to clarify the rules applicable to traffic hazards and other concerns: We have not said that considerations of the surrounding area and potential traffic hazards are unrelated to the public health, safety or welfare when religious structures are involved. We have simply said that they are out-weighed by the constitutional prohibition against the abridgement of the free exercise of religion and by the public benefit and welfare which is itself an attribute of religious worship in a community. If the community can, consistent with this policy, both comply with the constitutional requirement and, at the same time, avoid or minimize, insofar as practicable, traffic hazards or other potential detriments bearing a substantial relation to the health, safety and welfare of the community, there is no barrier to its doing so. Nevertheless, we have already decided in the Rochester case that, where an irreconcilable conflict exists between the right to erect a religious structure and the potential hazards of traffic or diminution in value, the latter must yield to the former. 22 N.Y.2d, at 496–97

The practical unanimity on the Court concerning religious use zoning issues ended with the three opinions in the 5–2 decision of Jewish Reconstructionist

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Synagogue of North Shore, Inc. v. Incorporated Village of Roslyn Harbor, 38 N.Y.2d 283 (1975), certiorari denied, 426 U.S. 950 (1976). In Jewish Reconstructionist Synagogue, there was intense disagreement on the Court over what legal principles should govern applications for religious use permits. In 1970, plaintiff Jewish Reconstructionist Synagogue, a religious corporation, had purchased two of six lots located on a previously divided estate with the intention of using the former estate house located on the lots it had purchased for a synagogue and accessory purposes, such as a school and various adult and youth programs, and a former guest house for its rabbi’s residence. The synagogue applied to the Village of Roslyn Harbor zoning board for a variance and a special permit to use the property for religious purposes. The variance was sought because the zoning ordinances required that all buildings for religious uses in residential areas must have a 100-foot setback. However, the ordinance did not give the board the power to grant a variance from the setback requirements. The owners of the four other lots in the subdivision objected. The board denied the application for a variance and a special permit and stated that even if the board had the power or was compelled to grant the variance, the special permit would be denied “because of the synagogue’s potential effect on traffic and because there was insufficient water pressure in nearby fire hydrants.” 38 N.Y.2d, at 286. The Court previously had held that it did not have the power to order the board to grant the variance because the board had no power to grant the variance under the ordinance. 34 N.Y.2d 827 (1974). The Court recommended that the question be raised in a declaratory judgment action, which was instituted, and the lower courts held that the ordinance was unconstitutional. On appeal, Judge Fuchsberg, in an opinion concurred in by Judges Gabrielli and Cooke, voted to affirm the holding of unconstitutionality. None of the three judges had been on the Court in 1968 when it decided Westchester. The opinion, based on its reaffirmation of and adherence to the principles stated in Rochester, Community Synagogue, and Westchester, found the ordinance to be unconstitutional because the zoning ordinance contained “no substantial requirement that efforts to accommodate or mitigate the effects on religious use” of the invariable setback provision and therefore the preferred status of the State Constitution’s freedom of religion clauses was not recognized. Moreover, as applied to this case there was no evidence that a setback of less than 100 feet would have the adverse effects on traffic, noise, and the like feared by the board; consequently, the denial was arbitrary and unreasonable. Moreover, the zoning board did not consider means short of denying the permit that could mitigate the possible adverse inconveniences the board perceived the area might experience.

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The Court held that “to the extent the ordinances . . . authorize a denial of a special use permit for location of religious institutions in a residential district without setting reasonable requirements for adaptations which would mitigate their effects, the ordinances are unconstitutional.” 38 N.Y.2d, at 291. In this case, because of the expense that would have to be incurred, to require compliance with the setback distances would be tantamount to denial of a use permit. The opinion also rejected as a basis for denial that the great majority of the congregants did not reside in the Village of Roslyn Harbor. Id., at 290. Judge Jones wrote a dissenting opinion in which Judge Jasen concurred. The question for the dissenters was whether the ordinance was constitutional in its application to the case at bar and concluded that its application was neither arbitrary nor unreasonable as applied to deny the permit. In reaching this conclusion, the opinion called for a review of what it characterized as the “absolutist” principles derived from Rochester, Community Synagogue, Westchester. They argued that contemporary conditions called for a reassessment of the protection to be given religious use property by zoning requirements. It is apparent that those properties can present traffic, parking, safety, and congestion problems, and can cause deterioration of property values in residential areas. Moreover, modern uses of premises by religious institutions go well beyond those related to worship and embrace use of those facilities for social purposes, not only by the congregants, but by others as well. Indeed, in the case at bar, the property was acquired by the Temple with full knowledge of the zoning ordinance restrictions and where the majority of its congregants lived outside of the Village of Roslyn Harbor. Judge Jones cited several states that had rejected the “absolutist” view that constitutional requirements demanded that zoning restrictions always had to succumb to claims of religious use. Denying that it was advocating that religious uses be “leveled to that of all other users of property” (38 N.Y.2d, at 293), the dissent declared: “The time has come when our court should forthrightly face the legal, economic and social implications of continued slavish adherence to the outmoded doctrine that churches and synagogues are wholly immune from even reasonable zoning regulation.” Id., at 295. Chief Judge Breitel, with Judge Wachtler concurring, agreed in part with the dissenters that the majority’s view of the law was “too absolutist,” but they did not agree with the dissent that “significant factors in the treatment of religious premises should be the service of members of its congregation in the community, that its presence may lessen property values, or that a religious group may be required to choose among alternatives less offensive to the chosen milieu.” 38 N.Y.2d, at 291. Judges Breitel and Wachtler did “find objectionable” the “all but

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conclusive presumption that consideration of public health, safety and welfare are always outweighed, as some of the [language in the] precedents suggest, by the policy favoring religious structures.” As for the case at bar, they found the “effect” if not the “purpose” of the ordinance to be “exclusionary,” and the “overall impact of the restrictions in the ordinance did not sufficiently accommodate the “priorities, albeit limited, that should be accorded to religious institutions.” Id., at 292. The effect of Jewish Reconstructionist Synagogue appears to be that in zoning cases the preferred status of religious use will continue, but a less absolutist standard will be followed where concerns of public safety and health are involved. Moreover, even where public safety and health are implicated, zoning ordinances are required to accommodate the preferred status of religious uses. 2. LANDMARK-PRESERVATION LAWS

Free exercise claims were presented to the Court in three landmarkpreservation cases. In Lutheran Church In America v. City of New York, 35 N.Y.2d 121 (1974), the Court did not address the claim directly, because it held that the financial burden placed on the church would have prevented it from using the property and consequently, under the circumstances, the designation constituted an unconstitutional appropriation of property under the Federal and State constitutions. In Matter of Society for Ethical Culture v. Spatt, 51 N.Y.2d 449 (1980), New York City’s Landmark Preservation Commission designated the Meeting House of the Society of Ethical Culture as a landmark. The building was deemed worthy of landmark designation because of its exemplification of the art nouveau style and because the prominent architect who designed it had been a president of the Society. The Commission found that the Meeting House was “a tangible symbol of the Society’s permanent social contribution and a rich architectural element of the fabric of our City.” The Society, a religious, educational, and charitable organization, challenged the designation on the grounds that the restrictions attendant on landmark designation constituted an unconstitutional taking of property without due compensation and also was an unconstitutional “interference with the free exercise of the Society’s religious purpose.” 51 N.Y.2d, at 452. There was no claim that the designation was irrational. The Court of Appeals rejected the Society’s contentions and affirmed the landmark designation. Judge Wachtler, writing for a unanimous Court, conceded that the Society enjoyed constitutional protection in its exercise of its religious activities, but denied that those protections had been breached by the landmark designation.

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The Society did not claim that the landmark designation prevented it from modifying or developing its property to accommodate religious activities but rather complained that the designation did not permit development of the property for rental to nonreligious tenants. This restriction did not impair the free exercise of religion, but rather involved use for secular purposes that are subject to reasonable government regulation. As for the taking without due compensation claim, the opinion recognized that the limitation on any property could adversely affect its value, but held that reasonable limitations are constitutionally permissible. Moreover, the opinion noted that different factors enter the equation when determining reasonableness if the property is owned by an eleemosynary institution as opposed to a commercial enterprise. [R]easonableness when related to commercial property necessarily requires that the owner not be deprived by the regulation of a reasonable return on his property. However, because charitable organizations are not created for financial return in the same sense as private businesses, for them the standard is refined to permit the landmark designation restriction only so long as it does not physically or financially prevent, or seriously interfere with the carrying out of its charitable purpose. 51 N.Y.2d, at 455

Church of St. Paul and St. Andrew v. Barwick, 67 N.Y.2d 510 (1986), certiorari denied, 479 U.S. 985 (1986), also involved the designation of church property as a landmark under the Landmark Preservation Law of New York City. The church brought a declaratory judgment action seeking a declaration that the application of the law to the church property was an unconstitutional violation of the free exercise clauses of both the Federal and state constitutions. In a 4–3 decision, the Court refused to resolve the constitutional questions, holding they were not ripe for decision. The three judges who had constituted the minority in Church of St. Paul and St. Andrew, Judges Meyer, Simon, and Alexander, disagreed with the majority’s holding that the free exercise question was not ripe for decision, arguing, in an opinion by Judge Meyer, that by virtue of the landmark designation’s immediate economic impact on the church in the form of maintenance obligations backed by criminal and civil enforcement, the landmark designation itself would inflict “immediate, concrete injury upon the protected First Amendment activities of the plaintiff church.” 67 N.Y.2d, at 540. The minority would have extended to landmark preservation laws Westchester’s recognition in zoning matters of the preferred status of constitutionally protected religious freedoms.

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As between the free exercise of religion and the aesthetic and community values involved in landmark preservation, the latter is “outweighed by the constitutional prohibition against the abridgement of the free exercise of religion and by the public benefit and welfare which is itself an attribute of religious worship in the community.” [Matter of Westchester Reform Temple v. Brown, 22 N.Y.2d 488, 496]. 67 N.Y.2d, at 525–26

In Church of St. Paul and St. Andrew the church contended that, by virtue of the economic hardship imposed by the application of the landmark preservation law under the circumstances of the case, the church’s First Amendment rights were violated. Moreover, the church argued that under the statutory scheme economic hardship was a question for the courts and not one for the landmark preservation commission to determine as part of its determination of the appropriateness of the landmark designation. The majority determined that the issue was the “appropriateness” of the landmark designation and that while economic hardship could be taken into consideration, the question was one for the commission. For the minority, “appropriateness” under the statute was solely a question of aesthetic and cultural content and embraced neither economic hardship nor health and safety questions, and under Westchester, aesthetic and cultural values could not outweigh the church’s First Amendment rights. As for economic hardship (or health and safety), the appropriate weighing of factors under the Westchester standard would have to be accomplished in order to satisfy constitutional requirements. The minority argued that by authorizing the commission: to deal with appropriateness as something more than architectural appropriateness, as the majority opinion does, after the designation [as a landmark] is an accomplished fact and the religious organization incurs maintenance obligations under the threat of criminal sanctions and without regard to the organization’s financial situation, is in effect to permit hardship, not a function of the Commission with respect to a church, to be negotiated under the guise of appropriateness and is wholly inconsistent with the church’s First Amendment rights. 67 N.Y.2d, at 533 3. RENT CONTROL

In Eaton v. New York City Conciliation and Appeals Board, 56 N.Y.2d 340 (1982), the Court of Appeals held that it was not unconstitutional for the Rent Stabilization Law to exempt from its residential rent control provisions proper-

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ties owned or operated by institutions “operated exclusively for charitable or educational purposes on a non-profit basis,” but that did not exempt properties owned or operated by a religious institution. The Board construed the statute as exempting religious institutions, Special Term reversed and held that the statutory language, “charitable or educational purposes,” did not exempt religious institutions and the Appellate Division reversed Special Term. Nesbitt v. New York City Conciliation and Appeals Board, 85 A.D.2d 581 (1st Dept. 1981). The tenants had argued that an exemption for religious institutions would violate the Establishment Clause, and the constitutional implications influenced the Appellate Division’s construction of the statute to exempt religious institutions. However, the potential constitutional questions had not deterred Special Term from holding that properties owned or operated by religious institutions were not exempt from the rent control provisions and that the statute was constitutional. The Court of Appeals agreed that the statute clearly did not exempt religious institutions. Moreover, the Court reasoned that a “statute is presumptively constitutional and should be construed to uphold its constitutionality . . . [and] that the interpretation adopted by Special Term [was] consistent with [that] objective.” 56 N.Y.2d at 346.

B. Real Estate Tax Exemptions Article XVI, section 1, of the New York State Constitution, proposed by the 1938 Constitutional Convention, which became effective in 1939, provides, inter alia, that exemptions from taxation may be altered or repealed, “excepting those exempting real or personal property used exclusively for religious, educational or charitable purposes as defined by law and owned by any corporation or association organized or conducted exclusively for one or more of such purposes and not operating for profit” (emphasis added). Real Property Tax Law § 420, the statutory exemption for religious organizations, was longstanding when the state constitutional provision was adopted, and in Walz v. Tax Commission of the City of New York, 24 N.Y.2d 30 (1969), affirmed, 397 U.S. 664 (1970), the Court of Appeals unanimously sustained its constitutionality under the United States Constitution. Two Court of Appeals cases that directly addressed constitutional questions bear noting, Sisters of Saint Joseph v. City of New York, 49 N.Y.2d 429 (1980), and Matter of Holy Spirit Ass’n for Unification of World Christianity v. Tax Commission of City of New York, 55 N.Y.2d 512 (1982). In Sisters of Saint Joseph, taxes were assessed on property owned by one religious and charitable organi-

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zation but leased to another charitable organization, which used the property exclusively for tax-exempt purposes. The tax law provided that if the rent received exceeded carrying, maintenance, and depreciation charges of the property, the tax exemption would be lost even if the property was leased to another tax-exempt organization and used exclusively for tax-exempt purposes—the object being to avoid providing a tax exemption for property that provides the owner with a profit from its rental. The Court of Appeals summarily rejected the plaintiff’s contention that taxing property owned by a religious organization violated the freedom of religion provisions of the Federal and State constitutions. 49 N.Y.2d, at 449–50. The property, which had been fully tax-exempt prior to the lease, was restored to the tax rolls after it was leased. The plaintiff argued that this constituted a violation of Article XVI, section 1, of the State Constitution because contrary to that provision it effected a repeal of a tax exemption to which the plaintiff was entitled. The Court disagreed. Tracing the history of the constitutional provision and the tax statutes, the Court found that when the constitutional provision was adopted, “the applicable tax statutes as interpreted by the courts of this state did not allow for an exemption where a tax-exempt organization leased its property to another such organization.” After the relevant provision was added to the Constitution, the tax exemption for leased property was authorized by statute. The Court concluded that the statute conferred a benefit on the religious corporation not required by the State Constitution, and “it [would be] inconceivable that the Legislature, having granted an additional benefit, is without the power to restrict that benefit without offending the State Constitution.” 49 N.Y.2d, at 450. For the most part, the Court of Appeals cases dealt with the application and interpretation of the statute’s exemption provisions, but did not directly address constitutional questions. However, in applying and interpreting the exemption provisions of the Tax Law, the Court necessarily would have to be concerned with the limitations on its inquiry to determine whether an organization qualified for exemption as a religious organization. Holy Spirit Ass’n for Unification of World Christianity involved the church founded by the Reverend Sun Myung Moon. The church engaged in a wide range of activities including some concededly religious and others that were found to be “economic” and “political.” The church’s application for a tax exemption for the realty it owned in New York City was denied by the City Tax Commission. The Court of Appeals reversed. The Court framed the question as whether “the Church, many of whose activities and beliefs are religious, [is] organized and conducted primarily

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[emphasis added] for religious purposes within the meaning of” the applicable tax statute? . . . The statute used the term “exclusively,” but the Court earlier had held that “it connotes ‘principally’ or ‘primarily’ (Matter of Association of Bar of City of New York v. Lewisohn, 34 N.Y.2d 143 . . . )” 55 N.Y.2d, at 520–21. The Court, citing and quoting extensively from Supreme Court cases dealing with the First Amendment, stated the standard for determining the question it had posed: When as here, particular purposes and activities of a religious organization are claimed to be other than religious, the civil authorities may engage in but two inquiries: Does the religious organization assert that the challenged purposes and activities are religious, and is that assertion bona fide? Neither the courts nor the administrative agencies of the State or its subdivisions may go behind the declared content of the religious beliefs any more than they may examine into their validity. . . . [T]he law knows no heresy, and is committed to the support of no dogma, the establishment of no sect. 55 N.Y.2d, at 521

As for the Church, the Appellate Division, affirming the Commission’s denial of the exemption, found that the “primary” purpose of the Church was religious, but that writings of the Reverend Moon “binds it to a course of political activity” and “religious and nonreligious are inextricably intertwined in the doctrine.” Therefore, “despite the religious content of the doctrine, and the leit: motif of religion with which the eclectic teachings are tinged, the doctrine, to the extent that it analyses and instructs on politics and economics has substantial secular elements.” 55 N.Y.2d, at 526, quoting from the Appellate Division opinion. The Court of Appeals reversed the Appellate Division (and the Tax Commission). It found that the Church viewed its economic and political beliefs as integral parts of its religion and that there could be no doubt that the Church’s beliefs were sincerely held. Therefore, it was entitled to the exemption. The Court noted that the bona fides of the religious beliefs of the Church were not being challenged; otherwise, the Court would be faced with a different question. Although the Court had held that loss of tax revenues was not a legally sufficient reason for denying a use permit for religious purposes, the fact, of course, was that property dedicated to religious use was removed from the tax rolls with the consequent loss of tax revenue from that property and a resulting increase of taxes on the remaining property. In view of the restricted inquiry permitted to determine whether property was deserving of the exemption for religious use,

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inevitably the question of how to deal with an alleged abuse of the religious use exemption determining would be presented to the Court. The Court dealt with the procedural aspect of the alleged abuse issue in Dudley v. Kerwick, 52 N.Y.2d 542 (1981). In Dudley v. Kerwick plaintiffs were property owners who sought to challenge the decisions of Kerwick, the town’s tax assessor, in granting tax-exempt status to 88 percent of the town’s landowners. Those landowners had enrolled “en masse as officers in an allegedly religious organization known as the Universal Life Church. It appear[ed] that all Universal Life Church members who sought an exemption received one.” Dudley received a telephone call from the assessor advising him that he and the other nonmembers of the Church (12 percent of the landowners) would be assessed for the entire town budget ($500,000), but if they joined the Church and filed for an exemption, the exemption would be granted. 52 N.Y.2d, at 547. Dudley and the other non-Church members brought an Article 78 proceeding challenging Kerwick’s decisions concerning the exempt properties, but they did not challenge the assessments of their own property. The Appellate Division dismissed the proceeding and held, inter alia, that an Article 78 proceeding was the wrong avenue and that their exclusive remedy was a proceeding under the Real Property Law, but the statute of limitations had expired with respect to the Real Property Law proceeding. The Court in Dudley v. Kerwick was faced with the statement in the earlier opinion in Van Devanter v. Long Island City, 139 N.Y. 133 (1893), that the only remedy for a taxpayer who does not challenge his own assessment, but wishes to challenge the exemption or under-assessment of other property, is by way of “appeal to public opinion and to the ballot box.” Dudley v. Kerwick overruled that aspect of Van Devanter that would have denied the petitioners standing where, as in the case at bar, they allege “far more than determinations regarding some of the property in town. They accuse the assessor of virtually ignoring statutory guidelines in granting exemptions to Universal Life Church members.” In effect, the assessor was creating grounds for exemptions, and “[w]hen an assessor grants exemption from taxation in wholesale fashion indicating that he has arrogated this legislative power to himself, he cannot cloak himself with protection surrounding individual discretionary decisions, and relief by way of Article 78 proceeding will lie.” 52 N.Y.2d, at 551. The consequence of this decision was to give taxpayers who were not challenging their own assessment standing to challenge the assessment of others in an Article 78 proceeding with its four-month statute of limitation in lieu of the 30-day statute of limitation for a Real Property Law proceeding. Judge Gabrielli dissented, expressing concern that overruling Van Devanter would open the

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floodgates to a rash of proceedings challenging assessments. However, Van Devanter had not been entirely overruled. Colella v. Board of Assessors of the County of Nassau, 95 N.Y.2d 401, 409 (2000), held that a property owner who claimed he had been overtaxed by virtue of another’s property having been granted a “religious use” exemption had no standing to attack the exemption unless he was claiming the kind of systemic official wrongdoing alleged in Dudley v. Kerwick, supra, not merely a mistake of judgment; otherwise, any taxpayer could institute an action simply claiming an error with respect to the amount of the assessment or exemption of another’s property.

VII. Jehovah’s Witnesses A. Flag Salute In People v. Sandstrom, 279 N.Y. 523 (1939), a thirteen-year-old child, a member of Jehovah’s Witnesses, repeatedly refused to salute the American flag in a ceremony prescribed by the Commissioner of Education pursuant to a provision of the Education Law, and she was repeatedly sent home. Her parents, however, continued to send her to school. The parents were prosecuted for keeping their daughter from attending school. The Court of Appeals reversed the conviction. Simply stated, the Court found that the parents had not violated the statute because they did not keep the child from attending school; rather, she had been sent home and the parents kept sending her to school. The child, questioned during her parents’ trial, explained that her refusal to salute the flag was based on her religious beliefs as a Jehovah’s Witness that the salute was a form of idolatry and that she would suffer dire consequences if she did salute. Chief Judge Crane, writing for six members of the Court, rejected the contention that her religious beliefs prevailed over the flag-salute mandate, for the state had the right “to engender and maintain patriotism in the young,” just as it had the right to “preserve the government” by providing for “military force.” 279 N.Y., at 531. Chief Judge Crane, in dismissing the charges against the parents, stated that, under the relevant statute, disciplinary action could be taken against the child because of her disobedience. However, Judge Crane expressed his doubts about the wisdom of disciplinary measures in a case such as this, albeit authorized by law. Pointing out that the incident took place in a school setting, he suggested that educational measures should be undertaken, and not legally authorized disciplinary measures as an “immediate resort.” Id., at 533. Judge Lehman, concurring in the dismissal of the charges against the parents, expressed sharp disagreement with the suggestion that the child could be disci-

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plined for her refusal to salute the flag. 279 N.Y. 523, 533 (concurring opinion). He questioned whether the Legislature intended to or could prescribe punishment for the refusal to salute the flag. He agreed with the majority that the salute was in no sense a form of idolatry, but this was not decisive. Judge Lehman concluded that so important a constitutional protection of religious freedom was not to be narrowly viewed, and that the last clause of the State Constitution, that the freedom of religion should not be used to “justify practices inconsistent with the peace and safety of the state,” should not be broadly construed. The Legislature cannot authorize the school authorities to give an order which outrages the religious conscience of a child at least unless such order does in reasonable degree tend to promote the general health and welfare or is required for the orderly conduct of the school. .... The flag salute would lose no dignity or worth if she were permitted to refrain from joining in it. On the contrary, that would be an impressive lesson for her and the other children that the flag stands for absolute freedom of conscience except where freedom of conscience is asserted “to justify practices inconsistent with the peace or safety of this State.” The salute of the flag is a gesture of love and respect—fine where there is real love and respect back of the gesture. The flag is dishonored by a salute by a child in reluctant and terrified obedience to a command of secular authority which clashes with the dictates of conscience. The flag “cherished by all our hearts” should not be soiled by the tears of a little child. The Constitution does not permit, and the Legislature never intended, that the flag should be soiled and dishonored. 279 N.Y., at 538–39

In 1943, the United States Supreme Court held the United States Constitution was violated by compelling a member of Jehovah’s Witnesses to salute the flag. West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943), overruling Minersville School District v. Gobitis, 310 U.S. 586 (1940).

B. Regulating the Distribution of Literature The mandatory flag salute cases involved but one of the contentious issues concerning freedom of expression and freedom of religion involving Jehovah’s Witnesses. In 1940, the United States Supreme Court decided Cantwell v. Connecticut, 310 U.S. 296. The case involved Jehovah’s Witnesses charged with

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violating state law by soliciting religious contributions without a State certificate and also causing a breach of the peace by going from house to house to play an anti-Catholic record for anyone who would listen. In a landmark decision, the Court reversed the convictions holding that the First Amendment’s free exercise clause restricted State action because the clause was incorporated in the Fourteenth Amendment. The Court held that requiring State permission for religious solicitation unconstitutionally burdened the right to free exercise of religion. In the course of its opinion, the majority criticized the certificate or licensing requirement as not being the least restrictive or drastic means of accomplishing its avowed purpose, fighting fraud. Moreover, as a corollary to the least restrictive standard, because there had been no legislative judgment that playing phonograph records in the street “should in the interest of comfort or privacy be limited,” 310 U.S., at 307, the Court overturned the common law breach of the peace conviction. The Court reasoned that if the objective was secular, that is, the preservation of tranquility, comfort, and privacy, constitutional protection of religious freedom required adoption of a statute sufficiently narrowly directed at those secular purposes and not so broad that the language of the statute could be a basis for rationalizing its use as an instrument to burden religious freedom. People v. Bohnke, 287 N.Y. 154 (1941), cert. denied, 316 U.S. 667 (1942), unanimously affirmed the convictions of ordained ministers of Jehovah’s Witnesses for violating a local ordinance that prohibited, without the prior consent of the owner, entry onto private property for certain purposes, including distributing printed matter. The ordinance exempted from its prohibition persons who had been residents of the village for a period of six months. The Court rejected defendants’ claims that the ordinance violated the Federal Constitution in that it denied them freedom of religion, freedom of speech, and equal protection of the laws, and sustained their convictions and the constitutionality of the ordinance. The Court reasoned that the ordinance simply regulated entry onto private property by leaving the decision to the private property owner; the ordinance regulated neither speech nor religion. As for the exemption for residents, the Court found it to be a part of a reasonable police measure to protect against annoyances on private property. People v. Barber, 289 N.Y. 378 (1943), involved an ordinance that required a license in order to solicit on private property or on a public highway. The Court of Appeals construed the ordinance not to be applicable to a person distributing Jehovah’s Witnesses religious tracts for money or for free, when the recipient has no money. The Court’s construction held that such a person is not engaged in

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the “pursuit or exercise” of the “trades or occupations” of “soliciting” or of “hawking or peddling” within the meaning of the quoted language of the ordinance.23 There were constitutional overtones to the Court’s construction. In the opinion by Chief Judge Lehman, joined by five Judges, Judge Conway, taking no part, the Court posited that some Supreme Court cases could be read to sustain such an ordinance under the Federal Constitution, but the opinion also asserted: Parenthetically we may point out that in determining the scope and effect of the guarantees of fundamental rights of the individual in the Constitution of the State of New York, this court is bound to exercise its independent judgment and is not bound by a decision of the Supreme Court of the United States limiting the scope of similar guarantees in the Constitution of the United States. 289 N.Y., at 385 (emphasis supplied)24

The opinion reasoned that the constitutionality of the provision if applied to the defendants presented a close question and that, if construed to cover the conduct of the Jehovah’s Witnesses, strong arguments could be made against its constitutionality as a possible threat to religious freedom. Indeed, according to the opinion, some of those arguments were contained in both the prevailing and dissenting opinions filed in Jones v. City of Opelika, 364 U.S. 584 (1942). Thus, moved by the desire to avoid a construction of the ordinance that presented possibly doubtful or close questions of constitutionality and the further concern that if the ordinance were read to apply to the defendants, it “might be applied in a manner which would seriously burden or destroy fundamental rights,” the opinion concluded that it was “clear to the [Court] that the ordinance should not be construed as [if it were] intended to apply to the activities of the defendant.” Consequently, the Court held that the ordinance did not require the Jehovah’s Witnesses to obtain a license in order to distribute their religious literature. 289 N.Y., at 386. In Watchtower Bible & Tract Soc. v. Metropolitan Life Ins. Co., 297 N.Y. 339 (1948), the defendant, which owned Parkchester, a residential community in the Bronx, had issued regulations prohibiting persons from entering the premises for “canvassing, peddling, soliciting contributions or distributing literature except upon [the previously obtained] written consent or invitation of a tenant.” Plaintiff, the incorporated governing body of Jehovah’s Witnesses, was engaged, inter alia, in attempting to interest others in Jehovah’s Witnesses religious beliefs through the literature it distributed and by oral and personal approaches. Written consents were obtained from thirty tenants out of approximately 11,000

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who had responded to an inquiry from the defendants. Defendants offered to permit the plaintiffs to continue visits to the thirty who had responded affirmatively, but Jehovah’s Witnesses insisted that they had the right to enter the premises and approach others and continued to do so. Jehovah’s Witnesses brought an action to declare that their rights under the Federal and State constitutions were abridged by the regulation. The Court disagreed and, relying on Bohnke, supra, reiterated its teaching that there was no constitutional right to enter the residence of another even for the purpose of exercising constitutional rights of freedom of expression or religion. The Court of Appeals distinguished two recently decided United States Supreme Court cases from Watchtower Bible & Tract Soc.: Marsh v. Alabama, 326 U.S. 501 (1946), and Tucker v. Texas, 326 U.S. 517 (1946), in which the Supreme Court reversed the convictions of Jehovah’s Witnesses for criminal trespass. The Supreme Court had held that the sidewalks of a company town in front of retail stores were equivalent to ordinary public sidewalks (Marsh, supra), as well as when a town is owned by the Federal Public Housing Authority where the sidewalks were used as in any “typical American town” (Tucker, supra), and it was unconstitutional to invoke criminal trespass laws to absolutely bar the use of those streets for the exercise of First Amendment rights. The Court of Appeals distinguished the Supreme Court cases from Watchtower Bible & Tract Soc., supra, at 347–48, in two respects. Neither Supreme Court case had recognized the constitutional right to enter residential premises that plaintiffs sought, and, unlike the prohibitions enforced in the Supreme Court cases, the challenged Parkchester regulations did not prohibit plaintiffs from using the Parkchester sidewalks to distribute their literature.

VIII. Judicial Proceedings A. Witnesses 1. RELIGIOUS BELIEFS AND CREDIBILITY

In Brink v. Stratton, 176 N.Y. 150 (1903), the Court reviewed the history of the 1846 amendment to the State Constitution concerning the competency of a witness because of religious belief and the statutes in force prior to the adoption of the amendment and concluded that the amendment was intended to prohibit attacking a witness’ credibility based on whether or not the witness believed in a Supreme Being or in a system of present or future rewards and punishments. The opinion pointed out that a proposal that would have expressly permitted this method of witness impeachment was rejected by the 1846 constitutional con-

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vention, although statutes permitting this method of impeachment were in effect at the time the amendment was adopted. It recognized the possibility of permitting inquiry about a witness’s religion where “the religious creed of a person may not deal exclusively with his relations with his creator, but may enjoin acts forbidden by law, or forbid compliance with the law, [for example, if a religious belief requires] lying or murder.” 176 N.Y. 150, at 152. The 1985 unanimous decision in People v. Wood, 66 N.Y.2d 374, further developed the teaching of Brink v. Stratton. In Wood, the Court reversed a conviction in which the trial court had permitted the prosecution to cross-examine a psychiatrist on the reasons he preferred to affirm his testimony, rather than take an oath. The Court reasoned that the witness had a constitutional and a statutory right to affirm rather than take an oath and that the witness’s reasons for exercising his right to affirm were “irrelevant to the issue of credibility,” citing Article I, § 3, and provisions of the Civil Procedure Law and Rules and the Criminal Procedure Law, as well as Brink v. Stratton. However, the Court emphasized that inasmuch as in New York, “no constitutional or statutory provision prohibits impeachment by questions concerning the religious beliefs of a witness,” id., at 379, the trial court’s error was not per se reversible error in New York, although other jurisdictions had reached a contrary conclusion. The error in Wood was judged by a harmless error standard, and reversal was required. 66 N.Y.2d, at 378–80. 2. OBLIGATION TO TESTIFY

Consistent with Brink v. Stratton’s dicta denying a constitutional right to religious freedom where a religious tenet requires an adherent to violate the law, People v. Woodruff, 21 N.Y.2d 848 (1968) (Mem), affirming 26 A.D.2d 236 (1968), sustained the contempt conviction of a grand jury witness who, after having been granted immunity, refused to testify on the grounds that her religious tenets would be violated because her testimony would do harm to others. The Court of Appeals agreed with the Appellate Division that “[h]er religious scruples must give way to the dominant right of the State to maintain peace and order.” 26 A.D.2d at 239. Here note the third clause of Article I, § 3, New York State Constitution, “the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace and safety of the state,” that has been held to authorize and require a judicial balancing of interests, a concept that is discussed infra. Matter of Keenan v. Gigante, 47 N.Y.2d 160 (1979), held that, except when the priest-penitent confidential communication applies, a clergyman is subject to the command that “ ‘every man owes a duty to give evidence when called upon to do so.’” Father Gigante, who was both a Roman Catholic priest and a New York City councilman, was subpoenaed to appear and testify before a grand jury

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investigating claims that preferential treatment had been given members of organized crime incarcerated in the New York City correctional facilities. Father Gigante had had discussions with Napoli, one of those incarcerated, and those conversations were held to be subject to the priest-penitent privilege. However, Father Gigante was ordered but refused to answer questions concerning his alleged conversations with others concerning the treatment of Napoli and Father Gigante’s brother, who was in the facility on Rikers Island. The Court found no merit to a claim that the testimony sought would tend to incriminate him or that the conversations in question were subject to the priest-penitent privilege. The Court also found no merit to a third claim by Father Gigante that “disclosure would unduly impinge upon the right to practice his ministry as guaranteed by both the State and Federal Constitutions.” His right to practice his ministry did not go beyond the statutory priest-penitent privilege and could not “serve to shield him from shedding light” on the subject of the inquiry—corruption and favoritism in the City correction system. 47 N.Y.2d, at 167–68.

B. Clergyman as Lawyer La Rocca v. Lane, 37 N.Y.2d 375 (1975), sustained a trial court order requiring a Roman Catholic priest, who was appearing as a lawyer for a defendant in a criminal case, not to wear his clerical garb when appearing in the jury trial. The Court viewed the issue as balancing the “preferred” right of religious practice, on the one hand, and the rights of defendant and prosecution to a fair trial. The fair trial issue was stated in terms that both prosecution and defense (even if defendant as in this case did not object) could be prejudiced by the appearance of the lawyer in clerical garb who in the eyes of the jury could “displace” the client. The Court concluded that “the risk that a fair trial could not be had outweighed . . . [the] incidental limitation” on the “defense counsel’s right to free exercise of religion in that he was compelled to remove the symbol of his religious calling, a requirement of his calling which is not unconditional or beyond dispensation.” 37 N.Y.2d, at 584.25

IX. Prisoners’ Rights In Brown v. McGinnis, 10 N.Y.2d 531 (1962), the Court recognized that prisoners have Federal and State constitutional and statutory rights of freedom of religious worship. However, the freedom is not an absolute right, but a preferred right that may be reasonably curtailed when “necessary for the proper manage-

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ment and discipline of the institution.” Not surprisingly, much of the litigation involving religious freedom claims is concerned with how and when the preferred right may be constitutionally circumscribed.

A. Free Exercise Issues Matter of Shahid v. Coughlin, 83 A.D.2d 8 (3d Dept. 1981), affirmed on opinion below, 56 N.Y.2d 987 (1982), addressed the question of when religious freedom may be reasonably curtailed in prison. Prisoners who were Sunni Muslims objected to a prison rule that required prisoners to bathe without clothing or covering while showering in the bathhouse. The correctional authorities claimed that the purpose of the rule was to promote hygiene and cleanliness in the prison facility. The Sunni Muslims, claimed that their religion prohibited them from exposing their genitals when showering in a communal setting, and they refused to obey the rule. In response, they were administratively disciplined. Subsequently, a grievance filed by some of the prisoners under prison rules was resolved in favor of the prisoners, and the rules were changed to accommodate their religious beliefs by permitting them to bathe covered by a clean towel; but the correctional authorities refused to expunge the disciplinary record of those prisoners who had refused to obey the rule. The prisoners commenced a judicial proceeding to have the record expunged on the grounds the rule they were charged with violating violated their constitutional rights of freedom of religion. The Appellate Division found that the rules requiring nude showering were reasonably related to the avowed object of promoting hygiene and cleanliness and outweighed the interest in religious freedom. Invoking the principle announced in Brown v. McGinnis, supra, the Court found the rules to be valid.26 Matter of Rivera v. Smith, 63 N.Y.2d 501 (1984), involved the need to resolve the same competing interests addressed in Matter of Shahid, religious freedom as a preferred right and whether its curtailment for purposes of security was “necessary for the proper management and discipline of the institution,” plus a third interest, the enforcement of a female guard’s interest in equal employment opportunity regardless of gender. Rivera, a Muslim, was ordered to submit to a random “pat down” frisk to be performed by a female prison guard. He refused and asked that one of the male officers present perform the “pat down” frisk. Rivera claimed that permitting a woman to touch him in the manner prescribed violated his religious beliefs concerning modesty and lust based on the Holy Qu’ran. Testimony by academic experts and Muslim clergy supported Rivera’s position that a touching like the one likely to have occurred would seriously offend and violate his religious beliefs.

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For his refusal, Rivera suffered administrative punishment. As in Matter of Shahid, Rivera sought to have the regulation authorizing the frisk by a female guard declared unconstitutional and the record of disciplinary action against him expunged because the order he refused to obey violated his right to religious freedom under the Federal and State constitutions and the applicable State statute. On October 11, 1982, the date the frisk in question was ordered, the rules of the Department of Correctional Services provided: “Pat frisk of inmates will be performed by officers regardless of sex.” This provision was added on May 18, 1981, and was intended to extend equal employment rights to all employees regardless of gender. Before the 1981 amendment, the rules provided that a pat frisk “shall be conducted by an officer of the same sex as the inmate being frisked.” The Court unanimously concluded that in “the limited circumstances” presented by Rivera, the prisoner’s interest in the preferred right to freedom of religion outweighed both the prison’s security and the female guard’s equal employment opportunity interests. When the frisk was ordered, two male guards were present who could have conducted it, and the female guard could have frisked other male inmates whose religious rights would not have been offended without compromising security. Any delay that would result from requiring a male guard to be called would be minimal inasmuch as Muslim inmates could be easily identified by the prayer caps they were permitted to wear. As for the interest in assuring equal employment opportunity regardless of gender, the Court concluded that under the circumstances of the case “there was no proof that denying the female guard to conduct a pat frisk of Rivera frustrated the objectives of the equal opportunity policy.” 63 N.Y.2d, at 513–14. Judge Kaye, as she then was, concurred in a separate opinion, emphasizing that the Court’s judgment was “narrowly confined to the particular facts” of the case. Id., at 516. The court below, in addition to finding for the prisoner on the substantive constitutional question, also ordered that the record of administrative punishment be expunged. The Court of Appeals, while agreeing with the Appellate Division’s disposition of the constitutional issue, disagreed with ordering the record expunged and reiterated its position in Matter of Shahid, supra: Inmates who object to a particular prison rule should obey the rule until such time as established procedures can effectuate a change. Any holding to the contrary would simply encourage inmates to break rules as a means of addressing their grievances and invite chaos [83 A.D.2d, at 12]. 63 N.Y.2d, at 515–16

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In Lewis v. Commissioner of Department of Correctional Services of New York, 68 N.Y.2d 923 (1986), the Court again balanced the religious beliefs of the prisoner against the security interests of the Commissioner. Lewis, a Rastafarian, sought a declaratory judgment that his First Amendment rights would be violated by Commission rules that required him, as a newly committed prisoner, to have his dreadlocks cut. He had “not cut his hair for more than 20 years. It [was] undisputed that he [was] sincere in his beliefs, that they are of a religious nature, and that a haircut would impinge on those beliefs . . . [In the Appellate Division, the Department’s avowed reasons for requiring the] initial haircut . . . [were] for . . . health and sanitation as well as to permit the taking of the initial identification picture.” In the Court of Appeals, the Department abandoned the health and sanitation claim and argued “only that the initial haircut [was] essential to prison security in that photographs taken at that time facilitate quick identification of inmates and escapees.” 68 N.Y.2d, at 924. However, after the initial haircut, the rules did not restrict the length of the inmate’s hair. Without deciding whether Rastafarianism is a religion and resting solely on the First Amendment because no state constitutional claim had been properly presented, the Court unanimously decided in Lewis’s favor, because the Department’s interest could be protected “without needlessly infring[ing] on [the prisoner’s] beliefs. The lower courts had found that the Department’s objectives could be satisfied by less intrusive means, “simply by pulling his hair back when the initial identification photographs are taken.” Id., at 925.

B. “Establishment” Issues Matter of Griffin v. Coughlin, 88 N.Y.2d 674 (1996), certiorari denied, 519 U.S. 1054 (1997), presented the Court with a question of coercing a prisoner to engage in religious activity, a First Amendment establishment of religion issue. The Court held that requiring a prisoner with a drug-related history to participate in a Narcotics Anonymous program, a substance abuse program modeled after the Alcoholics Anonymous program, as a condition of eligibility for the Family Reunion Program, violated the prisoner’s First Amendment rights under the establishment of religion clause. The Court found that the expressions and practices of the program “beyond peradventure [demonstrate] doctrinally and as actually practiced, adherence . . . entails engagement in religious activity and religious proselytization. Followers are urged to accept the existence of God as a Supreme Being, Creator, Father of Light and Spirit of the Universe.” 88 N.Y.2d, at 683. Even if, as the dissent claimed, the state-sponsored program did not seek adherence to any particular religious sect, the Court of Appeals majority stated

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that the establishment clause “clearly interdicts government pressure favoring religion generally—not merely favoring a particular religious sect or sects, citing Torasco v. Watkins, 367 U.S. 488 (1961), (State Constitution conditioning right to hold public office on a declaration of a belief in God, unconstitutional). 88 N.Y.2d at 687, note 5. The State could not constitutionally require the prisoner to forfeit his benefits, participation in the Family Reunion Program, “as the price of resisting conformance to state-sponsored religious practice,” citing Lee v. Weisman, 505 U.S. 577, at 546 (1992). 88 N.Y.2d, at 688. Here, of course, the state argued that treatment or rehabilitation of the prisoner, not religion, is the primary purpose and effect of the program. The Court rejected the notion that unconstitutionality is avoided if the primary or predominate effect or purpose of the state’s action is not religious in nature. Analyzing the three-part “purpose-effect-entanglement” test for establishmentclause analysis announced in Lemon v. Kurtzman, 403 U.S. 602 (1971), supra, the Court of Appeals rejected the contention that to find the program unconstitutional “religious consequences of the State action must predominate over any secular objective or consequence.” The Court of Appeals said: No measurement or weighing of the respective secular and religious effects is required. ‘We do not think such metaphysical judgments are either possible or necessary. Our cases simply do not support the notion that a law found to have a “primary”effect to promote some legitimate end under the State’s police power is immune from further examination to ascertain whether it also had the direct and immediate effect of advancing religion. . . . A violation also is established if the State action’s “inevitable effect [is] to aid and advance’ religion. 88 N.Y.2d at 690–91 (emphasis in original). [Citing and quoting from Committee for Public Education v. Nyquist, 413 U.S. 756 (1973)]

X. Sunday Closing Laws “The statutory scheme [of New York’s Sunday Blue Law or Sunday Closing Law was] that of a general prohibition of specified activities on Sunday with some exceptions as to necessities, recreation and conveniences” and that also contained provisions for forfeiture of the items offered for sale in violation of the law. People v. Friedman, 302 N.Y. 75, 80 (1950). Despite the religious origin of these laws, neither Federal nor New York State courts have held they violate State and Federal constitutional limitations on abridging religious freedom or

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government establishment of religion. For a concise history of the legislation from its origins in England to its appearance in colonial New York in 1695 and its development after New York became a state, See People v. Abrahams, 40 N.Y.2d 277, 281–84 (1976). People v. Friedman, 302 N.Y. 75 (1951), set out the generally accepted view of the Sunday Closing Laws: Nor may we say that section 2147 of the Penal Law is unconstitutional because of infringement upon religious freedom. It is not a “law respecting an establishment of religion, or prohibiting the free exercise thereof” (U.S.Const. 1st Amendment). It does not set up a church, make attendance upon religious worship compulsory, impose restrictions upon expression of religious belief, work a restriction upon the exercise of religion according to the dictates of one’s conscience, provide compulsory support, by taxation or otherwise, of religious institutions, nor in any way enforce or prohibit religion. Although the so-called Sunday laws may be said to have had a religious origin, our statute since 1881 (Penal Code, § 259, now Penal Law, § 2140), has also recognized that the first day of the week by general consent is set apart “for rest,” in accord with the general experience of mankind that it is wise and necessary to set apart such a day at stated intervals for both the physical and moral welfare of the members of a State or community.The power of the Legislature to regulate the observance of Sunday as a civil and political institution is well settled . . . [These laws] establish a general day of rest and repose for the community as a whole. 302 N.Y., at 79–80 (citations omitted)

People v. Friedman also rejected a Fourteenth Amendment equal protection clause challenge to the statutes based on the contention that the classification of permissible and impermissible activity constituted discriminatory class legislation. The Court concluded that many of the exceptions to the general prohibition “merely emphasize[d] that the Legislature recognizes Sunday as a day of rest, play, relaxation and recreation rather than merely as religious Sabbath.” Perfect or “abstract symmetry” in the pattern of exclusions is not required to satisfy the constitutional mandate of equal protection of the laws. Evidence of “a pattern of discriminat[ory] enforcement consciously practiced” could support a claim that Federal and State equal protection provisions had been violated, but in Friedman, “merely” showing “some nonenforcement” was not sufficient to establish an equal protection claim. 302 N.Y., at 80–81. In 1961, after Friedman was decided, the United States Supreme Court sustained the constitutionality of the Sunday Closing Laws of other states under the

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Federal Constitution, rejecting claims based on the Fourteenth Amendment’s equal protection clause and the First Amendment. McGowan v. Maryland, 366 U.S. 420 (1961); Two Guys From Harrison-Allentown, Inc. v. McGinley , 366 U.S. 582 (1961); Braunfeld v. Brown, 366 U.S. 599 (1961); Gallagher v. Crown Super Kosher Super Market of Mass., Inc., 366 U.S. 617 (1961). Eight years later, in People v. Genovese, 24 N.Y.2d 917 (1969), the Court of Appeals again rejected attacks on the constitutionality of the Sunday Closing Laws and the manner of their enforcement. In addition to rejecting attacks on the laws based on the religion clauses of the Federal Constitution’s First Amendment and equal protection clause, the Court also disagreed with claims that the “statute was so vague, arbitrary and capricious to be incapable of police enforcement,” that there in fact had been discriminatory enforcement, and “that it was impossible to segregate the permissible articles which might be sold on Sunday in drug stores from the articles which are not to be sold.”27 In 1975, discriminatory enforcement claims were sustained and a conviction reversed. People v. Acme Markets, Inc., 37 N.Y.2d 326 (1975).28 In Acme Markets, Judge Jasen detailed “a history of disuse,” the absence of “a policy of general enforcement,” and “prosecution at the instance of an interest group for its private purposes.” Id., at 328. He concluded the facts “constitute[d] discrimination violative of the equal protection clauses of the Federal and State Constitutions.” Id., at 328. Judge Jasen conceded that the laws might not be “enforceable in an even-handed and fair manner.” Id., at 331. Chief Judge Breitel, Judge Cooke, and Judge Fuchsberg concurred in Judge Jasen’s opinion, and Judge Fuchsberg also wrote a separate concurring opinion. Judge Gabrielli dissented, arguing that the doctrine of stare decisis was being ignored. Judge Wachtler wrote a separate concurring opinion, in which Judge Jones concurred. He argued that the statutes should be declared unconstitutional immediately, and that the long history of the statute was insufficient reason for upholding its constitutionality in view of the infeasibility of even-handed enforcement. Moreover, the “polyglot of exceptions to the general closing mandate [result in] the classifications of commodities and activities prohibited . . . so arbitrary and capricious as to be without a substantial relation to the object of the legislation.” Consequently, he argued, the statute violated constitutional equal protection limitations. Id., at 333. In rejecting Judge Gabrielli’s arguments based on stare decisis, he stated that “the more recent cases are less certain [than posited by Judge Gabrielli] and allude to possible constitutional infirmities in the statutory scheme.” Id., at 334. Perhaps more importantly on the doctrine of stare decisis, Judge Wachtler stated:

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In addition, stare decisis, the doctrine of standing by the precedents of previously decided cases, calls for judicially responsible adherence to prior determinations, not mechanically slavish reiterative duplication. Where earlier constitutional decisions are involved “[i]t is thus not only our prerogative but also our duty to re-examine a precedent where its reasoning or understanding of the Constitution is fairly called into question.” . . . “This is strikingly true of cases under the equal protection clause when the question is whether there is any reasonable basis for the classification made by a statute” (Burnet v. Coronado Oil & Gas Co., 285 US 393, 410 [Brandeis, J., dissenting]). In this instance, as this record fully discloses, the added experience in the years since our prior decisions persuasively demonstrate that whatever it may have been possible then to say with reference to the checkered classifications of the Sunday blue laws, the proliferation of added exceptions since our court last spoke plus the accumulation of further experience and wisdom makes it impossible for us by the expedience of bland citation to prior cases to uphold the wholly irrational classification of the statute. We are obliged additionally to observe that no attempt is made by the dissenter to explain or justify the statutory mosaic; he points only to the decisions of yesterday. Such rigid adherence to stare decisis fails to reconcile and accommodate the demands of our ever-changing system. We believe that a more contemporary view compels us to discard this statute which is incapable of enforcement and flagrantly ignored. 37 N.Y.2d, at 334–35 (italics in original, citations omitted)

Four years later, in People v. Abrahams, 40 N.Y.2d 277 (1976), the Court unanimously found the Sunday Closing Laws to be unconstitutional. Judge Gabrielli, the dissenter in Acme Markets, joined four other judges in concurring in Judge Wachtler’s determination that the prohibition of public sales on Sunday violated constitutional equal protection requirements and the law’s forfeiture provisions were unconstitutionally vague. The opinion specifically did not declare the labor provisions unconstitutional; Judge Fuchsberg, in a concurring opinion, would have declared the labor provisions unconstitutional as well. Judge Wachtler described the development of the exceptions to the prohibition on Sunday public sales as having “overwhelmed the statute” and as “absurdities” and “a polyglot of exceptions to the general closing mandate which is essentially devoid of rhyme or reason.” While reiterating that the Court should respect legislative judgments classifying prohibited and permissible conduct, in the case of the Sunday Closing Laws, Judge Wachtler concluded that

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the “crazyquilt” pattern of exceptions was so arbitrary and irrational and so lacking in a “discernible connection to the law’s purpose as to render the statute unconstitutional.” The consequences of this “helter-skelter collection of exceptions” were that the laws were rendered “unenforceable and consequently popularly flouted,” with the “concomitant effect of . . . an erosive disrespect for the law which should not be tolerated in the name of legislative latitude. Moreover, the irrationality of [the Sunday Closing Laws] is confirmed by the conspicuous evidence of prosecutorial indifference, of popular disdain for the prohibitions of the statute and of community inappetence for its enforcement.” 40 N.Y.2d, at 283, 285–86 (emphasis added). Eschewing any judicial attempt to ameliorate the Sunday Closing Laws’ irrationality, Judge Wachtler stated: In our view the only solution is to declare unconstitutional section 9 of the General Business Law as it is presently drafted. To declare just the offending exceptions void would be unwise since the general closing mandate would still remain. Equally unwise would be for the court to engage in the legislative function of selecting those exceptions which are rationally related to the statute’s purpose. The most appropriate course is to invalidate the entire section and present the Legislature with a clean slate. Should the Legislature continue to deem a Sunday closing law desirable it may readily devise a system of exemptions which could produce an atmosphere appropriate for a common day of rest and one which is consonant with today’s needs and mores. Hopefully new legislation could provide sufficient leeway to allow the social dynamics of supply and demand as well as the stabilizing effects of custom and tradition to gravitate toward a scheme which is acceptable to the people and enforceable. 40 N.Y.2d, at 286 (footnote omitted)

12. Real Property

I. Cooperatives and Condominiums A. Constitutional Law Issues In a number of cases the Court has decided constitutional issues relating to cooperative and condominium corporations. 19th Street Associates v. State of New York, 79 N.Y.2d 434 (1992), involved a 1982 consent judgment which provided that the cooperative would be permitted to evict nonpurchasing tenants and sell the shares allocated to their apartments after December 31, 1989. The Court held the consent judgment constituted a contract, that a statute enacted in 1989 which granted protection from eviction to nonpurchasing tenants currently residing in a cooperative or condominium apartment by virtue of the 1982 judgment impaired the tenants’ contractual rights, and that although an impairment may be reasonable and necessary to serve a public purpose, the 1989 statute, although enacted for a legitimate public purpose, was so restrictively worded as to benefit only a few tenants of a particular building, and therefore was neither necessary nor reasonable to alleviate the housing crisis in New York City. In Council for Owner Occupied Housing v. Koch, 61 N.Y.2d 942 (1984), the Court affirmed for the reasons stated in the Trial Term decision, 119 Misc.2d 241 (1983). In that case the trial court had held, based on New York Constitution Article IX, § 2, subd. (c), clause 10 that Title YYYY of the Administrative Code of New York City, which regulated conversion of rental units to cooperative or condominium status, contradicted or was incompatible with the general laws of

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the state. Title YYYY was upheld as supplementary to the State’s regulatory process and necessary to meet the special housing problems existing in New York City. Although not based on any constitutional provision, Council for Owner Occupied Housing, Inc. v. Abrams, 72 N.Y.2d 553 (1988), is deemed worthy of comment here. It dealt with regulations issued by the Attorney General relating to conversion of rental buildings to cooperative status, which required the sponsor to cure violations of record as of the closing date of conversion. The Court held that the offering statement was intended to provide a factual basis for purchasers to decide whether or not to buy, that the cure provision was ultra vires, and that the Attorney General may not extend the delegated power or exercise lawmaking power vested solely in the Legislature by exceeding the authority granted by the enabling statute. Also to be noted with respect to constitutionality is Matter of Kovarsky v. Housing and Development Administration of the City of New York, 31 N.Y.2d 184, 193 (1972), which held that the Legislature could constitutionally limit the right under the Rent Stabilization Law to a renewal lease upon purchase by only 35 percent of the tenants of the cooperative, since “[t]he law . . . does not arbitrarily limit a more extensive right, but, rather, grants to tenants a limited right which they previously did not have.”

B. Cooperative and Condominium Interests Defined Matter of the Estate of Carmer, 71 N.Y.2d 781, 784 (1988), in an opinion by Chief Judge Wachtler held with respect to a bequest of “all my shares of common or preferred stock” that it did not include the shares decedent held with respect to her cooperative apartment because “in reality what is owned is not an interest in an ongoing business, but instead the right to possess real property.” Matter of Rubinstein v. 160 West End Owners Corp., 74 N.Y.2d 443 (1989), and DeKovessey v. Coronet Properties Co., 69 N.Y.2d 148 (1987), both decided that the estate of a proprietary leasehold owner who died before the conversion plan was accepted by the Attorney General was not a “tenant in occupancy” entitled under the plan to purchase at the “insider’s price” the shares held at that time. The difference between the two types of real estate syndication offerings defined in General Business Law § 352-e is well stated in the opinion by Judge Hancock in All Season Resorts Inc. v. Abrams, 68 N.Y.2d 81, 90–91 (1986) (citation omitted): A person having a cooperative interest in real estate (e.g.—a tenant shareholder in a cooperative apartment) typically owns stock in a cooperative cor-

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poration and has a “proprietary” leasehold granted by the corporation . . . The characteristics of condominium ownership are individual ownership of a unit, an undivided interest in designated common elements, and an agreement among unit owners regulating the administration and maintenance of the property.

Who has the right to purchase shares under a conversion plan was the subject of decisions of the Court in Consolidated Edison Company v. 10 West 66th Street Corporation, 61 N.Y.2d 341 (1984), and Spitalnik v. Springer, 59 N.Y.2d 112 (1983). Consolidated Edison involved a cooperative lease to a corporation. The conversion plan limited the offering of shares to individuals but also stated that each tenant in occupancy will have the exclusive right to purchase his apartment. The Court held that nothing in the General Business Law or the Rent Stabilization Code proscribed the purchase by a corporate tenant of the shares allocated to its apartment, the more particularly so in view of the corporate tenant’s statute-given right to purchase. Spitalnik concerned a cooperative apartment leased to two co-tenants who disagreed over which one had the right to subscribe for shares under the conversion plan. In an opinion by Judge Jones the Court concluded that neither had an individual right to do so but they did have the right to file a joint subscription agreement.

C. Governing Law During the time period covered by this book the Court has considered a large number of cases concerned with other aspects of the law relating to cooperative apartments and condominiums.1 Three cases decided by the Court during its 1982 session—Matter of Gonkjur Associates v. Abrams, 57 N.Y.2d 853, affg. for the reasons stated by the Appellate Division, 82 A.D.2d 683 (1981), Matter of Soybel v. Abrams, 57 N.Y.2d 856, affg. for the reasons stated in the Memorandum of the Appellate Division, 86 A.D.2d 804 (1982), and Matter of Parilex, Inc. v. Abrams, 57 N.Y.2d 858, affirming for the reasons stated in the Memorandum of the Appellate Division, 86 A.D.2d 541 (1982), dealt with the GBL § 352-e(2) provision allowing thirty days after filing with the Attorney General for his review of a conversion offering plan. Both the Gonkjur and the Soybel memos held that provision to be mandatory rather than directory. The Parilex memo ruled that by responding to the Attorney General’s letter and requests for information after the expiration of the thirty-day period, the plan offeror had in fact waived the Attorney General’s failure to serve a deficiency letter within thirty days. Jarecki v. Shung Moo Louie, 95 N.Y.2d 665 (2001), while based on a merger clause in the contract of sale, had a similar effect. In that case the

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Louie’s subleased their cooperative apartment to Jarecki, the sublease giving him the option to purchase the apartment subject to approval by the cooperative board. The option was exercised but the board rejected Jarecki’s application which under the contract of sale cancelled the contract. Jarecki then sought to present a second candidate for purchase, contending that the option continued. The Court held that because the terms of the purchase agreement were merged into the contract of sale, the bilateral contract to purchase the apartment was terminated when the contract of sale was canceled. Matter of Harbor Tower, Inc. v. Abrams, 56 N.Y.2d 740 (1982), affirming for the reasons stated by the Appellate Division, 85 A.D.2d 558 (1981), ruled that the Attorney General has broad power to effectuate the remedial purpose of the General Business Law inhibiting the warehousing of vacant apartments in order to reduce the percentage required for conversion. Inasmuch as it was the sponsor’s burden to establish the absence of excessive vacancies, there was a reasonable basis for the Attorney General’s determination not to accept the conversion plan for filing. But, as the Court held in Ian v. Weisberg, 55 N.Y.2d 706 (1981), affirming for the reasons stated by the Appellate Division, 80 A.D.2d 505 (1981), a landlord that offered a plan of conversion to cooperative ownership but which had previously leased an apartment to plaintiff for a term commencing May 1, 1959, had by doing so divested itself of all power thereafter to convey all or part of the same estate to another. Therefore a lease thereafter made with another person who entered into possession prior to May 1, 1959, conveyed no rights under the conversion plan notwithstanding that that person in fact was on the premises. When a condominium corporation’s bylaws make provision that an apartment owner’s right to lease his premises is subject to the board’s rights of first refusal, such a provision does not prohibit guests as occupants but does prohibit the owner’s leasing or otherwise permitting more permanent occupancy of the apartment without first complying with the bylaws. Board of Managers of Village House v. Frazier, 55 N.Y.2d 991 (1982). Likewise a cooperative corporation’s lease that made occupancy subject to “House Rules” that prohibit the tenant’s keeping of a dog is enforceable by injunction. 1036 Park Corporation v. Rubin, 59 N.Y.2d 877 (1983), affirming for the reasons stated by the Appellate Division, 92 A.D.2d 452 (1983). Of particular interest are the Court’s decisions in 511 West 232nd Owners Corp. v. Jennifer Realty Co., 98 N.Y.2d 144 (2002), and 305 E. 24th Owners Corp. v. Parman Co., 69 N.Y.2d 991 (1987), which reversed the decision of the Appellate Division, 122 A.D.2d 684 (1986), on so much of the dissenting in part opinion that would have granted the plaintiff tenant’s association’s motion for

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summary judgment on this complaint. The Jennifer Realty opinion by Judge Rosenblatt held that the sponsor breached its duty to deal fairly and in good faith with its tenants by failing to reveal that the sponsor would make a sizeable profit by retaining a majority of the shares offered under the offering plan and leasing apartments at market rates, free of the strictures of rent regulation. In the Parman Co. case, the issue was what was included in the working capital fund provided for in the offering plan. That part of Justice Murphy’s dissent adopted by the Court of Appeals reasoned that the offeror must be held to the fair intendment of his offering plan as it would be reasonably understood by an average purchaser, that so judged the plan was not ambiguous, but if it were the plan would as a matter of law be construed against the offeror, the more particularly so since under GBL Art. 23-A the offeror was under statutory obligation to make its offer detailed, complete, current, and accurate. A contract for the purchase of a cooperative apartment is, as the Court held in Friedman v. Sommer, 63 N.Y.2d 788 (1984), and Weiss v. Karch, 62 N.Y.2d 849 (1984), in reality a sale of securities in the cooperative corporation governed by the Uniform Commercial Code. An offer that grants the tenant the nonexclusive right to purchase his or her apartment at the price stated in the offer for a period of thirty days is revocable, notwithstanding UCC 2–205, provides assurance that an offer will not be revoked for lack of consideration during the time stated, when the offer contains no such assurance. Friedman v. Sommer, supra at 790. Matter of Forest Vistas Co. v. Abrams, 64 N.Y.2d 928 (1985), affirming for the reasons stated by the Appellate Division, 103 A.D.2d 230 (1984), noted that the purpose of the GBL § 352 eeee(2)(e) provision that the Attorney General not accept an eviction plan for filing unless he finds that an excessive number of vacancies did not exist on the date the plan was submitted to him was to prevent warehousing for the purpose of reducing the number of subscription agreements by tenants in occupancy necessary to declare the plan effective when the tenant moved from one apartment to another within the five-month statutory period. Matter of Harbor Tower v. Abrams, 56 N.Y.2d 740 (1982), affirming for the reasons stated by the Appellate Division, 85 A.D.2d 558 (1981), held that GBL § 352 eeee(3)(a) required that the Attorney General refuse to issue a letter re filing and that it was the sponsor’s burden to show an absence of excessive vacancies. There have been a number of cases in which the Court has considered fraud on the part of the sponsor. Three were decided in 1973. Matter of Greenthal & Co. v. Lefkowitz, 32 N.Y.2d 457, held that the Attorney General was not required to investigate all representations in an offering, that where actual fraud

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is alleged tenants are entitled to bring a plenary action. Richards v. Kaskel, 32 N.Y.2d 524 in an opinion by Chief Judge Stanley Fuld held that tenants protected by rent control laws who would be subject to eviction if the plan succeeded had the right to contest whether the co-op plan was a device to circumvent those laws and were entitled to renewal of their leases if they established that purchase agreements were executed as a result of “discriminatory inducements, improper pressures or false representations,” see also Tuvim v. 10 E. 30 Corp., 32 N.Y.2d 541. People v. Lexington Sixty-First Associates, 38 N.Y.2d 588 (1976), enjoined a sponsor found guilty of fraudulent conduct from sponsoring another cooperative or condominium for a period of five years. The more comprehensive statement of what constitutes fraud appears in Judge Simon’s decision in Matter of Bader Buildings v. Abrams, 70 N.Y.2d 45, 56 (1987): Defendants “did not solicit any prospective tenants to rent with the intent to influence the voting, or enter into any agreement whereby defendant secured promises to subscribe in return for permitting the prime tenant to sublet, or enter into any agreement whereby the leasing and ultimate purchase of the apartment were tied to a resale profit-sharing arrangement intended to encourage subscriptions. Nor did defendant employ a ‘strawman’ acting as the landlord’s agent, to help the landlord control the voting on the plan.”

See also State of New York v. Rachmani Corporation, 71 N.Y.2d 718 (1988), holding that although an omission as well as concealment or suppression of information may be actionable as a fraudulent practice, if the matter omitted has previously been disclosed a reasonable investor is presumed to have knowledge of the information. However, Biondi v. Beekman Hill House Apartment Corporation, 94 N.Y.2d 659 (2000), held that a co-op cannot be required to indemnify for punitive damages directors who acted in bad faith (by excluding a tenant on the basis of race). Finally to be noted are the Court’s decisions relating to the lien for common charges provided for with respect to cooperative and condominium apartments in Real Property Law § § 339-aa and 339-z. In Chemical Bank v. Levine, 91 N.Y.2d 738 (1998), the Court held that the provision of that statute that the lien would expire six years from the date it was filed related to the duration of the lien and therefore a third party’s foreclosure of a mortgage on the apartment did not toll the running of the six year period, and the memorandum in Bankers Trust Company v. Board of Managers of the Park 900 Condominium, 81 N.Y.2d 1033 (1993), ruled that under RPL § 339-z unpaid common charges are subor-

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dinate to a first mortgage on the apartment, except to the extent that the proceeds of sale of the apartment exceed the amount due for unpaid common charges. However, Chief Judge Kaye’s opinion in ALH Properties Ten, Inc. v. 306–100th Street Owners Corp., 86 N.Y.2d 643 (1995), applied the provision of UCC 8–103 that a lien in favor of a security’s issuer is valid against a purchaser only if the right of the issuer to the lien is noted conspicuously thereon and held that even if co-op certificates could be considered a security under that provision, the notice on the reverse side of the certificate simply referring to a separate document did not meet the requirements of the statute.

II. Inverse Condemnation Inverse condemnation has been defined as “[a]n action brought by a property owner for compensation from a governmental entity that has taken the owner’s property without bringing formal condemnation proceedings.” Black’s Law Dictionary, Seventh Edition, 287. The principle has been reviewed and defined in a number of Court of Appeals cases. Forster v. Scott, 136 N.Y. 577 (1893), involved a statute which provided that no compensation could be allowed an owner of land taken for a street for any building erected or placed thereon after the filing of a map of the street. The Court held that “[w]henever a law deprives an owner of the beneficial use and free enjoyment of his property, or imposes restraints upon such use and enjoyment, that materially affect its value, without legal process or compensation, it deprives him of his property within the meaning of the Constitution. . . . It is not necessary in order to render a statute obnoxious to the restraints of the Constitution, that it must in terms or in effect authorize an actual physical taking of the property or the thing itself, so long as it affects its free use and enjoyment, or the power of disposition at the will of the owner.” Id., at 584. Matter of Keystone Associates v. Moerdler, 19 N.Y.2d 79 (1966), was a 4–3 decision with separate dissents by Chief Judge Desmond and Judge Burke. The majority opinion by Judge Kenneth Keating held unconstitutional the statute that had created the Old Met Opera House Corporation and gave it power to condemn the building which the Metropolitan Opera Association had vacated and use it for operas and other recreational and cultural needs of New York citizens, and that authorized refusal of a demolition permit for a period of 180 days upon request of the trustees of the corporation and their deposit of $200,000. Judge Keating noted that the 180-day delay had been authorized in order to permit the corporation to raise funds to pay for the appropriation, but said even if it were not certain to exceed the deposit, but only possible, the statute was

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unconstitutional; for compensation must be sure and certain and the property owner cannot be relegated to the doubtful responsibility or solvency of a private corporation or an individual. Modjeska Sign Studios, Inc. v. Berle, 43 N.Y.2d 468 (1977), and Suffolk Outdoor Advertising Co., Inc. v. Hulse, 43 N.Y.2d 483 (1977), considered legislation relating to advertising signs. Modjeska dealt with Environmental Conservation Law § 9–0305 which required that signs in state parks for which a permit has not been obtained be removed without compensation after the expiration of a six and one half year amortization period and Suffolk Outdoor Advertising held that aesthetics alone constituted a valid basis for the Town’s ordinance prohibiting nonaccessory billboards subject to a three-year amortization period but permitting maintenance of accessory or on-premises billboards. Both remanded the case for determination whether the amortization period was unreasonable as applied, i.e., whether it gave the owner a sufficient period of time to recoup his investment and avoid substantial financial loss. Spears v. Berle, 48 N.Y.2d 254 (1979), held that a landowner who challenged regulations relating to freshwater wetlands must establish that no permissible use would result in the land producing a reasonable return, i.e., dollars and cents evidence as to the return to be realized from each permitted use. The Court concluded that only when the evidence showed that the economic value, or all but a bare residue of the value of the land, has been destroyed has a taking been established. The taking issue was again considered by the Court in Loretto v. Teleprompter Manhattan CATV Corp., 53 N.Y.2d 124 (1981), reversed by the United States Supreme Court, 458 U.S. 419 (1982), on remand 58 N.Y.2d 143 (1983). Loretto involved a statute authorizing cable television companies to install facilities on a property owner’s roof for use of his tenants or the tenants of other buildings, the company to pay such amount as the Commission on Cable Television determined to be reasonable as applied. The Court of Appeals held that the degree of loss remains a factor that will invalidate a regulation when all but a bare residue of value is lost as a result of the regulation, but not when the regulation does not unreasonably impair the value or use of the property and when there is reasonable return on the property available to its owner, even though without the regulation the value of the property would have been many times greater. It concluded that against the aggregate of plaintiff’s property rights the economic impact of the statute was insufficient to invalidate it, that the statute, therefore, was a valid police power exercise and not a taking. The United States Supreme Court reversed, holding that permanent physical occupation of plaintiff’s property by television cable was a taking for which

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compensation was due, that taking does not depend on the size of the area taken, and remanded for determination of the compensation due. On remand the Court of Appeals held that compensation could be determined by a commission rather than a court, that advance payment or provision of security for payment of compensation was not an absolute, and that Special Term on remand would have power to require advance payment or security. De St. Aubin v. Flacke, 68 N.Y.2d 66 (1986), and Rent Stabilization Association of New York v. Higgins, 83 N.Y.2d 156 (1993), cert. denied 512 U.S. 823 (1994), held that a landowner who claims that a regulation effects a taking bears the heavy responsibility of overcoming the presumption of constitutionality and proving every element of his claim beyond a reasonable doubt. Finally to be noted is Seawall Associates v. City of New York, 74 N.Y.2d 92 (1989), cert. denied 493 U.S. 976 (1991), which held unconstitutional the City’s local law that prohibited devaluation, alteration, or conversion of single room occupancy (SRO) properties and required that all such properties be restored to rentable condition and then be leased at controlled rents for an indefinite period. In a 5–2 decision by Judge Hancock, from which Judge Bellacosa dissented in an opinion in which Chief Judge Wachtler concurred, the Court held the law facially invalid as a physical and regulatory taking in violation of the Federal and State constitutions—the nature of the intrusion, rather than the purpose of the regulation, being determinative. It constituted a taking because it prevented alteration or devaluation of a building, required restoration of any uninhabitable unit and prohibited commercial development.

III. Zoning2 The Federal and State Constitutions play an important role in the decisions of the Court with respect to zoning. Matter of Town of Islip v. Caviglia, 73 N.Y.2d 544 (1989), is a recent example. That case dealt with an ordinance regulating adult entertainment by requiring that a special permit be obtained before an adult bookstore could be established and providing an amortization period of one and a quarter to five and a quarter years for existing adult bookstores. The Court held the ordinance, the purpose of which it found to be to correct the effect of such use on community development and its effect on expression, to be only incidental and held the amortization period to be presumptively valid unless the owner could demonstrate the loss suffered to be so substantial as to outweigh the public benefit of exercising the police power. It noted that the bookstore owner had introduced no evidence of economic loss while the town

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had shown damage to the neighborhood by such adult use and the substantial investment it had made to overcome the harm caused by such uses.3 Asian Americans for Equality v. Koch, 72 N.Y.2d 121 (1985), held: (1) the function of land regulation is to implement a plan for the future development of the community, and its exercise is constitutional only if the restrictions are necessary to protect the public health, safety or welfare; (2) zoning ordinances and amendments enjoy a strong presumption of constitutionality and the burden rests on the party attacking them to overcome the presumption beyond a reasonable doubt;4 (3) if the ordinance is adopted for a legitimate governmental purpose and there is a reasonable relationship between the end sought to be achieved and the means used it will be upheld; and (4) constitutional principles are not necessarily offended if one or several uses are not included in a particular area or district as long as adequate provision is made to accommodate the needs of the community and the region generally.5 Illustrative of the effect of the presumption of constitutionality is Suffolk Housing Services v. Town of Brookhaven, 70 N.Y.2d 122 (1987), in which the Court affirmed lower court decisions so holding, noting that it had carefully scrutinized the invocation of seemingly legitimate police power purposes by municipalities to discern whether they sought to conceal exclusionary zoning practices, as to which it held there had been a failure of proof. McMinn v. Town of Oyster Bay, 66 N.Y.2d 544 (1985), ruled that a zoning ordinance violates due process if it was not enacted in furtherance of a legitimate governmental purpose and there was not also a reasonable relationship between the end sought to be achieved and the means used to achieve that end. McMinn held that an ordinance which limited single-family occupancy to related persons or those who are over a specified age (62) failed the reasonable relationship test. Planning Board and municipal agency decisions must also comply with statutory and decisional law requirements with respect to variances and special exceptions, and such decisions will be set aside if found to be arbitrary and capricious. As the Court held in Matter of Tall Trees Construction Corp. v. Zoning Board of the Town of Hempstead, 97 N.Y.2d 86 (2001), a decision by Judge Wesley, the Board or Agency exercises a quasi-judicial function and “a decision by an administrative agency which neither adheres to its own prior precedent nor indicates its reasons for reaching a different result on essentially the same facts is arbitrary and capricious,” id., at 93. If a quorum of the Board is present and participates in a vote on an application, a vote of less than a majority of the Board is deemed a denial, id., at 89, if a quorum is present and votes a concurring vote of the majority is not required for the vote to constitute a denial of the

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application, id., at 91. General Construction Law requires only participation of a majority, but Town Law § 267(a)(4) requires a majority vote to grant a variance application and if no majority vote to grant occurs, the application is denied. That the Board made no factual findings does not foreclose judicial review, the Court will examine the entire record, including the transcript of the meeting at which the vote was taken together with affidavits submitted in the Article 78 proceeding to determine whether denial was arbitrary and capricious. Id., at 93. Matter of Khan v. Zoning Board of Appeals of the Village of Irvington, 87 N.Y.2d 344, 350 (1996), is of particular interest in that, in an opinion by Judge Smith, it refused to recognize the single and separate ownership doctrine applied by lower courts. The opinion reasoned there was no need for a common law rule to protect landowners who possess parcels in single and separate ownership, and a municipality may in the reasonable exercise of its police powers change its zoning to control land use and development, and if it does so it may, but need not, exempt existing owners of substandard lots from more onerous effects of the changes by exempting property held in single and separate ownership, among other methods. To obtain a use variance an applicant must make a showing of unnecessary hardship, as to an area variance the Zoning Board must engage in a balancing test, considering the factors outlined in Village Law § 7–712-b(3)(b) and weighing the benefit to the applicant against the detriment to the health, safety, and welfare of the neighborhood or community, but need no longer establish practical difficulties in the use of his land. Matter of Bayswater Realty and Capital Corp. v. Planning Board of the Town of Lewisboro, 76 N.Y.2d 460 (1990), dealt with the zoning provisions of Town Law § § 277(1) and 281(d). The Court held in unanimous opinion written by Judge Stewart Hancock that in approving a cluster zone plat under § 281 the Planning Board may exercise powers granted in other sections of Town Law Article 16, including section 277, that the Board could require payment of a recreation fee notwithstanding that section 281 did not expressly authorize it. Section 277’s park and recreational provisions were designed to meet those of the town or community at large, not the isolated needs within the subdivision itself, and the Planning Board is not prohibited from exercising its powers under both sections with respect to the same subdivision, and if it finds present and anticipated needs for such facilities based on projected population growth to which the particular subdivision development will contribute, it must then decide whether the developer must provide space within the plat or pay money as a substitute. Id., at 471. Matter of Campagna v. Shaffer, 73 N.Y.2d 237 (1989), while it dealt not with zoning but with real estate brokers, stated the rules concerning agencies created

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by the Legislature, which also apply to zoning agencies: that they act pursuant to specific grants of authority and may adopt only rules and regulations in harmony with their statutory responsibilities. Former Section 771 of the Village Law, now § 7–704 of that Law, requires that regulations be “made in accordance with a comprehensive plan.” In Udell v. Haas, 21 N.Y.2d 463, 471 (1968), the Court in an opinion by Judge Kenneth Keating held that the local authority must consider the needs of the community as a whole, not whether the ordinance is a comprehensive plan but whether it is in accordance with a comprehensive plan. This requires examination of all relevant evidence not only as to consistency and rationality but also that the zoning not conflict with fundamental land use policies and development plans of the community. See also Asian Americans for Equality v. Koch, supra, at 131 and Town of North Hempstead v. Village of North Hills, 38 N.Y.2d 334, 343–344 (1975). As the Court noted in Berenson v. Town of New Castle, 38 N.Y.2d 102, 109, 111 (1975), while the Court’s concern is whether a town’s zoning ordinance provides for a balanced and integrated community, which is essentially a legislative act, it must assess the reasonableness of what the town has done, notwithstanding the anomaly that the Court in doing so is performing the tasks of a regional planner. But as the Court has stated in Ilasi v. City of Long Beach, 38 N.Y.2d 383, 388 (1976), quoting from Matter of Town of Bedford v. Village of Mount Kisco, 33 N.Y.2d 178, 188 (1973), “[t]he obligation is support of comprehensive planning, not slavish servitude to any particular comprehensive plan. Indeed sound planning inherently calls for recognition of the dynamics of change.” However, Matter of Dexter v. Town Board of the Town of Gates, 36 N.Y.2d 102, 105 (1975), made clear that “zoning deals basically with land use and not with the person who owns or occupies it. While it is proper for a zoning board to impose appropriate conditions and safeguards in conjunction with a change of zone or a grant of a variance or special permit, such conditions and safeguards must be reasonable and relate only to the real estate involved without regard to the person who owns or occupies it.”6 The differing tests now applied in reviewing Board decisions relating to use variances and area variances are stated in Matter of Doyle v. Amster, 79 N.Y.2d 592 (1992), Matter of Sasso v. Osgood, 86 N.Y.2d 374 (1995), and Matter of Khan v. Zoning Board of Appeals of the Village of Irvington, 87 N.Y.2d 344 (1996). As the Sasso opinion notes, prior to the July 1, 1992 amendment of Town Law § 267 it authorized a Town Board7 to grant variances on a showing of “practical difficulties or unnecessary hardship in carrying out the strict letter of (local) ordinances.” Id., at 380. Prior thereto it was unclear whether a showing of significant economic injury was part of the “particular difficulties” test.8 Judge Simons’ opinion quoting from the Bill Jacket of the amending statute

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concluded that an applicant need no longer show “practical difficulties,” the revised statute requiring only that the Board engage in a balancing test, weighing the benefits to the applicant against the detriment to health, safety, and welfare of the neighborhood or community if the area variance is granted. In Kahn, the decision stated that the property owner’s burden turned on whether a use or an area variance is at issue. For a use variance the applicant must make a showing of unnecessary hardship. But in seeking an area variance, the applicant need no longer establish practical difficulty, the Board being required to engage in a balancing test, considering the factors outlined in the statute and weighing the benefit to the applicant against the detriment to the health, safety, and welfare of the neighborhood or community. The Doyle opinion by Judge Bellacosa had earlier made clear that “significant economic injury” may be established by proof that the use permitted would not yield a reasonable return if the applicable restrictions were enforced, but noted that that calculation focused on the value of the property as presently zoned, not the value the property would have if the variance were granted, and expressly stated that Matter of Fulling v. Palumbo, 21 N.Y.2d 30 (1967), which had used the latter value, was no longer to be followed. In three recent decisions the Court has considered the standard for review of the decisions of a Zoning Board of Appeals: Matter of Retail Property Trust v. Board of Zoning Appeals of Town of Hempstead, 98 N.Y.2d 190 (2002), Matter of Ifrah v. Utschig, 98 N.Y.2d 304 (2002), and Matter of P.M.S. Assets, Ltd. v. Zoning Board of Appeals of the Village of Pleasantville, 98 N.Y.2d 683 (2002). The Retail Property Trust decision considered the denial by the Board of a special exception to expand the structure and parking facilities at the Roosevelt Field Shopping Mall in order to accommodate a Saks Fifth Avenue department store. In an opinion by Judge Ciparick the Court distinguished between a variance and a special exception, the burden of proof as to the latter being only to show compliance with legislatively imposed conditions, while as to a variance the burden is to show an undue hardship in complying with the ordinance. The Zoning Board of Appeals, it held, has discretion to deny a special exception for failure to comply with a legislative condition provided its determination is supported by substantial evidence; but denial cannot be based solely on community objections; and where substantial evidence exists, the reviewing court may not substitute its judgment for that of the Board even if such a contrary determination is itself supported by the record. Denial of Retail Property Trust’s application by the Board was both rational and supported by substantial evidence. Matter of P.M.S. Assets Ltd. reached a similar conclusion with respect to a prior nonconforming use.

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Matter of Ifrak dealt with an area variance. In an opinion by Judge Levine the Court held that in determining whether to grant an area variance, a zoning board of appeals is required by Town Law § 267-b(3) to engage in a balancing test, weighing the benefit to the applicant against the detriment to the health, safety, and welfare of the neighborhood or community if the variance is granted and considering whether an undesirable change in the character of the neighborhood or detriment to nearby properties will be created, whether there is another feasible method to achieve the benefit sought, whether the requested variance is substantial, whether it would have an adverse effect on the physical or environmental conditions in the neighborhood or district, and whether the alleged difficulty was self-created. It held that local zoning boards have broad discretion in considering a variance application, and judicial review is limited to determining whether the action by the board was illegal, arbitrary, or an abuse of discretion, and stated that the board’s decision may not be based on generalized community objections. Rather, based on evidence before the board it could rationally conclude that the proposed subdivision would have substantial adverse impact on the neighborhood that outweighed the benefit sought by the applicant and that denial of the requested variance was not arbitrary or capricious. The Memorandum in Matter of Headriver v. Town Board of Riverhead, 2 N.Y.3d 766 (2004), is of particular importance because the Legislature had amended the statute (General Municipal Law § 239-m(5) to require that when the planning council recommends modification or disapproval of a proposed action, the local zoning board not act to the contrary except by a vote of a majority plus one of all members of the local zoning board (emphasis supplied). As the foregoing review of the Court’s zoning decisions shows, the field has been a developing one in which the Court has at times come close to exceeding the limitation on its functions, but for the most part has been clarified either by statutory amendment or by the Court overruling its own prior decisions.

IV. Zoning Variances In Matter of Retail Property Trust v. Board of Zoning Appeals of Town of Hempstead, 98 N.Y.2d 190 (2002), the Court distinguished a variance from a special exception: a variance gives permission to an owner to use property in a manner inconsistent with a local zoning ordinance; a special exception gives permission to use property in a way that is consistent with the zoning ordinance, although not necessarily allowed as of right. Because inclusion of the permitted use in the ordinance is tantamount to a legislative finding that the permitted use is in har-

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mony with the general zoning plan and will not adversely affect the neighborhood, the burden of proof on an owner seeking a special exception is lighter than that on an owner seeking a variance. The former is required only to show compliance with any legislatively imposed condition on an otherwise permitted use, while the latter must show an undue hardship in complying with the ordinance. Failure to comply with any special exception condition is sufficient ground for denial of the exception. Matter of Ifrah v. Utschig, 98 N.Y.2d 304 (2002), decided the same day as Retail Property Trust, held that local zoning boards have broad discretion, with judicial review being limited to determining whether the action taken was arbitrary, illegal, or an abuse of discretion, and that the Board’s action must be sustained if it has a rational basis and is supported by substantial evidence. However, Ifrah made clear that expert evidence is not required in support of the Board’s decision, that the Board may not base its decision on generalized community objections, and concluded that record evidence re traffic flow, safety, and parking supported the Board’s determination that the proposed subdivision would have substantial adverse effect on the neighborhood, and that the variance sought, a 60 percent change, was substantial and was self-created since the applicant was aware of the requirement when he bought the property. The Court concluded that balancing all of the factors the Board could rationally conclude that the detriment outweighed the benefit sought by petitioner, and that its denial of the variance was not arbitrary or capricious. Distinction has also been drawn by the Court between a Zoning Board and the Town Board in Matter of Commco, Inc. v. Amelkin, 62 N.Y.2d 260 (1984), a 4–3 decision in which the Court held that a Town Board is only a necessary party if the constitutionality or validity of its zoning ordinance is questioned but that the ability to institute, defend, or appear in any action in the name of the town does not mean that the Town Board may appear in the name of the Zoning Board. Matter of Sasso v. Osgood, 86 N.Y.2d 374 (1995), involved Town Law former section 267, and its later version, § 267-b(3), which authorized the grant of a variance where “there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of [local] ordinances, but did not distinguish between use and area variances or assign specific tests to them. Court decisions generally applied the unnecessary hardship test to area variance cases but required the demonstration of “practical difficulties,” 86 N.Y.2d, at 380, in area variance cases and noted that there was no precise definition of the term. The basic inquiry was whether strict application of the ordinance in a given case would serve a valid public purpose which outweighs the injury to the property owner. Osgood held that notwithstanding the absence of any explicit reference to “practical difficulties” in Town Law § 267-b(3), the subdivision is ambiguous

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because it requires the Zoning Board to consider whether “the alleged difficulty was self-created” (emphasis added) and after examining the Bill Jacket of the amending act concluded that the section required the Zoning Board to engage in a balancing test. That is, it would need to weigh “the benefit to the applicant” against “the detriment to the health, safety and welfare of the neighborhood or community” if the area variance were granted, while an applicant would not need to show “practical difficulties” as that test was formerly applied. Id., at 384. Since the parcel was of substandard lot size, the hardship was self-created; but the Court noted the statute expressly stated that this did not necessarily preclude granting the area variance and, therefore, the Board had not acted arbitrarily in granting a variance notwithstanding the applicant’s self-created difficulty; its determination was not irrational, arbitrary, or capricious. As noted above expert evidence is not required to support the Zoning Board’s determination, but the Board’s decision may not be based on generalized community objections. Matter of Twin City Recycling Corp. v. Yevoli, 90 N.Y.2d 1000 (1997). With respect to nonconforming uses, however, although they are tolerated, the overriding policy of zoning is aimed at their eventual elimination; but the Board’s determination regarding continuation of a preexisting nonconforming use must be sustained if it is rational and supported by substantial evidence, even if the reviewing court would have reached a different result. Matter of P.M.S. Assets, Ltd. v. Zoning Board of Appeals of Village of Pleasantville, 98 N.Y.2d 683 (2002). In that case the Court held that record evidence supported the Board’s conclusion that current use of a warehouse was not qualitatively similar to the previous use and, therefore, impermissibly exceeded the scope of the prior conforming use. Matter of Jennings v. New York State Office of Mental Health, 90 N.Y.2d 227, 239 (1997), defined substantial evidence as “such relevant proof as a reasonable mind may accept as adequate to support a conclusion of ultimate fact,” and quoting from Matter of Consolidated Edison Co. v. New York State Division of Human Rights, 77 N.Y.2d 411, 417 (1991), held that “[a]lthough a contrary decision may be reasonable and also sustainable, a reviewing court may not substitute its judgment for that of the Commissioner if his is supported by substantial evidence.” Matter of Doyle v. Amster, 79 N.Y.2d 592 (1992), ruled that significant economic injury is established by proof that the use permitted by the zoning ordinance will not yield a reasonable return if the applicable restrictions are enforced, but held that it is the value of the property as presently zoned, not the value it would have if the variance were granted, that is to be considered. However, Vernon Park Realty, Inc. v. City of Mount Vernon, 399 N.Y. 493 (1954),

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made clear that a property owner’s right to attack the validity of a zoning ordinance is not waived by his prior application for a variance. Matter of Otto v. Steinhilber, 282 N.Y. 71 (1939), rearg. den. 282 N.Y. 684 (1940), listed the factors to be considered by the Zoning Board before it may grant a variance on the ground of unnecessary hardship. The record must show that (1) the land cannot yield a reasonable return if used only for a purpose allowed in the zone, (2) the owner’s plight is due to unique circumstances and not to general conditions in the neighborhood that may reflect the unreasonableness of the zoning ordinance itself, and (3) use authorized by the variance will not alter the essential character of the locality. And in Arverne Bay Construction Co. v. Thatcher, 278 N.Y. 222 (1938), and Dowsey v. Village of Kensington, 257 N.Y. 221 (1931), the Court held that an ordinance that so restricts use of property that it cannot be used for any reasonable purpose goes beyond regulation and must be recognized as a taking, and that the property owner cannot be required to ask as a special privilege for variation of the restriction. Other decisions of the Court that require review are Matter of Cohen v. Board of Appeals of the Village of Saddle Rock, 100 N.Y.2d 395 (2003), Matter of Soho Alliance v. New York City Board of Standards and Appeals, 95 N.Y.2d 437 (2000), and Matter of Bella Vista Apartment Co. v. Bennett, 89 N.Y.2d 465 (1997). The Cohen decision in an opinion by Judge Ciparick, from which Judge Rosenblatt dissented, stated that “[a]lthough local laws that are inconsistent with State laws are generally invalid, the Municipal Home Rule Law allows incorporated villages to amend or supersede provisions of the Village Law as they relate to zoning matters. . . . The supersession power, however, is subject to additional limitation. A village cannot supersede a state law where “a local law is otherwise preempted by State Law.” . . . The Legislature may expressly state its intent to preempt, or that intent may be implied from the nature of the subject matter being regulated as well as the scope and purpose of the State legislative scheme, including the need for statewide uniformity in a particular area. . . . The legislative history indicates that “the statute (L 1991, ch 692) was enacted to clarify existing law by setting forth readily understandable guidelines for both Zoning Boards of Appeal and applicants for variances and to eliminate the confusion that then surrounded applications for area variances.” . . . Localities remain free to enact zoning regulations in the best interests of the health, safety and character of their communities. A uniform standard for area variance review, however, has clear advantages. Property owners and zoning practitioners around the State will benefit from a better understanding of the

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standards for a variance, notwithstanding the unique zoning requirements of each individual locality (see Sponsor’s Mem., Bill Jacket, L 1991, ch 692). . . . Thus, in this critical area of overlap between state and local authority, traditional respect for the privacy of State interest requires that the will of the Legislature prevail over the desires of each individual locality.” 100 N.Y.2d 395, at 399–400

Judge Rosenblatt’s dissent argued that [t]he effect of Municipal Home Rule Law section 10 is—or rather, should be— an easily applied rule: Village ordinances superseding the Village Law are valid absent express language in the Village Law precluding supersession. That clear rule should not be judicially abolished or replaced with an amorphous “implied preemption” test, under which village ordinances can be subjected to endless litigation disputing whether a particular regulatory scheme in the Village Law is comprehensive enough to imply State preemption (emphasis in original). . . . Villages and their counsel can no longer be confident that an attempted supersession—guaranteed by the Municipal Home Rule Law—will be upheld. . . . To the contrary, implied preemption—in the face of an express preemption statute—unsettles the law of Village supersession and creates confusion where the Legislature was clear. . . . The Village Law revision, lacking language expressly prohibiting supersession, creates only a default rule: Localities can have the multi-factor text of section 7–712 if they desire, but if they prefer to replace the Village Law test with the abstract “practical difficulties” standard, the Municipal Home Rule Law gives them that option. 100 N.Y.2d 395, at 403–5

The Soho opinion held that review of the grant of a variance by the Board of Standards and Appeals is limited by the well-established principle that a municipal zoning board has wide discretion, and its determination will be sustained if it has a rational basis and is supported by substantial evidence. It held that the Board was entitled to rely on a study by the City Planning Commission and upon testimony by the owner’s expert, which provided dollars and cents evidence that the unique physical configuration of the property would preclude a reasonable rate of return from conforming uses. There is no inflexible rule that requires as a matter of law that economic analysis supporting a use variance be restricted exclusively to properties within a particular zoning district, and it was not irrational as a matter of law for the Board to consider comparables from outside the district.

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The Bella Vista opinion considered § 72–21 of the New York City Zoning Resolution, which required the Board to find before it may grant a variance (1) the unique physical condition of the property created practical difficulties or unnecessary hardship if forced to comply strictly with the Zoning Resolution; (2) that unique conditions of the property preclude any reasonable possibility of a reasonable return and the variance is, therefore, necessary to enable the owner to realize a reasonable return from the lot; (3) that the variance will not alter the essential character of the neighborhood or substantially impair the appropriate use or development of adjacent property and will not be detrimental to the public welfare; (4) that the owner did not create the difficulties or hardship leading to necessity for the variance; and (5) that the variance be the minimum variance necessary to afford relief. Bella Vista sought to erect a fourteen-floor apartment house on lot 186 but that lot was short of the required floor area ratio. It therefore purchased from the owner of lot 185 the floor area ratio necessary to eliminate the lot 186 deficiency. The City Building Department rejected its application as did the Board of Standards and Appeals. The courts below granted Bella Vista’s Article 78 petition and directed issuance of the building permit. The Court, in an opinion by Judge Joseph Bellacosa, reversed, holding that Bella Vista’s acquisition and piggy-backing of Lot 185’s floor area ratio to satisfy its Lot 186 bulk-bearing deficiency might undermine the basis for the use variance grant and offend proper land use regulation and application. The fatal defect of this merger theory is that once the use variance was granted, the owner of Lot 185 could only use the property in a manner authorized by the variance or revert completely back to its as-of-right use under [Matter of Clearview Gardens Boat Club v. Foley, 19 A.D.2d 905, affirmed without opinion 14 N.Y.2d 809 (1964)]. . . . The BSA must retain the power of review over these kinds of proposals to preserve coherent land use determinations and adherence to the zoning plan itself. 89 N.Y.2d, at 470–71.

V. Mortgages Since the Great Depression that began in 1929 was still going on during the early 1930s, it is not surprising that much of the Court’s work during the period covered by this book dealt with mortgage related law or that the Legislature enacted Civil Practice Act § § 1083 and 1083—the so-called moratorium law barring actions to recover principal or foreclose on mortgages.9 The constitutionality of

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that legislation has been upheld by the Court’s decisions in White v. Wieldant, 286 N.Y. 609 (1941), affg. no op. 259 A.D. 676 (1940), decision amended 260 A.D. 871 (1940), and Federal Home Loan Mortgage Corporation v. New York State Division of Housing and Community Renewal, 87 N.Y.2d 325 (1995). The White decision held that the statute did not proscribe action for principal, interest, and taxes as to which the mortgagor had defaulted, such a claim being separable from the mortgage debt, but that the mortgagee could not maintain an action to recover principal thereafter due or to foreclose the mortgage, and Federal Home Loan held that reversion of units of a cooperative to regulation under the Rent Stabilization Law did not effect an unconstitutional taking. In W. L. Development Corp. v. Trifort Realty, Inc., 44 N.Y.2d 489, 498 (1978), in an opinion by Judge Domenick Gabrielli, the Court held that “[a] mortgage is the conveyance of an interest in property intended by the parties at the time of its making to be security for the payment of money or the doing of some prescribed act,” and in Locator-Map, Inc. v. Adams, 42 N.Y.2d 1022 (1977), affg. on the Appellate Division memorandum in Resseguie v. Adams, 55 A.D.2d 698, 699 (1976), which stated, based upon the Court’s 1873 decision in Carr v. Carr, 52 N.Y. 251, that it is “sufficient to create a mortgage if the debtor has an interest, legal or equitable, on the premises and that the grantee of the legal title has acquired such title by the act and assent of the debtor and as security for his debt.” A mortgage may be conditioned upon acts of the mortgagor other than the repayment of money. Thus when the mortgage contains a clause requiring the mortgagor to complete the sewer and driveway of the mortgaged premises, tender of payment of the amount due under the mortgage does not entitle the mortgagor to satisfaction of the mortgage when the sewer and driveway have not been completed. Matter of Jeffrey Towers v. Straus, 26 N.Y.2d 812(1970), affg. no op 31 A.D.2d 319 (1969). In Geary v. Dade Development Corp., 29 N.Y.2d 457 (1972), however, the Court considered the breach by the mortgagee of a condition of the mortgage requiring that the mortgagor could on his sale of any subdivision lot receive a release of the lot from the mortgage, upon payment of $2,000 per lot. The mortgagee had refused the mortgagor’s tender of $42,000 for twentyone lots and demanded a higher sum. The Court held that its refusal was a breach of the agreement but did not wipe out the mortgage lien and that notwithstanding its breach of the agreement the mortgagee was entitled to recover the full amount due under the mortgage with interest and taxes until paid. Some mortgages contain what is referred to as a dragnet clause—which secures not only the bond referred to in the mortgage but in addition any and all further loans from the mortgagee to the mortgagor, subject only that the maxi-

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mum amount secured at any time shall be the original principal amount. Thereafter the mortgagor obtained a further loan of $16,000 from the mortgagee. The Court held in an opinion by Judge Meyer that foreclosure could not be had for more than $2,500. And in Roslyn Savings Bank v. Merz, 11 N.Y.2d 832 (1962), the Court affirmed no opinion the Appellate Division’s decision, 13 A.D.2d 550 (1961), which had held that a vendee’s lien that the vendee agreed was subordinate to a bank’s mortgage that provision gave primacy to the mortgage over the vendee’s lien only to the extent that advances made under the mortgage were not voluntary. When a grantee agrees to pay assessments against the property conveyed to it and thereafter certain parcels of the land are released from the mortgage, the Appellate Division10 upheld in Kennilwood Owners Assn v. Kennilwood, Inc., 262 A.D. 50 (1941), affg. no op. the Supreme Court’s opinion 28 N.Y.S.2d 239 (1939), that releases which were given to withdraw the lien of the mortgage from certain parcels of the mortgaged land were not intended to and did not subordinate the mortgage to the grantees’ agreement to pay assessments. With respect to interest rate, the Court ruled in Marine Management, Inc. v. Seco Management, Inc., 80 N.Y.2d 886 (1992), affg. for the reasons stated in 176 A.D.2d 252 (1991), the Appellate Division’s holding that a mortgage which provided that in the event of default the mortgagor would pay interest at the maximum rate permitted by law “from the date of default until the actual receipt of payment by the holder of the mortgage the contract rate applied only until entry of judgment but thereafter was limited to the rate on the judgment fixed by CPLR 5004, i.e. nine percent.” As to a mortgage reciting that it was given as security for the erection of a dwelling and would be void if a dwelling at a cost of not less than $7,000 was not erected within ten years, but that if the mortgagor failed to do so the mortgage shall remain in full force and effect and there shall be due thereunder $1,000 without interest, the Court ruled in Hasbrouck v. Van Winkle, 289 N.Y. 595 (1942), affg. no op. 261 A.D. 679 (1941), that the $1,000 thus due was not a penalty and therefore was enforceable. Schuck v. Kings Realty Company, 285 N.Y. 750 (1941), affg. no op. 260 A.D. 1021 (1940), held that a mortgagee may require by a clause in the mortgage or in an independent instrument, that the mortgagor remain personably liable even after the mortgaged premises are conveyed, and that although such a provision will be strictly construed it is enforceable. But the Court held in Dime Savings Bank of New York v. Montague Street Realty Associates, 90 N.Y.2d 539 (1997), that extension of the term of a lease by the mortgagor may, by reason of

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the difference in terms, constitute a new agreement rather than continuation of the old agreement, and if the new contract postdates and because pledged collateral cannot be impaired by a postdated agreement by the mortgagor-landlord, the lessee’s rights are subordinate to the terms of the mortgage. Mortgages often provide that the mortgagor must obtain insurance covering the property for the benefit of the mortgagee. Whitestone Savings and Loan Association v. Allstate Insurance Company, 28 N.Y.2d 332 (1971), held that a mortgagee is entitled only to one satisfaction of the debt, so bidding the entire remaining debt on foreclosure sale constitutes satisfaction of the mortgage, and that if after a fire the mortgage debt is satisfied by the purchase of the property at the full amount of the debt, the mortgagee has no right of recovery from the insurer. And in Moke Realty Corporation v. Whitestone Savings and Loan Association, 41 N.Y.2d 954 (1977), affg. on the opinion of Justice Bertram Harnett, reported in 82 Misc2d 396 (1975), which held that in view of the Court’s holding in its earlier Whitestone decision, if the mortgagee bid less than the full value of the property but failed to enter a deficiency judgment within ninety days after delivery to it of the deed to the property as required by RPAPL § 1371, it lost the right to recover and there was therefore no longer any debt, the property owner and not the mortgagee bank was entitled to the insurance proceeds. Of interest also with respect to such insurance is Hessian Hills Country Club, Inc. v. the Home Insurance Company, 262 N.Y. 189 (1933), which held that while an insurer’s standard mortgage clause provided that insurance payable to a mortgagee shall not be invalidated by any act or neglect of the mortgagor, the mortgagee cannot recover on such insurance if the mortgagor breached a condition of the policy. With respect to whether a mortgage of real property covers personal property on or used in connection with the real property is a matter of intent, the Court held in Adler v. Atlas Brick Corporation, 283 N.Y. 64 (1940). If the mortgage covers all personalty now or hereafter used in connection with the premises, the foreclosure judgment correctly directed the sale of such property replacing those installed by the property owners who purchased the property subject to the mortgage. General Synod of the Reformed Church v. Bonac Realty Corporation, 297 N.Y. 119 (1947). And in Cohen v. 1165 Fulton Avenue Corporation, 251 N.Y. 24 (1929), the Court ruled that an apartment owner who, after installing gas ranges bought under a conditional contract of sale which reserved title to the seller, mortgaged the premises under a mortgage which stated that all fixtures and articles of personalty now or hereafter attached to or used in connection with the premises were covered by the mortgagee, the mortgagee who took the mortgage without knowledge of the conditional sale contract prior to

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the time the contract was filed in the public office, the mortgagee covered the gas ranges and gave the mortgagee a lien on them as fully as if the mortgagor had acquired absolute title. The Court has held in a number of cases that whether personalty is covered by a real estate mortgage is a matter of intent. Thus East River Savings Bank v. 671 Prospect Avenue Holding Corporation, 280 N.Y. 342 (1939), held that the intent that personalty was not included within the real estate mortgage coverage could be fairly inferred from the fact that the contract of sale specifically provided for the execution and delivery of a separate chattel mortgage, but in Manufacturers Trust Co. v. Peck-Schwartz Realty Corp., 277 N.Y. 283 (1938), rearg denied 278 N.Y. 482 (1938), see also Shelton Holding Corporation v. 150 East Forty-Eighth Street Corporation, 264 N.Y. 339 (1934), concluded that personal property was not within the coverage of a real estate mortgage when it was not mentioned in the mortgage, there being nothing in the written instruments or dealings between the parties to indicate an intent to include movables within the mortgage. With respect to trees on the mortgaged property, Heller v. Amawalk Nursery, Inc., 278 N.Y. 514 (1938), affg. no op. 259 A.D. 380 (1938), stated that the mortgagor or one deriving title from him may remove nursery trees or crop them at any time prior to foreclosure sale, but upon sale the right to crop passes to the purchaser with the land, and the right to do so terminates either upon default or at the time the receiver was appointed in the foreclosure action. Dye v. Lincoln Rochester Trust Company, 31 N.Y.2d 1012 (1973), affg. no op. 40 A.D.2d 583 (1972), which held that when the indenture under which the trustees held authorized them to release all or any portion of real property mortgaged, provided that could be done without prejudice to the bondholders’ security, the mortgagee has no duty to see that the trustees replace the released premises with equivalent security or that no breach of trust was intended; a party dealing with a trustee is protected if he acts in good faith. The remedies available to the mortgagee were detailed in the Court’s opinions in President and Directors of the Manhattan Company v. Callister, 282 N.Y. 629 (1940), affg. no op. 256 A.D. 1097 (1939), and Seaman’s Bank for Savings v. Smadbeck, 293 N.Y. 91 (1944). The President opinion stated that when a bond and mortgage are given as security for payment of a note, the note is the mortgage debt, the recipient of the note can recover judgment on the note, and if execution on the judgment is returned unsatisfied can commence foreclosure, or as pledgee apply the proceeds of the foreclosure sale to the note, but cannot do both at the same time without leave of court. Seaman’s Bank held that the holder of a bond and mortgage has two remedies: one at law to recover judgment on the debt

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and the other in equity to foreclose the mortgage. As between the mortgagor and mortgagee, the bond is the principal obligation, and the mortgage is security for the personal indebtedness. The right to a deficiency judgment, the Court held in Central Hanover Bank and Trust Company v. Eisner, 276 N.Y. 121 (1937), depends on the reasonable market value of the premises involved, but if that presents a triable issue it should be decided by the court or a referee based on testimony but not on personal knowledge of the presiding judge or referee or information obtained by him or her out of court, and not embodied in the record. In Herman v. Bishop, 272 N.Y. 83 (1936), the Court defined market value of real property as the amount one desiring but not compelled to purchase will pay under ordinary conditions to a seller who desires but is not compelled to sell based on evidence of all elements that can in reason affect the value of the premises, including the opinions of experts; the age, construction, and condition of the building; the sale price of similar property in the neighborhood; and all other elements affecting market value in the neighborhood. See also, Central Hanover Bank and Trust Company v. Kraft, 273 N.Y. 634 (1937), mo. rearg. denied 274 N.Y. 489 (1937), affg. Special Term on the authority of Herman v. Bishop, supra. The complexity of some mortgage transactions is well illustrated by Terranova v. Emil, 20 N.Y.2d 493 (1967). The mortgage was given to three mortgagees, A, B, and C, but the note and a letter of the same date directed that payment be made to B. The mortgagor sought cancellation of the mortgage based on payment in full to B, notwithstanding that B had misappropriated the money. The Court ruled that there was a triable issue of fact whether A and C by their prior actions contrary to their letter of direction had put B in a position enabling him to appropriate the money, which had apparently been paid to B in good faith. The role played by a notice of pendency is illustrated by Goldstein v. Gold, 66 N.Y.2d 624 (1985), which affirmed for the reasons stated in the Appellate Division decision, 106 A.D.2d 100 (1984), only insofar as that decision held that the purchaser of the property encumbered by the mortgage was bound by a notice of pendency filed prior to the recording of his deed and the satisfaction of the mortgage. The Appellate Division decision by then Justice Vito J. Titone held that in light of CPLR 6501 provision that “[a] person whose conveyance or incumbrance is recorded after the filing of the notice is bound by all proceedings taken in the action after such filing to the same extent as if he were a party, a purchaser who did not rely on a recorded document could not become a bona fide purchaser for value and, therefore, could not cut off the prior mortgagee.”

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In Doyle v. Lazarro, 33 N.Y.2d 981 (1974), affg. on the Appellate Division opinion 33 A.D.2d 142 (1970), the Court held that a tax deed did not constitute notice to a purchaser of the mortgaged property since the applicable statutes did not make the records in the County Treasurer’s office notice to a purchaser since a purchaser is not normally required to search outside the chain of title to determine if the title is defective, the purchaser being charged by the statutes only with notice of matters in the title records. A number of the Court’s decisions have considered defenses to a foreclosure action or action upon the bond. Beck v. Sheldon, 259 N.Y. 208 (1932), and Leibowitz v. Arrow Roofing Co., Inc., 259 N.Y. 391 (1932), held that an assignee of a mortgage, though a bona fide holder, takes the mortgage subject to all defenses existing between the original parties. But as noted in Hammelburger v. Foursome Inn Corp., 54 N.Y.2d 580 (1981), the rule is different when the mortgagor gives the assignee an estoppel certificate as provided for in Real Property Law § 254, subds. 2 and 7, the mortgagor having represented by such certificate that the mortgage is valid and existing. See also Grace v. Nappa, 46 N.Y.2d 560 (1979). With respect to an assignment of rents, the Court held in Bank of Manhattan Trust Company v. 571 Park Avenue Corporation, 263 N.Y. 573 (1935), that a contract by the mortgagor or its successors surrendering the right to receive rent for the mortgaged premises, or assigning, in whatever manner, the rents collectible from the premises is an impairment of the lien of the mortgage upon the rents. It is, the Court ruled, beyond the power of the parties either to appropriate the pledged rents to a different indebtedness, or to defeat the pledge by granting use of the premises rent free. The rents were expressly made security in the event of default, which limited the contracts of the mortgagor or its successors to that extent. Bier Pension Plan Trust v. Schneierson, 74 N.Y.2d 312 (1989), held that under New York law payment of interest after maturity does not imply extension of the loan for a reasonable time. Skaneateles Savings Bank v. Herold, 40 N.Y.2d 999 (1976), noted that while a promissory note from a mortgagor can constitute payment of the debt secured by the mortgage, there is a strong presumption against such an intent, and held that when no money except the excess over the original note changed hands and the original debt was not extinguished, payment of the earlier note was not payment of the mortgage. United States Trust Co. v. Frelinghuysen, 288 N.Y. 463 (1942), held that a mortgagor has been allowed to defend a foreclosure action on the ground of lack of consideration notwithstanding the presence of a seal on the mortgage. Szerdahelyi v. Harris, 67 N.Y.2d 42 (1986), Hirsch v. Buono Tire Co., Inc., 22 N.Y.2d 930 (1967), affg. no op. 29 A.D.2d 545 (1967). Hoffman v. Lee Nashem Motors,

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Inc., 20 N.Y.2d 513 (1967), considered the defense of usury under General Business Law § 5–511, 5–113 and 5–119. Szerdahelyi held that the return of excess interest paid by the borrower on a usurious loan does not revive the contract, and that although the mortgagee need not return the lawful interest already paid, he could not recover either the money loaned or the interest remaining due. Hirsch involved a mortgage by a property owner that, after it had been refused a loan at legal interest rates, formed a corporation to avoid the statutory limitation on interest but used the loan proceeds for the benefit of the owners. The decision held the usury defense not available to individuals who as the corporation’s sole stockholders consented to the execution of the mortgage, and that the mortgage was a valid lien although no formal certificate of consent to execution of the mortgage had been made. Hoffman made “it clear that a loan to a corporation, even a ‘dummy’ corporation formed to avoid the usury laws and to accept the usurious loan, is valid.” Petito v. Piffath, 85 N.Y.2d 1 (1994), certiorari denied 516 U.S. 864 (1995), considered what action by the mortgagor would extend the running of the statute of limitations. In that case the parties terminated a foreclosure action by a settlement agreement under which the mortgagor agreed to pay $197,000 and the mortgagee agreed to assign the mortgage to the mortgagor’s brother. The opinion held that was not a “promise to pay the mortgage debt and, therefore, did not restart the running of limitations pursuant to G.O.L. 17–105(1) nor was it a partial payment within the meaning of G.O.L. § 17–107(2)(b).” Sanders v. Palmer, 68 N.Y.2d 180 (1986), concerned a single debt secured by a mortgage of property of a corporate debtor and by a mortgage of separate property of an individual guarantor. The opinion stated that the failure to obtain a deficiency judgment after the sale of the corporate debtor’s property in its foreclosure action in which the guarantor was a party defendant barred a further action to foreclosure on the guarantor’s mortgage or on the guarantee.11 Mutuality of obligation, or rather the lack thereof, may be determinative of a claimed defense. Thus, Sidrane v. FDR Realty Corporation, 296 N.Y. 357 (1947), held that a mortgagee’s offer during the Great Depression to accept 2 percent of the mortgage amount as amortization rather than as interest, which was fixed by the mortgage at 6 percent, could be withdrawn at any time because the mortgagor was not bound by its offer, there being no mutual obligation on the part of the mortgagor. Brooklyn Trust Company v. Fairfield Gardens, Inc., 260 N.Y. 16 (1932), considered the effect of a subordination agreement. The Court concluded that the purchase of a lot subject to a mortgage whose mortgagee agreed to subordinate it to a building loan mortgage at a later time imposed no duty upon the lender

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to protect the interests of the holder of the subordinated mortgage. But the Court held in Schenectady Savings Bank v. Westheim, 263 N.Y. 585 (1933), affg. no op. 237 A.D. 311 (1932), that the lien of a mortgage was not subordinated to the life use of the lessor of the second-floor apartment of the mortgaged building when the conveyance to that lessor was not recorded or brought to the mortgagee’s notice, and that the possession, which may be the equivalent of actual notice, must be actual, open, and visible occupation, inconsistent with the title of the apparent owner of record. Waiver as a matter of defense was considered by the Court in Emigrant Industrial Savings Bank v. Willow Builders, Inc., 290 N.Y. 133 (1943), and Verity v. Metropolis Land Company, 274 N.Y. 624 (1937), affg. no op 248 A.D. 748 (1936). Emigrant held that the mortgagee could not elect foreclosure for a default in assignment of moneys provision of the contract which it disregarded as a ground for the termination of the contract. Verity held a provision in an extension agreement that the mortgagee shall not be required in the event of default to foreclose the mortgage, that the mortgagor will deliver a deed which the mortgagee will accept in full satisfaction of all claims against the mortgagor, gives the mortgagee the option that it would not, in case of default, be required to foreclose, and gives the mortgagor the option not to incur the expense of foreclosure and also be subject to a deficiency judgment. Matter of Sakow, 97 N.Y.2d 436 (2002), dealt with the effect of a lapsed notice of pendency. The opinion by Judge Richard C. Wesley asserted that such a notice is valid for three years from date of filing and may be extended for additional three-year periods upon a showing of good cause, provided the extension is requested before the expiration of the prior notice, but a lapsed notice of pendency may not be revived. It concluded therefore that an expired or canceled notice of pendency may not be refiled on the same cause of action or claim— CPLR 6513 does not permit a plaintiff to file a notice of pendency after a previously filed notice concerning the same causes of action or claims has expired without timely renewal, and as the First Department held in Campbell v. Smith, 297 A.D.2d 502 (2002). Finally with respect to decisions related to defenses to such actions, the decision in Dorff v. Bornstein, 277 N.Y. 236 (1938), invoked the principle of estoppel in relation to its holding that a bona fide purchaser at a foreclosure sale acquires absolute title against all parties to the action and their privies, which relates back to the date of the mortgage and cuts off all intervening rights, including all rights of subsequent mortgagees, and creates a new estate in the new owner. The effect of various provisions of the Tax Law has also been the subject of a number of decisions of the Court. Matter of Bay View Towers Apartment, Inc. v.

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State Tax Commission, 40 N.Y.2d 856 (1976), ruled that the substitution of one mortgage for another does not create a new mortgage subject to the Tax Law. See also Matter of Atlantic Cement Company, Inc. v. Murphy, 28 N.Y.2d 502 (1971), affg. no op. 30 A.D.2d 456 (1968), in which the Appellate Division held that whether an assignment constituted a mortgage within the meaning of the Tax Law § 250 depends on the intention of the parties as gathered from their testimony, the circumstances surrounding the transaction, and the conduct of the parties, as well as the terms of the assignment. McCarthy v. Emma, 304 N.Y. 153 (1952), held that unpaid taxes constitute a lien upon real estate which is prior and superior to any mortgage and that the purchaser at a tax sale obtains a tax title or tax lease which is paramount to the lien or a preexisting mortgage and cannot be cut off by foreclosure of such a mortgage. Laventall v. Pomerantz, 263 N.Y. 110 (1933), held that when the owners of a subordinate mortgage pay taxes and water rents which were a lien upon the property they are subrogated to the rights of the taxing authority in the amount advanced by them and upon foreclosure sale the lien of both mortgages attach to the sale proceeds in the same order of priority as the original liens and the unpaid tax lien attaches to the same proceeds but in priority to the lien of the mortgages, but the mortgagees are entitled to allowance for the amount paid as part of their mortgage debt upon foreclosure of the mortgage. With respect to the effect of a tax lien sale the Court ruled in City of Buffalo v. Cargill Incorporated, 44 N.Y.2d 7 (1978), that when a taxing district acquires tax sale certificate on a tax sale under Real Property Tax Law § 926 the holder may, after expiration of the redemption period, obtain an administrative conveyance of the fee or take possession of the property but may not seek payment on the certificate from the taxpayer personally, and in Melahn v. Hearn, 60 N.Y.2d 944 (1983), held that if the mortgagee failed to redeem the property within the three-year limitation period, the title of the purchaser at the tax sale became absolute and the mortgage was extinguished and unenforceable.

VI. Landmark Preservation Landmark preservation was first authorized by the Legislature in 1956 (Laws of 1956 chap 216 [now General Municipal Law § 96-a and Article 5-K]), and it was not until 1965 that New York City enacted its first historic preservation statute (Administrative Code, ch 8A [now title 25 ch 3]). In 1973 the law was expanded to include interior landmarks (Administrative Code § 25–301[b], [g]). The following review of landmark designations of buildings and interiors estab-

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lishes that the designation will be upheld unless it can be proven that the Commission’s action was arbitrary or capricious. The first cases dealing with the validity of a statute that restricted the use of land were Matter of Golden v. Planning Board of the Town of Ramapo, 30 N.Y.2d 359 (1972), app. dismissed 409 U.S. 1063 (1972), and Lutheran Church in America v. City of New York, 35 N.Y.2d 121 (1974). The Golden decision upheld restrictions on residential subdivisions in some parts of the Town for up to eighteen years but was not related to particular landmarks. Thereafter New York City adopted a landmark preservation ordinance, which was upheld in the Lutheran Church opinion,12 It concerned a house that had been the residence of J. P. Morgan. An early example of Anglo-Italiante architecture, the dwelling displayed an impressive amount of fine architectural detail and was a handsome building of great dignity. The Court held, however, that the Commission’s attempt to force the church to retain its property as is, without any sort of relief or adequate compensation, was nothing short of a naked taking. Id. at 132. As noted in Fred F. French Investing Company, Inc. v. City of New York, 39 N.Y.2d 587 (1976), app. dismissed 429 U.S. 990 (1976), however, in an effort to provide compensation New York City’s Zoning Resolution was amended to provide that development rights from such properties were transferable to other parcels or buildings. Involved in the French case was the rezoning of two private parks as parks open to the public. The opinion by then Chief Judge Breitel stated that a zoning ordinance is unreasonable if it renders the property unsuitable for any reasonable income-productive or other private use for which it is adapted and thus destroys its economic value, or all but a bare residue of its value, and concluded that because it compelled the owner to find suitable receiving lots for the rights it severely impaired the value of the development rights before they were severed and, therefore, constituted a deprivation of property without due process of law. But, the opinion concluded, the “ingenuity [demonstrated by the landmark and zoning provisions] if further pursued will in all likelihood achieve the goals without placing an impossible or unsuitable burden on the industrial property owner, the public fisc, or the general taxpayer.” Id., at 600. Constitutionality of the City Code’s landmark provisions was upheld by both the Court of Appeals and the United States Supreme Court in Penn Central Transportation Company v. City of New York, 42 N.Y.2d 324 (1977), affirmed by the Supreme Court though by a 6-3 decision. 438 U.S. 104 (1978). The Court of Appeals decision by Chief Judge Breitel held that though the City Code singled out particular parcels for less favorable treatment than other parcels, the cultural, architectural, historical, or social significance attached to the Grand

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Central Terminal was an acceptable purpose for doing so, provided the landowner was allowed a reasonable return or equivalent private use of his property, that the property may be capable of producing a reasonable return even if it can never operate at a profit, that plaintiffs’ heavy real estate holdings in the terminal area would lose considerable value and deprive plaintiffs of much income were the terminal not in operation, that some of that income was imputable to the terminal, that plaintiffs had not been wholly deprived of development rights above the terminal since they were transferable to other buildings in the area a number of which were owned by Penn Central, and that the Code regulation permitted splitting of the rights among several parcels. The Court concluded that there was no deprivation of due process if the substitute rights provided reasonable compensation for the landmark rights, and that those rights were “valuable, and provide significant, perhaps ‘fair’ compensation for the loss of rights above the terminal itself. Hence, no constitutional violation has been established.” Id., at 336. The Court has also considered landmark preservation in Matter of the Society For Ethical Culture v. Spatt, 51 N.Y.2d 449 1980), FGL&L Property Corp. v. City of Rye, 66 N.Y.2d 111 (1985), Church of St. Paul and St. Andrew v. Barwick, 67 N.Y.2d 510 (1986), and Matter of Teachers Insurance and Annuity Association of America v. City of New York, 82 N.Y.2d 35 (1993), (hereafter Matter of TIAA). The Ethical Culture and Church of St. Paul opinions considered the effect of landmark designation on religious institutions. The Ethical Culture decision differentiated Lutheran Church in that in Lutheran Church demolition and rebuilding was necessary to alleviate the Church’s space problem, but “the landmark restrictions were so debilitating, the impediment to charitable use so complete, that sustaining the landmark designation without compensation was in reality a ‘naked taking,’” but the Ethical Society’s complaint was that the designation barred the most lucrative use of the Society’s property, and no constitutional provision required that a landowner be allowed his property’s most beneficial use. In Church of St. Paul, the Church sought a judgment declaring that its designation as a landmark constituted a taking and interfered with the free exercise of religion, but the court held in a 4–3 decision that neither issue was ripe for consideration by the Court, since the Church had not submitted its plans for rebuilding the Church to the Commission and no criminal proceeding had been instituted against it under the Landmark law. FGL&L, supra, held that nothing in relevant statutes including General Municipal Law § 96a and Article 5-K nor in the Rye City Code landmark preservation provisions empowered the city to mandate the manner in which landmarked property may be owned or held or to impose upon the owner of a tract

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containing historic structures or on purchasers of properties neighboring the tract the cost of rehabitation or enhancement of the properties. Matter of TIAA, supra, dealt with interior landmarking and was limited to construction of the Administrative Code provisions, since TIAA made no argument in the Court of Appeals regarding dismissal by the courts below of its constitutional challenges. 185 A.D.2d 207 (1992). Holding in an opinion by Chief Judge Kaye that a landmark designation is an administrative determination that must be upheld if it has support in the record, a reasonable basis in law, and is not arbitrary or capricious, that the Code’s term “special historical or aesthetic interest” was one as to which the Court should accept the Agency’s interpretation of the law if not unreasonable. However, its requirement that the premises be “customarily open or accessible to the public” was jurisdictional and therefore a matter of pure legal interpretation as to which no deference is required. The opinion also held that nothing in the law required the owner’s consent to designation so long as the statutory criteria were met, that an interior to which the public is invited is within the ambit of the statute, and that the fact that the interior could be adapted to private use in the future did not preclude landmarking of an appropriate interior, and that the legislation did not distinguish between personalty and realty. To be noted, however, is Judge Levine’s opinion in Bonnie Briar Syndicate, Inc. v. Town of Mamaroneck, 94 N.Y.2d 96 (1999), in which based upon the United States Supreme Court decision in City of Monterey v. Del Monte Dunes, 526 U.S. 687 (1999), that Court held that when a landowner’s challenge is based not on excessive exactions but on denial of development, the rough proportionality test of Dolan v. City of Tigard, 512 U.S. 374 (1994), between the required exactions and the governmental interests involved is inapposite.

VII. Easements An easement is “a right, distinct from ownership, to use in some way the land of another.” Matter of Friends of Shawangunks, Inc. v. Knowlton, 64 N.Y.2d 387, 395 (1985). To be distinguished, however, though contained in a real property deed, is the grant of a privilege: e.g., “to bathe in Flagler Lake.” Matter of Ford v. Traub, 39 N.Y.2d 1000 (1976); see also Todd v. Krolick, 62 N.Y.2d 836 1984), which grants not an easement but a license. The cases before the Court during the period covered by this book have dealt with scenic easements, e.g., Witter v. Taggart, 78 N.Y.2d 234 (1991); the view across a canal of landowner on one side thereof, with easements of light and air, Lafayette Auvergne Corporation v. 10243 Management Corp., 35 N.Y.2d 834

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(1974); Vanton Corp. v. New York Rapid Transit Corp., 277 N.Y. 93 (1958); Zieger v. Interborough Rapid Transit Company, 280 N.Y. 516 (1939), affg. no op. 254 A.D. 908 (1938); the use of a beach or waterfront, Loening v. Red Spring Land Company, 302 N.Y. 934 (1951); Shean v. Loening, 302 N.Y. 936 (1951); with the flooding of particular property during periods of heavy rain, Taylor v. State of New York, 302 N.Y. 177 (1951); and with the drawing of water to its mill from a spring on adjoining property, Historic Estates, Inc. v. United Paper Board Company, 285 N.Y.2d 658 (1941), affg. no op. 260 A.D. 344 (1940). They have also dealt with easements claimed for installing electric transmission lines over property, McCormick v. Trageser, 24 N.Y.2d 873 (1969), cf Clark v. State of New York, 15 N.Y.2d 990 (1965); as well as for access to property of the easement claimant, Regan v. Lanze, 40 N.Y.2d 475 (1976); over a highway though defectively laid out, Schillawski v. State of New York, 9 N.Y.2d 235 (1961); and for use as a city street notwithstanding that the city had never accepted it, Yager Pontiac, Inc. v. Fred A. Danker and Sons, Inc., 34 N.Y.2d 707 (1974), affg. 41 A.D.2d 366 (1973), on prior Appellate Division opinion at 28 A.D.2d 61 (1967). An oral easement may be enforced by the grantee if sufficiently partly performed by the construction of works or the making of valuable improvements on the basis of the oral grant together with use of the claimed easement or by the payment of consideration and user, Gracie Square Realty Corp. v. Choice Realty Corp., 305 N.Y. 271 (1953). Easements may be created by grant, by prescription, by adverse user, or by implication. To create an easement by express grant there must be a writing containing plain and direct language evincing the grantor’s intent to create a right in the nature of an easement rather than a revocable license. Willow Tex, Inc. v. Dimacoupoulos, 68 N.Y.2d 963 (1986). Because the policy of the law favors free and unobstructed use of realty, covenants restricting the use of property are strictly construed against those seeking to enforce them. Huggins v. Castle Estates, Inc., 36 N.Y.2d 427 (1975). But as the Court held in Civic Association at Roslyn Country Club, Inc. v. Levitt and Sons, Inc., 7 N.Y.2d 894 (1960), representations in sales brochures, subdivision maps, and by the servient owners for use of their property for recreational purposes estopped them from denying existence of the easements, notwithstanding that enjoyment of the privileges was conditioned upon payment to the servient owners to cover taxes and other expenses and a fair profit to such owner. See also Wilkinson v. Nassau Shores, 304 N.Y. 614 (1952). Only when the language used in a conveyance is susceptible of more than one interpretation will the courts look into surrounding circumstances. Loch

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Sheldrake Associates v. Evans, 306 N.Y. 297 (1954). But as the Court held in Dillon v. Moore, 296 N.Y. 561 (1946), affg. no op. 270 A.D. 79 (1945), although the terms of the grant of an easement are to be taken most strongly against the grantor, the fact that the servient owner’s structure makes use by the easement grantee more inconvenient is by itself indecisive. If there is ambiguity in the grant of an easement, the view favorable to the grantee will control, Levy v. T.C.A. Hudson Street Incorporated, 22 N.Y.2d 662 (1968), affg. no op. 28 A.D.2d 96 (1967); but when the language of the grant is certain and unambiguous, it alone may be considered in determining the intent of the parties to the grant. Miller v. Edmore Homes Corp., 309 N.Y. 839 (1955), affg. no op. 285 A.D. 837 (1955). With respect to an easement by grant, the intent of a landowner to impose a servitude upon his land must be clear, but if it is not the courts will not infer that the grant of an easement was intended when the servient estate owner will lose important development rights for a valuable commercial property. Lafayette Auvergne Corporation, supra at 836. An easement by prescription results from open and notorious, continuous and uninterrupted use for the period of years fixed by the applicable statute of limitations, which since September 1, 1963, has been ten years.13 Moreover, such use of a right of way is presumed to be adverse under claim of right and requires the servient tenement to show that the user was by license, Beutler v. Maynard, 56 N.Y.2d 538 (1982), affg. as more nearly conforming to the weight of the evidence and without error of law the Appellate Division’s decision concerning presumption and burden of proof, 80 A.D.2d 982 (1981); Pirman v. Confer, 273 N.Y. 357, 363 (1937). Such an easement may, however, be extinguished by use adverse when a party acting under claim of right commences a use of the easement that is adverse to its owner, Spiegel v. Ferraro, 73 N.Y.2d 622 (1989). In Spiegel the owner of the servient parcel had installed gates over the easement to which it held the only keys and had parked cars on the easement. The Court held that the period of prescription begins to run when a party acting under claim of right commences a use of the easement that is adverse to the owner of the easement and that no demand need be made upon the adverse user for extinguishment of the adverse use. However, when the issue is not use adverse to the easement owner but entitlement to a prescriptive easement, then entitlement to such an easement must be shown by clear and convincing evidence. Abbott v. Herring, 62 N.Y.2d 1028 (1984). But once open, notorious, and uninterrupted possession is established it is the burden of the owner of the servient land seeking to refute the claim of an easement by prescription to prove permission, or that the easement claimant had knowledge of facts which put him on inquiry as to the existence of an easement. Village of Schoharie v. Coons,

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28 N.Y.2d 568 (1971), affg. no op. 34 A.D.2d 701 (1970). However, absent evidence of actual knowledge of the dominant owner’s claim of right or that the claimed use was so visible that knowledge would be presumed a prescriptive easement is not established nor is it established by proof of a limited nature (e.g., that the front or rear wheels of the dominant owner’s vehicles crossed the boundary line between parcels), Panzica v. Galasso, 309 N.Y. 978 (1956), affg. no op. 285 A.D. 859 (1955); and where a tax deed from the city states that the property was “subject to a private right-of-way easement,” it preserved the dominant owner’s easement by prescription although that language did not create an easement. Pagano v. Kramer, 21 N.Y.2d 910 (1968). The burden of proving that the use upon which the claimed prescriptive easement is based was open, continuous, uninterrupted, and hostile is upon the dominant party claiming such an easement, Weinberg v. Shafler, 50 N.Y.2d 876 (1980), affirming for the reason stated by the Appellate Division, 68 A.D.2d 944 (1979); but when the first three elements are shown hostility will be presumed and it is then upon the servient owner to negate that presumption, id., cf. Van Roo v. Van Roo, 294 N.Y. 731 (1945), affg. no op. 268 A.D. 170 (1944). With respect to a water easement it is not the height of the dam but of the flooding waters that determines whether a prescriptive right has been acquired, Taylor v. State of New York, supra at 187. As the Appellate Division stated, quoting from a New Hampshire case: “To acquire such right the water must be raised on the adjacent owner’s land so often as to afford him reasonable notice, during the entire [limitations] period, that the right is being claimed against him.” Easement by adverse user is illustrated by the opinion in Jacobs v. Lewicki, 10 N.Y.2d 778 (1961), affg. no op. 12 A.D.2d 625 (1961). That case involved an unpaved driveway partly on defendant’s property and partly on plaintiff’s. The defendant erected a fence on the dividing line between the two parcels, and plaintiff sought an injunction requiring removal of the fence. The Appellate Division opinion affirmed by the Court of Appeals held that the evidence did not establish reciprocal adverse user by the adjoining landowners or that the use of the disputed portion of the driveway by plaintiffs and their predecessors in title was adverse and under a claim of right and that plaintiff could not “tack” their adverse user to that of their predecessor to make up, as then required, fifteen years, since the deed to plaintiffs did not contain the alleged driveway easement and there was no proof that their grantor intended to include such an easement therein. While an easement may be acquired by adverse possession, based upon the existence for the statutory period of a barrier across a road maintained by the dominant owner, he or she may not further restrict the servient owner’s use of the road by moving the barrier to a new location on the road.

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Filby v. Brooks, 66 N.Y.2d 640 (1985). However, the use of property consistent with an easement cannot convert such use into adverse possession without actual or constructive notice of the change. Sackett v. O’Brien, 23 N.Y.2d 883 (1969), affg. no op. 27 A.D.2d 979 (1967). An easement derives from use of the servient owner’s land and, therefore, one claiming a right of way by prescription is not required to prove that the way was enclosed, cultivated, or improved. DiLeo v. Pecksto Holding Corp., 304 N.Y. 505, 511 (1952). But a dominant owner having succeeded in establishing his claim of an easement by adverse possession may not thereafter claim ownership of the servient land by adverse possession. Van Valkenburgh v. Lutz, 304 N.Y. 95, 100 (1952). An easement by implication has been recognized by the Court in Willow Tex v. Dimacoupoulos, supra, which held that such an easement had not been established for the reasons stated in the trial court opinion, at 120 Misc.2d 8, 11–12, which relied upon the opinion by the trial judge Frances Bergan14 in Jacobson v. Luzon Lumber Co., Inc., 300 N.Y. 697 (1950), rearg. den. 300 N.Y. 754 (1950), affg. no op. 276 A.D. 787 (1949), affirming memorandum 192 Misc 183, 185 (1948). The Bergan opinion stated that the elements of the New York rule on implied easements are these: 1. The estates presently resting in the hands of different owners must formerly have been in unitary ownership; 2. While so formerly held in one estate, a use must have been created by the owner either in which one part of the land was subordinated (made “subservient”) to another; or such a use made of the two parts as to create a reciprocal subordination; 3. The use made must be plainly and physically apparent on reasonable inspection; 4. It must affect the value of the estate benefited and must be necessary to the reasonable use of such estate.

Tarolli v. Westvale Genesee, Inc., 6 N.Y.2d 32 (1959), held that the claim of an easement solely by implication usually raises a question of intent to be determined in the light of all the circumstances, and in Cassano v. Merriewold Club, Inc., 24 A.D.2d 819 (1965), affg. 19 N.Y.2d 640 (1967), the Court affirmed without opinion the Appellate Division’s conclusion that the dominant owners possessed an implied easement to erect and maintain poles and wires upon and over the servient owner’s roads to conduct electricity to their premises. But the Appellate Division held in Scolaro v. Little, 278 A.D. 982 (1951), affg. no op. 303 N.Y. 809 (1952), that the statement on the map, by reference to which plaintiff’s lots were conveyed, reserved an absolute right in the grantor of any use of the beach and negatived any implication of an easement.

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However, when the conveyance to a dominant owner is by reference to a map of subdivision lots which shows a street abutting the lots, the dominant owner grantees are then entitled to have land shown as a street left open forever, whether or not it has been accepted by the town or municipality; and in the absence of express reservation the deed conveys the fee to the center of the street on which the lot abuts subject to the right of other lot owners to use the whole street. Fiebelkorn v. Rogacki, 305 N.Y. 725 (1953), affg. no op. 280 A.D. 20 (1952); see also Spinella v. Rindenello, 19 N.Y.2d 1010 (1967), affg. no op. 26 A.D.2d 911 (1966), and Huggins v. Castle Estates, Inc., 36 N.Y.2d 427, 431 (1975), stating that negative easements are recognized based on a map notation when the easement is apparent from the nature of the restriction and the manner in which it is indicated and where the easement is created by virtue of a common plan. Moreover, Alleva v. Tornatores, 279 N.Y. 770 (1939), affg. no op. 254 A.D. 526 (1938), upheld as an implied easement use of a driveway to reach parking space for cars when the existence of the servitude created for the benefit of the dominant owner was open and visible. The Court’s decisions in Sturges v. Tetlow, 35 N.Y.2d 859 (1974), affg. no op. 43 A.D.2d 758 (1973); Miller v. Edmore Homes Corp., 309 N.Y. 839 (1955), affg. no op. 285 A.D. 837 (1955); Coyne v. New York State Teachers Retirement System, 283 N.Y. 614 (1940); affg. no op. 257 A.D. 1006 (1939); and New York State Retirement System v. Coyne, 283 N.Y. 615 (1940), affg. no op. 257 A.D. 1010 (1939), dealt with the necessity requirement for an easement by implication. In Sturges the Appellate Division opinion stated that the dominant owners had not sustained their burden of proof, since other means of ingress and egress than the claimed easement were available though inconvenient. In Miller the Appellate Division had held that when the language of grant of an easement is certain and unambiguous only it may be considered to the exclusion of circumstances surrounding the conveyance and the situation of the parties, that no easement by necessity may be implied unless the claimed necessity is real and reasonable and not merely a matter of convenience, and that the burden of establishing necessity is upon the party who claims it, and the Coyne decisions of the Appellate Division turned on similar rulings that of necessity must exist in fact and not as a mere convenience. But as the Court held in Spruce Hill Homes, Inc. v. Brieant, 288 N.Y. 309 (1942), whether a covenantee of a covenant of quiet enjoyment and freedom from encumbrances had knowledge of the easement of way by necessity across land to a highway in favor of the adjoining owner was irrelevant. He was entitled to rely upon the covenants of his grantor. Notwithstanding that the so-called stranger-to-the-deed rule has been adopted in other states, in Estate of Thomson v. Wade, 69 N.Y.2d 570 (1987), the

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Court declined to follow, noting that although the rule may frustrate the grantor’s intent any such frustration can be avoided by direct conveyance of an easement of record from the grantor to the third party. The conveyance dealt with by the rule is one where dominant land is conveyed to a new owner, the deed reserving the right of way over the servient land to the new owner’s predecessor in interest. Such a reservation is ineffective in creating an express easement in favor of the new owner. The Court has held in a number of cases that easement may be lost by abandonment by the dominant owner or by adverse possession on the part of the servient owner. In Spiegel v. Ferraro, 73 N.Y.2d 622 (1989), it held that adverse user of the easement by the servient owner that continues for the statutory period will extinguish the easement unless it had never been definitely located in which case the easement will not be extinguished by adverse user unless the dominant owner’s demand that it be opened has been refused by the servient owner. The Appellate Division decision affirmed in Ernst v. Keniry, 14 N.Y.2d 668 (1964), affg. no op. 19 A.D.2d 938 (1963), held that proof of abandonment of an easement requires proof of both the dominant owner’s intent to abandon and establishment of an unequivocal overt act, which implies that the easement owner neither claims nor retains any interest in the easement and clearly demonstrates relinquishment of the easement. Sackett v. O’Brien, 23 N.Y.2d 883 (1969), affirmed no op. the Appellate Division decision, 27 A.D.2d 979 (1967), which had held that nonuse of an easement created by grant or reservation is not equivalent to abandonment and that that portion of the strip used by defendants in conformity with the easement was not acquired by adverse possession, since use of property consonant with an easement cannot convert such use into adverse possession without actual or constructive notice of the change, and that under RPAPL § § 511–512 adverse possession under written claim of title, even though only partial possession, may be equivalent to constructive possession of the whole, while adverse possession under claim of title not written may, under RPAPL § 521 attach only to land actually occupied. Gerbig v. Zumpano, 7 N.Y.2d 327 (1960), ruled that an easement created by grant, express or implied, can only be extinguished by abandonment, conveyance, condemnation, or adverse possession, that nonuser alone, no matter how long continued, can never in and of itself extinguish an easement created by grant, that in order to prove abandonment it is necessary to establish both an intention to abandon and some overt act or failure to act, which carries the implication that the owner neither claims nor retains any interest in the easement and that acts evincing an intention to abandon must be unequivocal and clearly demonstrate permanent relinquishment of all right to the easement, and

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that the use for a purpose not authorized or its temporary abandonment are not of themselves sufficient to constitute an abandonment. In Strevell v. Mink, 6 N.Y.2d 850 (1959), affg. no. op. 6 A.D.2d 350 (1957), the Appellate Division had held extinguishment by abandonment must be established by unequivocal evidence, that as to an easement established by grant or other writing nonuser no matter how long continued cannot extinguish such an easement.

VIII. Restrictive Covenants Restrictive covenants concern the use of land. The concept originated in English law and goes back to at least 1583 when Spencer’s Case, 77 Eng. Rep 72 (Queens Bench) was decided. Such a covenant may be either affirmative, i.e., one requiring a specific act to be performed (e.g., to furnish steam heat, Nicholson v. 300 Broadway Realty Corporation, 7 N.Y.2d 240 [1959]) or negative, providing that a specified act will not be done (e.g., Crane Neck Association v. New York City/Long Island County Services Group, 61 N.Y.2d 154 (1984), limiting use of premises to single-family dwelling). Negative covenants are strictly construed against those seeking to enforce them, the policy of the law being to favor free and unobstructed use of realty. Witter v. Taggart, 78 N.Y.2d 234, 237 (1991), Huggins v. Castle Estates, Inc., 36 N.Y.2d 427, 430 (1975), Silverstein v. Shell Oil Company, 33 N.Y.2d 950 (1972), affirming on the Appellate Division decision, 40 A.D.2d 34 (1972). The party who seeks to enforce a restrictive covenant must establish the restriction by clear and convincing proof, Huggins, supra, at 430. In two lines of cases the Court has recognized negative easements based upon plat map notations— where the negative easement is apparent from the nature of the restriction, as where a specific area is delineated by a notation “for street purposes only”—and where the easement is created by a common plan, as where realty is conveyed by reference in the deed to a filed map which designates areas such as streets, parks, beaches, or boardwalks, for in such cases the designation by its nature and description implies the existence of a negative restriction. Huggins, supra, at 431–32. Whether a common plan exists must be established by clear and definite proof relating to the substance of the restriction, the language employed, the manner and form of representations, and the compatibility with surrounding property. Id., at 432. Illustrative is Civic Association at Roslyn Country Club v. Levitt and Sons Incorporated, 7 N.Y.2d 894 (1960), which recognized a recreational ease-

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ment by general plan on the basis of salesperson representations, advertising brochures, the sales map, and subdivision maps to the effect that the 10-acre community club containing a swimming pool, tennis courts, play, and lawn areas would be solely for residents of the development, Huggins, supra, at 432. Witter v. Taggart, supra, concerned a covenant in the chain of title to the dominant land owned by Witter but not in the chain of title to Taggart’s purported servient land. The Court in an opinion by Judge Bellacosa held that a deed conveyed by a common grantor to a dominant landowner does not form part of the chain of title to the servient land retained by the common grantor,15 but held the dominant owner or grantor could prevent that result by recording in the servient chain the conveyance creating the covenant rights so as to impose notice on subsequent purchasers of the servient land. Id., at 239–40. It held, however, that Taggart did not have actual or constructive notice of the restrictive covenant, because it was never included in their deed as direct chain of title and, therefore, they were not bound by that covenant. Id., at 241. To be noted, however, is that the Crane Neck Association decision, supra, recognized a public policy limitation on restrictive covenants. It involved a covenant limiting use to single-family dwellings which the Court noted applied not only to construction of a single-family dwelling but also to the actual use of the building. Id., at 159. It held, however, that although the language of the clause was facially absolute, the State’s interest in protecting the general good of the public through social welfare legislation is paramount to the interests of the parties under private contracts and that the State may impair such contracts by subsequent legislation or regulation that is reasonably necessary to further an important public purpose if the measures taken are reasonable and appropriate to effectuate that purpose. Id., at 167. In Eagle Enterprises, Inc. v. Gross, 39 N.Y.2d 505 (1976), in a unanimous decision written by Judge Domenick Gabrielli, the Court held that regardless of an express recital in a deed that a covenant will run with the land, a promise to do an affirmative act (here provide water) generally is not binding upon subsequent grantees of the premises unless (1) the original grantor and grantee intended that the covenant run with the land, (2) there is privity of estate between the party claiming the right to enforce the covenant and the party upon whom the burden of the covenant is imposed, and (3) the covenant is deemed to “touch and concern” the land with which it runs. Id., at 508; see also, Silverstein v. Shell Oil Company, supra. Whether a covenant is so closely related to use of the land that it should be deemed to run with the land is a question of degree under the particular circumstances of the case. Since the covenant to purchase water was without limitation as to time, and purported to bind all future owners, regardless of

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the use of the land, the decision held that the covenant should not be enforced as an exception to the general rule prohibiting the “running” of affirmative covenants. Id., at 510. See also, Nicholson v. 300 Broadway Realty Corporation, 7 N.Y.2d 240 (1959), which upheld a covenant to supply heat because it was conditioned upon the continued existence of buildings on both the promisor’s and the promisee’s properties, and Neponsit Property Owners’Association, Inc. v. Emigrant Industrial Savings Bank, 278 N.Y. 248 (1938), which held that a covenant that required property owners to pay an annual charge for maintenance of roads, paths, parks, and other public improvements did “touch” or “concern” the land benefited by the improvements while imposing upon the owner of that land the burden of paying the cost of the improvements. Id. at 260. It also ruled that the Property Owners Association, although it owned no property, had been formed as a convenient instrument by which the property owners could advance their common interests, and that in substance if not in form it touched and concerned the defendant’s land and therefore in substance, if not in form, there was purity of estate between the plaintiff Association and the defendant. And as the Eagle Enterprise opinion, supra, noted at p. 510, citing Neponsit, whether a covenant is so closely related to the use of the land that it should be deemed to “run” with the land is a question of degree, dependent upon the particular circumstances of the case. Orange & Rockland Utilities, Inc. v. Philwold Estates, 52 N.Y.2d 253 (1981), stated the rules relating to restrictive covenants: that the statute of limitations does not bar such a covenant, which is a continuing right that exists so long as there is occasion for its exercise, that whether a covenant is personal or runs with the land depends on three factors: (1) whether the parties intended its burden to attach to the servient parcel and its benefit to run with the dominant estate, (2) whether the covenant touches and concerns the land, and (3) whether there is privity of estate; that factors which favor a finding that the benefit was intended to run with the land are (1) retention of adjacent land by the promiseegrantor and (2) the fact that the covenant benefits the land retained or renders it more valuable. It held that the covenant touched and concerned the land because it directly affected the uses to which it could be put and substantially affects its value. As to privity the opinion stated that the party seeking to enforce the covenant need only show that he held the property as a descendant from the promisee which benefited from the covenant and that the owner of the servient parcel acquired it with notice of the covenant. The Philwold opinion also dealt with Real Property Actions and Proceedings Law § 1951(2), which authorizes a court in any action seeking relief against a restrictive covenant or a declaration with respect to its enforceability to cause its

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extinguishment if the Court finds that the restriction is of no actual or substantial benefit to the person seeking to enforce it, either because its purpose has been accomplished or by reason of changed conditions or other cause its purpose is not capable of accomplishment, or for any other reason. The Court held, however, that defendant was properly denied an award for extinguishment of the restrictive covenant because he offered no proof of damages in quantifiable terms from extinguishment of the restriction.

IX. Right of First Refusal Cipriano v. Glen Cove Lodge #1458, B.P.O.E., 1 N.Y.3d 53 (2003), and Lin Broadcasting Corporation v. Metromedia, Inc., 74 N.Y.2d 54 (1989), dealt with the right of first refusal. The Lin opinion by Judge Stewart F. Hancock, Jr. stated that [t]he effect of a right of first refusal, also called a preemptive right, is to bind the party who desires to sell not to sell without first giving the other party the opportunity to purchase the property at the price specified. Unlike an option— in essence, an offer which by contract is to be kept open—right of first refusal does not, at the time it is given, include an operative offer. Rather it is a restriction on the power of one party to sell without first making an offer of purchase to the other party, upon the happening of a contingency: the owner’s decision to sell to a third party. Under a right of first refusal, the only offer involved is one to be made in the future, if and when the owner reaches agreement with a third party. . . . In sum, a right of first refusal merely provides that before an owner sells, it will first give the other party a chance to buy . . . [But] because an offer is exclusive it [does not] follow that it is also irrevocable that an offeree is the only person who can accept an offer while it is open does not mean that the offer cannot be withdrawn before it is accepted. 74 N.Y.2d, at 60–62, 64–65 (emphasis in original)

The Cipriano opinion, by Judge Albert M. Rosenblatt, distinguished Lin, stating that [t]he holder of a right of first refusal must be given the opportunity to exercise the preemptive right, but the right is extinguished when the contract with the third party expires or is abandoned. . . . A right of first refusal is a right to receive an offer, and the grantor’s failure or refusal to extend the holder the

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opportunity to exercise the right constitutes a breach. As we stated in Lin “the effect of a right of first refusal . . . is to bind the party who desires to sell not to sell without first giving the other party the opportunity to purchase the property at the price specified.” 1 N.Y.3d, at 59, 60

The opinion noted that a rider to the contract relieved the holder “of any obligation to bring any action or proceeding or to expend any sums of money or to incur any expense in order to render title marketable . Nevertheless the clause did not excuse the holder’s dereliction. Where a seller draws a prospective buyer with a transaction when it cannot possibly convey marketable title and then itself stymies the efforts of the buyer to remove the encumbrance, the seller may not rely on the language of the rider to keep the buyer’s down payment.” Id., at 62

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I. General Principles A. Express or Implied Decisions of the Court during the period covered by this book deal with a multitude of issues. Julian J. Studley, Inc. v. New York News, Inc., 70 N.Y.2d 628 (1987), and Grombach Productions Inc. v. Waring, 293 N.Y. 609 (1944), recognized that contracts could be implied a well as express, but both held that the record in each negated an implied contract. The Studley opinion stated that any implication of employment of plaintiff’s real estate broker as the seller’s agent in the real estate transaction involved was explicitly negated by plaintiff’s own signed agreement with the buyer reciting that plaintiff had “acted as [the buyer’s] agent” in the transaction. In Grombach, the president of the plaintiff corporation had testified that he had a telephone conversation with the defendant’s agent, in which he had expressed an idea he wanted to bring to the defendant’s attention. The court ruled that such disclosure had not been solicited by defendant or defendant’s agent, and even if it could be assumed that on a subsequent occasion defendant had caused to be performed in a radio broadcast elements common to plaintiff’s idea, the prior gratuitous, unsolicited disclosure by plaintiff’s president, unprotected by any contract, did not create an enforceable contract implied in law. There may, however, be an implied condition with respect to an express contract, as the Court has held in Grad v. Roberts, 14 N.Y.2d 70 (1964), Long Island

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Rail Road Company v. Northville Industries Corp., 41 N.Y.2d 455 (1977); 804 Third Ave. Co. v. MW Realty Associates, 58 N.Y.2d 447 (1983); Wieder v. Skala, 80 N.Y.2d 628 (1992), and Dalton v. Educational Testing Service, 87 N.Y.2d 384 (1995). The Grad decision stated the law contemplates fair dealing, not its opposite, so that persons invoking the aid of contracts are under implied obligation to exercise good faith not to frustrate contracts they have agreed to, there being in every case an implied undertaking by each party that he will not intentionally and purposely do anything to prevent the other party from carrying out the agreement on his part. Long Island Rail Road made clear, however, that a promise can be implied only where the Court may rightfully assume that it would have been made if attention had been drawn to it. 805 Third Ave. Co. held that the existence of economic duress is demonstrated by proof that one party to a contract has threatened to breach the agreement by withholding performance unless the other party agrees to some further demand. Wieder limited the rule of the earlier cases by holding that no obligation can be implied that would be inconsistent with other terms of the contractual relationship, and Dalton added that when the contract contemplates the exercise of discretion, the pledge includes a promise not to act arbitrarily or irrationally in exercising discretion, but that no obligation can be implied that would be inconsistent with the terms of the contractual relationship.

B. Statute of Frauds The effect of the Statute of Frauds has been an issue before the Court in: North Shore Bottling Co., Inc. v. C. Schmidt and Sons, Incorporated, 22 N.Y.2d 171 (1968); D&N Boening, Inc. v. Kirsch Beverages Inc., 63 N.Y.2d 449 (1984); Bajak International Corp. v. Mast Industries, Inc., 73 N.Y.2d 113 (1984); Parma Tile Mosaic & Marble Co., Inc. v. Estate of Fred Short, 87 N.Y.2d 524 (1996); and Messner Vetere Berger McNamee Schmetterer Euro RSCG, Inc. v. Aegis Group, PLC, 93 N.Y.2d 229 (1999). The North Shore opinion by then Chief Judge Stanley Fuld stated that the parties contemplated two possibilities: a long-term distributorship in plaintiff or a termination should defendant decide to discontinue beer sales in the New York area. The first of which would not in the ordinary case be performable within a year, the second would be. The existence of one of two contingencies performable within a year is sufficient to take the case out of the statute. Judge Jasen’s decision in Boening noted with respect to General Obligations Law § 5–701 that the Court analyzed oral agreements to determine if, according to the parties’ terms, there might be any possible means of performance within one year. If the agreement is susceptible of performance within

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that time, in whatever manner and however impractical, the Court has held the one-year statute inapplicable, a writing unnecessary, and the agreement not barred. Termination as a result of breach of the oral agreement is not performance within the meaning of the statute, and an oral agreement that by its own terms must continue for more than a year unless terminated by its breach is void. Bajak was a 4–3 ruling, the majority opinion by Judge Kaye, as she then was, and the dissent by Judge Alexander in which Judges Simons and Hancock concurred. It involved UCC 2–201(1) and (2) as they related to printed purchase order forms signed by Bajak but not by the customer, Mast. The majority opinion by Judge Kaye stated that the consequence of failure to give timely written notice of objection to a confirmatory writing is only to remove the bar of the Statute of Frauds. The burden of proving that a contract was made and its terms remained with the plaintiff, and that neither explicit words of confirmation nor express references to the prior oral agreement are required, the writings being sufficient if they afford a basis for believing that they reflect a real transaction between the parties. The position of the dissenters was that the UCC provisions denied a Statute of Frauds defense only to merchants who had reason to know of the contents of the writing, which must at least allow for a reasonable inference that a contract was made and therefore that the writing rests on a real transaction. Parma Tile was a decision written by Judge Smith which held that GOL. 5–701(a) proof of a binding contract requires a writing with subscription by the party to be charged, the purpose of the statute being to avoid fraud by preventing enforcement of contracts that were never made. It ruled that imprint of the sender’s name at the top of each page sent by fax did not satisfy the requirement for subscription by the sender as intended to authenticate a writing, citing Chief Judge Cardozo in Glinert & Levy, Inc v Cohen Bros Mfg Co, 245 N.Y. 305, 310 (1927). The opinion in Messner, also prepared by Judge Smith, and also dealing with the General Obligations Law sections, stated that a party may lose the benefit of the Statute of Frauds or waive its protection by inducing or permitting without remonstrance another party to the agreement to do acts, pursuant to and in reliance on the agreement, to such an extent and so substantial in quality as to irremediably alter the situation and make interposition of the statute against performance a fraud; that where part performance is relied on, the performance must be unequivocably referable to the agreement, and the acts of part performance must have been those of the party insisting on the contract, not those of the party insisting on the Statute of Frauds. AP Propane, Inc. v. Sperbeck, 77 N.Y.2d 886 (1991), points up the difference between the UCC and GOL provisions. It affirmed for the reasons stated in the

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opinion by Justice Howard A. Levine, as he then was, in 157 A.D.2d 27 (1990), which held that in light of the direct conflict between UCC 2–201 and the preUCC more general Statute of Frauds (GOL 5–701) the latter had been displaced by the particular provision of UCC 1–103.

C. Parol Evidence The function of parol evidence in relation to contracts has often been before the Court. Mallad Construction Corp. v. County Federal Savings and Loan Association, 32 N.Y.2d 285 (1973), held that to defeat a motion for summary judgment the opponent must present evidentiary facts sufficient to raise a triable issue of fact. Averments made stating conclusions of fact or of law are insufficient for the opponent to show that the agreement is ambiguous; the opponent must disclose in evidentiary form the particular parol evidence on which he relies. W.W.W. Associates, Inc. v. Giancontieri, 77 N.Y.2d 157 (1990), stated that whether or not a writing is ambiguous is a question of law to be resolved by the courts, and extrinsic evidence should not be considered to create an ambiguity in the agreement. Parol evidence is not admissible to create an ambiguity in a written agreement that is complete and clear and unambiguous on its face. An analysis beginning with consideration of extrinsic evidence of what the parties meant, instead of looking first to what they said and reaching extrinsic evidence only when required to do so because of some identified ambiguity, unnecessarily denigrates the contract and unsettles the law. Sutton v. East River Savings Bank, 55 N.Y.2d 550 (1982), was a decision by Judge Jacob Fuchsberg with a dissent by Judge Meyer, concurred in by Judges Matthew Jasen and Sol Wachtler. The majority opinion stated that had the tender of affidavits been by someone with knowledge of the facts, the courts below would have had to determine whether the agreement was so beset by ambiguity that determination of the intent of the parties required a trial at which a jury or other fact finder could clear up the ambiguity by passing on the credibility of the extrinsic evidence and whatever inference could reasonably be drawn therefrom. The threshold decision on whether a writing is ambiguous is the exclusive province of the court. In searching for the intent of the parties the Court’s goal must be to accord the words of the contract their fair and reasonable meaning, but unless there are reservations to the contrary, embraced in the interpretive result should be any promises that a reasonable person in the position of the promisee would be justified in understanding were included. The basis of the

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dissent was that interpretation of a writing such as the one involved in the case is, absent extrinsic evidence, normally for the Court.

D. Definiteness Cobble Hill Nursing Home, Inc. v. Henry & Warren Corporation, 74 N.Y.2d 475 (1989), in an opinion by Judge Kaye, held that few principles are better settled in the law of contracts than the requirement of definiteness. If an agreement is not reasonably certain in its material terms, there can be no legally enforceable contract. The requirement of definiteness assures that courts will not impose contractual obligations when the parties did not intend to conclude a binding agreement. Courts should not be “pedantic or meticulous” in interpreting contract expressions. Before rejecting an agreement as indefinite, a court must be satisfied that the agreement cannot be rendered reasonably certain by reference to an extrinsic standard that makes its meaning clear. A price term may be sufficiently definite if the amount can be determined objectively without the need for new expressions by the parties; a method for reducing uncertainty to certainty might, for example, be found within the agreement or ascertained by reference to an extrinsic event, commercial practice, or trade usage. 407 East 61st Garage, Inc. v. Savoy Fifth Avenue Corporation, 23 N.Y.2d 275 (1968). The opinion by Judge Charles D. Breitel, as he then was, dealt with definiteness concerning the term of the agreement. Savoy, which operated a hotel, entered into an agreement with the garage to provide services to hotel guests. The decision reasoned that the inference by the hotel that the garage knew of the hotel’s financial difficulties did not give rise, as a matter of law, to the conclusion that the contract implied a conditional termination should the hotel cease operation, but that upon trial the hotel could show a custom or usage, or any other circumstance that would, subject to the parol evidence rule, establish the correct interpretation or understanding of the agreement as to its term. The mere statement of a term in this kind of incidental service agreement would not necessarily be so free from ambiguity as to exclude extrinsic evidence, and that where responsibility or difficulty of performance is occasioned only by financial difficulty or economic hardship, even to the extent of insolvency or bankruptcy, performance of the contract is not excused. Nor do the applicable rules permit a party to abrogate a contract unilaterally merely upon a showing that it would be financially disadvantageous to perform it. However, Held v. Kaufman, 91 N.Y.2d 425 (1998), ruled that although an alleged oral agreement may not have contained a specified time for performance, this in itself does not constitute a

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form of indefiniteness that would, at the pleading stage, warrant dismissal on that basis.

E. Reformation Porter v. Commercial Casualty Insurance Company, 292 N.Y. 176 (1944), dealt with the peculiar meaning of words used in a contract between the parties. Involved was an insurance policy that the insurer claiming a mutual mistake sought to reformulate. The opinion by Judge Albert Conway stated that reformation must depend upon clear and convincing proof that both parties to the contract sued upon entered into it through mistake. The burden of proving a mutual mistake was upon the company; since this was a written instrument, it was necessary for it to establish that it was mistaken by evidence that is clear, positive, and convincing.

F. Conditions Precedent Oppenheimer & Co., Inc. v. Oppenheim, Appel, Dixon & Co., 86 N.Y.2d 685 (1995), defined a condition precedent as an “act or event, other than a lapse of time, which, unless the condition is excused, must occur before a duty to perform a promise in an agreement arises, unless the condition is as to formation of the contract itself. It held that an express condition must be literally performed, while constructive conditions are subject to the precept that substantial compliance is sufficient, that doubtful language will be interpreted by the courts as constructive rather than express (especially when a finding of express condition would increase the risk of forfeiture by the obligee), but that if nonoccurrence of a condition would cause disproportionate forfeiture a court may excuse nonoccurrence unless concurrence was a material part of the agreed exchange.

G. Partial Performance Farash v. Sykes Datetronics, Inc., 59 N.Y.2d 500 (1983), a 4–2 decision, held that an action to recover for the value of work performed by plaintiff in reliance on statements by and at the request of the defendant was not an attempt to enforce an oral lease or an oral agreement to enter into a lease, but was in disaffirmance of the void contract. However, whether denominated “acting in reliance” or “restitution,” it allows a promisee who partially performs by doing work in a building or at an accelerated pace to recover the fair and reasonable value of the performance rendered, regardless of the enforceability of the original agreement.

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H. Construction of Contract Wording Sutton v. East River Savings Bank, 55 N.Y.2d 550 (1982), held that the determination of whether a writing is ambiguous is the exclusive province of the Court, the goal of the Court in searching for the probable intent of the parties being to accord the words of the contract their fair and reasonable meaning, including any promises that a reasonable person in the position of the promisee would be justified in understanding were included. Schubtex, Inc. v. Allen Snyder, Incorporated, 49 N.Y.2d 1 (1979), dealt with the effect of trade usage on a prior course of dealing between the contracting parties. The court’s opinion stated that evidence of a trade usage on prior course of dealing between the parties could normally be utilized to supplement the express terms of a contract for the sale of goods, that rule applies as well to arbitration agreements, and as to both must be supported by evidence in the record, but mere retention by the buyer of the form containing the arbitration clause does not create an agreement to arbitrate even if the same form was used in subsequent transactions. Bajak International Corp. v. Mast Industries, Inc., 73 N.Y.2d 113 (1989), dealt with the effect of UCC 2–201 and 2–207(2) of failure to give timely written notice of objection to a confirmatory writing: removal of the bar of the Statute of Frauds. But it held that the burden of proving that a contract was made remains with the plaintiff, while the burden of proving the terms of the contract remains with the defendant, who, however, is free to urge that no contract was made or that it differed from the one claimed by the plaintiff. The earlier decision of the Court in 407 East 61st Garage, Inc. v. Savoy Fifth Avenue Corporation, 23 N.Y.2d 275 (1968), held that a hotel was not excused from its contractual obligation for services by a garage corporation although it had stopped operation during the term of the contract. Judge Breitel’s opinion for the Court ruled that, regardless of financial difficulty or economic hardship, if in fact the agreement expresses or implies a promise that the hotel would remain liable for the contract term, that promise should be honored. Matter of Wallace v. 600 Partners Co., 86 N.Y.2d 543 (1995), held in an opinion by Judge Carmen Ciparick that it is axiomatic that a contract is to be interpreted so as to give effect to the intention of the parties as expressed in the unequivocal language employed, a rule with great force in the context of real property transactions where commercial certainty is a paramount concern and where the instrument has been negotiated between sophisticated counseled business people negotiating at arm’s length. Uribe v. Merchants Bank of New York, 91 N.Y.2d 336 (1998), dealt with a safe deposit rental agreement between the bank and a gem merchant, which used the term “valuable papers” in stating

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what the box was leased to contain. Judge Joseph Bellacosa’s opinion noted that the reasonable expectation and purpose of the ordinary business person when making an ordinary business contract serve as guideposts to determine intent and that the custom of the gem trade to hold large amounts of cash in safe deposit for short periods should not be imputed to the average merchant and that the bank should not have to stand for the loss of cash stolen from the box when “legal tender,” a more apt term, was not authorized for storage in the box. Among cases construing contracts in relation to the language used are Sutton v. East River Savings Bank, 55 N.Y.2d 550, 555 (1982), and Brown Bros Electrical Contractors, Inc. v. Beam Construction Co., 41 N.Y.2d 397 (1977). As above noted Sutton ruled that in searching for the intent of the parties the Court’s goal must be to accord the words of the contract their fair and reasonable meaning; moreover, unless there are reservations to the contrary embraced in the interpretive result any promises which reasonable persons in the position of the promisee would be justified in understanding should be included. The Brown Bros. decision held that “the existence of a binding contract is not dependent upon the subjective intent of either party. In determining whether the parties entered into a contractual arrangement and what were its terms, it is necessary to look rather, to the objective manifestations of the intent of the parties as gathered by their expressed words and deeds. In doing so disproportionate emphasis is not to be put on any single act, phrase, or other expressions, but, instead, on the totality of all of these, given the attendant circumstances, the situation of the parties, and the objectives they were striving to attain.” 41 N.Y.2d, at 399.

I. Defenses to Contract Action Decisions of the Court have ruled with respect to a number of different defenses. Ortelere v. Teachers’ Retirement Board of the City of New York, 25 N.Y.2d 196 (1969), relied on the Restatement 2d Contracts statement of the rule that “[a] person incurs only voidable contractual duties by entering into a transaction if by reason of mental illness or defect . . . he is unable to act in a reasonable manner in relation to the transaction and the other party has reason to know of his condition.” Waiver was the basis of defense in Hadden v. Consolidated Edison Company of New York, 45 N.Y.2d 466 (1978), and Nassau Trust Company v. Montrose Concrete Products Corp., 56 N.Y.2d 175 (1982). The Hadden decision by Judge Lawrence Cooke, as he then was, stated that “a waiver, the intentional relinquishment of a known right, may be accomplished

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by express agreement or by such conduct or failure to act as to evidence an intent not to claim the purported advantage. . . . This general right to discharge was subject to waiver by words or conduct manifesting an election to forgo the power or privilege to terminate, but there had been no waiver the employee having failed to disclose material facts to the employer.” 45 N.Y.2d, at 469. In Nassau Trust in a 5–2 opinion by Judge Meyer the Court observed that “the cases are not always clear concerning whether what is being discussed is waiver, estoppel, bad faith, or unconscionable conduct.” 56 N.Y.2d, at 183. It held that while “estoppel requires detriment to the party claiming to have been misled, waiver requires no more than the voluntary and intentional abandonment of a known right which, but for the waiver, would have been enforceable . . . but [that], not being a binding agreement, can, to the extent it is executory, be withdrawn, provided the party whose performance was waived is given notice of withdrawal and a reasonable time after notice within which to perform.” 56 N.Y.2d, at 184. Mutual mistake was the basis for decision in Matter of Susan Gould v. The Board of Education of the Sewanhaka Central High School District, 81 N.Y.2d 446 (1993), and Matter of New York Agency and other Assets of Bank of Credit and Commerce Int’l., S.A., 90 N.Y.2d 410 (1997). In Judge Stewart Hancock’s opinion in Gould, the Court considered whether, when a teacher voluntarily relinquished rights in a tenured position where the teacher, the Superintendent, and the School Board mistakenly believed the teacher was resigning not from a tenured position but from an unprotected probationary position, the resignation was ineffective and could be rescinded, because the actions of both the petitioner and the Board had been premised on a mutual mistake of the fact that the petitioner was only a probationary employee. The New York Agency decision by Judge Richard C. Wesley stated that the doctrine of mutual mistake requires that the mistake exist at the time the contract is negotiated, and held it inapplicable because the parties were not mistaken at the time of contracting concerning the status of the Agency’s Tokyo branch. Misrepresentation was the basis for decision in Mercantile & General Reinsurance Co., PLC v. Colonial Assurance Company, 82 N.Y.2d 248 (1993). In a decision by Judge Richard Simons the Court held that under CPLR 4101 all issues pertaining to the equitable defense of material misrepresentation, whether matters of fact or of law, were to be determined by the Court, which need not contradict any factual finding of the jury in deciding the issues relating to breach of contract. The opinion reasoned that “a finding of material misrepresentation

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is not inconsistent with a finding that the parties entered into a contract, [because] the very essence of rescission is being to set aside a contract which is otherwise valid and binding.” Therefore, the trial court is free to decide the rescission claim de novo. There being evidence in the record to support the trial judge’s rescission finding, rescission was correctly ordered by the trial court. 82 N.Y.2d, at 253. Judge Joseph Bellacosa, in Matter of Robert L. Schulz v. State of New York, 81 N.Y.2d 336 (1993), defined laches as “such neglect or omission to assert a right as, taken in conjunction with the lapse of time, more or less great, and other circumstances causing prejudice to an adverse party operates as a bar in a court of equity . . . the essential element of this equitable defense is delay prejudicial to the opposing party.” Unconscionability was the subject of decision in Gillman v. Chase Manhattan Bank, N.A., 73 N.Y.2d 1 (1988), and Matter of the State of New York v. Avco Financial Service of New York, Inc., 50 N.Y.2d 383 (1980). The Gillman opinion by Judge Stewart Hancock held that [a]n unconscionable contract has been defined as one which is “so grossly unreasonable or unconscionable in the light of the mores and business of the time and place as to be unenforceable according to its literal terms.” The doctrine, which is rooted in equitable principles, is a flexible one and the concept of unconscionability is “intended to be sensitive to the realities and nuances of the bargaining process.” A determination of unconscionability generally requires a showing that the contract was both procedurally and substantially unconscionable when made—i.e., some showing of an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party. 73 N.Y.2d 1, at 10

Judge Jacob Fuchsberg’s Avco opinion noted that [a]s a general proposition, unconscionability, a flexible doctrine with roots in equity requires some showing of an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party. 50 N.Y.2d, at 389 (citation omitted)

Kel Kim Corporation v. Central Markets, Inc., 70 N.Y.2d 900 (1987), was a memorandum of the Court which involved a defense of impossibility. The memorandum stated that

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[i]mpossibility excuses a party’s performance only when the destruction of the subject matter of the contract or the means of performance make performance objectively impossible. Moreover the impossibility must be produced by an unanticipated event that would not have been foreseen or guarded against in the contract. . . . Ordinarily only if the force majeure clause specifically includes the event that actually prevents a party’s performance will that party be excused. . . . Nor does this inability fall within the catchall “or other similar causes beyond the control of such party.” The principle of interpretation applicable to such clause is that the general words are not to be given expansive meaning, they are confined to things of the same kind or nature as the particular matters mentioned. 70 N.Y.2d, at 902–3 (citations omitted)

Collateral estoppel may also constitute a defense. The Court so held in D’Arata v. New York Central Mutual Fire Insurance Company, 76 N.Y.2d 659 (1990), in an opinion by Judge Stewart Hancock. The case involved an action by a shooting victim who sought to recover from the insurer of the assailant the amount of a default judgment obtained against the assailant who had been convicted of first degree assault for the incident resulting in plaintiff’s injuries. The insurer’s policy expressly excluded bodily injury intended by the insured. The reasoning of the opinion was that an issue decided in a criminal proceeding may be given preclusive effect in a subsequent civil action, and that collateral estoppel requires the party seeking its benefit to prove that the same issue was necessarily decided in the prior action and is decisive in the present action, the burden being on the party seeking to defeat application of collateral estoppel to establish the absence of a full and fair opportunity to litigate the issue. It was not unfair to the assailant to apply collateral estoppel against plaintiff and permit plaintiff now to relitigate an issue which the jury had already determined under a higher standard of proof in the criminal case in which plaintiff himself gave evidence supporting the jury’s finding.

J. Damages The rules governing damages in contract cases have been discussed in Messmore v. The New York Shot and Load Company, 40 N.Y. 422 (1869); J.M. Rodriguez & Co., Inc. v. Moore-McCormack Lines, Inc., 32 N.Y.2d 425 (1973); Kenford Company, Inc. v. County of Erie, 73 N.Y.2d 312 (1989); American List Corporation v. U.S. News and World Report, Inc., 75 N.Y.2d 38 (1989); Goodstein Construction Corp. v. City of New York, 80 N.Y.2d 366 (1992); and Ashland

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Management Incorporated v. Janien, 82 N.Y.2d 395 (1993). The Messmore decision by Judge Charles Mason stated that [t]he general rule of damages, ordinarily, is the difference between the contract price and the market value of the article at the time and place of delivery fixed by the contract . . . . This rule, however, is changed when the vendor knows that the purchaser has an existing contract for a resale at an advanced price, and that the purchase is made to fulfill such contract, and the vendor agrees to supply the article to enable him to fulfill the same, because those profits which would accrue to the purchaser upon fulfilling the contract of resale, may justly be said to have entered into the contemplation of the parties in making the contract. 40 N.Y. 422, at 427

The Rodriguez decision, written by Judge Breitel, from which Judges Jones, Gabrielli, and Chief Judge Fuld dissented in part, held that “[t]he general rule is that damages for breach of contract are computed at the time of the breach. . . . The measure of damages for nondelivery of goods is the value of the goods at the port of destination at the time they should have been delivered.” 32 N.Y.2d, at 429. But it noted if a strike prevents unloading when the ship arrives that suspends the duty of the carrier to deliver the goods and if the delay is the proximate cause, the carrier is relieved of liability for deterioration during the period of delay. The applicable statute of limitations begins to run when the goods should have been delivered, and its market value on that day fixes the amount of damages. Given the longshoremen’s strike, the carrier must pay the market value as of the end of the strike—when the breach occurred. The Kenford opinion by Justice Milton Mollen2 ruled that “In order to impose on the defaulting party a further liability for damages [which] naturally and directly [flow from the breach,] i.e. in the ordinary course of things, arising from a breach of contract, such unusual or extraordinary damages must have been brought within the contemplation of the parties as the probable result of a breach at the time or prior to contracting.” . . . In determining the reasonable interpretation of the parties, the nature, purpose and particular circumstances of the contract known by the parties should be considered as well as “what liability the defendant fairly may be supposed to have assumed consciously, or to have warranted the plaintiff reasonably to suppose it assumed, when the contract was made.” . . . there is no provision in the contract between Kenford and the County, nor is there

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any evidence in the record to demonstrate that the parties, at any relevant time, reasonably contemplated or would have contemplated that the County was undertaking a contractual responsibility for the lack of appreciation in value of Kenford’s peripheral lands in the event the stadium was not built. 73 N.Y.2d 312, at 319–20 (citations omitted)

In American List, in an opinion by Judge Fritz Alexander, the Court held, “General damages are those which are the natural and probable consequence of the breach, while special damages are extraordinary in that they do not so directly flow from the breach. These extraordinary damages are recoverable only upon a showing that they were foreseeable and within the contemplation of the parties at the time the contract was made.” 75 N.Y.2d, at 42–43 (citations omitted). The Goodstein opinion by Judge Stewart Hancock noted that “Under the accepted rule of Hadley v. Baxendale (9 Exch 341, 156 Eng Rep 145 [1854]), it must be shown “that the particular damages were fairly within the contemplation of the parties to the contract at the time it was made . . . [but agreed with the City’s argument that under the rule of that case] loss of profits based on fulfillment of the terms of the contract being negotiated could not have been reasonably contemplated as damages for a breach of the agreement to negotiate those very contractual terms.” 80 N.Y.2d, at 374 (citations omitted). Finally to be noted is the Ashland decision written by Judge Richard Simons: [a] party may not recover damages for lost profits unless they were within the contemplation of the parties at the time the contract was entered into and are capable of measurement with reasonable certainty. . . . The party breaching the contract is liable for those risks foreseen or which should have been foreseen at the time the contract was made. The breaching party need not have foreseen the breach itself, however, or the particular way the loss came about. It is only necessary that loss from a breach is foreseeable and probable. [But that] damages be reasonably certain does not require absolute certainty. . . . It requires only that damages be capable of measurement based upon known reliable factors without undue speculation. 82 N.Y.2d 395, at 403 (citations omitted)

II. Rights of Third Party Beneficiary That third party beneficiary law is to contracts law what privity is to torts is suggested by Judge Cardozo’s oft-quoted lines from his opinion in Ultramares Corp.

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v. Touche, 255 N.Y. 171, 180–81 (1931): “The assault upon the citadel of privity is proceeding in these days apace. . . . In the field of the law of contract there has been a gradual widening of the doctrine of Lawrence v. Fox (20 N.Y. 268), until today the beneficiary of a promise, clearly designated as such, is seldom left without a remedy.” As noted in Judge Desmond’s opinion in Feiger v. Glen Oaks Village, Inc., 309 N.Y. 527, 535 (1956), the Lawrence v. Fox “doctrine makes actionable a promise made by a defendant upon valid consideration to a third person for the benefit of the plaintiff although the plaintiff was not privy to the consideration.” As the Court recently stated in State of California Public Employees Retirement System v. Shearman & Sterling, 95 N.Y.2d 427, 434–35 (2000), “A party asserting rights as a third party beneficiary [of a contract] must establish ‘(1) the existence of a valid and binding contract between other parties, (2) that the contract was intended for his benefit and (3) that the benefit to him is sufficiently immediate, rather than incidental, to indicate the assumption by the contracting parties of a duty to compensate him if the benefit is lost’” (citations omitted). But, as it was put in Fourth Ocean Putnam Corp. v. Interstate Wrecking Co., Inc., 66 N.Y.2d 38, 45 (1985): “Rather than duty, we have emphasized when upholding the third party’s right to enforce the contract that no one other than the third party can recover if the promisor breaks the contract or that the language of the contract otherwise clearly evidences an intent to permit enforcement by the third party, as by fixing the rate or price at which the third party can obtain services or goods, even though there was no duty of the promisee to the third party” (citations omitted). The Fourth Ocean opinion also adopted (id., at 44) the Restatement (Second) of Contracts terminology of “intended beneficiary” and “incidental beneficiary” in place of the terms “donee beneficiary” and “creditor beneficiary,” which had been used in earlier case law, and held that “[e]ssential to status as an intended beneficiary . . . is either that ‘performance of the promise will satisfy an obligation of the promisee to pay money to the beneficiary or that the circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance’” (id., at 44). It is not necessary that third-party beneficiaries be identified or identifiable at the time of making the contract, but the beneficiary has no right to enforce the contract until he is identified, Matter of Associated Teachers of Huntington, Inc. v. Board of Education Union Free School District No. 3, 33 N.Y.2d 229, 234 (1973), and a person seeking to enforce a contract as a third-party beneficiary has the burden of demonstrating that he has enforceable rights thereunder. Flemington National Bank & Trust Company v. Domler Leasing Corp., 65

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A.D.2d 29, 34 (1978), affd 48 N.Y.2d 678 (1979). But, the Court noted in Port Chester Electrical Construction Corp. v. Atlas, 40 N.Y.2d 652, 655–56 (1976), difficulty may be encountered in applying the intent to benefit test in construction contracts because of the multiple contractual relationships involved and because performance ultimately, if indirectly, runs to each party of the several contracts, wherefore it is generally held that a construction contract that does not expressly state that the intention of the contracting parties is to benefit a third party, does not give third parties who contract with the promisee the right to enforce the latter’s contract with another, such parties being considered mere incidental beneficiaries. Notable also is the statement in Judge Bernard S. Meyer’s opinion in Burns Jackson Miller Summit & Spitzer v. Lindner, 59 N.Y.2d 314, 335 (1983), that “[a] third party may be the beneficiary of a public as well as a private contract. He may recover, however, by establishing (1) the existence of a valid and binding contract between other parties, (2) that the contract was intended to be for his benefit and (3) that the benefit to him is sufficiently immediate, rather than incidental, to indicate the assumption by the contracting parties of a duty to compensate him if the benefit is lost.”

III. Employment at Will The common law rule governing employment relationships is the presumption that employment for an indefinite or unspecified term is at will and may be terminated by either party at any time without cause or notice. Martin v. New York Life Insurance Company, 148 N.Y. 117 (1895). The rule has been before the Court in Weiner v. McGraw-Hill, Inc., 57 N.Y.2d 458 (1982); Murphy v. American Home Products Corporation, 58 N.Y.2d 293 (1983); Sabetay v. Sterling Drug, Inc., 69 N.Y.2d 329 (1987); Wieder v. Skala, 80 N.Y.2d 628 (1992); and most recently in a 5–1 ruling in Horn v. The New York Times, 100 N.Y.2d 85 (2003). The Horn opinion by Judge Susan Read reviews each of the earlier decisions and concludes that the narrow exception adopted in Wieder does not encompass a physician employed by a nonmedical employer. In Weiner, she noted the employee’s handbook stated that McGraw would not dismiss without just cause or an opportunity for rehabilitation and would resort to dismissal for just and sufficient cause only after all practical steps to rehabilitate the employee had been taken and failed. Wieder had recognized what the Court characterized as a “narrow exception” to New York’s general rule recognizing the right of an employer to discharge an

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employee under an at will employment relationship. The Court rejected plaintiff’s claim in Horn that Wieder, which involved employment of plaintiff attorney by a law firm, supported plaintiff’s claim that the professional obligations and relationship involved in the practice of medicine were analogous to those present in the practice of law in Wieder. The Court stated that the only exceptions to the employment-at-will rule ever adopted by this Court have involved very specific substitutes for a written employment contract in Weiner: the employer’s express, unilateral promise on which the employee relied; in Wieder, the parties’ mutual undertaking to practice law in compliance with DR 1–103(A), a rule so fundamental and essential to the parties’ shared professional enterprise that its implication as a term in their employment agreement aided and furthered the agreement’s central purpose. We have consistently declined to create a common law tort of wrongful or abusive discharge, or to recognize a covenant of good faith and fair dealing to imply terms grounded in a conception of public policy into employment contracts, as the dissent would have us do, and we again decline to do so. The good and sufficient reasons underlying this forbearance, so eloquently expressed by Judge Jones in Murphy, have not changed, . . . and Horn has presented us with no compelling reason in the facts of this case to expand the Wieder exception to the at-will employment rule. 80 N.Y.2d 628, at 96–97

The Court also noted that “the Legislature remains active in this area, just last year having enacted a new Whistleblower Law to protect certain health care workers (see Labor Law § 741).” (Footnote 4.) Murphy, Sabetay and Wieder (in addition to the claim based on the professional obligations of attorneys) each sought to rely upon a covenant of good faith and fair dealings, claiming it was breached in part by plaintiff’s discharge for reporting accounting improprieties to the management, which the Court refused to do, on the grounds that such a significant change in the law is best left to the Legislature. In an extended dissent Judge Smith concluded that Horn had stated a claim for breach of contract between herself and the Times.

IV. Tortious Interference with Contract Lamb v. S. Cheney & Son, 227 N.Y. 418 (1920), and Hornstein v. Podwitz, 254 N.Y. 443 (1930), reviewed decisions of England, New York, Federal, and other

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state courts. The Court “rule is that if one maliciously interferes with a contract between two parties, and induces one of them to break that contract, to the injury of the other, the party injured can maintain an action against the wrongdoer. . . . The act is malicious when the thing done is with knowledge of plaintiff’s rights and with intent to interfere therewith. . . . It does not mean actual malice or ill-will, but consists in the doing of a wrongful act without legal justification.” 227 N.Y., at 421–22. See also Hornstein, supra, at 448; North Shore Bottling Co., Inc. v. C. Schmidt and Sons, Incorporated, 22 N.Y.2d 171 (1968); Israel v. Wood Dolson Company, Inc., 1 N.Y.2d 116 (1956), and Guard-Life Corporation v. S. Parker Hardware Manufacturing Corp., 50 N.Y.2d 183 (1980), which relied not only on New York case law but also on the Restatement of Torts 2d, § § 766–768. Rocanova v. Equitable Life Assurance Society of the United States, 83 N.Y.2d 603 (1994), made clear, however, that such a tort was not a basis for award of punitive damages, holding that “a private party seeking to recover punitive damages must not only demonstrate egregious tortious conduct by which he or she was aggrieved, but also that such conduct was part of a pattern of similar conduct directed at the public generally.” 83 N.Y.2d, at 613.

V. Employee’s Obligation Re Confidential Information3 Limitation of an employee’s right to use confidential information may arise from specific contract provisions, sometimes spoken of as trade secret provisions or anti-compete clauses, or from the fiduciary nature of the relationship. The rules apply notwithstanding that the employment relationship is terminable at will. A.S. Rampell, Inc. v. Hyster Company, 3 N.Y.2d 369, 372 (1957). However, by its affirmance without opinion in Harry R. Defler Corp. v. Kleeman, 19 N.Y.2d 694 (1967), of the Appellate Division’s decision, reported at 19 A.D.2d 396 (1963), the Court made clear that a specific contract provision is not required, that an employee to whom has been entrusted confidential information concerning the conduct or clientele of the employer’s business that he or she would not have obtained were he or she not a trusted employee, which gives him or her an advantage over competitors to whom the information is not available, may not use the information to his or her own advantage, whether or not the agreement includes specific provision to that effect. 19 A.D.2d at 401. The fiduciary nature from which springs the obligation to one’s co-venturer has been considered by the Court in Meinhardt v. Salmon, 249 NY 458 (1928); as to an interest in real estate, in Duane Jones Company, Inc. v. Burke, 306 N.Y. 172 (1954); as to employees of an advertising agency and as to lawyers in

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Graubard Mollen Dannett & Horowitz v. Moskovitz, 86 N.Y.2d 112 (1995). The Graubard decision noted that as a matter of ethics departing partners had been permitted to inform firm clients with whom they had a prior professional relationship about their impending withdrawal, but stated that ideally such approaches would take place only after notice to the firm of the partner’s plan to leave, and that secretly attempting to lure clients to the new association, lying to clients about the choice of counsel, lying to partners about plans to leave, and leaving the firm on short notice, taking clients and files, would violate a partner’s fiduciary duties. As the Court noted in Purchasing Associates v. Weitz, 13 N.Y.2d 267, 271 (1963), at one time a covenant not to compete, basically an agreement in restraint of trade, was regarded with high disfavor by the courts, but later cases recognized that there were situations in which enforcement of such a covenant was essential. The first was the sale or lease by an owner, partner, or major stockholder of an interest in a business, for a consideration that was, in part, payment for goodwill. The second was a covenant by an employee or partner made at the commencement of or during employment not to compete or use trade secrets after the employment or partnership ended. In such latter cases the courts have displayed, as a matter of public policy, a stricter attitude, enforcing it only to the extent necessary to prevent use or disclosure of the former employer’s trade secrets, processes, or formulae; or solicitation of or disclosure of information concerning the latter’s customers; or, if the employee’s services were special, unique, or extraordinary, enforcing it by injunctive relief even though the employment had involved neither trade secrets nor customer lists. Unique or extraordinary services were defined as services of such character as to make the employee’s replacement impossible or such that the loss of his services would cause the employer irreparable injury. Purchasing Associates v. Weitz, supra, at 272–74. Note, however, concerning the availability of injunctive relief, footnote 6 of American Broadcasting Companies v. Wolf, 52 N.Y.2d 394 (1981), stating that “No New York case has been found where enforcement has been granted, following termination of the employment contract, solely on the basis of uniqueness of services,” but compare the decision in Associated Newspapers v. Phillips, 294 F. 845 (2nd Cir. 1923), which lists at p. 850 a number of New York cases, one of which Duff v. Russell, 14 NYS 134 affd 133 NY 678 (1892), was affirmed by the New York Court of Appeals on the basis of the decision at Special Term. Of interest on the question of uniqueness, though not binding on the New York Court of Appeals, is the Second Circuit’s decision in Ticor Title Insurance Co. v. Cohen, 173 F.3d 63 (1999), a diversity case analyzing New York law, which dealt at length with New York decisions on uniqueness.

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The basic rules concerning such agreements are well summarized in BDO Seidman v. Hirshberg, 93 N.Y.2d 382 (1999), which involved an employee’s agreement made at the time of receiving promotion to pay his former employer, as to any of the clients of the employer’s Buffalo office who became a client of the employee within eighteen months after termination of his employment, one and a half times the last annual billing for such client. The Court noted that such an anti-competitive agreement will be carefully scrutinized by the courts, citing Columbia Ribbon & Carbon Mfg. Co. v. A-1-A Corp., 42 N.Y.2d 496 (1977), that a restraint was reasonable only if it (1) is no greater than is required for protection of the legitimate interest of the employer, (2) does not impose undue hardship on the employee, and (3) is not injurious to the public. Such an agreement may be implied in fact for the term of employment but will not be implied for a post-employment period. American Broadcasting Companies v. Wolf, supra. The BDO Seidman decision recognized, however, that as to agreements between professionals, the Court had given greater weight to the interests of the employer in restricting competition within a confined geographical area, because such professionals are deemed to provide “unique or extraordinary” services. Citing Gelder Medical Group v. Webber, 41 N.Y.2d 680 (1977), Reed Roberts Associates v. Strauman, 40 N.Y.2d 303 (1976), and Karpinski v. Ingrasci, 28 N.Y.2d 45 (1971), it held that certified public accountants are a learned profession.4 It noted, however, that a law firm partnership’s anti-competitive clause, which resulted in forfeiture of earned income to which the departing partner was otherwise entitled, was invalid, not as a matter of anti-compete law but because in violation of DR 2–108(A) of the Code of Professional Responsibility,5 citing Cohen v. Lord Day & Lord, 75 N.Y.2d 95 (1989), and Denberg v. Parker Chapin Flattau & Klimpl, 82 N.Y.2d 375 (1993). The Court, however, expressly characterized the Cohen holding as a narrow one, not to be categorically interpreted or applied. The Cohen decision held (at p. 100) that the retirement exception of DR 2–108(A) did not authorize enforcement of the forfeiture facet of the firm’s partnership agreement that would have terminated his interest in firm profits after retirement, and the Denberg Court ruled that one provision violated DR 2–108(A). It would have applied only to lawyers continuing in private practice but not to lawyers (e.g., government attorneys) who do not threaten the firm’s client base and would have required a departing partner to pay the greater of two amounts, one of which was to be computed on the basis of billings to former clients of the firm, and would have excepted partners who receive relatively lower earnings, but only if no prior firm client is served.

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The BDO Seidman decision held further that the only justification for imposing an employee agreement not to compete is to forestall unfair competition by using confidential information acquired in the course of employment, that a former employee may fairly compete for the employer’s clients by refraining from unfair means to compete, such as using confidential information acquired in the course of employment, and that applying the covenant to clients with whom the employee did not perform direct services would be invalid as being greater than needed to protect the employer’s legitimate interests, unless the employee used confidential firm information to obtain for his firm clients with whom he had not had a relationship during employment. To that extent it held the BDO agreement was invalid and unenforceable,6 except as to clients of the employer firm who came to it solely to obtain the employee’s services and only as a result of his own independent recruitment efforts. The Court held that the time and geographical limitations of the agreement met the test of reasonableness, except, as it included the employer’s clients with whom the employee had no direct relationship, it was greater than needed to protect the employer and that as limited there would be no injury to the public interest, but that, as earlier held in the Karpinski case, the Court could sever the invalid portions and grant partial enforcement of the covenant if on specific analysis it found that the employer had sought only to protect its legitimate business interests. It concluded that, there being no evidence of coercion or bad faith or of a general plan to forestall competition, partial enforcement of the contract covenant was warranted. As to damages, it held that since the employer’s actual lost profits would be difficult to determine with precision, the liquidated damage provision of the agreement was binding unless the Court found the amount fixed to be so excessive as to constitute a penalty. Note, however, that in Columbia Ribbon & Carbon Mfg. Co. v. A-1-A Corp., supra, the Court of Appeals held that partial enforcement would not be decreed when the employer’s affidavit presented no basis for so doing. The Court of Appeals has held in Ashland Management Inc. v. Janien, 82 N.Y.2d 395, 407 (1993), that there is no generally accepted definition of a trade secret other than that in section 757 of the Restatement of Torts, comment b,7 which it had previously cited with approval, that definition being “any formula, pattern, device, or compilation of information which is used in one’s business, and which gives him an opportunity to obtain an advantage over competitors who do not know or use it,” which is generally a question of fact. Earlier the Court had held in Leo Silfen, Inc. v. Cream, 29 N.Y.2d 387 (1972), that where the employer’s customers were readily ascertainable as likely prospects an ex-employee would not be enjoined from engaging in fair and open competition with his former

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employer, the more so where the employee had proved that he had solicited only 47 of the 1,100 customers in the employer’s customer list and the employer had not shown that the employee appropriated the customer list with respect to any customer but rather those customers were otherwise readily discoverable by the former employee. Finally, as noted above, in American Broadcasting Companies v. Wolf, supra, the Court held that an anti-compete agreement can he implied if the employee whose services are unique has agreed not to work elsewhere than for the employer during the period of his services, but that such a covenant would not be implied with respect to the post-employment period. The Court also noted that under the unique circumstances of that case although injunctive relief would be denied, its decision was without prejudice to ABC’s right to seek relief in the form of monetary damages. 52 N.Y.2d, at 406. To be noted, however, are the decisions in Hackett v. Milbank, Tweed, Hadley & McCloy, 80 N.Y.2d 870 (1992), and 86 N.Y.2d 146 (1995), Matter of Sprinzen, 46 N.Y.2d 623, 631 (1979), and City of New York v. Uniformed Firefighters Association, Local 94, IAFF, AFL-CIO, 58 N.Y.2d 957, 958 (1983). The Sprinzen decision upheld an arbitrator’s award enjoining an employee who had agreed that upon termination of his employment he would not engage in organizing workers, either as an individual or as part of a labor organization, within the states of New York, Pennsylvania, New Jersey, and Connecticut for a period of five years, from such activities for his new employer in Manhattan and Staten Island. The Court held “that disputes involving restrictive covenants of employment can be, by mutual consent of the parties, submitted to arbitration, and an arbitrator’s award which specifically enforces such covenants, even to the extent of enjoining an individual from engaging in like employment for a reasonable period of years in the future, will not be vacated on public policy grounds.” The City of New York decision, citing Sprinzen, upheld an arbitration award enjoining use of civilian inspection employees in fire department districts, holding that the award “can only be overturned if it is contrary to law or if ‘without engaging in extended factfinding or legal analysis . . . [the Court can] conclude that public policy precludes its enforcement.’” The first Hackett decision held that petitioner-attorney’s claim that an arbitrator’s award denying him supplemental payments after withdrawal from the law firm would be contrary to public policy was insufficient to preemptively stay arbitration and should be addressed in a motion to vacate the arbitrator’s award if such an award is in fact made. The second Hackett decision held that the arbitrator’s determination that the law firm’s denial of supplemental payments upon petitioner’s withdrawal from the firm was “competition neutral” and did not contravene the public policy concerns upon which the Cohen and Denberg

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rulings were based. Noting the strong public policy favoring arbitration the Court held (86 N.Y.2d at 157) that “[w]here the parties have agreed to submit their dispute to binding arbitration, an award that is not clearly in violation of public policy should be given effect” and concluded that the arbitrator’s award to Hackett “both factually and legally answers the challenge raised by [him]” (id. at 158).

14. Torts

I. Privacy—Civil Rights Law §§ 50 and 51 A. Enactment In 1902, in Roberson v. Rochester Folding Box Co., 171 N.Y. 538, a 4–3 decision, the Court concluded “that the so-called ‘right of privacy’ has not yet found an abiding place in our jurisprudence,” and a number of later decisions have continued to hold that New York does not recognize a common law right of privacy. Cf. Messenger v. Gruner + Jahr Printing and Publishing, 94 N.Y.2d 436 (2000). Prosser, in his article on privacy in 48 California Law Rev. 383, 385 (1960), noted that the Roberson decision was greeted with “a storm of disapproval which led one of the concurring judges to take the unprecedented step of publishing a law review article in defense of the decision,” citing O’Brien, “The Right to Privacy,” 2 Columbia Law Rev. 437 (1902). The Legislature responded at its 1903 session by enacting Chapter 132, effective September 1, 1903, which became sections 50 and 51 of the Civil Rights Law. Section 50 makes it a misdemeanor to use “for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person, or if a minor of his or her parent or guardian,” and section 51 as amended in 1995 provides, with limited exceptions, that “[a]ny person whose name, portrait, picture or voice is used within this state for advertising purposes or purposes of trade without the written consent first obtained [as provided in section 50] may maintain an equitable action . . . to

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prevent and restrain the use thereof and may also sue and recover damages for any injuries sustained by reason of such use” including if “knowingly used” exemplary damages “as the jury in its discretion may award.” However, “knowingly” means if the offender knows that the picture or portrait is that of a living person, Rhodes v. Sperry Hutchinson Co., 120 A.D. 467 (1907), aff’d 193 N.Y. 223 (1908), rev’d on other grounds 220 U.S. 502 (1911). CPLR § 215(3) expressly provides that such an action is subject to a one-year statute of limitations.

B. Construction 1. NEWSWORTHINESS

Although CRL § 51 makes no mention of a newsworthiness exception, the Court, interpreting the statute to give effect to the legislative intent, Stephano v. News Group Publications, Inc., 64 N.Y.2d 174, 184 (1984), has held that it is to be narrowly construed and is not applicable to newsworthy events or matters of public interest, because a newsworthy article is not deemed produced for the purposes of advertising or trade. Messenger v. Gruner + Jahr Printing and Publishing, supra, at 441 (2000); Howell v. New York Post Co., 81 N.Y.2d 115, 123 (1993); Finger v. Omni Publications International Ltd., 77 N.Y.2d 138, 141–142 (1990). The critical factor is whether the content of an article is newsworthy, which is a question of law, and not the defendant’s motive to increase circulation. Freihofer v. Hearst Corporation, 65 N.Y.2d 135, 140–41 (1985). Thus the “newsworthy exception” is to be liberally applied, Finger, supra, at 142, judicial intervention occurring only when there is no real relationship between an article and plaintiff’s photograph or where the article is an advertisement in disguise, Finger, supra, at 143, “even if the use of [plaintiff’s] likeness creates a false impression about the plaintiff,” Messenger, supra, at 447. Use for advertising purposes is, however, distinct from purposes of trade and is liberally construed. Beverley v. Choices Women’s Medical Center, Inc., 78 N.Y.2d 745, 751 (1991). For example, use by a hospital in its calendar of a doctor’s photograph without her consent, but with the hospital’s name, logo, and address on each page, and the calendar being widely distributed, was “an advertisement or solicitation for patronage” (id.). Murray v. New York Magazine Co., 27 N.Y.2d 406, 409 (1971), however, held that “[a] picture illustrating an article on a matter of public interest is not considered used for the purpose of trade or advertising within the prohibition of the statute . . . unless it has no real relationship to the article . . . or unless the article is an advertisement in disguise.” The magazine company had printed plaintiff’s picture on its cover under the

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title of an article in its March 17th issue: “The Last of the Irish Immigrants.” The picture was one taken of plaintiff in a prior year when he had attended the St. Patrick’s Day Parade and when he was wearing typically Irish garb. The Court held the company entitled to summary judgment since it could not be said that the photograph was not related to the subject matter of the article, even though it may have stimulated sales of the magazine. Applying these principles, courts have held that a wide variety of articles on matters of public interest—including those not readily recognized as “hard news”—are newsworthy (see, e.g., Stephano v. News Group Publs., supra, 64 N.Y.2d, at 179–86 [picture of plaintiff in “African garb” wearing leather bomber jacket in column about “new and unusual products and services”]; Abdelrazig v. Essence Communications, 225 A.D.2d 498 [picture of plaintiff in “African garb” concerned “newsworthy fashion trends in the Black community”], lv. denied 88 N.Y.2d 810; Creel v. Crown Publs., 115 A.D.2d 414 [picture of plaintiffs illustrating guide to nude beaches]; Lopez v. Triangle Communications, 70 A.D.2d 359, 360 [“make-over” pictures in Seventeen magazine]; Rand v. Hearst Corp., 31 A.D.2d 406, 407–11 [quotation on book cover comparing author to plaintiff], aff’d. 26 N.Y.2d 806; Stern v. Delphi Internet Servs. Corp., 165 Misc.2d 21, 22–27 [lewd photograph of plaintiff used in connection with promotion for Internet news service]; Welch v. Group W. Prods., 138 Misc.2d 856 [use of television commercial in connection with Clio awards]; Namath v. Sports Illustrated, 80 Misc.2d 531, 533–35 [photographs of plaintiff in promotional material], aff’d. 48 A.D.2d 487, aff’d. 39 N.Y.2d 897; Ann-Margret v. High Society Magazine, 498 F Supp. 401, 405 [partially nude photograph of plaintiff]). Messenger, supra, 94 N.Y.2d, at 442 2. FICTIONALIZATION

Hill v. Hayes, 18 A.D.2d 485 (1963), affd on the majority and concurring opinions below, 15 N.Y.2d 986 (1965), involved the Hill family who were held captive for nineteen hours by three escaped convicts. A book by defendant Hayes entitled The Desperate Hours was later made into a play. When the play opened Life magazine published an article about it which stated, “Now you can see the story reenacted.” The Appellate Division opinions, affirmed by the Court of Appeals, stated that “[a]lthough the play was fictionalized, Life’s article portrayed it as a reenactment of the Hills’ experience” and concluded that this was done to advertise and attract further attention to the play and to increase Life’s circulation as well.

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Torts

Fictionalization came before the Court again in Spahn v. Julian Messner, Inc., 18 N.Y.2d 324 (1966), remanded 385 U.S. 374 (1966), after reargument 21 N.Y.2d 124 (1967). The first Court decision held that though Warren Spahn, a well-known baseball player, was a public personality, he was entitled to an injunction and damages for the unauthorized publication of the book which the Appellate Division had found (23 A.D.2d, at 221) constituted “dramatization, manipulated chronologies, and fictionalization of events.” Based on the number of instances of falsification in the book, the Court found CRL § 51 applicable and not in violation of the Federal Constitution. After remand by the United States Supreme Court the Court of Appeals held Spahn to be a public figure, and that before a public figure could recover for an unauthorized presentation of his life he must show “that the presentation is infected with material and substantial falsification and that the work was published with knowledge of such falsification or with a reckless disregard of the truth.” 21 N.Y.2d, at 127. However, in Messenger, supra, over a strong dissent by Judge Bellacosa, the majority, relying on the “value of uninhibited discussions of newsworthy topics,” held that “where a plaintiff’s picture is used to illustrate an article on a matter of public interest, there can be no liability under sections 50 and 51, unless the picture has no real relationship to the article or the article is an advertisement in disguise. That has been so even where a plaintiff’s photograph, when juxtaposed with an article, could reasonably have been viewed as falsifying or fictionalizing plaintiff’s relation to the article.” 94 N.Y.2d, at 442–443 (citations omitted). 3. CONSENT

CRL § § 50 and 51 considered together require prior to use, the written consent of any living person whose name, portrait, picture, or voice is sought to be used for advertising purpose or purposes of trade. Neither oral nor implied consent is a complete defense, though either is available as a partial defense in mitigation of damages. Caesar v. Chemical Bank, 66 N.Y.2d 698 (1985). If the written consent is limited as to the time, form, or forum, use after expiration of the effective period of consent or in violation of such other limitation is use without consent. Stephano v. News Group Publishing, Inc., supra; Dzurenko v. Jordache, Inc., 59 N.Y.2d 788 (1983); Welch v. Mr. Christmas, 57 N.Y.2d 143 (1982). However, the written consent of a parent or guardian to use of an infant’s name, portrait, picture, or voice may not be disaffirmed by the infant. Shields v. Gross, 58 N.Y.2d 338 (1983). 4. OTHER LIMITATIONS

CRL § 50 speaks of use of the name, portrait, or picture “of any living person,” and § 51 is expressly limited to “use within this state.” Whether section 50

Torts 475

applies to use after the person dies is unclear. See Stephano v. News Group Publications, Inc., supra, although if the consent provides that use must cease when the person involved dies, use after his or her death would give rise to an action for breach of contract. See Stephano, supra, at 186. Section 51 by its terms excludes from the action provided by the statute, a use that is limited to a state other than New York.

C. Related Statutory Provisions The right to an injunction or damages or both is provided in the following statutes: CRL § 50-a, which protects from disclosure “without express written consent” or a court order the personnel records of police officers, firefighters, firefighter/paramedics, and correction officers; CRL § 50-b, which prevents disclosure “without consent” of the victim or the person legally responsible for the victim’s care or pursuant to a court order of the identity of a victim of a sex offense involving transmission of HIV; and 50-c, which gives such a victim the right to recover damages including reasonable attorney’s fees for wrongful disclosure; § § 50-d and 50-e, which protect from disclosure personnel records of court officers and bridge and tunnel officers, sergeants, and lieutenants, except as required by a grand jury or government agency in furtherance of official duties, or as ordered by a court. To be noted also are Public Health Law § 230(10)(g) and (m)(ii) re physician misconduct, which make the hearing committee’s conclusion as to an administrative warning confidential, but make public upon issuance the committee’s findings and conclusions as to annulment, suspension, or revocation of license, and protects a patient’s records unless the patient has “expressly consented,” or a court so orders, id., subd. (10)(l). As to attorney misconduct hearings, Judiciary Law § 90(10) makes them confidential, except as the Appellate Division orders, unless the charges are sustained. See also Domestic Relations Law § 235,1 Public Officers Law § 89(2), and Workers’ Compensation Law § 110-a.

II. Privity Privity law plays an important role not only in relation to liability for torts but also with respect to contracts2 and res judicata.3 With respect to torts, its development stems largely from two Cardozo decisions, Glanzer v. Shepard, 233 N.Y. 236 (1922), and Ultramares Corp. v. Touche, 255 N.Y. 170 (1931); but the number of cases decided by the Court during the period covered by this book attests

476

Torts

to the somewhat amorphous nature of the concept, as the Court has itself noted. See Ossining Union Free School District v. Anderson, 73 N.Y.2d 417, 421 (1989): “Courts have long struggled to define the ambit of duty or limits of liability for negligence, which in theory could be endless,” and Parrott v. Coopers & Lybrand LLP, 95 N.Y.2d 479 (2000): “This case requires us to examine, once again, the tripartite standard, set forth by this Court in Credit Allowance Corp. v. Arthur Andersen & Co. (65 N.Y.2d 536), for the functional equivalent of privity in a cause of action for negligent misrepresentation.” The Credit Alliance criteria for imposing negligence liability upon accountants has been restated most recently in Securities Investor Protection Corp. v. BDO Seidman LLP, 95 N.Y.2d 702 (2001), as follows: “We ask whether the accountant was aware that the reports were to be used for a particular purpose, whether in furtherance of such purpose a known party was intended to rely and, finally, whether there was some linking conduct which evinced the accountant’s understanding of that party’s reliance.” Similar statements are to be found in State of California Public Employees’ Retirement System v. Shearman & Sterling, 95 N.Y.2d 427 (2000); Parrott v. Coopers & Lybrand LLP, supra; Ossining Union Free School District, supra; Prudential Insurance Company of America v. Dewey, Ballantine, Bushby, Palmer & Wood, 80 N.Y.2d 377 (1992); Security Pacific Business Credit Inc. v. Peat Marwick Main & Co., 79 N.Y.2d 695 (1992); Iselin & Co. v. Mann Judd Landau, 71 N.Y.2d 420 (1988); and Westpac Banking Corp. v. Deschamps, 66 N.Y.2d 16 (1985). Foreseeability is not enough, even though the reliant party was actually known or foreseen, if the defendant’s conduct did not link it to the reliant party or parties. Parrott v. Coopers & Lybrand LLP, supra, at 484; Security Pacific Business Credit, Inc. supra, at 702–3. Most of the above-cited cases involved accountants, but the principle for which they stand has been applied to other professions, e.g., Prudential Insurance Co., supra, (lawyers);4 Ossining Union Free School District, supra (engineering consultant); (public weighers) (Glanzer v. Shepard, supra, cited in the Ossining opinion, supra; and see Coopers & Lybrand, supra). When a defendant moves for summary judgment, the absence of either a contract or a relationship approaching privity with the plaintiff must be demonstrated, and if so plaintiff to defeat the motion must present admissible evidence establishing each of the three elements of the Credit Alliance test. Iselin & Co., supra, at 425. It is not enough, however, that defendant accountants who prepared a borrower’s financial statement were aware that the borrower was a prime candidate for a loan, no other link between defendants and plaintiff lender being shown, even though Federal securities law provides that accountants may have statutory liability to the public, the action against the accountants being one for negli-

Torts 477

gence in preparation of the statement. Westpac Banking Corp. v. Deschamps, 66 N.Y.2d 16 (1985). But Ossining Union Free School District, supra, held sufficient linkage to have been shown between plaintiff school district and the defendant engineers retained by the architectural firm employed by the school district, when the engineers had direct contact with the school district, from information transmitted by the architectural firm, and from the nature of the work they were to perform, that the substance of their reports would be transmitted to and relied upon by the school district.

The 1929–32 Court, Chief Judge Benjamin Nathan Cardozo (center)

The 1945 Court, Irving Lehman, Chief Judge (front, center)

The 1950 Court, John T. Loughran, Chief Judge (front, center)

The Court as it was in the period 1955–59

The Court as it was in 1960

The 1971 Court, Stanley H. Fuld, Chief Judge (front, center)

The 1975 Court, Charles D. Breitel, Chief Judge (front, center)

The 1983 Court, Lawrence H. Cooke, Chief Judge (center)

The 1992 Court, Sol Wachtler, Chief Judge (front, right)

The 1993 Court, Judith S. Kaye, Chief Judge (front, right)

Chief Judge Judith S. Kaye

The Court of Appeals building as seen from the front

Members of the Court of Appeals in conference

The courtroom

15. Corporations

1

I. Successor Corporation’s Liability for Predecessor Corporation’s Acts In general, a corporation that acquires the assets of another is not liable for the torts of the predecessor. Schumacher v. Richards Shear Co., Inc. 59 N.Y.2d 239 (1983). As noted in that case, however, exceptions to that rule are recognized if (1) the successor expressly or impliedly assumed the predecessor’s tort liability, (2) there was a consolidation or merger of seller and purchaser, (3) the purchasing corporation was a mere continuation of the selling corporation, or (4) the transaction was entered into fraudulently to escape tort obligations. Accord GrantHoward Associates v. General Housewares Corp., 63 N.Y.2d 291, 296 (1984). A single service call by the purchaser to the successor corporation is not sufficient to establish a special relationship between the successor corporation and the purchaser of the predecessor corporation’s product, Sullivan v. Joy Manufacturing Co., 70 N.Y.2d 806 (1987), nor is there a duty on the manufacturer or its successor to warn the purchaser to whom its used product is sold of defects in the product known to it unless the defects are not obvious or readily discernible. See Sukljian v. Charles Ross and Son Company, Inc., 69 N.Y.2d 89, 97 (1986). Note, however, that when the action is against a successor corporation by an employee of the predecessor corporation, workers’ compensation is not a defense, since the action against the successor did not arise out of the employment relationship, but out of the merger of the tortfeasor into the successor corporation. Billy v. Consolidated Machine Tool Corp., 51 N.Y.2d 152, 161 (1980).

Corporations

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The Grant-Howard and Schumacher cases have given rise to a number of Appellate Division cases imposing liability not only for torts but also on contracts, discussing de facto merger, e.g., Fitzgerald v. Fahnestock, 286 A.D.2d 573 (2001); Ladenburg Thalmann & Co., Inc., v. Tim’s Amusements, 275 A.D.2d 243 (2000); Sweatland v. Park Corporation, 181 A.D.2d 243 (1992); Wensig v. Paris Industries-New York, 158 A.D.2d 164 (1990). As the Fitzgerald decision held: The de facto merger doctrine creates an exception to the general principle that an acquiring corporation does not become responsible thereby for the preexisting liabilities of the acquired corporation. This doctrine is applied when the acquiring corporation has not purchased another corporation merely for the purpose of holding it as subsidiary, but rather has effectively merged with the acquired corporation. The hallmarks of a de facto merger include: continuity of ownership; cessation of ordinary business and dissolution of the acquired corporation as soon as possible; assumption by the successor of the liabilities ordinarily necessary for the uninterrupted continuation of the business of the acquired corporation; and, continuity of management, personnel, physical location, assets and general business operation (Sweatland v. Park Corp, 181 A.D.2d 243, 245–46). Not all of these elements are necessary to find a de facto merger. Courts will look to whether the acquiring corporation was seeking to obtain for itself intangible assets such as good will, trademarks, patents, customer lists and the right to use the acquired corporation’s name (see, Wensing v. Paris Indus., 158 A.D.2d 164). The concept upon which this doctrine is based is “that a successor that effectively takes over a company in its entirety should carry the predecessor’s liabilities as a concomitant to the benefits it derives from the good will purchased” (Grant-Howard Assoc. v. General Housewares Corp, 63 N.Y.2d 291, 296). 286 A.D.2d, at 574

II. Restrictions on the Transfer of Shares UCC § 8–204 (formerly Personal Property Law § 176), as amended in 1997, provides that a “restriction on transfer of a security imposed by the issuer, even if otherwise lawful, is ineffectual against a person without knowledge of the restriction unless (1) the security is certificated and the restriction is noted conspicuously on the security certificate, or (2) the security is uncertificated and the registered owner has been notified of the restriction.” In view of the wording of the section the restriction need not be set forth in full on the certificate, Allen v.

480

Corporations

Biltmore Tissue Corp., 2 N.Y.2d 534 (1957), and even if not noted on the certificate, one restriction will prevent passage of good title to a purchaser who with knowledge of the restriction takes title to the stock in violation of the restriction. Tomoser v. Kamphausen, 307 N.Y. 797 (1954). To be distinguished are restrictive covenants that constitute an “effective prohibition against transferability itself,” Allen v. Biltmore Tissue Corp., supra, 2 N.Y.2d at 542 (emphasis in original); Metropolitan Transportation Authority v. Bruken Realty Corp., 67 N.Y.2d 156, 167 (1986), such a provision being violative of public policy; Quinn v. Stuart Lakes Club, Inc., 57 N.Y.2d 1003, 1005 (1982). But a contract provision that gives the corporation or another stockholder a preemptive right of first refusal, which is required to be exercised during a reasonable period of time, is not invalid under the common law rule. Wildenstein & Co., Inc. v. Wallis, 79 N.Y.2d 641, 652 (1992); Gallagher v. Lambert, 74 N.Y.2d 562 (1989). Shareholder agreements sometimes contain mandatory buyout provisions requiring that in the event of the shareholder’s death, retirement, or termination his shares must be surrendered to the corporation in exchange for a contractually agreed-upon price. As a general rule courts must enforce shareholder agreements according to their terms. See Gallagher v. Lambert, supra, at 567. But, as the Court held in Matter of the Dissolution of Penepent Corporation, Inc., 96 N.Y.2d 186 (2001), when a dissolution proceeding pursuant to BCL § 1104-a has been underway before the mandatory event, and in that proceeding a shareholder has elected pursuant to BCL § 1118 to purchase the shares of the terminated shareholder at fair value, the terminated shareholder has a vested right to fair value pursuant to § 1118 and is not bound by the mandatory buyout price.

III. Valuation of Shares BCL § 623(e) provides that a shareholder who has the right to receive payment for his shares shall be paid the “fair value” of his shares and BCL § 1118 states that in any proceeding for dissolution brought pursuant to § 1104-a any other shareholder or shareholders or the corporation may elect to purchase the petitioner’s shares at their “fair value” and upon such terms and conditions as may be approved by the Court. As noted in Chief Judge Kaye’s opinion in Matter of Seagroatt Floral Company, Inc., 78 N.Y.2d 439, 445 (1991), neither section defines “fair value” but the Court has in a number of cases done so. Fair value depends on the circumstances of each case, the objective being to determine what a willing purchaser in an arm’s-length transaction would offer for the shareholder’s interest in the company as an operating business. Matter of the Dissolution of

Corporations

481

Penepent Corp., supra; Matter of the Dissolution of Seagroatt Floral Company, Inc., supra, at 446; Matter of Pace Photographers Ltd., 71 N.Y.2d 737, 748 (1988). The three major elements of fair value are net asset value, investment value, and market value, though not all three of those elements must be given the same weight. Matter of Friedman v. Beway Realty Corp., 87 N.Y.2d 161, 167 (1995); Matter of Endicott Johnson v. Bade, 37 N.Y.2d 585 (1975). In making fair value determination factors to be taken into account are the limited market for the shares and the shareholders’ agreement provisions regarding value, which, however, are not conclusive, Amodio v. Amodio, 70 N.Y.2d 5, 7 (1987), as well as petitioner’s offer to buy, earlier efforts by the corporation to sell the business, and any other pertinent evidence. Matter of Pace Photographers, supra, at 748. Fair value, however, is not necessarily tied to market value as reflected in actual stock trading, Matter of Friedman, supra, at 167, and a minority shareholder’s stock is not to be discounted because of its minority status, for that would deprive the shareholders of their proportionate interest in the corporation as a going concern. Matter of Friedman, supra; Matter of Penepent Corp., supra, at 194; Matter of Cawley v. SCM Corporation, 72 N.Y.2d 465, 471 (1988). These include, as a result of the Legislature’s amendment of BCL § 623 (h)(4) in 1982, the effect of the transaction giving rise to the shareholder’s right to receive payment for his shares and its effects on the corporation and its shareholders; the concepts and methods then customary in the relevant securities and financial market for determining fair value of shares of a corporation engaging in a similar transaction under comparable circumstances; and all other relevant factors. Note, however, the holding in Albany-Plattsburgh United Corp. v. Bell, 85 N.Y.2d 948 (1995), that when there is a preincorporation agreement concerning the valuation of a dissenting shareholder’s shares, the validity of that agreement must be determined before the dissenter’s failure to comply with BCL § 623(a) by serving notice of his election to dissent prior to the vote on the merger resolution can be held to have validated the dissent. For a case in which the weight given the various factors is discussed see In re Tudor Fifth Unit, Inc., 17 A.D.2d 794 (1962) aff’d., no op. 13 N.Y.2d 812 (1963). But as the Cawley opinion, supra, at 474, makes clear the personal income tax situation of the shareholder whose stock is being valued is not to be considered.

IV. Business Judgment Rule The business judgment rule “bars judicial inquiry into actions of corporate directors taken in good faith and in the exercise of honest judgment in the lawful and legitimate furtherance of corporate purposes.” Auerbach v. Bennett, 47 N.Y.2d

482

Corporations

619, 629 (1979). “Questions of policy of management, expediency of contracts or action, adequacy of consideration, lawful appropriation of corporate funds to advance corporate interests, are left solely to their honest and unselfish decision, for their powers therein are without limitation and free from restraint, and the exercise of them for the concern and general interests of the corporation may not be questioned, although the results show that what they did was unwise or inexpedient.” Pollitz v. Wabash Railroad Co., 207 N.Y. 113, 124 (1912); see also Rous v. Carlisle, 261 A.D. 432, 434 (1941) aff’d. no op. 290 N.Y. 869 (1943). The rule shields the deliberations and conclusions of the board or a committee of the board chosen to make the decision on behalf of the corporation only if they possess a disinterested independence and do not stand in a dual relationship that prevents an unprejudiced exercise of judgment. Auerbach v. Bennett, supra at 631; Koral v. Savory, Inc., 276 N.Y. 215, 217 (1937). The rule applies when some directors are charged with wrongdoing, so long as the remaining directors making the decision are disinterested and independent. Auerbach v. Bennett, supra, at 632. A court “may properly inquire as to the adequacy and appropriateness of the committee’s investigative procedures and methodologies, but may not under the guise of consideration of such factors trespass in the domain of business judgment.” Id., at 634. However, when the record details wantonly negligent or reckless conduct of defendant directors, their actions cannot be justified as falling within the business judgment rule. Giblin v. Murphy, 73 N.Y.2d 769 (1988). As the Court put it in Barr v. Wackman, 36 N.Y.2d 371, 381 (1975), the business judgment rule “has not drained the traditional duties of prudence and diligence of all their contemporary validity and force.” As Judge Bellacosa noted in Lindner Fund, Inc. v. Waldbaum, Inc., 82 N.Y.2d 219, 224 (1993), the rule received legislative endorsement with the enactment of the Business Corporation Law (effective April 1, 1963), which in sections 715(h) and 717(a) requires corporate officers and directors to perform their duties “in good faith and with that degree of care which an ordinarily prudent person in a like position would use under similar circumstances.” The law entitles them to rely on financial and other data prepared or presented by officers or employees of the corporation or of another corporation 50 percent of the voting stock of which is owned directly or indirectly by the corporation, whom the officer or director believes to be reliable and competent in the matter presented. The officers or directors, so long as they are acting in good faith and with the care that an ordinarily prudent person in a like position would use under similar circumstances, may also rely on counsel, public accountants, or others as to matters which they believe to be within such person’s professional or expert competence. The officers or directors shall not be considered to be acting in good faith, however, if they have knowledge concerning the matter that would

Corporations

483

cause such reliance to be unwarranted.2 BCL § 717(3) provides that directors may rely upon information prepared or presented by a committee of the board designated in the certificate of incorporation or bylaws as to matters within its designated authority, but there is no similar provision with respect to officers.3 As to cooperative apartments and condominiums the rule applies, but with modified aspects arising from the nature of the relationship of the board to the apartment residents. As the opinion in FeBland v. Two Trees Management Co., 66 N.Y.2d 556, 565 (1985), stated: “Although [the business judgment doctrine] may protect directors against individual liability to the corporation in a stockholder’s derivative action, it constitutes no grant of general or inherent power in the directors to enforce against a shareholder an edict of the directors beyond their authority to make under either the bylaws of the corporation or, in the case of a cooperative apartment corporation, the contract between the corporation and its shareholder/lessees embodied in the proprietary lease.” The flip tax imposed on the sale of shares in the corporation was, therefore, held beyond the authority of the directors. However, the directors cannot avail themselves of the business judgment rule when they acted in bad faith in denying a related application that would make its operation fiscally efficient. Hunt v. Sharp, 85 N.Y.2d 883 (1995), affirming 202 A.D.2d 151 (1994). And in Matter of Levandusky v. One Fifth Avenue Apartment Corp., 75 N.Y.2d 530 (1990), the Court held that the business judgment rule furnished the correct standard of review of a cooperative board’s policy applying to a tenant-shareholder. The Court pointed out that judicial review is not available unless a resident can demonstrate a breach of the board’s duty to act for the purposes of the cooperative, within the scope of its authority and good faith, and that although courts are ill-equipped to review business judgments of for-profit corporations, decisions of a cooperative board do not generally involve expertise beyond the ken of the judiciary. Therefore, members of a cooperative or condominium board will possess experience of the particular needs of their building and its residents that the Court does not share. In cases involving such corporations, therefore, review is permitted of improper decisions having no legitimate relationship to the welfare of the corporation, which deliberately single out individuals for harmful treatment, made without notice or consideration of relevant facts, or beyond the scope of the board’s authority. Id., at 538–40.

V. Shareholders’ Derivative Actions One of the most prolific areas of Court of Appeals decisions relating to corporations has been derivative actions brought by stockholders suing in behalf of

484

Corporations

the corporation, and this is so notwithstanding that Business Corporations Law § 626 deals expressly with such actions and is the present-day version of a Revised Statute provision first enacted in the late nineteenth century, later incorporated in the General Corporations Law as § 61. BCL § 626(a) authorizes an action in the right of a domestic or foreign corporation by a holder of shares or a voting trust certificate of the corporation or a beneficial interest in such shares or certificate, but under § 626(b) the plaintiff must be the holder at both the time of bringing the action and at the time of the transaction of which plaintiff complains, or his shares or his interest therein must have devolved upon him by operation of law. Prior to the 1944 amendment of General Corporations Law § 61 it had been held in Pollitz v. Gould, 202 NY 11 (1911), that a derivative action did include the right to complain of activities consummated prior to the acquisition by the shareholder of his stock; see also Myer v. Myer, 296 NY 979 (1947), aff’g. no op. 271 A.D. 465 (1946). However, in Coane v. American Drilling Co., 298 N.Y. 197 (1948), the Court held that the 1944 amendment was not retroactive and, therefore, a derivative action begun before the 1944 amendment and still pending at the time of its enactment had been improperly dismissed. The rather complex nature of the law relating to standing to bring a derivative action is illustrated by the Court’s decisions in Citibank N.A. v. Plapinger, 66 N.Y.2d 90, 95 n. (1985); Abrams v. Donati, 66 N.Y.2d 951 (1985), affirming for the reasons stated in the Appellate Division decision, 108 A.D.2d 704 (1985); Rubinstein v. Catacosinas, 60 N.Y.2d 890 (1983); Independent Investor Protective League v. Time, Inc., 50 N.Y.2d 259 (1980); Platt Corp. v. Platt, 15 N.Y.2d 705 (1965), aff’g, no op. 21 A.D.2d 116 (1964); and Tenney v. Rosenthal, 6 N.Y.2d 204 (1959). The Citibank and Abrams cases both held, 66 N.Y.2d, at 93, n. and 66 N.Y.2d, at 953, that although generally a shareholder does not have standing to maintain an individual cause of action for a wrong against the corporation, there are exceptions as to a wrongdoer who has breached a duty owed to shareholders independent of any duty to the corporation, as when a director of a parent corporation acquiesces in the misuse of funds of its subsidiary. Rubinstein affirmed the Appellate Division’s decision for the reasons stated in its opinion, which held that a plaintiff stockholder in a stockholder’s derivative action loses his right to continue to prosecute the action if he ceases to be a stockholder as a result of the corporation’s merger pursuant to which he had only the right to receive a fixed amount of money. But if the merger agreement provides that the proceeds of the action against the defendant directors or officers are to be distributed to specified shareholders in addition to the shares of stock receivable by them, the causes of action against defendants are not oblit-

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erated by the merger of the wronged corporation into another corporation, since to hold otherwise would make it possible for the wrongdoing officers to immunize themselves by arranging a merger or consolidation. Platt Corp. v. Platt, supra, 21 A.D.2d, at 123–24. But a shareholder plaintiff who is estopped by knowledge, ratification, or participation in the wrongs done the corporation cannot maintain a derivative action, Diamond v. Diamond, 307 N.Y. 263, 266 (1954); and a shareholder who voluntarily disposes of his stock loses his rights as a shareholder and, therefore, lacks standing to continue the action, Independent Investors Protective League, supra, at 263–64, citing Tenney v. Rosenthal, supra, at 211, and BCL § 1006(b). That statute provides that “dissolution of a corporation shall not affect any remedy available to or against such corporation, its directors, officers or shareholders for any right or claim existing . . . before such dissolution,” from which the Court concluded that dissolution itself could not preclude a qualified plaintiff from being deemed a shareholder “at the time of bringing the [derivative] action as required” by BCL § 626(b). BCL § 626(c) requires that the complaint in a derivative action “set forth with particularity the efforts of the plaintiff to secure the initiation of such action by the board or the reasons for not making such effort.” Prior to the 1961 enactment of that provision case law required such a demand unless demand was futile. Marx v. Akers, 88 N.Y.2d 189, 193 (1996); Barr v. Wackman, 36 N.Y.2d 371, 377 (1975). The Barr decision, supra, at 380–81, held that fraud and selfinterest are not a prerequisite to excusing demand, and that the necessity for a demand is to be determined by the Court from the sufficiency of the complaint liberally construed. As Barr’s holding was elaborated upon in Marx, supra, at 200–201, demand is excused if the complaint alleges with particularity that a majority of the board is interested in the challenged transaction either directly or because a director with no direct interest in the transaction is “controlled” by a self-interested director, because the directors did not fully inform themselves to the extent reasonably appropriate, or, citing BCL § 717(a), that the transaction was so egregious on its facts that it could not have been the product of sound business judgment. However, since directors are authorized by BCL § 202(a)(10) and § 713 to fix their own compensation, a complaint challenging excessiveness of director’s compensation must allege either compensation rates excessive on their face or facts which call into question the fairness of the compensation when approved, the good faith of the directors in setting those rates, or that the compensation could not have been a product of valid business judgment. Marx, supra, at 203–4. Failure to declare a dividend is not a basis for a shareholder’s action against the corporation unless it can be shown that the directors acted in bad faith in

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failing to do so, in which case a derivative action can be brought. Gordon v. Elliman, 306 N.Y. 456 (1954). But failure to demand payment to the corporation of a third party’s indebtedness to it unless it is shown to have been done to promote the officers or directors’ own interests and in disregard of the interests of the corporation would not furnish a basis for such an action. Moreover, errors of judgment by directors are not alone sufficient to establish lack of fidelity, even if the errors are so gross as to demonstrate the unfitness of the directors to manage the corporation’s affairs. Everett v. Phillips, 288 N.Y. 227, 232 (1942). But a minority shareholder who seeks corporate dissolution, alleging that the directors and majority shareholders are guilty of persistent corporate abuses and that the directors’ refusal to dissolve the corporation is intended to force the minority shareholders to sell their shares to the corporation is not limited to a derivative action. In those instances, the minority shareholders may bring an equitable action to compel the majority directors and shareholders to effect dissolution of the corporation. Leibert v. Clapp, 13 N.Y.2d 313, 317–18 (1963). Rejection on the merits of a derivative action brought by one shareholder on behalf of the corporation against named directors and officers for waste and breach of fiduciary duty is res judicata to a similar action by another shareholder, provided (1) the first action was not collusive or fraudulent, (2) the plaintiff in the second action was not excluded from participating in the first action, and (3) both are based upon the same underlying transaction or series of connected transactions. Parkoff v. General Telephone & Electronics Corp., 53 N.Y.2d 412 (1981); Auerbach v. Bennett, 47 N.Y.2d 619, 627 (1979). However, a stockholder who would be barred by collateral estoppel from an action brought by another shareholder may appeal from the dismissal of the derivative action brought by the other stockholder. Auerbach v. Bennett, supra, at 628. When the corporation’s board establishes a special litigation committee to decide whether to prosecute the claims against the defendant directors, the decision of that committee not to pursue the claims made in the derivative action will be beyond judicial review (id., at 633), except as to its procedures and methodologies, unless the investigation is shown to have been so pro forma and half-hearted as to constitute a pretext or sham (id., at 634). Two other factors should be noted as to derivative actions. First, CPLR § 213(7) establishes a six-year period of limitations with respect to such an action brought on behalf of a corporation, and second, that with respect to charitable trusts the Attorney General may not bring an action to enforce the trust without first making a demand upon the corporation or satisfying the procedures normally associated with a derivative action. Lefkowitz v. Lebensfeld, 51 N.Y.2d 442, 447 (1980).

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VI. Liability of Directors and Officers4 The Court has long recognized that directors and officers are liable in damages for lack of due care, Abrams v. Allen, 297 N.Y. 52, 55–56 (1947), defined as “the same degree of care and prudence that men prompted by self-interest generally exercise in their own affairs,” Kavanaugh v. Commonwealth Trust Co., 223 N.Y. 103, 106 (1918), and that errors of judgment, even errors so gross as to demonstrate the unfitness of the directors to manage the corporation’s affairs, are not ordinarily subject to review by the Court, Chelrob, Inc. v. Barrett, 293 N.Y. 442, 460 (1944). In addition, the Court has recognized also that they owe a fiduciary duty to the shareholders, Giblin v. Murphy, 73 N.Y.2d 769 (1988), and the Court has required that they treat all shareholders, majority and minority, fairly, Alpert v. 28 Williams St. Corp., 63 N.Y.2d 557, 569 (1984). The Court also has imposed upon the directors the burden of showing the fairness of the transaction and if a sale is involved the adequacy of the consideration, Chelrob, Inc. v. Barrett, supra, at 461 (see also Alpert v. 28 Williams St. Corp., supra, at 570). If it is determined that their operation of the business amounted to willful or wanton negligence, an award of punitive damages would be warranted. Giblin v. Murphy, supra, at 772. Because directors while in office must protect not only their own interests but also those of the corporation and its stockholders, a director has an absolute right to inspect the corporation’s books and records. Matter of Cohen v. Cocoline Products, Inc., 309 N.Y. 119, 123 (1955). Upon termination of his office, however, that right is qualified, and is limited to the period of his directorship, when in the discretion of the trial court he presents evidence that an inspection is necessary to protect his personal interests as well as the interests of the stockholders. Id., at 124. In Lindner Fund, Inc. v. Waldbaum, Inc., 82 N.Y.2d 219 (1993), the Court held that fiduciary duty requires officers and directors to disclose a major transaction such as a takeover tender offer, but unless there is some countervailing misconduct or manipulation on the part of the officers or directors, their act in maintaining confidentiality as to the offer until the agreement is final is within the business judgment rule.

VII. Merger5 and Consolidation Merger and consolidation are dealt with by Article 9 of the Business Corporation Law and Article 9 of the Not-For-Profit Corporation Law. The Business

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Corporation Law permits merger or consolidation of domestic with domestic corporations, § 901, and with foreign corporations, § 907; and the Not-For-Profit Corporation Law authorizes merger or consolidation of domestic with domestic corporations, § 901, merger or consolidation of domestic with foreign corporations, § 906, and merger of business corporations with nonprofit corporations, § 908. As to merger and consolidation of insurance corporations, see Article 71 of the Insurance Law and Matter of Willcox v. Stern, 18 N.Y.2d 195 (1966), holding that appraisal and payment for a dissenting stockholder’s shares afford fair and just compensation to the dissenters. In Beloff v. Consolidated Edison Company of New York, Inc., 300 N.Y. 411, 19–20 (1949), the Court held that under Article X § 1 of the State Constitution “the Legislature has the right at any time it sees fit to alter, suspend and repeal the charters of corporations,” that there is no constitutional right for a shareholder to vote on the merger or consolidation, or to have prior notice thereof or prior opportunity to object. His only right is to have the value of his holding protected through his right to an appraisal and for appropriate judicial control and approval thereof. See also Alpert v. 28 Williams St. Corp., 69 N.Y.2d 557, 567 (1984), and as to consolidation see Anderson v. International Minerals & Chemical Corp., 295 N.Y. 343, 350–351 (1946). The Alpert case involved a so-called freeze-out merger—a merger that by majority rule forces the minority interest to give up its equity in the corporation for cash or senior securities while allowing the controlling interest to retain its equity. Id., at 566, n. 2. Chief Judge Cooke’s Alpert opinion noted, however, that an exception to the exclusivity rule exists when the merger (or consolidation) is unlawful or fraudulent as to the dissenting shareholder. In that case BCL § 623 (k) authorizes the shareholder to sue in his individual capacity, though not in a derivative action. Id., at 568; see also Green v. Santa Fe Industries, Inc., 70 N.Y.2d 244 (1987) (applying Delaware law); Breed v. Barton, 54 N.Y.2d 82, 86 (1981); and Matter of Willcox v. Stern, supra, at 202. Alpert also held that when there is a common directorship or majority ownership the inherent conflict of interest shifts the burden of proving that the majority shareholders followed a course of fair dealing toward minority shareholders and offered a fair price for the minority’s stock to the interested directors or shareholders to prove good faith and entire fairness of the merger. Id., at 569–70. This included proof whether the price offered was fair, not as it would be determined in an appraisal proceeding6 (though the factors used in such a proceeding would be relevant), but also such elements of future value arising from the accomplishment of the merger capable of proof as of the date of the merger and not the product of speculation. Id., at 571. “In sum, in entertaining

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an equitable action to review a freeze-out merger, a court should view the transaction as a whole to determine whether it was tainted with fraud, illegality, or self-dealing, whether the minority shareholders were dealt with fairly, and whether there exists any independent corporate purpose for the merger [or consolidation].” Id., at 573. Such an action being equitable in nature is governed by the six-year statute of limitations. Loengard v. Santa Fe Industries, Inc., 70 N.Y.2d 262 (1987). Standing to contest a merger or consolidation does not exist when a corporation is a shareholder of the merging or consolidating corporation. Lama Holding Company v. Smith Barney, Inc., 88 N.Y.2d 413, 424 (1996). Further, the right to contest a merger or consolidation may be lost if a shareholder intending to dissent and receive payment for his shares fails to file written objection including notice of his election to dissent prior to the meeting at which the action is to be voted on or at such meeting but before the vote. BCL § 623(a); cf Albany-Plattsburgh United Corp. v. Bell, 85 N.Y.2d 948 (1995). § 623(a) excepts from that notice requirement a shareholder to whom notice of the action was not given or if the proposed action is authorized by written consent of shareholders without a meeting.

VIII. Shareholders Use of Corporations: Oppressive Conduct and Piercing the Corporate Veil Cases dealing with shareholders’ use of corporations involving what has become known as oppressive conduct and as piercing the corporate veil. With respect to oppressive conduct the Court stated in Mohawk Maintenance Co., Inc. v. Kessler, 52 N.Y.2d 276 (1981), in an opinion by Chief Judge Lawrence H. Cooke that [j]udically ordered dissolution of a corporation at the behest of minority interests is a remedy of relatively recent vintage in New York. . . . Minority shareholders were granted standing in the absence of statutory authority to seek dissolution of corporations when controlling shareholders engaged in certain egregious conduct. Predicated on the majority shareholders’ fiduciary obligation to treat all shareholders fairly and equally, to preserve corporate assets, and to fulfill their responsibilities of corporate management with “scrupulous good faith,” the court’s equitable power can be invoked when “it appears that the directors and majority shareholders” have so palpably breached the fiduciaries’ duty they owe to the minority shareholders that they are disqualified

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from exercising the exclusive discretion and dissolution power given them by statute. . . . This concept is consistent with the apparent purpose underlying the provision under review. A shareholder who reasonably expected that ownership in the corporation would entitle him or her to a job, a share of corporate earnings, a place in corporate management, or some other form of security, would be oppressed in a very real sense when others in the corporation seek to defeat those expectations and there exists no effective means of salvaging the investment. Given the nature of close corporations and the remedial purpose of the statute, this court holds that utilizing a complaining shareholder’s “reasonable expectations” as a means of identifying and measuring conduct alleged to be oppressive is appropriate. Id.

As was noted in Matter of Blake v. Blake Agency, Inc., 107 A.D.2d 139 (1985), Business Corporation Law Sections 1104-a and 1118 were enacted in 1979 for the specific purpose of enabling minority shareholders of closely held corporations to obtain relief when they found themselves in a situation of being denied participation in or being “frozen out” of corporate management. The Court has recognized in a number of cases that the law permits incorporation of a business for the very purpose of enabling its proprietors to escape personal liability. Matter of Morris v. New York State Department of Taxation and Finance, 82 N.Y.2d 135, 141 (1995); Walkovszky v. Carlton, 18 N.Y.2d 414, 420 (1966); Bartle v. Home Owners Cooperative Inc., 309 N.Y. 103, 106 (1955). However, it has held that whenever anyone uses control of a corporation to further his own rather than the corporation’s business he will be liable for the corporation’s acts, not only as to commercial dealings but also as to its negligent acts. Walkovszky, supra at 417; see also Matter of Guptill Holding Corp. v. State of New York, 33 A.D.2d 362, 365 (1970), affirmed on the Appellate Division decision, 31 N.Y.2d 897 (1972). Decisions on when the veil may be pierced have not resulted in clearly defined earmarks, however. Judge Cardozo characterized the case law as “enveloped in the mists of metaphor,” Berkey v. Third Avenue Railway Co., 244 N.Y. 84, 94 (1926), and as the Court recognized in Matter of Morris, supra, at 141: “Because a decision whether to pierce the corporate veil in a given instance will necessarily depend on the attendant facts and equities the New York cases may not be reduced to definitive rules governing the varying circumstances when the power may be exercised.” Illustrative of what may be considered inconsistent language of the Court’s decisions are Billy v. Consolidated Machine Tool Corp., 51 N.Y.2d 152 (1980), and Port Chester Electrical Construction Corp. v. Atlas, 40 N.Y.2d 652 (1976),

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on the one hand, and TNS Holdings, Inc. v. MKI Securities Corp., 92 N.Y.2d 335, 339 (1998), on the other. Billy held, at 163, that “liability can never be predicated solely upon the fact of a parent corporation’s ownership of a controlling interest in the shares of its subsidiary. At the very least, there must be direct intervention by the parent in the management of the subsidiary to such an extent that ‘the subsidiary’s paraphernalia of incorporation, directors and officers’ are completely ignored” (emphasis supplied). The Atlas decision, at 657, citing Walkovszky v. Carlton, supra, stated that “The determinative factor is whether the corporation is a ‘dummy’ for its individual stockholders who are in reality carrying on the business in their personal capacities for purely personal rather than corporate ends.” The opinions in Walkovszky and Port Chester Electrical Construction Corp. clearly state the basis for the rule. Judge Fuld’s opinion in Walkovszky dealt with a plaintiff who had been injured by a taxicab the ownership of which defendant Carlton caused to be vested in a corporation that carried no insurance above that required by statute. The opinion noted that the individual defendant is charged with having “organized, managed, dominated, and controlled” a fragmented corporate entity, but there is no allegation that he was conducting business in his individual capacity. Had the taxicab fleet been owned by a single corporation, it would be readily apparent that the plaintiff would face formidable barriers in attempting to establish personal liability on the part of the corporation’s stockholders. The fact that the fleet ownership has been deliberately split up among many corporations does not ease the plaintiff’s burden in that respect. The corporate form may not be disregarded merely because the assets of the corporation, together with the mandatory insurance coverage of the vehicle that struck the plaintiff, are insufficient to assure him of the recovery sought. Had the complaint alleged that defendant Carlton and his associates were “doing business in their individual capacities ‘without regard to formality and to suit their immediate convenience,’ such perversion of doing business in corporate form, would justify imposing personal liability on the individual stockholders.” 18 N.Y.2d, at 420. The Port Chester decision by Judge Matthew Jasen held it inappropriate to pierce the corporate veils, noting that corporations as legal entities are distinct from their managers and shareholders and have an independent legal existence. “Ordinarily their separate personalities cannot be disregarded. In a broad sense courts do have authority to look beyond the corporate form where necessary ‘to prevent fraud or to achieve equity.’ More specifically, where a shareholder uses a corporation for the transaction of the shareholder’s personal business, as distinct from the corporate business, the courts have held the shareholder liable for acts

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of the corporation in accordance with the general principles of agency. The determinative factor is whether the ‘corporation is a “dummy” for its individual stockholders, who are in reality carrying on the business in their personal capacities for purely personal rather than corporate ends [citing Walkovszky].” As Judge Domenick L. Gabrielli’s opinion in Billy v. Consolidated Machine Tool Corp, 51 N.Y.2d 152, 263 (1980), noted “ . . . such liability can never be predicated solely upon the fact of a parent corporation’s ownership of a controlling interest in the shares of its subsidiary. At the very least, there must be direct intervention by the parent in the management of the subsidiary to such an extent that ‘the subsidiary’s paraphernalia of incorporation, directors and officers’ are completely ignored.” The opinion in TNS Holdings, Inc., supra, appears to have clarified the rule as to piercing. Referring to the “alter ego” exception as “[a]kin to piercing the corporate veil to ‘prevent fraud or achieve equity,’” for which it cited International Aircraft Trading Co., Inc. v. Manufacturers Trust Company, 297 N.Y. 285 (1948), the TNS opinion stated that “Those seeking to pierce a corporate veil of course bear a heavy burden of showing that the corporation was dominated as to the transaction attacked and that such domination was the instrument of fraud or otherwise resulted in wrongful or inequitable consequences. Evidence of domination alone does not suffice without an additional showing that it led to inequity, fraud or malfeasance” (emphasis supplied, citations omitted). It concluded that “it cannot be said that [the dominant corporation] has perverted the privilege [of doing business] in a corporate form and was the alter ego of [the corporation with which appellant contracted] for the purpose of committing some wrongful act or avoiding its obligations.” It is not clear, however, whether that is not as to domination a change in the rule recognized in prior cases that imposed liability for torts on a parent corporation based on the subsidiary tortfeasor’s act as the instrumentality or agent of the parent. See Kohn, “Alternative Methods of Piercing the Corporate Veil in Contract and Tort Cases,” 48 Boston University Law Review 123, 135 (1968). Discussion of the law as to piercing the veil would not be complete without noting what has been referred to as “reverse” piercing—i.e., the attempt by a shareholder to have the corporation held liable for taxes due by the shareholder or to have the shareholder held liable for a tax the corporation does not owe. Matter of Orda v. State Tax Commission, 25 A.D.2d 332 (1966), affd no op. 9 N.Y.2d 637 (1967), is illustrative of the first and Matter of Morris v. New York State Department of Taxation and Finance, supra, illustrates the second. However, no decision has been found in which the Court of Appeals discussed reverse piercing.

16. Arbitration

NEW YORK HAS sanctioned arbitration as an effective alternative method of settling disputes since at least 1829. Matter of Goldfinger v. Lisker, 68 N.Y.2d 225, 230 (1986). Arbitration provided for in the contract of the parties is referred to as consensual or common law arbitration, while arbitration required by statutory or ordinance provision is denominated compulsory or statutory arbitration, Hinkle v. Zimmerman, 184 N.Y. 114–17 (1906), even though some procedures of common law arbitration were governed by statutory provisions of the code of civil procedure and are now governed by Article 75 of the civil practice law and rules. Arbitration is only part of the process referred to as alternate dispute resolution, which includes not only statutory or contract provisions for arbitration but also mediation, neutral evaluation, court-annexed mandatory arbitration, and court-annexed voluntary arbitration. Both mediation and arbitration are provided for in the Public Employees Fair Employment Act (Civil Service Law Article 14, known as the Taylor Law) and in the Comprehensive Motor Vehicles Reparations Act (Insurance Law Article 51, known as the No-Fault Law). Section 209 of the Taylor Law provides for appointment of a mediator to assist the parties in effecting voluntary resolution of an impasse in negotiation of a collective bargaining agreement; if mediation fails, for voluntary arbitration by the public arbitration panel; with respect to public employees of transit, bridge, or tunnel authorities for the issuance of a final and binding determination resolving the dispute; and with respect to police and firefighters for issuance of a

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determination which, if the parties so agree, will be final and binding for a period of up to and including four years. As noted above, the statute or ordinance may compel submission of particular disputes to arbitration. Illustrative are In re City of Johnstown (Johnstown Police Benevolent Association), 99 N.Y.2d 273 (2002), Matter of New York City Department of Sanitation v. McDonald, 87 N.Y.2d 650 (1996), Matter of Central General Hospital v. Hanover Insurance Co., 49 N.Y.2d 950 (1980), and Mount St. Mary’s Hospital v. Catherwood 26 N.Y.2d 493 (1970). City of Johnstown was a 6-1 decision which held that a grievance can be submitted to arbitration only where the parties agree to arbitrate that kind of dispute and where it is not unlawful for them to do so. The first question is whether there is any statutory, constitutional, or public policy prohibition against arbitration of the grievance. If not the Court will examine the collective bargaining agreement to determine whether the parties have agreed to arbitrate the dispute at issue. In so doing it will distinguish between the merits of the grievance and whether the arbitrators have authority to decide the merits, but in deciding that question apparent weakness is not a factor. It is for the arbitrator to weigh the merits of the claims, as CPLR 7501 expressly provides. Because the collective bargaining agreement authorized the Police Benevolent Association to request arbitration for grievances concerning retirement benefits either generally or for Tier II employees, the Court concluded that the reasonable relationship test had been met, and therefore, the dispute was arbitrable. Judge Graffeo dissented. Although she agreed with the majority’s two-step analytical framework to determine arbitrability, she argued that Civil Service Law § 201(4) expressly provided that the term retirement benefits shall not include any benefits provided by or to be provided by a public retirement system and any such retirement benefits negotiated pursuant to the Taylor Law shall be void. Therefore, she concluded, public employers are prohibited from negotiating and granting retirement benefits not expressly provided under State law. As she stated: “[P]ermitting grievance arbitration of a benefit the Cities could not have been lawfully agreed to provide in the collective bargaining agreement circumvents the fundamental purpose of grievance arbitration—to enforce the terms and conditions of the parties’ collective bargaining agreement—and allows the unions to use this procedure to obtain a benefit they could not have negotiated.” 99 N.Y.2d, at 283. McDonald involved the New York City Collective Bargaining Law (Adm Code § 12–301 et seq.), which provided for arbitration of disputes. The City argued that the issue that was involved, the claimed wrongful transfer of an employee, was a nondelegable management function, arbitration of which was

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against public policy; but the Court held that the stay of arbitration on public policy grounds was exceptional, and that the statute did not declare any public policy that the City was not free to waive. The Central General Hospital case concerned compulsory arbitration required by the no-fault law (Insurance Law, § 675 subd. 2). Hanover Insurance sought to vacate a prior award against it on the basis of newly discovered evidence, but the Court held that discovery of new evidence is not a basis for vacatur of an arbitration award and that since arbitration under the law was compulsory, judicial intervention with respect to no-fault arbitrations was limited. The St. Mary’s Hospital opinion concluded that “since the nonprofitmaking hospital is so affected with a profound public interest directly related to the health and lives in the community, and is so dependent on governmental subsidies, reimbursements, and exemptions, there is no doubt that the extraordinary provision for compulsory arbitration is constitutionally justified.” 26 N.Y.2d, at 510. As stated by both the majority and the dissent in Associated Teachers of Huntington, Inc. v. Board of Education Union Free Sch. Dist. No. 3, Town of Huntington, 33 N.Y.2d 229, 235–36 (1973), “arbitration is considered so preferable a means of settling labor disputes that public policy impels its use.” Although absent a contractual provision to the contrary, generally “arbitrators are not bound by principles of substantive law or rules of evidence.” A small number of problems have been recognized as so interlaced with strong public policy considerations that they have been placed beyond the reach of an arbitrator’s discretion. Illustrations of nonarbitrable issues cited by the Court were antitrust law controversies, liquidation of insolvent insurance companies where a state statute vested exclusive jurisdiction over such matters in the Supreme Court, and whether a purported sales agreement is in fact usurious. To that list have been added punitive damage awards and tenure decisions, Matter of Board of Education v. Watertown Education Association, 93 N.Y.2d 132 (1999), but the decision stated that arbitration of public issues was so widespread that there was no longer a presumption against arbitration of such issues, and that it is not the function of the Court to make a penetrating analysis of the scope of the substantive provisions of the collective bargaining agreement (id., at 143), the only issue for the Court being whether there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the collective bargaining agreement. Matter of New York City Transit Authority v. Transport Workers Union of America, 99 N.Y.2d 1 (2002), broadly states the policy basis for sustaining agreements to arbitrate legal disputes in favor of supporting arbitration and discouraging judicial interference with either the process or its outcome. Arbitration of labor disputes has a quite different function from arbitration under an ordinary

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commercial agreement, as arbitrators in such disputes are chosen by labor and management because of their expertise and insight into the relationship. Both compulsory and consensual arbitration are subject to the public policy exception developed in case law. Matter of City of New York v. The Uniformed Fire Officers Association, 95 N.Y.2d 273 (2000), overturned a decision of the City Board of Collective Bargaining holding arbitrable the question whether the employee rights provision of the collective bargaining agreement (CBA) could be invoked to limit or restrict the procedures of an investigation by the City’s Department of Investigation into a firefighter’s fraudulent conduct. The Court of Appeals stayed arbitration, holding that arbitration was precluded by public policy since the granting of any relief under the provisions of the CBA would impinge upon the Department of Investigation’s ability to conduct a criminal investigation. Similarly, Matter of Blackburne (Governor’s Office of Employee Relations), 87 N.Y.2d 660, 665 (1996), a Taylor Act case, held that “[i]f a statute, decisional law, or public policy precludes the governmental employer and employee from referring the dispute to arbitration . . . the claim is not arbitrable” under that Act. The employee, Blackburne, was accused of violating the Federal Hatch Act by running for public office while a state employee. Under that Act violation could result either in removal of the employee from employment or the employer’s loss of Federal funds. The Court held that public policy precluded arbitration, because permitting the arbitrator to elect between the two options could be an impermissible delegation of the employer’s sovereign authority. Likewise, disputes relating to the State’s anti-trust law (General Business Law Article 22) may not be submitted to arbitration even though the contract between the parties provided for “arbitration of any controversy or claim arising out of or relating to [their] contract or breach thereof,” because arbitrators are not bound by rules of law, so that their decision could have adverse consequences for the public in general. Aimcee Wholesale Corp. v. Tomar Products, Inc., 21 N.Y.2d 621 (1968). However, in Binghamton Civil Service Forum v. City of Binghamton, 44 N.Y.2d 23 (1978), the Court held that under the Taylor Law, the only arbitrable matters are the predicate for taking disciplinary action against a public employee and the proper penalty to be imposed and that the arbitrator had not violated public policy, therefore, by reducing the Mayor’s discharge of an employee accused of receiving a bribe to a six-month suspension without pay. Id., at 28. The Court had earlier held that while denial of tenure to a nontenured teacher is not arbitrable, the arbitrator may require that a nontenured teacher be reinstated in a nontenured position. Matter of Cohoes City School District v. Cohoes Teachers Association, 40 N.Y.2d 774 (1976). Whether

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Binghamton remains good law in view of the City of New York decision is unclear, as it was not referred to in either the majority opinion or the dissents. Neither the distribution of a decedent’s estate nor the validity of a will is arbitrable, Matter of Berger (Berger), 81 A.D.2d 584 (1981), Swislocki v. Spiewak, 273 768 (1947), appeal denied 273 808 (1948). Although earlier cases rejected arbitration in relation to support to be paid by a husband to his wife and daughter, e.g., Application of Stern, 285 N.Y. 239 (1941), later cases make clear that arbitration is now permissible in matrimonial matters. Matter of Meisels v. Uhr, 79 N.Y.2d 526 (1992), confirming an award by a Beth Din (a Jewish religious body); see also Egol v. Egol, 68 N.Y.2d 693 (1986), Stillman v. Stillman, 80 A.D.2d 356 (1981), affirmed for the reasons stated in the Appellate Division opinion, 55 N.Y.2d 658 (1981). The present provisions of the Civil Practice Law and Rules contained in Article 75 govern except as the arbitration clause of the parties’ agreement makes applicable the rules of the American Arbitration Association, the National Association of Securities Dealers, or other arbitration association providers. While Article 75 is by itself appropriate only to consensual arbitration, the Catherwood decision, 26 N.Y.2d at 510, supra, held that the Legislature had the power to weld consensual and compulsory arbitration to the extent that they are compatible and the language of the statutes and the constitutional limitations permit. The Court held that giving the “excess of power” clause of section 7511 its ordinary meaning was sufficiently broad to cover constitutional limitations and that, therefore, the extraordinary provision for compulsory arbitration was constitutionally justified. See also the Mount St. Mary’s Hospital decision, supra, which held that compulsory arbitration in labor matters was constitutional, but that the excess of power provision of CPLR 7511(b) applied to compulsory as well as consensual arbitration, review being limited, however, to “whether the award is supported by evidence or other basis in reason, as may be appropriate, and appearing in the record.” With respect to compulsory arbitration under the no-fault law, Matter of Motor Vehicle Accident Indemnity Corp. v. Aetna Casualty and Surety Co., 89 N.Y.2d 214 (1996), held that under CPLR 7503(b) Aetna could have had its statute of limitations defense judicially decided, but having raised the defense before the arbitrators who ruled against Aetna, its limitations defense must fail in light of CPLR 7511(b)(2)(iv)’s provision that an award may be vacated only on the application of a party who neither participated in the arbitration nor was served with notice of intention to arbitrate. With respect to consensual common law arbitration the Court in Sablosky v. Edward S. Gordon Co., 73 N.Y.2d 133 (1989), upheld an arbitration clause that

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compelled one party to submit all disputes to arbitration but allowed the other party to litigate or arbitrate so long as there is consideration on both sides, mutuality not being required in an arbitration contract. In Matter of Primex International Corp. v. Wal-Mart Stores, Inc., 89 N.Y.2d 594 (1997), the Court held that absent a clear manifestation of contrary intent, it is presumed that the parties intended that arbitration called for by their agreement will survive termination of the agreement as to subsequent disputes arising under the agreement, whether its termination resulted from expiration of its term, the exercise of a unilateral termination option, or breach. In TNS Holdings v. MKI Securities Corp., 92 N.Y.2d 335 (1998), the Court ruled that a corporation related to but not itself a party to the agreement to arbitrate can be compelled to arbitrate if the signatory corporation was dominated by the nonsignatory party as to the transaction and such domination was an instrument of fraud or otherwise resulted in wrongful or inequitable consequences. Arbitrability is generally an issue for judicial determination but is for the arbitrators when the agreement provides that any and all controversies shall be determined by arbitration, as when the agreement adopts the National Association of Securities Dealers rules, which in Section 15 so provides. This is the result notwithstanding a provision in the party’s agreement that it shall be governed by the laws of the State of New York, and notwithstanding that section made a dispute ineligible for arbitration when six years had elapsed since the event giving rise to the act, dispute, claim, or controversy, the six-year period not being procedural but limiting entitlement to arbitration, not the arbitrator’s authority to determine eligibility. Matter of Smith Barney Shearson Inc. v. Sacharow, 91 N.Y.2d 39 (1997). Failure to comply with a statutory condition precedent to arbitration, as where the governing statute requires the service of a notice of claim on a board of education, is a question for judicial resolution. Matter of United Nations Development Corp. v. Norkin Plumbing Co., 45 N.Y.2d 358 (1978). But the effect of failure to comply with a contractual condition precedent turns on whether the arbitration clause is broad or narrow. Under a broad clause, compliance with a contractual notice provision is for the arbitrator, and this is so whether the arbitration involves a commercial transaction or a collective bargaining agreement. Id., at 363. Failure to satisfy a condition precedent to arbitration, for example a provision for a hearing before a medical officer following which arbitration was available, forfeits the right to arbitration. Matter of Barnes (Council 82, AFSCME), 94 N.Y.2d 719 (2000); see also Matter of Enlarged City School District of Troy (Troy Teachers Association), 69 N.Y.2d 905 (1987).

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The right to contest a claimed obligation to arbitrate may be limited by the provision of CPLR 7503(c) that a party may serve upon another party a demand for arbitration or a notice of intention to arbitrate stating that unless the party served applies within twenty days after such service to stay arbitration, he is thereafter precluded from objecting that a valid agreement was not made or has not been complied with and from asserting in Court the bar of a time limitation. Failure to include such notice in the demand or notice permits the respondent party to move pursuant to CPLR 7511(b)(2) to vacate the award, notwithstanding that he or it claimed in letters written to the AAA over the course of several months to be no longer bound by the collective bargaining agreement, and that the party did not participate in the arbitration. Matter of Blamowski (Munson Transportation), 91 N.Y.2d 190 (1997). Moreover, though neither party expressly agrees to arbitration or signs broker’s notes, the buyer and seller are bound by an arbitration clause in the notes if they retain them and proceed with the transaction. However, if the confirmation signed by the broker calls for arbitration under the laws of a different state or country than that referred to in the broker’s sales note first sent and the broker had authority from the seller to act for it in agreeing to that term, the seller may be bound by the laws of that state, Matter of Itoman (USA) v. Daewoo Corp., 68 N.Y.2d 925 (1986). Waiver may affect both the right to contest arbitration and the right to litigate an issue. The right to contest arbitration may be lost by participation in litigation of the issues involved—Sherrill v. Grayco Builders, Inc., 64 N.Y.2d 261, 272 (1985); Matter of Zimmerman v. Cohen, 236 N.Y. 15, 19 (1923)—unless the claims litigated are entirely separate even though arising from a common agreement, Sherrill, supra, at 273; Denihan v. Denihan, 34 N.Y.2d 307, 314 (1974). Nor may a party participate in arbitration on the merits and still maintain a right to litigate the issues. Roggio v. Nationwide Mutual Insurance Company, 66 N.Y.2d 260, 263 (1985); Sherrill, supra, at 273. As previously noted, the right to arbitration may also be lost by failure to comply with the requirement of CPLR § 7503(c). In Matter of Matarasso v. Continental Casualty Company, 56 N.Y.2d 264 (1982), the Court held that where application for a stay is made on the ground that no agreement to arbitrate exists, it may be entertained notwithstanding that the stay was sought after the twenty-day period had elapsed. While the Court recognized that courts have no discretion to extend the time period to permit consideration of an untimely application, the Court reasoned that the statute’s reference to “parties” refers to parties to an agreement to arbitrate, and concluded that the Legislature did not intend to require arbitration where no agreement to arbitrate had ever been

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made. However, in Matter of Steck (State Farm Insurance Company), 89 N.Y.2d 1082 (1996), since the parties did not dispute that the insurance policy contained an agreement to arbitrate the Court ruled that the insurer’s failure to comply with the twenty-day notice provision of the statute barred it from objecting to arbitration. The authority granted arbitrators by New York statutes as construed by the Court is best illustrated by the Court’s decisions in Weinrott v. Carp, 32 N.Y.2d 190 (1973), Silverman v. Benmor Coats, Inc. 61 N.Y.2d 299 (1984), and Matter of Board of Education v. Dover-Wingdale Teachers’Assn, 61 N.Y.2d 913 (1984). The Weinrott case held that under a broad arbitration clause, fraud in the inducement should be determined by the arbitrators rather than the courts and that, the broad arbitration provision of the contract being separable, the agreement to arbitrate would be upheld even though substantive provisions of the contract were induced by fraud. Prior to Weinrott, an arbitration agreement had been held generally not separable from the principal contract. The Silverman opinion made clear that any limitation upon the power of the arbitrator must be set forth in the arbitration clause itself, that once it is clear that a valid agreement to arbitrate has been made and complied with and that the claim sought to be arbitrated is not barred by limitations, the authority of the arbitrator is plenary, that absent provision in the arbitration clause an arbitrator is not bound by principles of substantive law or rules of evidence. Thus, an award will not be vacated even though his interpretation of the agreement disregards its plain meaning or misapplies substantive rules of law, unless it violates a strong public policy, is totally irrational, or exceeds specifically enumerated limitations on his power. The decision also held that the claim that the arbitrator exceeded his power is waived unless raised by an application for a stay. The tendency of the courts is to read a limitation on the arbitrator’s power narrowly, though not if it is asserted at Special Term in opposition to an application for confirmation or as the basis for a motion to vacate. Note, however, the holding of the Board of Education court that the rule stated in Matter of Silverman is inapplicable if the award would violate strong public policy, be totally irrational, or in excess of specifically enumerated limitations upon arbitral authority. With respect to consensual or compulsory arbitration res judicata is for the arbitrator to decide, Matter of City School District v. Tonawanda Education Assn, 63 N.Y.2d 846 (1984). For example, where an arbitrator has held claimant guilty of misconduct and approved his discharge, claimant’s entitlement to unemployment insurance is barred by issue preclusion, the issue in both proceedings being whether claimant was guilty of misconduct, Matter of Ranni’s Claim, 58 N.Y.2d 715 (1982). However, by their contract the parties may negate or otherwise limit

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the collateral estoppel effect of the arbitrator’s decision as to each other, though not as to different parties. American Insurance Company v. Messenger, 43 N.Y.2d 184, 193–194 (1977). Matter of Solkav Solartechnik G.M.B.H. (Besicorp Group), 91 N.Y.2d 482 (1998), held that when a pre-arbitration special proceeding ended in a final judgment, a new proceeding must be commenced to confirm an arbitration award, but the Court invited the Legislature to amend CPLR 7502(a) if it intended otherwise. The Legislature amended the section to provide that “[n]otwithstanding the entry of judgment, all subsequent applications shall be made in the special proceeding or action in which the first application was made,” and in In re Gleason (Michael Vee Ltd), 96 N.Y.2d 117 (2001), the Court held that as to an arbitration that had been dismissed in the interval between the Solartechnik decision and the effective date of the amendment the amendment of CPLR 7502(a) should be given retroactive effect. Finally, mention should be made of the Court of Appeals cases dealing with international arbitration. The United States is party to the 1958 Convention on the Recognition and Enforcement of Foreign Arbitration Awards, which is reprinted following 9 USC § 201,1 and the 1975 Inter-American Convention on International Commercial Arbitration, which is reprinted following 9 USC § 301. The 1958 Convention applies unless a majority of the parties to the arbitration agreement are citizens of a state or states that have ratified or acceded to the 1975 Convention. 9 USC § 305. The cases presented to the Court to date relate to the 1958 Convention. Cooper v. Ateliers De La Motobecane, 57 N.Y.2d 408 (1982), held that under the Convention foreign arbitration awards are to be enforced on the same terms as domestic awards (id., at 413), that the Convention does not contemplate significant judicial intervention until after an arbitral award is made (id., at 416, emphasis in original). Moreover, an attachment would not be available in a proceeding to compel arbitration pursuant to CPLR § 7503 subd. a, since that is not an action seeking a money judgment as required by CPLR 6201. Id., at 413. The Corcoran case, supra, involved an insolvent insurance company and the Court held that since the Convention required recognition of an arbitral agreement only when it concerned a subject matter capable of settlement by arbitration and that the Superintendent of Insurance, in the absence of express authority could not engage in arbitration, the arbitration clause in the claims against Ardra was incapable of being performed. Corcoran, supra, at 232.

17. Criminal Law

IT WOULD BE beyond the scope of this book to examine all the criminal cases the Court of Appeals has dealt with. Instead, this chapter is concerned only with some questions that have been dealt with uniquely by New York: (1) defendant’s right to counsel at the pretrial stage and (2) the death penalty, particularly cases that led to and involve the 1995 death penalty statute. Criminal law issues are addressed in some detail in chapter 8, “New Judicial Federalism,” and in other chapters as well.

I. Pretrial Statements and the Right to Counsel The general trend of the New York Court of Appeals decisions on the right to counsel was to expand the right often beyond that required by the Federal Constitution and prior decisions under New York law, but occasionally the Court revisited and either narrowed or overruled an expansive precedent, sometimes prompting intensive examination of the stare decisis doctrine. The Court of Appeals has noted the deep roots of New York’s constitutional right of a defendant to counsel as well as the obligation of the bar in criminal cases: The State right to counsel is a “ ‘cherished principle,’ rooted in this State’s prerevolutionary constitutional law and developed ‘independent of its Federal counterpart.’” (People v. Harris, 77 N.Y.2d 434, 439 [quoting People v. Settles,

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46 N.Y.2d 154, 160-161].) “The ‘highest degree of [judicial] vigilance’ is required to ‘safeguard’ it.” (People v. Harris, 77 N.Y.2d, at 439 [quoting People v. Cunningham, 49 N.Y.2d 203, 207].) People v. West, 81 N.Y.2d 370, 373 (1993)

Under both our Federal and State Constitutions, a defendant has the right to defend in person or by counsel of his own choosing. (U.S. Const. 6th Amendt.; State Const. art. I, § 6.). . . . “There has been no time in the governmental history of this state when the court lacked the power to assign counsel for the defense of indigent persons charged with crime; and it has been a part of the obligation assumed by counsel upon their admission to the bar to defend poor prisoners upon assignment by the court . . . [and] such service was rendered by counsel so assigned without pecuniary compensation.” People v. Price, 262 N.Y. 410, 412–13 (1933) (citations omitted; emphasis added)1

Recognition that a “defendant has the right to defend . . . by counsel” was only the beginning of the problem for the courts. Of course, defendant’s right to be represented at trial was firmly established. The difficult question was to determine at what point, if any, prior to trial the right to counsel should be attached. The question was addressed largely in cases involving a challenge to the admissibility of a defendant’s uncoerced statement, without the presence of counsel, that was the product of interrogation by the police, the district attorney, or other government authority. Commonly, “the problem [was viewed as one] of achieving a balance between the competing interests of society in the protection of cherished individual rights, on the one hand, and in effective law enforcement and investigation of crime, on the other.” People v. Waterman, 9 N.Y.2d 561, 564 (1961). In People v. Di Biasi, 7 N.Y.2d 544 (1960), defendant, after indictment, surrendered to police accompanied by or by arrangement with his attorney. After his surrender and before arraignment, the police interrogated defendant, but his attorney was not present. The Court, in a 4–3 decision, held the statement to be inadmissible because interrogation after indictment without counsel violated defendant’s Fourteenth Amendment constitutional right to the assistance of counsel and his right against self-incrimination. The dissent viewed this as “a new concept in criminal prosecution” that favored a defendant who had retained counsel over one who had not and argued that New York should continue to follow what, it claimed, heretofore had been the only reason for excluding a

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confession, i.e., the confession was involuntary or extracted under a promise of immunity.2 Di Biasi was a capital case where defendant had retained counsel. People v. Waterman, 9 N.Y.2d 561 (1961), held that Di Biasi stood for the proposition that after “initiation of a criminal action” by indictment a defendant had an absolute right to counsel, and a statement obtained from an uncounselled defendant was inadmissible as a violation of defendant’s rights to counsel and against selfincrimination. The Waterman majority rejected the dissenters’ attempt to limit Di Biasi to capital cases where defendant had retained counsel. Addressing the practical consequences of a contrary rule, the Court said: “Depriving a person, formally charged with a crime, of counsel during the period prior to trial may be more damaging than denial of counsel during the trial itself,” and such a deprivation “after indictment and before trial” may, indeed, be tantamount to the denial of “effective representation by counsel at the only stage when legal aid and advice would help him.” (Spano v. New York, 360 U.S. 315, 325–326 . . . , per Douglas, J., concurring.) 9 N.Y.2d, at 566

People v. Donovan, 13 N.Y.2d 148 (1963), further extended defendant’s right to counsel before trial. In Donovan, unlike Di Biasi, defendant had not been formally charged when he made an uncounselled statement to police after they had interrogated him. However, when he made the statement counsel, who had been retained by his family, had been denied access to the defendant, and, in addition, defendant was unlawfully in custody in violation of a promptarraignment statute. Judge Fuld, for a 4–3 majority, held the statement to be inadmissible, and reversal of the murder conviction was required because the reception of a confession was so prejudicial, even though, apart from the confession, there was strong evidence to support the conviction.3 Judge Fuld rejected arguments by the Donovan dissenters, Judges Burke, Van Voorhis, and Foster, that focused on the contention that permitting access to counsel before formal charge would impair criminal investigation. The dissent claimed that unless there was a violation of due process, the exclusion of a confession should be solely on the basis of involuntariness determined under the ordinary rules of evidence.4 However, Judge Fuld characterized the constitutional defect in Donovan as a violation of “fundamental fairness,” 13 N.Y.2d, at 153 (emphasis added), and, consequently, held the statement should be excluded despite the possible adverse effect on criminal investigation. He wrote:

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[Q]uite apart from the Due Process Clause of the Fourteenth Amendment, this State’s constitutional and statutory provisions pertaining to the privilege against self incrimination and the right to counsel . . . not to mention our own guarantee of due process . . . , require the exclusion of a confession taken from a defendant, during a period of detention, after his attorney had requested and been denied access to him.” 13 N.Y.2d, at 151 (emphasis added; citations omitted)

People v. Bodie, 16 N.Y.2d 275 (1965), addressed the effect of defendant’s voluntary waiver of counsel and could be viewed as contracting the right to counsel recognized by Donovan. In Bodie, after the filing of an information, defendant was arrested on a warrant, and when questioned by the police as to “whether he cared for counsel” he said he did not. Thereafter, the police interrogated him and obtained a statement that the Court held to be admissible. The Bodie majority reasoned that if this were a case solely of interrogation after the filing of an information or an indictment, defendant’s statements should be excluded. However, in Bodie, the Court reasoned, defendant by his own choice had waived his right to counsel after being advised by police that he could have a lawyer. The Court noted that there was no authority that required the police to advise defendant of his right to counsel nor was there authority that held that the police could not so advise him. However, in this case, the police did give him the option and he chose to waive counsel. Bodie became one of several cases that created uncertainty about the scope of Donovan and the cases that followed it. Judge Fuld, dissenting, denied that a policeman was the proper authority to advise the defendant of his rights and to act on his waiver after charges had been filed. No proper constitutional purpose would be served by sanctioning this action. He reasoned that where an information or indictment was filed there already was sufficient evidence to charge the defendant; the filing of the accusatory instruments signaled the commencement of the adversary stage of the criminal process. Indeed, in this case the police were clearly the adversary, after having signed the information. More properly, advising defendant of his rights and accepting his waiver, if any, was the role of a judicial officer, not the police. Consequently, Judge Fuld claimed, where, as in Bodie, an information had been filed, the police interrogation in essence was part of the adversary stage, not the investigatory stage, and in the adversary stage defendant had the right to counsel, which could not be waived without judicial supervision. People v. Arthur, 22 N.Y.2d 325 (1968), extended the right to counsel even before the filing of an information or indictment. In Arthur, defendant was

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arrested, and an attorney the defendant had retained in an earlier accident case saw a TV broadcast about defendant’s arrest and felt he should go down to the police station to help him. The attorney arrived at the station and requested to see the defendant. After a while the attorney was granted access to the defendant, and before he left the police station, the attorney told the police that defendant was “pretty sick and I think you should leave him alone.” The defendant had never formally retained the attorney. After interrogating the defendant, the police obtained a written statement from him, all or part of which was obtained after the attorney requested to see the defendant. In addition, the defendant made oral statements to the police the next morning. At trial, the defense objected to the reception of the written and oral statements on the ground that they were involuntary, but no objection was made on the ground that the statements were obtained without the presence of counsel. Judge Scileppi, for a unanimous Court, found that the statements were voluntary, but nevertheless excluded both the oral and written statements. The Court rejected the prosecution’s contention that the right to counsel under Donovan and subsequent cases applied only to defendants who had counsel retained by the defendant or retained by others for the defendant. However, Judge Scileppi viewed prior Court of Appeals cases, including Donovan, all decided before Miranda v. State of Arizona, 384 U.S. 436 (1966),5 as having “painted with broad strokes” “the [broader] fundamental right of the accused to be represented by counsel.” 22 N.Y.2d, at 328. New York’s pre-Miranda right to counsel principles, according to Judge Scileppi, were: [O]nce the police know or have been apprised of the fact that the defendant is represented by counsel or that an attorney has communicated with the police for the purpose of representing the defendant the accused’s right to counsel attaches; and this right is not dependent upon the existence of a formal retainer. Nor is it significant that [the attorney] did not, immediately upon his arrival at Police Headquarters, instruct the police not to take any statements from the defendant. . . . Once an attorney enters the proceeding, the police may not question the defendant in the absence of counsel unless there is an affirmative waiver, in the presence of the attorney, of the defendant’s right to counsel. . . . There is no requirement that the attorney or the defendant request the police to respect this right of the defendant. 22 N.Y.2d., at 329 (emphasis added; citations omitted)

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Arthur further underscored the fundamental importance of the right to counsel when it ruled that “[t]he failure to object to the admissions on right to counsel grounds is not fatal since we are concerned with the deprivation of a fundamental constitutional right.” 22 N.Y.2d, at 329. After Arthur and a line of cases consistent with it, the Court of Appeals decided People v. Robles, 27 N.Y.2d 155 (1970), cert. denied 401 U.S. 495 (1971), and People v. Lopez, 28 N.Y.2d 23 (1971), which cast doubt on the absolute character of Arthur’s declaration that “[o]nce an attorney enters the proceeding, the police may not question the defendant in the absence of counsel unless there is an affirmative waiver, in the presence of the attorney, of the defendant’s right to counsel.” 22 N.Y. 2d, at 329 (emphasis added). In Robles, police obtained a statement from the defendant who had been indicted but was unaware that he had been indicted. At the time he gave the statement, the defendant had an attorney and had consulted him, but the attorney was not present when the defendant waived his right to counsel. Although the defendant had been indicted and had a lawyer, the Court accepted the lower court’s finding that the statement was not the product of interrogation. It held that defendant’s voluntary written waiver of counsel, albeit not in the presence of counsel, sufficed to permit the reception of his statement at trial. As to defendant’s reliance on Arthur’s statement of the rule concerning waiver of counsel, Robles declared that the “assertion that once an attorney appears there can be no effective waiver unless made ‘in the presence of the attorney’ is merely a theoretical statement of the rule. This dogmatic claim is not the New York law” and was not intended to preclude a wholly voluntary waiver of counsel by defendant. 27 N.Y.2d 155, at 158 (emphasis added). Moreover, the Robles majority denied that prior cases supported the objection to the admissibility of the statement. The majority argued: It would be unreasonable and unrealistic, where the defendant’s lawyer is physically present in the very building and on the very floor (and, at one point, in the very room) where defendant is being held and where he has conferred with and presumably advised the defendant of his rights, to hold that the defendant’s voluntary admissions of guilt are inadmissible because made in the “absence” of counsel. Indeed, in no prior case where the defendant’s attorney was physically present in the immediate vicinity of his client and had had prompt access to his client have we held that admissions made by a defendant during such time are inadmissible. 27 N.Y.2d, at 160 (emphasis in original)

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Judge Breitel, dissenting in Robles, disagreed with the majority’s reading of the relevant precedents, arguing that the “rule laid down so plainly in the Arthur case was not novel. It was, indeed, the articulation and culmination of a distinct development in the court based on fundamental due process grounds. . . . Nor does the Arthur case lay down merely a theoretical statement of its rule. It has been firmly accepted and applied. . . .” 27 N.Y.2d, at 160–161 (citations omitted). He also concluded that the right to counsel could be adequately protected only by rigorously following prescribed procedures, including the actual presence of counsel at the time of waiver. He characterized the approach of the Robles majority as subordinating the right to counsel to the right against selfincrimination. In Lopez, New York had indicted the defendant. Subsequently, he was charged by Federal information with a Federal crime and arrested on a Federal warrant. After having been advised of his right to remain silent and his right to counsel, he made a statement to the Federal officers that touched upon the New York offense. The Lopez majority recognized that Waterman, supra, had “held that a statement taken after indictment and before arraignment in the absence of counsel is inadmissible,” but reasoned that this did not determine whether a defendant could “intelligently” and “understandingly” waive his right to counsel. 28 N.Y.2d, at 25. The majority, relying on Bodie, supra, held that the waiver of counsel, after appropriate warnings, was valid. Judge Breitel, dissenting in Lopez, urged that whatever merit there might be to recognizing waiver of counsel after Miranda warnings during the investigative stage, the policy is different after the defendant is formally charged by indictment or information. Dismayed at the course of these post-Arthur decisions, he wrote: “Then, of course, came People v. Robles in which the attenuated theory of waiver is strained further and the rule in the Arthur case . . . is emaciated beyond recognition. Now, there is this case [Lopez], based on waiver, with resurrection of the much-qualified Bodie case.” 28 N.Y.2d, at 28. Obviously, continued life for each of the leading cases, Arthur, Donovan, Waterman, Bodie, Robles, and Lopez, presented substantial uncertainty with respect to the law governing defendant’s waiver of counsel. Judge Breitel, who had become Chief Judge, writing for five members of the Court in People v. Hobson, 39 N.Y.2d 479 (1976), sought to relieve this uncertainty and overruled Robles and Lopez.6 The other two judges, Jasen and Gabrielli, concurred in separate opinions. Hobson involved police interrogation of a person in custody who was represented by counsel at a lineup. After the lineup, but in the absence of counsel, he had waived assistance of counsel and gave the police a statement.7 The Court extensively reviewed the Court’s

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precedents, and relying on People v. Arthur, supra, held that the statement was inadmissible. Hobson reaffirmed Arthur’s teaching that once a lawyer has entered a criminal proceeding representing a defendant in connection with criminal charges under investigation, the defendant in custody may not waive his right to counsel in the absence of the lawyer. . . . This unequivocal and reiterated statement of the law in this State is no mere “dogmatic claim” or “theoretical statement of the rule” (see, contra, People v. Robles, 27 N.Y.2d 155, 158, cert den 401 US 945, thus characterizing the rule). It is, instead, a rule grounded in this State’s constitutional and statutory guarantees of the privilege against self incrimination, the right to the assistance of counsel, and due process of law. . . . Indeed, the rule resisted narrow classification of defendants entitled to its protection; it is applicable to a defendant when taken into custody, whether as an “accused,” a “suspect,” or a “witness.” . . . 39 N.Y.2d, at 482–83 (citations omitted)

Another factor underlying the Court’s decision was the legal ethics principle that forbade an attorney (here, the prosecutor or its agent) from interfering with an adversary’s attorney-client relationship—that is, the defendant and his attorney. Chief Judge Breitel went on to say that as with “all verbalizations,” the Arthur rule was not “absolute.” It did not apply where counsel represented defendant on a charge unrelated to the investigation, not in custody, or where defendant’s statement is spontaneous. 39 N.Y.2d, at 483. Addressing the principle of stare decisis implicated in overruling the two cases, the Chief Judge characterized Robles and Lopez as “odd cases” and the Di Biasi-Arthur cases as a “line of development never fully criticized or rejected.” 39 N.Y.2d, at 487. He concluded that the stability and other social policies implicit in stare decisis did not mean merely adherence to the most recent decisions regardless of the firmness of their foundation. This was particularly true where the recent decisions, such as Robles and Lopez, involved constitutional holdings beyond legislative modification, and, in addition, the rationale for overruling a long line of carefully reasoned precedents is based more on conclusory assertions than on explicit reasons. Stare decisis, if it is to be more than shibboleth, requires more subtle analysis. Indeed, the true doctrine by its own vitality should not, perversely, give to its violation strength and stability. That would be like the patricide receiving mercy because he is an orphan. The odd cases rode roughshod over stare

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decisis and now would be accorded stare decisis as their legitimate right, whether or not they express sound, good, or acceptable doctrine. 39 N.Y.2d, at 487

Judge Jasen in concurring agreed that Robles and Lopez did not provide the basis for “a stable and recognized rule” and specifically expressed satisfaction with the exceptions set out in Chief Judge Breitel’s opinion to Arthur’s broad formulation of the rule. Judge Gabrielli did not concur in overruling Lopez, and citing Bodie, supra, which was not explicitly overruled by the Chief Judge’s opinion, Judge Gabrielli would adhere to the established view that, until counsel is assigned or retained by a defendant in a criminal action, he is perfectly free, after suitable and proper admonitions, to waive his right to the presence and assistance of counsel and make voluntary statements. . . . It is always the task of the courts, of course, to assure that such a waiver is knowingly and intelligently made and that statements following a waiver are voluntarily given. 39 N.Y.2d, at 492

Subsequently, People v. Skinner, 52 N.Y.2d 24 (1980), decided that a suspect who was not in custody and had not yet been formally charged could not waive the right to counsel and to remain silent not in the presence of counsel when he had previously retained counsel on the charge that was the subject of the interrogation, and counsel had asked the police not to question the defendant. The majority held that application of the Arthur-Hobson rules vitiating the effectiveness of a waiver did not depend on whether or not the suspect was in custody, and the statement obtained by the police in Skinner was suppressed. As noted, the Hobson majority stated that “the fact that a defendant is represented by counsel in a proceeding unrelated to the charges under investigation is not sufficient to invoke the [Arthur] rule.” 39 N.Y.2d, at 483. Interestingly, this observation offered in a case that did not involve the circumstances it addressed, and provided as an example of the non-absolute character of rule verbalizations such as the one in Arthur, itself became the subject of dispute when the Court decided a series of cases involving the admissibility of a statement not in the presence of counsel by a defendant who was represented by counsel on a charge unrelated to the charge under investigation. People v. Bartolomeo, 53 N.Y.2d 225 (1981), held: Where to the knowledge of the interrogating officer a suspect being questioned had been arrested by the same law enforcement agency nine days pre-

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viously on an unrelated charge, statements obtained in consequence of the interrogation must be suppressed if in fact the suspect is represented by an attorney with respect to the unrelated charge even though the fact of such representation is unknown to the officer. In such circumstances defendant cannot effectively waive his right to counsel unless the attorney is present. 53 N.Y.2d, at 229

Although the interrogating officers did not have actual knowledge that defendant had counsel on the unrelated charge, Bartolomeo, nevertheless charged them with knowledge that the suspect was represented by counsel on the unrelated charge because, with actual knowledge of the outstanding [unrelated] arson charge against defendant, [they]were under an obligation to inquire whether defendant was represented by an attorney on that charge. Having failed to make such inquiry, the officers were chargeable with what such an inquiry would have disclosed—namely, that defendant did have an attorney acting on his behalf. With such knowledge they were foreclosed either from questioning defendant or from accepting his waiver of counsel’s assistance unless his attorney was then present. 53 N.Y.2d, at 231–32

In short, Bartolomeo “held that a suspect, represented by counsel on a prior pending charge, may not waive his rights in the absence of counsel and answer questions on new unrelated charges. If the police are chargeable with knowledge of the prior representation, any statements the suspect makes, not only about the prior charges but also about the new charges, must be suppressed.” People v. Bing, 76 N.Y.2d 331, 334 (1990). However, Bartolomeo explicitly reserved for another time deciding the consequence when the “prior arrest is remote in time or place or is made by officers of another law enforcement agency.” 53 N.Y.2d, at 229, note 1. Judge Wachtler dissented in Bartolomeo, with Judges Jasen and Gabrielli concurring. First, he argued that no precedent required the suppression of the statements under the facts, and second, no adequate policy reason was advanced in support of the Bartolomeo holding. Third, he claimed Barotolomeo, as a practical matter, does not have equal effect on the broad spectrum of miscreants. It is the common criminal, not the one-time offender, who nearly always will manage to have at least one serious charge pending, so that the attorney in the

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picture can provide him with virtual immunity from questioning in subsequent investigations. I had thought it clear that although our courts are sometimes required to let the guilty go free, this is not because the Constitution serves only the miscreant, but rather because our constitutional protections must apply evenly to us all. By its analysis I believe the majority has turned this basic principle completely around by providing what is in effect a dispensation for the persistent offender. 53 N.Y.2d, at 239 (Wachtler, J., dissenting, emphasis supplied)

One year before its decision in Bartolomeo, the Court had applied the Hobson rule to protect an unrepresented defendant in custody who had requested the assistance of counsel during interrogation. People v. Cunningham, 49 N.Y.2d 203 (1980). However, in People v. Davis, 75 N.Y.2d 517 (1990), the Court held that a suspect who has requested counsel in a noncustodial setting can subsequently waive or withdraw that request.8 In addition, the Court held that before the right to counsel has indelibly attached, the suspect’s request for counsel must be “unequivocal,” and unless it is unequivocal, the suspect, although not in the presence of counsel, may be interrogated and waive his rights to counsel and to remain silent. People v. Glover, 87 N.Y.2d 838 (1995). After Bartolomeo, defendant’s waiver of counsel and the right to remain silent not in the presence of counsel although he had counsel on a charge unrelated to the charge for which he was interrogated came before the Court on numerous occasions and was the subject of sharp disputes among its members. In People v. Bing, 76 N.Y.2d 331 (1990), the majority’s doubts about the policy underlying Bartolomeo resulted in the court overruling Bartolomeo. Bing was decided along with People v. Cawley and People v. Medina. Each presented a different problem for the application of Barotolomeo. Bing involved a defendant suspected of a New York burglary who was arrested on an Ohio warrant for burglary. He had counsel in Ohio on the Ohio charge, but after receiving Miranda warnings he waived counsel and the right to remain silent and was interrogated without counsel present about the New York burglary, to which he confessed. The New York police had made no inquiry and he did not tell them about his representation in Ohio on the unrelated Ohio charge. “The People urged that a geographical limit should be recognized and that outof-State charges should not trigger the Bartolomeo right to counsel on New York charges. The courts below agreed and denied suppression.” 476 N.Y.2d, at 335. Cawley presented a question concerning the quality of the attorney-client relationship on the unrelated charge. In Cawley, defendant had skipped bail on a robbery charge. Although he had been represented by counsel at arraignment

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on a robbery charge, after he skipped bail he had not remained in contact with the attorney. Cawley was returned to New York from out of the state on a bench warrant and was questioned by police about an unrelated murder and robbery charge. After receiving Miranda warnings he waived counsel, confessed to the murder charge, and also made statements implicating him in another murder as well as another unrelated charge. The interrogating police were unaware that he had had representation on the robbery charge. He pleaded guilty to petit larceny in satisfaction of the first charge (robbery). After he completed his petit larceny sentence and was released, he was again arrested and he waived his rights and confessed again to the murder offense. “[T]he People contended that defendant relinquished his attorney-client relationship on the pending charge by absconding and failing to maintain contact with his lawyer while gone.” 76 N.Y.2d, at 336. The trial court’s exclusion of the confession was affirmed by the Appellate Division; the Court of Appeals reversed. Medina rejected defendant’s contention that a claimed violation of the Bartolomeo rule should be the basis for submitting the voluntariness of a confession to the jury. An officer investigating the murder of Medina’s neighbors learned that he had been released from jail after being held on an assault charge. Questioned about the prior assault charge, Medina said he had been “let go” because witnesses failed to appear on four occasions; the detective concluded the assault charge had been dismissed. After waiving his rights, Medina made inculpatory statements not in the presence of counsel after interrogation on the murder charge. At trial, relying on Bartolomeo, the defense claimed that the uncounselled statements on the murder charge should have been excluded because the police had made an inadequate effort to determine whether he was still represented on the unrelated assault charge. Medina also attempted to submit the voluntariness of his confession to the jury solely on the ground that counsel was not present when he made his statement. The Court of Appeals affirmed the lower courts’ rejection of both claims. The majority of the Court overruled Bartolomeo finding that it was not “a workable predicate for the exclusionary rule,” 76 N.Y.2d, at 335, and held the statements in all three cases were admissible. Judge Kaye, with the concurrence of Judges Titone and Alexander, disagreed with respect to overruling Bartolomeo, but concurred in the results in Bing and Medina, while dissenting in Cawley. Judge Simons, writing for the majority, was of course aware of the serious issues presented by overruling a precedent. Indeed, fifteen years earlier, the Court, in People v. Hobson, 39 N.Y.2d 479 (1976), had overruled Robles and Lopez, and Chief Judge Breitel extensively discussed the principles underlying stare decisis. Judge Simons undertook a similar consideration of the doctrine:

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Precedents remain precedents, however, not because they are established but because they serve the underlying “ ‘nature and object of the law itself’,” reason and the power to advance justice (see, Von Moschzisker, Stare Decisis in Courts of Last Resort, 37 Harv.L.Rev. 409, 414). As Justice Frankfurter observed, “stare decisis is a principle of policy and not a mechanical formula of adherence to the latest decision, however recent and questionable” . . . Although a court should be slow to overrule its precedents, there is little reason to avoid doing so when persuaded by the “lessons of experience and the force of better reasoning” Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 407-408, 52 S.Ct. 443, 447-448, 76 L.Ed. 815 [Brandeis, J., dissenting]; see also, People v. Hobson, 39 N.Y.2d 479, 488-489, 384 N.Y.S.2d 419, 348 N.E.2d 894; see generally, Wachtler, Stare Decisis and a Changing New York Court of Appeals, 59 St John’s L.Rev. 445, 453). This is especially so in constitutional interpretation where legislative change is practically impossible. 76 N.Y.2d, at 338

Judge Simons began his analysis with noting that the “Right to Counsel Clause in the State Constitution is more restrictive than that guaranteed by the Sixth Amendment to the United States Constitution . . . Nevertheless, by resting the right upon this State’s constitutional provisions guaranteeing the privilege against self-incrimination, the right to assistance of counsel and due process of law we have provided protection to accuseds far more expansive than the Federal counterpart . . . 76 N.Y.2d, at 338–39. (Citations omitted; emphasis added). Judge Simons summarized the then existing law governing the right to counsel. There are two well-defined situations in which the right is said to attach indelibly under the State Constitution and a waiver, notwithstanding the client’s right to waive generally, will not be recognized unless made in the presence of counsel. The first, similar to the Federal right . . . deals with waivers after formal proceedings have commenced. . . . The second, recognized only in New York, relates to uncharged individuals in custody who have retained or requested an attorney. Police authorities may not question them in the absence of counsel. The scope of these rules is seemingly far removed from the language of the State Constitution but they are said to rest on notions of common sense and fairness and by requiring the presence of counsel, “[breathe] life into the requirement that a waiver of a constitutional right must be competent, intel-

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ligent and voluntary.” . . . The rules are also supported by the Code of Professional Responsibility which forbids lawyers from “[c]ommunicat [ing] or caus[ing] another to communicate on the subject of the representation with a party he knows to be represented by a lawyer in that matter” without the prior consent of the party’s lawyer . . . We have applied that proscription, by analogy, to officials of the State in criminal proceedings. Underlying all these considerations is a recognition of the imbalance between a suspect and the agents of the State, the coercive influences the State may bring to bear on one suspected of crime and acknowledgment that a party who has expressed the inability to deal with those forces without legal help is entitled to have help available without State interference . . . Notwithstanding these rules, however, it had been understood in the past that the right to counsel did not require exclusion of statements made to police in response to inquiries about crimes unrelated to those on which the suspect had representation . . . 76 N.Y.2d, at 339–40 (citations omitted; emphasis added)

Judge Simons examined the cases preceding and subsequent to Bartolomeo. Prior to Bartolomeo, he noted, there had been a narrow expansion of the prohibition on uncounselled statements where the suspect had counsel for only one of two charges so as to avoid exploitation of the counselled charge to obtain a statement on the uncounselled charge. This was of particular concern where the two charges were related. Judge Simons argued that the Bartolomeo rule had been adopted without close analysis of the probable consequences that went well beyond these concerns. The application of the rule came before the Court very frequently in a variety of fact situations, and it was difficult to determine how those cases should be decided consistent with a basic principle. This resulted in frequent changes in its scope, which could not easily be reconciled on the basis of principle or an articulated policy. 76 N.Y.2d, at 340–41. He concluded that the three cases before the Court in Bing “demonstrate graphically the recurring problems [the Court has] had with the Bartolomeo rule.When it is applied to the circumstances in each case, the result is not only unworkable but it imposes an unacceptable burden on law enforcement. Nor can the results be avoided by modifying or creating exceptions to the rule without undermining its rationale. We conclude, therefore, that a fundamental change is required and, notwithstanding compelling concerns of stare decisis, we hold that People v. Bartolomeo should be overruled.” 76 N.Y.2d, at 337 (emphasis supplied).

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Judge Kaye, dissenting, argued that overruling Bartolomeo was “a break with [the Court’s] proud tradition” of so “applying the New York State Constitution [that it had resulted in] a body of law that “constitute[d] the strongest protection of right to counsel anywhere in the country [which] was a product of the careful, considered implementation of three guarantees of our State Constitution— due process, the privilege against self-incrimination, and the right to assistance of counsel . . . [an evolution] which proceeded despite individual changes in the composition of the court.” 76 N.Y.2d, at 351. Despite the challenges in applying the Bartolomeo rule, Judge Kaye would have retained it and distinguished the three cases before the Court. Judge Kaye defended the wisdom of Bartolomeo properly applied. While agreeing that in Bing and Medina the statements were admissible even if the Court adhered to Bartolomeo, Judge Kaye urged that Cawley could be distinguished and Bartolomeo retained. As for applying Bartolomeo to the facts in Bing, Judge Kaye agreed that it would be unreasonable to expect the police to learn about the defendant’s attorney-client relationship on the Ohio charge and Bartolomeo did not require the police to do so. Moreover, Bartolomeo aims to protect New York’s right to counsel, which may be different from the right recognized by other states; those states are free to deal with their right to counsel when the question arises in their proceedings. She opined that the facts in Bing were an unrealistic basis for overruling Bartolomeo for “[n]othing in the law forces the dismal choice on us of either carrying one of our holdings to its most ludicrous outer limits [i.e., Bing] or scrapping it.” 76 N.Y.2d, at 356. As for Cawley, Judge Kaye argued “that the regrettable result in Cawley is not attributable to any defect in the Bartolomeo rule. It is instead attributable to the zeal of the police in singlemindedly pursuing the interrogation of defendant without counsel until he confessed, although they were specifically told not to continue the inquiry or they would imperil a homicide investigation. . . . Cawley [does not demonstrate] the unworkability of Bartolomeo. None of our rules work when they are deliberately ignored.” 76 N.Y.2d, at 359. Judge Kaye concluded that the difference between the majority and the dissent “boil[ed] down to the majority’s insistence that Bartolomeo cannot be justified as a matter of policy, that the rule is unreasonable, and that it imposes an unacceptable burden on law enforcement agencies.” 76 N.Y.2d, at 359. Once again addressing stare decisis, a recurring question in the judicial development of New York’s right to counsel doctrines, Judge Kaye conceded that the differences between the majority and the dissent “might well have been compelling considerations in deciding Bartolomeo—indeed, those very arguments were made in the dissenting opinions in both People v. Rogers9 and Bartolomeo. Even

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the criticism of this line of right-to-counsel cases by other jurisdictions and commentators was known at the time of Bartolomeo. But, Judge Kaye pointed out that the court [had] held, however, that the Bartolomeo rule was justified as a matter of policy, that it was reasonable, and that it did not impose an unacceptable burden on law enforcement agencies. That there are now four votes for those same rejected policy considerations is, of course, not a valid reason to overrule the case (see, Wachtler, Stare Decisis and a Changing New York Court of Appeals, 59 St John’s L Rev 445 [1985] ). “The ultimate principle is that a court is an institution and not merely a collection of individuals; just as a higher court commands superiority over a lower not because it is wiser or better but because it is institutionally higher. This is what is meant, in part, as the rule of law and not of men. [Hobson, supra.].” 76 N.Y.2d, at 359–60 (emphasis in original)

In People v. West, 81 N.Y.2d 370 (1993), a 5–2 decision, Chief Judge Kaye addressed the question of the consequences of the right to counsel having “indelibly attached” with respect to statements concerning the charge on which defendant was represented. In West, defendant, represented by counsel, had appeared in a lineup as part of a murder investigation. The lineup was inconclusive; after the lineup, counsel told police not to question the defendant. Three years later, at the direction of the police, an informer engaged the defendant in conversation and surreptitiously tape-recorded a statement that implicated the defendant in the murder. The Hobson line of cases had held that when a person is represented by counsel or requests counsel the right to counsel is “indelibly attached” whether or not they were previously charged or in custody when questioned. In West there was no indication that the prior attorney-client relationship had terminated and with knowledge of that relationship the police had the burden of inquiring whether the relationship had terminated. The passage of three years did not alone terminate the relationship and, in the absence of the police having established the contrary, the statement was suppressed because West could waive his rights to counsel and to remain silent only in the presence of counsel. In People v. Ruff, 81 N.Y.2d 330 (1993), and People v. Cohen, 90 N.Y.2d 632 (1997), the Court again addressed issues concerning interrogation of a defendant eliciting a statement on a matter unrelated to a charge for which the right to counsel had attached or where defendant was represented. Ruff and Cohen were unanimous decisions. In Ruff, by virtue of having been formally charged

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with an offense, defendant’s right to counsel attached, but he had neither retained nor requested counsel when questioning on the pending charge elicited statements on an unrelated charge for which he was later convicted. The Court held that in the absence of actual representation, not simply the right to counsel, questioning on the pending charges does not require suppression of statements on unrelated matters. In Cohen, the defendant, a suspect in a murder charge, retained an attorney to represent him. The attorney told the police not to question the defendant without the presence of the attorney. Some time later, defendant was interrogated by the police with respect to a second murder on which he was not represented and the first murder charge where he was represented. He confessed to the second murder. He claimed the confession should have been suppressed because it was obtained in violation of his constitutional right to counsel on the first murder charge. Earlier, in People v. Townes, 41 N.Y.2d 97 (1976), the Court had held that where two criminal matters are so closely related that questioning on the unrepresented matter would all but inevitably elicit incriminating responses regarding the matter in which there had been an entry of counsel, interrogation on the unrepresented crime is prohibited even in the absence of direct questioning regarding the crime on which counsel had appeared. In Cohen, the Court found that the two offenses were not so closely related as to be governed by Townes. However, unlike Townes, defendant in Cohen claimed that the confession to the crime on which he was not represented was the unconstitutional product of interrogation on the represented crime not in the presence of counsel. The Court framed the issue as whether the confession to the unrepresented offense “was [not] uninfluenced by the taint of the violation of defendant’s State constitutional right to counsel” on the represented offense. The Court found “taint” in that the questioning on the represented crime “was completely ‘interrelated and intertwined’ . . . and ‘not discrete or fairly separable’ . . . from interrogation on the unrepresented crime.” Moreover, the interrogation “was purposely exploitive . . . designed to elicit statements on [the uncharged crime].” 90 N.Y.2d, at 641–42 (citations omitted). Cohen suppressed the confession because the State had failed to sustain the “heavy burden to demonstrate that defendant’s confession to the [second] robbery and murder was uninfluenced by the taint of the violation of the defendant’s State constitutional right to counsel [with respect to the first murder].” 90 N.Y.2d, at 642 (emphasis added). In three related cases, the doctrinal paths of the rule governing when the right to counsel attaches and the right to effective assistance of counsel crossed. The Federal constitutional rule differed from the State Constitution in that

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under the Sixth Amendment to the Federal Constitution, the right to counsel did not attach until the institution of formal accusatory proceedings, Kirby v. Illinois, 406 U.S. 682 (1972), while under the State Constitution the New York pretrial interrogation cases had held the right can attach earlier, that is, when counsel is retained. In addition, the Court of Appeals developed approaches to effective assistance of counsel which provided protection broader than the Federal Constitution, People v. Henry, 95 N.Y.2d 563 (2000). See chapter 8, New Judicial Federalism. In Claudio v. Scully, 982 F.2d 798, 803 (2d Cir. 1992), New York’s generally broader protection of the right to counsel influenced the United States Court of Appeals for the Second Circuit, which noted that “the New York Court of Appeals has consistently interpreted the right to counsel under the New York Constitution more broadly than the Supreme Court has interpreted the Federal right to counsel.” Largely on this basis, particularly as reflected in People v. Skinner, 52 N.Y.2d 24 (1980), supra, the Second Circuit concluded that because defendant’s appellate counsel in People v. Claudio, 59 N.Y.2d 556 (1983) (Claudio I), had failed to argue there had been ineffective assistance of counsel under the State Constitution and had relied solely on the Federal constitutional right to counsel, the appellate counsel’s conduct “fell outside the range of reasonably competent assistance [under the Fourteenth Amendment, because there] was a reasonable probability that the neglected [State constitutional] claim would have succeeded on appeal.” 982 F.2d, at 799. The Second Circuit ordered that the “writ of habeas corpus should be granted and defendant released unless the State afforded him an opportunity to present his state constitutional law claim to the New York Court of Appeals (Claudio v. Scully, 982 F.2d 798, 806).” The “reasonable probability” of a successful State constitutional claim envisioned by the Second Circuit was not realized when the New York Court of Appeals granted reargument and held, as it did on the Federal constitutional claim, Claudio I, supra, that the State constitutional claim did not warrant reversal. People v. Claudio, 83 N.Y.2d 76 (1993) (Claudio II). Before he was formally charged with murder, Claudio, a suspect, retained counsel. The lawyer advised defendant “to confess to the police—at a time when there was no concrete evidence against him and no possibility of a plea offer.” 83 N.Y.2d, at 78. Following his counsel’s advice, defendant confessed, and the confession became the key basis for indictment and Claudio’s murder conviction. Although the Court of Appeals characterized the conduct of defendant’s retained counsel as “gross professional incompetence,” it held that Claudio had

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not been denied his State constitutional right to effective assistance of counsel. Indeed, the Court held that “except in most unusual circumstances not present [in Claudio],10 the State is not charged with the responsibility of guaranteeing effective legal representation upon the entry of counsel at the preaccusatory, investigatory stage of a criminal matter, i.e., before the commencement of formal adversarial judicial criminal proceedings.” 83 N.Y.2d, at 78. Previously, the Court had held “that the State constitutional right to counsel indelibly attaches when a criminal suspect invokes that right by obtaining an attorney11 . . . [but Claudio II held this did not] imply a constitutional State guarantee of effective assistance of counsel when an attorney enters a case on a suspect’s behalf.” The Court distinguished Claudio II from People v. Skinner, 52 N.Y.2d 24 (1980), where defendant had retained counsel at the preaccusatory stage and the Court had held defendant’s statement to the police to be inadmissible. In Skinner, Claudio II noted, the statement was a product of police interference with the attorney-client relationship when police interrogated defendant not in the presence of his lawyer after counsel had advised police not to question the defendant; in contrast, in Claudio II, the authorities, including the police, “scrupulously” respected the attorney-client relationship and did not interrogate defendant or otherwise impair that relationship. The Court explained the distinction it was making between the right to effective assistance of counsel at the preaccusatory stage and the right after the initiation of formal proceedings. The opinion reasoned that in the preaccusatory stage the goal of recognizing the right to counsel is the prevention of official interference with the attorney-client relationship—a purpose that did not require constitutional concern with the quality of representation—while the purpose of the right to effective assistance of counsel after the commencement of formal proceedings is to serve the fairness of the adversary process by assuring the defendant has “meaningful” representation. People v. Balti, 54 N.Y.2d 137, 146 (1981). Unlike Skinner, in Claudio there had been no government conduct in the preaccusatory stage12 that impaired the effectiveness of the assistance of counsel; consequently, the State Constitution had not been violated. Claudio II reasoned that the right to effective counsel was not implicit in the State Constitution’s right to counsel at the preaccusatory stage. Interestingly, under its unusual facts, the result in Claudio II under the State Constitution was the same as the results reached under the Federal Constitution by the New York Court of Appeals in Claudio I and by the Second Circuit in Claudio v. Scully. In large measure Claudio II was concerned with the dilemma of attempting to implement a guarantee of effective right to counsel under the facts of Claudio II, because the authorities would be unaware of counsel’s conduct and could not intrude to learn about it. Indeed, any intrusion by the authorities, as with

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police interrogation, would impair the right to counsel itself. Consequently, there would be no reasonable measure that could be taken to protect a right to effective counsel without undermining the relationship itself, and consequently, the Court should not establish a fruitless rule.

II. The Death Penalty A. Background New York has not been a stranger to the employment of the death penalty. One study found that “New York has executed more prisoners since 1890 than any other state.”13 During the period covered by this volume, 153 death sentences were carried out in the 1930s, 114 in the 1940s, 55 in the 1950s, and 10 in the 1960s.14 No death sentence has been carried out in New York since 1963, largely as a result of a series of United States Supreme Court decisions that imposed significant Federal constitutional limitations on death penalty statutes and of decisions by the New York Court of Appeals that reviewed New York’s death penalty statutes in the light of those Supreme Court decisions. Since a new death penalty statute was enacted in 1995, there have been no executions as of the time this is written. although several defendants have been sentenced to death under the new law. Most of what follows deals with constitutional issues concerning and the construction of death penalty statutes. In addition to the large number of death sentences, New York was a leader in developing the manner in which the death sentence was carried out. In 1888, New York became the first state to adopt electrocution as its method of execution. It replaced hanging when the Legislature followed the recommendation of a commission that had been charged with the duty “to investigate and report to the legislature . . . the most humane and practical method known to modern science of carrying into effect the sentence of death in capital cases.”15 The statute enacted provided: The punishment of death must in every case be inflicted by causing to pass through the body of the convict a current of electricity of sufficient intensity to cause death, and the application of such current must be continued until such convict is dead. L. 1888, ch. 489

People ex rel. Kemmler v. Durston, 119 N.Y. 569, affirmed In re Kemmler, 136 U.S. 436 (1890), rejected the claim that this new method of execution violated

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the State and Federal constitutional prohibitions against cruel and unusual punishment. Although the Court posited that the legislative determination was conclusive on whether electrocution was humane, nevertheless, the Court did allude to the facts concerning electrocution and concluded they “remove[d] every reasonable doubt that the application of electricity to the vital parts of the human body, under such conditions and in the manner contemplated by the statute, must result in instantaneous, and consequently in painless, death.” 119 N.Y., at 579. The wisdom of the death penalty has been the subject of passionate, even acrimonious, dispute in New York, as it has in most of the rest of the nation, indeed, the rest of the world.16 Although some Supreme Court justices maintained that the death penalty, as such, was unconstitutional,17 the Supreme Court decisions declaring capital punishment statutes unconstitutional have rested on a plurality of opinions, including those that rested solely on the constitutionality of the procedural aspects of imposing the death penalty. Responses to those procedural issues have dominated State responses to the Supreme Court decisions, and no judge of the New York Court of Appeals has rendered a judicial opinion that the death penalty, as such, violates the New York or United States Constitution. This is not to say that Court of Appeals judges have totally abstained from the public debates concerning the death penalty or that the Court’s decisions have failed to recognize that the death penalty differs from other criminal sanctions. While adhering to the view that when the Court is “called upon to determine the constitutionality of New York’s death penalty statute [the Court is called upon to address] a legal issue, [and] not to express our views as to whether such a statute, granted that it is constitutional, is wise,” People v. Davis, 43 N.Y.2d, 17, 23 (Cooke, J., majority opinion), the Court frequently has recognized that the death penalty differs from the ordinary criminal sanction. For example, although it affirmed a death sentence, the Court transmitted to the Governor its unanimous recommendation for amelioration. Contradictions and polluted sources [referring to the quality of some of the evidence] do not avail without more to vitiate the judgment or to induce a belief that the defendant should go free, for the polluted sources were as obvious to the jury as they are to an appellate court, and the newly discovered contradictions are significant chiefly as impeaching the credibility of witnesses who were gravely impeached already by participation in the crime. None the less, the weaknesses thus revealed are circumstances which in the cautious administration of criminal justice the state should deeply ponder before putting

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into execution the irretrievable penalty of death. Contradictions and polluted sources might conceivably be insufficient to exact a mitigation of the penalty, if they were unaccompanied by anything else. When, however, we add the fact that two accomplices, whose guilt was no less than the defendant’s, are serving terms for manslaughter, the plea for one, if not for both, having been accepted by the people as the reward to be paid for the inculpatory testimony, we think a case exists where the penalty to be suffered by the defendant should be reduced to some measure of equality with the penalty suffered by his partners in the crime. A recommendation to the Governor will be made to that effect. People v. Arata, 255 N.Y. 374, 376–77 (1931) (emphasis added)18

Moreover, the Court has recognized that “there is a qualitative and quantitative difference between imposition of the death penalty” and other sentences, no matter how severe, People v. Sailor, 66 N.Y.2d 224, 233 (1985), and has subscribed to the proposition that “death, ‘in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two.’” People v. Smith, 63 N.Y.2d 41, 72-73 (1984), quoting Woodson v. North Carolina, 428 U.S. 280, 305 (1976). Chief Judge Breitel expressed deep concern about the wisdom of the death penalty when, even while dissenting from the majority’s holding that the New York death penalty statute was unconstitutional, he wrote: Speaking for myself alone among the dissenters I find capital punishment repulsive, unproven to be an effective deterrent . . . unworthy of a civilized society (except perhaps for deserters in time of war) because of the occasion of mistakes and changes in social values as to what are mitigating circumstances, and the brutalizing of all those who participate directly or indirectly in its infliction. This has been a lifelong view buttressed by over 40 years of experience as prosecutor, counsel to the Governor entailing 81 applications for commutation of capital sentences, Judge, member of the “National Crime Commission,” witness before the British Royal Commission on Capital Punishment, and member of the American Law Institute and its Advisory Committee on the Model Penal Code. In all of these roles, when appropriate, I actively resisted viewing capital punishment as a proper or useful sanction for civilian crime . . . People v. Davis, 43 N.Y.2d 17, note, at 19 (1977) (dissent) (emphasis added; citations omitted)

After he retired as Associate Judge of the New York Court of Appeals, Stewart F. Hancock, Jr. wrote an article questioning the constitutionality of the death

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penalty under the State Constitution. He contended that the Supreme Court’s refusal in McCleskey v. Kemp’19 to find the death penalty unconstitutional per se under the Federal Constitution, despite statistical evidence showing that racial factors are likely elements in decisions concerning the death penalty, should not bar a contrary result under the State Constitution. [S]tatistical evidence, which demonstrates that the operation of New York’s death penalty statute will likely be affected by racial factors and factors relating to unguided prosecutorial discretion, forms the basis for a strong challenge to New York’s death penalty statute as violative of our state constitutional prohibition against cruel and unusual punishment. Such statistical evidence of racial influences also suggests that the death penalty violates the state constitutional guarantee of equal protection and its prohibition against discrimination in civil rights. Stewart F. Hancock, Jr., Annelle McCullough, Alycia A. Farley, “Race, Unbridled Discretion, and the State Constitutional Validity of New York’s Death Penalty Statute—Two Questions,” 59 Albany Law Review 1545, 1576–77 (1996).

B. Appeals to Court of Appeals in Death Penalty Cases: Review of Questions of Fact There are several provisions in the New York State Constitution that specifically differentiate death penalty cases from other criminal cases. Unlike appeals in other criminal cases, the New York State Constitution provides that appeals from death sentences shall go directly to the Court of Appeals, and the Court of Appeals is given the power to review questions of fact as well as law (N.Y. Const. Article 3, § 6). The Constitution also distinguishes capital cases from other criminal cases by prohibiting waiver of a jury trial or indictment by a grand jury in capital cases (N.Y. Const., Article 1, § § 2and 6). This section reviews some cases where appellate review of facts is implicated. In People v. Crum, 272 N.Y. 348 (1936), the Court, in a 4–3 decision, exercised its power to review the facts underlying the death sentence conviction and reversed the conviction, finding that the evidence did not establish guilt beyond a reasonable doubt because the conviction was based solely on the uncorroborated testimony of an accomplice. The Court described its power to review the facts under the constitutional provision: A review of the facts means that we shall examine the evidence to determine whether in our judgment it has been sufficient to make out a case of murder

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beyond a reasonable doubt. We are obliged to weigh the evidence and form a conclusion as to the facts. It is not sufficient, as in most of the cases with us, to find evidence which presents a question of fact; it is necessary to go further before we can affirm a conviction and find that the evidence is of such weight and credibility as to convince us that the jury was justified in finding the defendant guilty beyond a reasonable doubt. 272 N.Y., at 350

Other cases involving review of the facts include: People v. Davis, 43 N.Y.2d 17 (1977) (unanimous reversal; failure of proof of element of first degree murder beyond a reasonable doubt, i.e., that police officer victim was acting in the line of duty when he was killed); and People v. Luscombe, 292 N.Y. 390 (1944) (4–3, conviction affirmed).20 Although not strictly a review of the facts, a detailed Court of Appeals examination of the facts also was involved in People v. Salemi, 309 N.Y. 208 (1955), cert. denied, Salemi v. People of the State of New York, 350 U.S. 950 (1956), a 4–3 Court of Appeals decision that affirmed a trial court’s decision denying a motion for a new trial based on alleged newly discovered evidence. In Salemi the death sentence conviction previously had been affirmed, People v. Salemi, 306 N.Y. 863 (4–3 decision affirming conviction, no opinion; Chief Judge Desmond and Judge Froessel dissented on ground of failure to marshal evidence), cert. denied, Salemi v. People of the State of New York, 348 U.S. 845 (1954). Salemi was executed.21 In the 1955 decision concerning its newly discovered evidence claim, Judge Fuld, who had previously voted to affirm the conviction, and Judge Desmond dissented in opinions that examined the evidence in detail. Judge Fuld wrote: I was one of the bare majority of four who voted to affirm the judgment of conviction when this case was first before us, 306 N.Y. 863, 118 N.E.2d 917. Although the record evidence was far from strong, I concluded that there was sufficient to justify a verdict of guilt. The new matter which has been developed and adduced upon the motions for a new trial, as well as upon the application for an order in the nature of a writ of error coram nobis, has radically changed the picture, and I cannot now, consistent with the dictates of conscience or the demands of due process, adhere to my original vote of affirmance. A refusal to direct a new trial will not only work an injustice upon Salemi but, even more important, will do a disservice to the administration of the criminal law. 309 N.Y., at 226–27

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Judge Desmond wrote: When defendant was tried, convicted and sentenced to death, all the important proof against him consisted of eyewitness identification testimony by witness Janson, and testimony by James Forlenza of an alleged dying declaration in which the victim is supposed to have named defendant as his slayer. On the trial record as it then stood and despite the mystery as to motive or background, we held that the jury’s guilty verdict was not against the weight of evidence. But, since our affirmance, quantities of new evidence have come to light, the existence and weight of which we must recognize. To my mind, the new proofs insistently demand a new trial for this defendant. In voting for such a new trial this court would not be passing on defendant’s guilt nor would we be reviewing again the weight of evidence as to that question. We would be seeing to it that this man does not go to the electric chair until a jury has heard this strange new series of conflicting and confusing narratives, many of them highly favorable to defendant. We would be upholding defendant’s fundamental right to a full trial by jury. .... And our power to order a new trial is not limited by the rules as to newly discovered evidence. Having heard a reargument of the entire proceedings, we have now the same powers of disposition and decision as in any other appeal in a capital case. Among those is the power to order a new trial if justice so requires, Code Crim. Proc. s 528. I strongly feel that the interests of justice demand a full trial of this cause before a jury which can hear all the witnesses. 309 N.Y., at 228, 230

C. Cruel and Unusual Punishment: Supreme Court Decisions and New York’s Judicial and Legislative Responses 1. FURMAN, PEOPLE V. FITZPATRICK, AND GREGG

Beginning with Furman v. Georgia, 408 U.S. 238 (1972), the Supreme Court addressed a series of challenges to death penalty legislation which resulted in substantial changes in state statutes, including New York. Furman v. Georgia, a 5–4 decision, reversed a Georgia death sentence and declared the Georgia statute unconstitutional because it gave to the jury unrestricted discretion to determine whether or not the death penalty should be imposed, and unrestricted jury discretion posed the great danger of arbitrary or capricious imposition of the death penalty. Soon thereafter, People v. Fitzpatrick, 32 N.Y.2d 499

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(1973), declared the New York death penalty statutes then in force (Penal Law, former § § 125.30, 125.35) to be unconstitutional because they “[left] infliction of the death penalty solely to the discretion of the jury, [and] in light of the Supreme Court’s reading of the Eighth Amendment in Furman . . . [the New York death] penalty constitutes cruel and unusual punishment within the sense of that provision.” 32 N.Y.2d, at 512–13. In Gregg v. Georgia, 428 U.S. 153 (1976), the Supreme Court provided some guidance on how the Furman concerns could be met when it sustained the constitutionality of a new Georgia death penalty statute. It said: [T]he concerns expressed in Furman that the penalty of death not be imposed in an arbitrary or capricious manner can be met by a carefully drafted statute that ensures that the sentencing authority is given adequate information and guidance. As a general proposition these concerns are best met by a system that provides for a bifurcated proceeding at which the sentencing authority is apprised of the information relevant to the imposition of sentence and provided with standards to guide its use of the information. 428 U.S., at 195 2. NEW YORK’S 1974 DEATH PENALTY STATUTE: DAVIS, JAMES, AND SMITH

In 1974, after Furman, but before Gregg, the State Legislature amended New York’s first degree murder statute and mandated the death sentence for all persons over eighteen years old convicted of intentionally causing the death of a police officer in the line of duty where defendant knew or had reason to know the victim was such an officer.22 The statute also provided the affirmative defense that the “defendant acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be.” People v. Davis, 43 N.Y.2d 17 (1977), cert. denied 435 U.S. 998 (1978), and cert. denied sub nom., People v. James, 438 U.S. 914 (1978), decided in a consolidated appeal together with People v. James, considered whether the 1974 statute was constitutional in view of several United States Supreme Court decisions that required the sentencing authority be able to consider “particularized mitigating factors” about the offender and the offense when determining whether to impose a death sentence. 43 N.Y.2d, at 33. James was reversed by a 4–3 majority on constitutional grounds. Davis was unanimously reversed for

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failure of proof beyond a reasonable doubt. The majority found that the statute violated the Federal constitutional standards established by the Supreme Court cases, including Gregg and other cases, because it “provide[d] neither for the furnishing of information, without which there cannot be consideration of the individual offender and the circumstances of a particular offense, nor standards to guide the sentencing authority in the use of that information had it been furnished.” 43 N.Y.2d, at 32. The majority rejected the claim that a narrowly defined first degree murder offense satisfied the Furman-Gregg requirements, citing Roberts (Stanislaus) v. Louisiana, 428 U.S. 325 (1976), as having “made clear that this principle applies even where the crime of first degree murder is narrowly defined.” 43 N.Y.2d, at 32. The majority also rejected the contention that the statutory affirmative defense sufficiently provided the particularized basis for imposing the death penalty as required by the Supreme Court, particularly Woodson v. North Carolina, 428 U.S. 280, 304 (1976) (“relevant facets of the character and record of the individual offender”), and Roberts (Stanislaus) v. Louisiana, 428 U.S. 325, 334 (1976) (“the attributes of the individual offender”). The majority concluded that mitigating factors are different in quality from the facts involved in a defense, because the former need not and rarely if ever would rise to the level of a defense to a crime. Moreover, the consideration of the factors in determining sentence is a vastly different enterprise from their consideration in determining guilt or innocence. “Of telling significance, the New York defenses do not take into account the character, propensity, record or attributes of the individual offender. This omission results from the simple fact that an unblemished record and evidence of prior good character have never been considered as a defense, and probably never will be.” 43 N.Y.2d, at 35. Therefore, as with the statutes of other states held unconstitutional by the Supreme Court, “so, too, plainly and simply and without verbiage, because the New York statute ‘does not allow consideration of particularized mitigating factors’ for purposes of ‘the capital sentencing decision’ as to ‘the particular offender,’ it is unconstitutional.” 43 N.Y.2d, at 33. The Court limited its finding that the statute was unconstitutional to the Federal Constitution and did not address its constitutionality under the State Constitution Chief Judge Breitel, with the concurrence of Judges Jasen and Gabrielli, dissented on the reversal of James. He claimed that it was not at all clear that all mandatory death sentences had been condemned by the Supreme Court and, in any event, the statutory defense of extreme emotional disturbance provided a basis for taking into account mitigating factors sufficient to sustain the constitutionality of the statute.23

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Chief Judge Kaye, writing for the 4–3 majority in People v. Smith, 63 N.Y.2d 41 (1984), cert. denied 469 U.S. 1227 (1985), rehearing denied 471 U.S. 1049 (1985), reaffirmed the Court’s conclusion in James that Furman and the cases that followed it condemned mandatory death sentence statutes as unconstitutional under the Federal Constitution when the Court declared unconstitutional that part of New York’s first degree murder statute mandating death for intent-to-kill murder committed by a prisoner serving a life sentence. Supreme Court decisions subsequent to James were read as requiring the sentencer in a death penalty case to be able to consider any relevant mitigating circumstances; otherwise the statute would violate the Eighth and Fourteenth Amendments’ prohibition of the infliction of cruel and unusual punishments.24 Obviously, a mandatory death sentence would violate this precept. The underlying principle relied on by the Chief Judge was derived from Lockett v. Ohio, 438 U.S. 586 (1978). Quoting from a Lockett plurality opinion, she wrote: There is no perfect procedure for deciding in which cases governmental authority should be used to impose death. But a statute that prevents the sentencer in all capital cases from giving independent mitigating weight to aspects of the defendant’s character and record and to circumstances of the offense proffered in mitigation creates the risk that the death penalty will be imposed in spite of factors which may call for a less severe penalty. When the choice is between life and death, that risk is unacceptable and incompatible with the commands of the Eighth and Fourteenth Amendments. 63 N.Y.2d, at 74, quoting from Lockett, supra, at 605

The dissent maintained and the Chief Judge agreed that the Supreme Court had not condemned all mandatory death sentences and pointed out that, indeed, the Supreme Court had repeatedly explicitly stated that it was not deciding the constitutionality of mandatory death sentences for lifers who had committed intentional murder, and a similar reservation was stated by the Court of Appeals in James. 63 N.Y.2d, at 75. But Chief Judge Kaye maintained, “[g]iven the Supreme Court’s definition of the rationale underlying the requirement of individual consideration by the capital-sentencer, society has no less motivation to avoid irrevocable error in fixing the appropriate penalty for lifeterm inmates than other human beings.” 63 N.Y.2d, at 76. Judge Simons, dissenting in an opinion concurred in by Judge Jasen, argued that a mandatory death penalty for a lifer had not been condemned by the Supreme Court and the defenses in the statute provided the mitigating factors sufficient for the situation of a lifer who commits intent-to-kill murder. 63

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N.Y.2d, at 81, et seq. Judge Cooke dissented in a separate opinion. 63 N.Y.2d, at 91, et seq. He did not join in Judge Simons’ opinion, because he did not agree that defenses were the equivalent of mitigating factors. However, even though the New York statute did not provide for consideration of mitigating factors, he voted to sustain the constitutionality of the statute, because he concluded that a mandatory death sentence for a lifer who commits intent-to-kill murder fell within the “narrow exception” to the general rule alluded to by the Supreme Court in earlier cases. Smith left New York without a constitutional death penalty statute. In People v. Silva, 69 N.Y.2d 858 (1987), the Court held that Smith had declared only the death penalty facet of the 1995 law unconstitutional and sustained a conviction of attempted murder in the first degree. Three years after Smith was decided, Sumner v. Shuman, 483 U.S. 66 (1987), like Smith, held that a mandatory death sentence for lifers who commit murder was unconstitutional under the Federal Constitution.

D. Post–Smith Death Penalty Legislation and Court of Appeals Cases 1. THE 1995 DEATH PENALTY STATUTE

Eighteen years after Smith, a period during which Governors Carey and Cuomo vetoed all death penalty bills, Governor George Pataki signed a new death penalty bill into law (L. 1995, ch. 1).25 The new law redefined the offenses subject to the death penalty (Penal L. § 125.27)26 and established the procedure for its imposition (CPL § 400.27).27 Notes 26 and 27, above, contain an abridged description of the contents of the new law and additional provisions are described in the discussion of the judicial decisions that follow. The major questions concerning the 1995 statute thus far considered by the Court of Appeals concern the exercise of discretion to seek the death penalty, support of defense counsel in capital cases, the constitutionality of the guilty plea provisions in the statute, and the construction of various statutory terms, and ultimately, the “anticipated deadlock” instruction. 2. SUPERSESSION OF DISTRICT ATTORNEY BY ATTORNEY GENERAL IN DEATH PENALTY CASES BY ORDER OF THE GOVERNOR—JOHNSON V. PATAKI

Johnson v. Pataki, 91 N.Y.2d 214 (1997), was the first Court of Appeals case involving the death penalty after the enactment of the 1995 law. The case was a consequence of sharply differing views concerning the death penalty between

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two public officials. The Governor issued an Executive Order superseding the District Attorney of Bronx County, Robert Johnson, with the State’s Attorney General to prosecute a case28 against defendants charged with killing two police officers.29 The 1995 statute provided that before the Court may sentence a defendant to death, the People must “file with the court and serve upon the defendant a notice of intent to seek the death penalty,” and such notice must be filed within 120 days of the defendant’s arraignment (CPL 250.40[1], [2] ). “The very same day the legislation was signed into law by the Governor, the Bronx County District Attorney . . . issued a press release purporting to ‘make [his] policy clear regarding the exercise of [his] discretion’ to impose the death penalty. In this statement, the District Attorney expressed deeply felt concerns regarding the effectiveness and administration of the death penalty. He concluded by stating, ‘For all these reasons, while I will exercise my discretion to aggressively pursue life without parole in every appropriate case, it is my present intention not to utilize the death penalty provisions of the statute.’ On November 2, 1995, the District Attorney was reelected by approximately 89 percent of Bronx County citizens who voted.” 91 N.Y.2d, at 233. a. The correspondence between the Governor and the District Attorney30 In December 1995, a multiple murder occurred in the Bronx, and the Governor wrote to the Bronx District Attorney and asked him “whether you have determined not to seek the death penalty and, if so, whether that determination was based on a review of the specific facts in the exercise of your professional discretion or reflects a policy decision not to seek the death penalty in any case in Bronx County.” The District Attorney replied that he was familiar with the relevant provisions of the 1995 statute and that he had “reviewed the facts and circumstances surrounding” the killings and had determined to “meet my constitutional and professional responsibility to hold this defendant accountable, punish him severely, and protect society . . . by exercising my statutory discretion to seek a term of incarceration of life imprisonment without the possibility of parole.” “The Governor responded that he was ‘concerned that the laws of the State of New York may not be [faithfully] executed’ and stated that, although, in his view, ‘the heinous murders allegedly committed by [the defendant] cry out for presenting the death penalty as an option to the jury for decision, I accept with grave reservations your representation as to your professional decision in this instance.’” 91 N.Y.2d, at 233–34.

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Thereafter, on March 14, 1996, New York City Police Officer Kevin Gillespie was murdered in a shootout on the Grand Concourse in Bronx County. On March 19, 1996, the Governor again wrote to the Bronx County District Attorney expressing his view that “the facts developed to date have indicated that the case is one in which the death penalty seems particularly warranted: the crime was cold-blooded, and the alleged murderer has three prior felony convictions, two for violent crimes, and was involved in yet another robbery spree when he ruthlessly took Officer Gillespie’s life.” He stated that: “As Governor, I cannot permit any District Attorney’s personal opposition to a law to stand in the way of its enforcement. No one, including a District Attorney, can substitute his or her sense of right and wrong for that of the Legislature. For that reason, I must have your assurance that you do not have a policy against seeking the death penalty. In addition, because of both your public statements in opposition to the death penalty and your refusal to answer the question in December, I must ask the following question: ‘Are there circumstances under which you will seek the death penalty in Bronx County?’” District Attorney Johnson responded, again within the appointed time: “[L]et’s be clear about what I have said about the option to seek death. I have not taken a ‘position in opposition to the death penalty.’ Rather, I have enumerated concerns highlighted by personal experiences about the use and application of this option. And, as you certainly know, my original statement— made over a year ago, repeated many times since and still unchanged—left the door ajar, however slight, to exercise this option in the Bronx.” The District Attorney did not state whether he would pursue the death penalty as a sentencing option in the case. However, he noted that [under the statute] he had 120 days in which to make this determination. The next day, the Governor issued Executive Order No. 27 (9 NYCRR 5.27) directing the Attorney General to supersede the Bronx District Attorney in the investigation of Officer Gillespie’s murder. The order outlined the Governor’s concerns that the District Attorney would never seek the death penalty as a sentencing option, thereby violating the law of New York. The order stated that such a “policy” “threatens the validity of death sentences imposed in cases prosecuted in other counties, because chapter 1 of the Laws of 1995 requires the Court of Appeals to determine whether a sentence of death is excessive or disproportionate to the penalty imposed in similar cases.” The order also stated that the circumstances “strongly indicat[ed] that the case is one in which the death penalty is particularly warranted.” On these grounds, the order concluded, supersession was warranted. 91 N.Y.2d, at 233–35.

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The District Attorney and members of the Bronx County electorate challenged the Executive Order and sought orders compelling the Governor to refrain from enforcing the order and prohibiting the Attorney General from acting under it and a declaration that the order was unconstitutional. b. The law governing supersession The Governor relied on his obligation under the State Constitution to “take care that the laws are faithfully executed” (N.Y. Const., art. IV, § 3) and the power conferred by Executive Law § 63[2] ), which provides: The attorney general shall . . . [w]henever required by the governor, . . . manag[e] and conduc[t] . . . criminal actions or proceedings as shall be specified in such requirement; in which case the attorney- general . . . shall exercise all the powers and perform all the duties in respect of such actions or proceedings, which the district attorney would otherwise be authorized or required to exercise or perform; and in any of such actions or proceedings the district attorney shall only exercise such powers and perform such duties as are required of him by the attorney general.

The Court sustained the validity of the Governor’s order under the Constitution and the Executive Law in an opinion by Chief Judge Kaye, concurred in by Judges Bellacosa, Levine, and Wesley. Judge Titone dissented on the merits; Judge Smith, with Judge Ciparick’s concurrence, wrote a dissenting opinion and voted to dismiss the challengers’ petitions as moot.31 Chief Judge Kaye, began her analysis with a recognition that when the Governor acts by Executive Order pursuant to a valid grant of discretionary authority, his actions are largely beyond judicial review. . . . Judicial review in such cases is generally limited to determining whether the State Constitution or the Legislature has empowered the Governor to act, and does not include the manner in which the Governor chooses to discharge that authority. . . . For abuse of lawful discretionary authority, the remedy as a rule lies with the people at the polls, or with a constitutional amendment, or with corrective legislation. Whether a Governor is empowered to supersede a District Attorney in a particular prosecution is not a novel question. We have long held that article IV, § 3 of the Constitution and Executive Law § 63(2) together provide the Governor with discretionary authority to supersede the District Attorney in a matter. . . . Article IV, § 3 delegates to the Governor, as head of the executive

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branch, the duty to “take care that the laws are faithfully executed.” Executive Law § 63(2), [quoted above provides] the legislative grant of authority. The statute neither limits the Governor’s authority to supersede nor requires the Governor to explain that choice. Consistent with that authority, Governors have numerous times invoked the superseder power. . . . [Although] . . . this Court reserved the possibility that in some undefined circumstance, the courts could invalidate this executive action . . . [there] . . . [w]e added, however, that “no view is expressed whether in any or all circumstances the exercise of the executive power to supersede an elected District Attorney would be beyond judicial review or correction in a direct or collateral action or proceeding brought or defended by the county or the elected District Attorney involved . . .” 91 N.Y.2d, at 223–24 (citations omitted; emphasis added)

Having concluded that the order was valid on its face, the Chief Judge addressed additional arguments by the Bronx District Attorney and the Bronx County voters. First, they argued that the District Attorney as an elected official under the Constitution has a “zone of independence,” which is insulated from nonconsensual superseder and his decisions concerning how to prosecute in the Bronx are exclusive. Chief Judge Kaye pointed out that the Constitution does not allocate exclusive responsibility of law enforcement to the Governor, the Attorney General, or the district attorneys; rather, historically allocation of law enforcement functions has long been a legislative function. Moreover, and in any event, it was inconceivable that the Legislature intended to give district attorneys, much less one district attorney, the power to effectively suspend the operation of statute or to veto it. Second, the Court rejected the claim that Executive Law, § 63–d, added by the 1995 death penalty statute, implicitly repealed § 63(2). § 63–d permitted the Governor, when requested by the District Attorney, to direct the Attorney General to assist the District Attorney. The provision simply provided aid for the local district attorney and did not supplant the allocation of power contained in § 63(2). The Court also rejected two other arguments: first, that the order violated separation of powers principles; and second, the order simply reflected the Governor’s disagreement with the District Attorney’s exercise of his discretionary authority. The former position was rejected on the grounds that unlike the main case relied on by the District Attorney,32 the order did not contain rules requiring the District Attorney to seek the death penalty, and consequently, sep-

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aration of powers was not implicated. As for the latter argument, the Court noted that the Governor had given reasons, even though it was not certain that he had to explain himself or by what standard the Court would review the Governor’s the exercise of his discretionary authority when he determined there was a threat to the “faithful execution of the death penalty law.” The Chief Judge also responded to the contention in Judge Titone’s dissent that the order was unlawful because the Governor had substituted his policy choice for the unfettered discretion the Legislature had conferred on the District Attorney. She wrote that “[w]hether or not District Attorneys must exercise their death penalty discretion on a case-by-case basis, clearly the Legislature did not allow one or all 62 District Attorneys to functionally veto the statute by adopting a ‘blanket policy,’ thereby in effect refusing to exercise discretion.” Moreover, the Governor had simply employed Executive Law § 63(2) and designated the Attorney General to handle the entire case, including the exercise of discretion concerning the sentence. 91 N.Y.2d, at 226–27. 3. FINANCIAL SUPPORT OF DEFENSE IN DEATH PENALTY CASES

a. Assigned Counsel: The role of the Court of Appeals under the 1995 statute The death penalty law added Judiciary Law § 35–b which, inter alia, provided a procedure for establishing fees for counsel assigned in capital cases. New York State Association of Criminal Defense Lawyers v. Kaye, 96 N.Y.2d 512 (2001), involved the question of who had the ultimate authority to set assigned counsel fees in capital cases, and the Court affirmed “that the Court of Appeals is the final arbiter for setting fees” for counsel assigned to defend prosecutions under the 1995 death penalty law. 96 N.Y.2d, at 519. Judiciary Law § 35–b charged fourmember screening panels in each Judicial Department with the task of “promulgating” or proposing and periodically updating the fee schedules, in consultation with the Administrative Board of the Courts.33 The four members of each of the screening panels consisted of two appointed by the presiding justice of the appellate division and two by the board of directors of the capital defender office.34 The fee schedules are subject to approval by the Court of Appeals. In 1996, the Court of Appeals acting in its administrative capacity approved the fee schedules submitted by each department. In 1997, as part of its duties to periodically examine and update the schedules, the Court “directed the [screening] panels to reexamine capital counsel fees in light of experience and empirical data.” The Administrative Board of the Courts recommended a scheme that effectively reduced rates for lead and associate counsel, but increased support

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for other defense services. The Second, Third, and Fourth Departments, but not the First, adopted the recommendations; the First Department screening panel deadlocked 2–2. The Court of Appeals, in its administrative capacity, “approved the recommended reductions and ordered them applicable to all four Departments.” 96 N.Y.2d, at 516. The Association and four lawyers certified to be assigned in capital cases brought an Article 78 proceeding naming the Chief Judge and the judges of the Court of Appeals as respondent and for an annulment of the Court of Appeals order, “contending that respondents exceeded their administrative capacity when they revised the rates in the First Department, and that the reduced fee schedules did not meet the standards of Judiciary Law § 35–b for adequate compensation.” 96 N.Y.2d, at 516.35 The Court of Appeals rejected the argument that it had only a limited role in establishing the fees—a role limited to approving or disapproving the actions of the screening panels, a role that “precludes the Court from any legitimate exercise of a more expansive administrative power.” The petitioners’ argument rested in large part on the statute’s conferring authority on the screening panels to “promulgate” fee schedules, but the Court pointed out, first, the dictionary demonstrated that “promulgate” had several meanings, including to “proclaim,” to “offer,” or to “publish.” Second, the structural context of the statute granted ultimate authority to the Court of Appeals. In the case of the Court of Appeals, as with other administrative agency procedure, the Legislature had provided a public comment period to come before the Court of Appeals acted and before action by the screening panels. 96 N.Y.2d, at 517. Third, the Governor’s memorandum said “the bill requires that the Court of Appeals approve the schedules of fees proposed by screening panels in each judicial department, in consultation with the Administrative Board . . .” 96 N.Y.2d, at 517, n. 4 (emphasis added). In rejecting petitioners’ claims, the Court, in its per curiam opinion, was “left with no doubt that under the statutory scheme, ‘promulgate’ means to make known or publish the terms of a proposed fee schedule for disposition by the Court of Appeals in its ultimate rule-making authority.” 96 N.Y.2d, at 517. b. Compensation beyond fees for lead and associate counsel Mahoney v. Pataki, 98 N.Y.2d 45 (2002), determined that, in addition to legal fees for lead and associate counsel, the 1995 statute authorized the Appellate Division screening panels to include compensation for legal and paralegal assistance that had been approved by the Court of Appeals. The Court held that capital case defense counsel had standing to challenge the contention of the Governor and the State Division of the Budget that the statute did not provide authority for such expenditures. The Court concluded that “[a]lthough capital

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defendants are the primary intended beneficiaries of Judiciary Law § 35-b, the attorneys who provide the services necessary to an adequate defense [and who would bear the burden of sustaining the position of the DOB] certainly are within the zone of interest created by the statute.” 98 N.Y.2d, at 52. The Court reasoned that adequate representation required the services of more than lead and associate counsel. This is the experience with major litigation, and capital cases are no different in that regard. Construing the statute, the Court concluded: In administering the statute and approving the fee schedules, the screening panels and the Court of Appeals quickly recognized that Judiciary Law § 35–b (5)(a) does not purport to address all the concerns attendant upon providing adequate capital defense services. Rather, it leaves issues of adequacy to the screening panels and this Court, acting in its administrative capacity. Although the statute does not specifically mention legal and paralegal assistance fees, it likewise does not prohibit them. Contemplated within the language of the statute is a recognition that the screening panels and the Court of Appeals can properly establish fee schedules to ensure adequate representation of indigent capital defendants. 98 N.Y.2d., at 54–55 4. GUILTY PLEA AND SENTENCING OPTIONS UNDER THE 1995 DEATH PENALTY LAW

The 1995 Death Penalty Law provided the following sentencing options for murder in the first degree: (1.) death or life imprisonment, one of which must be imposed on the unanimous choice of the sentencing jury; or (2.) twenty-five years to life, if the jury fails to unanimously impose either death or life imprisonment without parole; or (3.) with the consent of the court and the prosecution, on a plea of guilty to an agreed sentence of life imprisonment without parole or for a Class A-1 felony.

The plea bargaining provision, (3), supra, has been the subject of the five Court of Appeals decisions that are discussed next. a. Hynes v. Tomei, 92 N.Y.2d 613 (1998) In Hynes v. Tomei, , defendant, pursuant to a plea agreement, had pleaded guilty before the District Attorney had given notice of his intent to seek the death penalty. Before the verdict, defendant moved to withdraw his plea and for a dec-

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laration that the plea bargaining provision of the death penalty law was unconstitutional. The Court unanimously declared only the plea bargaining provision of the 1995 statute unconstitutional under the Federal Constitution. Chief Judge Kaye’s opinion did not address State constitutional issues. The Court concluded that it was bound to find the provision unconstitutional under the holding of United States v. Jackson, 390 U.S. 570 (1968). Jackson “struck down the death penalty provision of the Federal Kidnaping Act . . . which allowed a defendant to be sentenced to death only after a jury trial. The Supreme Court invalidated the provision because, by needlessly encouraging guilty pleas and jury waivers to avoid death sentences, it impermissibly burdened defendants’ Fifth Amendment right against self-incrimination and Sixth Amendment right to a jury trial.” 92 N.Y.2d, at 620. The Court noted that the statute created two sentences for the same offense—one for a bench trial and another for a jury trial. The Court reasoned that “like the invalidated Federal Kidnaping Act provision, New York’s death penalty statute explicitly provides for the imposition of the death penalty only upon a jury verdict,” but permits avoidance of the death penalty if the defendant chooses a bench trial. 92 N.Y.2d, at 623. Consequently, the plea bargaining provisions of the New York statute are unconstitutional, because “only those defendants who exercise the Fifth Amendment right against self-incrimination and Sixth Amendment right to a jury trial put themselves at risk of death,” 92 N.Y.2d, at 623, and the statute thereby needlessly encourages a guilty plea at the expense of burdening those rights. b. Matter of Francois v. Dolan, 95 N.Y.2d 33 (2000) In Hynes v. Tomei, the Court, having declared the plea bargaining provision unconstitutional, said, “Under the resulting statute, a defendant may not plead guilty to first degree murder while a notice of intent to seek the death penalty is pending.” 92 N.Y.2d, at 629. Nevertheless, in Matter of Francois, supra, the defendant moved to require the acceptance of his guilty plea to the entire indictment before the expiration of the statutory 120-day period in which the District Attorney had to file a notice of intent to seek the death penalty. The defendant argued that the general provisions of the Criminal Procedure Law, which permitted entry of a guilty plea at any time after arraignment and before verdict, governed the situation. The Court unanimously rejected this argument, reasoning that the subsequently enacted provisions of the death penalty law governed. In addition to relying on the statement from Hynes v. Tomei, quoted above, the Court noted a contrary result would undermine an important policy

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of the statute, because it would sanction a race to the courthouse between the defendant and the District Attorney, thereby impairing the District Attorney’s opportunity to utilize the full 120-day period in which to deliberate over whether or not to seek the death penalty. c. People v. Edwards, 96 N.Y.2d 445 (2001) Before the Court decided Hynes v. Tomei, defendant Edwards pleaded guilty to a Class A-1 felony pursuant to a plea agreement. He moved to withdraw his guilty plea; the motion was denied. He appealed his conviction arguing that the plea was unconstitutional under the teaching of Jackson-Hynes. The Court in a 6–1 decision, Judge Smith dissenting, affirmed his conviction. The Court examined the Supreme Court decisions that followed Jackson and concluded: This post-Jackson line of cases illustrates the Supreme Court’s shift in focus away from the coercive effect of the death penalty on a defendant who pleads guilty, and toward the “impermissible burden” a two-tiered penalty structure imposes on a defendant’s assertion of his or her constitutional rights. Accordingly, the Supreme Court left undisturbed convictions in which the risk of death was avoided by an otherwise valid guilty plea [i.e., intelligently, knowingly and voluntarily made]. Contrariwise, the Court held that death sentences imposed upon capital defendants who had exercised Fifth and Sixth Amendment rights under such defective statutes were constitutionally barred by Jackson. In Hynes, we explicitly noted the effect of the later cases vacating death sentences imposed under Jackson-faulty statutes (see, Matter of Hynes v. Tomei, supra, 92 N.Y.2d, at 624 . . . ). In response to those cases, we construed and excised portions of the New York death penalty statute to eliminate its Jackson infirmity and thereby obviate such future Fifth and Sixth Amendment challenges to the imposition of death sentences. Thus, any Jackson-Hynes infirmity does not— in and of itself—render invalid an otherwise valid guilty plea. 96 N.Y.2d, at 453–54 (emphasis added)

d. People v. Harris, 98 N.Y.2d 452 (2002) Harris, a 6–1 decision, with Judge Smith dissenting,36 applied the Jackson-Hynes principle relied on in Edwards, supra, that distinguished between an imposed death sentence and a plea of guilty under a statute that contained the provision invalidated in Jackson-Hynes. Edwards sustained a guilty plea entered before Hynes was decided; Harris set aside a death sentence imposed before Hynes invalidated the plea provisions of the death penalty law.

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e. People v. Mowrer, 97 N.Y.2d 239 (2002) Mowrer involved a still different factual situation from the previous guilty plea cases. In Mowrer no notice to seek a sentence of death was filed, and the Court was presented with the question of “whether a defendant who never faced the death penalty and pleaded guilty may be sentenced to life imprisonment without the possibility of parole.” The Court held “that he may.” 97 N.Y.2d, at 242. On the last day the prosecution could file a notice of intent to seek the death penalty, the defendant entered into the plea agreement and pleaded guilty. As agreed, he was sentenced to life imprisonment without parole. About two years later, Hynes was decided, and a year after that decision, defendant, relying on Hynes, moved to vacate his conviction and to be resentenced to an indeterminate term of 20–25 years to life. The Court decided that the trial judge’s sentencing authority was not derived from the plea bargaining provision invalidated by Hynes, but rather from CPL § 400.27 (1), which provides: Nothing in this section shall be deemed to preclude the people at any time from determining that the death penalty shall not be sought in a particular case, in which case the separate sentencing proceeding shall not be conducted and the court may sentence such defendant to life imprisonment without parole or to a sentence of imprisonment for the class A-I felony of murder in the first degree other than a sentence of life imprisonment without parole.

Inasmuch as the CPL provision explicitly authorizes the prosecution “at any time” to decide to forgo the death penalty and also explicitly authorizes the sentence imposed on the defendant, the Court affirmed the conviction based on the guilty plea. 5. DEFINING THE AGGRAVATION ELEMENTS OF FIRST DEGREE MURDER

The 1995 death penalty law authorized the death sentence for first degree murder as defined in § 125.27 of the Penal Law. It provides that a person is guilty of first degree murder when “with intent to cause the death of another person, he causes the death of such person or of a third person” and one of the thirteen (originally twelve) aggravating factors set out in the statute also is established. a. “Committed in a similar fashion”—People v. Mateo, 93 N.Y.2d 327 (1999) Mateo was an appeal from a death sentence where the prosecution claimed that in addition to having intentionally killed another person, the defendant also had engaged in conduct that constituted one of the aggravating factors, i.e., in

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Mateo he was alleged to have “intentionally caused the death of two or more additional persons within the state in separate criminal transactions within a period of twenty-four months when committed in a similar fashion or pursuant to a common scheme or plan.” Penal Law § 125.27 (a)(xi). In Mateo, the People had argued that “employing a ‘common sense’ definition of the phrase leads to only one conclusion: that the evidence before the Grand Jury was sufficient to establish that the murders in question were ‘committed in a similar fashion.’” 93 N.Y.2d, at 331. The trial court and the Appellate Division rejected the prosecution’s contention, but for different reasons. The trial court relied on the evidentiary jurisprudence derived from People v. Molineaux, 168 N.Y. 264 (1901), and found that Molineaux was not satisfied, because “[t]here is nothing so unique, ritualistic, [or] signature-like about these homicides that would support the Grand Jury’s decision to indict the defendant under this statute.” 93 N.Y.2d, at 331. The Appellate Division rejected Molineaux as the standard and also found that killings “committed in a similar fashion” had not been established because, even giving the term its “plain meaning . . . the murders did not adequately resemble each other with respect to motive, method, and surrounding circumstances.” 93 N.Y.2d, at 331. The Court of Appeals agreed that the aggravating factor had not been established and recognized, as had both lower courts, that the provision was aimed at serial killers. However, it held that neither the development of the Molineaux evidentiary rules, rules that dealt with identification, nor the legislative history of the first degree murder statute suggested that Molineaux was an appropriate “template” for determining the meaning of “committed in a similar fashion.” The Court of Appeals decided that at the then stage of development, it was not feasible to satisfactorily state a general or detailed principle defining “committed in a similar fashion” which could best be determined on a case by case basis. Both defendant and the People ask us to fashion a set of criteria to define the requirements of the statutory phrase at issue; they ask us to provide a calculus of “similarity” by which all future cases might be plotted. To do so, however, would ignore the relative nature and contextual considerations inherent in any analysis and application of the “similarity” element. For this reason, the typical process by which this Court fulfills its adjudicative responsibility in setting prospective, applied particularization does not lend itself to a more definite resolution of the nature of “similarity” beyond the determination of the facts presented in this case. Here, the murder victims were of different ethnic and racial backgrounds and ranged in age from 16 to 20. A .45 caliber handgun, a .38 caliber

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handgun, a .25 caliber handgun, and a sawed-off shotgun were the varied weapons used to commit these murders. The motives for each shooting differed, as did the wounds inflicted by defendant upon his victims. Moreover, the locations of these multiple killings were different: two occurred on a public sidewalk during the same incident, one occurred as defendant sat in a car on a public street and one transpired in defendant’s basement while the victim was handcuffed and blindfolded. The common denominator of these crimes is that four young men were murdered by firearms. By any standard, the evidence before the Grand Jury was legally insufficient to establish the “committed in a similar fashion” element of the statute. 93 N.Y.2d, at 332–33 (emphasis added).

b. Felony murder: People v. Harris, 98 N.Y.2d 452 (2002), and People v. Couser, 94 N.Y.2d 631 (2000) Penal Law § 125.27 (1)(a)(vii) provides felony murder is an aggravating factor that enhances intent-to-kill murder to first degree murder. The provision limits the “aggravating” function to those felonies where the victim was killed while the defendant was in the course of committing or attempting to commit and in furtherance of robbery, burglary in the first degree or second degree, kidnapping in the first degree, arson in the first degree or second degree, rape in the first degree, sodomy in the first degree, sexual abuse in the first degree, aggravated sexual abuse in the first degree or escape in the first degree, or in the course of and furtherance of immediate flight after committing or attempting to commit any such crime or in the course of and furtherance of immediate flight after attempting to commit the crime of murder in the second degree. . . . Penal Law § 125.27 (1)(a)(vii)

In Harris,37 defendant moved to dismiss an indictment charging first degree murder and attempted first degree murder claiming that “the felony-murder provision irrationally includes some felonies rendering them death-eligible while excluding others.” 98 N.Y.2d, at 475. The Court stated the basic propositions for rejecting defendant’s contention. The Supreme Court of the United States has been clear that while states can impose the death penalty there should be a “meaningful basis for distinguishing the few cases in which (the death penalty) is imposed from the many

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cases in which it is not.’ . . . The Court has further recognized that a state’s capital sentencing scheme must “ ‘genuinely narrow the class of persons eligible for the death penalty.’” In accomplishing that result the capital statute must distinguish on a principled basis between those who deserve capital punishment and those who do not . . . The Eighth Amendment does “not require the legislature to select the least severe penalty possible so long as the penalty selected is not cruelly inhumane or disproportionate to the crime involved.” . . . The decision to authorize capital punishment for classes of crimes is one best left to the Legislature unless clearly wrong. 98 N.Y.2d, at 476 (citations omitted; emphasis added)

Defendant pointed out that some felonies with significant penalties (e.g., some drug offenses) were not included. The Court concluded that the “Legislature’s decision to exclude felonies of a similar grade, but lacking the inherent potential for violence and physical injury [as the felonies included], was therefore rational.” 98 N.Y.2d, at 477. Couser dealt with the term “commanded” in the felony murder provision (Penal Law § 125.27 [1][a][vii]). Where first degree murder is based on felony murder the provision limited the liability of an accomplice to one who “commanded another person to cause the death of the victim or intended victim pursuant to” Penal Law § 20 which defines accomplice liability (emphasis added). In Couser, defendant claimed that the term “commanded” was unconstitutionally vague under the Eighth (cruel and unusual punishment) and Fourteenth (due process) Amendments. The former could subject the statute to more intense scrutiny than the latter.38 Without directly stating whether it was using an Eighth or Fourteenth Amendment analysis, the Court unanimously rejected defendant’s vagueness argument. It appears that the result would have been the same under either approach. First, it should be noted that to be accountable for first degree murder as an accomplice, the defendant must share the intent of the actual intentional killer. Second, Judge Bellacosa pointed out the long-standing and essentially unchallenged use of “commands” in defining accomplice liability. Third, accomplice liability under Penal Law § 20 defines an accomplice as one who “solicits, requests, commands, importunes, or intentionally aids [another] person to engage in [criminal] conduct.” It was significant, Judge Bellacosa said, that out of all the terms in that definition, the Legislature, in an act of “selective precision,” 94 N.Y.2d, at 637, deliberately chose “command” as the only term to express its purpose in limiting liability for the death penalty as an accomplice.

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Taking into account all the factors, the Court held that “commands” was not unconstitutionally vague. 6. LIFE/DEATH QUALIFICATION OF JURORS

People v. Harris, supra, also considered the so-called life/death qualification of jurors authorized by New York Criminal Procedure Law § CPL 270.20 (1) (f ). It provides that a challenge for cause may be made on the ground that “[t]he crime charged may be punishable by death and the prospective juror entertains such conscientious opinions either against or in favor of such punishment as to preclude such juror from rendering an impartial verdict or from properly exercising the discretion conferred upon such juror by law in the determination of a sentence pursuant to section 400.27.” The Court said that the “‘[d]eath qualification’ ensures that prospective jurors are able to consider the death penalty; ‘life qualification’ ensures that prospective jurors can consider a life sentence.” 98 N.Y.2d, at 478. Defendant in Harris challenged the constitutionality of inquiring about the juror’s views about the death penalty. The Court said that the Supreme Court had sustained the constitutionality of the life/death jury qualification in Lockhart v. McCree, 476 U.S. 162 (1986). The defendant urged the Court to declare it unconstitutional under the State Constitution and, in any event, argued that the Court should require that the death penalty inquiry of the jurors be postponed until after the guilt phase; otherwise, relying on some social studies, defendant argued that inquiry at the guilt phase assured a jury more likely to find the defendant guilty. The Court said there was nothing in defendant’s position that had not been dealt with and decided in Lockhart, and there was no basis historically or otherwise to distinguish the State Constitution’s jury provisions from the Federal Constitution with respect to the life/death jury qualification practice.

E. The Death of the Death Penalty: The “Anticipated Deadlock” Instruction While the text of this book was being written, the Court of Appeals decided two cases that resulted, once again, in New York’s being without a death penalty. The cases, People v. Cahill, 2 N.Y.3d 14 (2003), and People v. LaValle, 3 N.Y.3d 88 (2004), dealt with the so-called deadlock instruction required by the statute. Both cases reiterated the view expressed in prior Supreme Court and Court of Appeals cases that “death is qualitatively different and thus subject to a heightened standard of reliability.” 3 N.Y.3d, at 127 (citations omitted). The cases

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dealt with numerous issues that spawned several contentious opinions, but here only the deadlock instruction will be considered. Where the death penalty is sought on a first degree murder indictment, if the jury finds the defendant guilty, it must then determine how the defendant’s crime should be punished. To assist the jury with its sentencing responsibilities, CPL 400.27(10) requires the trial court to instruct the jury that it must unanimously decide whether to impose the death sentence or a sentence of life imprisonment without the possibility of parole. That provision further requires the court to instruct the jury that “in the event the jury fails to reach unanimous agreement with respect to the sentence, the court will sentence the defendant to a term of imprisonment with a minimum term of between twenty and twenty-five years and a maximum term of life.” Defendant[s in both cases] argue[d]that this instruction is unconstitutional because of [the fear of defendant’s future dangerousness, i.e.,] the substantial risk that jurors who believed that a sentence of life without parole was appropriate would be coerced into voting for the death penalty in order to avoid the possibility that the defendant might someday be released from prison. Cahill, supra, at 77

The majority in both cases agreed with the defendant and held that the instruction was unconstitutional because of its potential coercive effect, which would result in a death sentence even if the jury (or some members) did not prefer to impose it. In Cahill, the Court found the evidence to be legally insufficient to support defendant’s conviction of first degree murder and suggested no remedy, because there would be no remand for resentence where the death penalty was possible. However, LaValle did not find the evidence to be legally insufficient; it set aside the conviction, declaring that the sentencing scheme was unconstitutional because of the unconstitutional instruction. The failure of New York’s sentencing scheme to have the jury pass on the alternative of life with parole was fatal to the scheme. For jurors who are inclined toward life without parole, the choice is between death and life with parole, a Hobson’s choice in light of the jurors’ likely concerns over defendant’s future dangerousness. The choice of death results not through “a comparison of views, and by arguments among the jurors themselves,” but through fear and coercion. . . . New York’s statute is unique in its coercive effect. LaValle, supra, at 118–19.

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The Court concluded that an anticipated deadlock instruction was constitutionally required in order not to encourage jurors’ speculation about the disposition of defendant based on concern about the defendant’s future dangerousness. However, the Court refused to formulate an instruction because it reasoned that that was a task for the Legislature. Pursuant to the relevant Criminal Procedure Law provisions, the Court “remitted [the case] to the trial court for imposition of a sentence of life imprisonment without parole or a sentence with a minimum of 20 to 25 years and a maximum of life.” 3 N.Y.3d, at 131. As this is written, New York does not have a valid death penalty statute.

18. Evidence

I. Introduction: New York Evidence Law as the Product of Judicial Decisions In 1975, the Federal Rules of Evidence became the basic law of evidence for Federal courts. Since then, more than forty states have adopted or adapted the Federal Rules of Evidence or otherwise codified their evidentiary rules. New York State is not among them. While statutes contain some New York evidence law, the state has not yet codified such law. In some measure the persistent rejection of codification reflects the bar’s preference for judicial development of this area of the law.1 Consequently, New York evidence law has remained basically the product of judicial decisions employing common law methods of decision making. The following material focuses on some highlights of how, during the period covered by this book, the Court of Appeals has fashioned New York evidence law by modifying, rejecting, or retaining common law rules or by adding new rules, and how it has dealt with statutes. Additional aspects of the development of evidence law during this period are covered in chapters 8 (New Federalism) and 17 (Criminal Law).

II. Hearsay A. The Residual Exception A contentious aspect of the development of hearsay involved a clash between those who would limit the admissibility of hearsay to statements that satisfied

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the requirements of specific defined exceptions to the hearsay exclusionary rule, e.g., an excited utterance or declaration against penal interest, and those who argued for a more generous reception of hearsay. Rule 807 of the Federal Rules of Evidence, the Residual (Hearsay) Exception, is an influential example of the latter approach. Rule 807 authorizes reception of hearsay evidence not included in the specific hearsay exceptions where, inter alia, equivalent guarantees of trustworthiness are shown.2 However, People v. Nieves, 67 N.Y.2d 125, 131 (1986), rejected a form of residual exception approach—that hearsay statements should be admissible as long as they are deemed “reliable,” without regard to whether they fit into one of the specific exceptions. The Court said, “[W]e are not prepared at this time to abandon the well-established reliance on specific categories of hearsay exceptions in favor of an amorphous ‘reliability’ test, particularly in criminal cases where to do so could raise confrontation clause problems,” and held that proffered hearsay statements were admissible only “if the People demonstrated that they fell within one of the exceptions to the hearsay rule.” Id. Although ultimately Nieves, a criminal case, rejected the amorphous reliability test, judicial opinions frequently referred to general principles to expand or to create hearsay exceptions in both civil and criminal cases. Also see Nucci v. Proper, 95 N.Y.2d 597 (2001), infra, rejecting the claim that availability of declarant for cross-examination is sufficient for reception of hearsay declaration. In Fleury v. Edwards, 14 N.Y.2d 334 (1964), a 6–0 decision, all the judges concurred in Chief Judge Desmond’s opinion and Judge Fuld’s concurring opinion, in which they stated some far-reaching general principles governing the law of evidence. The Chief Judge said: The objective of all rules of evidence is to prevent failure of justice by putting before the fact triers for testing and acceptance or rejection such oral and documentary proofs as carry a high probability of trustworthiness. . . . Fair application of such standards calls for the admission of the testimony we are here concerned with and no binding rule of law prevents. 14 N.Y.2d, at 339 (emphasis added)

There has been frequent reference to Judge Fuld’s statement concerning the role of the Court in developing the State’s law of evidence. He wrote: The common law of evidence is constantly being refashioned by the courts of this and other jurisdictions to meet the demands of modern litigation. Exceptions to the hearsay rules are being broadened and created where neces-

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sary. . . . Absent some strong public policy or a clear act of preemption by the Legislature, rules of evidence should be fashioned to further, not frustrate, the truth-finding function of the courts in civil cases. 14 N.Y.2d, at 341 (emphasis added)

B. Prior Testimony: Statutes and Common Law 1. FLEURY V. EDWARDS: CIVIL TRIALS

Fleury v. Edwards, supra, applied these principles in reconciling statutory provisions with a parallel common law rule. Fleury involved a lawsuit arising out of the collision of two automobiles and presented the question whether the testimony of one of the drivers, now deceased, but who had testified at a Motor Vehicle Bureau hearing, was admissible at the trial of the lawsuit brought by decedent’s administrator. Decedent had testified at a Motor Vehicle Bureau hearing held to determine whether the driving license and registration of any of those involved in the collision should be revoked or otherwise affected. Decedent died before the trial of the lawsuit, and at the trial, the administrator offered in evidence the decedent’s sworn Bureau hearing testimony. The proffered evidence clearly was hearsay,3 and did not satisfy the requirements of CPLR provisions then in effect for admission of the prior sworn testimony of a deceased witness. The relevant CPLR provisions did authorize such testimony to be received in an action or special proceeding, but the Motor Vehicle Bureau hearing was neither an “action” nor a “special proceeding.” Nevertheless, the Court of Appeals held the evidence admissible in Fleury. First, the Court found that the prior hearing testimony of the deceased witness would have been admissible at common law, provided, as was the case in Fleury, the prior testimony had been under oath and related to the same subject matter as the matter in the action in which it was offered and the witness had been subject to cross-examination by the party against whom it was being offered. Second, the Court could find no policy reason for differentiating the MVB hearing from a trial or “special proceeding” for the purposes of the prior sworn testimony exception to the hearsay rule where, as in Fleury, the indicia and guarantees of trustworthiness were the same, i.e., sworn testimony, the opportunity for crossexamination by the party against whom it was offered, and the subject matter related to the trial in which it is offered. Moreover, regardless of the common law rule, in the absence of a statute clearly mandating exclusion, the opinions reasoned that the statements should have been received under the general principles stated by Chief Judge Desmond and Judge Fuld, supra. The Court

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determined that the relevant Civil Practice Law and Rules (CPLR) provisions were not intended to preempt all common law rules of evidence and concluded that both the common law and the CPLR provisions existed side-by-side. 2. PEOPLE V. HARDING: CRIMINAL TRIALS

Eleven years after Fleury, People v. Harding, 37 N.Y.2d 130 (1975), dealt more restrictively with the admissibility of prior testimony of an unavailable witness in a criminal trial. In Harding, the Court unanimously held that in the criminal trial of a police officer for bribery it was error to admit the prior testimony given at the officer’s disciplinary proceeding by a subsequently deceased witness. The prosecution conceded that Criminal Procedure Law (CPL 670.10), the statute governing the admission of prior testimony in criminal trials, did not authorize reception of the prior administrative hearing testimony in the subsequent criminal trial, but contended that, as the Court had held with respect to the CPLR in Fleury, supra, at 338, the CPL provision “is not intended to state the precise and only circumstance under which such use is permissible.” 37 N.Y.2d, at 133. Chief Judge Wachtler rejected the prosecution’s contention for three reasons. First, CPL 670.10 was drawn more narrowly and precisely than the statute in Fleury in designating the circumstances under which prior testimony was admissible. In addition the CPL provision was amended after Fleury to permit the use of prior testimony taken at certain hearings on misdemeanor charges, and the precise limiting language in the remainder of the statute remained unchanged even though Fleury had been decided seven years before the amendment. The Chief Judge determined there was “no basis for concluding that the omission of any reference to administrative hearings was due to legislative oversight.” Third, the CPLR provisions in Fleury involved a civil statute, and CPL 670.10 is a criminal statute. Civil and criminal statutes “are governed by different rules of construction. In criminal matters the courts must be more circumspect.” 37 N.Y.2d, at 134.

C. Judicial Modification and Additions Prior to Nieves, supra, the Court had indicated doubts about the traditional limitations on the admissibility of hearsay. Were it necessary to determine whether the deceased’s utterance fit within an exception to the hearsay rule, it is observed that this court has in recent years emphasized that the hearsay doctrine has been too restrictively applied to

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exclude otherwise reliable evidence from the jury. . . . The issue, however, is not determined now and may be reserved for resolution in a case which would require such resolution. People v. Arnold, 34 N.Y.2d 548, 549–50 (1974) (mem.) (citations omitted; emphasis added) 1. LETENDRE

Letendre v. Hartford Accident and Indemnity Company, 21 N.Y.2d 518 (1968), raised the possibility that the Court would recognize some sort of hearsay residual exception in view of the language and reasoning of the majority opinion, which examined the basis for the hearsay exclusion. In Letendre, plaintiff sued the insurance company, which had agreed to indemnify the plaintiff for defalcations by its employee, and the plaintiff proffered a written statement the employee had given to the insurance company in which the employee had admitted taking the money. The Court of Appeals in a 4–3 decision held that the statement was admissible and overruled Hatch v. Elkins, 65 N.Y. 489 (1875), which would have excluded the statement. The reason for the rule in Hatch was fear of collusion between the employer and employee to cause the insurer to make payment. Judge Keating, speaking for the majority, stated, “Often hearsay evidence has far more probative value than testimonial evidence,” 21 N.Y.2d, at 525, and quoted Judge Fuld’s view of the role of the Court in developing the law of evidence. 14 N.Y.2d, at 341, supra. Under Hatch, the statement would have been excluded because it was made after the theft had occurred, but Judge Keating saw no reason to limit admissibility of the statement to so-called “res gestae” statements. Moreover, Judge Keating viewed as irrelevant to the reasons for excluding hearsay the fortuitous facts that the employment had ended and the bond was no longer in effect when the hearsay statement was made. Instead of viewing Hatch as conclusive on the question of admissibility, he examined the policy factors underlying the exclusion of hearsay and concluded that in Letendre, the danger of an erroneous report of the statement was practically not present where the statement was in writing and had been taken by the party (the insurer) against whom it was offered. Moreover, the out-of-court declarant, the employee, was present and available to testify, which meant that his credibility could be tested by cross-examination. Indeed, Judge Keating noted, “the justification for the exception we create here is far stronger than that which supports many of the existing exceptions to the hearsay rule, where there is no opportunity for cross-examination.” 21 N.Y.2d, at 524. He also pointed out that under many major proposals the evidence would have been

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admissible, and under then current New York law, the statement would have been admissible as a statement against pecuniary interest if the employee had been unavailable because he had died. Judge Breitel wrote a dissenting opinion, concurred in by Judges Burke and Jasen. He argued that the Hatch rule served a useful purpose, particularly under the facts and proof in Letendre, where the state of the plaintiff’s business records raised serious questions about whether defalcations by the employee actually had occurred at all, about the employee’s motive to make his inculpatory statement, and in view of the fact the employee continued in the employ of the plaintiff. From his analysis of the evidence Judge Breitel concluded that the employee’s weak hearsay inculpatory statement actually was the decisive and strongest factor in the plaintiff’s case, and at least the jury should have been warned about its weakness. With respect to creating a new hearsay exception, he wrote: Finally, if new exceptions to the hearsay rule, based on the broad admissibility of hearsay espoused by advanced thinkers, are to be propounded, the jury should be instructed on the variant weight to be given extrajudicial statements, whether sworn or not, and trial testimony, sworn and subject to crossexamination. The considered justification for the hearsay rule as an adjunct to a system using lay juries to find facts should not be lightly overborne. Consequently, even if the abrogation of the hearsay rule is welcome, and perhaps it may be, it should not be done as a happenstance in achieving a result in a particular class of case and without balancing cautionary instructions to the jury. 21 N.Y.2d, at 531–32 2. NUCCI

Nucci v. Proper, 95 N.Y.2d 597, 602 (2001), rejected plaintiff’s contention that Letendre authorized the admissibility of a hearsay statement solely on a showing that the declarant is available as a witness. The Court said that more is required, including indicia of reliability, such as those present in the traditional hearsay exceptions, although the Court “recognized that several states have chosen to adopt the so-called ‘modern’ view—permitting the admission of prior, unsworn oral statements where the declarant is available and subject to crossexamination.” 95 N.Y.2d, at 604, note 2. In Nucci, the Court, citing cases, took the occasion to describe reliability in evidence law: Reliability is the sum of the circumstances surrounding the making of the statement that render the declarant worthy of belief. Relevant factors include

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“spontaneity, repetition, the mental state of the declarant, absence of motive to fabricate, . . . unlikelihood of faulty recollection and the degree to which the statement was against the declarant’s . . . interest.” . . . Courts have also “considered the status or relationship to the declarant of the person to whom the statement was made . . . , whether there was a coercive atmosphere, whether it was made in response to questioning and whether the statements reflect an attempt to shift blame or curry favor.” 95 N.Y.2d, at 603 (citations omitted) 3. DECLARATIONS AGAINST PENAL INTEREST

a. People v. Brown Before the Court’s decision in People v. Brown, 26 N.Y.2d 88 (1970), New York had treated a declaration against pecuniary interest, but not a declaration against penal interest, as an exception to the hearsay exclusionary rule. Brown changed this situation. The Court concluded that there was no logical basis for distinguishing trustworthiness characteristics between the two declarations against interest. In addition, the Court examined Justice Holmes’ and Professor Wigmore’s criticisms of maintaining the distinctions, as well as decisions from other states the Court viewed as signifying development of “a gradual change of viewpoint which would abolish the distinction.” Id., at 92. Brown rejected prior holdings in Kittredge v. Grannis, 244 N.Y. 168, 175, 176 (1926), and Ellwanger v. Whiteford, 15 A.D.2d 898, aff’d. 12 N.Y.2d 1037 (1963) (mem.), and unanimously declared that “[t]he rule in New York should be modernized to hold that an admission against penal interest will be received where material and where the person making the admission is dead, beyond the jurisdiction and thus not available; or where he is in court and refuses to testify as to the fact of the admission on the ground of self incrimination.” 26 N.Y.2d, at 94 (emphasis added). Subsequently, several cases developed the contours of the statement against penal interest. Some of the major cases are People v. Settles, 46 N.Y.2d 154 (1978), People v. Maerling, 46 N.Y.2d 289 (1978), People v. Brensic, 70 N.Y.2d 9 (1987), and People v. James, 93 N.Y.2d 620 (1999). b. Settles, Maerling, and Brensic (1) Settles Settles characterized Brown as having “blurred” the distinction between declarations against penal interest and against pecuniary interest when it “held that a declaration against the penal interest of the maker tending to exculpate the defendant may be admitted at trial.” Settles defined the conditions of admissibility for a declaration against penal interest.

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To qualify for admission into evidence as a declaration against the maker’s penal interest the following elements must be present: first, the declarant must be unavailable as a witness at trial; second, when the statement was made the declarant must be aware that it was adverse to his penal interest; third, the declarant must have competent knowledge of the facts underlying the statement; and, fourth, and most important, supporting circumstances independent of the statement itself must be present to attest to its trustworthiness and reliability. 46 N.Y.2d, at 167

Defendant Settles offered the statement of his codefendant, Boald, whose out-of-court statement in effect exonerated Settles by identifying one George as his sole accomplice. Judge Cooke, for a unanimous Court, addressed in detail the factors to be taken into account in determining whether there was a “sufficient probability of trustworthiness” to warrant admissibility of Boald’s statement offered to exculpate Settles. Of course, the jury would decide whether the statement was sufficient to create reasonable doubt, but the trial judge would make the decision on admissibility based on the four factors identified by the Court and would submit it to the jury regardless of the judge’s belief in its truthfulness if the proponent submitted proof of the “reasonable possibility” of its truthfulness. 46 N.Y.2d, at 170–71 (emphasis added). Boald’s statement satisfied the first three factors; whether it satisfied the fourth factor, reasonable possibility of trustworthiness, was more problematic. Judge Cooke eschewed setting out a formula or a template for making the determination concerning trustworthiness. Instead, focusing on Boald’s statement, he pointed out the kinds of facts that could be established for the statement to be admitted, bearing in mind the rationale for the exception and the reasons for the conditions. In view of the fact that the rationale for this hearsay exception was based on the “assumption that a person would not ordinarily make a statement which jeopardizes his interest by subjecting himself or herself to criminal prosecution and incarceration,” Judge Cooke explored possible reasons that a person would make a false declaration against penal interest. “Simply stated, people may prevaricate, despite the consequences to themselves, to exculpate those they love or fear, to inculpate those they hate or because they are inveterate or pathological liars.” Id., at 168. He noted that when Boald made his statement he was already subject to criminal prosecution. In view of his circumstances, Boald could have inculpated George in the hope of receiving immunity or a plea to a lesser offense or because he wanted “to protect his real accomplice out of some perverted sense of loyalty at the expense of someone he

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despised” or “he could have been telling the truth. The possibilities are limited only by the depth of human experience.” Id., at 166. To circumvent fabrication and insure the reliability of these statements, there must be some evidence, independent of the declaration itself, which fairly tends to support the facts asserted therein. . . . Only when there is other evidence tending to show that the declarant or someone he implicates as his accomplice actually committed a crime, may a declaration against penal interest be said to display the degree of reliability sufficient to overcome the dangers of admitting hearsay evidence. . . . By its very nature, the determination involves a delicate balance of diverse factors. . . . The crucial inquiry focuses on the intrinsic trustworthiness of the statement as confirmed by competent evidence independent of the declaration itself. . . . By way of illustration, eyewitness testimony placing George at or near the scene of the crime, or proof of his possession of the fruits or instrumentalities used to commit the crime would suffice. Supportive evidence is sufficient if it establishes a reasonable possibility that the statement might be true. 46 N.Y.2d, at 168–170 (citations and notes omitted; emphasis added)

(2) Maerling: Declaration against interest offered by prosecution In People v. Harding, 37 N.Y.2d 130, 135 (1975), Judge Cooke’s concurring opinion contended that a declaration against interest when offered by the prosecution to inculpate the defendant, as when offered to exculpate the defendant, was admissible when qualities of trustworthiness were satisfied. Harding did not decide the question because it had not been properly raised, but in People v. Maerling, 46 N.Y.2d 289 (1978), decided the same day as Settles, the Court recognized that declarations against the penal interest of the declarant offered by the prosecution to inculpate the defendant were admissible, although the statements proffered in Maerling were not admissible because they did not meet the standards of trustworthiness. Maerling reasoned that the factors of necessity and reliability which formed the basis for Settles’ recognition of the statement against penal interest hearsay exception did not depend on whether the statement was used by the defense to exculpate or by the prosecution to inculpate the defendant. Rather “it was the inherent trustworthiness of the statement itself that was crucial to its admission.” Although, the “nature of the ultimate use to which a declaration against interest is put, especially when that use is anticipatable by the declarant, is a factor to be considered in deciding whether the declarant was in a truth-telling frame of mind, but it need not be determinative.” 46 N.Y.2d, at 297. The Court did

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suggest that where used to inculpate the defendant, a more demanding standard would be appropriate, because where the “declaration is inculpatory in character, scrutiny of its reliability should, if possible, be even more circumspect because of the due process protections afforded those charged with crime, including, of course, the requirement that guilt be proved beyond a reasonable doubt.” 46 N.Y.2d, at 298. The Court noted that Settles did not set out the criteria for admissibility in great detail and then proceeded to describe in greater detail the factors to be considered in determining whether a claimed declaration against penal interest should be received in evidence. First, the Court posited that “the interest which the declaration compromises must be one of sufficient magnitude or consequence to the declarant to all but rule out any motive to falsify.” Id. (emphasis added). As for statements that were only in part disserving to the interests of the declarant, “ideally, only the disserving part of the statement should be admitted.” 46 N.Y.2d, at 298. Although the Court recognized that in some instances a more accurate perspective of the statement would be served by admission of the non-disserving elements, it stated that “it is [not] enough for the self-serving matter merely to be closely connected with the disserving portion,” which might be acceptable in civil cases. 46 N.Y.2d, at 299. Generally, however, statements that are not disserving to the maker should not be received in evidence under the declaration against penal interest hearsay exception. Declarations against interest are not admitted on the credit of their makers, but on their highly disserving nature. It follows that neutral and self-serving statements do not bear the same guarantee of reliability as do the disserving ones contained in the same declaration. It is because, without that guarantee, the trustworthiness of collateral statements may be expected to be open to question, that it generally is preferable to avoid the risk that a defendant’s liberty will be endangered by the jury receiving false hearsay. 46 N.Y.2d, at 299

The Court concluded that the statements in Maerling should have been excluded because the declarant did not admit that she had engaged in activity related to the crime that was the subject of the trial. If the statement did implicate her in any criminal activity, it was with respect to a crime collateral to the crime with which the defendant was charged. In addition, there was evidence the declarant was seeking leniency when she made the statement. Moreover, the disserving aspect of the statement with respect to any crime committed by the maker involved so trivial a sum that it was not of “sufficient magnitude or

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consequence to the declarant to all but rule out any motive to falsify.” There was evidence that the maker, “street smart” and perhaps not quite mentally balanced, had motives to lie—seeking leniency among other reasons—that far outweighed the consequence of being held accountable for criminal activity based on her statements. With this assessment of the facts, the Court held the statement inadmissible against the defendant as a matter of law. (3) Brensic: Declaration against interest offered by prosecution The development of the declaration against penal interest continued with People v. Brensic, 70 N.Y.2d 9, 15 (1987), which held statements in two cases inadmissible because the evidence did not “all but rule out any motive to falsify.” Cf., Maerling, supra. Brensic also repeated the standards for admissibility and the increased concern when the statement is offered to inculpate the defendant expressed in Maerling. Brensic also appeared to increase the burden on the prosecution when it offers a statement to inculpate a defendant; the Court said that admissibility should be determined “by evaluating competent evidence independent of the declaration itself, whether the declaration was spoken under circumstances which render it highly probable that it is truthful.” 70 N.Y.2d, at 15 (emphasis added). Cf., Settles, Supportive evidence is sufficient if it establishes a reasonable possibility that the statement might be true. 46 N.Y.2d, at 168–70.4 Brensic also dealt with the application of the standards for admissibility when the statement is made by a declarant in custody. With respect to the requirement that the “trial court must find that the interest compromised is ‘of sufficient magnitude or consequence to the declarant to all but rule out any motive to falsify,’” the Court said that “[t]his standard raises a rebuttable presumption of unreliability when the inculpatory declaration is the result of custodial questioning because, in such circumstances, the declarant is likely to have a ‘strong motive to falsify’ in order to curry favor, shift blame, receive immunity from prosecution or obtain a favorable plea bargain.” 70 N.Y.2d, at 15. In addition, the Court mandated three more safeguards. First, when the defendant disputes the circumstances under which the statement was made and there is disputed evidence, the trial court should hold a hearing to determine admissibility—a Settles hearing; second, if the statement is held admissible, only the disserving parts of the statement should be received in evidence; and third, the jury should be properly instructed at the time the evidence is introduced and in the final jury instructions. (4) James: Statements implicating others People v. James, 93 N.Y.2d 620 (1999), admitted declarant’s statements against a codefendant that implicated the codefendant under two hearsay exceptions—

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the Hillmon state of mind exception and the declaration against penal interest. The declarant was unavailable, having refused to testify on grounds of selfincrimination. As for the declaration against penal interest, James refused to adopt an “iron-clad” rule “requiring invariable redaction of the name of a coperpetrator in any declaration against penal interest.” 93 N.Y.2d, at 637. The Court also recalled that although in Brensic it had expressed “skepticism regarding the reliability of statements inculpating others given during custodial interrogation,” nevertheless, it had opted against a rule of invariable exclusion “in the prosecution of a co-defendant.” Instead, Brensic expressed preference for “a nonconclusive presumption against reliability, with the ultimate determination dependent upon the circumstances of the individual case.” 93 N.Y.2d, at 639. James held that the entire relevant portion of the out-of-court statement was trustworthy because the reference to others actually tended to reinforce the disserving parts of the statement, i.e., those that incriminated the defendant. The Hillmon state of mind exception is derived from Mutual Life Ins. Co. v. Hillmon, 145 U.S. 285 (1892), which held that the out-of-court statement of a deceased declarant that he had intended to meet another person identified in the statement was admissible (1) to prove the declarant intended to meet that person and (2) to permit (a) the inference that he subsequently acted in accord with that intent and (b) the more contentious inference that the declarant acted with the other person. James dealt with the Hillmon issue as a matter of first impression for the Court and held that, given conditions establishing reliability, the declaration of the declarant’s intent to act in the future was admissible in a criminal case against a defendant to permit the inference that the defendant acted in a manner consistent with the out-of-court declaration. Thus, the Court rejected the attempt to reject the hearsay statement as evidence that both the declarant and the other person acted in accord with the out-of-court declaration. The Court also rejected the objection that the statement involved more than future intent, because implicit in the hearsay statement was a statement of past action, i.e., there had been a prior agreement between the declarant and the other person. The Court reasoned that to accept this objection would totally destroy the Hillmon exception, a result the Court would not accept. The opinion set out the foundation for admissibility. It is not difficult to fashion foundational safeguards appropriate to ensure against both the dangers of unreliability common to most hearsay exceptions and those peculiar to this one. Thus, before a statement of intent to engage in joint or cooperative activity is admissible against the named nondeclarant, it must be shown that (1) the declarant is unavailable . . . ; (2) the statement of the declarant’s intent unambiguously contemplates some future action by the

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declarant, either jointly with the nondeclarant defendant or which requires the defendant’s cooperation for its accomplishment . . . ; (3) to the extent that the declaration expressly or impliedly refers to a prior understanding or arrangement with the nondeclarant defendant, it must be inferable under the circumstances that the understanding or arrangement occurred in the recent past and that the declarant was a party to it or had competent knowledge of it . . . ; and (4) there is independent evidence of reliability, i.e., a showing of circumstances which all but rule out a motive to falsify . . . and evidence that the intended future acts were at least likely to have actually taken place . . . 93 N.Y.2d, at 634–35 (citations omitted; emphasis in original) 4. LOSCHIAVO: SPEAKING AUTHORITY OF AGENT OR EMPLOYEE

Fleury, supra and Brown, supra are examples of judicially created changes in the law of evidence. However, the Court of Appeals also has refused to change judicially created New York law even in the face of overwhelming contrary authority outside New York. Thus, Loschiavo v. Port Authority of New York, 58 N.Y.2d 1040 (1983), “decline[d] plaintiff’s invitation to change [New York’s] wellsettled, albeit widely criticized rule,” 58 N.Y.2d, at 1042, that excluded hearsay statements by an agent or employee against his principal or employer unless the making of the statement was within the scope of the agent or employee’s authority, i.e., unless the agent had “speaking authority” to make the statement. It should be noted that the Federal rule did not require speaking authority; Rule 801(d)(2) required only that the employee’s statement “concern a matter within the scope of the employment” and that it was made during the existence of the employment relationship. Judge Meyer concurred in the majority’s decision on constraint of prior authority, but Judge Fuchsberg dissented. Judge Fuchsberg noted that nearly every court and standard setting authority that had occasion to deal with the question rejected “speaking authority” as the sine qua non for admissibility and has held admissible statements with the following “indices of reliability: (1) the declaration purportedly was made on personal knowledge, (2) the declaration was made during the course of the agency or employment of the declarant and (3) the declaration was with regard to a matter within the scope of the declarant’s employment.” 58 N.Y.2d, at 1042. Referring to the oft-quoted statement by Judge Fuld in Fleury, supra, Judge Fuchsberg asserted the role of the Court in fashioning rules of evidence and questioned the wisdom of relying on the uncertainty of any legislative action to remedy a judicially created rule where the deficiency is so widely acknowledged and where unjust consequences will be reflected in cases affected by the retained “speaking authority” rule.

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5. PRESENT SENSE IMPRESSION

In a case of first impression, the Court of Appeals adopted a present sense impression as a new hearsay exception in New York and held that the admission of a 911 tape describing a burglary in process was proper under the new rule. People v. Brown, 80 N.Y.2d 729 (1993).5 911 calls are common subjects of the present sense impression exception. [S]pontaneous descriptions of events [as in the 911 tape] made substantially contemporaneously with the observations are admissible if the descriptions are sufficiently corroborated by other evidence. Further such statements may be admitted even though the declarant is not a participant in the events and is an unidentified bystander. 80 N.Y.2d, at 734–35

In adopting the present sense impression exception, the Court noted that at that time twenty-eight states had codified it and several judicial opinions and legal scholars had accepted it. “Dean Wigmore, a proponent of the excited utterance doctrine, opposed the present sense impression rule because, in his view, only a startling event would guarantee trustworthiness; spontaneity and contemporaneity of the declaration, without the shock or excitement from the event, are not sufficient.” Even though the Court had accepted Dean Wigmore’s views concerning the trustworthiness underpinnings of the excited utterance exception, logic did not require it to adopt his view of the present sense impression. 80 N.Y.2d, at 734. The most striking difference between the Brown formulation of the exception and the Federal version was that Brown required corroboration of the description by other evidence and the Federal Rule did not.6 Turning to Brown’s corroboration requirement, the Court rejected the defendant’s contention that it adopt, as had some states, the “equally percipient witness” requirement for corroboration, i.e., “a witness at the scene who had an equal opportunity to perceive the event and who will be subject to cross-examination as to the accuracy of the declarant’s statement.” The Court saw “no reason why the contemporaneity of the declaration with the events as well as the accuracy of the declarant’s description [could not] be corroborated by other means.” 80 N.Y.2d, at 735. The Court also rejected the People’s position that there should not be any corroboration requirement. Each of those positions had been adopted in some jurisdictions. The Court adopted a third position, also adopted by some jurisdictions, “requiring some corroboration,” that is, “some evidence in addition to the

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statements themselves to assure the court that the statements sought to be admitted were made spontaneously and contemporaneously with the events described.” Id., at 736, 737. The police observed what the anonymous and still unidentified 911 caller, who had referred to himself as “Henry,” had described only moments before. “The suspects were seen running out of the restaurant through the broken glass door and seeking refuge on the roof, lending credence to the report that there was a burglary in progress. That the circumstances and events at the scene were still very much as described by ‘Henry’ corroborates what seems evident from the calls themselves—that ‘Henry’s’ reports were spontaneous and made contemporaneously with the events described.” People v. Buie, 86 N.Y.2d 501 (1995), and People v. Vasquez, 88 N.Y.2d 561 (1996), provided the Court with opportunities to elaborate on the elements of the present sense impression exception it had created in Brown, supra, in the context of 911 calls. In Buie, a burglary prosecution, the owner of a house made a 911 call from his home while the burglary was taking place. He described the burglar, including his physical description and clothing, in great detail, and the description fit the defendant when he was captured soon after. The burglar left the house and the owner also immediately left and saw a man leaving his house carrying the owner’s black briefcase, which contained a valuable camera and other items. The owner followed the man, who began to run, while the owner made a 911 call on his cellular phone in which he described in detail what was happening as he followed the man. The fleeing man abandoned the briefcase and hid in a neighbor’s garage where police immediately captured him, and the owner identified the man, who became the defendant, as the burglar. At this point, one might well ask, “What’s the problem?” At trial, when asked to identify the person who broke into his home, the owner inexplicably did not point to the defendant, but instead identified the deputy sitting next to the defendant. . . . The essence of the controversy . . . revolves around the trial court’s admission, over a defense objection, of the fourminute tape of the burglary victim’s conversation with the 911 operator. The tape ended shortly before the events that took place at the neighbor’s garage when the police arrived. In a pre-trial ruling, the court stated that it would allow the evidence in under the present sense impression exception to the hearsay rule. At trial, the evidence was not objected to as such, but rather, defendant’s objection was based on the availability of the witness to testify and a claimed impermissible “bolstering” of the witness through the use of his prior, consistent, recorded statement. 86 N.Y.2d, at 504–5 (emphasis added)

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The Court rejected the defendant’s contentions, inter alia, that admissibility of present sense impression evidence requires a showing that the declarant is unavailable to testify and that there is “special necessity” for admitting the hearsay evidence. The opinion noted that “virtually” no jurisdiction had required unavailability as a condition of admissibility and three alternatives were represented in the proposed unenacted Evidence Codes (see note 1, supra)— one required unavailability, another did not, a third included no specific present sense impression at all, but would rely on a residual exception like the one in the Federal Rules of Evidence. The Court found “no need in logic or practical procedure” to impose an unavailability factor. Brown had a component not present in other formulations, the requirement of corroboration as an element of the concern with trustworthiness, and there was no reason to further burden the exception already found to warrant recognition. The Court held “that the present sense impression exception does not require a showing of the declarant’s unavailability as a sine qua non to admissibility though that factor may be weighed by Trial Judges in assessing the traditional probativeness versus undue prejudice [or jury confusion] calculus for allowing evidence before a petit jury.” 86 N.Y.2d, at 506. In further explanation of its refusal to impose additional requirements without convincing reasons, the opinion harked back to Judge Fuld’s statement in Fleury, supra, “Absent some strong public policy or a clear act of pre-emption by the Legislature, rules of evidence should be fashioned to further, not frustrate, the truth-finding function of the courts in civil cases.” Buie continued: “This reasoning applies as well, within constitutional limits not applicable here, to criminal cases.” 86 N.Y.2d, at 509 (emphasis added).7 One opinion by Judge Titone covered the decisions in People v. Vasquez (reckless endangerment and criminal possession of a weapon), People v. Dalton (homicide), and People v. Adkinson (sexual abuse of a ten-year-old), argued on the same day and reported at 88 N.Y.2d 561 (1996). Each involved the admissibility of 911 telephone call tapes under the present sense impression exception, and in each case the Court held that the tapes offered by the defendants were properly excluded. Judge Titone, writing for a unanimous Court, took the occasion to explicate further the foundation for the present sense impression exception through an extensive discussion that explained the differences between the present sense impression and the excited utterance exception. The specific issues in the three cases focused attention on the elements that tended to assure reliability of the out-of-court declarations, especially the requirements of contemporaneity of the making of the statement with the event it described, and the

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independent evidence required to corroborate the assertions of the declarant. At the outset, the Court held that if the issue had been properly preserved, it mattered not whether the trials were held before or after the present sense impression exception had been established in Brown, an exception Judge Titone characterized as involving “only an additional wrinkle in the complex body of evidentiary law governing the admission of hearsay,” not one of those “sharp” changes in the law that if applied to all cases on appeal might affect the orderly administration of justice. 88 N.Y.2d, at 573–74. Before turning to discussion of the differences between the excited utterance and the present sense impression, Judge Titone criticized the practice of employing two commonly used terms. First, lumping the two exceptions together as res gestae, an “inaptly named” class, according to Judge Titone, and second, referring to both exceptions as “spontaneous” statements, a description that carried the serious risk of inadequate appreciation of the differences between the two. 88 N.Y.2d, at 574. “Excited utterances” are the product of the declarant’s exposure to a startling or upsetting event that is sufficiently powerful to render the observer’s normal reflective processes inoperative. . . . “Present sense impression” declarations, in contrast, are descriptions of events made by a person who is perceiving the event as it is unfolding. They are deemed reliable not because of the declarant’s excited mental state but rather because the contemporaneity of the communication minimizes the opportunity for calculated misstatement as well as the risk of inaccuracy from faulty memory. . . . In our State, we have added a requirement of corroboration to bolster these assurances of reliability. . . . Thus, while the key components of “excited utterances” are their spontaneity and the declarant’s excited mental state, the key components of “present sense impressions” are contemporaneity and corroboration. 88 N.Y.2d, at 574–75 (citations omitted; emphasis added)

Judge Titone further explained the principles underlying the contemporaneity and corroboration concepts and applied them to the three cases before the Court. Basically, the contemporaneity requirement assures that the present sense impression declaration is not simply an out-of-court statement that recalls a past event with all the faults of a hearsay statement. Requiring contemporaneity assures reliability by eliminating the dangers of the declarant having had time for reflection and reducing the likelihood of declarant’s faulty recollection. The contemporaneity element was alluded to in Brown’s requirement that the

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statement had to be “made while the declarant was perceiving the event or condition, or immediately thereafter” (People v. Brown, 80 N.Y.2d, at 732, emphasis supplied in Vasquez original). “The italicized language, however, was meant to suggest only that the description and the event need not be precisely simultaneous, since it is virtually impossible to describe a rapidly unfolding series of events without some delay between the occurrence and the observer’s utterance.The language in question was certainly not intended to suggest that declarations can qualify as present sense impressions even when they are made after the event being described has concluded. Indeed, we noted in Brown that the description of events must be made “substantially contemporaneously” with the observations (Id., at 734).” 88 N.Y.2d, at 575 (emphasis supplied). Judge Titone emphasized that corroboration by independent evidence was a requirement separate and distinct from contemporaneity, but conceded that the corroboration requirement was more complex to delineate and its application depended on the particular facts of the case. Consequently, he concluded that it “would not be productive to attempt to fashion a definitive template for general application. It is sufficient at this point to note that in all cases the critical inquiry should be whether the corroboration offered to support admission of the statement truly serves to support its substance and content.” 88 N.Y.2d, at 576. In Vasquez, the 911 tape recording of an anonymous caller did not qualify as a present sense impression, because there was no independent evidence that corroborated the declarant’s description of the events. The caller had referred to a fleeing “black man,” and a witness, a long-term friend of the defendant who had failed to come forward with his version earlier, testified about a “black man”; although the caller and the witness referred to a black man, each had the man going in different directions and to different places. The statement and the friend’s testimony intersected at only one point—a “black man”—and the Court concluded there was no evidence that they were even referring to the same man or the same event. Consequently, even if the caller’s statement was contemporaneous with the event it described, the witness’s testimony was not sufficient to corroborate the out-of-court statement. In Dalton, the defendant offered his own 911 call as a present sense impression. In the call he reported that he had been attacked and he described himself as acting in self-defense. The Court held, even if the event described in the statement was corroborated, the contemporaneity requirement had not been met, because the statement had been “made after the entire sequence of events had come to a final and fatal end and defendant had run from the crime scene.” Thus, it could not be said that the statement was a description of an event occurring while the caller was speaking or that the intervening period between the ter-

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mination of the event and the 911 call had “left no time for reflection.” 88 N.Y.2d, at 578, 579. The Court also rejected Dalton’s claim that his 911 call statements satisfied the “excited utterance” exception. Judge Titone pointed out that an excited utterance is one made under the immediate and uncontrolled domination of the senses—during that brief period when, as a result of trauma or shock, the declarant’s statement could not have been the consequence of that reasoned reflection influenced by the declarant’s self-interest. “While the statement must have been made before the declarant had the opportunity to reflect, ‘the time for reflection is not measured in minutes or seconds,’” but rather “by facts.” Id., at 579. The Court must assess “not only the nature of the startling event and the amount of time which has elapsed between the occurrence and the statement, but also the activities of the declarant in the interim.” The defendant claimed that he had shot the victim in self-defense after the victim struck him in the head with a pistol, and that he had made the statements in his 911 call under the trauma of the blow to his head and the attendant circumstances. The Court, however, noted that the physical injury was quite minor, that the defendant had sufficient time to run to his mother’s house and give her the pistol, and then run to his house to make the 911 call. The Court concluded that, even though defendant was agitated, the call was not made under such circumstances that would support the conclusion that when he spoke to the 911 operator he was so under the influence of the preceding events that he was not acting in a reasoned manner motivated by protecting his own self-interest, including deliberate resort to fabrication. The defendant’s reliance on the present sense impression exception in Adkinson met the same fate as defendant’s claim in Dalton because of the absence of contemporaneity. In Adkinson, however, it was the alleged statement of the ten-year-old victim of sexual assault that was audible on a 911 tape. Defendant relied on statements made by the victim that he had “not actually seen his assailant’s face,” a statement he made to “his aunt as she spoke to the 911 operator several minutes after the assault took place” that she relayed to the operator. The Court of Appeals held that the statement did not qualify as a present sense impression, because, “like the 911 call in Dalton, the [Adkinson] 911 call . . . took place after the events that were being described had come to an end and the declarant [the victim] had removed himself to a different locale. Under these circumstances, the proffered statements could not rationally be characterized as recitations of an observer’s present sense impressions.” 88 N.Y.2d, at 580 (emphasis in original).

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III. Expert Testimony and Scientific Evidence: Frye, Daubert, and Wesley A. Frye and Daubert Not surprisingly the dramatic advance of scientific knowledge and the respect accorded those who claimed expertise during the period covered by this volume necessarily saw increased attention by the courts to questions concerning the admissibility of expert testimony. A significant difference between the approaches of New York and the Federal courts to admissibility is reflected in People v. Wesley, 83 N.Y.2d 417 (1994), and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Prior to Daubert, the most commonly accepted standard for admissibility was the Frye rule, announced in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), where the Court affirmed a murder conviction and the trial court’s exclusion of lie detector evidence offered by the defendant. The Court agreed with defendant that “ ‘the opinions of experts or skilled witnesses are admissible in evidence in those cases in which the matter of inquiry is such that inexperienced persons are unlikely to prove capable of forming a correct judgment upon it, for the reason that the subject-matter so far partakes of a science, art, or trade as to require a previous habit or experience or study in it, in order to acquire a knowledge of it. . . .’” Id., at 1014. The Court, however, went on to formulate limitations on the admissibility of expert witness testimony and stated what eventually became known as the Frye rule: Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs. Id. (emphasis added)

The Supreme Court in Daubert, supra, held that the Federal Rules of Evidence standard for admissibility of expert evidence was not limited by Frye’s “general acceptance” in the scientific community standard. Nothing in the text of . . . Rule [7028] establishes “general acceptance” as an absolute prerequisite to admissibility. Nor [is there] any clear indication that

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Rule 702 or the Rules as a whole were intended to incorporate a “general acceptance” standard. The drafting history makes no mention of Frye, and a rigid “general acceptance” requirement would be at odds with the “liberal thrust” of the Federal Rules and their “general approach of relaxing the traditional barriers to ‘opinion’ testimony.” . . . Frye made “general acceptance the exclusive test for admitting expert scientific testimony. That austere standard, absent from, and incompatible with, the Federal Rules of Evidence, should not be applied in federal trials. 509 U.S., at 588–89 (citations omitted; emphasis added)

The Court “emphasize[d] that the inquiry envisioned by Rule 702 is . . . a flexible one. Its overarching subject is the scientific validity and thus the evidentiary relevance and reliability—of the principles that underlie a proposed submission.” 509 U.S., at 594–95 (emphasis added).

B. Wesley and the Frye Rule 1. SOME NEW YORK PRE-DAUBERT DECISIONS

New York had adhered to the Frye approach, probably before and certainly after Frye was decided. After Daubert, the Court of Appeals reaffirmed Frye’s general acceptance standard for new or innovative scientific submissions as the rule for New York courts. People v. Wesley, 83 N.Y.2d 417 (1994). Before the Supreme Court’s Daubert decision and the Court of Appeals spoke in Wesley, the rules governing the admissibility of and the weight to be given expert testimony by the trier of fact had been dealt with by the Court of Appeals in a number of cases, representative of which are DeLong v. County of Erie, 60 N.Y.2d 296 (1993); Topel v. Long Island Jewish Center, 55 N.Y.2d 682 (1981) (mem.); People v. Middleton, 54 N.Y.2d 42 (1981); Caprara v. Chrysler Corporation, 52 N.Y.2d 114 (1981); and Tarlowe v. Metropolitan Ski Slopes, Inc., 28 N.Y.2d 410 (1971). DeLong was a unanimous decision prepared by Judge Wachtler, as he then was, which involved the admissibility of expert opinion concerning the monetary value of a housewife’s services. The Court held that “[a]s a general rule the admissibility of expert testimony on a particular point is addressed to the discretion of the trial court. The guiding principle is that expert opinion is proper when it would help to clarify an issue calling for professional or technical knowledge possessed by the expert and beyond the ken of the typical juror.” 60 N.Y.2d, at 307. Topel was a Memorandum Decision which stated that “[w]hile the line between medical judgment and deviation from good medical practice is not easy to draw, we conclude that more is required” to make out a prima facie case against

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a doctor than was presented by plaintiff’s expert testimony. “To hold otherwise on the basis of expert testimony that does not negate the factors . . . on which the attending physician based his judgment is to subject every judgment made by a doctor, no matter what its basis, to the second guess of a jury.” 55 N.Y.2d, at 684. In Middleton, a unanimous opinion prepared by Judge Bernard S. Meyer, the Court concluded that “by failing to challenge the admissibility of the bite mark evidence on Fourth Amendment grounds, defendant [had] waived any objection on that score.” 54 N.Y.2d, at 48. The opinion then went on to address the admissibility of evidence of bite marks. Identification through configuration of and marks upon teeth has long been permitted in New York (Lindsay v. People, 63 NY 143, 152 [1875]). Bite mark evidence, however, requires comparison of impressions made upon a victim’s body with a suspect’s dentition as a means of identifying him as the perpetrator of a crime. Defendant argues that the procedure, while it may be a valid means of excluding suspects from consideration, has not been sufficiently accepted by the scientific community to permit its use as a means of identifying a perpetrator. But the test is not whether a particular procedure is unanimously indorsed by the scientific community, but whether it is generally acceptable as reliable. The techniques employed (photography, freezing of tissue specimens, the taking of dental molds, visual observation) are accepted and approved by the majority of the experts in the field. . . . The reliability of the procedures has, moreover, been accepted by all of the appellate courts that have addressed the issue. . . . It was not error, therefore, for the Trial Judge, without a hearing concerning the scientific principles involved, to hold the evidence generally reliable (People v. Magri, 3 N.Y.2d 562, 566). . . . While the weight of [the] evidence was, of course, for the jury there clearly was foundation for its admissibility. 54 N.Y.2d, at 49–51 (citations omitted)

Caprara, a 4–3 decision written by Judge Jacob D. Fuchsberg, dealt, inter alia, with the question of who may testify as an expert. The Court ruled that the witness’ testimony “that he was not a designer of and had never participated in constructing [ball joints]” did not mean that “he did not have an understanding of ball joints” and “did not necessarily disqualify the witness from testifying on the mechanics and merits of ball joints.” 52 N.Y.2d, at 121 (italics in original). As part of his engineering and automobile accident reconstruction background, Burrill, who had supplemented his undergraduate degree in

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mechanical engineering by completing graduate studies at Rensselaer Polytechnic Institute, had served as consultant to almost every major American automotive manufacturer. In addition, even gainsaying the formal training he enjoyed, his practical experience included actual disassembling and analysis of some 100 ball joints. As may be true, for example, of a knowledgeable music critic who has never written a note, Burrill’s competency could just as well have derived from the real world of everyday use as from that of the laboratory. As the court said in Meiselman v. Crown Hgts. Hosp. (285 NY 389, 398), “[l]ong observation and actual experience, though without actual study [may] qualify a witness as an expert” (see, also, Delair v. Gaudet, 4 D2d 736, 737 [engineer qualified by education and experience to give expert testimony on the adequacy of the installation of a heating plant, despite having never installed one]). Accordingly, it was well within the province of the trial court, the one entrusted with the primary responsibility to pass on a[n] expert’s qualification, to have found him qualified. 52 N.Y.2d, at 121–22 (footnote omitted)

In Tarlowe, a 5–2 decision, Judge Charles D. Breitel stated: The principal issue is whether there was a failure of proof because plaintiff’s expert did not develop the technical foundation for his opinion. . . . An expert need not give technical reasons or bases for his opinion on direct examination. The matter may be left for development on cross-examination. If the facts in the hypothetical question are fairly inferable from the evidence, the expert may state his opinion without further foundation. The extent to which he elaborates or fails to elaborate on the technical basis supporting the opinion affects only the weight of the expert testimony. 28 N.Y.2d, at 412, 414 2. PEOPLE V. WESLEY

Wesley affirmed a murder conviction where the trial court had admitted DNA evidence offered by the prosecution. Judge Smith, in an opinion concurred in by Judges Simons and Bellacosa, affirmed because he found “such evidence [DNA] has been accepted and found reliable by the relevant scientific community and because no error was committed in the circumstances of this case.” 83 N.Y.2d, at 420. Chief Judge Kaye, in an opinion concurred in by Judge Ciparick, 83 N.Y.2d, at 435, contended the reception of the DNA evidence was error, but concurred in the result because that evidence was only a “minor” part of the showing against the defendant and the error was harmless beyond a reasonable

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doubt.9 The Chief Judge’s opinion sought to state the principles “for future cases” out of concern “that the principles governing admission of novel scientific evidence be correctly articulated and applied.” Id. A detailed exposition of the points made by Chief Judge Kaye serves the useful purposes of identifying differences that could and did arise in applying the Frye rule in New York and exploring the policy reasons that New York preferred the Frye rule. Judge Kaye identified points on which the judges unanimously agreed and discussed their disagreements. First, they agreed that “where the scientific evidence sought to be presented is novel, the test is that articulated in Frye v. United States. . . . in essence whether there is general acceptance in the relevant scientific community that a technique or procedure is capable of being performed reliably. . . .” Id. (citations omitted; emphasis added). Second, three inquiries are involved in the consideration of novel scientific evidence. Two are questions that involve admissibility, and they are resolved by the Court after a Frye hearing and a foundational inquiry. The third inquiry is for the jury. It centers on “infirmities in collection and analysis of the evidence,” e.g., chain of custody, which go to weight and not trustworthiness. Id., at 436. a. The Frye Hearing A Frye hearing “asks whether, theoretically, the accepted techniques, when performed as they should be, generate results generally accepted as reliable within the scientific community. Once a scientific procedure has been proved reliable, a Frye inquiry need not be conducted each time such evidence is offered. Courts thereafter may take judicial notice of reliability of the general procedure.” Id., at 436 (emphasis added). For cases involving the Frye hearing: see People v. Mooney, 76 N.Y.2d 827 (1990) (eyewitness testimony; Judge Kaye, dissenting, critical of standards of review and insufficient attention to scientific evidence); People v. Lee, 96 N.Y.2d 157 (2001) (discussion of expert testimony concerning eyewitness evidence); People v. Angelo, 88 N.Y.2d 217 (1996) (polygraph). b. Did the Laboratory Employ Acceptable Methods? “Next, a foundational inquiry must be satisfied before . . . evidence [that has qualified under the Frye hearing] is placed before the jury: in each case the court must determine that the laboratory actually employed the accepted techniques. This foundational inquiry [like the Frye hearing] also goes to admissibility of the evidence, not simply its weight.” People v. Wesley, supra, at 436 (emphasis added). The foundational inquiry and the Frye hearing may be simultaneous, but in Wesley the Frye hearing was held before the DNA samples were acquired; consequently, the foundational hearing was held after the Frye hearing. In any

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event, New York has “always required a foundational inquiry before scientific evidence can be admitted (see, e.g., People v. Middleton, 54 N.Y.2d, at 45 . . .), even after a particular technique has passed out of the ‘twilight zone’ of ‘novel’ evidence that is the subject of Frye and is judicially noticed as reliable (see, People v. Knight, 72 N.Y.2d 481, 487 [radar speed detection]; People v. Campbell, 73 N.Y.2d 481, 485 [blood alcohol content test]; People v. Mertz, 68 N.Y.2d 136, 148 [same]; People v. Freeland, 68 N.Y.2d 699, 701 [same]; Pereira v. Pereira, 35 N.Y.2d 301, 307 [polygraph test used for investigative purposes]).” Id., at 436, note 2. In Wesley, the Chief Judge disagreed with the majority on how the Frye principles were applied. DNA forensic analysis was in its infancy at the time and was not “shown to have been accepted as reliable within the scientific community. Rather, the standard for general acceptance of the new techniques was seen as commensurate with the standards adopted by . . . the commercial laboratory hired to conduct the actual tests and which virtually occupied the field of forensic DNA analysis. Additionally, the hearing court made very clear to the parties in its Frye decision that it considered only the theory of forensic DNA analysis as going to admissibility, and relegated the remaining questions for weighing by the jury, including such foundational inquiries as whether [the commercial laboratory’s] methodology and procedures were adequate to assure the reliability and accuracy of the results.” 83 N.Y.2d, at 436–37. c. Frye Policy: Consensus and Premature Admission of Scientific Evidence Citing cases and other authorities, Judge Kaye focused on the reasons for favoring the more limited approach to admissibility in Frye than that represented by Daubert. She addressed the significance to be assigned to the novelty of a technique and the necessity for not defining the relevant scientific community or field too narrowly. Although newness of a technique alone is not sufficient reason for rejecting it as evidence, newness does create greater responsibility for the Court to avoid having so-called scientific evidence prematurely affect the lives of the parties to a litigation and to avoid the pitfall that the novel scientific tests, rather than guilt or innocence, will become the focus of the litigation. In addition, she warned that premature admission short-circuits debate necessary to determination of the accuracy of a technique. She cited examples of scientific tests that were subsequently found wanting after they had been admitted in criminal trials. e.g., subsequent discovery of the inaccuracy of the paraffin test, the gunpowder detection test. See, 83 N.Y.2d, at 437, note 4. She emphasized Frye’s reliance on consensus and warned against defining the relevant scientific field too narrowly,

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with the result that the judgment of the scientific community would devolve into the opinion of a few experts. 83 N.Y.2d, at 438. Controversy and debate in the relevant scientific community were essential ingredients of the Frye approach to admissibility. The point of noting controversy about the reliability of the forensic technique is not for our Court to determine whether the method was or was not reliable in 1988, but whether there was consensus in the scientific community as to its reliability. The Frye test emphasizes “counting scientists’ votes, rather than on verifying the soundness of a scientific conclusion.” . . . Where controversy rages, a court may conclude that no consensus has been reached. [In Wesley], however, the problem was more subtle: absence of controversy reflected not the endorsement perceived by our colleagues, but the prematurity of admitting this evidence. Insufficient time had passed for competing points of view to emerge. 83 N.Y.2d, at 439 (citations omitted; emphasis added)10

C. Role of the Trial Judge: Eyewitness Testimony In the first instance, it is of course the trial judge who determines whether scientific evidence is admissible and whether an expert may testify; and in the event of an appeal, there remains the question of the standard for review of the trial judge’s determination.11 In People v. Mooney, 76 N.Y.2d 827 (1990), the Court considered an appeal based primarily on defendant’s contention that the trial judge erred in refusing to permit defendant’s proffered expert to testify “concerning factors that may influence a witness’s perception and memory and affect the reliability of identification testimony. The object of the proposed testimony was to discredit the testimony of the four robbery victims who had identified defendant as the perpetrator.” 76 N.Y.2d, at 828. In an eleven-line opinion, the Mooney majority held that it did not have to decide whether such evidence was legally admissible, because “the trial court based its decision to exclude the testimony in the exercise of its sound discretion to which the admission of such evidence would, if legally admissible at all, be entrusted.” Id. (emphasis added). In a dissenting opinion concurred in by Judge Alexander, Judge Kaye disagreed with the majority on several significant points and described a basis for reviewing the trial court’s exercise of discretion and for determining how expert evidence on eyewitness testimony should be assessed. While she agreed that the Court’s powers of review are limited with respect to the trial judge’s exercise of discretion, she nevertheless contended:

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The court’s cursory treatment of defendant’s claim has two effects, both undesirable. First, it signals such a broad hands-off approach to the purported exercise of trial court discretion as to render any right of review virtually meaningless. Second, and perhaps even more damaging, it sanctions an unwillingness to deal realistically with the concerns engendered by the growing body of research concerning the reliability of eyewitness identifications. 76 N.Y.2d, at 828

Judge Kaye concluded that there were questions of law before the Court that did not justify dismissal based on the limits on reviewing the trial judge’s exercise of discretion. First, she found that there were significant questions of law before the Court as to whether the Frye test was applicable, and, if so, whether it had been properly applied. Second, Judge Kaye found error as a matter of law in the trial judge’s conclusion that expert testimony would be cumulative, because defense crossexamination of witnesses and other circumstances would be sufficient to present the possible deficiencies of eyewitness testimony. She concluded: “While a judgment regarding whether testimony would be cumulative in a particular case might well be a discretionary one, in this case there was absolutely nothing in the record to support that conclusion.” 76 N.Y.2d, at 832. Third, she rejected the trial judge’s conclusion that because the possible existence of deficiencies in eyewitness testimony was not beyond a jury’s “ken,” expert testimony would usurp the province of the jury. Judge Kaye pointed out that the Court had rejected the “usurping the province of the jury” argument as a reason for excluding expert testimony. Moreover, she said there were significant studies that demonstrate that general awareness of laypersons about eyewitness testimony was the subject of common misconceptions. In addition, even if the frailties of eyewitness testimony are not beyond a jury’s ken, she noted that the Court has “repeatedly upheld admission of expert testimony for the purpose of clarifying an area of which the jurors have a general awareness.” Indeed, “[m]ost recently, . . . [the Court had held] that admission of general psychological evidence about ‘rape trauma syndrome’ was proper, where the testimony was introduced ‘to dispel misconceptions that jurors might possess’ (People v. Taylor, 75 N.Y.2d 277, 293 [1990]).” 76 N.Y.2d, 832–33. Judge Kaye said that she was not suggesting that a trial court must permit expert testimony on eyewitness identification in every case, or even most cases, in which it is offered. . . . [Even if admissible there is] ample room for trial court exercise of discretion through weighing of such factors as

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the centrality of the identification issue to the particular facts, the existence of other evidence corroborating the identifications, the relevance of the proposed testimony to specific facts of the case at hand, and of course through the trial court’s power to limit the amount and type of evidence presented. . . . [In Mooney] however, the trial court’s preclusion of [the expert] testimony was not the result of such a discretionary assessment of the probative value of the testimony in relation to the facts of this case. Rather, it was based on a mistaken and entirely general legal analysis that this court now erroneously refuses to address. 76 N.Y.2d, at 833 (emphasis added)

People v. Lee, 96 N.Y.2d 157 (2001), again dealt with the question of the trial court’s exercise of discretion in rejecting expert testimony on the deficiencies of eyewitness testimony. Judge Graffeo’s opinion for a unanimous Court summarized New York law on the trial court’s exercise of discretion. As a general rule, the admissibility and limits of expert testimony lie primarily in the sound discretion of the trial court. “It is for the trial court in the first instance to determine when jurors are able to draw conclusions from the evidence based on their day-to-day experience, their common observation and their knowledge, and when they would be benefited by the specialized knowledge of an expert witness” (People v. Cronin, 60 N.Y.2d 430, 433 . . . [1983]). Essentially, the trial court assesses whether the proffered expert testimony “would aid a lay jury in reaching a verdict” (People v. Taylor, 75 N.Y.2d 277, 288 . . . [1990]) In rendering this determination, courts should be wary not to exclude such testimony merely because, to some degree, it invades the jury’s province. As we have previously noted, “[e]xpert opinion testimony is used in partial substitution for the jury’s otherwise exclusive province which is to draw ‘conclusions from the facts.’ It is a kind of authorized encroachment in that respect” (People v. Jones, 73 N.Y.2d 427, 430–431 . . . [1989][internal citation omitted] [quoting People v. Cronin, supra, . . . ]). 96 N.Y.2d, at 162

In sustaining the trial court’s rejection of expert testimony, Judge Graffeo recognized that even if jurors may be generally aware of “factors relevant to the reliability of eyewitness observation and identification, it cannot be said that psychological studies regarding the accuracy of an identification are within the ken of the typical juror . . . [cf. Judge Kaye’s dissent in Mooney, supra]. Moreover, in recognition that expert testimony of this nature may involve novel scientific theories and techniques, a trial court may need to determine whether the proffered

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expert testimony is generally accepted by the relevant scientific community (see, People v. Wesley, 83 N.Y.2d 417 [1994, supra]. . . .” 96 N.Y.2d, at 162. Although the hearing court had failed to exercise its discretion and had committed error when it summarily determined that the expert testimony was per se inadmissible, subsequently the trial court dealt with defendant’s renewed request that the expert testimony be received. When the trial court denied the request, it had identification testimony and corroborating evidence before it; consequently, “[g]iven the particular facts and circumstances of [Lee], [the Court] could not say the trial court’s denial of defendant’s motion constituted an abuse of discretion.” 96 N.Y.2d, at 163. Cf., Judge Kaye’s dissent in Mooney, supra.

IV. Propensity and Character: Evidence of Uncharged Crimes and Bad Acts During the period covered by this volume, the Court of Appeals dealt extensively with issues concerning the admissibility of evidence of a defendant’s criminal acts and other bad acts that are not the subject of the charge in the pending case. Two basic problems are involved: (1) the admissibility of evidence of uncharged crimes and other bad acts for the purpose of proving the elements of the crime charged in the pending proceeding; and (2) the admissibility of such evidence for the purpose of attacking the credibility of the defendant as a witness.

A. Evidence Relevant to an Element of the Charge People v. Lewis, 69 N.Y.2d 321, 325 (1987) (citations omitted; emphasis added), contains a relatively recent statement of the basic principles. All relevant evidence is admissible unless its admission violates some exclusionary rule. . . . Evidence is relevant if it has any “tendency in reason to prove any material fact.” . . . Evidence of a defendant’s prior uncharged crimes may have some probative value; indeed, Wigmore contends that such evidence is objectionable because juries attribute too much significance to it. . . . For that reason it is usually excluded because it may (1) require defendant to meet a charge of which he had no notice; (2) raise collateral issues and direct the attention of the jury away from the crime charged; or (3) result in the proof of the prior offenses being taken by the jury as justifying a condemnation of the defendant irrespective of his guilt of the offenses charged. . . . The general rule is that evidence of prior uncharged crimes may not be offered to show defendant’s

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bad character or his propensity towards crime but may be admitted only if the acts help establish some element of the crime under consideration or are relevant because of some recognized exception to the general rule.

In an often cited and perhaps now classic opinion, People v. Molineaux, 168 N.Y. 264 (1901), the Court of Appeals addressed the question of when evidence of defendant’s uncharged crimes and other bad acts are admissible to prove an element of the crime in a pending case. Since Molineaux, the basic development of the law in New York on this subject has been the product of Court of Appeals decisions. In addition, the Court created procedures for determining admissibility, and the Legislature enacted provisions that, in large measure, reflected or responded to judicial holdings. Molineaux specifically identified intent, motive, knowledge, common scheme or plan, and identity of the defendant as matters on which evidence of uncharged crimes might be relevant. It also recognized that a statement of the issues on which uncharged crimes were admissible could not be made with “categorical precision.” People v. Vails 43 N.Y.2d, 364, 368 (1977), characterized the list in Molineaux as “merely illustrative,” and People v. Santarelli, 49 N.Y.2d 241, 248 (1980), characterized it as “not exhaustive.” Vails held that it was not error to receive evidence of statements during the course of a drug deal with a police officer, Molfetta, which referred to defendant’s prior drug deals. Vails rejected the defendant’s contention that the trial court erred in admitting evidence of the prior transaction because the process of buying and making preparations for the sale was inextricably interwoven into [the sale which was the subject of the charged crime]. . . . Reference to the prior sale was intrinsic to the bargaining between defendant and Officer Molfetta. It concerned the price to be paid and the quality of the drugs, providing highly probative evidence relating directly to the crime charged. When the conversation is so inextricably interwoven with the crime charged in the indictment it may be received in evidence . . . where, as in this case, the value of the evidence clearly outweighs any possible prejudice. 43 N.Y.2d, at 368–69

Santarelli provides a good example of the Court’s concern with the use of uncharged crimes and bad acts as prejudicial evidence of propensity even where the evidence might be marginally admissible. In Santarelli, the prosecution sought to rebut defendant’s claim of paranoid delusion by establishing that he

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had a personality disorder—“explosive personality”—that did not rise to the level of insanity as a defense, and the Court recognized that the prosecution could rebut defendant’s insanity defense with evidence of conduct, including criminal conduct, that was probative of defendant’s sanity. The prosecution offered many instances of defendant’s violent acts as well as some indication of his association with organized crime. While the Court recognized that the prosecution was entitled to establish its “explosive personality” explanation of defendant’s conduct, it held that the trial court had committed an error when it admitted such evidence in Santarelli, because the Trial Judge failed to evaluate with sufficient particularity whether each piece of evidence offered by the People was actually relevant and material to their “explosive personality” theory. . . . In deciding whether to admit evidence of prior criminal or immoral conduct in rebuttal to an insanity claim, the trial court must take special care to ensure not only that the evidence bears some articulable relation to the issue, but also that its probative value in fact warrants its admission despite the potential for prejudice. 49 N.Y.2d, at 249–50.

Consequently, while some of the evidence was admissible, the failure to make the necessary specific evaluation created the unacceptable level of danger that the jury would rely on the evidence of other misconduct as proof of propensity. The Court has rejected the “amorous design” basis for receiving evidence of uncharged sexual crimes, which would permit reception of other uncharged sexual offenses on the theory of defendant’s propensity to commit sexual offenses. See People v. Hudy, 73 N.Y.2d 40 (1988); Coopersmith v. Gold, 89 N.Y.2d 957 (1997). In contrast, Federal Rules of Evidence 412–14 take a contrary approach. Where propensity is in issue, evidence of uncharged crimes would be admissible if relevant to prove propensity. In People v. Calvano, 30 N.Y.2d 199 (1972), the Court held that evidence of uncharged crimes will be admissible where defendant opens the door by raising the affirmative defense of entrapment under § § 40.00, 40.05 and thereby placing in issue his disposition to commit the charged crime. The Court of Appeals has held that a defendant may not rely on the aggressive propensity of the victim of a homicide or assault as evidence the victim acted in conformity with that character trait. Cf., the contrary position of Federal Rule 404(a)(2). However, People v. Rodawald, 177 N.Y. 408 (1904), held that a defendant may offer proof of the victim’s general reputation for violence in support of a claim of self-defense if, at the time of the claimed conduct by the

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defendant, the defendant was aware of the victim’s reputation. Rodawald also rejected proof of the victim’s specific acts of violence offered for the same purpose. However, the Court modified Rodawald when People v. Miller, 39 N.Y.2d 543 (1976), held that the victim’s specific acts of violence known to defendant were admissible as evidence that goes solely to defendant’s state of mind. In re Robert S., 52 N.Y.2d 1046 (1981), the Court, over a sharp dissent by Judge Fuchsberg, refused to further broaden Rodawald when it held that proof of the victim’s specific acts of violence were inadmissible when the defendant was not aware of the victim’s prior conduct. Cf., People v. Goetz, 68 N.Y.2d. 96, 113–14 (1986) (even if defendant’s knowledge of victim’s reputation or prior acts establishes defendant’s actual belief that it was necessary to defend himself by the use of force, the self-defense justification defense under Penal Law § 35.15 also requires establishing that defendant’s belief was reasonable). While Molineaux recognized that even when evidence of an uncharged crime is relevant to establishing an element of the charged crime, it may not be received unless its probative value exceeds the potential for prejudice. Judge Meyer addressed the factors to be taken into account in balancing probative value against prejudice in Molineaux cases in People v. Ventimiglia, 52 N.Y.2d 351 (1981). Efforts to quantify the degree of probativeness necessary for admission establish that the evidence must be of more than “slight value” . . . , but the authorities are not in agreement concerning whether it must be “highly probative” . . . , simply “directly probative” . . . , or “substantially relevant,” phrases which are themselves not entirely distinguishable. In final analysis the process is one of balancing in which both the degree of probativeness and the potential for prejudice of the proffered evidence must be weighed against each other. . . . Factors which play a part in measuring probative value are “the degree to which the evidence persuades the trier of fact that the particular fact exists and the [logical] distance of the particular fact from the ultimate issues of the case.” . . . Further, as the Supreme Court of California noted: “On the issue of probative value, materiality and necessity are important. The court should not permit the admission of other crimes until it has ascertained that the evidence tends logically and by reasonable inference to prove the issue upon which it is offered, that it is offered on an issue material to the prosecution’s case, and is not merely cumulative.” Important in the weighing process will also be how the evidence comes into the case, that is, whether at the instance of the People initially, or in rebuttal to a defense offered by defendant. 52 N.Y.2d, 359–60 (citations omitted)

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Judge Meyer’s opinion also set out for future cases what has become known as the Ventimiglia hearing, a procedure for determining admissibility. The object of the procedure is to avoid the danger that, without some protective process, the jury will become aware of the other crime’s evidence when it is offered by the prosecution and that even a successful objection by the defense would be too late to avoid prejudice to the defendant. The Court placed the burden on the prosecution to obtain a ruling on admissibility prior to placing the defendant in danger of undue prejudice. Judge Meyer wrote: Whether some time prior to trial, just before the trial begins or just before the witness testifies will depend upon the circumstances of the particular case, but at one of those times the prosecutor should ask for a ruling out of the presence of the jury at which the evidence to be produced can be detailed to the court, either as an offer of proof by counsel or, preferably, by presenting the live testimony of the witness. . . . The court should then assess how the evidence came into the case and the relevance and probativeness of, and necessity for it against its prejudicial effect, and either admit or exclude it in total, or admit it without the prejudicial parts when that can be done without distortion of its meaning. . . . 52 N.Y.2d, at 361–62 (citations omitted; emphasis supplied)

The Court has recognized that defendant has a right to be present at Ventimiglia hearings and at related sidebars. People v. Spotford, 85 N.Y.2d 593 (1995). However, Spotford also held that the right to be present at the hearing could be waived, and where only a purely legal issue is the subject of the sidebar, the Court held there was no mandated right for the defendant to be present because his presence to determine a purely legal issue would have been “useless.” People v. Rodriguez, 85 N.Y.2d 586 (1995) (sidebar issue was whether on direct examination the door was opened so as to permit cross-examination on the underlying facts of another crime). As with other determinations concerning the admissibility of evidence, whether evidence of an uncharged crime should be received is a question for the trial judge. In People v. Robinson, 68 N.Y.2d 541 (1986), a case involving identity, the Court stated and held that “a Trial Judge who admits evidence of an uncharged crime on the issue of identity on less than clear and convincing proof of both a unique modus operandi and of defendant’s identity as the perpetrator of the crime abuses his discretion as a matter of law.” 68 N.Y. 2d, at 549–50 (emphasis added). Moreover, where identity is “conclusively” established, the

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evidence of other crimes offered for that purpose is inadmissible. 68 N.Y.2d, at 485.12 It should be noted that this approach differs from that of the Supreme Court under the Federal Rules of Evidence, decided two years later. In Huddleston v. United States, 485 U.S. 601 (1988), the Supreme Court rejected both the “preponderance of evidence” and the “clear and convincing” standard for the trial court’s determination of admissibility under Rule 404(b) of similar crimes. The Court stated that the trial “court simply examines all the evidence in the case and decides whether the jury could reasonably find the conditional fact . . . by a preponderance of the evidence.” 485 U.S., at 690.

B. Impeachment of Defendant as a Witness: Prior Convictions and Bad Acts People v. Sandoval, 34 N.Y.2d 371 (1974), approved the lower court’s provision of a procedure for the trial court, in advance of trial, determining whether the prosecution could use defendant’s prior convictions or other bad acts to impeach defendant’s credibility as a witness. Obviously, the determination would be a factor in defendant’s decision whether or not to testify. In 1987, the Legislature affirmed the Sandoval principle when it enacted Criminal Procedure Law § 240.43. The provision gives the defendant the power to require the prosecution prior to jury selection to reveal to the defense all specific instances of a defendant’s prior uncharged crimes or vicious or immoral conduct of which the prosecution has knowledge and intends to use to impeach the defendant’s credibility. The Sandoval opinion placed the burden on “the defendant to inform the court of the prior convictions and misconduct which might unfairly affect him as a witness in his own behalf.” 34 N.Y.2d, at 378. § 240.43 does not require defendant to specify the possibly impeaching conduct for the Court’s ruling, except defendant must specify prior convictions or pending charges. The provision is basically a discovery device triggered by defendant’s request that the prosecution disclose information on which it intends to rely and eliminates the burden placed on defendant by the original Sandoval formula to identify his own prior bad acts that are not or have not been the subject of formal criminal proceedings.13 Sandoval provided a basis for weighing factors relevant to determining whether evidence should be admitted for the purpose of attacking the credibility of the defendant as a witness. Evidence of prior specific criminal, vicious or immoral conduct should be admitted if the nature of such conduct or the circumstances in which it

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occurred bear logically and reasonably on the issue of credibility. Lapse of time, however, will affect the materiality if not the relevance of previous conduct. The commission of an act of impulsive violence, particularly if remote in time, will seldom have any logical bearing on the defendant’s credibility, veracity or honesty at the time of trial. Further, proof of such a crime may be highly prejudicial and inadmissible when it “has no purpose other than to show that a defendant is of a criminal bent or character and thus likely to have committed the crime charged.” . . . To the extent, however, that the prior commission of a particular crime of calculated violence or of specified vicious or immoral acts significantly revealed a willingness or disposition on the part of the particular defendant voluntarily to place the advancement of his individual self-interest ahead of principle or of the interests of society, proof thereof may be relevant to suggest his readiness to do so again on the witness stand. A demonstrated determination deliberately to further self- interest at the expense of society or in derogation of the interests of others goes to the heart of honesty and integrity. . . . Commission of perjury or other crimes or acts of individual dishonesty, or untrustworthiness (e.g., offenses involving theft or fraud, bribery, or acts of deceit, cheating, breach of trust) will usually have a very material relevance, whenever committed. . . . From another aspect, cross-examination with respect to crimes or conduct similar to that of which the defendant is presently charged may be highly prejudicial, in view of the risk, despite the most clear and forceful limiting instructions to the contrary, that the evidence will be taken as some proof of the commission of the crime charged rather than be reserved solely to the issue of credibility. Thus, in the prosecution of drug charges, interrogation as to prior narcotics convictions (unless proof thereof is independently admissible) may present a special risk of impermissible prejudice. . . . On the other hand, proof of prior convictions of perjury or other crimes of individual dishonesty should usually be admitted on trial of another similar charge, notwithstanding the risk of possible prejudice, because the very issue on which the offer is made is that of the veracity of the defendant as a witness in the case. In weighing prejudice to the defendant’s right to a fair trial, an important consideration may be the effect on the validity of the fact-finding process if the defendant does not testify out of fear of the impact of the impeachment testimony for reasons other than its direct effect on his credibility—as where the defendant would be the only available source of material testimony in support of his defense. 34 N.Y.2d, at 377–78 (emphasis added).

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The question of the exercise and appellate review of judicial discretion in balancing prejudice against probative value under Sandoval was extensively addressed in People v. Walker, 83 N.Y.2d 455 (1994), where the trial court decided a Sandoval motion and held that the prosecution could refer to defendant’s two prior felony and seventeen prior misdemeanor convictions on crossexamination of defendant. The trial court also “held that the People would be able to inquire about their number and dates but would not be permitted to allude to the underlying facts.” 83 N.Y.2d, at 458. The defendant elected not to testify, was convicted by a jury and appealed to the Appellate Division which affirmed the conviction. The Appellate Division, while affirming, did note that the trial court “would have been more circumspect in its Sandoval obligation if it had limited the number of prior convictions that the People could use on cross-examination.” The Court of Appeals, while agreeing that the trial court could have been “more discriminating, . . . [found] no reason to upset the exercise of discretion.” 83 N.Y.2d, at 458. Writing for a unanimous Court, Judge Titone said: [I]t must be stressed that “in the usual case, appellate review of the exercise of discretion by the trial court . . . ends in the intermediate appellate court. . . . The use of prior bad acts for impeachment of a testifying defendant “is ‘largely, if not completely’ a discretionary determination for the trial courts and fact-reviewing intermediate appellate courts, and . . . generally no further review by this Court is warranted” (People v. Mattiace, 77 N.Y.2d 269, 274, quoting People v. Shields, 46 N.Y.2d 764, 765). . . . Because the trial courts have inherent power to control the scope of cross-examination and the use of prior bad acts is a generically accepted practice in that context, this Court will intervene only where “the trial court ha[s] either abused its discretion or exercised none at all.” . . . Here, the record does not indicate a failure by the trial court to balance the relevant factors. To the contrary, the court’s decision, which permitted inquiry about each of defendant’s prior convictions but forbade reference to the underlying criminal acts, reflects sensitivity to the particular prejudice that may result when a jury is made aware of the fact that the defendant has previously committed crimes that are similar to the charged crime. . . . That the number of prior convictions ruled admissible was large and that some of those prior convictions were remote in time are matters of substance that may properly be considered by the trial court but are not appropriate bases for this Court to second-guess the trial court’s conclusion. . . . Our law does not require “the application of any particular balancing process” in

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Sandoval determinations . . . and there are no per se rules requiring preclusion because of the age, nature and number of a defendant’s prior crimes. . . . Similarly, an exercise of a trial court’s Sandoval discretion should not be disturbed merely because the court did not provide a detailed recitation of its underlying reasoning . . . particularly where, as here, the basis of the court’s decision may be inferred from the parties’ arguments. . . . Distilled to its essentials, defendant’s present appellate claim is really nothing more than a disagreement with the ultimate outcome of the trial court’s discretionary balancing determination. Such a disagreement does not furnish a cognizable ground for intervention by this Court, which is to resolving questions of law. . . . [The Court went on to hold there was no error in permitting cross-examination about defendant’s many aliases]. 83 N.Y.2d, at 458–60 (citation omitted)

It should be noted that defendant in Walker did not testify. The Supreme Court in Luce v. United States, 469 U.S. 38 (1984), decided under the Federal Rules of Evidence that it would not review a trial court’s refusal to bar the use of prior acts and convictions unless the defendant had testified at trial. Although the Court of Appeals has not dealt directly with this issue, defendant’s failure to testify did not act as a barrier to review the Sandoval questions in Walker, decided after Luce, or in People v. Williams, 56 N.Y.2d 236 (1982), before Luce. There were several other decisions of note by the Court during the period covered by this volume that dealt with the impeachment of the defendant witness. In People v. Betts, 70 N.Y.2d 289 (1987), a unanimous Court held that the defendant simply by taking the stand did not waive his privilege against selfincrimination with respect to questions concerning uncharged crimes asked on cross-examination for the purpose of attacking defendant’s credibility as a witness. People v. McGee, 68 N.Y.2d 328 (1968), addressed the problem presented by a joint trial where a defendant was permitted to attack the credibility of a codefendant by cross-examining him about prior crimes or bad acts. The Court concluded that a defendant should not have his right of confrontation limited. The Court pointed out that the problem could have been avoided by severance of the trials of the codefendants. People v. Ocasio, 47 N.Y.2d 55 (1979), held that Sandoval protections applied only to the defendant as a witness, not to witnesses generally. Ordinarily, the cross-examiner is bound by a witness’s response to questions concerning prior bad acts directed at attacking his credibility. However, CPL § 60.40 permits independent proof of prior convictions if the witness denies there had been a prior conviction of an offense. People v. Gray, 34 N.Y.2d 903

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(1974), affirming 41 A.D.2d 125 (3d Dept. 1973), held that the use of the term “offense” in CPL § 60.40 permitted independent proof of conviction of an “offense” as defined in Penal Law § 10.00, which includes crimes, misdemeanors, and violations. Gray involved the offense of “harassment.”

V. Priest-Penitent Privilege CPLR § 4505 provides that “[u]nless the person confessing or confiding waives the privilege, a clergyman, or other minister of any religion or duly accredited Christian Science practitioner, shall not be allowed [to] disclose confession or confidence made to him in his professional character as spiritual advisor.” The Court has considered that provision or its predecessor in People v. Shapiro, 308 NY 453 (1955); Matter of Keenan v. Gigante, 47 N.Y.2d 160, cert. denied 444 U.S. 887 (1979); People v. Carmona, 82 N.Y.2d 603 (1993); and Lightman v. Flaum, 97 N.Y.2d 128 (2001). Gigante ruled that disclosure by the priest that he had contacted officials of the Department of Corrections in an attempt to assist an inmate in obtaining entrance to a work-release program was outside the sphere of confidentiality and, therefore, could not be said to fall within the sanctuary of the priestpenitent privilege. Lightman held that as a matter of law, CPLR 4505 does not impose a fiduciary duty of confidentiality upon members of the clergy which subjects them to civil liability for the disclosure of confidential communications. Gigante and Lightman are dealt with at length in chapter 11 (Religion). The Shapiro opinion, which dealt with attorney-client privilege but also discussed the “confessor and clergyman” provision of the Civil Practice Act, stated that “[s]uch statutes and decisional law express a long-standing public policy to encourage uninhibited communication between persons standing in a relation of confidence and trust.” The Carmona decision was rendered by a unanimous Court, but three of the judges concurred in the result. in a separate opinion. The four-judge opinion by Judge Titone discussed the basic reasons for recognizing the privilege and concluded that where, as in this case, the statement to the clergy “had been initiated for the purpose of obtaining spiritual guidance and solace,” at 610, the statements were privileged. Carmona noted that the defendant had confessed to two clergymen that he had killed someone and had been advised by the clergyman to turn himself in. Carmona did turn himself in; and, without benefit of counsel, he told the police that he had made statements to the clergy and told the police the contents of those statements. The majority concluded that Carmona had not waived the clergy-penitent privilege when he

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spoke to the police, and moreover his right to counsel had been violated. The majority ruled, however, that the error in admitting the statements and finding that the privilege had been waived was harmless in view of the virtually air-tight circumstantial evidence of defendant’s guilt. The concurring opinion by Judge George Bundy Smith took issue on two grounds with the majority’s conclusion that Carmona had not waived the privilege. The overriding thrust of Judge Smith’s position was that Carmona acted contrary to the very essence of the privilege by his voluntary conduct in discussing the subject matter of the purportedly confidential communication with third persons. In addition, however, Judge Smith also noted that implicit in the majority’s position must be an untenable finding that defendant was lying when he denied at trial that he had confessed the killing to the clergymen.

19. Conflict of Laws

I. Statutory Provisions Sections 5–1401 dealing with choice of law and 5–1402 dealing with choice of forum were added to the General Obligations Law by Chapter 421 of the Laws of 1984. Section 5–1401 applies to a transaction covering in the aggregate not less than $250,000, including one otherwise covered by § 1–105 of the Uniform Commercial Code, and permits the parties to agree that the law of New York shall govern their rights and duties in whole or in part “whether or not such contract, agreement or undertaking bears a reasonable relation to this state.” It exempts, however, any contract, agreement or undertaking (a) for labor or personal services, (b) relating to any transaction for personal, family or household services, or (c) to the extent provided to the contrary in U.C.C. § 1–105(2). Section 5–1402 directs that, notwithstanding any act which limits or affects the right to maintain an action or proceeding, an action or proceeding may be maintained against a foreign corporation, nonresident, or foreign state if the action or proceeding relates to a contract, agreement, or undertaking for which a choice of New York law has been made in whole or in part pursuant to § 5–1401 and which is a contract, agreement or undertaking ,relating to a transaction covering in the aggregate not less than $1,000,000 and in which the foreign corporation agrees to submit to the jurisdiction of New York courts. Chapter 421 also amended CPLR 327 by adding subdivision (b) providing that an action shall not be stayed or dismissed on the ground of inconvenient forum if it concerns a contract, agreement, or undertaking to which GOL

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§ 5–1402 applies and the parties have agreed that New York law shall govern their rights or duties in whole or in part. Although the effective date of Chapter 421 was July 19, 1984, its subdivision 3 expressly provided that it “shall apply to contracts entered into after the effective date hereof and shall apply to contracts entered into on or before the effective date hereof in connection with any action or proceeding commenced on or after the effective date hereof.” In addition, the Memorandum of the Legislative Representative of the City of New York seeking approval of the chapter noted that it modified limitations in various statutes “to permit foreign corporations or non-residents to be sued . . . [when] the defendant agrees to submit to the jurisdiction of the New York courts and which either (i) provides that New York law is to govern in whole or in part or (ii) has as a party a person with significant New York contracts [sic].” Notwithstanding that § 5–1401 applies whether or not the transaction bears a reasonable relation to New York, no case by a New York court construing the statute as required by the provision has been found and the cases decided by Federal courts involving the section have each found a sufficient connection of the parties to New York to give it diversity jurisdiction without reference to the statute. See Lehman Brothers Commercial Corp. v. Minimetals International Non-Ferrous Metals Trading Corp., 179F. Supp.2d 118 (S.D.N.Y. 2000) and Hanley, “Enforcing Governing Law Clauses in Contracts,” NYLJ, January 18, 2001, p. 1 col. 1 (discussing the Federal cases); see also Haig, Commercial Litigation in New York State Courts, § 11.3(b); Herzog, “1984 Conflicts of Laws,” 36 Syracuse Law Rev. 119 (1985); and Kilbourn and Winn, “The Rules of Construction in Choice-of-Law Cases in New York,” 62 St. John’s Law Rev. 243 (1988). The Kilbourn-Winn article points out that UCC § 1–105(1) and Estates, Powers and Trust Law § 7–1.10 empower the parties to adopt a choiceof-law clause (id., at 264, n. 156) and concludes (id., at 268) that Because of the dearth of simple and predictable rules as to applicable law, parties to an agreement should have the right to agree on the applicable law. In cases where the parties have agreed to another jurisdiction’s law, New York courts should follow the reasonable relationship test articulated by the court of appeals in A. S. Rampell, Inc. v. Hyster Co. [3 N.Y.2d 369 (1957)]. In cases in which the parties have agreed that New York law should govern, New York courts should sustain their intent by reason of the strong public policy expressed in the General Obligations Law. In so doing, New York courts will be able to reduce the age-old confusion which so often prevails in the area of conflict of laws.

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II. As Developed by the Court of Appeals A. The Basic Theory The most striking things about the Court’s conflict of laws jurisprudence are the varying stages through which it developed and the many different fields of law in which it developed. Two cases, Rubin v. Irving Trust Co., 305 N.Y. 288 (1953), and Auten v. Auten, 308 N.Y. 155 (1954), noted that New York decisions evidenced a number of different approaches to the question what law should be applied to a contractual transaction with elements in different jurisdictions (308 N.Y., at 159–60) and that the distinction in prior cases based on whether a statute was procedural or substantive turned on “nebulous legal conclusions” (305 N.Y., at 298). Both relied on the center of gravity or grouping of contacts theory, under which the law of the state with the “most significant contacts” would be applied as a matter of policy (305 N.Y., at 302; 308 N.Y., at 161). Rubin involved an oral contract made in Florida by a New York domiciliary not to change a will. Florida enforced such a contract, but under New York law it was in violation of the statute of frauds. Finding New York contacts most significant and more numerous, the Court applied New York law. Auten concerned an action to recover unpaid installments due under a separation agreement executed by the husband while in New York under a temporary visa, the couple having resided with their children in England for fourteen years before the agreement was executed and the wife having been domiciled there. The Court applied English law, since it had the most significant contacts. Haag v. Barnes, 9 N.Y.2d 554 (1961), found no conflict with New York public policy in a child support contract executed in Illinois and requiring that it be construed under that law. The amount required to be paid was found to be fully protective of the child’s welfare, notwithstanding that the contract was not approved by a New York court as required by Domestic Relations Law § 121. The Court, citing Auten and Rubin, both supra, held that Illinois had the most significant contacts with the matter in dispute and that, regardless of whether the governing law was to be determined under that view or as a matter of the parties’ intention, Illinois law applied. The Court found the center of gravity of the agreement, in light of the more numerous and more substantial Illinois contacts, resided in that state, and because there was no affront to New York public policy, the welfare of the child was fully protected. Kilberg v. Northeast Airlines, 9 N.Y.2d 34 (1961), sought recovery for a wrongful death that resulted from a plane crash that occurred in Massachusetts, where by statute the amount recoverable was limited to $15,000. The Court

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noted that such an action derived from statutes only and that the statute that governed such an action was that of the place of wrong. It held, however, that New York’s public policy as declared in Constitution Article I, § 16 was that the amount recoverable in such an action is not subject to statutory limitation, and that to enforce the Massachusetts’ limitation was so completely contrary to New York public policy that its courts should refuse to do so. Moreover, as a matter of conflicts law, the law of the forum controlled procedure, including remedies and whether an issue is one of substance or procedure. It concluded that “particularly in view of our own strong public policy as to death action damages . . . [it should] treat the measure of damages in this case as being a procedural or remedial question controlled by our own State policies.” 9 N.Y.2d, at 41–42. The four-judge majority opinion concluded by authorizing the plaintiff to amend the cause of action based on the Massachusetts wrongful death statute to seek a judgment without regard to the $15,000 limitation. However, it dismissed the cause of action for breach of contract of safe carriage. Judges Fuld, Froessel, and Van Voorhis concurred in the ruling that the breach of contract cause of action was not maintainable but dissented as to the cause of action based on the Massachusetts wrongful death statute, stating that it was not properly before the Court and was, therefore, beyond its province. Worthy of note, however, is Pearson v. Northeast Airlines, 309 F.2d 553 (2d Cir 1962) (en banc, cert. denied 372 U.S. 912 [1963]), a case involving another passenger who died in the same crash as Kilberg, which held Kilberg to be a proper exercise of the state’s power to develop conflict of laws doctrine and its refusal to apply the $15,000 limitation of recovery a constitutional exercise of such power.

B. As to Tort Law Babcock v. Jackson, 12 N.Y.2d 473 (1963), applied Auten’s most significant contacts test to tort law, which previously had applied, under what was is now referred to as lex locus delicti, but then called the vested rights doctrine, the law of the place where the tort occurred. As the Court, in an opinion by Judge Fuld, reasoned: Comparison of the relative “contacts” and “interests” of New York and Ontario in this litigation, vis-à-vis the issue here presented, makes it clear that the concern of New York is unquestionably the greater and more direct and that the interest of Ontario is at best minimal. The present action involves injuries sustained by a New York guest as the result of the negligence of a New

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York host in the operation of an automobile, garaged, licensed and undoubtedly insured in New York, in the course of a week-end journey which began and was to end there. In sharp contrast, Ontario’s sole relationship with the occurrence is the purely adventitious circumstance that the accident occurred there. .... The issue here, however, is not whether the defendant offended against a rule of the road prescribed by Ontario for motorists generally or whether he violated some standard of conduct imposed by that jurisdiction, but rather whether the plaintiff, because she was a guest in the defendant’s automobile, is barred from recovering damages for a wrong concededly committed. As to that issue, it is New York, the place where the parties resided, where their guest-host relationship arose and where the trip began and was to end, rather than Ontario, the place of the fortuitous occurrence of the accident, which has the dominant contacts and the superior claim for application of its law. Although the rightness or wrongness of defendant’s conduct may depend upon the law of the particular jurisdiction through which the automobile passes, the rights and liabilities of the parties which stem from their guest-host relationship should remain constant and not vary and shift as the automobile proceeds from place to place. 12 N.Y.2d, at 482–83

Oltarsh v. Aetna Insurance Co., 15 N.Y.2d 111, 116, 118 (1965), relying on Babcock and Auten, held Puerto Rico’s statute allowing a direct action to be brought against a tort defendant’s insurer was substantive rather than procedural, that Puerto Rico had the most significant contacts with respect to an accident occurring there, that its statute was not contrary to New York’s public policy notwithstanding that New York had no similar legislation, and that, therefore, an action against the insurer could be brought in New York. Farber v. Smolack, 20 N.Y.2d 198 (1967), applied the reasoning of Babcock to an action involving an accident in North Carolina caused by the negligence of the operator, a resident of New York, who was operating the vehicle with the permission of its owner, a New York resident, to return it from Florida to New York. North Carolina’s statute made proof of registration prima facie evidence that the driver was the agent of the owner and that the use was beneficial to the owner. The New York statute made an owner liable for the negligence of one having permissive use without regard to benefit. Although the New York statute referred to an operator of a vehicle “in this state” the Court held that phrase, based on the legislative his-

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tory, not to be a limitation and concluded that “the locality of the accident itself in North Carolina was the merest lateral chance” (20 N.Y.2d, at 203).1 Guest statutes and vicarious liability enactments gave rise to a number of conflict cases involving personal injury claims. Macey v. Rozbicki, 18 N.Y.2d 289 (1966), concerned an action between two New York residents for injuries suffered in an accident on a road in Ontario. The plaintiff was on a short visit to her sister’s summer home in Canada. Ontario barred actions by a guestpassenger against a host-driver. The Court applied New York law reasoning that “[e]very fact in this case was New York related, save only the not particularly significant one that the particular trip on the day of the accident was between two points in Canada. The important ‘contacts’ here were all with New York State, not Ontario” (18 N.Y.2d, at 292). Tooker v. Lopez, 24 N.Y.2d 569 (1969), after quoting the above sentence from the Macey decision, stated that “[s]ubstituted for a rational choice-of-law rule was a method of decision based on contact counting—a method open to the same criticism of unreasonableness as the earlier lex loci delictus rule. This analysis has been rejected in subsequent opinions.” Tooker was an action brought in New York by the administrator of the estate of a passenger killed in an accident in Michigan while riding in a car owned by the father of the driver and registered and insured in New York. Driver and passenger were both New York domiciliaries and were classmates at Michigan State University. Michigan permitted recovery by a guest only upon a showing of willful misconduct or gross negligence. New York’s compulsory insurance law was, however, intended to protect innocent victims of motor vehicle accidents. The Court held that “[i]f the facts are examined in light of the policy considerations which underlie the ostensibly conflicting laws, it is clear that New York has the only real interest in whether recovery should be granted and that the application of Michigan law ‘would defeat a legitimate interest of the forum state without serving a legitimate interest of any other state.’” In Neumeier v. Kuehner, 31 N.Y.2d 121 (1972), lex loci delictus was, however, held applicable to an accident occurring in Ontario, the plaintiff having failed to show that New York’s connection with the controversy justified displacing that rule. In this case, although the driver was a resident of New York, the guest was a resident of Ontario, where the accident occurred; and its statute provided that the owner or driver of a motor vehicle could not be held liable unless guilty of gross negligence. The basis for the distinction was New York’s lack of interest in protecting a guest domiciled and injured in Ontario from the Ontario statute. 31 N.Y.2d, at 125–26. Croft v. National Car Rental, 56 N.Y.2d 989 (1982), reached a similar conclusion. Craft dismissed an action by the plaintiff, who was

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injured in Vermont while a passenger in a vehicle rented in Canada, who brought the action against the rental company, whose only connection with New York was that it did business in New York and the car was to be returned to its New York office. Even before Neumeier and Croft were decided it was clear from Miller v. Miller, 22 N.Y.2d 12 (1968), however, that the test is not a quantitative grouping of contacts, but the significance of the contacts as they relate to the policies and purpose of the conflicting laws, or, as otherwise stated, the predominant interest in the protection and regulation of the rights of the persons involved. 22 N.Y.2d, at 17, 18. On that basis, Miller applied New York’s unlimited wrongful death statute rather than Maine’s statute, which limited damages to $20,000 to a decedent killed in Maine while riding as a guest in a vehicle owned and operated by Maine residents who thereafter moved to, and were sued in, New York.2 1. AS TO PURPOSES OF THE LAW INVOLVED (PUBLIC POLICY)

The evolution of conflicts law as related to torts would not be complete without discussion of Schultz v. Boy Scouts of America, 65 N.Y.2d 189 (1985); Cooney v. Osgood Machinery Inc., 81 N.Y.2d 66 (1993); Padula v. Lilarn Properties Corp., 84 N.Y.2d 519 (1994); Tanges v. Heidelberg North America, 93 N.Y.2d 48 (1999); and Crair v. Brookdale Hospital, 94 N.Y.2d 524 (2000). The Schultz opinion, 65 N.Y.2d, at 197, noted that prior decisions had rejected indiscriminate grouping of contacts in such cases in favor of interest analysis based upon the purpose of the particular law in conflict. After analyzing the reasons advanced for applying the law of the forum-locus and those supporting application of the law of the common domicile the Court concluded that New Jersey’s charitable immunity statute rather than New York’s contrary statute should be applied, New Jersey being the state of common domicile, notwithstanding that the tort, sexual abuse of a minor, occurred in New York. In so doing, the Court rejected plaintiff’s argument that the New Jersey statute was contrary to New York’s public policy, noting that public policy is to be considered only after the Court has determined, under choice-of-law principles, that the applicable substantive law is not the forum’s law, that the burden of proof was on the party seeking to invoke public policy, and that it is a heavy burden requiring that party to show that to enforce the foreign law would violate some fundamental principle of justice, some concept of good morals, some deep-rooted tradition of the common weal expressed in the state’s constitution, statutes and judicial decisions (65 N.Y.2d, at 202). Public policy criteria differ, however, with the nature of the action. Thus, Intercontinental Hotels Corp. v. Golden, 15 N.Y.2d 9, 13 (1964), held that gam-

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bling debts valid by contract in Puerto Rico and enforceable under its laws would be enforced though illegal in New York. The Court pointed out, however, that Puerto Rico’s statute gave its courts discretion to reduce gambling obligations or even decline to enforce them altogether if the Court found the losses to be “[in an] amount [that] may exceed the customs of a good father of a family,” and stated that a New York court asked to enforce a Puerto Rican gambling debt could properly consider that regulation in deciding whether to enforce the debt. Thereafter in Greschler v. Greschler, 51 N.Y.2d 368, 377 (1980), the Court held that where New York’s public policy would be affected its courts can refuse to recognize the validity of a foreign judgment if enforcement would result in recognition of a transaction that is inherently vicious, wicked or immoral, and shocking to the prevailing moral sense. In Cooney it was argued, on the basis of Allstate Insurance Co. v. Hague, 449 U.S. 302 (1981), that New York’s connection with the action was so tenuous that to apply its law permitting contribution claims against employers rather than Missouri’s statute shielding employers from such claims was in violation of the Federal Constitution because New York lacked sufficient nexus with the case. The Court’s contrary conclusion was based on the facts that defendant, a Missouri corporation, had substantial presence in New York, Osgood was a domiciliary of New York and the tortious conduct at issue in the case arose in New York. Based, however, on the further conflicts factor—protection of the reasonable expectations of the parties—the Court concluded that as the accident having occurred in Missouri, the unavailability of contribution from the employer of the injured plaintiff would more closely comport with the reasonable expectations of both parties in conducting their business affairs. With respect to the public policy argument it stated an even more stringent rule—that resort to public policy “should be reserved for those foreign laws that are truly obnoxious” (81 N.Y.2d, at 79). The Padula case concerned whether New York’s Labor Law Sections 240 and 241 governed an accident that occurred in Massachusetts, which injured the plaintiff, a New York resident who was employed by the defendant, a New York corporation. The Court stated that with respect to tort law, New York used interest analysis, determined by evaluating the facts and contacts relating to the purpose of the law in conflict, and requiring inquiry concerning (1) what are the significant contacts and in which jurisdiction are they located, and (2) whether the purpose of the law is to regulate conduct, or allocate loss. The Court determined that conduct-regulating rules seek to prevent injuries from occurring and that the purpose of the New York Labor Law sections are primarily conduct-regulating and therefore should not be applied to a tort action arising in Massachusetts.

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The Tanges decision involved the applicability of a Connecticut statute governing product liability claims, which provided that no such action could be brought later than ten years from the date the party last parted with possession or control of the product. Plaintiff Tanges was injured by a printing press manufactured by Heidelberg and installed in his employer’s Connecticut plant. Tanges instituted a product liability action in Federal court, which dismissed the action because it was brought more than ten years after the press left the possession and control of defendants. On appeal to the Second Circuit it certified to the New York Court of Appeals the question whether the Connecticut statute barred Tanges’ claim. The Court held that it did. It reasoned that to receive the benefit of the exception in CPLR 202, New York’s borrowing statute, in favor of New York residents required that it determine when the action accrued, that accrual was a substantive concept, that although the Connecticut Supreme Court had held that the statute was procedural, whether it was substantive or procedural was to be decided by New York as the forum court. It reasoned that under New York choice-of-law rules, which the Federal court in a diversity action must apply, limitations are viewed as relating to the remedy rather than the right, that because the Connecticut statute proscribed any product liability action brought later than ten years from the date the party last parted with possession or control of the product, and that the legislative history of the Connecticut statute established the intention to make the section a substantive provision, it barred the action. It noted that the Restatement of Conflict of Laws in § 142 proposed abandonment of the substantive procedural distinction but declined to do so. However, as to when a cause of action accrued within the meaning of CPLR 202, which provides with respect to a cause of action accruing outside of New York that the action cannot be commenced after the time limited by either the laws of New York or the place where the action accrued, the Court in Global Financial Corp. v. Triarc Corp., 93 N.Y.2d 525, 528–529 (1999), rejected plaintiff’s argument based on choice-of-law cases, holding that neither the “interest analysis” test used in tort cases pursuant to Babcock, supra, nor the “grouping of contacts” or “center of gravity” approach used in contract cases, see Auten, supra, is applicable, and that there is no indication that the Legislature intended the term “accrued” to mean anything other than the generally accepted construction applied throughout CPLR Article 2—the time when, and the place where, the plaintiff first had the right to bring the cause of action. The Crair action was brought against the Universities of Maryland and Virginia, which had been involved in the development of the medicine HGH, injection of which resulted in decedent’s loss of stature and ultimate death. As

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to the applicability of the Maryland and Virginia statutes, both of which required as a condition precedent that a notice of claim be filed against a state agency, the Court of Appeals held that neither the Full Faith and Credit Clause nor any other provision of the United States Constitution required application of another state’s laws when they are obnoxious to the foreign state’s policy. The Court found that the requirement of filing a notice of claim with a governmental entity as a condition precedent to suit is not against New York’s public policy. As for the suit against the University of Virginia it was not sufficient that the University had actual, though not formal, notice of the claim, because the Supreme Court of Virginia had held that “actual notice does not obviate [the] duty to strictly comply with the . . . notice provision” of the Act, which under Virginia law must be strictly construed. Therefore, the Virginia and Maryland statutes were properly applied as a matter of comity, which as the Court had held in Ehrlich-Bober & Co. v. University of Houston, 49 N.Y.2d 574, 580 (1980), “is not a rule of law, but one of practice, convenience and expediency.” 2. AS TO PUNITIVE DAMAGES

Finally as to tort law, mention should be made of decisions involving punitive damages awarded in tort cases. As stated in Rocanova v. Equitable Life Assurance Society, 83 N.Y.2d 603, 613 (1994), “a private party seeking to recover punitive damages must not only demonstrate egregious conduct by which he or she was aggrieved, but also that such conduct was part of a pattern of similar conduct directed at the public generally.” Essentially conflicts concerning punitive damages arise in relation to whether an award of such damages is covered by insurance, and New York case law holds that as a matter of public policy it cannot be, because to allow insurance coverage is totally to defeat the purpose of punitive damages. Hartford Accident and Indemnity Co. v. Village of Hempstead, 48 N.Y.2d 218, 227–228 (1979); Public Service Mutual Insurance Co. v. Goldfarb, 53 N.Y.2d 392, 400 (1981); but cf. Biondi v. Beekman Hill House Apartment Corporation, 94 N.Y.2d 659 (2000), holding that Hartford’s rule has been limited by later amendment of the Business Corporation Law to permit indemnification for acts of “good faith” that are reasonably believed to be “in . . . the best interests of the corporation.” That the punitive award has been rendered in another state does not change that policy where the punitive award is sought to be enforced in New York by a New York insured against a New York insurer. Nevertheless, to determine whether such an award must be reimbursed by the insurer, New York courts examine the nature of the claim, including the degree of wrongfulness for which the out-of-state award was made and that state’s law and policy relating to

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punitive damages. However, New York courts need not look behind the out-ofstate award to ascertain whether it conforms to the policy of the out-of-state law. Home Insurance Co. v. American Home Products Corp., 75 N.Y.2d 196, 204–205 (1990); Zurich Insurance Co. v. Shearson Lehman Hutton, 84 N.Y.2d 309 (1994). Moreover, the rule is no different when the insurer improperly refuses a settlement within policy limits, since the insured should not be permitted to take advantage of his own wrong for which the punitive award was made, notwithstanding the insurer is also guilty of a distinct wrong on its part. Soto v. State Farm Insurance Co., 83 N.Y.2d 718 (1994). The strength of New York’s policy against insurance coverage for punitive damages requires the same result even though public policy and governmental interests are taken into account in the grouping of contacts. Zurich Insurance Co., supra, 84 N.Y.2d, at 319. Note, however, that there is an added element when punitive damages are sought for breach of contract. In such a case it must be shown both that the egregious conduct was directed at the plaintiff and also that it is part of a pattern directed at the public generally. New York University v. Continental Insurance Co., 87 N.Y.2d 308, 316 (1995); Rocanova v. Equitable Life Assurance Society, supra, at 613. In tort cases, however, such damages are allowable even though it is not shown that harm was aimed at the public generally. Giblin v. Murphy, 73 N.Y.2d 769, 772 (1988).

C. As to Contract Law The difference in conflicts law between tort law and contracts law is illustrated by Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52 (1995); Zurich Insurance Co. v. Shearson Lehman Hutton, supra; and Matter of Allstate Insurance Co. (Stolarz), 81 N.Y.2d 219 (1993). The Mastrobuono decision involved a contract made in Illinois, which not only provided that it was to be governed by the laws of the State of New York but also authorized arbitration in accordance with the rules of the National Association of Securities Dealers. The Association’s manual stated that “arbitrators can consider punitive damages as a remedy,” but New York law, as declared in Garrity v. Lyle Stuart Inc., 40 N.Y.2d 354 (1976), limited power to award such damages to courts and beyond the province of arbitrators. Mastrobuono held that the Federal Arbitration Act preempted Garrity and that the arbitrator’s award of punitive damages was enforceable under the contract. The Zurich and Allstate decisions point up the difference in conflicts law between insurance as related to contract law, on the one hand, and tort law, on the other. Judge Simons’ Zurich decision noted that “even in contract cases, where grouping of contacts is the primary analytical tool . . . ‘the policies under-

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lying conflicting laws in a contract dispute . . . reflect strong governmental interests, and therefore should be considered’” but that “consideration of governmental interests does not transform the analytical paradigm into one of ‘interest analyses,’ [the Court’s] approach to choice of law questions in tort cases.” Predicated primarily on Zurich’s reasoning the Second Department has held in Eagle Insurance Co. v. Singletary, 279 A.D.2d 56 (2000), that although New York’s Vehicle and Traffic Law § 313 prohibits retroactive cancellation of an insurance policy, placing the burden on the insurer to discover grounds for canceling a policy prior to intervention of the rights of innocent third parties, such rights were not involved in the case in the matter before it. The negligent tortfeasor had been covered by insurance, and the injured party had claimed uninsured motorist coverage under his own policy; therefore the law of Virginia, which does not permit retroactive cancellation by an insurer, was to be applied. The insured had represented his residence and place of garaging his vehicle as Virginia when in fact it was in New York. The Allstate case involved the validity of an offset provision permitting the insurer to reduce underinsurance limits fixed by its policy by the amount collected by the insured from the tortfeasor’s insurer. New York was the site of the accident and the place where both drivers lived. The insurance policy, however, had been sold in New Jersey to a New Jersey insured and covered the driver as an additional insured, though not a party to the contract. New Jersey law prohibited such an offset at the time of the accident, but New York law did not. The Court traced the history of conflicts law through lex loci in tort cases, and as to contracts the law of the place of making or of performance to interest analysis in tort cases and grouping of contacts in contract cases. Allstate found that the significant contacts were in New Jersey where the contract was negotiated, the parties to the contract were domiciled, and the insured vehicle was registered; therefore, the Court held that New Jersey law should be applied. Interest analysis was the basis of the decision in Andover Realty v. Western Electric, 64 N.Y.2d 1006 (1985), a contract case concerning real estate brokers’ commissions. The New York statute specifically exempted real estate brokers from its statute of frauds, but New Jersey’s statute required a written contract with respect to such commissions. The Court held that New Jersey had a paramount interest in its statute of frauds defense not being evaded. The property was located in New Jersey, and both the property owner and the broker were resident in New Jersey. The Court stated that “New York has little, if any, interest to serve here by preferring its lack of a statute of frauds defense.” Interest analysis was also the basis for decision in Istim, Inc. v. Chemical Bank, 78 N.Y.2d 342 (1991), where the Court again reviewed the development of conflicts law in New York, noting that on the basis of the purposes of the

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statutes in conflict and the policies they sought to promote and the facts of the case relating to those purposes, it determined which state had the greater interest in the application of its statute. The case concerned a turnover proceeding brought in a New York court by a New York corporation against a New York law firm seeking a settlement fund located in New York based on judgment in a debt action brought by the New York corporation in New York. The settlement fund had originated in an Illinois lawsuit in which the New York law firm rendered services on which it based its claims of a lien. The Illinois statute required notice to the judgment debtor in the Illinois action, but the Court found that that requirement was intended to benefit the debtor in the Illinois action, not the creditor, and in view of the settlement the statute was irrelevant. The only relevant policy interest, the Court held, was that of New York in having its attorneys fairly compensated.

D. As to Testamentary Contracts An apparent exception as to contracts relates to a contract to make or refrain from altering a will that in Rubin v. Irving Trust, 305 N.Y. 288, supra, at 298, the Court found that, for all practical purposes amounts to a testamentary disposition. Involved was an oral contract made in Florida by a New York domiciliary not to change his will. New York’s statute required that such a contract be in writing, but Florida’s did not. The Court held that the New York statute was “expressive of a deeply rooted policy of the forum with respect to the bequeathing of property or making testamentary provisions by its domiciliaries to which the ordinary rules of choice of law and comity must give way.” Matter of Crichton, 20 N.Y.2d 124 (1967), presented the question whether as to a couple domiciled in New York the right of election should be given the surviving spouse by New York law or whether the community property law of Louisiana, where the decedent’s personal property had been acquired and was located, should be applied. The Court held that resolution of the choice-of-law problem required examination of the contacts of Louisiana and New York for the purpose of determining which had the paramount interest in application of its laws. It concluded that by enacting its right of election statute New York’s Legislature sought to preserve the testator’s right to distribute his property while at the same time providing protection for the surviving spouse. The Court held that New York, as the domicile of the couple, had not simply the dominant interest in application of its laws and policy but the only interest. 20 N.Y.2d, at 134. Matter of Clark, 21 N.Y.2d 478 (1968), dealt with the will of a decedent, domiciled with his wife in Virginia, which provided that it was to be construed under

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the laws of the State of New York. Virginia law permitted the wife to renounce the will and take her intestate share. New York’s statute provided that “testamentary dispositions” be construed by the laws of New York if the testator so elected. The Court held that the widow’s right of election under the Virginia statute was not a testamentary disposition and concluded that the statute which authorized the election of New York law by a nondomiciliary testator “was designed to complement, not frustrate, the policies of sister states with respect to support” (21 N.Y.2d, at 489) and that the law of Virginia as to the widow’s right of election, not that of New York, controlled (id., at 485). Cf. Crichton, supra, re testamentary dispositions.

E. As to Real or Personal Property The governing cases with respect to property rights other than those acquired through a decedent’s estate are James v. Powell, 19 N.Y.2d 249 (1967), Southeast Bank v. Lawrence, 66 N.Y.2d 910 (1985), and Istim, Inc. v. Chemical Bank, supra, 78 N.Y.2d 342 (1991). James held that the validity of a conveyance of an interest in real property is governed by the law of the place where the property is located, see also Istim, Inc., supra, at 347, and both Southeast Bank, supra, at 912 and Matter of Clark, supra, at 487, confirm that, as to personal property (chattels, securities, the right of publicity), the validity of inter vivos transfer is determined by the law of the state where the property is located.

F. Summary In sum, then, the basis for determining which law is to be applied by New York courts when the matter being litigated involves out-of-state contacts may turn upon (a) whether the out-of-state law is substantive or procedural, the determination whether it is substantive being for New York’s courts whatever the foreign state ruling as to the substantive-procedural distinction may have been, (b) whether the New York court finds it expedient as a matter of comity to apply the foreign state’s rule, (c) whether the foreign state’s rule is contrary to New York’s public policy, in which event it will not be applied, or (d) where the interests of the foreign state and those of New York, determined by the significance of the contacts of each with the issues being litigated, show the transaction in question to have been centered.

20. Procedure

I. Res Judicata and Collateral Estoppel A. In a Civil Proceeding Based on Prior Civil Proceeding While earlier cases required mutuality of estoppel before collateral estoppel would be applied, e.g., Glaser v. Huette, 232 A.D. 119, aff’d. no op. 256 N.Y. 686 (1931), that rule has been overturned by the decisions in Israel v. Wood Dolson Company, Inc., 1 N.Y.2d 116 (1956), B.R. DeWitt, Inc. v. Hall, 19 N.Y.2d 141 (1967), and Schwartz v. Public Administrators, 24 N.Y.2d 65 (1969). Those decisions make clear that “the fact that a party has not had his day in court on an issue as against a particular litigant is not decisive in determining whether the defense of res judicata is applicable,” Israel v. Wood Dolson Company, supra, 1 N.Y.2d, at 119 (emphasis in original), and as stated by the Court in Kaufman v. Eli Lilly & Co., 65 N.Y.2d 449, 455–56 (1985): First, the identical issue necessarily must have been decided in the prior action and be decisive of the present action, and second, the party to be precluded from relitigating the issue must have had a full and fair opportunity to contest the prior determination. The party seeking the benefit of collateral estoppel has the burden of demonstrating the identity of issues in the present litigation and the prior determination, whereas the party attempting to defeat its application has the burden of establishing the absence of a full and fair opportunity to litigate the issue in the prior action (citations omitted).

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Whether there has been a full and fair opportunity to contest the prior determination turns on a number of different factors. The DeWitt decision lists (at p. 148) whether the issues as framed by the pleadings in the second action are no broader and no different than those raised in the first lawsuit, whether defendant in the second action offers no reason why he should not be held bound, whether the first action was defended with full vigor and opportunity to be heard, whether the plaintiff in the present action seeking property damages to his vehicle derives his right to recovery from the successful plaintiff in the first action, the operator of the vehicle. The Schwartz opinion by Judge Keating expanded the factors to be considered as follows: A comprehensive list of the various factors which should enter into a determination whether a party has had his day in court would include such considerations as the size of the claim, the forum of prior litigation, the use of initiative, the extent of the litigation, the competence and experience of counsel, the availability of new evidence, indications of a compromise verdict, differences in applicable law and foreseeability of future litigation. 24 N.Y.2d, at 72

Koch v. Consolidated Edison Co., 62 N.Y.2d 548 (1984), held Consolidated Edison precluded by third-party issue preclusion by a jury verdict in the first proceeding, which held it grossly negligent for the 1977 blackout in New York City, from relitigating that issue in the later action brought by the City to recover for such gross negligence. The Court held that the statutes establishing the Small Claims Part of the Civil Court of New York City expressly provided to the contrary (id., at 556) and because of the sizeable difference in damages claimed in the second action over that awarded in the first action, there was no basis for denying application of third-party issue preclusion (id., at 557). Note, however, that Kaufman v. Eli Lilly & Co., supra (at 457), recognized that policy reasons may outweigh the reasons for limiting litigation on an issue, when it “is of paramount importance that the courts establish and develop the law in [an] emerging area of mass tort liability, rather than permit it to be fixed” by the decision in a prior case. In addition, the Koch decision, supra, relied in part on the statement in the Restatement of Judgments, 2d, § 29, of the relevant factors to be considered with respect to third-party issue preclusion. Relevant also is Nesbitt v. Nimmick 34 A.D.2d 958 aff’d on the opinion at the Appellate Division 30 N.Y.2d 624 (1972), which turned on differing burdens of proof. Plaintiff in the subsequent action, a motorcyclist, collided with the door of a car owned and operated by the defendant when he stopped his car to permit

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his passenger to alight. In a prior action brought by a passenger in the vehicle against the motorcyclist and the vehicle owner, the jury exonerated the motorcyclist but held the vehicle owner liable. The Court held that the motorcyclist could not rely on collateral estoppel to establish his freedom from contributory negligence because “[t]he shift in status from defendant to plaintiff carries with it a corresponding shift in the burden of proof. It may well be that the plaintiff in the instant case was exonerated as a defendant in the first action because the evidence of his negligence was evenly balanced. As a defendant, that balance was enough; as a plaintiff, it is not.” Finally to be noted is Allied Chemical v. Niagara Mohawk Power Corp., 72 N.Y.2d 271 (1988), cert. denied 488 U.S. 1005 (1989), which dealt with the preclusive effect of an administrative agency’s determination or decision. Stating that for collateral estoppel to apply it must be shown that there was identity of issue in the present and prior proceedings and that the party against whom preclusion is sought was accorded a full and fair opportunity to contest the issue, it held that as to an administrative determination, the doctrine is applied more flexibly, and additional factors must be considered by the court: whether the agency has statutory authority to act adjudicatively, whether the procedures used in the administrative proceeding assured that the information presented to the agency was sufficient both quantitatively and qualitatively to permit confidence that the facts asserted were adequately tested and the issue was fully aired, and whether according the particular determination preclusive effect is consistent with the agency’s scheme of administration. That is, the agency’s need for flexibility and its need to modify prior determinations to adapt to changing conditions may counsel against according preclusive effect to a prior administrative decision. There are factors other than those considered in this chapter on the basis of which collateral estoppel will be held applicable or inapplicable, but which have not, as of the date this book was completed, been considered by the Court of Appeals. See Restatement 2d, Judgments, § § 28 and 29 and Siegel, New York Practice, 3d Edition, § 467.

B. In a Civil Proceeding Based on Prior Criminal Proceeding Matter of Juan C v. Cortines, 89 N.Y.2d 659 (1997), and D’Arata v. New York Central Mutual Fire Insurance Co., 76 N.Y.2d 659 (1990), establish that the determination of a prior criminal proceeding may bar a later civil action, but only where there was an identity of parties in the prior proceeding and the party opposing estoppel had a full and fair opportunity to contest the issues in that

Procedure 603

prior proceeding. In Juan C, a student at Bronx High School had been suspended for a year for carrying a gun into the school, after a plenary hearing by the Superintendent of Schools, affirmed by the Chancellor. The student then brought an Article 78 proceeding in which the Appellate Division held that the educational authorities were precluded by a previously dismissed Family Court juvenile delinquency proceeding in which a school aide’s testimony had been suppressed. The Court of Appeals reversed, noting that the educational authorities were not parties to the Family Court proceeding and, therefore, there was no identity of parties and no full and fair opportunity to contest the issues. The opinion added that the party seeking the benefit of collateral estoppel has the burden of establishing the identity of issues, and the party seeking to defeat its application has the burden of establishing the absence of full and fair opportunity, and that a nonparty to the prior litigation may be collaterally estopped only by having a relationship with a party to the prior litigation such that his own rights or obligations are conditioned upon or derivative of the rights of the party to the prior litigation, a form of privity (89 N.Y.2d, at 667). See also David v. Biondo, 92 N.Y.2d 318 (1998), which applied the Juan C reasoning with respect to a prior disciplinary proceeding of a dentist. In this case, however, the Court held that the injured patient’s dental malpractice action was not collaterally estopped although she testified as a witness in that proceeding. The Court reasoned that she was not a party to that proceeding and should not be deemed in legal privity with the professional regulatory body. Id, at 322. Moreover, an acquittal in a prior criminal action is not proof of innocence and does not prevent relitigation in a subsequent civil proceeding seeking damages from the State because the burden of proof required by the Court of Claims Act in the civil proceeding (clear and convincing proof of innocence) is lower than that in the prior criminal proceeding (proof beyond a reasonable doubt). Reed v. State of New York, 78 N.Y.2d 1, 8–9 (1991).

C. In a Criminal Proceeding by Prior Criminal Proceeding Collateral estoppel applies to criminal as well as civil proceedings, although not in quite the same way, People v. Goodman, 69 N.Y.2d 32, 37 (1986). See also Matter of Juan C v. Cortines, 89 N.Y.2d 659, 668 (1997); People v. Aguilera, 82 N.Y.2d 23, 29–30 (1993).1 It is of constitutional dimension in criminal cases but differs from double jeopardy in that jeopardy may be involved long before the verdict, whereas collateral estoppel applies only when there has been a final judgment. Additionally, jeopardy involves prosecution for the same offense whereas collateral estoppel prevents serial prosecutions for multiple offenses

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arising from a single act or group of acts. Id., at 37–38. For collateral estoppel to be applied in a later criminal case there must be identity of parties and issues and a final valid judgment in the prior proceeding which the party opposing estoppel had a full and fair opportunity to litigate. Id., at 38. There is no valid final judgment, however, and estoppel does not apply when sentence has not been imposed and the People still have the opportunity to challenge an adverse ruling on appeal. People v. Sanders, 71 N.Y.2d 946 (1988). Estoppel applies not only to acquittal followed by subsequent charges arising from the same incident; it may also apply to a mixed verdict in a single prosecution that acquits the defendant of some counts of the indictment but convicts him of others. People v. Goodman, supra, at 39. But for estoppel to apply the first jury must have found in defendant’s favor as to an “ultimate fact,” i.e., an issue which is a sine qua non of conviction in the second trial. Id., at 38. Whether facts are ultimate, i.e., essential to conviction in the second trial, or evidentiary is determined by reference to the second trial. People v. Acevedo, 69 N.Y.2d 478, 486 (1987). But whether ultimate or evidentiary if the jury in the prior trial acquitted defendant of robbing A, it is error for the trial court at defendant’s subsequent trial for robbing B at the same time and place to allow testimony by A, the first jury having necessarily concluded that A’s testimony was incredible and that defendant was not present at the place where the robberies occurred. Id., at 488.

II. Article 78 A. Pre–Article 78 Procedure Under CPLR § 7803 Article 78 encompasses procedures previously dealt with in proceedings for mandamus, prohibition, or certiorari but has divided mandamus into mandamus to compel and mandamus to review. Cases related to distinction between mandamus and declaratory judgment and to the extension of judicial oversight are Klosterman v. Cuomo, 61 N.Y.2d 525 (1984); Matter of Abrams v. New York City Transit Authority, 39 N.Y.2d 990 (1976), and James v. Board of Education of the City of New York, 42 N.Y.2d 357 (1977). The Klosterman opinion, by Chief Judge Lawrence H. Cooke, stated: The primary purpose of declaratory judgment is to adjudicate the parties’ rights before a “wrong” actually occurs in the hope that later litigation will be unnecessary. . . . Traditionally, mandamus lies to compel the performance of

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a ministerial act and where there is a clear legal right to the relief sought. The long established rule is that “[w]hile a mandamus is an appropriate remedy to enforce the performance of a ministerial duty, it is well settled that it will not be awarded to compel an act in respect to which the officer may exercise judgment or discretion. . . . A subordinate body can be directed to act, but not how to act, in a manner as to which it has the right to exercise its judgment. The activity that the courts must be careful to avoid is the fashioning of orders or judgments that go beyond any mandatory directives of existing statutes and regulations and intrude upon the policy making and discretionary decisions that are reserved to the legislative and executive branches. 61 N.Y.2d, at 540 (emphasis in original)

Matter of Abrams was a memorandum in which the Court stated that “. . . standing has been properly extended to permit an appropriate judicial proceeding to prevent an illegal disbursement or to compel a legally required disbursement of public funds. . . . Standing, however, has not and should not be extended to substitute judicial oversight for the discretionary management of public business by public officials.” The James decision held that it was for the Board of Education to decide the form of the comprehensive reading test to be administered to children in its schools, noting in an opinion by Judge Matthew J. Jasen: It is not for the courts to say that considerations of educational policy, of the needfulness to make valid comparisons, of the need to prevent cheating, of the need to keep costs down, should have led the chancellor, and the board, to purchase a different form of examination. The courts may not under the guise of enforcing a vague educational public policy, suggested to it, assume the exercise of educational policy vested by constitution and statute in school administrative agencies. This is not to say that there may never be gross violations of defined public policy, which the court would be obliged to recognize and correct. Under the circumstances presented, judicial intervention, of even a temporary nature, was unwarranted and in excess of authority. 42 N.Y.2d, at 367

B. Procedure Under the Present Statute The procedure under CPLR 7803 has been the subject of a number of decisions by the Court. Matter of Newbrand v. City of Yonkers, 285 N.Y. 164 (1941), stated:

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The primary purpose of the new article was to wipe out technical distinctions that have been a snare for suitors approaching the court for relief and which, at times, hampered the court in granting relief for proven grievances. Under its provisions, when a suitor shows a right to some relief the court grants the relief to which he is entitled, unrestricted by the form of the proceedings brought by the aggrieved person. . . . The nature of the alleged grievance determines, none the less, the form of the hearing before the court to which the aggrieved party is entitled, the questions to be determined at such hearing, and the relief which the court has the power to grant. 285 N.Y., at 174

Matter of New York State Inspection, Security and Law Enforcement Employees, District Council 82, AFSCME, AFL-CIO v. Cuomo, 64 N.Y.2d 233 (1984), in an opinion by Judge Matthew J. Jasen, held: As a reflection of the pattern of government adopted by the State of New York, which included by implication the separation of the executive, legislative and judicial powers, it is a fundamental principle of the organic law that each department of government should be free from interference, in the lawful discharge of duties expressly conferred, by either of the other branches. . . . The responsibility for maintaining, establishing and closing any correctional facility operated by DOCS is expressly conferred upon the Commissioner of Correctional Services, who is appointed by and holds office at the pleasure of the Governor. The responsibility for maintaining, establishing and closing any correctional facility operated by DOCS is expressly conferred upon the Commissioner of Correctional Services. While it is within the power of the judiciary to declare the vested rights of a specifically protected individual in a fashion recognized by statute, the manner by which the State addresses complex societal and governmental issues is a subject left to the discretion of the political branches of government. Where, as here, policy matters have demonstrably and textually been committed to a coordinate political branch of government, any consideration of such matters by a branch or body other than that in which the power expressly is reposed would, absent extraordinary or emergency circumstances, constitute an ultra vires act. 64 N.Y.2d, at 239

Boryszewski v. Brydges, 37 N.Y.2d 361 (1975), in a decision by Judge Hugh R. Jones, held: We reject petitioners’ contention that the legislative and executive retirement plan violates provisions of our State Constitution. Petitioners first assert that

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the retirement plan ( . . . presumably the plan now to be found in § 80-a of the Retirement and Social Security Law) violates section 7 of Article XII which provides . . . state officers named in this constitution shall receive a compensation . . . which shall not be increased or discussed during the term for which he shall have been elected or appointed; nor shall he receive to his use any fees or perquisites of office or other compensation and Section 6 of Article III which mandates that . . . neither the salary of any member nor any of the allowance so fixed may be increased or diminished during and with respect to the term for which he shall have been elected, nor shall he be paid or receive any other extra compensation. . . . [I]n our view retirement benefits constitute as real and substantial a form of compensation as does a pay check. . . . In a literal sense the right to payment in the future is received during continuance in office. Retirement benefits are a component of present compensation.

Matter of Dairylea Cooperative, Inc. v. Walkley, 38 N.Y.2d 6 (1975), in a 5–2 decision by Judge Sol Wachtler, as he then was, from which Chief Judge Breitel and Judge Jasen dissented, stated: A fundamental tenet of our system of remedies is that when a government agency seeks to act in a manner adversely affecting a party, judicial review of that action may be had. The increasing pervasiveness of administrative influence on both State and Federal levels necessitates a concomitant broadening of the category of persons entitled to a judicial determination as to the validity of the proposed action. In recent years the right to challenge administrative influence has been enlarged by our court. . . . The determinative factor is the specific incorporation into the statute of the objective of preventing obstructive competition. . . . Of course, competitive injury, of itself, will not confer standing. . . . However, where a statute reflects an overriding legislative purpose to prevent destructive competition, an injured competitor has standing to require compliance with that statute.

Matter of O’Connell v. Kern, 287 N.Y. 297 (1942), in a decision by Judge Harlan W. Rippey held: Petitioner’s right to reinstatement in her former position accrued when employee Eddy with lesser right of reinstatement was reinstated ahead of her. She had no knowledge of or information concerning the transfer of Miss Eddy, nor did the transfer itself or anything that accrued charge her with

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knowledge. . . . The Appellate Division has correctly held that her right to prosecute this proceeding accrued when Dowd was reinstated and she had made her demand for reinstatement and it had been refused. In the circumstances here, petitioner had the right by mandamus to compel her reinstatement since it appears that another person was employed in the position to which she was entitled. (CSL 13-a). . . . The proceeding was instituted within the four months prescribed. Under all the circumstances of the case, petitioner cannot be charged with laches so as to bar recovery.

Matter of Essex County v. Zagata, 91 N.Y.2d 447 (1998), ruled in an opinion by Chief Judge Kaye, which involved a memorandum of understanding between the Department of Environmental Conservation, the Adirondack Park Agency, and the Department of Health. The County Board of Supervisors solicited proposals from private entities seeking to buy its landfill located within the Park Agency, contingent upon all the necessary operating permit modifications to allow for an increase from 95 to 500 tons that could be received each day. The Court held appellant’s claim against APA untimely under Article 78’s sixty-day limitation period: To determine if the actions are final consideration must be given to the completeness of the administrative action and a pragmatic evaluation [must be made] whether the decisionmaker has arrived at a definitive position on the issue which inflicts an actual, concrete injury. The determination will not be deemed final because it stands as the agency’s last word on a discrete legal issue that arises during an administrative proceeding. There must additionally be a finding that the injury purportedly inflicted by the agency may not be “prevented or significantly ameliorated by further administrative action or by steps available to the complaining party” . . . the APA reached a final determination with the February 29, 1996 letter unequivocably advising appellants that no application had yet been submitted and the “regulatory time clock” had not yet begun to run with regard to their proposal. . . . The letter left no doubt that there would be no further administrative action and that the expenditure of additional litigation in expense and effort before the APA would do nothing to change the agency’s position or alleviate appellant’s injury. It is inconsequential that the APA had not yet reached a formal conclusion regarding the County’s proposed modifications. Where, as here, agency action takes the form of a letter notifying petitioners of a definitive agency position, it will be considered a final determination for CPLR 7801(1) purposes if it causes petitioners actual, concrete injury and no further agency proceedings might

Procedure 609

alleviate or avoid the injury. . . . Because the February 29th letter made clear that, in the eyes of APA, no application had yet been submitted, the County knew that the APA would view the demand for a decision under section 809(6)(a) as baseless and premature. . . . As such, we conclude that, upon receipt of the February 29th letter, appellant’s claims asserting that the DEC application constituted an application to the APA accrued no later than March 7, 1996, when the County acknowledged receipt of that letter. The proceeding commenced on May 16, 1996, therefore, was untimely with respect to those claims (see Executive Law 818[1]). 91 N.Y.2d 447, at 453–55

Matter of Mansfield v. Epstein, 5 N.Y.2d 70 (1958), ruled in a per curiam decision: [u]nder the Election Law the Commissioner of Elections’ power to examine independent nominating petitions for the purpose of ascertaining whether they are signed by a sufficient number of qualified voters is purely ministerial; as such it is reviewable not only in a proceeding brought under section 330 of the Election Law, but likewise under Article 78 of the Civil Practice Act. . . . There is no question that the Supreme Court has summary jurisdiction of proceedings brought under section 330 of the Election Law, but in election cases a court may only exercise the powers granted to it within the framework of the procedures prescribed by the statute. Under these circumstances, Special Term, having no proceeding before it brought pursuant to section 330 of the Election Law, was powerless to initiate a proceeding or treat the Article 78 proceeding as such after expiration of the limitation period. 5 N.Y.2d 70, at 73–74 (emphasis added)

III. Limitations The leading case involving limitations in civil proceedings is entitled Leader v. Maroney, Ponzini & Spencer, 97 N.Y.2d 95 (2001). In it the Court reviewed the various amendments affecting limitations made by the Legislature in the 1990s. It noted that CPLR 306-b, as amended in 1992, provided that if proof of service was not filed within 120 days as the section required the action was deemed dismissed without prejudice, which permitted the plaintiff to commence a new action and serve process within a second 120-day period, even if limitations had expired. As amended in 1999, the section provided that if service was not made

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in the prescribed period the Court shall dismiss without prejudice or upon good cause shown or in the interest of justice extend the time for service. Under that provision extension of time is a matter within the Court’s discretion. The interest of justice standard, it held, is a separate, broader, and more flexible provision, which could encompass a mistake or oversight as long as there was no prejudice to the defendant. Reasonable diligence in attempting to effect service was not a “gatekeeper.” It is simply one of many relevant factors to be considered by the Court, which may consider diligence, or the lack thereof, along with any other relevant factor including expiration of limitations, the meritorious nature of the cause of action, the length of delay in service, the promptness of plaintiff’s request for an extension, and prejudice to the defendant. No one factor is determinative. In a number of cases the Court has ruled that it is the essence of the action that determines which litigation period applies. Thus in Brick v. Cohn-HallMarx Company, 27 N.Y. 259 (1937), the complaint sought payment for packages of goods sold by defendant, which plaintiff alleged had falsely represented the number. The Court held that plaintiff’s claim was based on contract even if defendant falsely stated the sales made for the falsity constitutes a breach of contract. To say the complaint is framed in fraud and not upon the contract may be true in theory, but in applying limitations the courts look for reality and the essence of the action, and that, therefore, with respect to limitations, the action is on the contract and within the six-year statute; indeed, that it cannot be founded on fraud when that element is not essential. Similar reasoning will be found in Board of Education of the Hudson City School District v. Sargent, Webster, Crenshaw and Folley, 71 N.Y.2d 21 (1987); Video Corporation of America v. Frederick Flatto Associates, Inc., 58 N.Y.2d 1026 (1983); and Sears, Roebuck & Co. v. Enco Associates, Inc., 43 N.Y.2d 589 (1977). As the decision in Santulli v. Englert, Reilly & McHugh, PC, 78 N.Y.2d 700 (1992), stated, a cause of action for breach of contract may be based on an implied promise to exercise due care in performing the service required by the contract and the choice of the applicable statute of limitations is properly related to the remedy rather than the theory of liability. Enactment effective September 4, 1996, of CPLR § 214(6) reduced the statute of limitations for “an action to recover damages for malpractice, other than medical, dental or pediatric malpractice, regardless of whether the underlying theory is based on contract or tort.” The section did not define “malpractice” although the Court’s affirmance in Cubito v. Kressberg, 51 N.Y.2d 900 (1980), for the reasons stated in the Appellate Division’s decision 69 A.D.2d 738 (1979), applied. That decision reasoned that the general rule that a cause of

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action accrues when the plaintiff is injured applied unless compelling public policy required application of the time when the architect-defendant prepared the plans and found the building to have been completed according to the plans. It concluded that it should not since otherwise an injured plaintiff may be barred from recovery by the lapse of the statutory period even before his injury was sustained. As the Court noted in Chase Scientific Research, Inc. v. NIA Group, Inc. 96 N.Y.2d 20 (2001), CPLR § 214(6) raised the question who are professionals— those whose qualities include formal learning and training, standards beyond those accepted in the marketplace, and a system of discipline for violation of the standards. A professional relationship is one of trust and confidence, requiring a duty to counsel and advise clients. It held insurance brokers not within § 214(6), as such brokers depended on employment by an insurance company for at least two or three years prior to license application, and not a specialized education. Brothers v. Florence, 95 N.Y.2d 90 (2000), considered the effective date of § 214(6). The statement in the act that it was to take effect immediately indicated urgency, but the Court held that due process required that potential litigants be afforded a reasonable time before the statutory bar takes effect for commencement of an action; a reasonable time, the Court held, would be no longer than sufficient to bring suit or interpose a claim, which it held, balancing the interests of the State and the litigants, to be no more than one year. Joseph Francese, Inc. v. Enlarged City School District of Troy, 95 N.Y.2d 59 (2000), dealt with the effect of an arbitration provision on limitations. CPLR § 204(b) provides that the time between a demand for arbitration and the final determination that there is no obligation to arbitrate is not a part of the time within which an action upon such claim must be commenced, but commencement shall not be extended by its provision beyond one year after such final determination. The Francese opinion ruled that not until all nondiscretionary appeals have been decided can it reasonably be concluded that the party had been finally barred from bringing a claim to be resolved by arbitration. With respect to continuous representation, Shumsky v. Eisenstein, 96 N.Y.2d 164 (2001), held that continuous representation tolls the statute only where it pertains to the specific matter in which the attorney committed the alleged malpractice, and that because the plaintiff-clients had contacted the attorney and requested a letter in response, continuous representation applied until the clients were put on notice that the attorney had withdrawn by his failure to return phone calls. Leave to amend a complaint by adding a defendant may also toll the statute, since it includes a copy of the proposed supplemental summons and the

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amended complaint. The toll ends with the entry of the order granting permission to add the defendant. But with respect to an implanted or inserted device intended to perform a continuing function, the Court held in Martin v. Edwards Laboratories, Division of American Hospital Supply Corporation, 60 N.Y.2d 417 (1983), that there is no injury until the product malfunctions and the burden is on the defendant to prove that the injury occurred more than three years prior to commencement of the action. The matter of when claims accrue has been considered by the Court in Rothstein v. Tennessee Gas Pipeline Company, 87 N.Y.2d 90 (1995); Matter of New York County DES Litigation, 89 N.Y.2d 506 (1997); and Blanco v. American Telephone and Telegraph Company, 90 N.Y.2d 757 (1997). The Rothstein decision held that CPLR § 214-c(6) precludes discovery amelioration only if exposure occurred prior to July 1, 1986, and discovery occurred before that date and more than three years had lapsed between exposure and July 1, 1986, since § 4 of Chapter 682 of the Laws of 1986 fixes when future claims may be deemed to accrue. The DES decision stated that it was apparent from the overall statutory plan that under CPLR § 214-c(2) only the technical knowledge of the scientific and medical communities was to be considered in determining whether the injured person’s delay following discovery of the injury should be excused. And in Blanco the Court ruled that repetitive stress injury accrues at the onset of symptoms or the last use of the computer keyboard, whichever is earlier. It stated that with respect to new categories of tort claims, the Court does a careful and balanced analysis of the claim and its intricate interplay with the policy considerations involved in limitations jurisprudence. But Jensen v. General Electric Company, 82 N.Y.2d 77 (1993), made clear that CPLR 214-c applies to actions for damages only, not to actions seeking equity relief. CPLR 208 deals with extension of the limitation period because of a disability of infancy or insanity at the time the action accrues and extends the time for commencement of an action by three years after the disability ceases or the person under disability dies, whichever first occurs. If the time otherwise limited is less than three years, then the time is extended by the period of disability. LaBello v. Albany Medical Center, 85 N.Y.2d 701 (1995), held that with respect to an injury prior to birth, an action must be commenced within three years after the infant was born, and Henry v. City of New York, 94 N.Y.2d 275 (1999), ruled that the infancy disability applied notwithstanding the failure of the infant’s guardian to act on the infant’s behalf. Eisenbach v. Metropolitan Transportation Authority, 62 N.Y.2d 973 (1984), adopted a narrow interpretation of “insanity,” holding that it should not be interpreted to include the temporary effects of medications administered to treat physical injuries. Accord: McCarthy

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v. Volkswagen of America, 55 N.Y.2d 543 (1982), which held that tolling provisions should not readily be given an expansive interpretation tending to undermine the basic purposes of Statutes of Limitations, and that the legislative history of CPLR 208 indicated that the toll for insanity be narrowly interpreted. With respect to a cause of action that accrues in a jurisdiction other than New York CPLR § 202 provides that an action cannot be commenced after the time limited by the laws of either the state or the place without the state where the cause of action accrued, except that where the cause of action accrued in favor of a resident of the state the time limited by the laws of the state shall apply. Global Financial Corp. v. Triarc Corporation, 93 N.Y.2d 525 (1999), held that a cause of action accrues where the plaintiff sustained the economic impact of the breach, not by the center of gravity rule, which governs conflicts law. Heller v. U.S. Suzuki Motor Corp., 64 N.Y.2d 407 (1985), involved UCC § 2–725, which fixes the limitation period for future performance under contracts at four years from breach of the contract, that is, when tender or delivery is made, unless the contract provides otherwise. However, the decision was 4–2, and the dissent noted that the majority opinion fixed the time period in relation to when the manufacturer delivered the product to the dealer rather than when the dealer delivered the product to the plaintiff-purchaser. With respect to a claimed defamatory falsehood, Rinaldi v. Viking Penguin, Inc., 52 N.Y.2d 422 (1981), ruled that it not only must appear that the falsehood was uttered with actual malice but also that the burden of so demonstrating has been met by plaintiff with convincing clarity, that malice is not to be equated with a base or unworthy motive but instead to be defined as knowledge of falsity or reckless disregard whether false or not. Bulova Watch Company, Inc. v. Celotex Corporation, 46 N.Y.2d 606 (1979), ruled that whether a claim is contractual or tortious in nature turns on the form of the remedy sought. Because Bulova sought recovery only for the cost of fixing its defective roof rather than any consequential damages, its warranty count is one in contract alone, so the cause of action arose at the time of sale. Finally to be reviewed are Alston v. State of New York, 97 N.Y.2d 159 (2001), Firth v. State of New York, 98 N.Y.2d 365 (2002), and McCoy v. Feinman, 99 N.Y.2d 295 (2002). The Alston opinion dealt with the State’s waiver of immunity under the Federal Fair Labor Standards Act. The Court concluded that the time limitations of Court of Claims Act § 10(4) was not waived by § 8 of that Act when the claimant failed to comply with the time limitation of § 10(4), its waiver being not absolute but conditional. Failure to file within six months after accrual of the claim or timely to seek relief under CCA § 10(6) warranted dismissal of the claim on sovereign immunity grounds. The Firth decision held

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that “[r]epublication, retriggering the period of limitations, occurs upon a separate aggregate publication from the original, on a different occasion, which is not merely ‘a delayed circulation of the original decision’ and that, therefore, addition of unrelated material to a Web site was not within the republication exception.” The unanimous opinion in the McCoy case dealt with limitations in a legal malpractice case predicated on the attorney’s failure to have a Qualified Domestic Relations Order (QDRO) entered. The opinion ruled that such a claim occurs when all the facts necessary to the cause of action have occurred and an injured party can obtain relief in court, not when the client discovered the malpractice. It held that as the attorney had stipulated to enter a QDRO simultaneously with or shortly after the judgment of divorce but failed to do so, the client’s cause of action occurred when the attorney failed to do so, which was more than the three years from accrual allowed by CPLR § 214(6) and was, therefore, barred.

21. Education

THE STATE CONSTITUTION simply mandates and authorizes the Legislature to establish an educational system and leaves the details, including financing, to the Legislature. Article XI of the New York State Constitution contains three sections. Art. XI, § 1, states: “The Legislature shall provide for the maintenance and support of a system of free common schools, wherein all the children of this state may be educated.” It was added to the Constitution by the 1894 convention, although , there was a substantial statutory-based educational system in place even before New York became a state.1 Section 2 establishes a Board of Regents whose powers are defined by legislation, and section 3 restricts state financial aid to denominational education. This chapter describes how the Court of Appeals has dealt with issues presented by the Legislature’s implementation of Article XI, except for section 3 of the Article, which is dealt with in sections I and II of chapter 11, Religion.

I. Judicial Involvement in Evaluating Educational Policy; Educational Malpractice The Court of Appeals has consistently adhered to the view that the judicial role with respect to education policy is sharply limited, almost to the point of nonexistence. The per curiam opinion in Vetere v. Allen, 15 N.Y.2d 259, cert. denied, 382 U.S. 825 (1965), quoted from and cited authorities dating back to 1833 that propounded this long-standing position.

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The purpose of the grant of quasi-judicial powers [to the Commissioner of Education] under section 310 of the Education Law is “to make all matters pertaining to the general school system of the state within the authority and control of the department of education and to remove the same as far as practicable and possible from controversies in the courts.” . . . “By our state system of education protected by the Constitution and developed by much study and experience, the commissioner of education is made the practical administrative head of the system, and in his exercise of sound wisdom, as we believe, the legislature deemed it best to make him the final authority in passing on many questions bound to arise in the administration of the school system, and has provided an expeditious and simple method by which a disposition of such questions could be reached through appeal to him.” . . . “In appraising the judicial nature of the act of the Commissioner of Education, it must be remembered that he combines both judicial and administrative functions. When he decides appeals where he has occasion to construe statutes, he undoubtedly acts in a judicial capacity. But in passing upon the propriety of educational policy by a particular school board or school district, he acts in a broader capacity than the courts, by reviewing at times administrative acts of discretion of which a court would refuse to take cognizance.” . . . 15 N.Y.2d, at 265–66 (citations omitted)

In Vetere, a 5–2 decision, the Court was presented with a challenge to the State Commissioner of Education’s determination that “racial balance [in the schools] is essential to a sound education,” which provided the basis for his decision to overturn the action of a local school board. 15 N.Y.2d, at 265. The Court concluded that the Commissioner’s decision was not reviewable because the decision “rest[ed] squarely on his finding of the inadequacy of such schools from the viewpoint of educational soundness.” Vetere recognized that the Commissioner may substitute his judgment for that of the local board even where the action of the local board was not arbitrary, [and] the decision of the Commissioner in regard to racial balance is conclusive. . . . Disagreement with the sociological, psychological and educational assumptions relied on by the Commissioner cannot be evaluated by this court. Such arguments can only be heard in the Legislature which has endowed the Commissioner with an all but absolute power, or by the Board of Regents, who are elected by the Legislature and make public policy in the field of education. 15 N.Y.2d, at 267 (citations omitted)

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The Court had previously upheld the power of the Commissioner to substitute his judgment for a local school board when, in Matter of Board of Educ. of City of N.Y. v. Allen, 6 N.Y.2d 127 (1959), the Court upheld, “as final,” the Commissioner’s decision to overturn a “local board’s policy of requiring teachers who were former communists to identify colleagues as party members” on the ground that the policy was “educationally unsound.” Allen upheld the Commissioner’s decision even though boards of education were directed to take steps to eliminate subversive elements in their school system by both a statute (Feinberg Law) and a Board of Regents regulation. In Vetere, the Commissioner was implementing an explicit policy of the Board of Regents that racially imbalanced education was unsound. Allen was a stronger case than Vetere for sustaining a challenge to the Commissioner’s action, but having sustained the Commissioner in Allen, it would have been difficult to reach a contrary result in Vetere. However, in their dissenting opinions in Vetere, Judges Van Voorhis and Scileppi made tenable arguments. Judge Van Voorhis focused on the difference between de jure and de facto segregation and argued that the decision to allocate students to schools in the district on the basis of race was unconstitutional in view of the condemnation of de jure segregation by Brown v. Board of Education, 347 U.S. 483 (1954). He argued that there was an essential difference between denying admission on the grounds of race or color and allocating admissions on those factors. Moreover, he and Judge Scileppi argued that the Commissioner’s decision in the case at bar was “purely arbitrary.” Judge Scileppi claimed there was no factual basis in the record to support the Commissioner’s determination that racial imbalance always results in unsound education; consequently, the conclusion was “purely arbitrary.” This judicial deference to those charged by the Legislature with formulating educational policy was followed in James v. Board of Education of the City of New York, 42 N.Y.2d 357 (1977), when the Court reversed the Appellate Division’s affirmance of Special Term’s order issuing a preliminary injunction that enjoined the administration of comprehensive reading and mathematics examinations in the New York City school system based on the contention that the integrity of the examination had been compromised. James presented the broad question of whether the judiciary had a proper role in reviewing educational policy; if it did not, the order issuing the injunction would be reversed, and its consequences would be avoided immediately. Consequently, the Court undertook to review the issuance of the preliminary injunction in James and reaffirmed the broad principle it had endorsed in Vetere v. Allen, supra. James held:

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The temporary injunction issued by the courts below was an unlawful interference with an educational policy judgment made by the appropriate school authorities in exercise of constitutional and statutory power. Whether or not an examination had been so compromised as to strip it of validity as a device for measuring educational achievement is a matter committed to the professional judgment and discretion of those responsible for the administration of the public schools. It is not a matter for the courts. 42 N.Y.2d, at 358–59

The Court avoided declaring “that there may never be gross violations of defined public policy which the courts would be obliged to recognize and correct. (Matter of New York City School Bds. Assn. v. Board of Educ., 39 N.Y.2d 111, 121).” 42 N.Y.2d, at 367. But the remedy sought by the petitioners in James potentially would have placed the judiciary in the position of generally overseeing and even exercising the powers concerning educational policy lodged by the law and the Constitution with those charged with determining educational policy; this, the Court refused to do. Donohue v. Copiague Union Free School District, 47 N.Y.2d 440 (1979), presented the most direct attempt to employ the judicial system in evaluating education policy thus far. In Donohue, plaintiff alleged that after four years of high school, he had received a certificate of graduation, but nevertheless “lack[ed] even the rudimentary ability to comprehend written English on a level sufficient to enable him to complete applications for employment.” 47 N.Y.2d, at 442. Plaintiff claimed the cause of his deficiencies was the school district’s violation of its duties under statutes and the Constitution to “perform its duties and obligations to educate appellant.” In detail, he alleged the district failed to employ the appropriate testing methods and provide the personnel and facilities to properly evaluate and advise him as he went through school in order to determine his capacities, his deficiencies, and his progress or lack thereof. In essence, he alleged two causes of action against the school district: one for “educational malpractice” and another for negligent failure to perform the district’s constitutional duty to provide him with an education. The Court unanimously affirmed the dismissal of both causes of action. Judge Jasen reiterated the Court’s position in James, supra, not to interfere with education policy unless there are “gross violations of defined public policy which the courts would be bound to recognize and correct,” and he refused to recognize a new cause of action for educational malpractice. To entertain a cause of action for “educational malpractice” would require the courts not merely to make judgments as to the validity of broad educational

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policies—a course we have unalteringly eschewed in the past—but, more importantly, to sit in review of the day-to-day implementation of these policies. Recognition in the courts of this cause of action would constitute blatant interference with the responsibility for the administration of the public school system lodged by Constitution and statute in school administrative agencies. 45 N.Y.2d, at 444–45

As for the constitutional cause of action, Judge Jasen said that simply reading the constitutional provision demonstrates that the power and duty with respect to education is placed in the Legislature with no suggestion that this general obligation imposes a duty on the school board to be enforced by an individual pupil’s private cause of action for compensatory damages. Judge Jasen also noted that there were administrative procedures available for those who had a complaint about how the education system was administered.

II. Providing Education for All Children A. Special Schools: Wiltwyck In Matter of Wiltwyck School for Boys, Inc. v. Hill, 11 N.Y.2d 182 (1962), the Town of Yorktown construed its zoning ordinance as not permitting the Wiltwyck School to build dormitories to house the children from New York City who were committed to the school by a court because they had been adjudicated as delinquent or had other manifestations of maladjustment. The zoning ordinance permitted schools in the district to construct accessory buildings, but the local authorities concluded that Wiltwyck was not a “school” within the meaning of its ordinance and denied Wiltwyck’s application for permission to build the dormitories. The New York City Board of Education provided a complete range of educational and related services for the children who were resident at Wiltwyck, and in view of the fact the children at Wiltwyck came from New York City, it was necessary that they be provided housing there. Wiltwyck claimed that the town’s construction of its ordinance was arbitrary and unreasonable and, moreover, if the ordinance did not permit construction of the dormitories, it was unconstitutional. The Court did not reach the constitutional question because it held that it was arbitrary and unreasonable to construe the ordinance as not covering Wiltwyck as a school. In construing the ordinance, the Court reviewed the constitutional authority and obligation of the Legislature to provide public education. The Court recognized that the Legislature had imposed upon local boards

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of education (Education Law, § 2554) its constitutional duty, under Article XI, § 1 of the State Constitution, to “provide for the maintenance and support of a system of free common schools, wherein all the children of this state may be educated” (emphasis added). The Education Law defined this duty as including the obligation to establish “schools for physically or mentally handicapped or delinquent children” (Education Law, id., subds. 9, 18). Moreover, the statute further defined the duty as one to provide education “outside the territorial limits of the city school district but within the state” whenever “the health or welfare of such children makes such provision necessary or desirable” (id., subd. 20). In Wiltwyck, the Court stated: Under the mandate of our Constitution, and in accordance with modern concepts of education, our Legislature has wisely and dutifully provided for special schools for (among others) orphans (Education Law, art. 81), Indians (id., art. 83), the deaf and the blind (id., arts. 85, 87), as well as physically and mentally handicapped and delinquent children (id., art. 89). All these are schools despite the fact that the students require special attention, and the last named are not mental hospitals, reformatories or prisons. 11 N.Y.2d, at 193 (emphasis in original)

After examining the program at Wiltwyck, the Court found that Wiltwyck had “‘the three prime requisites which . . . are essential to make up a school: a curriculum, a plant consisting of adequate physical facilities, and a qualified staff to carry into effect its educational objectives.’” 11 N.Y.2d, at 194 (quoting from Incorporated Vil. of Brookville v. Paulgene Realty Corp, 24 Misc.2d 790, 792 (1960), aff’d. 14 A.D. 2d 575 (1962), aff’d. 11 N.Y.2d 672 (1962). Under the circumstances, the Court concluded that, by virtue of its arrangement with the City, Wiltwyck was performing the educational functions of the State under the Constitution and the Education Law, and Yorktown’s construction of its zoning law as precluding Wiltwyck’s right to build dormitories because it was not a school was arbitrary and unreasonable.

B. Handicapped Children: Financial Support In Rogers v. Association for Help of Retarded Children, 308 N.Y. 126, 132 (1954), the Court recognized a “statutory requirement . . . and the strong public policy of the State which favors the education of all children, however handicapped.” But in Matter of Levy, 38 N.Y.2d 653, appeal dismissed, sub nom. Levy v. City

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of New York, 429 U.S. 805 (1976), the Court also found that the Legislature was not constitutionally required to provide the same level of financial support to all handicapped children. Levy sustained the constitutionality of a statute that authorized the “Family Court in New York City to direct parents of handicapped children, other than children who are blind or deaf, to contribute to the maintenance of [their handicapped] children in connection with their education.” 38 N.Y.2d, at 656. In Levy, the Court ordered the City to pay to the parents the tuition and transportation costs of children who were neither deaf nor blind and who attended appropriate private schools, but ordered the parents to pay for the room and board of their handicapped children, one of whom suffered “from ‘organic brain syndrome with secondary autism manifested by moderate mental retardation, hyperactivity and language impairment’; another suffered from ‘schizophrenic reaction, childhood type’; and the third from ‘overanxious reaction of childhood with borderline features.’” 38 N.Y.2d, at 657, note 1. The parents could afford to pay the ordered maintenance amounts. All the parties agreed that a free education under the state system included the costs of tuition and transportation. The Court of Appeals rejected the parents’ claim that distinguishing between deaf or blind children and other handicapped children in determining whether the State or parents would pay the board and lodging costs for their education violated the State Constitution’s equal protection clause, Article VI, § 3, subd. b, par [2]. The Court held that handicapped children did not constitute a “suspect class,” nor was the right to education such a “fundamental constitutional right” as to be entitled to special constitutional protection, which required application of the “strict scrutiny” test or something more than the traditional “rational basis” test in determining whether the Constitution had been violated. 1. STANDARDS FOR DETERMINING WHETHER LEGISLATIVE JUDGMENT IS “RATIONAL”: HISTORY AND TRADITION

Two major factors entered into the Court’s conclusion that there was a “rational basis” for distinguishing those children handicapped by virtue of deafness or blindness from other handicapped children. First, historically, blindness or deafness had traditionally received special treatment from society in general and both the State and Federal governments. While not conclusive in determining whether discrimination was unconstitutionally invidious, it nevertheless was an appropriate factor to be considered. In Levy, the Court took the opportunity to state some broad principles in determining whether the legislative distinctions were rational.

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We think that the Legislature acts rationally when, in the exercise of its authority and responsibility to identify concerns of the State and to make provision with respect thereto, it takes into account distinctions which carry the imprimatur of historical authenticity, provided that such distinctions are not the reflection of invidious discrimination and have not been demonstrated to be irrational by knowledge subsequently acquired. It strikes us as unintelligent to say that the decisions made in the past and the value judgments of those preceding us who were then responsible for identifying the priorities of governmental concern and response must be wholly ignored unless the determinations which were then made can be justified, ab initio, when measured by today’s criteria and standards. This is not to say that we may today complacently accept the wisdom and the unwisdom of the past. It is to say, on the other hand, that the policy judgments and the priority determinations of our history are not totally to be rejected, especially when those judgments and determinations have enjoyed public acceptance for a long period of time. As we have said in another context: “While antiquity is not an infallible criterion for determining the scope of constitutional rights, traditional usage and understanding is helpful in defining the privilege against self incrimination.” (People v. Samuel, 29 N.Y.2d 252, 264.) 38 N.Y.2d, at 659–60 (footnote omitted) 2. STANDARDS FOR DETERMINING WHETHER LEGISLATIVE JUDGMENT IS “RATIONAL”: POSSIBLE FINANCIAL CONSEQUENCE OF DECISION

In addition to the historical element, the Court examined and its decision took into account the likely effect on government finances if it held the statutory financial burden on the complaining parents to be unconstitutional. Because of limited governmental financial resources, the most likely result of invalidating the statute would be that financial aid for maintenance related to education would be denied to all handicapped children, rather than increasing aid to those who were neither blind nor deaf. The Court refused to require, “an undifferentiated and senseless but categorically neat policy that since all could not be benefitted, none would be.” 38 N.Y.2d, at 660–61.

III. Challenges to the System of State Financial Support of Public Education Financing education has historically been a powerful and divisive public issue in New York, and since the last quarter of the twentieth century it has presented

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difficult constitutional questions for the New York Court of Appeals. The State Constitution does not deal specifically with financing the Education Article’s mandate that the “Legislature shall provide for the maintenance and support of a system of free common schools, wherein all the children of this state may be educated.” New York State Constitution, Article XI, § 1. However, as previously noted, section 3 of the Education Article limits State aid to and support of secular education. In addition, some general restrictions on the use of State funds and credit are modified when education is involved. Thus, the “gifts and loans” provision of the Constitution, which prohibits the use of State loans and credits in aid of private persons, corporations and other organizations, exempts “educational” purposes generally from the prohibition and also provides a specific exception for the education of mentally, emotionally, and physically handicapped children and juvenile delinquents. New York State Constitution, Article VII, section 8, subsections 1 and 2.2 There are also education exceptions to the Constitutional “gifts and loans” and debt limitation provisions applicable to local government. Const. Art. VIII, § § 1, 4, and 7. Several cases in addition to Levy have addressed the constitutionality of the State system of financing education. The two major questions dealt with by the Court are first, who may judicially challenge the State’s method of financing education, and second, the substantive constitutional questions raised by challengers to the financing method. The major challenges have been based on the Federal and State equal protection provisions and on the State Constitution’s Education Article itself, plus the Federal Civil Rights Act. The material that follows first deals with the “capacity to sue” questions and then turns to the substantive constitutional questions.

A. Local Government “Capacity to Sue” the State Campaign for Fiscal Equity, Inc. v. State of New York, 86 N.Y.2d 307 (1995), [CFE I], and City of New York v. State of New York, 86 N.Y.2d 286 (1995), decided on the same day,3 each addressed the question of whether the plaintiffs had the capacity to sue the State and claim that its system of financing education violated the State Constitution’s Education Article, the Equal Protection Clauses of the State and Federal constitutions, and Title VI of the Civil Rights Act of 1964 and its implementing regulations. In each case the Court held that local government authorities—New York City in City of New York, supra, and school boards in CFE I, supra—did not have the capacity to sue the State and its officials. In 1995, the City and the school board plaintiffs argued that the Court previously had decided the question of their capacity to sue thirteen years earlier.

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In Board of Education., Levittown Union Free School District. v. Nyquist, 57 N.Y.2d 27 (1982), the Court had reached the merits, although it had rejected the school board’s claims of unconstitutionality. In Levittown the Appellate Division had held that the school boards had standing and reached the merits of the claims (83 A.D.2d 217). However, in City of New York, the Court held that Levittown did not support the power of the school board to sue because the State did not appeal the lower court’s “capacity to sue” holding, and consequently that issue was not before the Court of Appeals in Levittown. Thus, in 1995, the Court in CFE I was free to address a local government’s capacity to sue without treating Levittown as precedent. The Court dismissed the City’s complaint in City of New York and dismissed the complaints of the community school boards in CFE I, holding “that municipalities lack the capacity to bring suit to invalidate State legislation.” In City of New York, Judge Levine, with Judges Titone, Simons, and Bellacosa concurring, relied on several Court of Appeals and United States Supreme Court decisions in support of the dismissal of the City’s complaint. Judge Levine stated that New York had “long followed” the “Federal rationale” in support of the rule that municipalities did not have the capacity to sue the State and explained: Constitutionally as well as a matter of historical fact, municipal corporate bodies—counties, towns and school districts—are merely subdivisions of the State, created by the State for the convenient carrying out of the State’s governmental powers and responsibilities as its agents. Viewed, therefore, by the courts as purely creatures or agents of the State, it followed that municipal corporate bodies cannot have the right to contest the actions of their principal or creator affecting them in their governmental capacity or as representatives of their inhabitants. 86 N.Y.2d, at 289–90

The sole exceptions to the lack of capacity to sue the State were “(1) an express statutory authorization to bring such a suit . . . (2) where the State legislation adversely affects a municipality’s proprietary interest in a specific fund of moneys . . . (3) where the State statute impinges upon ‘Home Rule’ powers of a municipality constitutionally guaranteed under article IX of the State Constitution . . . and (4) where ‘the municipal challengers assert that if they are obliged to comply with the State statute they will by that very compliance be forced to violate a constitutional proscription’ . . .” 86 N.Y.2d, 291–92 (citations omitted). None of the exceptions were present in City of New York. Judge Ciparick, with Judge Smith concurring, dissented on the capacity to sue issue in City of New York and CFE I, but Judge Ciparick wrote the majority

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opinions on the substantive issues in CFE I, discussed below.4 The dissenters criticized the majority’s reliance on “old” Supreme Court cases, which they contended no longer fit the contemporary scene and might even have been modified by later decisions. On the substance, the dissenters declared: If our complex, collaborative system of education is to work, and if local control and autonomy at the school district and Board of Education level is to have real meaning, the Legislature and other governmental officials responsible for maintaining the educational system cannot be immunized from accountability in a suit of this nature. The Legislature has delegated virtually all of the day-to-day responsibilities involving the provision of education and the management of educational affairs to local authorities. When these local entities are unable to fulfill their constitutional and statutory obligations because of the State’s failure to carry out its own constitutional obligations, a substantive right to sue has been and must continue to be recognized. 86 N.Y.2d, at 296

B. The Substantive Constitutional Issues: The Education Article and Equal Protection 1. 1982—LEVITTOWN

It will be recalled that in Matter of Levy, 38 N.Y.2d 653, appeal dismissed, 429 U.S. 805 (1976), supra, the Court of Appeals rejected an equal protection challenge to the State’s classification of handicapped children for determining eligibility for education financial support. Levy had held that the “rational basis” standard, not “strict scrutiny,” was the proper basis for deciding the equal protection question. In Board of Education, Levittown Union Free School District. v. Nyquist, 57 N.Y.2d 27 (1982), the Federal and State equal protection clauses and the State Constitution’s Education Article were relied on by certain school districts, cities, students, and parent groups to challenge the entire system of financing elementary and secondary public school education in New York. Judge Jones, in Levittown, recognized that despite New York’s acknowledged leadership in and high per pupil expenditures for public education, there are “significant inequalities in the availability of financial support for local school districts, ranging from minor discrepancies to major differences, resulting in significant unevenness in the educational opportunities offered.” 57 N.Y.2d, at 38. Nevertheless, Judge Jones, writing for the six-judge majority, Judge Fuchsberg dissenting, held that the “present amalgam of statutory prescriptions for State aid to local school districts for the maintenance and support of public elementary and secondary education does not violate the equal protection clause of

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either the Federal or the State Constitution nor is it unconstitutional under the education article of our State Constitution.” 57 N.Y.2d, at 35. The basic equal protection contention was that the clause had been violated by unequal per-student expenditures for education among the several school districts and cities in the State. There was no claim that the educational facilities and services provided fell “below the State-wide minimum standard of educational quality and quantity fixed by the Board of Regents.” The attack was “directed at the existing disparities in financial resources which lead to educational unevenness above that minimum standard.” The inequality, the system’s challengers contended, was attributable to the system’s basic reliance on real property taxes available to the respective school districts with the result that there was unequal and discriminatory support of education that favored more wealthy over less wealthy districts. The cities, with access to resources beyond real property taxes, argued that in addition to public education, they had to provide a broad range of municipal services from the revenue sources available to them, which further negatively impacted their capacity to support public education comparable to the disadvantages faced by poorer districts vis-à-vis wealthier school districts. The Court found that the system violated neither the State nor Federal equal protection clauses because, when it applied the “rational basis” test, the Court found the State’s reliance on local tax revenues was to be rationally related to a constitutionally acceptable purpose— local control of public schools. Moreover, the differences in local revenues available for education were not the product of legislative creation of disparities in property values, and the additional burdens on city revenues were the consequence of demographic, economic, and political factors, not legislative action or inaction. Indeed, insofar as the Federal constitutional claim was concerned, Judge Jones relied on San Antonio School Dist. v. Rodriguez, 411 U.S. 1 (1973), as authority for utilizing the “rational basis” test, a case involving facts similar to those of the school districts in Levittown, as well as for concluding that the cities’ claims under the Federal clause were subject to the same reasoning. As for the State equal protection claim, despite the importance of education in the State and the existence of the education clause in the State Constitution, Judge Jones refused to recognize public education as a “fundamental constitutional right,” which would have required application of the strict scrutiny test to determine constitutionality. Rather, he followed Matter of Levy, supra, which, as noted above had held that “rational basis was the proper standard for review when the challenged State action implicated the right to free, public education and [, he said,] nothing . . . [in Levittown] impel[led] a departure from that decision, made as it was with full recognition of the existence in our State Constitution of the education article (art XI).” 57 N.Y.2d, at 42–43.

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All of the judges below had upheld the claim that the State system of financing public education violated Article XI, § 1 of the State Constitution—the Education Article. Judge Jones, writing for the Court of Appeals, disagreed, and after examining the language and history of the Education Article held that it had not been violated. He noted that the article required only that a “system” of free schools be established. He also pointed out that the article did not refer to or require that the educational opportunities in the more than 11,000 school districts in existence at the time the Education Article was adopted be equal or substantially equivalent in each district. Judge Jones reasoned that the term “system” in the Education Article is attached to “free public schools” and not to “maintenance and support,” and the Legislature had established a “system” of free schools. The Education Article, Judge Jones concluded, was intended to “[assure the delivery of minimal] acceptable facilities and services in contrast to the unsystematized delivery of instruction then in existence within the State” be made available to all the children in the State. 57 N.Y.2d, at 47. As for inequalities by virtue of differences in available or applied resources for education in the districts throughout the State, Judge Jones said that nothing in Article XI either prohibited or required school districts or the State to provide education beyond those minimal educational opportunities. In short, “If what is made available by this system (which is what is to be maintained and supported) may properly be said to constitute an education, the constitutional mandate is satisfied.” 57 N.Y.2d at 58 (emphasis added). However, significant for future attacks on the “system” was the Court’s interpretation of the term “education” in Article XI “to connote a sound basic education,” 57 N.Y.2d, at 48 (emphasis added), and that the Court had the duty to determine whether the constitutional mandate had been satisfied. Basically, the Levittown majority and Judge Fuchsberg disagreed about whether the New York State Constitution’s Education Article was violated by New York’s method of financing education. They also disagreed about whether education should be treated as a fundamental constitutional right and subject to something more stringent than a “rational basis” analysis. Judge Fuchsberg also suggested that the Levittown facts were so materially different from those in San Antonio School Dist. v. Rodriguez, 411 U.S. 1 (1973), that it did not warrant the majority’s somewhat dismissive treatment of plaintiff’s Federal equal protection claim. Beginning with the facts found by the lower courts concerning the inequalities in education and that were not contested by the majority, Judge Fuchsberg relied on historical and contemporary statements concerning the importance of education generally and in New York in particular. He argued that the Education Article itself required a more equitable approach to financing education

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than the majority had recognized, and in addition, the Education Article is a factor to be taken into account when construing the State’s equal protection provision. In doing so, he concluded that the right to education is a fundamental constitutional right in New York under the State’s equal protection clause, which required analysis more stringent than rational basis, even if not strict scrutiny–a so-called intermediate approach. 2. R.E.F.I.T.

In Reform Educational Financing Inequities Today (R.E.F.I.T.) v. Cuomo, 86 N.Y. 279 (1995), the Court again rejected claims that the method of financing public education violated the Education Article and the State’s equal protection provision. Essentially the claim was that “gross” disparities in school-district financing of public education violated the Education Article and the State equal protection clause. As for the Education Article claim, the Court held that “gross disparity” in financing education without also alleging that it resulted in a failure to provide a “sound basic education” did not allege a violation of the Education Article, and plaintiffs had not alleged that the financial disparities caused a failure to provide a sound basic education. As for the equal protection argument, the Court adhered to its prior holdings that there was a rational basis for the financing system and rejected any contention that a more stringent equal protection or “heightened scrutiny” analysis was required. Campaign for Fiscal Equity, Inc. v. State of New York, 86 N.Y.2d 307 (1995) [CFE I], recognized those causes of action sufficient to sustain attacks on the State’s system for financing education and suggested a “template” for proving the allegations. Campaign for Fiscal Equity, Inc. v. State of New York, 100 N.Y.2d 893 (2003)[CFE II], reviewed the sufficiency of the proof offered in support of the allegations. 3. CFE I—LEGALLY SUFFICIENT CAUSES OF ACTION

Campaign for Fiscal Equity, Inc. v. State of New York, 86 N.Y.2d 307 (1995) [CFE I], decided the same day as R.E.F.I.T, supra, dealt with the legal sufficiency of the allegations in the complaint, not the evidence, in support of the challenges to the State’s system of financing education. In CFE I, plaintiffs claimed that the system violated the Education Clause, the State and Federal equal protection clauses, and the Federal Civil Rights Act of 1964 and its regulations. a. CFE I and the Education Article (1) Judge Ciparick’s majority opinion– the “template” for evidence of a “sound basic education” In CFE I, Judge Ciparick,5 with Judges Titone, Bellacosa and Smith concurring, held that the non–school board plaintiffs had pleaded a sustainable claim

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under the Education Article in a complaint that alleged the students in the New York City public school system were not afforded a sound basic education because of the inadequacy of the State’s financial support and maintenance of public education. Cf., Levittown, supra. First, Judge Ciparick rejected the contention that the claim was barred by Levittown. Judge Ciparick reasoned that Levittown had recognized that the “Education Article impose[d] a duty on the Legislature to ensure the availability of a sound basic education to all the children of the State” and “unambiguous[ly] acknowledg[ed] . . . a constitutional floor with respect to educational adequacy.” Judge Ciparick concluded the Education Article’s language was not merely “horatory”; the article imposed an actual duty on the Legislature, and the Court was “responsible for adjudicating the nature of that duty.” 86 N.Y.2d, at 315. Indeed, Levittown explicitly recognized that the term “education” in Article XI “connote[d] a sound basic education,” 57 N.Y.2d, at 48, and necessarily this meant that whether, in fact, the opportunity for a sound basic education had been afforded by the system established by the State is a question appropriate for judicial resolution. However, Judge Ciparick recognized that without discovery and evidentiary procedures, it was not possible to definitively say what constitutes a “sound basic education.” The most that could be accomplished at this stage of the proceedings was to establish a “template” as an aid in making that determination. [A sound basic] education should consist of the basic literacy, calculating, and verbal skills necessary to enable children to eventually function productively as civic participants capable of voting and serving on a jury. If the physical facilities and pedagogical services and resources made available under the present system are adequate to provide children with the opportunity to obtain these essential skills, the State will have satisfied its constitutional obligation. .... The State must assure that some essentials are provided. Children are entitled to minimally adequate physical facilities and classrooms which provide enough light, space, heat, and air to permit children to learn. Children should have access to minimally adequate instrumentalities of learning such as desks, chairs, pencils, and reasonably current textbooks. Children are also entitled to minimally adequate teaching of reasonably up-to-date basic curricula such as reading, writing, mathematics, science, and social studies, by sufficient personnel adequately trained to teach those subject areas. 86 N.Y.2d, at 316–17

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The foregoing “template” and description of the “essentials” became material to the evaluation of the evidence considered in CFE II, infra. Among other allegations, the complaint relied on standards established by the Board of Regents as a measure for assessing the educational opportunity afforded, as well as standardized competency examinations established by the Regents and the Commissioner of Education to measure minimum educational skills. While Judge Ciparick did not reject their relevance, she warned that the Court must be careful when referring to or relying on the Regents’ standards or the results of the examinations. Some of the standards even might exceed the minimal standards of a “sound basic education” and some may be only aspirational, and thus, the mere failure to comply with a standard may not be sufficient to find there was a denial of an opportunity for a sound basic education. As for the standardized examination, the Court advised that “[p]erformance levels on such examinations are helpful but should also be used cautiously as there are a myriad of factors which have a causal bearing on test results.” 86 N.Y.2d, at 317. Judge Ciparick addressed concerns expressed by Judge Levine, concurring, and by Judge Simons, dissenting, that the majority opinion would place the Court in the position of making funding directives because of expanded financial obligations implicit in the majority’s position. Judge Ciparick pointed out that the question of remedies, including funding, was not before the Court; rather, the question before the Court was the legal issue of the sufficiency of the allegations to state a cause of action. Judge Ciparick also agreed with Judge Simons that in order to succeed, plaintiffs would “have to establish a causal link between the present funding system and any proven failure to provide a sound basic education to New York City school children,” 86 N.Y.2d, at 318, but Judge Ciparick concluded that consideration of causation at the pleading stage was premature. (2) Judge Levine’s concurring opinion Judge Levine concurred with the majority holding that sustained the Education Article claim, but he wrote separately to express a more limited view of what constitutes a violation than what he thought the majority opinion might imply. Essentially, he concluded that the allegations based on Levittown’s definition of the State’s constitutional educational duty that the State’s public school financing scheme denies students a “sound basic education” with “minimal acceptable facilities and services,” plus the claim that the public school financing system denies New York City students “the opportunity to achieve even basic literacy,” were sufficient to withstand the motion to dismiss. He considered the

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inclusion of other factors in the complaint “essentially irrelevant to a determination of whether the current State school aid formula violates the Education Article of the State Constitution.” 86 N.Y.2d, at 325. (3) Judge Simons’ dissent Judge Simons dissented from the Court’s holding that a violation of the Education Article had been adequately pleaded. He disagreed with the approach of the majority and with Judge Levine that the article included a qualitative element and that it was subject to the Court’s assessment of whether that element had been satisfied. Judge Simons argued that the State satisfies its Constitutional obligation when it establishes a financial system making education available to all, and this the State had done. “It is for other branches of government, not the courts, to define what constitutes a sound basic education.” 86 N.Y.2d, at 333. b. CFE I and Equal Protection The complaint also alleged that the State and Federal Equal Protection clauses had been violated because of the disparate impact on minority students, but a majority held that the complaint failed to sufficiently allege a violation of either provision because intentional discrimination was not alleged and disparate impact alone was insufficient to constitute a violation of either the State or Federal equal protection provisions. Judge Smith and Judge Ciparick dissented and would not have dismissed the State equal protection claim; Judge Smith also would not have dismissed the Federal equal protection claim. c. CFE I and the Civil Rights Act of 1964 Because the schools received federal funds, plaintiffs also alleged that the State’s method of financial aid to education violated both the Federal Civil Rights Act of 1964 and its regulations. The Court unanimously held that the allegation of discriminatory impact, even without claiming it was intentional, constituted a cognizable claim that the regulations had been violated, but the Court also unanimously held that a cause of action under the Act, as distinguished from the regulations, required a claim of intentional discrimination. However, subsequently the Court changed its position on the right of a private cause of action under the Civil Rights Act and its regulations. In Campaign for Fiscal Equity, Inc. v. State of New York, 100 N.Y.2d 893 (2003) [CFE II], the Court, relying on Gonzaga University v. Doe, 536 U.S. 273 (2002), and “various federal circuit court decisions” applied the rule “that where a statute does not clearly and unambiguously create an implied private right of action, it also does not create rights enforceable” under the Civil Rights Act. CFE II, note 1.

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4. 2003—CFE II

In Campaign for Fiscal Equity, Inc. v. State of New York, 100 N.Y.2d 893 (2003) [CFE II], the Court dealt with whether the plaintiffs had met the evidentiary burdens imposed on them by definitions of the causes of action and the evidentiary “template” established in CFE I. That is, did the evidence support plaintiffs’ claims that the State’s financing of the education system had caused a failure to provide the opportunity for “all children” to acquire a “sound basic education” in the New York City School System? The trial court had answered the question in the affirmative; the Appellate Division found no constitutional violation and reversed the trial court. 295 A.D.2d 1 (1st Dept. 2002). Chief Judge Kaye’s opinion for the 4–1 Court of Appeals majority, Judge Read dissenting,6 reversed the Appellate Division and dealt with the differences between the lower courts and also responded to Judge Read’s position, which basically was that evaluation of the quality of the education system was a legislative policy question, not appropriate for judicial resolution. The “paramount” question before the Court in CFE II, according to Chief Judge Kaye, was the definition of a sound basic education. The second major question was whether the trial court’s or the Appellate Division’s findings of fact “more nearly comport[ed] with the weight of the credible evidence.” a. Defining a “sound basic education”—high school education v. eighth or ninth grade Referring to what the Court had said in CFE I that “equated a sound basic education with ‘the basic literacy, calculating, and verbal skills necessary to enable children to eventually function productively as civic participants capable of voting and serving on a jury’ (86 N.Y.2d, at 316) [, she said] it indicated that a sound basic education conveys not merely skills, but skills fashioned to meet a practical goal: meaningful civic participation in contemporary society.” 100 N.Y.2d, at 903. The Education Article, she continued, creates the constitutional mandate that a sound basic education requires consideration of what a “‘rising generation’ needs in order to function productively as civic participants, [and that this] should be measured with reference to the demands of modern society and include some preparation for employment.” Id. (emphasis added). The parties agreed that a sound basic education included these elements, but disagreed on what would satisfy them. As for employment, the Appellate Division had concluded that the ability to function productively in the context of employment meant nothing more than “‘the ability to get a job, and support oneself, and thereby not be a charge on the public fisc’ (295 A.D.2d, at 8).” For the Appellate Division this meant that the

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obligation of the State did not extend beyond providing an eighth or ninth grade education for this would provide the ability to “function productively,” including the ability to be employed. The Chief Judge disagreed. She declared, “More is required.” She approved the trial court’s view that to “function productively” meant the ability to obtain “competitive employment,” and that while “a sound basic education need only prepare students to compete for jobs that enable them to support themselves, the record establishes that for this purpose a high school level education is now all but indispensable.” 100 N.Y.2d, at 906 (emphasis added). As for other aspects of civic participation, the Appellate Division had focused on the statement in CFE I, 86 N.Y.2d, at 316, that a sound basic education should leave students “capable of voting and serving on a jury.” Based on the expert testimony of a psychologist that “pattern jury instructions and newspaper articles typically feature vocabulary and sentence length comparable to those of texts eighth-graders are expected to be able to read, the Appellate Division concluded that the skills necessary for civic participation are imparted between eighth and ninth grades (295 A.D.2d, at 8).” 100 N.Y.2d, at 906. The trial court, by contrast, concluded that productive citizenship “‘means more than just being qualified to vote or serve as a juror, but to do so capably and knowledgeably (187 Misc.2d, at 14 [emphasis in original])—to have skills appropriate to the task.’” Id. The Chief Judge said that voting and jury service simply were the hallmarks “par excellence” of an inclusive democracy reflected in history and statutes, but were not the minimum requirements to function productively in a democracy. More was needed—the ability to function “capably and knowledgeably” in contemporary society—and without actually setting the point at which a high school education met those standards, it was clear that education beyond the ninth grade was essential. Id. b. Evaluating the system—the evidence Turning to the question of evaluating whether the system met the “sound basic education” requirement, the issue that had to be resolved by the evidence “is whether the State affords New York City schoolchildren the opportunity for a meaningful high school education, one which prepares them to function productively as civic participants.” 100 N.Y.2d, at 908. The goals set by the Board of Regents’ Learning Standards were not the minimum standards for making this judgment for, as the Court had said in CFE I, many of the standards were simply aspirational and even exceeded the minimum constitutional requirements. Moreover, to set the required minimum at the level of the Learning

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Standards “would be to cede to a state agency [the Board of Regents] the power to define a constitutional right.” The trial court had found on the evidentiary record that consisted of the testimony of 72 witnesses and 4,300 exhibits “that the State over many years had consistently violated the Education Article of the Constitution.” Organized and analyzed in term of inputs—teaching, facilities and instrumentalities of learning, and outputs—such as test results and graduation and dropout rates, the evidence was directed at evaluating whether the State had provided the opportunity for New York City public school students to acquire a sound basic education. Cf. CFE I, the template and its summary of the “essentials,” supra. In addition the evidence addressed the issue of causality, i.e., whether deficiency in educational opportunities was caused by the State’s method of financing the City’s system. Chief Judge Kaye presented an extensive review of the large trial record; what follows is summary and does not include the myriad details considered by the Court. Turning to the specific “inputs,” the Court of Appeals sustained the trial court’s findings concerning teaching “that New York City schools provide deficient teaching because of their inability to attract and retain qualified teachers.” The Court of Appeals also upheld the trial court’s findings that books were so inadequate in number and quality as to fail to meet even the needs of the prescribed curriculum, and that computers were inadequate in number and could not support available software. In addition, shortage of space, whether by virtue of building design or overcrowding, was shown to have a negative impact on providing a sound basic education, but as for the condition of physical facilities, the Court held that on the record it could not be said that plaintiffs had “proved a measurable correlation between building disrepair and student performance, in general.” The Chief Judge concluded that “the educational inputs in New York City schools are inadequate. . . . [T]ens of thousands of students are placed in overcrowded classrooms, taught by unqualified teachers, and provided with inadequate facilities and equipment. The number of children in these straits is large enough to represent a systemic failure.” She conceded that a “showing of good test results and graduation rates among these students—the ‘outputs’—might indicate that they somehow still receive the opportunity for a sound basic education, [but she concluded that] [t]he showing . . . is otherwise.” As for graduation rates, the evidence showed that of those students who completed the ninth grade and did not transfer to another school system, only 50 percent graduate in four years, and 30 percent do not graduate or receive a general

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equivalency degree (“GED”) by the age of twenty-one, when they cease to be eligible for free public education. This rate of school completion compares unfavorably with both state and national figures, and the trial court considered it symptomatic of “system breakdown.” The State’s contention that the high drop-out rate was a consequence of socioeconomic factors was not deemed material to the State’s defense, because the Constitution required the State to afford the opportunity for a sound basic education to all students regardless of socioeconomic factors. The Chief Judge noted that the evidence showed that the large dropout rates reflected inadequacies of the schools, as well as of the students. In any event, there was insufficient evidence from which to conclude that given sufficient motivational inputs, the dropout rate due to socioeconomic factors would not or could not be substantially mitigated. The Appellate Division had relied on evidence that showed some successful results in standardized examinations taken by students in the City’s schools. In view of the constitutional standard, the Court of Appeals considered these results as largely irrelevant for a number of reasons. Some of the examinations were graded on the basis of a norm, not whether they satisfied the achievement of a “sound basic education.” In addition, most of the examinations relied on were administered in grade school or before completion of high school and could not have measured whether high school had delivered a sound basic education. As for causation, the Court relied on the obvious relation between financing and what it had concluded was inadequate teaching, books, computers, and physical facilities. However, the State argued that a major source of the inadequate supply of funding was due to mismanagement by the City, even corruption, as well as collective bargaining agreements with the teachers and the City’s practice of reducing its funding of education when the State increased its contribution. The corruption claim was rejected by the lower courts and not further addressed by the Court of Appeals. As for claims of mismanagement, the Court recognized that there could be some savings in the way in which special education is administered and also that the City did reduce its contribution when the State increased its funding. However, this did not rebut the plaintiffs’ claims; it simply allocated blame and this did not help the State. The Court reasoned that the City was the agent of the State for educational purposes and even if the City was at fault, in whole or in part, it remained the obligation of the State to deal with the problem and to provide the constitutionally required opportunity for a sound basic education by resorting to legislation or other measures governing how the City dealt with education. The Chief Judge characterized development of the remedy as perhaps the most difficult aspect of CFE II. The State wanted a simple remedy that would

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simply direct the State to correct deficiencies. The trial court’s remedy was more detailed. It “ordered the State first to ascertain the actual cost of providing a sound basic education State-wide, and then reform the system to (1) ensure that every school district has the resources necessary to provide a sound basic education; (2) take into account variations in local costs; (3) provide sustained and stable funding in order to promote long-term planning by school districts; (4) provide ‘as much transparency as possible so that the public may understand how the State distributes School aid’; and (5) ensure a system of accountability to measure the effect of reforms implemented. . . .” 100 N.Y.2d, at 925–26 (citation omitted). The Court of Appeals rejected or modified several of the trial court’s directives. It first rejected the directives concerning a state-wide remedy as an attempt to deal with abstract questions well beyond the concrete facts before the Court. The Court limited the remedy to redressing the inadequacies of the system before the Court, i.e., the New York City schools. Thus, the Court rejected items (1) and (2) of the trial court’s remedy. In addition, the Court rejected the trial court’s direction that the “State ascertain the actual cost of providing a sound basic education State-wide,” and narrowed its scope to providing a sound basic education city-wide. Rejecting item (3) of the trial court remedy, the Court stated it was “not prepared to say as a constitutional matter that a new system must ensure the City ‘sustained and stable funding.’” This position was based on concerns about the complexities presented by the limitations on the power of the City to tax and the complex relations between the State and the City on fiscal matters and current challenges to the legal framework governing the City’s management of its schools. Of course, to the extent the measures employed by the State in response to the Court’s directives involved financial aspects it almost necessarily would have statewide effects. In addition, there was nothing that prevented the State on its own initiative to deal with state-wide funding problems. In addition, the Court recognized that the State could build on “mechanisms” already in place, such as the Federal No Child Left Behind law and other measures that could be used to identify deficient schools, even though they were not based on or specifically designed to meet State constitutional violations. The State claimed that there were several initiatives in progress or planned to meet the constitutional deficiencies, but the Court was not ready to credit the State with having already met deficiencies by virtue of initiatives without demonstrable outcomes. When they became operational the State would have the opportunity to have the effects reviewed by the Court. In any

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event, the Court noted that the State was not limited to financial measures to supply a sound basic education, but could also address City and school governance questions, although the Court expressed doubt that fiscal measures could be avoided in the attempt to assure the opportunity for a sound basic education for all children in the New York City school system. Addressing the transparency requirement of item (4) of the trial court order, the Court of Appeals said it knew “of no practical way to determine whether members of the political branches have complied with an order that the funding process become as transparent as possible, and . . . therefore [it] decline[d] to incorporate” it in the Court of Appeals order. Nevertheless, the Chief Judge observed that “[n]o one . . . disputes the trial court’s description of the existing education funding scheme as needlessly complex, malleable and not designed to align funding with need. . . . The causes are worth considering.” 100 N.Y.2d, at 929. The Chief Judge concluded that “the political process allocates to City schools a share of State aid that does not bear a perceptible relation to the needs of City students. . . . [We agree] that the funding level necessary to provide City students with the opportunity for a sound basic education is an ascertainable starting point. Once the necessary funding level is determined, the question will be whether the inputs and outputs improve to a constitutionally acceptable level. Other questions about the process—such as how open it is[, i.e, transparency,] and how the burden is distributed between the State and City—are matters for the Legislature desiring to enact good laws.” After modifying the trial court’s remedy, CFE II resulted in the Court directing the State to ascertain the “actual cost of providing a sound basic education” and to enact “appropriate reforms” to that end. CFE II was decided on June 26, 2003; the Court gave the State until July 30, 2004, to comply with the Court’s directives. 5. PAYNTER

Paynter v. State of New York, 100 N.Y.2d 434 (2003), and CFE II were decided on the same day. In each case plaintiffs claimed the State and school districts had violated the State Constitution’s Education Article. While CFE II involved a claim of failure to provide adequate funding or resources, Paynter involved what the Court characterized as “a novel theory.” 100 N.Y.2d, at 438. In Paynter, African-American students brought a class action against the State and the Rochester City School District (RCSD) and other districts, claiming that they were being denied their right to an opportunity for a sound basic education under the Education Article, not because of inadequate funding or resources,

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but because of State “practices and policies that have resulted in high concentrations of racial minorities and poverty in the [RCSD], leading to abysmal student performance.” Id. Legal restrictions, including residence restrictions and tuition requirements for attending school outside the district in which the student resides, resulted in students being unable to avoid these adverse demographic factors. Essentially, plaintiffs claimed that the State’s failure to mitigate demographic factors that may affect student performance resulted in their failure to have the opportunity to obtain a sound basic education. The Court of Appeals sustained the dismissal of the complaint on the grounds that it did not state a cause of action under the Education Article. The Court, citing Levittown, reasoned that the Education Article did not guarantee equal education opportunities in every school district, but did recognize that a cause of action under the Education Article would lie where “gross and glaring inadequacy” in plaintiff’s school could be established. Id., at 439. However, there were no allegations such as those in CFE I and II concerning inadequate funding and resources, the failure to provide an opportunity for a sound basic education with proof of inputs and outputs.7 For the Court “the only [allegation] of deficient input [in the complaint] is the composition of the student body of RCSD schools [, and] no matter how well the State funds their schools, if plaintiffs and their classmates fail, it is the State’s responsibility to change the school population until the results improve.” Id., at 441. The Court concluded that the failure to allege that the State had not supplied minimally necessary resources resulted in the failure to allege a cause of action under the Education Article. It is not the State’s obligation under that article to remedy every source of possible educational deficiency, for the “causes of academic failure may be manifold, including such factors as the lack of family support and health care. But, [the Court held] if the State truly puts adequate resources into the classroom, it satisfies its constitutional promise under the Education Article, even though student performance remains substandard.” Id., at 441. Unlike requiring the State to provide additional resources, a remedy that does not “alter the substance” of the existing system beyond the demands of the Education Article, the remedy required to implement the plaintiffs’ claim would undermine the traditional and core principles that support local control of education in a manner that has “no discernible relation to the objectives of the Education Article.” Id., at 442. Judge Smith, dissenting in a long and closely reasoned opinion, indeed one that could be described as impassioned, reviewed the history of the plight of poor school districts in the State and the State’s history of segregation and desegregation. He claimed, inter alia, that the complaint, at bottom, did allege inad-

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equate resources, but even if the allegations were inadequate, he urged that the plaintiffs should be given an opportunity to replead their causes of action. Judge Smith elaborated on his view of the complaint. Interpreting the allegations liberally and giving them the benefit of all favorable inferences (CFE I, 86 N.Y.2d, at 317), as we must, plaintiffs have properly pleaded a cause of action under the Education Article. Specifically, plaintiffs’ allegations support the claim that in light of the State’s history of segregation, providing a sound education in a school district with a high concentration of poor and minorities requires more than the minimal funds the State has provided. Plaintiffs cite to a 1998 S[tate] E[ducation] D[epartment] report stating schools in districts such as Rochester “by and large, are schools faced with the challenge of educating large numbers of children placed at risk by poverty. . . . Throughout this report, in fact, we document a dismaying alignment of disadvantaged children (disproportionately children of color), schools with the poorest educational resources (fiscal and human), and substandard achievement.” It cannot be overlooked that there is a correlation between plaintiffs’ claim that a high concentration of poor and minority students denies an opportunity for a sound education and the fact that the funds available to their districts are primarily based on property taxes. Id., at 465–66

Judge Smith contended that under his liberal reading of the complaint, Plaintiffs should be given the opportunity to establish that in light of the history of segregation, and the high concentration of poor and minority students, the resources made available under the State’s financing system are inadequate to provide them with the opportunity to obtain the skills necessary to enable them to function productively as civic participants capable of voting and serving on a jury. Plaintiffs should be able to show that in the City of Rochester, additional resources are needed. Id., at 466

Judge Smith conceded that “the clear emphasis of the allegations . . . is on the racial and poverty aspects of the Rochester schools,” but he maintained the record does not indicate that the RCSD resources are adequate. He claimed that “the record shows the opposite,” and the “outcomes alleged in the complaint are indications that the resources are inadequate.” However, he did

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recognize that if the complaint were not dismissed, plaintiffs would still have to prove “a link between the outcomes and the action or inaction of the State and that if the State provides sufficient funds, they would have access to the resources that would allow the schools to provide a sound basic education.” Id., at 467.

22. Abortion, Right to Control Own Medical Care, and Some Related Matters I. The “Justifiable Abortion Act”: Constitutionality and Byrn v. New York City Health and Hospitals Corporation Chapter 270 of the Laws of 1970, popularly known as the “justifiable abortion act,” amended New York Penal Law § 125.05, subdivision 3, by liberalizing the previously narrow basis on which abortion could be justified to avoid criminal liability. The New York Court of Appeals sustained the constitutionality of the act under the Federal and State Constitutions in Byrn v. New York City Health and Hospitals Corporation, 31 N.Y.2d 194 (1972), affirming 38 A.D.2d 316 (2d Dept. 1972). Byrn was decided before the Supreme Court held in Roe v. Wade, 410 U.S. 113 (1973), that the Federal constitutional right to privacy whether based on the Fourteenth or Ninth Amendment was “broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” 410 U.S., at 153. Each case dealt with a woman’s right to an abortion from different vantage points. Roe v. Wade dealt with the constitutionality of a state’s restriction on the right to an abortion; it was a declaratory judgment action in which a woman sought a declaration that a Texas statute which sharply restricted a woman’s right to an abortion was unconstitutional. Byrn dealt with the question of whether New York’s recognition of a woman’s right to an abortion was unconstitutionally too broad. In Byrn, Special Term appointed plaintiff to act as guardian ad litem for the unborn fetus and claimed that the New York statute denied the unborn embryo

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(the child en ventre sa mere) constitutional protection to life provided by the due process and equal protection clauses to which the embryo, as a person, was entitled under the State and Federal Constitutions. The Health and Hospitals Corporation contended that Special Term’s order appointing the guardian was improper, and that a fetus of less than twenty-four weeks gestation is not a person entitled to the claimed constitutional protections. The Appellate Division stated that the Health and Hospitals Corporation also had argued “that a woman has a constitutional right to choose whether to bear a child, which may not be restricted in the absence of a compelling State interest.” 38 A.D.2d, at 321. This was the question addressed in Roe v. Wade. However, the question of the pregnant woman’s right was not explicitly addressed by the majority opinions in Byrn, but Judge Burke’s dissenting opinion states that the New York Attorney General, as part of the defense of the statute’s constitutionality, argued “that there is a legitimate State interest in a woman’s right of privacy.” 31 N.Y.2d, at 206. A divided Appellate Division, reversed Special Term, which had appointed the guardian ad litem and had declared the “justifiable abortion act” unconstitutional, and had enjoined “all abortion acts” except those permitted by the law prior to the new statute—i.e., where the mother’s life was endangered. The Court of Appeals affirmed the Appellate Division’ reversal of Special Term. The Court of Appeals opinions in Byrn, due in large measure to the procedural context in which the issues were presented, addressed some of the most contentious philosophical issues concerning abortion, including the status of the fetus as a human being. There were four Court of Appeals opinions in Byrn. Judge Breitel’s opinion affirming the Appellate Division was concurred in by Chief Judge Fuld and Judges Bergan, Gibson, and Jasen. Judge Jasen also wrote a separate concurring opinion in favor of affirmance, concurred in by Chief Judge Fuld and Judges Bergan, Breitel, and Gibson. Judges Burke and Scileppi voted to reverse and wrote separate dissenting opinions, in which each concurred with the other. The issues were sharply and passionately argued in the four Byrn opinions.

A. Some History Judge Breitel adopted the Appellate Division majority opinion’s description of New York’s “legal history of the concept of persons in the law and of the act of abortion.” 31 N.Y.2d, at 200. After briefly reviewing, but not attempting to resolve the dispute over whether the “abortion of a quick child” was a crime at common law or “a purely ecclesiastical offense,” the Appellate Division opinion proceeded to describe New York’s statutory history of abortion.

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New York, by the Laws of 1829, enacted penal provisions making abortion a crime. . . . Every person who administered to a woman pregnant with a quick child any medicine, drug or substance, or used any instrument or other means, with intent to destroy the child, unless it shall have been necessary to preserve the life of the woman, was guilty of manslaughter in the second degree. Procurement of a miscarriage, unless necessary to preserve the life of the mother, was made a misdemeanor. . . . Preservation of the life of the woman remained the sole justifiable ground for abortion under New York penal statutes and was carried over into subdivision 3 of section 125.05 in the completely revised Penal Law enacted . . . [in] 1965 which became effective on September 1, 1967. In the meantime, however, the winds of change had begun to gather force . . . [48 States and Puerto Rico] had criminal abortion statutes in 1965 limiting legal abortions to the single purpose of preserving the life of the prospective mother. In [two States] and the District of Columbia, preservation of the mother’s health was also a ground of justification. In 1962, however, the American Law Institute published its Model Penal Code and presented an abortion statute extending the justifiable reasons for abortion to include the risk of grave impairment of the mother’s physical or mental health, risk of bearing a child with a grave physical or mental defect, and pregnancy resulting from rape, incest or other felonious intercourse. From 1966 through 1970, 13 . . . States . . . amended their abortion statutes along the lines suggested in the Model Penal Code. In 1970, Hawaii legalized all abortions of a nonviable fetus performed by a licensed physician. In January 1968 Governor Rockefeller appointed an 11 member commission under the leadership of Charles W. Froessel, retired Judge of the Court of Appeals, to study New York’s abortion law. The Froessel Commission issued its report in March 1968. All commission members agreed that abortion to preserve the mother’s life is justifiable but a substantial majority found this single ground too limited. It was the majority’s view that this lone justification prevented many doctors from practicing what they believed to be good medicine. Many doctors and hospitals had admitted a growing use of “psychiatric indication” of threatened suicide to justify abortions, even though the actual suicide rate of pregnant women was a fraction of that of nonpregnant women “of the same age.” Many abortions had been performed on women who had contracted rubella in the first trimester of pregnancy, even though the disease had threatened only the health of the child and not the life of the mother. The majority [of the Froessel Commission] found that even if the lowest estimates were used, approximately 200,000 abortions were performed in the

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United States each year and that the restrictive law created an abortion “racket” operated by doctors without regard for the law or by untrained persons using the most primitive of instruments under the most unsanitary conditions. They also found that the restrictive law unfairly discriminated against the poor, who could not travel to other jurisdictions for safe and legal abortions or pay the price of competent but unethical doctors in this State for either the illegal operation or the “psychiatric indication” to bring it within the color of the law. While many individuals and groups had urged the adoption of an “abortion on request” statute, the majority of the Froessel Commission recommended that abortion be justified only when certain conditions were satisfactorily demonstrated.1 . . . Three members of the commission filed a minority report, contending that the child en ventre sa mere had constitutional and legal rights to live and that the social consequences of a liberalized abortion law would be an increase in abortions to the point where the abortion rate would virtually outstrip the birth rate, our traditional concept of the sanctity of human life would be diluted, and family values would be eroded. Bills adopting the commission’s recommendations for a liberalized abortion law and endorsed by the Governor were presented to the Legislature in 1968 and in 1969, but failed of passage. 38 A.D.2d, at 319–21 (citations omitted; emphasis added)

B. The 1970 Act The “justifiable abortion act,” enacted in 1970, was the subject of constitutional challenge in Byrn. The new law amended subdivision 3 of section 125.05 of the Penal Law, which had limited a justifiable abortion to one performed by a licensed physician, with the woman’s consent, acting under a reasonable belief that the abortion would be necessary to preserve her life. The new law added the additional justification that an abortion is justifiable when committed upon a female with her consent by a duly licensed physician within twenty-four weeks after the commencement of her pregnancy.

C. Byrn: Judge Breitel’s Opinion Judge Breitel stated the question for the Court, as follows: The issue, a novel one in the courts of law, is whether children in embryo are and must be recognized as legal persons or entities entitled under the State

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and Federal Constitutions to a right to life. It is not effectively contradicted, if it is contradicted at all, that modern biological disciplines accept that upon conception a fetus has an independent genetic “package” with potential to become a full-fledged human being and that it has an autonomy of development and character although it is for the period of gestation dependent upon the mother. It is human, if only because it may not be characterized as not human, and it is unquestionably alive. The issue has been debated [in the Court of Appeals and in Special Term and the Appellate Division] on two levels. The first level turns on the legal history of the concept of persons in the law and of the act of abortion. . . . The answer is clear enough. Unborn, and even unconceived, children have been recognized as acquiring rights or interests in narrow legal categories involving the inheritance or devolution of property. . . . Fetuses, if they are born alive, have been entitled in modern times to recover in tort for injuries sustained through the host mother. . . . Indeed, unconceived children have been represented in proceedings affecting property by guardians ad litem. . . . But unborn children have never been recognized as persons in the law in the whole sense. . . . As for abortion, when the act has been made criminal or otherwise unlawful in the law, the direct design was evidently to protect the mother from injury and dangerous practices. . . . It has been argued, of course, that antiabortion laws were also designed to protect the fetus; but the argument is hard to sustain so long as there have been provisions that limited unlawful abortions to pregnancies after “quickening” and abortions have been justified to protect the mother even though it meant destruction of the fetus. In any event, the historical analysis is interesting, not determinative, and only of limited influence. Both those who attack the present statute and those who defend it must and do rely ultimately on modern science and particularly modern asepsis and techniques to mount their attacks or defend their positions.” 31 N.Y.2d, at 199–200 (citations omitted; emphasis added)

Judge Breitel then went on to discuss the “real” or “second level of debate” which “turn[ed] on whether a human entity, conceived but not yet born, is and must be recognized as a person in the law.” On the one hand, it is “assumed that an entity if treated anywhere in the law as a person must be so treated for all purposes,” but Judge Breitel argued that those who take this position are not consistent when they recognize that an abortion should be permitted when the life of the mother is at risk, for this would deliberately sacrifice one innocent life for another—a concept our law does not endorse. Judge Breitel pointed out that “[i]ssue is never really joined at this [second] level because the antagonists are

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talking about different things although they use the same terminology.” 31 N.Y.2d, at 200–201 and 203 (emphasis added). Conceptually, whether in philosophy or in religious doctrine, and the doctrine is not confined to any one religion, a conceived child may be regarded as a person, albeit at a fetal stage. It is not true, however, that the legal order necessarily corresponds to the natural order. . . . That it should or ought is a fair argument, but the argument does not make its conclusion the law. 31 N.Y.2d, at 200–201 (citations omitted; emphasis added)

Analyzing the issue and citing recognized jurisprudes—Kelsen, Friedmann, Paton and Gray—to the effect that what is a legal person is not necessarily consistent with some concept of a “natural” fact; rather it is “for the law, including, of course, the Constitution, to say, which simply means that upon according legal personality to a thing the law affords it the rights and privileges of a legal person.” The process is, indeed, circular, because it is definitional. Whether the law should accord legal personality is a policy question which in most instances devolves on the Legislature, subject again of course to the Constitution as it has been “legally” rendered. That the legislative action may be wise or unwise, even unjust and violative of principles beyond the law, does not change the legal issue or how it is to be resolved. The point is that it is a policy determination whether legal personality should attach and not a question of biological or “natural” correspondence. 31 N.Y.2d, at 201 (emphasis added)

Judge Breitel concluded that although there are “real issues” in the Byrn litigation, . . . they are not legal or justiciable. They are issues outside the law unless the Legislature should provide otherwise. The Constitution does not confer or require legal personality for the unborn; the Legislature may, or it may do something less, as it does in limited abortion statutes, and provide some protection far short of conferring legal personality. 31 N.Y.2d, at 203 (emphasis added). He found that the law did not confer the legal status of “person” on the fetus in the context of the abortion statute.

D. Byrn: Judge Jasen’s Opinion Judge Jasen concurred with Judge Breitel and wrote a separate concurring opinion, for the purpose of further meeting the positions of the dissenters. He wrote:

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To those who contend, as plaintiff does, that biological and legal “life” arise in their full “human” sense at conception, the issue is settled. . . . On the other hand, to those who regard conception as the creation of life of less-thanhuman status, the “controversy has merely begun.” Thus, we are asked to choose, as a matter of law, between extreme positions and competing values that concededly may be metalegal, mindful of Justice Holmes’ admonition in his now vindicated dissent in Lochner v. New York (198 U.S. 45, at p. 76) that the Constitution “is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States.” As Judge Breitel’s opinion recognizes, the formidable task of resolving this issue is not for the courts. Rather, the extent to which fetal life should be protected “is a value judgment not committed to the discretion of judges, but reposing instead in the representative branch of government.” . . . Since the Constitution does not prohibit the determination made by the Legislature and there is a reasonable basis for it, the validity of the statute should be sustained. I would merely note that law is not unprincipled because it does not embrace all principles, and it would be a spiritless universe in which the law embraced all principles. This has been the teaching of western civilization and its great religions. 31 N.Y.2d, at 204–5 (citations and footnote omitted)

E. Byrn: Judge Burke’s Dissent Judge Burke, dissenting, disagreed with the majority in every basic respect, including the formulation of the issue. The majority opinion states the issue as: “whether the law should accord legal personality is a policy question which in most instances devolves on the Legislature, subject again of course to the Constitution as it has been ‘ legally’ rendered.” This argument was not only made by Nazi lawyers and Judges at Nuremberg,[2] but also is advanced today by the Soviets in Eastern Europe. It was and is rejected by most western world lawyers and Judges because it conflicts with natural justice and is, in essence, irrational. To equate the judicial deference to the wiseness of a Legislature in a local zoning case with the case of the destruction of a child in embryo which is conceded to be “human” and “is unquestionably alive” is an acceptance of the thesis that the “State is supreme,” and that “live human beings” have no inalienable rights in this country. [3] The

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most basic of these rights is the right to live, especially in the case of the “unwanted” who are defenseless. The late Chief Judge Lehman once wrote of these rights: “The Constitution is misread by those who say that these rights are created by the Constitution. The men who wrote the Constitution did not doubt that these rights existed before the nation was created and are dedicated by God’s word. By the Constitution, these rights were placed beyond the power of Government to destroy.” In other words, what the Chief Judge was saying was that the American concept of a natural law binding upon government and citizens alike, to which all positive law must conform, leads back through John Marshall to Edmund Burke and Henry de Bracton and even beyond the Magna Carta to Judean Law. Human beings are not merely creatures of the State, and by reason of that fact, our laws should protect the unborn from those who would take his life for purposes of comfort, convenience, property or peace of mind rather than sanction his demise. 31 N.Y.2d, at 205–6 (emphasis added).

Judge Burke proceeded to attack as “unpersuasive” what he described as the Attorney General’s arguments, to wit: that it is for the Legislature, not the judiciary, to make the value judgment in choosing between the competing values involved, and “there is a legitimate State interest in a woman’s right of privacy and in the undesirable effect of unwanted children upon society.” He concluded that “the legislation cannot stand for two reasons—it is irrational and unconstitutional.” 31 N.Y.2d, at 206. As for the irrationality of the legislation, Judge Burke addressed the factual underpinnings of the purported policy arguments urged in its favor. The irrationality of the legislation in question has several aspects. In view of modern and reliable contraception devices, there is no reason for unwanted conceptions to take place that would cause an exceptional population growth. Secondly, the argument that these unborn children are unwanted is fallacious as there are many, many families presently interested in adoption, who would be more than happy to welcome such an infant into their home. Thirdly, as we reach zero population growth, there is no compelling State interest to support the abortion legislation. Additionally, . . . the plaint regarding women dying from botched abortions under the old law is easily answered. Examples of due justice for foetuses are more merciful than the unbounded exercise of pity for those few unfortunate pregnant women who fall into the hands of the few inexpert doctors. . . . To overcome this self-created problem by destroying hundreds of thousands of

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foetuses by State Law is uncivilized. At best, a few human beings are only possibly wholly preserved from a fate set in motion by themselves at the sacrifice of hundreds of thousands and soon millions of other human beings. Nor can the old abortion law be said to be an interference with a physician’s right to practice his profession. The old abortion law sanctioned therapeutic abortion when medically indicated, thus enabling the physician to save the life of the mother in extreme circumstances. 31 N.Y.2d, at 206–7 (emphasis in original).

As for the statute’s unconstitutionality, Judge Burke described an abortion as “the butchering of a foetus” and argued that the embryo, as a living human being, was entitled to the “inalienable right to life” addressed in the Declaration of Independence and to be protected against having its life terminated simply at the will of the pregnant woman. Moreover, the explanation of the Froessel Commission “that it was not dealing with ‘morality’ but only law, overlooked the fact that it turned its back on the law—the natural law reiterated in the Declaration of Independence. The reasons given for the enactment of the present abortion law are irrational from a medical, scientific and factually objective analysis. There is no need for abortion except in very limited medical circumstances.” 31 N.Y.2d, at 208, 209 (emphasis in original). Indeed, Judge Burke argued that the “‘justifiable abortion act’ authorizing abortion ‘on demand’ is a resort to expediency which is recognized everywhere as the death of principle.” 31 N.Y.2d, at 208. “As long as the proponents of abortion, all of whom I assume condemn genocide, have no rational reason to refuse to assign the same principle of natural law to abortion as they do to genocide, they are inconsistent. To sum up, conception can be legally avoided—adoption opportunities are enormous—abortion legislation except in rare medical cases is neither necessary, humanly acceptable, legal nor constitutional.” The fundamental nature of life makes impossible a classification of living, human being as nonpersons, who can be excluded from the protection of the Constitution of the United States so that their right to life can be taken from them in spite of the due process clause and equal protection clause. Such a classification is constitutionally suspect. The relationship between the classification excluding this human group of foetuses from the enjoyment of the right to life and the fabricated purposes for which the classification is made are so imperfect that it follows that the classification is clearly unconstitutional. In answer to the concurring opinion of Judge Jasen, which was filed after this opinion, I merely add that there can be no debate or value judgment when

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the operating doctors and their nurses examine the bucket in the operating room. They should know they have destroyed living human beings, the remains of which are in the bucket. . . . The United Press International recently reported the birth of a foetus at 21 weeks in a New York hospital. Was it “less—than—human”? 31 N.Y.2d, at 212–13 (emphasis in original).

II. Other Cases Involving Abortion, Wrongful Life, and Related Matters Although Byrn v. New York City Health and Hospitals Corporation, 31 N.Y.2d 194 (1972), was the major New York decision on abortion during the period covered by this book, the Court of Appeals decided several other cases involving abortion, as well as cases on the subject of wrongful life.

A. State Preemption of Local Regulation of Abortion—Robin v. Village of Hempstead The day after Byrn was argued, the Court of Appeals handed down its decision in Robin v. Incorporated Village of Hempstead, 30 N.Y.2d 347 (1972), and held that the State had preempted the subject of abortion legislation. The Court invalidated a village ordinance, adopted in 1971 (after the enactment of the “justifiable abortion act”) that provided that “‘[j]ustifiable abortion acts’ . . . shall be performed only in a hospital duly licensed and accredited under the New York State Department of Health, and having equipment and facilities acceptable to the State Hospital Review and Planning Council.” The Court based its decision on the language of the newly enacted justifiable abortion act, which required only that the act be performed by a licensed physician and made no reference to the place where it would be performed. In addition, the Legislature had failed to enact either of two bills that would have required the abortion act to be performed in a hospital as required by the challenged ordinance. Moreover, no reason had been shown to justify recognition of any special circumstance to permit local departure from the abortion rules that prevailed throughout the rest of the State. Consequently, the Court concluded the ordinance was unconstitutional. Judge Burke, who with Judge Jasen would dissent in Byrn a little over one month later, concurred in the holding that the ordinance was unconstitutional, but without accepting the ‘justifiable abortion act” as a valid exercise of legislative power; Judge Jasen dissented.

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B. Tort Actions 1. ILLEGAL ABORTION AND MEDICAL MALPRACTICE

On June 6, 1970, after the “justifiable abortion act” was enacted (April 11, 1970) but before the effective date of the new law (July 1, 1970), defendant physician performed an abortion on the plaintiff, who claimed she was damaged by the physician’s negligence. Reno v. D’Javid, 42 N.Y.2d 1040 (1977), affirming on the Appellate Division memorandum, 55 A.D.2d 876 (1st Dept. 1977), approved the dismissal of the medical malpractice and allied claims on the grounds that the “operative procedure was illegal on the date performed” and both the woman and the physician were guilty of a crime. The “subsequent expansion of the definition of the term “justifiable abortion act” (Penal Law, § 125.05, subd. 3, eff. July 1, 1970) did not legalize the act committed prior to the effective date of the amended statute. The basic principle was that “Plaintiff, having participated in an illegal act, may not profit therefrom.” 55 A.D.2d, at 877. Judge Fuchsberg, the lone dissenter, argued that under the facts it was possible the jury could find that the claimed injury did not occur as a result of the abortion, but rather from deficiency of subsequent care. He implicitly suggested that the Court might well have considered whether the policy concerning abortion had not changed between the enactment and effective date of the liberalized abortion statute. The “Opinion of the Court” addressed one point. “In response to the dissenting opinion only one comment is necessary. The more grievous violation at issue is not that of the statute prohibiting abortions, itself the object of a changing legislative view, but of the paramount public policy imperative that the law, whatever its content at a given time or for however limited a period, be obeyed.” 42 N.Y.2d 1040. 2. NEGLIGENTLY ADVISING ABORTION

In Martinez v. Hillside Long Island Jewish Center, 70 N.Y.2d 697 (1987), plaintiff who had deep-seated religious convictions opposing abortion had an abortion as a result of the erroneous advice from the defendants. Genetic counselors had mistakenly advised her that medication she had been taking during the first trimester of her pregnancy would cause her baby to “be born with the congenital birth defect of microcephaly (small brain) or anencephaly (no brain). Based on this advice she submitted to an abortion believing that it would be justified under the extraordinary circumstances presented to her by defendants. After the abortion was performed, she learned that the advice defendants gave her was erroneous and the abortion was unnecessary.” 70 N.Y.2d, at 698–699. Her claim, supported by the evidence and accepted by the jury, was that the harm she suffered was not attributable to the harm caused the fetus, i.e., harm to a

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third party, which would have precluded recovery. Rather, the defendants’ negligently proffered advice caused her to suffer deep emotional and psychological consequences from having consented to the abortion, an act contrary to her deeply held beliefs. Judge Titone dissented. He wrote: I cannot concur in either the result or the majority’s reasoning. In its effort to distinguish this case from the line of cases disallowing recovery for bystanders’ emotional trauma, the court has, in effect, recognized a new cause of action for negligent infliction of harm to an individual’s deep-seated beliefs. The creation of such a cause of action is certainly not in harmony with our prior case law. While we have previously recognized a right of recovery for intentional infliction of emotional distress by outrageous conduct . . . and have permitted recovery for shock and emotional distress resulting from negligently induced fear of physical injury . . . we have never gone so far as to suggest that tort compensation could be had for emotional distress derived from the guilt resulting from performing an act contrary to one’s convictions because negligently advised to do so. Because I cannot accept this new theory, and its possible ramifications, I dissent. 70 N.Y.2d, at 700 (citations omitted) 3. WRONGFUL DEATH ACTION FOR STILLBORN FETUS

Endresz v. Friedberg, 24 N.Y.2d 478 (1969), a 5–2 decision, concerned a wrongful death action. brought by a personal representative on behalf of a stillborn fetus against a defendant who allegedly caused it to be stillborn because of injuries the defendant had inflicted while the fetus was en ventre sa mere. The Court ruled the claim could not be sustained under the Wrongful Death Act. The majority rejected the contention that the contrary conclusion was impelled by Woods v. Lancet, 303 N. Y. 349 (1951), which overruled Drobner v. Peters, 232 N.Y. 220 (1921), and held that “a child viable but in utero, if injured by tort, should, when born, be allowed to sue.” 303 N.Y., at 353. Judge Burke, who later would dissent in Byrn, supra, did so in Endresz, with Judge Keating concurring. The dissenters relied on contrary holdings in other jurisdictions and the reasoning of Woods v. Lancet. 4. “WRONGFUL LIFE”

In Stewart v. Long Island College Hospital, 30 N.Y.2d 695 (1972), affirming, 35 A.D.2d 530 (2d Dept. 1970), on the Appellate Division opinion, it was alleged that a hospital and its physicians negligently failed to recommend a “therapeutic abortion” to a pregnant woman who had contracted rubella. Indeed, one physician recommended she should not have an abortion. Actions were brought

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on behalf of the child, who was born with some deformities, and on behalf of the parents for the physical pain and mental anguish they allegedly suffered due to the birth of the child. The Appellate Division held that in New York State there were no cognizable causes of action for the alleged wrongful birth, either for the child or the parents. One of the precedents relied on was Williams v. State of New York, 18 N.Y.2d 481 (1966), which had denied a cause of action on behalf of a child born out of wedlock whose mentally deficient mother had been raped while a patient in a State hospital for the mentally ill and it was alleged that the rape had resulted from the facility’s negligence in her care and custody. The Court of Appeals also agreed with the Appellate Division with respect to the cause of action on behalf of the parents and refused to recognize a new cause of action. The Appellate Division stated: The cause of action asserted by the parents, like that of the child, is one not previously known to the law. As such, it should await legislative sanction and should not be accepted by judicial fiat. . . . This is particularly so when viewed against a backdrop of public policy which at the time declared the proposed abortion to be an illegal one (former Penal Law, s 80). We note that it would be virtually impossible to evaluate as compensatory damages the anguish to the parents of rearing a malformed child as against the denial to them of the benefits of parenthood . . . 38 A.D. 2d, at 532. (citations omitted)

The denial of a cause of action for wrongful life was reiterated in Becker v. Schwartz, 46 N.Y.2d 401 (1978), and its companion case, Park v. Chessin. In both cases plaintiffs claimed that the negligence of the physicians caring for the mothers during their respective pregnancies resulted in the birth of an abnormal child who would not have been born but for the negligence of the physicians. In neither case did the plaintiffs claim that the abnormalities were caused by the physicians; rather, it was claimed the physicians negligently failed to advise the parents of the likelihood that the child would be born with the abnormalities. In Becker a child was born with Down’s Syndrome, a lifelong condition. Plaintiffs claimed that the doctors did not warn the parents that when the mother is older than thirty-five, there is a strong likelihood the child would suffer from Down’s Syndrome; in addition, the doctors failed to advise them of the availability of the amniocentesis test to determine whether the fetus would be born so afflicted. In Park, the mother bore a child who died of a kidney disease within five days of her birth. The parents wanted to have another child, but were concerned about the risk that the disease was hereditary; they asked the physician who said

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it was not. They had a second child, who died of the disease at the age of two and one-half years. The complaint alleged the disease was hereditary but the doctor negligently told them the contrary. Actions were brought on behalf of each infant for “wrongful life” and on behalf of the parents for various expenses incurred for the care of the mother and the child, for the loss of the services of the mother, for the emotional distress caused each parent, and, in Becker, for the future cost of institutionalizing the child. The Court unanimously dismissed the “wrongful life” causes of action on behalf of the infants. Judge Jasen wrote the opinion concurred in by the majority that dismissed the “wrongful life” actions. Noting that “although no longer shackled by the conceptual difficulties formerly posed by a ‘wrongful death’ action, courts have again been drawn toward the murky waters at the periphery of existing legal theory to test the validity of a cause of action for what has been generically termed ‘wrongful life.’” 46 N.Y.2d, at 405. Even as a pure question of law, unencumbered by unresolved issues of fact, the weighing of the validity of a cause of action seeking compensation for the wrongful causation of life itself casts an almost Orwellian shadow, premised as it is upon concepts of genetic predictability once foreign to the evolutionary process. It borders on the absurdly obvious to observe that resolution of this question transcends the mechanical application of legal principles. Any such resolution, whatever it may be, must invariably be colored by notions of public policy, the validity of which remains, as always, a matter upon which reasonable men may disagree. 46 N.Y.2d, at 408

Judge Jasen reviewed the various contexts in which the term “wrongful life” has been used. He distinguished those cases where a perfectly normal child is born from those of the cases at bar where an abnormal child is born. He further identified three types of cases where a normal child is born: “wrongful conception,” “wrongful diagnosis,” and “wrongful birth.” In “wrongful conception” cases, damages are sought “for the birth of an unplanned child, [when one of the parents] has undergone an unsuccessful surgical birth control procedure.” In “wrongful diagnosis” cases, “the birth of a child [is] attributable to a ‘wrongful diagnosis’ of an existing pregnancy, resulting in the deprivation of the mother’s choice to terminate the pregnancy within the permissible time period.” Citing cases, he noted that “courts have struggled with the concepts of ‘wrongful conception’ or ‘wrongful diagnosis’ as cognizable causes of action, [but] they have had little difficulty in rejecting a cause of action

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for “wrongful birth,” a case in which “an illegitimate, but otherwise healthy child, seeks recovery in his or her own behalf for the injury suffered as a consequence of his or her birth into this world as a stigmatized child. To this point, courts have refused to sustain this cause of action.” (Citing Williams v. State of New York, supra, and other cases). 46 N.Y.2d, at 408–10, passim. Becker and Park [stand] distinctly apart from claims based upon a wrongful conception, a failure to diagnose a pregnancy, or an illegitimate birth, in which the essence of the wrong for which compensation is sought is the birth of a healthy and normal albeit unplanned child, plaintiffs’ claims are premised upon the birth of a fully intended but abnormal child for whom extraordinary care and treatment is required.” 46 N.Y.2d, at 410. [T]here are two flaws in plaintiffs’ claims on behalf of their infants for wrongful life. The first, in a sense the more fundamental, is that it does not appear that the infants suffered any legally cognizable injury [citing William, supra]. There is no precedent for recognition at the Appellate Division of “the fundamental right of a child to be born as a whole, functional human being” (60 A.D.2d, at p. 88, 400 N.Y.S.2d, at p. 114). . . . Whether it is better never to have been born at all than to have been born with even gross deficiencies is a mystery more properly to be left to the philosophers and the theologians. Surely the law can assert no competence to resolve the issue, particularly in view of the very nearly uniform high value which the law and mankind has placed on human life, rather than its absence. Not only is there to be found no predicate at common law or in statutory enactment for judicial recognition of the birth of a defective child as an injury to the child; the implications of any such proposition are staggering. Would claims be honored, assuming the breach of an identifiable duty, for less than a perfect birth? And by what standard or by whom would perfection be defined? There is also a second flaw. The remedy afforded an injured party in negligence is designed to place that party in the position he would have occupied but for the negligence of the defendant. . . . Thus, the damages recoverable on behalf of an infant for wrongful life are limited to that which is necessary to restore the infant to the position he or she would have occupied were it not for the failure of the defendant to render advice to the infant’s parents in a nonnegligent manner. The theoretical hurdle to an assertion of damages on behalf of an infant accruing from a defendant’s negligence in such a case becomes at once apparent. The very allegations of the complaint state that had the defendant not been negligent, the infant’s parents would have chosen not to conceive, or having conceived, to have terminated rather than to have

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carried the pregnancy to term, thereby depriving the infant plaintiff of his or her very existence. Simply put, a cause of action brought on behalf of an infant seeking recovery for wrongful life demands a calculation of damages dependent upon a comparison between the Hobson’s choice of life in an impaired state and nonexistence. This comparison the law is not equipped to make. . . . Recognition of so novel a cause of action requiring, as it must, creation of a hypothetical formula for the measurement of an infant’s damages is best reserved for legislative, rather than judicial, attention. . . . Accordingly, plaintiffs’ complaints insofar as they seek damages on behalf of their infants for wrongful life should be dismissed for failure to state legally cognizable causes of action.4 46 N.Y.2d, at 411–12 (citations omitted; emphasis added)

O’Toole v. Greenberg, 64 N.Y.2d 427 (1985), involved “wrongful conception” and a unanimous court concurred in Judge Jasen’s opinion. Addressing the unanswered question in Becker v. Schwartz, supra, the Court held that “a medical malpractice action brought by a husband and wife seeking recovery of the ordinary costs of raising a healthy, normal child, born after an unsuccessful birth control operation, does not state a legally cognizable claim.” 64 N.Y.2d, at 429. Judge Jasen began with the question of whether damage was caused to a legally recognized interest of the plaintiffs and concluded that “as a matter of public policy that the birth of a healthy child does not constitute a cognizable legal harm for which an action in tort will lie. . . . To hold that the birth of a healthy child represents a legal harm would be to engage this court in the jurisprudentially improper task of recasting the immutable, intrinsic value of human life according to the financial burden thus imposed upon the parents. Accordingly, we hold that the birth of a healthy child, as but one consequence of defendant’s tortious conduct, does not constitute a harm cognizable at law.” 64 N.Y.2d, at 432. The Supreme Court had held that plaintiffs had failed to mitigate the damage by obtaining an abortion, but inasmuch as the Court of Appeals held that there was no legally cognizable damage as a consequence of the defendants’ negligence, the Court concluded that it did not have to address the question of mitigation. 64 N.Y.2d, at 432, note 6.

C. “Medically Necessary” Abortions and State Financial Aid Matter of the City of New York v. Wyman, 30 N.Y.2d 537 (1972), a 6–1 decision, affirmed City of New York v. Wyman, 37 A.D.2d 700 (1st Dept. 1971), on the dissenting opinion of Justice Steuer at the Appellate Division.5 The Court

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decided that the State Commissioner of Social Services’ directive limiting Medicaid reimbursement for abortions to those “medically indicated” was neither unconstitutional nor a violation of State or Federal statutory law. The directive, as construed, limited reimbursement to those abortions that are necessary to preserve the life or health of the expectant mother, and would not include an abortion simply because the woman does not wish to bear a child. The Court rejected the contention that the directive revived the “substantive evil” the Justifiable Abortion Act of 1970 was intended to avoid, and that it unconstitutionally undermined the constitutional and statutory right of a woman to have an abortion, noting that many other medical procedures were not reimbursable by Medicaid and that the unqualified right to an abortion did not mean that there was an entitlement to have the State pay for the abortion. In Hope v. Perales, 83 N.Y.2d 563 (1994), the Court again addressed State financial aid for abortions when it considered a statute that defined eligibility for financial aid for “medically necessary” abortions. New York’s Prenatal Care Assistance Program (PCAP) excluded persons with income 85 percent above the poverty level from receiving financial aid for “medically necessary” abortions. The Court, in a unanimous decision, held that the failure to include those women did not violate the State or Federal constitutions. Chief Judge Kaye reasoned that the PCAP was directed at infant mortality and other defects arising from lack of financial means to care for the child after it was born; ineligibility for an abortion because it was not “medically necessary” did not affect eligibility for postnatal care under PCAP. Moreover, a person with income 85 percent above the poverty level could obtain an abortion, but without State financial assistance. In addition, no evidence was presented that lack of financial assistance compelled a person to continue pregnancy to the end of term and thereby undermine the constitutional and statutory right to abortion. Basically, for the foregoing reasons the Court rejected the due process and equal protection arguments against the statute. The Court also rejected the claims that the statute violated Article XVII, § § 1 and 3, of the State Constitution, the Aid to the Needy and Public Health Clauses, because PCAP excludes coverage for medically necessary abortions irrespective of the financial or medical need of the participants. The Court concluded, as it had with the equal protection and due process contentions, that it was “bound to accept the legislative determination that PCAP-eligible women are not indigent or in need of public assistance to meet their medical needs.” Moreover, both the Aid to the Needy and Public Health clauses give the Legislature “discretion to promote the State’s interest in aiding the needy and promoting public health ‘in such manner, and by such means as the Legislature

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may from time to time determine.’” Applying the principle that the statute was presumed to be constitutional, the Court could not “say beyond a reasonable doubt that, by not including abortion funding in PCAP the Legislature ha[d] transgressed its powers.” 83 N.Y.2d, at 578–79.

D. Kass v. Kass and the Status of Pre-zygotes Kass v. Kass, 91 N.Y.2d 554 (1998), dealt with the status under the law of a prezygote, defined as “eggs which have been penetrated by sperm but have not yet joined genetic material.” These eggs could be frozen and later implanted in a woman. Kass involved a dispute between a divorced couple over the disposition of the frozen pre-zygotes, which had been produced by the parties prior to the divorce. Their disposition was the subject of an agreement between the parties entered into prior to the divorce. The Court “conclude[d] that disposition of these pre-zygotes does not implicate a woman’s right of privacy or bodily integrity in the area of reproductive choice; nor are the pre-zygotes recognized as ‘persons’ for constitutional purposes. . . . The relevant inquiry thus becomes who has dispositional authority over them. Because that question is answered in this case by the parties’ agreement, for purposes of resolving the present appeal we have no cause to decide whether the pre-zygotes are entitled to ‘special respect.’ 91 N.Y.2d, at 564–65 (citations omitted).

III. The Individual’s Right to Control Own Medical Care A. Storar: Termination of Extraordinary Life Support Matter of Storar v. Dillon and Matter of Eichner v. Dillon, 52 N.Y.2d 363 (1981), consolidated cases, sharply presented the possible conflict between the rights of the patient and the power and obligations of the State in determining when extraordinary medical care may be terminated. The Court took the occasion to address and apply some applicable general principles concerning an individual’s control over his or her own body. Judge Wachtler wrote the opinion for the majority in both cases, concurred in by Chief Judge Cooke and Judges Jasen, Gabrielli, and Meyer. Judge Jones wrote an opinion dissenting in part, and Judge Meyer also concurred in part of Judge Jones’s opinion. Judge Fuchsberg dissented, arguing that both cases should be dismissed, because the deaths of the patients rendered them moot.

Abortion 659 1. THE STORAR MAJORITY OPINION

Judge Wachtler distinguished between a competent adult and an infant. As for a competent adult: . . . At common law, as Cardozo noted, every person “of adult years and sound mind has a right to determine what should be done with his own body; and a surgeon who performs an operation without his patient’s consent commits an assault, for which he is liable in damages. . . . This is true except in cases of emergency where the patient is unconscious and where it is necessary to operate before consent can be obtained” (Schloendorff v. Society of N. Y. Hosp., 211 NY 125, 129–130 [1914]. Even in emergencies, however, it is held that consent will not be implied if the patient has previously stated that he would not consent. . . . The basic right of a patient to control the course of his medical treatment has been recognized by the Legislature (see Public Health Law, § § 2504, 2805-d; CPLR 4401-a). 52 N.Y.2d, at 376 (citations omitted)

As for an infant: A parent or guardian has a right to consent to medical treatment on behalf of an infant (Public Health Law, § 2504, subd. 2). The parent, however, may not deprive a child of lifesaving treatment, however well intentioned (Matter of Sampson, 29 N.Y.2d 900 [1972] . . . Even when the parents’ decision to decline necessary treatment is based on constitutional grounds, such as religious beliefs, it must yield to the State’s interests, as parens patriae, in protecting the health and welfare of the child (Matter of Sampson, supra . . . Of course it is not for the courts to determine the most “effective” treatment when the parents have chosen among reasonable alternatives (Matter of Hofbauer, 47 N.Y.2d 648 [1979]). But the courts may not permit a parent to deny a child all treatment for a condition which threatens his life . . . The case of a child who may bleed to death because of the parents’ refusal to authorize a blood transfusion presents the classic example ( . . . Matter of Sampson, supra). 52 N.Y.2d, at 380–81 (citations omitted)6

Eichner involved Brother Fox, an eighty-three-year-old retired member of a Catholic religious order, when as the result of a hernia operation, he “lost the ability to breathe spontaneously and was placed on a respirator which maintained him in a vegetative state.” At the time, Brother Fox had resided since his

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retirement at Chaminade, where Father Eichner was the president and director of the order at the school. In an application that was joined in by all of Brother Fox’s surviving relatives, Father Eichner and the hospital requested the court to issue an order appointing him guardian of Brother Fox’s person and property and authorizing removal of the life support system. The attending physicians informed Father Eichner, “that there was no reasonable chance of recovery and that Brother Fox would die in that state.” 52 N.Y.2d, at 371. This prognosis was confirmed by two neurosurgeons retained by Father Eichner. Brother Fox had been in full control of his mental faculties prior to the operation, and there was strong evidence that on at least two occasions he had seriously expressed the view that he did not wish his life to be prolonged in the event he should be in a vegetative state. One of those occasions was two months before the hernia operation. In response to the application, the Court appointed a guardian ad litem and directed that notice be served on the District Attorney and others. “At the hearing the District Attorney opposed the application and called medical experts to show that there might be some improvement in the patient’s condition. All the experts agreed, however, that there was no reasonable likelihood that Brother Fox would ever emerge from the vegetative coma or recover his cognitive powers.” 52 N.Y.2d, at 371. In contrast with Brother Fox, John Storar, who had been diagnosed with irreversible cancer of the bladder, was never competent at any time in his life, and his mental capacity at the time of the application in question was neither worse nor better than at any other time in his life. Storar’s mother had requested the hospital to discontinue blood transfusions and treatment, except for painkillers, but the hospital applied to the Court for permission to continue the transfusions. The Court heard testimony from various witnesses, including Mrs. Storar, several employees at the center, and seven medical experts. All the experts concurred that John Storar’s cancer had by then spread to his lungs and perhaps other organs, and that he was left “with a very limited life span, generally estimated to be between three and six months. They also agreed that he had an infant’s mentality and was unable to comprehend his predicament or to make a reasoned choice of treatment. In addition, there was no dispute over the fact that he was continuously losing blood.” 52 N.Y.2d, at 374. It was conceded that John Storar found the transfusions disagreeable. He was also distressed by the blood and blood clots in his urine which apparently increased immediately after a transfusion. He could not comprehend the purpose of the transfusions and on one or two occasions had displayed some ini-

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tial resistance. To eliminate his apprehension he was given a sedative approximately one hour before a transfusion. He also received regular doses of narcotics to alleviate the pain associated with the disease. On the other hand several experts testified that there was support in the medical community for the view that, at this stage, transfusions may only prolong suffering and that treatment could properly be limited to administering pain killers. Mrs. Storar testified that she wanted the transfusions discontinued because she only wanted her son to be comfortable. She admitted that no one had ever explained to her what might happen to him if the transfusions were stopped. She also stated that she was not “sure” whether he might die sooner if the blood was not replaced and was unable to determine whether he wanted to live. However, in view of the fact that he obviously disliked the transfusions and tried to avoid them, she believed that he would want them discontinued. 52 N.Y.2d, at 375

Although Storar and Brother Fox were adults chronologically, the Court held that they should be treated differently. In view of persuasive evidence from witnesses with no motive to lie about Brother Fox’s thoughtful and considered desire that life support should be discontinued under the circumstances presented, the Court held that as an adult, his wish should be honored. Judge Wachtler found that John Storar’s situation differed from that of Brother Fox in two significant ways. First, Storar “was always totally incapable of understanding or making a reasoned decision about medical treatment. Thus it is unrealistic to attempt to determine whether he would want to continue potentially life prolonging treatment if he were competent. As one of the experts testified at the hearing, that would be similar to asking whether ‘if it snowed all summer would it then be winter?’ Mentally John Storar was an infant and that is the only realistic way to assess his rights in this litigation.” 52 N.Y.2d, at 381. Second, there were two threats to John Storar’s life: incurable bladder cancer and the loss of blood. Each would claim his life, but the likelihood was that loss of blood would cause his death earlier. However, his death from the latter cause could be delayed by blood transfusions. “Thus, as one of the experts noted, the transfusions were analogous to food—they would not cure the cancer, but they could eliminate the risk of death from another treatable cause.” Judge Wachtler concluded that a “court should not in the circumstances of this case allow an incompetent patient to bleed to death because someone, even someone as close as a parent or sibling, feels that this is best for one with an incurable disease.” 52 N.Y.2d, at 381–82.

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2. JUDGE JONES’S DISSENT

Judge Jones agreed with the majority’s reasoning and the result with respect to Brother Fox (Eichner), but disagreed with both in Storar. He also agreed with Judge Wachtler’s statement of the basic principles governing the cases. Part I of Judge Jones’s opinion, with which Judge Meyer concurred, dealt with doubts and reservations about the role of the judicial system in cases involving the withdrawal of life support. In view of the fact that Storar and Eichner “pose[d] issues for judicial resolution in a field of the most far-reaching and solemn implications concerning” which the Court did “not yet have the benefit of any legislative enactment in New York or the guidance of any extensive body of decisional law,” Judge Jones would have preferred that the majority opinion contained discussion of several points which, even if it revealed differences on the Court, might “provide the initiative for or underscore the desirability of legislative address and action.” 52 N.Y.2d, at 383–84. First, Judge Jones would have preferred explicit acknowledgment that the problem is one which the judicial system is unsuited and ill-equipped to solve and which should not usually be made the subject of judicial attention. The lapse of time necessarily consumed in appellate review before there can be a final judicial determination will almost always be unacceptable and makes recourse to judicial proceedings impractical. The methodology and the techniques of our classic adversary system are not best suited to the resolution of the issues presented. The courts can claim no particular competence to reach the difficult ultimate decision, depending as it necessarily must not only on medical data, but on theological tenets and perceptions of human values which defy classification and calibration. 52 N.Y.2d, at 386

Judge Jones also noted that decisions of this nature, in fact, have long been made without judicial intervention and there has been neither deeply felt demand for judicial intervention generally nor evidence that the common practices of relatives, physicians, and religious counselors have resulted in widespread abuse. Judge Jones recognized that, of course, some individual decisions may have been erroneous, but he did not believe that the judiciary was necessarily in a better position to make superior decisions. In short, Judge Jones thought that the majority opinion should “expressly have recognized the availability of, but not the necessity for, judicial approval of surrogate decisions in cases such as these. The fact that there is no such recognition serves to underscore

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the high desirability, here and elsewhere expressed, of legislative attention and action.” 52 N.Y.2d, at 387 (emphasis added). Judge Jones also recognized that there were instances when those interested in a patient might desire judicial authorization to remove extraordinary life support. Consequently, Judge Jones thought it would have been desirable for the Court to “explicitly affirm the authority of our courts . . . to grant authorization for withholding or withdrawal of extraordinary life support medical procedures, notwithstanding the absence of evidence of an anticipatory expression of the attitude or wishes of the particular patient. . . .” 52 N.Y.2d, at 386–87. Moreover, Judge Jones expressed his belief in the likelihood that there would be an increasing number of cases coming to the courts concerning removal of extraordinary life support. Consequently, he expressed his preference that the majority opinion should have provided more constructive guidance, especially for the benefit of health providers and to the lower courts, concerning procedures and what had to be proved to authorize judicial approval for the removal of life support. However, he declined to go further than express his desire on this point, because he believed that the expression of one judge on these procedural matters, where the others were silent, would serve no useful purpose. Judge Jones’s dissent in Storar rested on three main grounds. First, he believed it was error to grant the hospital standing to institute the proceeding. Second, his view of the factual findings below concerning the effect of continuing the blood transfusions did not support the majority’s conclusions. Third, he would have upheld the Appellate Division’s denial of the hospital’s application opposing the mother’s decision based on factual findings supported by the evidence that “his mother over his lifetime had come to know and sense [John’s] wants and needs and was acutely sensitive to his best interests; that she had provided more love, personal care, and affection for John than any other person or institution, and was closer to feeling what John was feeling than anyone else; that his best interests were of crucial importance to her [and t]hat in his mother’s opinion it would have been in John’s best interests to discontinue the transfusions, and she believed that he would wish to have them stopped.” 52 N.Y.2d, at 391.

B. Rivers v. Katz: State Constitutional Right to Refuse Antipsychotic Medicine Rivers v. Katz, 67 N.Y.2d 485 (1986), continued the judicial recognition of an individual to control his or her own medical treatment. Rivers involved three patients who objected to being forced to take or to have antipsychotic drugs administered. Each had been involuntarily committed to a mental institution by

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court order based on explicit findings under the applicable statute, Mental Hygiene Law § 9.01, that they were “persons ‘in need of involuntary care and treatment’ in that they have a ‘mental illness for which care and treatment as a patient in a hospital is essential to [their] welfare and [their] judgment is so impaired that [they are] unable to understand the need for such care and treatment.’” Prior to seeking judicial relief, the patients sought and were denied relief under the administrative review process established by regulations of the Commissioner of Mental Health. The lower courts sustained the denial on the “reason[ing] that the involuntary retention orders necessarily determined that these patients were so impaired by their mental illness that they were unable to competently make a choice in respect to their treatment.” 67 N.Y.2d, at 491–92 (emphasis added). A unanimous Court of Appeals reversed and “h[e]ld that the due process clause of the New York State Constitution (art I, § 6) affords involuntarily committed mental patients a fundamental right to refuse antipsychotic medication.” 67 N.Y.2d, at 492 (emphasis added). The Court had not decided previously whether there was a constitutional right to terminate life support because common law principles were adequate to decide the case. Storar, supra, 52 N.Y.2d, at 377 (referring to Eichner). In Rivers, the Court reaffirmed the “extensive” and “fundamental” common law right and stated that “it is coextensive with the patient’s liberty interest protected by the due process clause of our State Constitution.” 67 N.Y.2d, at 493. Moreover, the Court also concluded that those rights were reflected in Public Health Law § 2504, which provided, inter alia, that individuals had the power, without the consent of others, to consent to medical services for themselves. Rivers did recognize that under its police power, the State could employ force to administer an antipsychotic drug where “the patient presents a danger to himself or other members of society or engages in dangerous or potentially destructive conduct within the institution.” Typically, this would embrace emergency situations, and the exercise of power would be for a short duration and had to be justified by a “compelling” interest. 67 N.Y.2d, at 495–96. In addition to the police power, the State in the exercise of its parens patriae power could forcibly administer drugs to a person incapable of caring for himself and incapable of determining whether he should or should not take the drugs. But, the Court said, “Such a determination is uniquely a judicial, not a medical function.” 67 N.Y.2d, at 496 (emphasis added). The Court also reviewed much of the literature on the subject of a patient’s capacity to make the relevant decisions for him or her self and concluded “it is well accepted that mental illness often strikes only limited areas of functioning,

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leaving other areas unimpaired, and consequently, that many mentally ill persons retain the capacity to function in a competent manner.” 67 N.Y.2d, at 494. Consequently, neither mental illness nor institutionalization per se can stand as a justification for overriding an individual’s fundamental right to refuse antipsychotic medication on either police power or parens patriae grounds. Rather, due process requires that a court balance the individual’s liberty interest against the State’s asserted compelling need on the facts of each case to determine whether such medication may be forcibly administered. 67 N.Y.2d, at 498

In Rivers, the Court found the record did not establish a basis for employing the police or parens patriae power to forcibly administer the antipsychotic drugs. In addition, the Court found the regulations establishing the administrative procedure to be inadequate, particularly because they set no standards for decision-making.

C. Fosmire: Patient’s Right to Refuse Blood Transfusion In Fosmire v. Nicoleau, 75 N.Y.2d 218 (1990), “an adult Jehovah’s Witness, [when she became pregnant and even prior to entering the hospital, specifically] refused to consent to blood transfusions prior to delivery of her baby and persisted in the refusal after losing a substantial amount of blood following the Cesarean birth of the child.” The hospital applied to the Supreme Court to authorize the blood transfusion. The hospital argued that there was an overriding State interest in overriding the conceded right of a patient to refuse medical treatment because (1) the relatively simple procedure was necessary to and would save the life of an otherwise healthy young person, and (2) the State had a “substantial interest in protecting a minor child from the loss of the mother.” 75 N.Y.2d, at 221. The Supreme Court in an ex parte order with no notice to the patient, a practical nurse, or her husband, a radiologist, or any other member of her family, stated that the order had been signed and that it authorized the transfusion; two days later the transfusion took place. The Appellate Division vacated the order.7 In three separate opinions, the Court of Appeals unanimously affirmed the Appellate Division’s reversal. Judges Kaye, Alexander, Titone, and Bellacosa concurred with Chief Judge Wachtler, and Judges Simons and Hancock, Jr., concurred in separate opinions.

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Chief Judge Wachtler reaffirmed the Court’s prior holdings that, absent some special circumstances, an adult has the absolute right to control his or her medical treatment, including refusal of treatment that might preserve the patient’s life. First, the Chief Judge held that there should have been notice and a hearing on whether the order should be issued. This was not such an “emergency” situation. “There was ample time to provide notice and an opportunity for a hearing, however informal,” 75 N.Y.2d, at 225, and the failure to do so is particularly egregious in view of the patient’s repeated unequivocal prior refusals to give her consent. The Chief Judge made it clear that in the case of an actual emergency, a physician need not seek a court order to save the patient’s life. Here, of course, the patient clearly was competent, but the Chief Judge said that in the event competence is in question, a court order should be sought, and if “the patient is not presently competent the court must determine whether there is clear and convincing evidence that the patient, when competent, made a firm resolve to decline treatment. . . .” 75 N.Y.2d, at 225 (citation omitted, emphasis added). On the merits, Chief Judge Wachtler found it was unnecessary to address the constitutional question concerning the patient’s rights with respect to religion,8 because both the common law and statutes gave her, as a competent adult, the right to refuse treatment unless special circumstances were present. He rejected the claim that preserving a two-parent family served the best interests of the child and thereby overrode the patient’s own individual right to control medical treatment. He reviewed a large number of precedents that dealt with the patient’s right to determine his or her medical treatment and found neither a precedent nor a legislative expression in a statute or regulation that could be read to limit the patient’s right because the patient is a parent. Moreover, the argument that the patient’s decision to choose the almost certain risk of death was the equivalent of a voluntary abandonment of the child, a violation of law, stretched the concept of abandonment well beyond its statutory meaning. In short, the fact that a patient is a parent does not limit her right to make a decision to control her own medical care. In response to statements in the concurring opinions, the Chief Judge emphasized that his opinion should not be read as endorsing the right to suicide. Indeed, in Fosmire, the patient had expressly and forcefully expressed her desire to live, but aside from her religious convictions, she also doubted that transfusions were the only means to continue life and also expressed concerns about the danger of contracting AIDS from a blood transfusion. Fosmire contains a very broad and strong endorsement of a right to personal choice with respect to medical decisions.

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Contrary to the suggestion in the concurring opinions, we are not saying that a statute or regulation is necessary to establish or strengthen an identifiable State’s interest. A particular State interest in individual, otherwise private, conduct arises by virtue of the shared common goals and needs of the body politic and exists whether or not the Legislature has chosen to take specific action implementing that interest. All we are saying is that on this record none of the interests asserted by the hospital can be said to outweigh the patient’s right to make her own medical choices, a right which is recognized at common law and supported by existing statutes and constitutional principles. 75 N.Y.2d, at 231, note 39

23. Family Law

I. Constitutional Law Issues Most of the constitutional issues raised in Family Law cases have involved the full faith and credit provision of the Federal Constitution. Thus Estin v. Estin, 296 N.Y. 308 (1947) aff’d 334 U.S. 541 (1947) considered a case in which the wife had obtained a separation and an alimony award in New York, after which the husband moved to Nevada. There, he obtained a divorce in an action in which, after constructive service on the wife in New York of the summons and complaint, he was awarded a divorce on the basis of three years separation. However, as no provision was made for alimony, the husband ceased making payments under the earlier New York judgment. The wife then moved in the separation action for judgment for the arrears, and the Court of Appeals held that while full faith required it to recognize the Nevada judgment as to the dissolution of the marriage, it did not require that the alimony provision of the earlier New York judgment be canceled. Accord: Kreiger v. Kreiger, 297 N.Y. 530 (1947), aff’d 334 U.S. 555 (1947). However, Lynn v. Lynn, 302 N.Y. 193 (1951) cert. denied 342 U.S. 849 (1951), held that the Nevada court had jurisdiction of the wife’s person by reason of her appearance and therefore it had power to determine her right to alimony, but having failed to do so, full faith required application of Nevada’s rule that no right of support survived except as awarded by the final decree of divorce or an authorized amendment of its decree. Therefore, the Court held that the alimony provision of the prior separation judgment was overridden by the divorce decree, which made no grant of alimony.

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But full faith plays no part in the determination of the custody of minor children in New York, irrespective of the residence and domicile of the parents and prior custody orders made in a foreign jurisdiction. In Matter of Bachman v. Mejias, 1 N.Y.2d 575 (1956), the Court ruled that the duty of the New York court was to base its custody determination solely on the welfare of the minor children. Nor as the Court held in Matter of Luna v. Dobson, 97 N.Y.2d 178 (2001), does full faith require New York to accord finality to dismissal by a foreign state of a custody proceeding brought in a foreign jurisdiction if the courts of that state would not do so. Matter of Luna involved a paternity proceeding brought in New York after Connecticut had dismissed a similar proceeding based on the default of the Connecticut Attorney General’s office, which had brought the proceeding on the mother’s behalf. The Luna opinion stated that New York is required only to give the same preclusive effect to the Connecticut judgment that Connecticut would under its law, and Connecticut courts have held that the right of a child to a conclusive determination of paternity supersedes the need for finality of judgments. Luna held that the New York proceeding was not precluded by the Connecticut court’s dismissal. The decision of the Court in Matter of Fitzpatrick v. Smith, 59 N.Y.2d 916 (1983), cert. denied, 464 U.S. 963 (1983), is notable for its lack of discussion; it simply affirmed for the reasons stated in the memorandum of the Appellate Division, 90 A.D.2d 974 (1982), upholding Civil Rights Law § 79-a prohibiting marriage by prison inmates serving sentences of life imprisonment “as an additional punishment for crimes of a most serious nature,” predicated solely on earlier Federal and State decisions, Johnson v. Rockefeller, 365 F. Supp. 317 aff’d sub nom Butler v. Wilson, 415 U.S. 953 (1974); Muessman v. Ward, 95 Misc.2d 478 (1978), but without reviewing the reasoning of those cases. There are, however, later decisions of Federal and State trial courts holding that CRL § 79-a violates equal protection in that it affects only unmarried life inmates and expressly excludes from additional punishment married prisoners serving life sentences, Langone v. Coughlin, 712 FS 1061 (NDNY 1989), Matter of Heric, 175 Misc.2d 601 (1998). However, no case based on the Langone-Heric rationale has reached the Court of Appeals and, therefore, the continuing vitality of Matter of Fitzpatrick remains in doubt.1 Equal protection was also at issue in Matter of Doe v. Coughlin, 71 N.Y.2d 48 (1987); Matter of Fay, 44 N.Y.2d 137 (1978), app. dsmd. sub nom. Buck v. Hunter, 439 U.S. 1059 (1979); and Matter of Lalli, 43 N.Y.2d 65 (1977), aff’d. sub nom. Lalli v. Lalli, 439 U.S. 259 (1978). Matter of Doe was decided by three judges concurring in the opinion (Simons, Titone, and Bellacosa), one of whom (Bellacosa) wrote a concurring memorandum, one of whom (Chief Judge Wachtler) wrote a separate concurring opinion, and three judges

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(Alexander, Kaye, and Hancock) who concurred in a dissenting opinion. Judge Simons’ opinion held administrative as well as legislative classifications subject to equal protection review but that absolute equality was not required. A classification that resulted in unequal treatment would be sustained if it rationally furthered a legitimate articulated state purpose. It concluded that John Doe’s affliction with AIDS was a rational basis for denying his application for conjugal visits with his wife, and therefore did not violate equal protection, due process, or the right to privacy. Judge Bellacosa’s one-sentence concurrence was written only to note that as to privacy in some cases a higher test than rational basis would be necessary. Chief Judge Wachtler’s concurrence stated that a higher standard of analysis than rational basis was required but was met in the John Doe case. The dissent, written by Judge Alexander, analyzed the issue under both Federal and State constitutional provisions and concluded that the objective sought in excluding petitioners from the Family Reunion Program did not justify the intrusion on their marital prerogative to engage in or abstain from sexual relations. Moreover, he concluded that John Doe, after having been admitted to the program before he contracted AIDS, should not be denied readmission to the program on the sole basis that he might infect his wife through sexual relations. Matter of Fay and Matter of Lalli held that equal protection was not violated by the provisions of Estate, Powers, and Trust Law § 4–1.2, which precluded inheritance by the paternal kindred of an illegitimate child, except that the child’s father could inherit if an order of filiation had been made during the pregnancy of the mother or within two years from birth of the child (Matter of Fay) or had been made during the lifetime of the father (Matter of Lalli). Matter of Fay, supra, was a unanimous decision of the Court of Appeals upholding the statute as “a legislative judgment designed to ensure that only the true members of an illegitimate’s family are permitted to share in his or her estate” and served “a legitimate purpose in providing for the orderly settlement of estates and the dependability of title to property passing under [New York’s] laws of intestate distribution.” Matter of Lalli had a more difficult course through the courts, however. The Court’s 5–2 decision by Judge Jones upheld the statute because it made provision for “the orderly settlement of estates and the dependability of titles to property passing under intestacy laws.” The dissent by Judge Cooke concurred in by Judge Fuchsberg argued that to require an order of filiation during the father’s lifetime would place an undue burden on those involved, the more particularly so since the absence of such an order may have resulted from the fact that the putative father was supporting and acknowledging the children as his own. The Supreme Court’s affirmance, however, was

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5–4, but of the five (Powell, Rehnquist, Stewart, Blackmun, and Burger, CJ), three filed concurrences stating differing reasons for doing so. Justice Rehnquist, as he then was, concurred for the reasons stated in his dissent in Trimble v. Gordon, 430 U.S. 762 (1977), which the majority held inapplicable; Justice Stewart concurred because of the significant differences between the New York law and the Illinois law at issue in Trimble, and Justice Blackmun because he would overrule Trimble. The dissenters (Brennan, White, Marshall, and Stevens) would have held the New York statute invalid because despite the concession by all interested parties that Robert Lalli was the illegitimate son of decedent, Mario Lalli, as Mario had formally acknowledged, Robert would be denied his intestate share in Mario’s estate because no judicial filiation order had been made. The father’s constitutional right of privacy was also raised in Matter of Pamela P v. Frank S, 59 N.Y.2d 1 (1983), the father arguing that his right to make procreative decisions was violated by the mother’s fraud in purposely deceiving him in regard to her use of contraception, but the Court held that he could not void his obligation to support the child simply because he had been deceived. Constitutional law was the predicate for two decisions relating to adoption. Matter of Dickens v. Ernesto, 30 N.Y.2d 61 (1972), and Matter of Raquel Marie X, 76 N.Y.2d 387 (1990).2 The Dickens decision held that the provision of New York’s Constitution (Art. VI, § 32 and statutes relating thereto) requiring that, when practicable with and consistent with the best interests of a child, the child be placed for adoption with persons of the same religious persuasion as the child did not violate either the establishment of religion clause of the First Amendment to the United States Constitution or the equal protection clause of its Fourteenth Amendment. The Court held that religion was neither an exclusive nor a controlling factor in adoption proceedings. Matter of Raquel Marie X held that the requirement of Domestic Relations Law § 111(1)(e) that an unwed father have lived openly with the child’s mother for six continuous months before the child’s placement for adoption would cut off the father’s interest by imposing as an absolute condition an obligation only tangentially related to parental responsibility and, therefore, violated the Federal Constitution.

II. Prenuptial Agreements Prenuptial agreements have long been recognized by the Court of Appeals, e.g., Pierce v. Pierce, 71 N.Y. 154 (1877), but its decisions with respect to such agreements have not been entirely consistent with respect to presumptions and

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burden of proof applicable in such cases. Matter of Phillips, 293 N.Y. 483 (1944), held that the public policy expressed by the Legislature in enacting Section 18 of the Decedent Estate Law3 approving such agreements required the courts to exercise rigid scrutiny of the fairness of the agreement and the disclosure of circumstances relevant to the contemplated arrangement. Nevertheless, in the absence of proof from which concealment or imposition could reasonably be inferred, fraud would not be presumed absent evidence of overreaching concealment, misrepresentation, or deception. See also Matter of Liberman, 4 A.D.2d 512 (1957), aff’d no op., 5 N.Y.2d 719 (1958). Matter of Davis, 20 N.Y.2d 70 (1967), concerned an agreement in which both parties surrendered rights against the estates of each other, but it was argued that the failure of the husband to inform the wife of the extent of his wealth authorized her to take against his will under Decedent Estate Law § 18. The Court held that it was not necessary to the validity of the agreement that he have done so. Matter of Sunshine, 40 N.Y.2d 875 (memo), affirming 51 A.D.2d 326 (1976), stated that there is no special evidentiary burden on the party to an antenuptial agreement who seeks to sustain the agreement. In Sunshine the wife lacked a complete understanding of English, did not have a higher education, did not have an attorney present, and did not read or receive a copy of the document at the time she executed it. The Court of Appeals affirmed the Appellate Division’s holding that those facts did not lead to the conclusion that she was a victim of fraud or overreaching when she signed the agreement, and that the majority’s conclusion that the evidence was insufficient to establish that her waiver was invalid was reasonable. Matter of Greiff, 92 N.Y.2d 341 (1998), however, restated the burden of proof rules relating to prenuptial agreements. Judge Bellacosa relied heavily on Matter of Gordon v. Bialystoker Center and Bikur Cholim, Inc., 45 N.Y.2d 692 (1978), which, with respect to a gift made by an eighty-five-year-old resident in a nursing home one month before her death, upheld the Appellate Division’s finding that only slight evidence was required to shift to the donee—the nursing home—the burden of proving by clear and satisfactory evidence that the gift was freely and voluntarily made and that it had not acquired decedent’s property by fraud, undue influence, or coercion. However, the Greiff opinion emphasized that burden shifting was neither presumptively applicable nor precluded. Consequently, the Court concluded that whichever spouse contests a prenuptial agreement bears the burden to establish a fact-based particularized inequality before the proponent of the agreement suffers the shift in burden to disprove fraud or overreaching.

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III. Separation Agreements4 The case most often cited with respect to the validity of separation agreements is Christian v. Christian, 42 N.Y.2d 63 (1977), in which Judge Cooke (as he then was) writing for a unanimous court stated that [a]greements between spouses, unlike ordinary business contracts, involve a fiduciary relationship requiring the utmost good faith. There is a strict surveillance of all transactions between married persons, especially separation agreements. Equity is so zealous in this respect that a separation agreement may be set aside on grounds that would be insufficient to vitiate an ordinary contract. To warrant equity’s intervention, no actual fraud need be shown, for relief will be granted if the settlement is manifestly unfair to a spouse because of the other’s overreaching. In determining whether a separation agreement is invalid courts may look at the terms of the agreement to see if there is an inference, or even a negative inference, of overreaching in its execution. If the execution of the agreement, however, be fair, no further inquiry will be made. 42 N.Y.2d, at 72–73 (citations omitted)

As stated in Levine v. Levine, 56 N.Y.2d 42, 48–49 (1982), “[w]hile the absence of independent representation is a significant factor to be taken into consideration when determining whether a separation agreement was freely and fairly entered into, the fact that each party retained the same attorney does not, in and of itself, provide a basis for recission.” The Court held that overreaching was not to be inferred from the fact that the attorney who prepared the agreement had previously represented the husband when (1) the parties had agreed on terms prior to consulting the attorney, (2) the wife acknowledged in the agreement that the attorney had previously represented the husband, and (3) that she had been advised to consult another attorney but declined to do so. Attorney representation was also involved in Matter of Riconda, 90 N.Y.2d 733 (1997), which considered whether the former wife was entitled to maintenance out of the estate of her deceased former husband when the separation agreement provided only that the husband’s obligation to pay maintenance shall continue until the death or remarriage of the wife. The Court recognized that under Domestic Relations Law § 236(B)(6)(e) the obligation terminates upon the death of either party. It therefore concluded that, considering the entirety of the agreement in the context of the parties’ relationship and circumstances, the facts that the agreement made no unequivocal direction for payment after the

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husband’s death, and that support for the wife after the husband’s death was otherwise provided for, the statutory and precedential preference that maintenance terminate upon the death of the payor should prevail. In addition, although the wife’s attorney had drafted the agreement and the husband had no attorney of his own, the omission from the agreement of any provision relating to the death of the husband could not be construed as manifesting the intent of both husband and wife. Therefore, the wife had been improperly granted summary judgment that the estate continue to pay maintenance. In McFarland v. McFarland, 70 N.Y.2d 916 (1987), the wife was represented by independent counsel of her own choosing, and the separation agreement was favorable to her former husband. The Court found that the agreement was neither facially irregular nor unconscionable as that term was defined in the Levine and Christian cases. Consequently, her complaint seeking to set it aside had been correctly dismissed. A separation agreement, like a prenuptial agreement, may include a waiver or release of a right of election against a spouse’s will or testamentary substitute, as defined in Estates, Powers and Trusts Law sections 5–1.1(b)(1) and 5–1.1A(b)(1).5 Waivers of a spouse’s right to elect against decedent husband’s will were upheld in Matter of Sturmer, 303 N.Y. 98 (1951); Matter of Laney, 274 A.D. 250 [1948]) aff’d no op., 298 N.Y. 834 (1949); and Matter of Maul, 287 N.Y. 694 (1942). To be noted is the Appellate Division’s holding in Laney that DEL § 18 requirement that a waiver of the right to elect against a will be acknowledged had no application in case of intestacy. No Court of Appeals decisions with respect to the waiver provisions of EPTL § 5–1.1 or § 5–1.1-A have been found, but it appears reasonable to assume that if so, they would be executed and acknowledged or proved as required by subdivision (2) of the respective provisions, based upon the provisions of 5–1.1(f )(3) and 5–1.1-A(e)(3). Those provisions in identical language state that a waiver or release is effective whether executed before or after marriage, before, on or after September 1, 1966, and is unilateral in form, executed only by the maker thereof, or bilateral in form, executed by both spouses, executed with or without consideration, and whether absolute or conditional, the waiver or release will be upheld. But if the parties fail to live separate and apart or have effected a reconciliation, in the absence of reliable indicia of a contrary intent, they will be held to have voided the agreement in its entirety. Matter of Wilson, 50 N.Y.2d 59, 66 (1980); In re DeFrancesco’s Estate, 24 A.D.2d 81 (1965), aff’d no op. 19 N.Y.2d 618 (1967). However, the child support provisions of a separation agreement6 are not binding on the child, the key consideration being the best interests of the child, Matter of Boden v. Boden, 42 N.Y.2d 210 (1977), although the support provi-

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sions of the agreement should not be disturbed unless an unanticipated and unreasonable change in circumstances is shown along with a concomitant showing of need, though not solely because of an increase in cost since the agreement was made. With respect to increase of costs, however, Boden was overruled by Matter of Brescia v. Fitts, 56 N.Y.2d 132, 141 (1982), the Court stating that [c]onsidering both the circumstances as they existed at the time of the prior award and at the time the application is made several factors may, in a proper case, enter into the determination, including the increased needs of the children due to special circumstances or to the additional activities of growing children, the increased cost of living insofar as it results in greater expenses for the children, a loss of income or assets by the parent or a substantial improvement in the financial condition of a parent, and the current and prior life styles of the children, which may lead to the determination that the children’s best interests require an upward modification of the child support award. Accord: Matter of Michaels v. Michaels, 56 N.Y.2d 924 (1982) (citations omitted); see also Merl v. Merl, 67 N.Y.2d 359 (1986)

Separation agreements often provide that the agreement shall be incorporated in but shall not merge in the judgment of divorce. The Merl opinion noted that an agreement incorporated but not merged in the judgment is an independent contract binding on the parties unless impeached or challenged for a cause recognized by law. In Merl the basis for the defendant father’s request for modification of the support provision for his sons was the fact that they had changed their surname to that of their mother’s second husband; the Court held that this was not a valid basis for modification of the contract. Rainbow v. Swisher, 72 N.Y.2d 106 (1988), involved an agreement that provided that the agreement shall become incorporated and shall merge in any judgment of divorce. However, the judgment as issued provided that the terms of the stipulation of settlement relating to custody, visitation, support, and alimony signed by the parties shall be incorporated but shall not merge in the decree. “If merged the agreement would cease to exist as a separately enforceable contract,” there being no ambiguity in the contract’s provision for merger. As noted, there was a conflict between the agreement and the later divorce judgment with respect to the merger. The Court held that the judgment would govern unless it were directly challenged by timely application for modification or appeal, which was not the case in the matter before it. Therefore, the judgment governed.

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IV. Divorce In numerous cases the Court of Appeals has noted that New York courts have only such powers in matrimonial actions as are conferred upon them by statute, e.g. Pajak v. Pajak, 56 N.Y.2d 394 (1982); Caldwell v. Caldwell, 208 N.Y. 146, 152 (1948). In Caldwell, defendant husband and his first wife obtained a Mexican divorce by mail though neither ever left New York. The husband then married his second wife, who sought support in a Family Court proceeding. The Family Court held the Mexican divorce invalid and denied support. Several years later the second wife sued for separation and support. In that action the defendant husband pleaded the invalidity of the Mexican divorce as declared by the Family Court. The Court of Appeals, based upon CPA § 1170-a,7 which provided that even if a court refused to grant a divorce, separation, annulment, or declaration of the nullity of a marriage, the court could nevertheless make directions for the custody, care, education, and maintenance of a child of the marriage. Caldwell held that the trial court could make provision for the care, custody, and maintenance of the child. New York courts have always had power to modify alimony and support provisions contained in a divorce or separation judgment—see McMains v. McMains, 15 N.Y.2d 283, 287 (1965), Goldman v. Goldman, 282 N.Y. 296 (1940), but modification by way of reduction of the amount contained in the judgment does not relieve the spouse of any contractual obligation contained in a separation agreement, if the contractual obligation was not merged in the decree, see McMains, at 287 and Goldman, at 300–301. The case law speaks of “divisible divorce” and “conversion divorce.” Illustrative of divisible divorce is Lynn v. Lynn, 302 N.Y. 193, 199, 200–201 (1951), which noted that the term had been enunciated and applied in cases where an out-of-state divorce decree was granted to the husband ex parte, which was held completely effective to dissolve the marriage but completely ineffectual to alter certain legal and economic incidents of that marriage. Because in Lynn the wife had appeared in the husband’s Nevada action, the Court concluded that controlling effect had to be given to the Nevada judgment, which made no award for alimony, the failure to do so being equivalent to denial of such relief under Nevada law, as it would be under New York law. Id., at 203. Conversion divorce resulted from the enactment of DRL § 170 by the Divorce Reform Law of 1966, effective September 1, 1967. Subdivisions (5) and (6) of DRL § 170 provided as one of the grounds for divorce that husband and wife have lived apart for a period of two years (now reduced to one) pursuant to

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a decree or judgment of separation, or to a written agreement of separation, subscribed and acknowledged by the parties or proved in the form required to entitle a deed to be recorded, and in either case established by satisfactory proof by plaintiff that he or she had substantially performed the terms and conditions of the decree or agreement. Berman v. Berman, 52 N.Y.2d 723 (1980), affg for the reasons stated by the Appellate Division majority in 72 A.D.2d 425, 429 (1980), while conceding that literal compliance was not required, held that the husband had breached the financial conditions of the parties’ separation agreement, the obligation to pay alimony and child support, which were manifestly terms and conditions that were the very foundation of the agreement, and therefore denied his motion for a conversion divorce. Gleason v. Gleason, 26 N.Y.2d 28 (1970), held subdivisions (5) and (6) constitutional notwithstanding that subdivision (5), involving judgments, was retroactive and subdivision (6), involving agreements, was prospective, there being reasonable bases for the distinction, including that one is imposed by judicial fiat and the other by voluntary agreement, and that enforcement of a decree differs substantially from an action for breach of an agreement. Nor, the Court held, had there been any denial of any vested rights, a spouse having no vested rights in the marital status and his or her right of inheritance not becoming vested until the death of the other spouse, and marriage not being a contract within the meaning of the Federal Constitution’s prohibition of impairment of contracts or against ex post facto laws. Among the grounds for divorce added in 1966 was cruel and inhuman treatment. In Brady v. Brady, 64 N.Y.2d 339 (1985), and Hessen v. Hessen, 33 N.Y.2d 406 (1974), the Court noted that the plaintiff seeking a divorce on that ground must prove serious misconduct, harmful to the physical or mental health of the plaintiff, thus making cohabitation unsafe or improper, and that a higher degree of proof was required when divorce was sought after a long-term marriage. One of the grounds for divorce established by DRL § 170 was abandonment of plaintiff by defendant for a period of one or more years. Prior to the Divorce Reform Law, abandonment had been a ground for separation (Civil Practice Act § 1161[3]) though no length of time was required. In Diemer v. Diemer, 8 N.Y.2d 206 (1960), the Court held that refusal of sexual relations, although based on religious beliefs, constituted abandonment in the eyes of the law unless the party had good legal cause for such refusal. The Court held that the marriage contract, being civil in nature, was governed by civil, not religious, law. Domestic Relations Law § 200 includes as grounds for a separation the same grounds as DRL § 170 except those contained in subdivisions (5) and (6) of

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§ 170, but the Court had held in Hofmann v. Hofmann, 232 N.Y. 215 (1921), that public policy did not require that one who is entitled to a divorce must seek it rather than a separation. Finally to be noted in relation to divorce is Kass v. Kass, 91 N.Y.2d 554 (1998), concerning an action for custody of pre-zygotes, discussed in chapter 22.

V. Equitable Distribution The Equitable Distribution Law became effective July 19, 1980 (Laws of 1980, ch. 281, § 47). As the Court noted in its opinion in Dolan v. Dolan, 78 N.Y.2d 463 (1991), equitable distribution rests largely on the view that marriage is an economic partnership to which each party has made a contribution. See also Angelin v. Angelin, 80 N.Y.2d 553 (1992), which stated that “the Legislature has given the courts significant flexibility in fashioning the appropriate remedy of equitable distribution of marital property . . . in this sensitive and difficult area.”8 Illustrative is the Dolan holding that, although the law provides that personal injury compensation is not marital property subject to equitable distribution, a disability pension is subject to such distribution when the pension is available only after ten years of service prior to retirement and when it provides an employee whose injuries prevented him or her from working until normal retirement with both compensation for the injury and a portion of the deferred compensation to which he or she would have been entitled but for the injuries. To that extent it is subject to equitable distribution. The statute requires that the lower courts set forth the factors considered and the reasons for the decision, but not that the Court consider all of the factors listed in DRL § 236(B)(5)(g). Cappiello v. Cappiello, 66 N.Y.2d 107 (1985). Equitable distribution of marital property is within the trial court’s discretion, but whether a particular asset is marital or separate property is a question of law. DeJesus v. DeJesus, 90 N.Y.2d 643 (1997). That case held it for the trial court to determine whether and to what extent the corporation’s stock plan was granted as compensation for past services or an incentive for further services, whether it was offered as a bonus or an alternative to a fixed salary, whether the value or quantity of shares was tied to future performance, and whether the plan was being used to attract key personnel from other companies. The wife is entitled to shares in whatever value accrued during marriage if she contributed in some way during the marriage; otherwise, the plan is separate property. There is no uniform rule for valuing stock in a closely held corporation. Many factors must be considered, including contractual inhibitions on the transfer of its shares,

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and the limited market for those shares; but the court need not rely solely on the price fixed in a buy-sell agreement if other evidence, such as expert testimony, exists. Amodio v. Amodio, 70 N.Y.2d 5 (1987); Burns v. Burns, 84 N.Y.2d 369 (1994). As for an unvested pension, the uncertainties may reduce the trial court’s estimates of present value, but are not a bar to valuation, or the court may order that a portion of each future payment be allocated to the nontitled spouse. Burns v. Burns, supra. The value of a professional license, however, is a form of human capital dependent upon the future labor of the licensee; it has no existence separate from the professional earnings from which it derives, but whether valued as of the date the divorce action is commenced or at the date of trial is within the court’s discretion. Grunfeld v. Grunfeld, 94 N.Y.2d 696 (2000). For an active asset such as a professional practice the date the action was commenced is used, while for a passive asset such as securities, which may change in value suddenly, the date of trial can be used, although this is not a rule of law required to be followed but rather simply a helpful guidepost. Amodeo v. Amodeo, supra. The husband’s limited involvement during the marriage in a business that appreciated in value may qualify as active participation and transmute the appreciation in his otherwise separate property into marital property subject to equitable distribution. Hartog v. Hartog, 85 N.Y.2d 36 (1995). It is, however, enough that the appreciation is aided or facilitated by the nontitled spouse’s direct or indirect efforts, but causation as such need not be shown with mathematical or analytical precision; appreciation in a nonpassive asset is separate property only when not due in any part to the efforts of the titled spouse. It is for the fact finder to determine what percentage of the total appreciation constitutes marital property subject to equitable distribution. Id., at 47–49. The Hartog opinion relied heavily on the Court’s decision in Price v. Price, 69 N.Y.2d 8 (1986), which concerned an increase in value of separate property of the titled spouse. The Court ruled that if the time and efforts of the titled spouse were aided at least in part by indirect contributions of the nontitled spouse, the increase to the extent it was produced by such efforts will be considered a product of the marital partnership, and therefore marital property, as to which the trial court “retains the flexibility and discretion to structure a distributive award equitably.” Id., at 19. O’Brien v. O’Brien, 66 N.Y.2d 576 (1985), had earlier held that although a professional license to practice medicine cannot be distributed, it is marital property of the holder of one license, and the party not having title is entitled to an equitable portion based on the extent to which his or her direct and indirect contributions to its acquisition enhanced the earning capacity of the title holder. O’Brien’s rule has been applied by trial

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and Appellate Division courts to a number of occupations, many of which do not involve professional licenses, see Samuelson, “Enhanced Evaluations Extended To All,” N.Y. State Bar News (March/April 2002), at 15; but none of these has been passed upon by the Court of Appeals. The statute also provides for maintenance. DRL § 236(B)(1)(a) and (B)(6)(a)-(d), according to § (B)(1)(a), includes payments provided for in a valid agreement between the parties or awarded by the court. The factors to be considered by the courts are set forth in § (B)(6)(a)(1)-(11). Maintenance has been a subject of the Court’s decisions in Hartog v. Hartog, supra; Summer v. Summer, 85 N.Y.2d 1014 (1995); McSparron v. McSparron, 87 N.Y.2d 275 (1995); Matter of Riconda, 90 N.Y.2d 733 (1997); and Grunfeld v. Grunfeld, supra. The Hartog decision held the purpose of the 1986 amendment of § 236 (B)(6)(a) was to require the court in awarding maintenance to consider the standard of living of the parties during the marriage, and the Summer memorandum held permanent maintenance proper when the wife is incapable of self-support at the same level of support roughly commensurate with the marital standard of living. The McSparron opinion, at p. 286, ruled that care must be taken to ensure that the monetary value assigned to a professional license does not overlap with the value assigned to other marital assets derived from the license and must also be meticulous in guarding against duplication in the form of maintenance awards that are premised on earnings derived from the license. Matter of Riconda, supra, dealt with a separation agreement that required the husband to make monthly maintenance payments until the death or remarriage of the wife. The Court stated that the intent to end maintenance payments upon the death of the payor must be expressed clearly in the agreement or be inferred from unambiguous circumstances. In Riconda, the agreement contained no such provision, and support for the recipient spouse after the death of the payor spouse was otherwise provided for. Moreover, maintenance obligations should ordinarily terminate on the death of the payor, the more so since the payor spouse had no lawyer when the agreement was drawn by the attorney for the recipient spouse. The Court held that because of the variety of factors that led to an opposing conclusion, summary judgment should be denied and a hearing held. With respect to maintenance Judge Levine’s opinion in Grunfeld v. Grunfeld, supra, held that once a court converts a specific stream of income, such as from a professional license, that income may no longer be calculated into the maintenance formula and payment. However, if license income is considered in setting maintenance, the court can avoid double counting by reducing the distributive award based on that same income; but it may be more equitable to avoid double counting by reducing the maintenance award if the license is

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likely to retain its value in the future. In that case the nonlicensed spouse is only entitled to receive maintenance for a short period of time, it being fairer in such a case to distribute the value of the license as marital property rather than consider the license income in determining the licensed spouse’s capacity to pay maintenance. Pensions as subject to equitable distribution have been the subject of the Court’s decisions in Majauskas v. Majauskas, 61 N.Y.2d 481 (1984); Olivo v. Olivo, 82 N.Y.2d 202 (1993); and Burns v. Burns, 84 N.Y.2d 369 (1994). Majauskas held that pension rights earned after marriage and before commencement of the matrimonial action are contract rights of value received in lieu of higher compensation that would have enhanced marital assets or the marital standard of living, and that the anti-assignment provisions of the pension law did not deprive the nonemployee spouse of the rights awarded him or her by the divorce decree. The Burns decision ruled that nonvested pensions often represent deferred compensation for service performed over a number of years, and that though contingencies as to vesting may reduce the court’s estimate of its present value, or, if present value may not be determined at the time of divorce, the court may, in the exercise of discretion, order that such future payment be allocated in part to the nontitled spouse. The Olivo case concerned an early retirement plan that in order to reduce the employer’s work force eliminated the early retirement penalty, included a payment equal to Social Security from the date of retirement until the employee became eligible for Social Security, and included a separation payment. The employees involved had divorced prior to offer of the plan and their former spouses were entitled to pro rata shares based on the number of years they were married and working for the employer as a fraction of their total years with the employer. The Court held the Social Security and separation payments were not deferred compensation and therefore were not marital property, but the enhanced pension enhanced the nonemployee spouse’s right to a pro rata share of the pension actually obtained by the employee spouse. The nonemployee spouse’s entitlement to counsel fees was the subject of the decisions in O’Shea v. O’Shea, 93 N.Y.2d 187 (1999), and DeCabrera v. Cabrera-Rosete, 70 N.Y.2d 879 (1987). The DeCabrera memorandum ruled that indigence was not a prerequisite to an award of counsel fees, but turned on review of the financial circumstances of both parties and all of the other circumstances of the case including the relative merit of the parties’ positions. O’Shea held that the award of fees both for services before the matrimonial action was begun and for services in connection with the hearing to determine the amount of the fee award were authorized.

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Finally to be noted is DeLyra v. DeLyra, 74 N.Y.2d 872 (1989), in which the Court noted that under the statute as amended equitable distribution is authorized, notwithstanding that the court ruled that the marriage of the parties was a nullity because at the time of their wedding the wife was still married to her former husband, his prior divorce decree having been ineffective to terminate his prior marriage.

VI. Visitation The right to visitation with a child may be sought by a parent, DRL §70, by a sibling by half or whole blood or, if he or she is a minor, by a proper person on his or her behalf, DRL § 71. The Court held that as between two lesbians with both of whom the child of one had been living for two years, the other had no standing to maintain such an action although she had nurtured a close relationship with the child, because DRL § 70 gave that right only to “either parent,” and she was not a parent within the meaning of that section. Matter of Alison D v. Virginia M, 77 N.Y.2d 651 (1991). DRL § 72 provides that should either or both parents of a minor child be deceased, or circumstances show that conditions exist that equity would see fit to intervene, a grandparent or the grandparents of the child may apply to Supreme Court or Family Court for visitation rights with the child. In order to have standing to bring such a proceeding, a grandparent must show an existing relationship with the grandchild or that the parent frustrated an effort to establish such a relationship. Matter of Emanuel S v. Joseph E, 78 N.Y.2d 178 (1991). LoPresti v. LoPresti, 40 N.Y.2d 52 (1976) held that DRL § 72 did not give grandparents an absolute right of visitation., Visitation should be granted being solely at the court’s discretion, and must, in final analysis, be determined in light of the best interests of the child or children. Additional cases involving the rights of grandparents include People ex rel Sibley v. Shepard, 54 N.Y.2d 320 (1981); Matter of Layton v. Foster, 61 N.Y.2d 747 (1984), and Matter of Emanuel S v. Joseph E, 78 N.Y.2d 178 (1991). Sibley held that the purpose of the statute was to facilitate maintenance of family ties between grandparents and grandchildren where one or both of the natural parents have died and was reasonably related to the goal of protecting the best interests of the child. The Layton decision involved a mother and adoptive father who did not want the child to learn from the parents of the natural father that he was adopted, but the grandparents agreed not to involve the natural father in the visitation or make known to the child his adoption until the mother and

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adoptive father wished to do so. The Court upheld the conclusion of the Appellate Division that contact of the child with his grandparents more nearly conformed to the weight of the evidence and, therefore, affirmed its holding that the Family Court judge erred on the law in ruling that the natural father’s consent to adoption by the stepfather terminated the rights of the natural father’s parents. The United States Supreme Court dealt with constitutional aspects of visitation by grandparents in Troxel v. Granville, 530 U.S. 57 (2000), where “a plurality recognized . . . that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.” Matter of Wilson v. Mcglinchey, 2 N.Y.3d 375, 379-80 (2004). Troxel dealt with a Washington statute as applied. The constitutionality of DRL § 72 was challenged in Wilson, but the Court of Appeals did not reach that question, because it affirmed the findings that the best interests of the child were served by denying visitation rights to the grandparents.

VII. Custody A. Constitutional Basis9 With respect to minor children within the State of New York it is the duty of New York courts to determine custody solely on the basis of the welfare of the minors, irrespective of the residence and domicile of the parents and prior custody orders in a foreign jurisdiction. Matter of Bachman v. Meijas, 1 N.Y.2d 575 (1956). Such a foreign prior custody order is not entitled to full faith and credit in the courts of New York. Id., at 580. The individual rights of infants to invoke the protection of the state in which they reside cannot be ignored. Id., at 581. Indeed the Court has relied on the public health provision of Article XVII, § 3 of the New York Constitution, which imposes on the State “a powerful duty to protect its domiciliaries from harm.” Matter of Sayeh R, 91 N.Y.2d 306, 313 (1997). And while Sayeh R was, as the Court held, a child protective proceeding rather than a custody proceeding, that distinction was relevant only as to the holding that the Federal Parental Kidnaping Prevention Act, which deals only with a “custody determination,” did not preempt New York courts from reaching the issue before it. Matter of Bennett v. Jeffreys, 40 N.Y.2d 543, 546 (1976), recognized the constitutional principle that “[t]he parent has a ‘right’ to rear its child, and the child has a ‘right’ to be reared by its parent.” It held, however, that “intervention by the State in the right and responsibility of a natural parent to custody of his or

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her child is warranted if there is first a judicial finding of surrender, abandonment, unfitness, persistent neglect, unfortunate or involuntary extended disruption of custody, or other equivalent but rare extraordinary circumstances which would drastically affect the welfare of the child. It is only on such a premise that the courts may then proceed to inquire into the best interests of the child and to order a custodial disposition on that ground.” Id., at 549. But the Court recognized that “[i]t is these exceptions which have engendered confusion, sometimes in thought but most often only in language.” Id., at 546. Judge Jasen’s opinion in Matter of Marie B, 62 N.Y.2d 352, 358 (1984), held that “[f]undamental constitutional principles of due process and protected privacy prohibit governmental interference with the liberty of a parent to supervise and rear a child except upon a showing of overriding necessity.” Until 1941, New York courts were without jurisdiction to enter a decree affecting custody or maintenance of a child in an action for divorce or separation in which such relief was denied. Davis v. Davis, 75 N.Y. 221 (1878). This was changed by a 1941 statute that gave courts jurisdiction to render judgment making direction between the parties for the custody, care, education, and maintenance of any child of the marriage, when in an action for divorce, separation, or annulment, or for a declaration of the nullity of a void marriage, the court for any reason other than lack of jurisdiction denies the requested relief. Caldwell v. Caldwell, supra.

B. Factors As stated in Friederwitzer v. Friederwitzer, 55 N.Y.2d 89, 93 (1982), “The only absolute in the law governing custody of children is that there are no absolutes.” Relevant statutes10 require the courts to base custody decisions on the best interests of the child, and there is no presumption that the best interests of the child will be promoted by any particular custodial disposition. Matter of Bennett v. Jeffreys, 40 N.Y.2d 543, 547 (1976). As Friederwitzer makes clear, id., at 95, consideration of the totality of circumstances is required, and no agreement of the parties can bind the court to a disposition other than that which a weighing of all the factors involved shows to be in the child’s best interests, accord Eschbach v. Eschbach, 56 N.Y.2d 167, 171 (1982). The desire of the child whose custody is in issue for stability is important, but the disruption caused by change in custody is not necessarily conclusive. Primary in the determination of a child’s best interests are the ability to provide for its emotional and intellectual development, the quality of home environment, and the parental guidance provided. Matter of Louise ES v. W. Stephen S, 64

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N.Y.2d 946, 947 (1985). To be considered also is the effect that an award of custody to one parent may have on the child’s relationship with the other parent. Bliss v. Ach, 56 N.Y.2d 995, 998 (1982). As stated in Matter of Nehra v. Ahler, 43 N.Y.2d 242 (1977), stability is important but the disruption of change is not necessarily determinative, id., at 248, 250, and while the desires of the child are to be considered, it should be recognized that these can be manipulated and may not be in the child’s best interests. Id., at 249. Further, abduction by the noncustodial parent must be deterred, but even that must, when necessary, be submerged to the paramount concern in all custody matters: the best interests of the child. Id., at 250. Also to be considered are the relative fitness of the respective parents as well as length of time the present custody has continued. Id., at 250. The Court also held that priority, not as an absolute but as a weighty factor, should, in the absence of extraordinary circumstances, be accorded to the first custody awarded in litigation or by voluntary agreement. Id., at 251. Of lesser priority will be the abduction, elopement, or other defiance of legal process as well as the preferences of the child. Id., at 251. A change in custody may be warranted when the custody provisions of the divorce judgment were based on agreement of the parties rather than plenary consideration by the trial court. Friederwitzer v. Friederwitzer, supra, at 96. Matter of Lincoln v. Lincoln, 24 N.Y.2d 270 (1969), and Kessler v. Kessler, 10 N.Y.2d 445 (1962), upheld the interview of the child by the court or by a family counselor, psychiatrist, or psychologist out of the presence of the parties or counsel. See People ex rel Herzog v. Morgan, 287 N.Y. 317, 321 (1942). The Herzog decision also makes clear that when a trial judge and the Appellate Division reach opposing conclusions as to custody it is the weight of the evidence that is determinative, although the Court of Appeals has no power in any other respect to pass upon questions of fact, Harrington v. Harrington, 290 N.Y. 126 (1943); however, when conflicting evidence presents issues of credibility it must remit to the trial court for a new hearing, Braiman v. Braiman, 44 N.Y.2d 584 (1978). At issue in Braiman was an order for joint custody which a court can order pursuant to DRL § 240, but which under DRL § 236, Part B(3), may also be authorized pursuant to agreement of the parents. The Braiman Court, in an opinion by Chief Judge Breitel, noted that the authority to entrust custody of a child to both parents “jointly” was inferred from the broad language of DRL § 240 and that joint custody is encouraged primarily as a voluntary alternative for relatively stable, amicable parents behaving in mature civilized fashion. However, he held that on the record before the Court the conflict between the parents was so embittered that joint custody could not be ordered. Therefore, a

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new hearing was ordered, and the Court suggested that the trial court might wish to consider appointing a guardian for the children to investigate and report to the trial court alternative resolutions for the court to consider. See also Bliss v. Ach, supra. The Court has considered how the trial courts should deal with the geographic relocation of a custodial parent in a number of cases.11 Judge Titone stated that such cases “present some of the knottiest and most disturbing problems that our courts are called upon to resolve.” Matter of Tropea v. Tropea, 87 N.Y.2d 727, 736 (1996). Salient considerations were stated to be the custodial parent’s motives, the reason for the proposed move, and the positive or negative impact of the change on the child. Id., at 738. No single factor should be treated as dispositive; all relevant facts and circumstances must be considered, the greatest weight being given to the rights and needs of the children. Even if the move would leave the noncustodial parent with meaningful access, the losses that will result must be weighed against the custodial parent’s reasons for wanting to relocate and the benefits the child may enjoy or the harm that may ensue if the move is or is not permitted. Another factor that may be important in a particular case is the noncustodial parent’s interest in securing custody and the feasibility and desirability of a change in custody. Id., at 739. In sum the opinion stated: [I]n all cases, the court should be free to consider and give appropriate weight to all of the factors that may be relevant to the determination. These factors include, but are certainly not limited to each parent’s reasons for seeking or opposing the move, the quality of the relationships between the child and the custodial and noncustodial parents, the impact of the move on the quantity and quality of the child’s future contact with the noncustodial parent, the degree to which the custodial parent’s and child’s life may be enhanced economically, emotionally and educationally by the move, and the feasibility of preserving the relationship between the noncustodial parent and child through suitable visitation arrangements. In the end, it is for the court to determine, based on all of the proof, whether it has been established by a preponderance of the evidence that a proposed relocation would serve the child’s best interests. Id., at 740–741

Change in custody for reasons other than relocation has also been the subject of Court opinions. Bunim v. Bunim, 298 N.Y. 391 (1949), held, two judges dissenting, that it was such an abuse of discretion as to be error of law to award cus-

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tody of two daughters to the mother, the mother having testified to her considered belief in the propriety of indulgency by a dissatisfied wife, such as herself, in extramarital sex. The dissent pointed out that the father was inordinately preoccupied with his professional duties and gave little of his time or himself to the children, that he had treated them intemperately, that the mother was a good and devoted mother, that her indiscretions were unknown to the children, that she was truly concerned with their welfare, and that the children returned her affection. Matter of Ray A.M., 37 N.Y.2d 619 (1975), held that a mother who for more than a year failed to maintain contact with her child or plan for her future and whose meetings with agency personnel and her child were filled with tension, abusiveness, and physical violence was guilty of permanent neglect within the meaning of Family Court Act § 611. Similarly Friederwitzer v. Friederwitzer, supra, affirmed an order that terminated the mother’s custody and awarded sole custody of the parties’ eight- and eleven-year-old daughters to the father. The mother frequently stayed out late at night, leaving them alone, even though they told her they were afraid to stay alone, and she had permitted a male friend to stay in the apartment and share her bed to the knowledge of the children. Although arbitration with respect to child support has been ruled on by the Court (see discussion below) it has not yet passed on a case involving arbitration with respect to custody.12 However, it appears probable that it will in the not too distant future in view of the split between the Appellate Divisions demonstrated by the decisions of the First Department in Sheets v. Sheets, 22 A.D.2d 176 (1964),13 in which the reference to an arbitrator covering custody is dictum, and of the Second Department in Nestel v. Nestel, 38 A.D.2d 942 (1972), which stated that the judicial process is more broadly gauged and better suited in protecting the best interests of the child. The dichotomy between those courts as to arbitration re custody continues in cases coming before those courts. Vernon v. Vernon, 100 N.Y.2d 960 (2003), in a unanimous opinion by Judge Smith, dealt with the effect of the Uniform Child Custody Jurisdiction Act (DRL Art. 5-A) and the Parental Kidnapping Prevention Act (PKPA, 28 USC § 1738A). The mother moved with the child to several states outside of New York, while the father remained a resident of New York. The mother’s motion to the Wyoming court for change of custody to her was rejected by that court in light of the continuing jurisdiction of the New York courts under the parties’ separation agreement. She then argued to the New York court that it lacked subject matter jurisdiction. The Court of Appeals affirmed the order of the New York court, holding that subsection (d) of the PKPA continued its jurisdiction if the child and at least one contestant have residence in New York and significant connection with New York other than mere physical presence and there is

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available in New York substantial evidence concerning the child’s present or future care, protection, training, and personal relationships.

VIII. Child Support With respect to a divorce decree entered in a state other than New York, if the court of the state of entry permits its courts to modify such a decree in regard to child support, New York courts have power to act in like fashion. Langerman v. Langerman, 303 N.Y. 465, 473 (1952). If the parties in a New York action have entered into a separation agreement, such agreement is not binding upon the child or children if there has been an unanticipated and unreasonable change in circumstances. However, in Matter of Boden v. Boden, 42 N.Y.2d 210, 213 (1977), the Court used language that was broadly interpreted by lower courts as ruling that even if need is shown because of such a change in support in excess of that provided for in the agreement the increase should not be ordered solely on an increase in costs, if the agreement was fair and equitable when entered into. In Matter of Brescia v. Fitts, 56 N.Y.2d 132, 138 (1982), the Court limited interpretation of its Boden decision and held that the factors entering into whether an increase is warranted include the increased need of the child or children because of special circumstances or to the additional activities of growing children, increased cost of living insofar as it results in greater expenses for the children, a loss of income or assets by a parent, and the current and prior life styles of the children. Id., at 141. To be noted, however, is Matter of Gravlin v. Ruppert, 98 N.Y.2d 1 (2002), in which the Court considered the effect of the Child Support Standards Act (Family Court Act § 413) on the rules enunciated in Matter of Boden and Matter of Brescia and held that the child’s refusal to continue visitation with her father, as the parents had agreed, effectively extinguished the father’s support obligation and constituted an unanticipated change in circumstances that required modification of his support allegation. Two earlier cases, Matter of Parker v. Stage, 43 N.Y.2d 128 (1977), and Matter of Roe v. Doe, 29 N.Y.2d 188 (1971), not cited in Gravelin but that stated limitations on when and how much child support can be required, held that a child who voluntarily and without good cause abandons the parent’s home forfeits his or her right to demand support even though the child may be old enough to elect not to comply with the parent’s direction. Enactment effective September 15, 1989, of the Child Support Standards Act replaced the needs-based discretionary system for determining child support

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predicated on combined parental income and in FCA § 413(1)(f) lists the factors to be considered when the combined parental income exceeds $80,000. Matter of Cassano v. Cassano, 85 N.Y.2d 649 (1995). That Act was again before the Court in Bast v. Rossoff, 91 N.Y.2d 723 (1998), and Matter of Graby v. Graby, 87 N.Y.2d 605 (1996). The Graby decision held that Social Security disability payments to dependents are not to be treated as income of the disabled parent or as a credit against the parent’s support obligation, and Bast v. Rossoff ruled that which parent is the primary custodial parent within the meaning of that Act turns on which parent has physical custody of the child for a majority of time. Arbitration with respect to child support has been the subject of a number of decisions of the Court. In Hirsch v. Hirsch, 37 N.Y.2d 312, 318 (1995), the Court noted that Schneider v. Schneider, 17 N.Y.2d 123 (1966), had held that the arbitration provision of a separation agreement as to child support had been enforced, that the Hirsch award involved no per se violation of public policy that would make the arbitrator’s award unenforceable, and that therefore the award was impervious to judicial review. CPLR § 1209, proscribing submission of a controversy involving an infant to arbitration, is not a bar to arbitration between parents concerning child support; arbitration between the parents is not contrary to public policy because the infant is not a party to such a proceeding. Goldenberg v. Goldenberg, 25 A.D.2d 670 (1966), affd. 19 N.Y.2d 759 (1967).

IX. Adoption Adoption was unknown to the common law and exists only by statute. Matter of Jacob, 86 N.Y.2d 651 (1995); Betz v. Horr, 276 N.Y. 83, 86 (1937). The first general provisions for adoption were enacted by chapter 830 of the Laws of 1873, and in present form are to be found in Article 7 of the Domestic Relations Law. The ages of the adoptor and adoptee are not a factor in determining the validity of an adoption, but the parties’ ulterior purpose may be. Thus although the Court held in Matter of Robert Paul P, 63 N.Y.2d 233 (1984), over a dissent by Judge Meyer, that “[a]doption is not a means of obtaining a legal status for a nonmarital sexual relationship—whether homosexual or heterosexual,” in 333 East 53rd Street Associates v. Mann, 121 A.D.2d 284 (1986), aff’d for the reasons stated, 70 N.Y.2d 660 (1987), it held an adoption valid notwithstanding that the adoptor was eighty-three years of age and the adoptee sixty-seven, and the adoption was motivated by a desire to protect the adoptee’s rights under New York City’s Rent and Eviction Regulations. Its two-sentence memorandum of affirmance noting

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that “the order of adoption is not subject to challenge by plaintiff in a collateral proceeding (Domestic Relations Law § 110)” appears to explain the distinction, since Robert Paul P did not involve a collateral attack, the Family Court having denied the adoption petition and been affirmed by the Appellate Division. Although Family Court Act § 116(g) provides for placement of the child with adoptive parents of the same religion so far as is consistent with the best interests of the child, and where practicable that it be applied so as to give effect to the religious wishes of the natural mother or of the parents of an in-wedlock child, the Court held in Matter of Dickens v. Ernesto, 30 N.Y.2d 61 (1972), that it was constitutional. Its reasoning was that it was not mandatory, that it served a secular legislative purpose, and that it preserved neutrality toward religion. Adoption can be initiated by private placement or through a placement agency. Matter of Jacob, 86 N.Y.2d 651, 664 (1995). The Jacob case also held that when either petitioner is a biological parent of a child the other has standing to adopt, regardless of the fact that the petitioners are not legally married. Id., at 660. However, if provisional custody was obtained by the adopting parents with the consent of the natural parents who thereafter changed their minds, and who have not abandoned their superior right to custody or been proved unfit, then he, she, or they—having a right to custody superior to all others— may revoke such custody. In such a case the best interests of the child test is not reached. Matter of Sarah K, 66 N.Y.2d 223 (1985); Matter of Male Infant L, 61 N.Y.2d 420 (1984). Matter of Sanjivini K, 47 N.Y.2d 374 (1979), concerned a child born to an unwed mother who placed the child in the custody of the Department of Social Services but refused to surrender the child for adoption. The Department refused to return the child to her and instituted a permanent neglect proceeding. The Court of Appeals held that without parental consent, abandonment, neglect, or proven unfitness, the Department could not offer the child for adoption, even though some may find adoption to be in the child’s best interests, and that the mother had through uncommon efforts preserved her parental ties, and had not been shown to be unfit. Matter of Male Infant L, 61 N.Y.2d 420 (1984), held that the fact that the natural parents after consenting changed their minds was of little significance, that the change was to be accorded great sympathy, and that in such a case the best interests of the child were not to be considered. Matter of Corey L v. Martin L, 45 N.Y.2d 383 (1978), defined abandonment as it pertains to adoption to relate to such conduct on the part of a parent as evinces a purposeful ridding of parental obligations, the forgoing of parental rights, the withholding of presence, affection, care, and support.

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Much of the law relating to adoption is set forth in the comprehensive opinion by Chief Judge Kaye in Matter of Jacob, 86 N.Y.2d 651 (1995), which analyzes both statutory history and prior case law in support of its conclusion that DRL § 117 did not automatically terminate parental rights in all circumstances and did permit de facto parents to become the adoptee’s legal parents, notwithstanding the biological mother’s sexual orientation or her status as a member of an unmarried homosexual couple. To be noted, however, is Matter of Alison D v. Virginia M, 77 N.Y.2d 651 (1991), which held in a per curiam opinion from which Judge Kaye dissented that a woman who formed a relationship with a child while living with the child’s biological mother but who conceded that she was neither the biological mother nor a legal parent by virtue of adoption was not entitled to seek visitation rights with the child pursuant to Domestic Relations Law § 70. The Court declined petitioner’s invitation to read the statute’s term “parent” to include nonparents who have developed a relationship with the child and wish to continue visitation with the child.

24. Election Law

I. Provisions Relating to Civil Law As the Court has noted it labors “under the severe time constraints of election cases, of which we are painfully aware.” Matter of Staber v. Fidler, 65 N.Y.2d 529, 535 (1985). Although cases relating to party offices or rules, to results of a state, county, town, or city election, to delegates to a nominating convention for federal or state office, or to ballot position may arise at other times of the year, most election cases are considered in a one-day session occurring during the last week of August and relate to nomination for public office. During that day in August, Election Law session motions for leave to appeal are argued before individual judges during the first few hours of the day, and the judge who heard the arguments on the motion reports his or her recommendation to the entire court during the late-morning closed session. If the motion is granted, the arguments of counsel will be heard during the public session beginning after luncheon recess, and will be decided, generally by memorandum or per curiam opinion, although a few may be decided by a signed opinion, and a dissenting or concurring opinion may be filed with respect to per curiam or memorandum decisions. The memorandum in an election case may either discuss the reasoning on which the Court based its conclusion or may simply state that its affirmance or reversal is “for the reasons stated” in the Appellate Division’s majority or dissenting opinion. Moreover, most will have been decided within no more than a few days after argument.

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A. Technical Requirements Illustrative are the matters dealt with by the Court during its 1985 session, reported in Volumes 64–66 of N.Y.2d. Volume 64 included no election case and Volume 66 contained only one such case, Clark v. Cuomo, 66 N.Y.2d 185, which held constitutional the Governor’s Executive Order that established a program of voter registration through distribution of registration forms and assistance at various state agencies, although retention by an agency of boxes in which completed registration forms were deposited by registrants was held improper. Volume 65, however, contains three rulings on motions, one of which, Matter of Dusanenko v. Lefever, 65 N.Y.2d, at 940, was dismissed for nonfinality, and two of which, Matter of Ferrer v. Velez, 65 N.Y.2d, at 941 and Matter of Siwek v. Mahoney, 65 N.Y.2d, at 941, granted leave to appeal. It is not always easy to differentiate between the holdings in election cases. Of the twenty-eight other election matters reported in 65 N.Y.2d, Matter of Staber v. Fidler, supra, recognized that heightened scrutiny is required to determine compliance with the technical requirements of the Election Law in order to facilitate discovery of fraud and irregularity in designating petitions and to reduce the likelihood of unequal enforcement. It noted, however, that strict construction beyond that necessary for effect of those policies can lead to injustice. It held the discrepancies in the designating petitions of the three candidates before it (overstatement by ten on a petition containing 4,659 signatures, by four on a petition containing 2,420, and understatement by three on a petition containing 4,643) were inconsequential and did not implicate any of the policy considerations behind the law. Seven other cover-sheet cases were decided at the same session: Matter of Stere v. Mahoney, 65 N.Y.2d 941 (1,500 signatures required, cover overstated by one the 4,250 actually obtained); Matter of Erazo v. Board of Elections, 65 N.Y.2d 943 (10,000 required, cover sheet stated 54,309 obtained, an understatement of twenty-one); Matter of Bland v. Board of Elections, 65 N.Y.2d 962 (4,673 signatures required, cover sheet overstated by forty-five the 6,600 actually obtained); Matter of Maloney v. Board of Elections, 65 N.Y.2d 964 (1,500 signatures required, cover sheet stated 5,112 obtained on 424 pages, understating by eleven the 5,101 actually obtained and the number of pages by forty-nine); Matter of Ruggiero v. Molinari, 65 N.Y.2d 968 (1,150 signatures required, cover sheet overstated by two the 5,116 actually obtained); Matter of Fox v. Westchester County Board of Elections, 65 N.Y.2d 971 (1985) (cover sheet listed 343 signatures; it actually contained 342). Each of those cases, however, was decided in a one- or two-sentence opinion citing Matter of Staber. Only one case, Scoville v. Cicoria,

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65 N.Y.2d 972 (overstatement that designating petition contained 2,021 signatures when in fact it contained only 1,923), held in a memorandum that the “overstatement cannot be said to be inconsequential (see Matter of Staber v. Fidler, 65 N.Y.2d 529).” In four other cover-sheet cases, Matter of Barrett v. Scaringe, Matter of Ferrer v. Velez, Matter of Fromson v. Lefever, and Matter of Siwek v. Mahoney, reported at 65 N.Y.2d 946, the Court held slight understatement of the signatures contained in the designating petitions “constituted an inconsequential error that did not warrant invalidation of the petitions,” but for some reason cited not Staber but Matter of Garrett v. Alter, 65 N.Y.2d 529, one of the three cases dealt with by the Staber decision. To be noted, however, are Matter of Jonas v. Velez, 65 N.Y.2d 954, and Matter of Pecoraro v. Mahoney, 65 N.Y.2d 1026. Matter of Jonas held invalid the subscribing witness’ statement to a designating petition when an alteration is unexplained and uninitialed, notwithstanding that the alteration resulted in correct information and that the numbers inserted were smaller rather than larger. Although some of prior case law cited to support the Jonas decision made similar rulings, the decision would appear to be inconsistent with Matter of Staber’s holding that strict construction beyond that necessary for effectuation of Election Law policies lead to injustice. The Pecoraro case, with one dissent, held invalid a designating petition that did not set forth the number of signatures for each of the candidates, understated the total number of signatures, and did not properly number the pages of the petition. The Court held that the defects in the petition could not be dismissed as inconsequential, that while there is room for judicious decision-making, citing Staber among other cases, that process cannot nullify the requirements of the Election Law. As stated by the dissent, however, to invalidate the designating petition containing 1,049 signatures when only 367 were required does not effectuate the policy of avoiding the risk of confusion and deception in the electoral process, on which the Staber decision was based. The Election Law provides in § 1–106(2) that the failure to file any petition or certificate relating to designation or nomination of a candidate for party position or public office or the acceptance or declination of such designation or nomination within the time prescribed by the Election Law “shall be a fatal defect,” and in Matter of Pierce v. Breen, 86 N.Y.2d 455 (1995), the Court held that the premature filing of a certificate of nomination for judicial office on August 10, 1995, when Election Law § 6–116 provided that a “party nomination . . . shall be made, after the day of the primary election,” the primary election having been held on September 12, 1995, was “not in compliance with the strict election timetable” and was therefore a fatal defect. A similar decision,

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based on the provision of Election Law § 8–308(3) that a “write in ballot must be cast in its appropriate place on the machine, or it shall be void and not counted,” mandated that result as to ballots written in a blank and unused column rather than the column designated for write-in ballots. Moreover, in its 5–2 decision in Matter of Plunkett v. Mahoney, 76 N.Y.2d 848 (1990), the Court held a defect that under EL§ 1–106(2) voided the petition could not be considered merely a “technical” though fatal defect, which left the party without a designated candidate for a given office although there was sufficient support among party members eligible to vote to justify, under the rule of Matter of Harden v. City of New York, 74 N.Y.2d 796 (1989), placing a candidate’s name on the primary ballot or holding a primary election by write-in ballot; see also Matter of Frome v. Board of Elections, 57 N.Y.2d 741 (1982). When a defect will be held fatal relates to the content of the document filed. Matter of Hutson v. Bass, 54 N.Y.2d 772 (1981), held that the Appellate Division did not have “interest of justice” jurisdiction as to election cases, that substantial compliance with the Election Law as to form was acceptable, but that EL§ 1–106(2) made strict compliance with its commands as to matters of content or within the time prescribed “a fatal defect.” But Matter of Felsen v. Scaringe, 54 N.Y.2d 932 (1981), held that although members of the committee to fill vacancies named in a nominating petition had not been registered voters in the pertinent political unit until after the petitions could be circulated, they were registered before any signatures were collected, which was deemed to be sufficient compliance with the requirements of the statute. Also of interest in this connection are Matter of Kent v. Bass, 54 N.Y.2d 776 (1981), and Matter of Kogan v. D’Angelo, 54 N.Y.2d 781 (1981). Matter of Kent held that one signature on a designating petition dated July 21, 1981, and filed on July 23, 1981, was dated 8/21/81 was an obvious error that invalidated that signature but not the signatures following it, which were dated July 21, 1981, and Matter of Kogan, in a 6–1 memorandum, held that a stipulation that forty-five of the fifty-eight signatures obtained by a subscribing witness did not match signatures on the buff (voter registration) card, but as to which the trial judge made no finding of fraud or irregularity, did not as a matter of law invalidate the remaining thirteen signatures as permeated by gross irregularity or fraudulent practice. Therefore, the total was not reduced below the 4,201 signatures required. From the foregoing review of the Court’s decisions it appears that Staber’s recognition of “judicious decision making,” except where the Election Law expressly otherwise requires, permits invalidation when there is evidence to support a finding that a petition was permeated by fraud or irregularities. See Matter of Waible v. Dosberg, 54 N.Y.2d 780 (1981). But the holding in Matter

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of Jonas v. Velez, supra, that unexplained and uninitialed alterations of the subscribing witness statement are a sufficient basis for invalidation, notwithstanding that the alterations resulted in the manifestation of correct information or that the numbers inserted were smaller rather than larger, and notwithstanding that the Election Law contains no express provision as to initialing or explanation of a change, is a good example of Staber’s warning that “strictness of construction beyond that necessary for the effectuation” of election law policies may lead to injustice.

B. Residence Residence for the purpose of voting or of holding public office is defined by Constitution Article II, § 4, Election Law § § 1–104(22) and 5–104(1) and (2), and Public Officers Law § § 3(1) and 30(1)(d). Constitution Article II, § 4 mandates that “[f]or the purpose of voting, no person shall be deemed to have gained or lost a residence, by reason of his presence or absence, while employed in the service of the United States, . . . nor while a student of any seminary of learning; nor while kept at any almshouse, or other asylum, or institution wholly or partly supported at public expense or by charity, nor while confined in any public prison.” Election Law § 5–104(1) repeats the same language with small differences.1 Election Law § 1–104(22) provides that “[t]he term ‘residence’ shall be deemed to mean that place where a person maintains a fixed, permanent and principal home, and to which he, wherever temporarily located always intends to return.” Election Law § 5–104(2) directs that “[i]n determining a voter’s qualification to register and vote, the board to which such application is made shall consider, in addition to the applicant’s expressed intent, his conduct, and all attendant surrounding circumstances relating thereto . . . [including] other such factors that it may reasonably deem necessary to determine the qualification of an applicant to vote. . . . The decision of the board to which such application is made shall be presumptive evidence of a person’s residence for voting purposes,” and Election Law § 17–132(1) makes it a felony for “[a]ny person who knowingly votes or attempts to vote at any election, when not qualified.” With respect to public office, Public Officers Law § 3(1) directs that “[n]o person shall be capable of holding a civil office who shall not [be] a resident of the state, and if it be a local office, a resident of the political subdivision or municipal corporation of the state for which he shall be chosen,” and § 30(1)(d) of that Law mandates that “Every office shall be vacant upon . . . [the incumbent’s] . . . ceasing to be an inhabitant of the state or if he be a local officer, of

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the political subdivision, or municipal corporation of which he is required to be a resident when chosen.” The Court has held residence to be synonymous with domicile with respect to both the Public Officers Law, Matter of Hosley v. Curry, 85 N.Y.2d 447, 451 (1995), and the Election Law provisions governing voting, Matter of Palla v. Suffolk County Board of Elections, 31 N.Y.2d 36, 47 (1972). It has also held in Matter of Ferguson v. McNab, 60 N.Y.2d 598, 600, that “[r]espondent candidate having two residences may choose one to which she has legitimate, significant and continuing [for five years] attachment as her residence for purposes of the Election Law,” citing Matter of Gallagher v. Dinkins, 41 A.D.2d 946, 947 (1973), aff’d no op. 32 N.Y.2d 839 (1973), and Election Law § 1–104(22).2 See also Matter of Gladwin v. Power, 21 A.D.2d 665 (1964), affd no op.14 N.Y.2d 771 (1964) (“While there may be only one domicile for any particular purpose in law it does not necessarily follow that the same concept of domicile will inevitably be the same in different areas of the law”). Matter of Hosley v. Curry, supra, held that petitioner, who sought to have respondent District Attorney of Hamilton County removed from office because not a resident of that county, had the burden of proving the change in domicile by clear and convincing evidence and concluded that respondent’s continuous voting record in Hamilton County bespoke his intent to maintain his fixed and permanent residence in that county for all purposes, and that in light of the presumption arising from the Board of Elections’ determination the trial court’s conclusion that petitioner failed to sustain his burden more nearly comported with the weight of the evidence; accord with respect to residence as the basis for the right to vote. Matter of Bressler v. Holt-Harris, 37 A.D.2d 898 (1971), affd on opinion of the Appellate Division, 30 N.Y.2d 529 (1972).

C. Students and the Institutionalized Right to Vote The right of students and persons in institutions to vote is dealt with, in addition to Matter of Palla, supra, in Iafrate v. Suffolk County Board of Elections, 42 N.Y.2d 991 (1977), and Matter of Seitelman v. Levine, 36 N.Y.2d 165 (1975). The Iafrate decision upheld the right of thirty individuals residing in the Pilgrim State Psychiatric Center for twenty years to vote, based on an affidavit by one of the residents that he had no other residence and considered Suffolk County his home. The Court distinguished Matter of Palla, which had held a hearing because the affidavits presented factual issues to be resolved; whereas Iafrate did not require a hearing, because the resident’s affidavit was not refuted as to the intention of the residents. The Seitelman decision upheld the right of an individual confined

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to a mental institution outside New York to vote in New York when his parents continued to maintain a New York residence and no facts were presented, other than his presence in the institution, to establish that he intended to change his residence. To be noted also are two Second Circuit decisions, Williams v. Salerno, 792 F.2d 323 (1986), and Auerbach v. Retoliatta, 765 F.2d 350 (1985). The Williams decision held that the word “permanent” in EL § 1–104(22) may not be read in so literal a fashion as to exclude a student resident in a dormitory who abandons his out-of-state residence with the intent of becoming a domiciliary of the New York community in which he attends school, and the Auerbach decision held Article II, § 4 of the New York Constitution and EL § 5–104 not facially invalid, but noted that a decision of the Election Board on the student’s right to vote based on his bona fide residence rather than his mere presence may be required.

II. Provisions Relating to Criminal Law Election Law § 1–104(22) defines residence as “that place where a person maintains a fixed, permanent and principal home and to which he, wherever temporarily located, always intends to return,” § 17–104(4) provides that a person commits the offense of “false registration” when he or she “knowingly gives a false residence within the election district when registering as an elector,” § 17–132(3) provides that a person is guilty of “illegal voting” when he “votes or offers or attempts to vote at an election . . . in an election district or from a place where he does not reside,” and § 17–132(1) makes it a felony for “[a]ny person who knowingly votes or attempts to vote at any election, when not qualified.” As noted above, the Court has held with respect to candidacy that a person having two residences may choose one to which he or she has legitimate, significant, and continuing attachment as his or her residence for purposes of the Election Law. In its 5–2 decision in People v. O’Hara, 96 N.Y.2d 378 (2001), the Court has upheld the conviction for an attorney over the objection that the trial court’s charge to the jury was confusing in that it defined residence as provided in section 1–104(22) and told the jury that O’Hara as a candidate had the right to choose between two residences but then instructed them that “the address chosen by defendant as his residence must comport with the definition of residence as I had previously given it to you.” The majority opinion turned on its analysis of the evidence before the jury as contradictory of defendant’s testimony rather than whether the jurors may have

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been confused by the charge. The dissent by Judge Rosenblatt concurred in by Judge Levine pointed out that the Court in previous decisions had not adhered to the strict, literal meaning of § 1–104(22)’s definition of residence, using instead the “legitimate, significant and continuing” attachment test of Matter of Ferguson v. McNab, supra; and thus left it to the jury to integrate the two facially incompatible definitions of residence given them, and to return a guilty verdict even if it fully credited defendant’s testimony. If a candidate is disqualified but there is no finding that the petition or petition gathering process is tainted by fraud, a majority of the committee to fill vacancies shown on the face of the petition or certificate is authorized by Election Law § 6–148, subd. 2 to fill the vacancy. Matter of Espada, 98 N.Y.2d 715 (2002); Owens v. Sharpton, 45 N.Y.2d 794, 796 (1978).

III. Election to the Board of Regents: Education Law § 202(1) In LaValle v. Hayden, 98 N.Y.2d 155 (2002), the Court dealt with the constitutional and statutory provisions relating to election to the Board of Regents. The unanimous opinion by Judge Ciparick noted that the State Constitution in Article II, § 2 provided that the University of the State of New York “shall be governed and its corporate powers, which may be increased, modified or diminished by the Legislature, shall be exercised by not less than nine regents” and that Education Law § 202(1) provides for election by concurrent resolution, but if the Legislature cannot agree bicamerally on a candidate, a joint section must be convened using a joint ballot. It noted that the Legislature can also function unicamerally when performing duties other than lawmaking by declaring that a quorum is simply a majority of the total membership of the single body. This action acknowledged the validity of the Legislature acting as a unicameral body, sitting in joint session and functioning constitutionally in a nonlawmaking capacity. Pursuant to Public Officers Law § 41 the joint ballot was used to fill other vacancies in elected office. It concluded that the Senate and Assembly meeting in joint session constitute the Legislature as contemplated by Article XI § § 1 and 2 of the State Constitution, and that plaintiffs had failed to rebut, beyond a reasonable doubt, the presumption of constitutionality that favors the joint ballot provisions of the Education Law.

25. Antitrust and Restraints on Competition

I. Introduction: The Donnelly Act and the Sherman Act Compared A. The Donnelly Act in General The Sherman Act, the basic Federal antitrust statute, was enacted in 1890,1 after which several states followed by adopting their own antitrust statutes. The primary New York antitrust statute was first enacted in 1893, and after a series of amendments became known as the Donnelly Act in 1899.2 In some respects the language of both the Donnelly and Sherman Acts were (and remain) substantially similar, but in one major respect the Donnelly Act differs from the Federal statute. While each statute condemns concerted actions, including agreements in restraint of trade and concerted action to “monopolize” or to establish or maintain monopolies, the Sherman Act, in addition to prohibiting “monopolization” by persons acting in concert, also prohibits “monopolization” by individuals. But the Donnelly Act does not deal with the establishment or maintenance of monopoly by individuals acting alone. Of course, an agreement or conspiracy in restraint of trade necessarily requires more than one participant, which must be properly pleaded. See Creative Trading Co. v. Larkin-PluznickLarkin, Inc., 75 N.Y.2d 830 (1990), reversing 148 A.D.2d 352 (1st Dept. 1989) on Justice Sullivan’s dissenting opinion, at 354. Although prior to the 1930s the New York Court of Appeals did not deal with significant Donnelly Act issues, in more recent years the Court has addressed

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several significant and controversial Donnelly Act questions. The similarity in the language of the Donnelly and Sherman Acts and the history of the adoption of the Donnelly Act presented important questions of how closely the New York Court of Appeals, when interpreting the Donnelly Act, should follow the United States Supreme Court’s construction of the Sherman Act. In some cases the Court of Appeals followed the Supreme Court’s lead, and in other instances the Court of Appeals interpreted the Donnelly Act prohibitions more narrowly than the Supreme Court’s interpretation of similar Sherman Act language. In no instance did the Court of Appeals interpret the Donnelly Act prohibitions more broadly than the Sherman Act had been interpreted. In addition to the question of how closely Donnelly Act jurisprudence should follow Sherman Act jurisprudence, the primary Donnelly Act questions dealt with by the Court of Appeals concerned exemptions from the Act’s coverage, whether a per se rule or a rule of reason should determine a Donnelly Act violation, the effect of an alleged antitrust violation on the enforcement of contracts in private actions, and the role and powers of the New York State Attorney General under the Donnelly Act.

B. The Importance of Donnelly Act Policy The New York Court of Appeals has proclaimed that “New York’s antitrust law [the Donnelly Act] represents a public policy of the first magnitude.” Aimcee Wholesale Corporation v. Tomar Products, Inc., 21 N.Y.2d 621, 625 (1968). The Court declared that the Donnelly Act’s “strong policy in favor of free competition for New York” is equal to that of the policy represented by section 1 of the Sherman Act. Id., at 626. Consequently, in Aimcee Wholesale Corporation, the Court held that “commercial arbitration, which serves a vital and constructive role in the business world, . . . is not a fit instrument for determination of antitrust controversies which are of such extreme importance to all of the people of this State.” 21 N.Y.2d, at 624. Previously, in Manhattan Storage & Warehouse Co. v. Movers & Warehousemen’s Assn. of Greater New York, Inc., 289 N.Y. 82 (1942), the Court had held that the State’s courts “would not adjudicate on a stipulated set of facts whether a particular agreement violated the State’s antitrust law. . . . The sensitivity of the court to the possibility of feigned controversies on an issue of such pervasive importance was but a reflection of the strength of the public policy codified in the Donnelly Act.” 21 N.Y.2d, at 625. The importance of Donnelly Act policy tipped the balance in favor of the Attorney General’s position in LaRossa, Axenfeld & Mitchell v. Abrams, 62 N.Y.2d 583 (1984), where the Court held that it was not a violation for the

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Attorney General to institute a criminal prosecution against a defendant who refused to comply with a subpoena issued in connection with an antitrust investigation of the ready-mix concrete industry while the defendant’s motion to quash the subpoena was still pending. While recognizing the defendant’s “substantial private interests” in avoiding civil and criminal penalties if convicted of wrongfully refusing to comply with the subpoena, it was more important to maintain “the Attorney General’s investigatory powers free from unnecessary hindrances [which] takes on added importance . . . where he is acting in furtherance of this State’s strong public policy in favor of promoting and protecting free competition [under the Donnelly Act].” 62 N.Y.2d, at 589–90 (emphasis added). Moreover, the defendant’s rights were adequately protected because the validity of the subpoenas could be challenged by the defendant in the criminal prosecution without delaying the investigation by possibly frivolous motions to quash.

II. Donnelly Act Exemptions3 A. The Labor Exemption Matter of Davies, 168 N.Y. 89, 101 (1901), commented that the Donnelly Act as enacted in 1899 was “little more than a codification of the common law upon the subject.” This view of the Donnelly Act necessitated amendments concerning labor activities, because under the common law a combination of workers to obtain increased compensation was a criminal conspiracy “injurious to trade or commerce.” People v. Fisher, 14 Wend. 9, 15, 28 Am.Dec. 501 (1835), and the Court of Appeals also had held that enforcement of union-employer “closed shop” contracts violated public policy against monopolies. Curran v. Galen, 152 N.Y. 33 (1897). However, from the way in which labor unions were treated under the common law, policy toward labor unions generally and under the antitrust laws was dramatically changed by Federal and State legislation and by virtue of an amendment to the New York State Constitution. This shift in attitude also was reflected in how the New York Court of Appeals construed the Donnelly Act. In Williams v. Quill, 277 N.Y. 1 (1938), the Court sustained the constitutionality of subdivision 2 of N.Y. General Business Law § 340 (added L. 1933, ch. 804), the Donnelly Act provision that expressly exempted “bona fide labor unions” from the Act’s prohibitions against the contention that the exemption violated the due process clause of the Fourteenth Amendment. In addition, the Court held that even where the employer is the only employer in a defined market

Antitrust 703

(here, transit and railroad labor in the City of New York), a closed shop contract violated neither Article 20 of the State Labor Relations Act (New York’s “Little Wagner Act”) (added L. 1937, ch. 443) nor the Donnelly Act. In People v. Gassman, 295 N.Y. 254 (1946), defendants were laundry truck drivers who had been employed by laundry companies. The drivers experienced a changed status when the companies implemented a plan to make the drivers agents or independent contractors rather than employees, in order to avoid paying various insurance premiums and benefits. Under the new arrangements, the former “employees” continued to perform the same duties, but with the additional requirement that they had to own their own trucks. The laundry truck drivers organized and formed an Amalgamated Clothing Workers of America local, which entered into agreements with the laundry companies that included closed shop provisions prohibiting the laundry companies from using nonunion agents and also prohibiting the agents (or former employees) from shifting from one company to another without the consent of committees set up by the union local. Individual drivers were charged with violating section 340 of the Donnelly Act. The charge was dismissed on the grounds that subdivisions 2 and 3 of section 340 exempted the defendants’ activities from its prohibitions. As previously noted, subdivision 2 exempted “bona fide labor unions”; subdivision 3 provided that the “labor of human beings” is not a commodity or article of commerce within the meaning of section 340. In addition, the State Constitutional Convention of 1938 adopted and the voters approved Article 1 of section 17, which became part of the State Constitution in 1939. It provided: “Labor of human beings is not a commodity nor an article of commerce and shall never be so considered or construed.” The Court construed the statutes in the framework of the substance and strength of the overall policy concerning labor and “workingmen.” The Court recognized that the laundry drivers were “no longer employees,” but concluded nevertheless that because their “physical activities and their economic function are the same as before, . . . in common speech and common sense, they are still ‘workingmen’ just as are window cleaners or furnacemen who go from house to house and are not employees of any one.” We find no controlling definitions of “labor union” or “workingmen” but we are here dealing not with niceties of language but with a broad policy, strongly expressed, of exempting workers from the anti-monopoly statutes. The policy of protecting and encouraging the right of workers to organize and bargain is as well settled in this State as any policy could be. . . . [M]embers of this local

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union are workingmen who do part of the job of washing household linens. As such, their organized activities for self-betterment are specifically exempted from the Donnelly Act, and no grand jury had any right to indict them for violating that act. . . . We are deciding this case only. We do not attempt to fix a point at which a person becomes so much an enterpriser that he can no longer enjoy the statutory privileges of a “workingman.” “This is one of those classes of cases where it is safer to prick out the contour of the rule empirically, by successive instances, than to attempt definitive generalizations.” Hand, J., in In re All Star Feature Corp. case, D.C., 231 F. 251, 252. 295 N.Y., at 260–61

The majority also rejected the position of the dissent that the question of whether the defendants were workingmen was one of fact for the grand jury and not a question of law that precluded grand jury consideration. In response to the dissent, the Court examined the history of the statutes. Prior to 1933, section 340 prohibited “any contract, agreement, arrangement, or combination whereby a monopoly in the manufacture, production, sale of any article of commodity in common use or any article or product used in the conduct of trade, commerce or manufacture may be created.” In 1933, the Legislature added the word “service” to the first paragraph of section 340, apparently because of court decisions that the act prior to that amendment had no application to price fixing on “services.” In the same year there was put into the act a statement that it should not apply to certain cooperative associations “nor to bona fide labor unions.” Still later, in 1935, there was added, as subdivision 3 of section 340, these significant words, taken from the Federal Clayton Act, U.S. Code, tit. 15, s 17, 15 U.S.C.A. s 17: “the labor of human beings shall not be deemed or held to be a commodity or article of commerce as such terms are used in this section” and the further pronouncement that “nothing herein contained shall be deemed to prohibit or restrict the right of workingmen to combine in unions, organizations and associations, not organized for the purpose of profit.” . . . Not only the Legislature but the People of this State have declared in unmistakable terms that our antimonopoly laws are not to be used against workers seeking to better their lot. Article I, section 17, of the Constitution, adopted by popular vote in 1938, declares: “Labor of human beings is not a commodity nor an article of commerce and shall never be so considered or construed.” One would look far for a flatter statement than that. 295 N.Y., at 258–59

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In Rochette & Parzinii Corporation v. Campo, 301 N.Y. 228 (1950), the majority held that the refusal by a union with a monopoly of labor to supply labor to a particular class of employers (subcontractors) also was exempt from the antimonopoly provisions of section 340. However, the Court also recognized that despite the strength of New York’s labor policy, it did not mean that simply because a labor union was involved it was exempt from the Donnelly Act prohibitions. Consequently, the Court remanded to determine whether under the facts, the alleged union conduct (coercion, blacklists, and false statement) was for good cause related to legitimate union activity or whether it simply was calculated to destroy the business of a subcontractor and interfere with the contractor’s business, activity that would not be exempt. Judge Desmond, with Judge Froessel concurring, dissented, and would have held there was no basis in the record to remand, because nothing in the record indicated anything other than union conduct related to legitimate ends. Earlier, in Manhattan Storage & Warehouse Co. v. Movers & Warehousemen’s Assn. of Greater New York, Inc., 289 N.Y. 82 (1942), the Court explicitly had recognized that the labor union exemption did not authorize labor unions “to enter into agreements to enforce monopolistic aims of employer groups by fixing the prices to be charged the public for services or commodities and thus to stifle competition . . . .” 289 N.Y., at 87. To enjoy the Donnelly Act’s labor exemption, the contract in question had to be “made by a ‘bona fide’ labor union and is . . . intended to promote purposes of the union sanctioned by law, [and not] a mere cover for the promotion of ends which are prohibited.” 289 N.Y., at 90.

B. The Professions The conduct of bona fide labor unions pursuing their goals was specifically exempted from Donnelly Act coverage. There was no provision in the statute that specifically dealt with the legal and medical professions, by exemption or otherwise. Nevertheless, and despite having characterized the Donnelly Act as a policy of “the first magnitude . . . in favor of free competition,” the Court of Appeals held that the legal and medical professions were not subject to the prohibitions of the Act. 1. THE LEGAL PROFESSION

When Matter of Freeman, 34 N.Y.2d 1 (1974), which held that the legal profession was not covered by the Donnelly Act, was decided, subdivision 1 of section 340 read, in relevant part:

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Every contract, agreement, arrangement or combination whereby a monopoly in the conduct of any business, trade, commerce or in the furnishing of any service in this state, is or may be established or maintained, or whereby competition or the free exercise of any activity in the conduct of any business, trade or commerce or in the furnishing of any service . . . is hereby declared to be against public policy, illegal and void.

Matter of Freeman arose in the context of a Surrogate’s reference to a minimum fee schedule published by a local bar association in the course of the Surrogate setting an attorney’s fee. The Court held that, although reliance on a minimum fee schedule could be a factor in a claim of unprofessional conduct, the legal profession was not covered by the Donnelly Act’s term “business or trade” or by “service,” a term added in 1933. The Court construed those terms by reference to the legislative history of the provision and in the context of the pervasive regulatory scheme governing the legal profession. As for the statutory language, “trade or business” and “service,” the Court looked to legislative history and determined that “service,” as used in section 340, was intended to apply only to services in a business or commercial setting and concluded: [a] profession is not a business. . . . It is distinguished by the requirements of extensive formal training and learning, admission to practice by a qualifying licensure, a code of ethics imposing standards qualitatively and extensively beyond those that prevail or are tolerated in the marketplace, a system for discipline of its members for violation of the code of ethics, a duty to subordinate financial reward to social responsibility, and, notably, an obligation on its members, even in nonprofessional matters, to conduct themselves as members of a learned, disciplined, and honorable occupation. These qualities distinguish professionals from others whose limitations on conduct are largely prescribed only by general legal standards and sanctions, whether civil or criminal. 34 N.Y.2d, at 7

In addition, the Court, after describing the professional and nonprofessional activities and goals of bar associations, concluded that the “history and purpose of the legal profession and the professional associations supports the view that the profession is not included within the terms ‘business or trade’ as used in section 340 of the General Business Law.” 34 N.Y.2d, at 7–8. Although the Court agreed that competition in fees is desirable, and that minimum fee schedules “may violate professional standards if their purpose or

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effect would be to control the fee level for professional services, or would have the purpose or effect of preventing ‘fee competition’ in the rendering of legal services,” it reasoned: Even a superficial examination of the regulatory system applicable to the Bar suggests that if the Legislature had intended to reach alleged economic restraints, like fee schedules, it would have done so either by specific statute, or by court rules and controls within the existing scheme for judicial oversight of the Bar. Judicial regulation would, as with contingent fees and the like, be much more expeditious, effective, and direct than the comparatively clumsy device of antitrust law enforcement. 34 N.Y.2d, at 6

Although the Court, at length, expressed doubts about the propriety of minimum fee schedules as a matter of professional regulation, 34 N.Y.2d, at 11–12, it concluded that “neither by virtue of the statutory language, the legislative history, or intent of the Legislature does the Donnelly Act apply to the legal profession.” Id., at 9. When Matter of Freeman was decided, the United States Supreme Court had not yet decided Goldfarb v. Virginia State Bar, 421 U.S. 773 (1975), which held that the Sherman Act applied to lawyers’ minimum fee schedules. In Goldfarb, the Supreme Court reversed a Fourth Circuit reversal of a Federal district court decision that held that the Sherman Act applied to minimum fee schedules. 497 F.2d 1 (4th Cir. 1974), reversing 355 F.Supp. 491 (E.D.Va. 1973). Both lower Federal court decisions were noted in the New York Court of Appeals opinion, but the Court indicated that whatever the Federal district court cases might mean or portend about the legal profession under the Federal antitrust statute, the question in Freeman dealt “solely with the relationship of the State antitrust law to the statutory scheme for regulating the legal profession.” 34 N.Y.2d, at 7. Judge Wachtler, concurring in the result, would have left the antitrust question to another case, arguing that it was unnecessary to decide the question, because the Surrogate did not rely on the minimum fee schedule in setting the fee. Judge Wachtler contended that a case like Goldfarb would have been a better case in which to decide whether minimum fee schedules are covered by the Donnelly Act. 2. PEOPLE V. ROTH AND THE MEDICAL PROFESSION

In People v. Roth, 52 N.Y.2d 440 (1981), the Court, in a per curiam opinion, on the authority of Freeman, held that the medical profession, like the legal profession, is not covered by the Donnelly Act. The Court rejected the request to reexamine Freeman in the light of the 1975 Supreme Court decision in Goldfarb.

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The Court stated that the decision in Freeman was based on legislative history and the intent of the State Legislature in enacting the Donnelly Act, and nothing had happened since Freeman was decided to change the conclusion reached in that case. As for Goldfarb, it was based on the legislative history and congressional intent in enacting the Sherman Act, and it had no direct bearing on the legislative history and intent with respect to the State’s Donnelly Act. In a separate opinion, Judge Jones, joined by Judge Fuchsberg, concurred in the result, but not on the ground that the alleged conduct of the physicians was not proscribed by the Donnelly Act. Judge Jones would have overruled Freeman, but would have dismissed the indictment on constitutional grounds, because “Freeman was a very clear statement of the inapplicability of [the Donnelly Act] to the professions, as a matter of fundamental justice it cannot be said that the individual defendants in [Roth] acted at their peril in relying on [Freeman], a prior holding of this court. To hold the Donnelly Act applicable to the activities alleged in this indictment would run afoul of the fair warning requirement set down by the United States Supreme Court in Bouie v. City of Columbia (378 U.S. 347) . . . .” 52 N.Y.2d, at 452–53. Judge Jones also suggested that the defendants might have been able to establish a defense of mistake of law under Penal Law § 15.20, on the grounds they had held a “mistaken belief” that their conduct, “does not, as a matter of law, constitute an offense,” the belief being “ founded upon an official statement of the law contained in . . . a judicial decision of a state . . . court.”

III. The Donnelly and Sherman Acts and “Counterpart Conformity” A. Judge Jones’s Concurrence in Roth and “Counterpart Conformity” In his concurrence in People v. Roth, supra, Judge Jones argued that the refusal of the Court in Roth to overrule Freeman and to hold that the Donnelly Act applied to at least some conduct of the professions, particularly price-fixing, ignored the intent of the Legislature in enacting the 1958 version of the Donnelly Act, which was in effect when Roth was decided. The linchpin in Judge Jones’s argument was the concept of “counterpart conformity,” i.e., the principle of “parallel statutory construction” of the Donnelly Act with the Sherman Act. 52 N.Y.2d, at 450, 451.4 This principle, he argued, was at the very heart of the 1958 revision of the Donnelly Act and had been recognized in two earlier Court of Appeals cases, explicitly in State of New York v. Mobil Oil Corp., 38

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N.Y.2d 460, 463 (1976), a case decided after Freeman, and implicitly in Matter of Aimcee Wholesale Corp. [Tomar Prods.], 21 N.Y.2d 621, 626 (1968), decided before Freeman. As for the legislative history supporting the principle of “counterpart conformity,” Judge Jones stated: At the time of our decision in Freeman there had been no final, authoritative decision as to whether the Federal antitrust laws applied to the professions. After the Supreme Court’s decision in Goldfarb in 1975, however, it is clear that the professions are not wholly exempt from the Federal antitrust laws. What is now known as the Donnelly Act was initially adopted in 1893. Our present focus, however, must be on the major revision of the statute enacted in 1958; the statute today is virtually the product of the 1957 redrafting based in large part on a report of the Special Committee to Study the New York Antitrust Laws of the New York State Bar Association. A reading of its report can leave no doubt that it was the intention of that committee that our Donnelly Act should be considered the mirror counterpart of the Federal Sherman Act and that interpretations of the former were to be guided largely by interpretations and applications of the latter. Portions of the committee’s report are illustrative. For instance, at p 10 [of the Report]: “The changes which we advocate are designed merely to simplify and not to alter in any respect the coverage and meaning of the statute save to make clear that it relates to all subjects of commerce, or in other words, that it embraces the same economic activities as the Sherman Act.” . . . Not only is it evident that the drafters intended the State courts to consider Federal antitrust principles as they existed in 1957, it is equally clear that they intended and expected that the Donnelly Act would be interpreted compatibly with future interpretations of the Sherman Act. Indeed, the special committee stated that expectation as one of the reasons it considered it unnecessary to substitute the wording of the Sherman Act for the diction of the Donnelly Act. 52 N.Y.2d, at 449–50 (footnotes omitted)

B. Price Discrimination Under the Donnelly Act In State of New York v. Mobil Oil Corporation, 38 N.Y.2d 460 (1976), the case cited by Judge Jones in his concurring opinion in Roth, the Court of Appeals held that “a systematic and deliberate practice of price discrimination by respondent oil company in the sale of gasoline to its dealers as alleged by the Attorney General in this case would not fall within the proscription of our

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State’s Donnelly Act. Id., at 461. The Court stated that it was “impelled to this conclusion in large part by the history which lies behind the adoption of the Donnelly Act and its 80-year history in [the New York] courts and [its] Legislature.” Id., at 463. Judge Gabrielli, dissented, with Judge Fuchsberg concurring, in a vigorous opinion that disagreed with every part of the majority’s opinion and argued that the Attorney General should have been permitted to prove that the price discrimination practice of Mobil Oil constituted an unreasonable restraint of trade under the Donnelly Act even if this meant that the Donnelly Act prohibition would be broader than the Sherman Act. 1. PRICE DISCRIMINATION UNDER THE SHERMAN ACT

First, the Court pointed out that price discrimination as such did not violate the original Sherman Act. The Sherman Antitrust Act (now US Code, tit 15, § 1) was adopted by the Congress in 1890. Three years later, obviously inspired by the Sherman Act, New York adopted a statute strikingly similar in diction to the Federal statute (L 1893, ch 716). The State statute was amended in 1897 and again in 1899 when it acquired its present popular title, the Donnelly Act. Since 1899 the statute has been amended eight times, but for present purposes none of these amendments changed the scope or direction of the statute. Thus, the present Donnelly Act has been considered to have been modeled after the Sherman Act (e.g., Matter of Aimcee Wholesale Corp. [Tomar Prods.], 21 N.Y.2d 621, 626 . . . ). 38 N.Y.2d, at 463

In recounting the history of price discrimination under the Federal statutes, the Court noted that “[p]rice discrimination per se is not and never has been within the purview of the Sherman Act.” It only became so by virtue of the enactment the Clayton Act amendment of the Sherman Act in 1914 and the amendment of the Clayton Act by the Robinson-Patman Act in 1936, the latter “to provide comprehensive Federal regulation of price discrimination.” “It is clear to us that reference to the history of and practice under the Federal antitrust laws demonstrates that if our Donnelly Act is to be considered a counterpart of the Sherman Act it does not extend to price discrimination as such.” 38 N.Y.2d, at 463. 2. ARE THE PROHIBITIONS OF THE DONNELLY ACT BROADER THAN THE SHERMAN ACT PROHIBITIONS?

The Sherman Act proscribes monopolizing conduct by a single entity as well as such conduct involving concert of action embraced by the Sherman Act terms,

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“contract, combination . . . or conspiracy”; in contrast, subdivision 1 of section 340 of the Donnelly Act proscribes only conduct involving concert of action and uses the terms, “contract, agreement, arrangement or combination. . . .” In State of New York v. Mobil Oil Corporation, the Attorney General urged the additional term “arrangement” in the Donnelly Act as a basis for concluding that the scope of the concerted action prohibited by the Donnelly Act was broader than the Sherman Act prohibition; in addition, the Attorney General cited lower New York court cases he claimed recognized “that the scope of Donnelly is broader than that of Sherman.” 38 N.Y.2d, at 464. In rejecting the Attorney General’s position, the Court used some tantalizing language concerning the breadth of the Donnelly Act. Although undoubtedly the sweep of Donnelly may be broader than that of Sherman, we conclude that under the familiar canon of statutory construction, noscitur a sociis, the term, “arrangement,” takes on a connotation similar to that of the other terms with which it is found in company, and thus must be interpreted as contemplating a reciprocal relationship of commitment between two or more legal or economic entities similar to but not embraced within the more exacting terms, “contract,” “combination” or “conspiracy.” To be sure the practice charged in the complaint here may be described as “bilateral” to the extent that it pertains both to the oil company and to its dealers. On the other hand there is no allegation of any agreement or commitment on the part either of the oil company or of its dealers or any of them. To interpret the word “arrangement” as embracing any “practice,” as the Attorney General urges us to do, would be unwarranted as a matter of lexicology and, more significant, unjustified in the historical context of the statute. 38 N.Y.2d, at 464 (emphasis supplied)

In addition to the foregoing “compelling considerations of statutory construction,” the Court noted the absence of enforcement efforts with respect to a general proscription of price discrimination as an “implied interpretation” that section 340 “is not to be read as extending to such practices, and the attendant failure of the legislature to amend the statute may be read as acquiescence in the fact.” The Court also noted that differential prices had long been a familiar characteristic of [the] free enterprise system, never thought to be either immoral or unlawful,” and until recently, it “would have occurred to no one to challenge the propriety of differential pricing, absent any horizontal arrangement with other suppliers.” Noting that at most this involved vertical agreements between buyer and seller, the Court pointed out that the New York “courts have consistently upheld vertical price fixing.” Moreover the Court ventured that there “are

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many valid reasons for differentials based on accepted economic theory . . . and when the legislature has sought to prohibit price discrimination it has chosen to do so on an industry-by-industry basis . . . rather than by comprehensive proscription.” 38 N.Y.2d, at 464–65.

C. Anheuser-Busch, Inc. v. Abrams: Vertical Arrangements Allocating Territories In Anheuser-Busch, Inc. v. Abrams, 71 N.Y.2d 327 (1988), the Attorney General issued subpoenas and interrogatories as part of an investigation into the pervasive use in the beer industry of exclusive territorial distributorships. The targets challenged the subpoenas and interrogatories, claiming that these distributorships were vertical agreements, which under the Donnelly Act are per se legal. The Attorney General argued that, although vertical restraints were not per se illegal, neither were they per se legal. The Court summarized the basic claims of the parties: The parties agree that, to the extent that this arrangement results in a restraint of trade, it is a “vertical” restraint—that is, one imposed by an agreement between noncompetitors who occupy different levels in the distribution chain—as opposed to a “horizontal” restraint, which results from an agreement among competitors at the same level of distribution. The Attorney General contends that, although such vertical restraints are not per se illegal under New York’s antitrust law (the Donnelly Act; General Business Law § 340 et seq.), they may be found to be illegal if, under all the circumstances, they impose an unreasonable restraint on competition. Petitioners concede that the “rule of reason” analysis urged by the Attorney General would be employed to determine if the practice violates Federal antitrust law (see, e.g., Continental T. v. v. GTE Sylvania, 433 US 36), but they argue that the courts of this State have ruled that such vertical restraints are per se legal under the Donnelly Act. Accordingly, they conclude, the Attorney General lacks authority to conduct an investigation designed to facilitate a rule of reason analysis of the brewing industry practice. 71 N.Y.2d, at 331

The Court began with the proposition that an application to quash a subpoena should be granted [o]nly where the futility of the process to uncover anything legitimate is inevitable or obvious . . . or where the information sought is utterly irrelevant to any proper inquiry. . . .

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The question is not whether all vertical restraints of this type should, in the context of these proceedings, be declared legal per se or, on the other hand, subject to a rule of reason analysis. Instead, the question is whether the Attorney General has authority under the Donnelly Act to issue the subpoenas and interrogatories challenged here, a question which must be answered in the affirmative unless the legality of the brewers’ marketing practice is so well established, either by the plain language of the statute or by existing judicial interpretation, as to be free from doubt. If the legality of the brewing industry’s vertical restraints is arguable, then the subpoenas issued pursuant to the Attorney General’s broad powers to investigate possible violations of the Donnelly Act (see, General Business Law § 343 . . . ) must be sustained. 71 N.Y.2d, at 331–32

The petitioners argued that vertical agreements were legal per se under the Donnelly Act, and claimed “that such a rule has already been established by ‘seven decades of unanimous precedent’ and that the Legislature has acquiesced in such an interpretation of the Donnelly Act by failing to amend the statute to overrule those decisions.” The Court concluded that cited cases in which the Court of Appeals did not make a pronouncement on the subject and the fact that the Legislature did not respond to the decisions did not conclusively establish a rule of per se legality for vertical territorial arrangements, and the statutory language did not “foreclose the Attorney General’s position that such arrangements, if shown to result in an unreasonable restraint of trade under the circumstances, are prohibited.” 71 N.Y.2d, at 333, 335. The Court’s opinion also took into account the principle of “counterpart conformity” in refusing to announce or confirm the existence of a rule of per se legality for vertical restraints: Finally, such a tenuous inference is even less compelling in this case, because it would result in an interpretation of the Donnelly Act at odds with the settled interpretation of its Federal counterpart. Although we do not move in lockstep with the Federal courts in our interpretation of antitrust law (see, Peoplev. Roth, 52 N.Y.2d 440),the Donnelly Act—often called a “Little Sherman Act”—should generally be construed in light of Federal precedent and given a different interpretation only where State policy, differences in the statutory language or the legislative history justify such a result (see, State of New York v. Mobil Oil Corp., 38 N.Y.2d 460, 463; Matter of Aimcee Wholesale Corp. [Tomar Prods.], 21 N.Y.2d 621, 626 . . . ). Thus, we should not be eager to find that a contrary State rule has been established by a combination of equivocal

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pronouncements from the lower courts and legislative inaction in response to such decisions. 71 N.Y.2d, at 334–35 (emphasis added)

It is fair to say that the Court’s conclusions concerning possible Donnelly Act coverage of vertical restraints came as somewhat of a surprise to many in the legal profession, and Judge Bellacosa’s strongly stated dissent reflected the disagreement of many with the majority’s conclusion. Judge Bellacosa contended that it had been settled that vertical restraints were not covered by the Donnelly Act, and he also expressed disapproval of a practice that, as he viewed it, would permit an expanded interpretation of the law to be the product of the investigative powers of the Attorney General because of what might be discovered on investigation.

D. Per Se Violations Under the Donnelly Act When determining whether an agreement alleged to be in restraint of trade violates the Sherman Act, Federal courts employ, with modifications not relevant to this discussion, either a rule of reason analysis or a rule of per se illegality. Until the decision in People v. Rattenni, 81 N.Y.2d 166 (1993), except for some isolated lower court decisions and by implication in Columbia Gas of New York, Inc. v. New York State Electric & Gas Corporation, 28 N.Y.2d 117 (1971), it appeared that only a rule of reason analysis, not a per se rule, would be employed under the Donnelly Act. Briefly, the rule of reason requires the Court to determine whether the concerted action between the parties to a conspiracy or agreement unreasonably restrains trade in an identified product and geographic market, taking into account the nature and effects of the conspiracy and its economic impact on the restrained trade in the relevant market. Thus, an adequate business justification could result in a finding that an agreement that has an adverse impact on competition does not violate the Donnelly Act (or the Sherman Act). However, if a per se rule applies to the type of agreement in question, e.g., an agreement between competitors to set prices, the Court will find a violation and will not entertain claims of business justification or even examine the effects of that agreement on the trade restrained by the agreement. 1. COLUMBIA GAS OF NEW YORK, INC. V. NEW YORK STATE ELECTRIC & GAS CORPORATION

Columbia Gas of New York, Inc. v. New York State Electric & Gas Corporation, 28 N.Y.2d 117 (1971), appears to be the only New York Court of Appeals case which has addressed tying arrangements under the Donnelly Act. The Court did

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not directly answer the question of whether tying arrangements are to be judged under the Act by a rule of reason or a per se rule. However, there is a warrantable inference that if the Court had characterized the situation as involving a tying arrangement, it would have treated it as a per se violation of the Donnelly Act. The Court cited the then leading cases of Northern Pacific Railway Co. v. United States, 356 U.S. 1 (1958), and Fortner Enterprises v. United States Steel, 394 U.S. 495 (1969), which had applied a per se rule to Federal antitrust tie-in cases, and it characterized tying arrangements as “inhibiting competition in the market place,” and thereby they are “unreasonable and illegal.” However, the arrangement before the Court was not viewed as a tying arrangement, but as “bear[ing] a superficial resemblance to a tying arrangement.” The Court concluded that the “mere fact that the challenged practice may not be deemed a tie-in does not automatically immunize it from attack under the Donnelly Act,” and remanded it for review under a rule of reason analysis. 28 N.Y.2d, at 127–29. In his vigorous dissent in Columbia Gas of New York, Inc., a 4–3 decision, Judge Breitel challenged the majority’s apparent conclusion that tie-in sales are covered by the Donnelly Act. He pointed out that (1) New York did not have the equivalent of section 3 of the Federal Clayton Act, which dealt specifically with tying arrangements, and (2) although tying arrangements had been found to violate section 1 of the Sherman Act, it did not inevitably or naturally follow that tie-in sales were covered by the similar language in the Donnelly Act. 2. PEOPLE V. RATTENNI

People v. Rattenni, 81 N.Y.2d 166 (1993), is the first Court of Appeals case that explicitly recognized that there could be per se violations of the Donnelly Act, a significant change from prior cases which, with the possible exception of Columbia Gas of New York, Inc., had only recognized the application of the rule of reason to determine whether the Donnelly Act had been violated. “Counterpart conformity” was the driving force in Rattenni’s judicially recognized change. In Rattenni, a grand jury indicted the defendants, competitors in the waste carting industry, after having been instructed that an agreement among the defendants to divide and allocate markets constituted a per se violation of the Donnelly Act, so that consequently business justification could not be shown in defense. The Court rejected the defendants’ contention that only a rule of reason approach could be taken under the Donnelly Act, In its most forceful statement to that time supporting and applying the principle of “counterpart conformity,” a unanimous Court concluded: The Donnelly Act was modeled on the Federal Sherman Act of 1890 . . . , and thus we have observed that State antitrust law “should generally be construed

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in light of Federal precedent and given a different interpretation only where State policy, differences in statutory language or the legislative history justify such a result. While most trade practices are analyzed under a “rule of reason” standard—that is, it must be shown that under the circumstances there is an unreasonable restraint of trade—some activities are deemed so pernicious to competition that they are found to be per se unreasonable. . . . Among these are price fixing and division of markets. Federal law is clear on the issue [of division of markets]. . . . While defendants argue that we should reject the per se rule under the Donnelly Act insofar as it applies to customer and territory allocation agreements, they have presented no persuasive reason grounded in statutory language, legislative history or policy for us to depart from the Supreme Court’s interpretation of the Sherman Act. 81 N.Y.2d, at 171–72 (citations omitted)

In assessing the significance of Rattenni, the Court’s approach in the earlier case of Atkin v. Union Processing Corp., 59 N.Y.2d 919 (1983), cert. denied, sub nom. Union Processing Corp., 465 U.S. 1038 (1983), should be considered. In Atkin, an agreement between competitors not to compete with each other in Rochester was challenged as a violation of both the Donnelly and the Sherman Acts. The Court, employing a standard rule of reason analysis, sustained the legality of the agreement under both acts, reasoning that because the market consisted of several states and Rochester constituted but a small share of the market, there was no detriment to the public, and consequently there was no violation under either act. Moreover, the Court concluded that the agreement did not violate the Sherman Act even if a per se rule was applied. It is notable that in Rattenni, involving a market allocation agreement, the Court of Appeals cited the 1973 United States Supreme Court case of United States v. Topco Associates, 405 U.S. 596, which had held that an agreement among competitors to allocate markets was a per se violation of the Sherman Act. Topco had been decided ten years before Atkin, but was not referred to in the Atkin opinion which, inter alia, had stated that the Atkin agreement was not a per se violation of the Sherman Act, leaving open the question whether, after Rattenni, an agreement like the one in Atkin would be deemed illegal per se or be subject to a more extensive rule of reason analysis. 3. FAIR TRADE—RESALE PRICE MAINTENANCE.

Since the 1890s, changing distributions systems have motivated wholesalers and retailers to enter into resale price maintenance or so-called fair trade agree-

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ments, so that, for example, a wholesaler would agree with a manufacturer to resell only at the price agreed upon; in turn, the wholesaler would enter into an agreement with a retailer restricting the price at which the retailer could resell to the consumer. The United States Supreme Court held that an agreement between a seller and purchaser setting the price at which the purchaser could resell a product was a per se violation of the Sherman Act, as was any other pricefixing agreement. Dr. Miles Medical Co. v. John D. Park & Sons Co. 220 U.S. 373 (1911).5 The Court of Appeals did not follow Dr. Miles in construing the Donnelly Act or in applying the common law. Before Dr. Miles, the Court of Appeals had held that neither the Donnelly Act nor the common law condemned vertical price-fixing agreements, i.e., resale price maintenance or so-called “fair trade” contracts. Park v. National Wholesale Druggists Assn., 175 N.Y. 1 (1903). In 1936, the Court reaffirmed this position in Marsich v. Eastman Kodak Co., 269 N.Y. 621 (1936), when it affirmed without opinion 244 A.D. 295 (2d Dept. 1936), dismissing Donnelly Act and common law claims for damages by a dealer in photographic supplies who alleged he had been injured by resale price maintenance agreements between the manufacturer of those supplies and its distributors. In Marsich, the Appellate Division rejected the minority’s reliance on the reasoning of Dr. Miles. The majority stated: A contract involving intrastate transactions, made by a single producer with a group of dealers for the maintenance of a price scale on its products and for the enforcement thereof by prohibiting dealers from selling to one who violates the price scale or who in turn sells to one who violates the price scale, does not conflict with the statute, is not illegal, and, therefore, affords no basis for a claim of damages by one claiming to be aggrieved thereby. . . . The scope of a State statute, especially in respect of intrastate matters, is to be determined by the State courts. The soundness of the economic theories embodied in such a statute is a legislative question, and courts may not obtrude their economic theories into a statute under the guise of interpreting it. What constitutes the common law of this State, in the light of which State statutes are to be interpreted, is to be determined by State court decisions. . . . In considering the matter here involved, as was said in a similar situation, “We may eliminate the Federal Anti-Trust laws,” . . . and, as a consequence, the decisions thereunder. The enforcement of rights under such Federal statutes may be had in the Federal courts only. . . . Federal cases interpreting Federal statutes, or relating to interstate situations, are not controlling when there are State decisions relating to the State statute invoked which may, in some respects, place upon a State statute an

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interpretation different from that placed by the Federal courts upon a different though somewhat similar Federal statute . . . If the Legislature deemed that the foregoing State decisions gave to the statute a meaning or scope different from that intended, it would have amended the statute so as to give it the effect intended if such different effect were similar in character to that given by the Federal decisions to the Federal Anti-Trust statute. In the face of these decisions the Legislature deliberately refrained from making any such amendment or change in the statute. The State decisions are controlling and the Federal decisions are not pertinent. 244 A.D., at 296–97 (citations omitted)

Concern about deteriorating prices during the Great Depression, in part, occasioned the success of a movement by industry advocates, supported by some economists, calling for government action to stem price declines. Fair trade legislation was one of the methods adopted by many states in the 1930s. In 1935, New York’s Fair Trade Law legislatively sanctioned resale price maintenance agreements (L. 1935, ch. 976); however, the effectiveness of those agreements was threatened by sellers who managed to obtain the fair traded product but had not signed a fair trade agreement, and who then resold it below the fair trade price. In response to these “price cutters,” or discount dealers, the statute provided not only that the signatories were bound by the resale prices set in a fair trade agreement, but also, as did the statutes of many other states, that any person, including nonsignatories, who “knowingly and willfully” sold products below the fair trade price committed an act of “unfair competition” and was liable for damages. In 1936, the Court of Appeals held that the provision binding nonsignatories to a fair trade price set by others was unconstitutional. The Court reasoned that inasmuch as the State did not have plenary power to set prices for any and all products, a statute that permitted enforcement of pricing provisions of resale price maintenance agreement against nonsigners was an unconstitutional delegation of price setting power to private parties. Doubleday, Doran & Co., Inc. v. R. H. Macy & Co., Inc., 269 N.Y. 272 (1936). Special Term had expressly found the provisions to be unconstitutional under the Federal and State constitutions, 158 Misc. 267 (Sup. West. 1935), but in Doubleday, Doran the Court of Appeals, affirming, stated that the provisions were “unconstitutional” and cited United States Supreme Court Fourteenth Amendment cases, but did not otherwise refer to the Federal or State constitutions. At the end of 1936, the United States Supreme Court held that a similar Illinois nonsigner statute did not violate the Federal Constitution. Old Dearborn

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Distributing Co. v. Seagram-Distillers Corporation, 299 U.S. 183 (1936). Consequently, three months later, the Court of Appeals, in Bourjois Sales Corporation v. Dorfman, 273 N.Y. 167 (1937), held that the New York nonsigner provision it had found was unconstitutional in Doubleday, Doran & Co., Inc. v. R. H. Macy & Co., supra, was not unconstitutional. In Bourjois Sales, the Court referred only to the Federal Constitution’s Fourteenth Amendment due process clause; it did not separately consider its constitutionality under the State Constitution, although, as noted above, the State Supreme Court in Doubleday, Doran had considered both the Federal and State constitutions. See, General Electric Co. v. Masters, Inc., 307 N.Y. 229, 237 (1954), infra. In any event, state legislation alone could not override the teaching of Dr. Miles with respect to transactions covered by the Sherman Act, the Federal antitrust law. In 1937, fair trade advocates successfully persuaded Congress to enact the Miller-Tydings Act, 50 Stat. 693 (1937), exempting resale price maintenance agreements from the Sherman Act prohibitions in states where such agreements were lawful. In response to Miller-Tydings, New York’s 1936 Fair Trade Act was reenacted in 1940 as General Business Law § § 369-a-e. The Court of Appeals sustained the constitutionality of the Act as applied to nonsigners and to goods in or affecting interstate commerce. Calamia v. Goldsmith Bros., 299 N.Y. 798 (1949). In 1951, the Supreme Court, interpreting the Miller-Tydings Act, held that it did not extend the resale price maintenance exemption from the Sherman Act so as to authorize enforcement against nonsigners. Schwegmann Brothers v. Calvert Distillers Corp., 341 U.S. 384 (1951). Congress effectively overruled Schwegmann with the McGuire Act, which authorized state nonsigner provision laws, 66 Stat. 631 (1952). In General Electric Co. v. Masters, Inc., 307 N.Y. 229, 237 (1954), the Court considered the following claims, inter alia: first, the constitutionality of New York’s Fair Trade Law nonsigner provisions was challenged under the State Constitution’s due process standards; second, that Schwegmann still applied to the State statute; and third, the New York statute was not intended to apply to transactions in interstate commerce. All three contentions were rejected. As for the State constitutional due process attack on the legislation, the Court stated that the challenge had been argued and rejected in Doubleday, Doran & Co., supra, and other cases, although, as noted above, the Court’s Doubleday, Doran & Co. opinion did not deal explicitly with the State constitutional objection. Neither did the other cases cited by the Court.6 Basically the argument based on Schwegmann was that because the New York law had been enacted before Schwegmann and the McGuire Act, the New

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York provision was unconstitutional under Schwegmann and had to be reenacted by the New York Legislature in order to be covered by the McGuire Act’s subsequent authorization. This argument was rejected, as was the contention that the New York statute was not intended to cover interstate commerce. Changed economic conditions resulted in the sharp diminution of support for fair trade laws throughout the country, and in 1975 New York repealed its Fair Trade Law and substituted a new General Business Law § 369-a that provided (L. 1975, ch. 65): “Any contract provision that purports to restrain a vendee of a commodity from reselling such commodity at less than the price stipulated by the vendor or producer shall not be enforceable or actionable at law.” Later that same year, Congress eliminated the Sherman Act exemption for resale price maintenance agreements when, as part of the Consumer Goods Pricing Act of 1975, the McGuire Act was repealed. 4. THE DONNELLY ACT AS A DEFENSE TO A BREACH OF CONTRACT ACTION

In X.L.O. Concrete Corp. v. Rivergate Corporation, 83 N.Y.2d 513 (1994), a breach of contract action, the defendant interposed a defense of antitrust illegality under the Donnelly Act. The plaintiff, pursuant to a written contract, supplied concrete to the defendant who refused to pay the contracted amount. The defendant claimed the contract was void because it was in violation of the Donnelly Act in that it was the product of an arrangement between La Cosa Nostra and seven concrete construction companies, called the “Club,” whereby the “Club” decided who would get construction jobs and rigged the bidding for those jobs. The plaintiff, a member of the “Club,” a fact known to the defendant when it entered into the contract, was awarded the contract with the defendant. On its face, the contract was lawful. The Supreme Court had held under the Sherman Act that “a contract which is legal on its face and does not call for unlawful conduct in its performance is not voidable simply because it resulted from an antitrust conspiracy.” X.L.O. Concrete Corp., supra, at 517, citing Connolly v. Union Sewer Pipe Co., 184 U.S. 540 (1982), Kelly v. Kosuga, 358 U.S. 516 (1959), and several lower New York court cases. The Court of Appeals in X.L.O. Concrete Corporation concluded that the “the contract sought to be enforced is legal on its face and does not contemplate or require conduct in violation of the antitrust laws in its performance. Moreover, the mere fact that the contract is related to an antitrust conspiracy does not automatically render it unenforceable.” X.L.O. Concrete Corp., supra, at 518. It would appear that dismissal of the antitrust illegality defense would have been appropriate based on the Court’s characterization of the contract and in

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view of Connolly and the other Federal cases it cited. Instead, the Court of Appeals, while rejecting a claim that the contract was per se illegal, stated what it viewed as the ultimate question before the Court, “Was the contract at issue . . . so integrally related to an antitrust conspiracy in violation of the Donnelly Act that it is void and unenforceable as a matter of law?” On that basis, it remanded the case to the trial court for the resolution of specified factual issues designed to address the “ultimate question” posed by the Court. Arguably, the failure of the Court of Appeals in X.L.O. Concrete Corp. simply to rely on the Sherman Act cases of Kelly v. Kosuga and Connolly and strike the defense of antitrust illegality could be viewed as a departure from the Court’s doctrine of “counterpart conformity.” It should be noted that previously, in Mobil Oil Corporation v. Rubenfeld, 40 N.Y.2d 936 (1976), affirming on the Appellate Division opinion 48 A.D.2d 428 (2d Dept. 1975), a tenant operator of a service station tried to defend an eviction proceeding by claiming that the landlord oil company had sought the eviction because the operator had resisted the company’s tie-in and price-fixing arrangements, which violated Federal antitrust laws. The Court of Appeals rejected this retaliatory eviction defense as a matter of law.

IV. The Common Law and Competition Policy A. Ancillary Restrictive Covenants Prior to the Donnelly Act, New York courts had adopted and developed common law rules concerning contracts in restraint of trade. After the enactment of the Donnelly Act, common law rules continued to be viable in determining the legality of some restrictive covenants between competitors and potential competitors.7 The history and content of these doctrines were succinctly set out in Purchasing Associates, Inc. v. Weitz, 13 N.Y.2d 267 (1963), and Mohawk Maintenance Co. v. Kessler, 52 N.Y.2d 276 (1981). In the former case the Court stated: At one time, a covenant not to compete, basically an agreement in restraint of trade, was regarded with high disfavor by the courts and denounced as being “against the benefit of the commonwealth.” . . . It later became evident, however, that there were situations in which it was not only desirable but essential that such covenants not to compete be enforced. . . . Where, for instance, there is a sale of a business, involving as it does the transfer of its good will as a going concern, the courts will enforce an incidental covenant by the seller

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not to compete with the buyer after the sale. . . . This rule is grounded, most reasonably, on the premise that a buyer of a business should be permitted to restrict his seller’s freedom of trade so as to prevent the latter from recapturing and utilizing, by his competition, the good will of the very business which he transferred for value. . . . This court has applied the “sale of business” rationale where an owner, partner or major stockholder of a commercial enterprise has sold his interest for an immediate consideration which was, in part, payment for the good will of the business, in terms of “continuity of place” and “continuity of name.” . . . The sole limitation on the enforceability of such a restrictive covenant is that the restraint imposed be “reasonable,” that is, not more extensive, in terms of time and space, than is reasonably necessary to the buyer for the protection of his legitimate interest in the enjoyment of the asset bought. . . . 13 N.Y.2d, at 267, 271–73 (citations omitted)

In Mohawk Maintenance Co. v. Kessler, the Court stated: The change in judicial attitudes toward such agreements was also occasioned by a growth in trade and a concomitant expansion in the range of available economic opportunities. . . . Defendants have suggested in their briefs that express covenants restricting competition are scrutinized more carefully by modern courts than they were in the distant past. This suggestion, however, is simply not supported by the case law. . . . [The] modern trend in the case law seems to be in favor of according such covenants full effect when they are not unduly burdensome, particularly in cases where the agreement in question is made in connection with the sale of a business and its accompanying “good will.” . . . Nevertheless, as defendants correctly point out, the requirement that such covenants be “reasonable” in scope has never been completely abandoned and remains an important part of our case law. 52 N.Y.2d 276, footnotes 4 and 5, at 283–84

B. Mohawk Maintenance Co. v. Kessler and the Sale of Good Will New York law concerning agreements in restraint of trade ancillary to the sale of a business is and was in accord with the generally accepted common law rules concerning those transactions. Mohawk Maintenance Co. v. Kessler, supra,

Antitrust 723

dealt with an additional basis for restraining the seller of a business from competing with the purchaser. The doctrine relied on in Mohawk Maintenance Co. v. Kessler, in large measure, had been derived from English cases and had been approved by the Court of Appeals in Von Bremen v. MacMonnies, 200 N.Y. 41, 50–51 (1910). It is worth special attention because Mohawk Maintenance Co. involved the Von Bremen doctrine in the context of ancillary agreements in restraint of trade. The following were the facts in Mohawk Maintenance Co. v. Kessler: In connection with the sale of the business, Kessler [the seller and the defendant] agreed that he would not “either as owner, partner, officer, employee, agent, consultant manager, lessee or lessor or in any other capacity, directly or indirectly . . . carry on or engage . . . in any business competitive with any business carried on by [plaintiff purchaser Mohawk]” for a period of five years after the closing date of the sale. The geographical scope of the restriction on Kessler’s business activities was confined to New York, Connecticut, and any other State where Mohawk was actively doing business on the date of contract closing. Additionally, it was agreed between the parties that Kessler would continue to work for Mohawk as an employee for a period of three years and that the provisions of his employment contract would continue in force if he elected to remain with the company after his initial term of employment ended. The employment agreement also contained an anticompetition clause which precluded Kessler from engaging in any rival business “[f]or a period of 24 months after the termination of this agreement.” 52 N.Y.2d, at 280

Thus, there was a restrictive covenant ancillary to the agreement to sell the business and a postemployment restrictive covenant, each of which contained restrictions that were reasonable in scope with respect to time and place and, consequently, were enforceable. Having assumed or found that the time period covered by the express agreements had expired, the trial court enjoined the seller-defendant indefinitely from soliciting his former customers. The order [rested] on the premise that defendants have a legal duty to refrain from acting to impair the “good will” which defendant Kessler had transferred to plaintiff in connection with the sale of his business and that this duty exists independent of any additional obligations undertaken by Kessler pursuant to certain express restrictive covenants contained in the contract of sale. 52 N.Y.2d, at 279

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The Court of Appeals upheld the issuance of the injunction. Alternative theories supported the position of Judge Gabrielli, who wrote the majority opinion for the Court of Appeals. One theory relied on the concept of an implied covenant; that is, the seller is obligated by an implied covenant not to solicit former customers and thereby to undermine the essence of his agreement to sell the good will of the business. A second theory analogized the sale of good will to the sale of tangible property, and just as the seller of tangible property could not simply retake what had been sold, the seller of good will could not simply reacquire the good will he has sold by soliciting former customers who had been customers at the time of the sale. However, simply selling the good will of the business did not preclude the seller from dealing with former customers who came to him unsolicited and voluntarily. If the purchaser wanted protection against the seller competing with him at all, that protection was available in the form of restrictive covenants that satisfied standards of reasonableness described above, concerning time and place. Kessler conceded that, even without an express agreement, the seller could be enjoined from soliciting former customers for a reasonable time after the sale, but he contended that the prohibition on solicitation should not be without a time limit, as the order provided. For the reasons stated above, the Court rejected Kessler’s position. In his dissenting opinion, 52 N.Y.2d, at 287, et seq., Judge Jones, with the concurrence of Judge Jasen and Judge Meyer, argued that the restrictive covenants ancillary to the sale and the postemployment restraints took the case out of the general rule that a seller was disabled from soliciting his former customers indefinitely because, by virtue of these express agreements, the parties had covered the question. He argued, and it appears that the majority agreed, that the parties could expressly provide by binding agreement for a time limitation restricting the seller’s obligation to refrain from soliciting former customers for a period less than the indefinite one provided in the injunction. Judge Jones argued that at least under the circumstances of this case, the time limitations in the agreement described above should have been treated as having set the time limitations on the seller’s obligation not to solicit former customers. Consequently, it was error to enjoin the plaintiff indefinitely. In addition, Judge Jones, in principle, objected to the expansion of restrictions on competition when the facts did not clearly support that position. He wrote: Not only should the terms of the agreement made by the parties themselves be held to prevail on general principles of contract interpretation, but espe-

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cially is this so in the light of the provisions of section 340 of the General Business Law [the Donnelly Act] which declares public policy against restrictive agreements. That this declaration does not foreclose a buyer from extracting from a seller a reasonably restrictive agreement should not be inflated to support a determination that even when the parties do make an express agreement the law may imply a still more restrictive obligation. 52 N.Y.2d, at 290

26. Picketing and Labor Relations

THIS CHAPTER DEALS with picketing and labor relations. Some other aspects of labor relations are dealt with in chapters 7 and 25.

I. Background In 1938, the Poletti Report to the New York State Constitutional Convention1 reviewed the then state of the law in New York concerning picketing and concluded that the “exact extent to which picketing is constitutionally protected as a form of speech or mode of assembly is doubtful.” Poletti Report, at 184. When the Report was issued, the Court of Appeals had decided only a few cases on the subject and the “question whether picketing in labor disputes is to be differentiated from picketing in the absence of a labor dispute and the problem of defining ‘labor dispute’ in this a context [had] only begun to receive serious consideration.” Id., at 183, n. 41. Injunctions and prosecution under disorderly conduct statutes were common means of prohibiting or limiting picketing. The Report concluded that the Court of Appeals decisions “by no means hold that to justify a limitation on picketing, the limitation must clearly be necessary to prevent violence or other unlawful acts.” Id., at 183. In the few picketing cases it had decided up to that time, the Court had recognized that although “labor had the right to call its grievances to public attention by peaceful picketing . . . the right [had] also been limited in various ways,” including the issuance of injunctions against

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“misleading or false statements” or where there had been an “earlier resort to violence” or by limiting the number of pickets where picketing “might obstruct ingress or egress or create a danger of disorder” and even restraining “speaking in a loud voice” as “involving intimidation or coercion and tending to violence.” Poletti Report, at 182–83, citing Wilner v. Bliss, 243 N.Y. 544 (1926), Exchange Bakery v. Rifkin, 245 N.Y. 260 (1927), Nann v. Raimist, 255 N.Y. 357 (1931), Wise Shoe Company v. Lowenthal, 266 N.Y. 264 (1935), and Goldfinger v. Feituck, 276 N.Y. 281 (1937). There were convictions under the disorderly conduct statutes based “upon proof of picketing with misleading signs or giving misleading information [and] upon evidence that the picket stopped a prospective customer and requested him not to enter.” In addition, a disorderly conduct conviction had been sustained where the picketing was against firetrap conditions, because “a more orderly procedure was available . . . by appealing to the proper city official.” Violation of a police order limiting the number of pickets was the basis for another disorderly conduct conviction, and the Court held that violation of the order “is itself sufficient to establish disorderly conduct,” provided the order was not the product of “gross abuse.” Poletti Report, at 183, citing People v. Jenkins, 138 Misc. 498 (1930), aff’d. 255 N.Y. 637 (1931), People v. Kopezak, 153 Misc. 187 (1934), aff’d. 266 N.Y. 565 (1935), People v. Nixon, 248 N.Y. 182 (1928), and People v. Ward, 159 Misc. 328 (1936), aff’d. 272 N.Y. 615 (1937). The opinion in Exchange Bakery v. Rifkin, 245 N.Y. 260 (1927), provided a clear and extensive review of the status of labor conflict under the law in 1927. Its language concerning picketing was cited in many cases that followed: Picketing without a strike is no more unlawful than a strike without picketing. Both are based upon a lawful purpose. Resulting injury is incidental and must be endured. Even if the end sought is lawful, the means used must be also. “Picketing” connotes no evil. It may not be accompanied, however, by violence, trespass, threats or intimidation express or implied. No crowds may be collected on or near the employer’s property. The free entrance of strangers, customers or employees may not be impeded. There may be no threats—no statements oral or written, false in fact, yet tending to injure the employer’s business. We here make no attempt to enumerate all the acts that might make picketing illegal. Doubtless there are others. When the situation in a particular case comes to be reviewed by the courts there will be no difficulty in drawing the line between acts permissible and acts forbidden. 245 N.Y. 260, at 263–64

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II. Statutory Protection of Picketing in “Labor Disputes” A. Amendments to the Civil Practice Act The somewhat expansive use of injunctions in labor disputes led to amending the Civil Practice Act so as to limit the issuance of injunctions against picketing in labor disputes (Laws of 1935, ch. 477, adding Civil Practice Act § 876-a).2 In addition to providing that no injunction should be issued in a “labor dispute” unless the court made findings concerning unlawful dangers as specified in the amendment, § 876-a also provided that an injunction should not prohibit, inter alia, Giving publicity to and obtaining or communicating information regarding the existence of, or the facts involved in, any dispute, whether by advertising, speaking, picketing, patrolling any public street or any place where any person or persons may lawfully be, or by any other method not involving fraud, violence or breach of the peace.

Goldfinger v. Feituck, 276 N.Y. 281 (1937), decided two years after the enactment of § 876-a, held “ . . . that where a retailer is in unity of interest with the manufacturer, the union may follow the [manucfacturer’s] non-union goods and seek by peaceful picketing to persuade the consuming public to refrain from purchasing the non-union product, whether that is at the plant of the manufacturer or at the store of the retailer in the same line of business and in unity of interest with the manufacturer.” 276 N.Y., at 287. However, the Court also stated that it “held no more than” the foregoing. Id. Busch Jewelry Co., Inc. v. United Retail Employees’ Union, 281 N.Y. 150 (1939), addressed the scope of CPA § 876-a, and the Court sustained an order enjoining all picketing where the evidence showed that the union had countenanced, encouraged, and even planned that violence, threats of violence, and other unlawful acts would accompany the picketing and violence, etc., did occur. In substance, the Court found that the 1935 amendment did not and was not intended to deprive the courts of the power recognized in earlier cases to enjoin future unlawful and dangerous acts including picketing, where unlawful and dangerous acts had occurred. Judge Lehman, the lone dissenter, agreed with the majority that the evidence supported the findings that unlawful acts had occurred in the manner described, and that § 876-a did not, and constitutionally could not, deprive the courts of the power to prohibit future unlawful

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acts covered by the injunction. He also agreed that holdings or language of earlier cases, see Exchange Bakery v. Rifkin, 245 N.Y. 260 (1927), Nann v. Raimist, 255 N.Y. 357 (1931), Wise Shoe Company v. Lowenthal, 266 N.Y. 264 (1935), might well have sustained the issuance of the injunction in Busch Jewelry Co., Inc.; but he reasoned that the Legislature had exercised its constitutional power to regulate how the Court could exercise its jurisdiction to determine the balance between picketing and the danger of unlawful acts when it enacted § 856a, and he concluded that the Legislature had favored protection of peaceful picketing unless the possibility of peaceful picketing is “out of the question.” Inasmuch as he believed that under the facts of the case the possibility of peaceful picketing was not “out of the question,” Judge Lehman would have modified the injunction by permitting peaceful picketing and by only enjoining violence and other unlawful acts. Three months later, the Court decided People v. Bellows, 281 N.Y. 67 (1939). In addition to some jurisdictional issues, the case dealt with the question of when peaceful picketing constitutes disorderly conduct. The Court of Appeals resolved the questions and remanded for a new trial. Defendant Bellows was a member of a union who picketed a store because it had signs made and erected by a company whose employees were members of a different union. The store had no employees other than the individual owners, and Bellows urged prospective customers not to buy there. The Court found there was not “the unity of interest” as described in Goldfinger v. Feituck, supra; consequently, the union picketing had as its purpose an unlawful object, i.e., a secondary boycott. Inasmuch as the object of the picketing was unlawful, even if the picketing was peaceful, the Court held it could be prosecuted as disorderly conduct.

B. The Supreme Court and New York’s Regulation of Picketing 1. THORNHILL V. STATE OF ALABAMA

In 1940, the Supreme Court addressed the constitutionality of picketing, and held, “In the circumstances of our times [labor disputes during the Great Depression] the dissemination of information concerning the facts of a labor dispute must be regarded as within that area of free discussion that is guaranteed by the Constitution.” Thornhill v. State of Alabama, 310 U.S. 88, 102. However, the Court did recognize that picketing involved more than mere speech, and consequently it could be regulated, but only by a statute “narrowly drawn to cover the precise situation giving rise to the danger,” such as violence and other effects that could be prohibited. Id., at 105.

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2. PROTECTING PICKETING IN THE CONTEXT OF A “LABOR DISPUTE” UNDER CPA § 876-A

a. Thomas v. Boekhout Before Thornhill, the Court of Appeals had addressed the definition of “labor dispute” in Thomas v. Boekhout, 273 N.Y. 390 (1937): The application of section 876-a of the Civil Practice Act is confined to injunctions in cases “involving or growing out of a labor dispute.” The Legislature has in the same section defined “labor disputes.” That definition makes clear the intent of the Legislature to subject injunctions issued in disputes involving or growing out of the relations of employer and employee to special regulations deemed appropriate to the nature of such disputes. Where the owner of a small business seeks to avoid “labor disputes” as defined in the statute, by running his business without any employees, an attempt to induce or coerce him to hire an employee or employees, upon terms and conditions satisfactory to persons associated in such attempted inducement or coercion is not a “labor dispute” within the letter or spirit of the statutory definition. We hold that the statute has no application in this case. 273 N.Y., at 393

The Thomas v. Boekhout exclusion of a business “without any employees” from the definition of a “labor dispute” became the center of some of the most important cases decided by the Court of Appeals. b. Wohl v. Bakery & Pastry Drivers Union Wohl v. Bakery & Pastry Drivers Union, 284 N.Y. 788 (1940), affg 259 A.D. 868 (1st Dept. 1940), affg 14 N.Y.S.2d 148 (Sup. 1939), was decided shortly after Thornhill. Two years later, the Supreme Court reversed the Court of Appeals. Bakery and Pastry Drivers and Helpers Local 802 of International Brotherhood of Teamsters v. Wohl, 315 U.S. 769 (1942).3 In Wohl, plaintiffs were bread peddlers who purchased bread from bread manufacturers, and then sold the bread and delivered it in their own trucks to their customers. The drivers’ trucks were registered in their respective wives’ names. The Union had been engaged in obtaining collective bargaining agreements covering the drivers’ working conditions. In order to reduce their costs, the manufacturers discharged the drivers when payroll taxes for Social Security and unemployment compensation became effective. However, in order to continue selling their bread and at the same time reduce their labor costs, the manufacturers offered their discharged drivers the

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opportunity to purchase the trucks at nominal amounts and to continue to deliver the bread as independent “peddlers” to retailers and others.4 About 150 of the “peddlers” had previously been employed as truck drivers by the manufacturers. The Bakery and Pastry Drivers Union had represented the manufacturer’s drivers for some years before the new arrangement was initiated. The peddlers had no employees. The union asked the peddlers to join the union, and each [of the two plaintiff peddlers] signed an application, but neither joined. The union then determined to seek an understanding with peddlers who failed to join the union that they work only six days a week and employ an unemployed union member one day in a week. The union did not insist that the relief man be paid beyond the time that he actually worked, but asked that he be paid on the basis of the union’s daily wage, which fixed a scale for part of a day if but part of a day was required for the service of the route. For some ten weeks Wohl [one of the peddlers] employed a relief driver, who was paid $6.00 per day, the normal day’s wage for a full day being $9.00. 315 U.S., at 771–772.

The Court of Appeals sustained an injunction against the union, which had sought to have the peddlers join the union or to employ unemployed union member truck drivers one day a week as a means of spreading the available employment in the industry. The union was not successful in its quest and picketed the peddlers with placards that informed the public about the union’s demands. The Court of Appeals found there was no “labor dispute” because the peddlers had no employees and affirmed the issuance of an injunction prohibiting the union’s picketing based upon Special Term’s findings that “a labor dispute was not involved in this action and that section 876-a of the Civil Practice Act [entitled ‘Injunctions issued in labor disputes’] did not apply”; and that “the plaintiffs are the sole persons required to run their business and therefore they are not subject to picketing by a union or by the defendants who seek to compel them to employ union labor.” Wohl v. Bakery & Pastry Drivers Union, 284 N.Y. 788. The struggle in the Court of Appeals concerning the meaning and relevance of what constitutes a labor dispute continued during the time between the 1940 Court of Appeals decision in Wohl and its reversal by the Supreme Court in 1942. In the interim, the Court of Appeals decided Opera on Tour, Inc. v. Weber, 285 N.Y. 348 (1941), cert. denied 314 U.S. 615, and People v. Muller, 286 N.Y. 281(1941).

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Here we discuss those two cases before returning to the Supreme Court’s disposition of Wohl. In Opera on Tour, Inc. the Court of Appeals majority again took a restricted view of what constituted a “labor dispute.” The majority and dissenting opinions reflected basic philosophical differences over labor policy and the law. Opera on Tour produced traveling opera performances. It sought an injunction prohibiting “the Musicians’ Union [from inducing] the Stagehands’ Union to join in a combination to destroy [a theatrical] enterprise solely because of the use of machinery [i.e., recordings or ‘canned music’] in the production of music in place of the employment of live musicians.” 285 N.Y., at 352. The majority found there was no dispute concerning employment conditions between the Stagehands’ Union and the plaintiff, but nevertheless, on orders from their union, the stagehands refused to supply services to the plaintiff because most other theaters were closed shops and if the stagehands did work for the plaintiff, they would be denied employment in other theaters. The aim of the musicians, of course, was to have the theater abandon the use of canned music and to hire the musicians to provide live music. The Court reviewed the claimed negative effects on the public of the union activity in denying the public access to opera performances and the negative economic effects on the employees involved and others as well. While recognizing the right of the union to act in order to accomplish “lawful” objectives, i.e., those that have “reasonable connection with wages, hours, health, safety, the right of collective bargaining, or any other condition of employment or for the protection of labor from abuses . . . [but] where the union objective is unlawful or illegal, there is no immunity for injury inflicted by a labor union . . . [and] labor is not free from legal responsibility.” 285 N.Y., at 355. Citing its decisions in Wohl, supra, and Thompson v. Boekhout, supra, the majority concluded that the union activity was not “reasonably connected” to the lawful objectives described above, but rather that the union activity had as its purpose “[t]o make impossible the continuance of a business and thus to prevent the employment of a full complement of actors, singers and stagehands merely because a machine is not discarded and in place thereof live musicians employed, [and this] is not a lawful labor objective.” 285 N.Y., at 356. Chief Judge Lehman, who was the sole dissenter in Busch Jewelry Co., Inc., dissented in Opera on Tour, with Judge Loughran concurring. The Chief Judge, in a strongly worded opinion, denied that the union objective was to destroy the plaintiff’s business and pointed out that the injunction did not direct them not to do so. Moreover, he disputed the relevance of the economic effects discussed by the majority opinion; indeed, the unions may have made bad judgments concerning how they would be benefited if they succeeded, but this was not the

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business of the courts to determine. It is a legitimate aim of “economic conflict” for a union to try to increase the number of workers in an entire industry or trade. Now, for the first time, without pointing out any ground of distinction, it [the Court] abandons its long-established policy that “it is not within the province of the courts to restrain conduct which is within the allowable area of economic conflict” and ventures to command two unions to cancel an order to their members to strike in order to compel an employer to employ more workmen than the employer (and the court) regard as sufficient and most advantageous. 285 N.Y., at 360

The court’s command to the unions to cancel their strike order is not only contrary to the policy of the State as established by an unbroken line of judicial decisions, but it disregards a direct and clear legislative mandate that such a strike is not unlawful and may not be enjoined. No court may under the statute directly or indirectly prohibit a strike, conducted peacefully and in orderly fashion “in a case involving or growing out of a labor dispute.” The statute defines a labor dispute as follows: “The term ‘labor dispute’ includes any controversy concerning terms or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing or seeking to arrange terms or conditions of employment, or concerning employment relations, or any other controversy arising out of the respective interests of employer and employee, regardless of whether or not the disputants stand in the relation of employer and employee.” Civil Practice Act, s 876-a subd. 10(c). 285 N.Y., at 361

In People v. Muller, the Court of Appeals in a 4–3 decision reversed the disorderly conduct convictions of two members of a union. The facts were stipulated and they establish[ed] beyond dispute that the defendants are members of a labor union engaged in a labor dispute with the National Wiring and Protective Co., Inc., over wages and hours of its employees. The National Wiring and Protective Co., Inc., has installed in the complainant’s place of business an electric burglar alarm apparatus and has agreed to maintain the apparatus in serviceable condition, and the union has demanded that the complainant

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obtain union service on that system. The defendants have picketed in an orderly and peaceful way. 286 N.Y., at 284

Chief Judge Lehman, writing for the four-judge majority, on his view of the facts found the defendants’ conduct “has not been disorderly in any way and has not tended towards a breach of the peace, unless peaceful picketing with a sign calculated to inform the public that the burglary alarm system installed in the complainant’s store is not being maintained by the union of which the defendants are members is unlawful, and without more constitutes disorderly conduct.” He concluded that the picketing was for the purpose of advancing the lawful interests of the union in a “labor dispute” as defined in CPA § 876-a even under the “restrictive” interpretation of that term in Opera on Tour. In addition, the Chief Judge advanced an even broader view of the right to picket, stating that “[e]ven were that not true, . . . peaceful picketing by the members of a union in front of a business served by the union is the exercise of a right of free speech guaranteed by the Constitution of the United States as construed by the Supreme Court of the United States.”5 Id. The dissent claimed that defendants were convicted of disorderly conduct because “they picketed the retail haberdashery store of complainant in such a manner as might occasion a breach of the peace.” 286 N.Y., at 285 (Finch, J., dissenting opinion). The haberdashery store argued further that because it was the ultimate consumer of the burglary alarm system with no right to resell it and was not in the same industry or trade as the manufacturer, the union’s object was a secondary boycott and unlawful, citing Bellows, supra. In addition the store had a contractual obligation to permit the manufacturer to service the system and the union was subjecting the store to pressures that could result in their being liable for breach of contract and that could not resolve the dispute between the union and the manufacturer. The dissent’s view of earlier cases, some of which are discussed above, led it to the conclusion that the union’s conduct against the complainant who was not a party to the dispute between the manufacturer and the union went beyond the kind of picketing protected by the Constitution. In reversing the Court of Appeals, the Supreme Court unanimously held that the injunction issued in Wohl, supra, violated the picketers’ rights under the First and Fourteenth Amendments.6 Justice Jackson wrote the opinion for the Court, and Justices Black and Murphy joined in Justice Douglas’s concurring opinion. Both opinions agreed that issuance of the Wohl injunction was unconstitutional and that a State’s definition of “labor dispute” could not define

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the constitutional limitations on picketing, but the opinions revealed differences in reaching this conclusion. Justice Jackson wrote: So far as we can ascertain from the opinions delivered by the state courts in this case, those courts were concerned only with the question whether there was involved a labor dispute within the meaning of the New York statutes and assumed that the legality of the injunction followed from a determination that such a dispute was not involved. Of course that does not follow: one need not be in a “labor dispute” as defined by state law to have a right under the Fourteenth Amendment to express a grievance in a labor matter by publication unattended by violence, coercion, or conduct otherwise unlawful or oppressive. .... We ourselves can perceive no substantive evil of such magnitude as to mark a limit to the right of free speech which the petitioners sought to exercise. The record in this case does not contain the slightest suggestion of embarrassment in the task of governance; there are no findings and no circumstances from which we can draw the inference that the publication was attended or likely to be attended by violence, force or coercion, or conduct otherwise unlawful or oppressive; and it is not indicated that there was an actual or threatened abuse of the right to free speech through the use of excessive picketing. A state is not required to tolerate in all places and all circumstances even peaceful picketing by an individual. But so far as we can tell, respondents’ mobility and their insulation from the public as middlemen made it practically impossible for petitioners to make known their legitimate grievances to the public whose patronage was sustaining the peddler system except by the means here employed and contemplated; and those means are such as to have slight, if any, repercussions upon the interests of strangers to the issue. 315 U.S., at 774

Justice Douglas expressed concern that the full thrust of Thornhill v. Alabama might be undermined by the Wohl rationale. Interestingly, Justice Jackson’s opinion did not even refer to Thornhill. Justice Douglas wrote: If the opinion in this case means that a State can prohibit picketing when it is effective but may not prohibit it when it is ineffective, then I think we have

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made a basic departure from Thornhill v. Alabama. . . . We held in that case that “the dissemination of information concerning the facts of a labor dispute must be regarded as within that area of free discussion that is guaranteed by the Constitution.” . . . While we recognized that picketing could be regulated . . . we invoked the test, employed in comparable situations . . . that the statute which is the source of the restriction on free speech must be “narrowly drawn to cover the precise situation giving rise to the danger.” .... But since “dissemination of information concerning the facts of a labor dispute” is constitutionally protected, a State is not free to define “labor dispute” so narrowly as to accomplish indirectly what it may not accomplish directly. That seems to me to be what New York has done here. Its statute (Civil Practice Act, s 876-a) as construed and applied in effect eliminates communication of ideas through peaceful picketing in connection with a labor controversy arising out of the business of a certain class of retail bakers. But the statute is not a regulation of picketing per se—narrowly drawn, of general application, and regulating the use of the streets by all picketers. In substance it merely sets apart a particular enterprise and frees it from all picketing. If the principles of the Thornhill case are to survive, I do not see how New York can be allowed to draw that line. 315 U.S., at 776–77 (citations omitted)

c. Angelos v. Mesevich Angelos v. Mesevich, 289 N.Y. 498 (1943), reversed sub nom. Cafeteria Employees Union, Local 302 v. Angelos, 320 U.S. 293, 294–95 (1943), was another instance where the Supreme Court found that the Court of Appeals had limited peaceful and orderly picketing too narrowly to satisfy the Federal constitutional standards of protection. Angelos, a 4–3 decision, had sustained an injunction prohibiting what was concededly “peaceful and orderly” union picketing of a restaurant. The majority and minority opinions by Judge Rippey and by Judge Desmond, respectively, espoused sharply differing views of the facts and the applicable law and reflected ongoing disagreement on the issues involved in enjoining labor picketing. As had become common in these cases, the plaintiff seeking an injunction claimed that it had no employees, so that there was no “labor dispute” under CPA § 856-a; consequently, the section was not applicable when determining whether an injunction could issue. The union claimed that the partnership that purported to own the restaurant was a “sham” formed by the individual owner

Picketing and Labor Relations 737

and his employees for the purpose of avoiding collective bargaining. Apparently rejecting the “sham” claim as irrelevant or not established, Special Term had found there was no “labor dispute” because there were no employees. Judge Rippey, reasoning that he was bound by Special Term’s findings of fact, agreed. Moreover, he said, “Had the court found, as requested by the defendants, that the partnership was formed to avoid the establishment of a picket line with men walking up and down in front of the place, it would not have changed the result.” 289 N.Y., at 503. He also agreed with the restaurant owner that even if there was a “labor dispute,” the courts had the power to enjoin picketing involving false statements designed to injure the business, citing Busch Jewelry Company, supra, and the Court of Appeals decision in Wohl. It has been found by the lower courts that the picketing of the World Cafeteria was at all times orderly and peaceful and that no acts of violence had been threatened or committed by the defendant union. The defendants had the constitutional right accurately and truthfully and without violence, force or coercion, or conduct otherwise unlawful or oppressive to make their grievances known to the public. . . . But a citizen is not required to tolerate peaceful picketing accompanied by untruthful representations, interference with his business or coercive conduct designed to injure or destroy his business whether a labor dispute exists or not. . . . In this case it has been found that individuals under the control of the defendants have been picketing the plaintiffs’ cafeteria, bearing false and misleading signs that tend to create the impression that the plaintiffs are unfair to organized labor and that the pickets were previously employed by the plaintiffs, which representations were false and known by the defendants to be false, since there were no employees at the place of business of the plaintiffs and the plaintiffs were not unfair to organized labor; that such pickets approached prospective customers of the plaintiffs and told them that the plaintiffs’ restaurant was giving bad food, and that by patronizing said restaurant they were aiding the cause of Fascism; and that the pickets directed customers about to enter the plaintiffs’ place of business to a cafeteria across the street which was a competitor of the plaintiffs. By no authoritative decision has it been held that such conduct is not subject to judicial restraint. On the contrary, unlawful and coercive conduct will be enjoined where it has been found that such conduct has caused damage and will cause irreparable damage if permitted to continue and the party who is so damaged or threatened to be damaged has no adequate remedy at law. 289 N.Y., at 502–3 (citations omitted; emphasis added)

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Judge Desmond, writing for the dissenters, argued that Supreme Court and Court of Appeals decisions prohibited the issuance of the injunction against this concededly “peaceful and orderly picketing.” First, he pointed out that the socalled “picket line,” according to the findings, “consisted of just one picket.” As for the allegedly false statements, he found the trial court’s findings inconsistent. The trial court found that “‘the picket on the picket line. . . . requested the public not to patronize said cafeteria since it was unfair to union labor, and made no other statements or representations.’” Judge Desmond declared that “[i]f the picketing described in those findings, herein quoted verbatim, is unlawful, then picketing has been absolutely and completely outlawed in this State,” and the plaintiff “himself testified that he adopted the partnership plan to stop the picketing.” Judge Desmond asked, “What finding was necessary after that frank admission? There is no dispute of fact here. The injunction depends solely on an impossible construction of the law.” 289 N.Y., at 504. Pointing to the plaintiff’s own testimony, Judge Desmond said there was no evidence that the allegedly false statements ever had been made and the trial court’s findings were internally inconsistent. As for the applicable law, whatever the common law may have been prior to the enactment of CPA § 856-a, that section now prohibited the issuance of the injunction in the case at bar, and even if construed not to prohibit the injunction, issuance was prohibited under the Federal Constitution and the decision of the Supreme Court in Wohl. Judge Desmond concluded: In this small lawsuit there is at hazard, just as surely as in great strifes that sweep the world, an ancient and inalienable right. If that right cannot find vindication in the courts, it has little chance elsewhere. 289 N.Y., at 506

Justice Frankfurter, writing for a unanimous Supreme Court, reversed the Court of Appeals. Cafeteria Employees Union, Local 302 v. Angelos, 320 U.S. 293, 294–95 (1943). He reiterated the holdings of prior cases that the definition of a “labor dispute” by the State could not determine constitutional rights. “[W]e have heretofore decided, a state cannot exclude working men in a particular industry from putting their case to the public in a peaceful way ‘by drawing the circle of economic competition between employers and workers so small as to contain only an employer and those directly employed by him’. A.F. of L. v. Swing, 312 U.S., at page 326. . . .” 320 U.S., at 296.

Picketing and Labor Relations 739

Justice Frankfurter found the allegedly false statements were not statements of “fact” at all and the injunction was so broad that it prohibited even permissible conduct. Even if untruthful statements could be the subject of an injunction, that was not the case at bar. That the picketing under review was peaceful is not questioned. And to use loose language or undefined slogans that are part of the conventional giveand-take in our economic and political controversies—like “unfair” or “fascist”—is not to falsify facts. In a setting like the present, continuing representations unquestionably false and acts of coercion going beyond the mere influence exerted by the fact of picketing, are of course not constitutional prerogatives. But here we have no attempt by the state through its courts to restrict conduct justifiably found to be an abusive exercise of the right to picket. 320 U.S., at 295

27. The Chief Judges’ Contributions: State of the Judiciary

SOL WACHTLER AND JUDITH KAYE, during their services as Chief Judge, contributed more to the Court and the work of lower courts than any of their predecessors. In addition to their many speeches and articles, they have prepared their regular assignment of opinions and during the same period (1989 through May 2002), they have written articles in various law journals, as listed in West Publishing Company’s citations totaling for Wachtler four articles and for Kaye an amazing sixty-two entries. Many of those entries discussed revisions of the court system, which have changed New York’s courts in important respects. Wachtler’s article in 19 Hofstra Law Review 739 (1991) was his introduction to a Symposium on Mandatory Pro Bono in which he recorded his appointment of a committee chaired by Victor Marrero. The Committee’s task was to prepare a plan to increase the availability of legal services to the poor without making such services by all attorneys mandatory. The Committee also requested a moratorium on consideration of a mandatory requirement, so that a concerted effort could be made to achieve a similar level of service on a voluntary basis. Chief Judge Wachtler also initiated the issuance of State of the Judiciary booklets in 1989 and continued preparation of such booklets until his resignation in 1992. Chief Judge Kaye has continued to issue such booklets. Wachtler’s 1989 report noted the heavy increase of cases in criminal and family courts resulting from drug sale and use. He noted an increase of cases in civil courts as well by reason of the institution of the Individual Assignment System. That system involved judges in handling civil cases prior to the filing of a note

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of issue, resulting in earlier intervention and faster resolution of civil cases. Consequently, the time to resolve civil cases has been reduced significantly, but at the same time it increased the work of the judges. In anticipation of increased arrests inside and outside New York City, Wachtler established a criminal justice planning system and a Commission on Courts of the Twenty-first Century to report its vision of what justice in New York should become. The booklet also listed changes in the justice system expected to be initiated in 1990 through requested legislative changes in a number of respects concerning the Family Court, the Criminal Court, the New York City Housing Court, Town and Village Courts, and City and District Courts outside New York City. The 1989 report also set forth areas in which the Chief Judge intended to seek changes, including merger of trial courts, retention of the system of election of judges, nonpartisan selection of judges, legal services for the poor, establishment of a State Judicial Commission on Minorities, increased judicial compensation and benefits, recodification of the Judiciary Law, and changes in the Civil Practice Law and Rules. It also discussed court facilities, cameras in the courts, and women in the State Court system. Wachtler’s 1990 booklet emphasized the use of crack by residents of various New York communities and the resulting effect on the judicial system. It outlined the changes in court work and the necessity for technology in managing workloads. It also considered the report of the Committee to Improve Availability of Legal Services for the Poor. While that report recommended mandatory pro bono services the Chief Judge deferred for two years the institution of such a system to determine whether an enhanced voluntary program would not meet the needs. To assess the situations, he established a Pro Bono Review Committee. The first step in training for judges was to require that all lawyers attend continuing legal education seminars. Productivity was increased by establishing specialized parts for various types of civil and criminal cases and the installation of computers to track assignments, give the public access to case histories, and to support the jury management system. Also, record-keeping was modernized, and new methods were adopted for access and to adopt plans for prompt disposal of records that no longer were needed. Training programs were also instituted for every court and court-related agency in the state. The 1991 booklet rejected the claim that efforts to cut back financing of the court system were necessary, on the grounds that courts were a necessity, not just a public convenience. The Chief Judge and the chief administrator of the courts therefore filed a lawsuit1 against the Governor and the Legislature in order (1) to prevent reduced funding of the courts at a time of increasing workload and the

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reduction of the budget of the judicial branch, which would lead to staffing reductions and court closings, and a consequent decrease in trials and hearings and an increase in the number of pending cases, and (2) to allow the assignment of civil court judges to criminal term to help with the “explosion” of criminal cases, To manage continually increasing caseloads, the booklet recommended a number of changes in both civil and criminal proceedings, in order to prevent the civil system from collapsing. Much of the increase, it was noted, was the result of increased use of heroin or crack and exposure of children to crack in utero or when living with an addicted parent. Recommended changes in criminal practice were to permit oral motions when previously only written motions were accepted; to make changes with respect to interim supervision, which helped in determination of appropriate sentences; and to permit jurors to go home at night instead of being sequestered. In addition, changes were recommended in the rules regarding speedy trials, allowing bench trials of a number of misdemeanor cases, and the creation of a Universal Summons Bureau to try civilian-initiated non-penal law misdemeanors and the laws relating to jury service. It stated that the earlier begun three-year planning had developed a plan for the operation of all trial courts, but that such planning did not keep pace with the caseload growth, which required additional resources. The report also stated that initiatives regarding financial management, information management, record management, and human resources management had been put in place, and that the Court was improving court facilities, availability of legal services, and diversity with respect to women and minorities in the workforce of the courts. Reforms also were proposed with respect to juveniles in the court system and the creation of a task force to study ways of reducing the time required to dispose of criminal cases, and to require financial disclosure by officers and employees of the judicial branch. What follows reviews the changes suggested in Judge Kaye’s first report (1993) and the accomplishments recorded in her 2002 report, the last one available as this book is written. Judge Kaye’s 1993 report recommended: the Midtown Community Court in Manhattan hold evening sessions for nonjury and family matters; commercial courts; an individual assignment system under which the same judge would deal with a case from beginning to end; provide dispute resolution as an alternate means of disposing of cases outside the court system; establish a State Justice Institute to plan for the future of New York’s courts; and the development of more adequate court facilities. She also recommended joint initiatives with the Governor and the Legislature for better education of the public about the law and for the merger of trial courts into a single

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Supreme Court with merit selection of judges and modification of the statute concerning prejudgment procedure suggested in those years. Judge Kaye’s 1999 speech to the American Bar Association was reprinted in 62 Albany Law Review 1491 (1999) under the title “Rethinking Traditional Approaches.” In it she stated that “courts must continually examine their performance to make sure that the justice we are delivering is in fact effective. . . . Increasingly, society has been turning to the courts and to the justice system to resolve some of its toughest issues: family dysfunction, drug abuse, and assaults on the quality of life in our urban areas. These changes mean many more cases in the courts, which is an issue all by itself. But they also mean new kinds of cases that create new roles for judges and lawyers, more like problem solvers than jurisprudes . . . we need to ask ourselves ‘Isn’t there a better way to do this?’” Her answer—the Midtown Community Court, the purpose of which was to stem the return of offenders who pled out and went right back to doing what brought them to court in the first place by taking a problem-solving approach and using a mix of sanctions and services to help stem criminal recidivism and make the community a better place to live, work, and visit. But she asked: “can the lessons of Manhattan’s Community Court be applied elsewhere, to civil cases, commercial cases, family cases, youth crime?” The then existent jury system, she noted, required mandatory sequestration in every criminal case, the longest list of occupational exceptions to required jury service in the country, and a system of unsupervised civil voir dire that allowed lawyers to spend days questioning potential jurors before selecting six to hear a tort case—which commonly was settled before the first witness was sworn. The system has been changed so that the same people are not summoned for duty every two years, all exceptions are abolished, the term of service reduced, mandatory sequestration in every criminal case abolished, and the daily compensation of those summoned increased. The State of the Judiciary booklets published by Chief Judge Kaye reviewed progress with the changes suggested in prior booklets and included new proposals for change. In the booklet for 1993, she noted changes in the jury system with respect to how potential jurors were identified, how they were selected and used, how jurors were accommodated during service; establishment of Judicial Advisory Councils in Buffalo, Nassau, and Queens counties to promote the relationship between the courts and the community; changes in family law including new matrimonial rules, which required delivery to the client of a statement of clients’ rights and responsibilities, forbidding a sexual relationship between attorney and client, establishing children’s centers at courthouses to care for

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children during trials, and requiring mandatory arbitration of a client’s fee dispute, and strong judicial management from inception of the case. It noted establishment of: the Midtown Community Court, which was paperless because it used imaging technology and held evening sessions for nonjury and family matters; of commercial courts that, with the individual assignment system, put the entire matter before the same judge from beginning to end; of alternative dispute resolution, which reduced the number of cases processed by the courts; the establishment of the State Justice Institute to plan for the future use of New York courts, a Committee on Case Management to examine management practices, a Committee on Automation and Technology for Judges so they could use technology in managing case inventories, a Committee on Case Management Education for Judges, and a Committee on Jury Selection Uniformity. It called for the development of adequate court facilities, a constitutional amendment with respect to court structure, for joint initiative with the Governor to make education concerning law available through elementary and high schools, and the establishment of standard procedures with respect to child-abuse complaints. In addition it called for joint initiatives with the Legislature concerning merger of trial courts into a single Supreme Court with merit selection of judges and concerning jury reform as well as civil and criminal procedures and with respect to prejudgment interest to encourage expeditious disposition of cases, as well as revisions concerning nonjudicial personnel, including a uniform evaluation system of employee job performance. The 2001 State of the Judiciary booklet noted that problem-solving courts attempt to reach beyond the immediate dispute to the underlying issue and then to involve community agencies and others in resolving it so that the same people need not return to court time and again with the same problem. While problemsolving courts are inapt for many cases, other huge and growing categories of repeat State court business involve complex social problems like the spouse-batterer or the drug addicted mother who loses custody of her children to years of court-supervised foster care limbo, or the substance abuser, who after sentence of “time served” returns to the same street corner to resume his behavior until his next arrest. Mere disposition of a particular dispute, without reaching the underlying problem, Judge Kaye stated, may not best serve the interests of the parties, the court system, or society. Domestic violence is another area of family law for which special courts have been established. Victims often have an ongoing intimate relationship with the batterer on whom the victim is entirely dependent for life’s essentials, yet the recidivism rate for such cases is two and a half times that for crimes involving strangers. Effective justice, Judge Kaye stated, therefore requires that the courts

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do more than process each case fairly—they must also focus on victim safety, on the potential for future abuse, and on the need for connection to agencies that deal knowledgeably with domestic violence. This resulted in establishment of the Brooklyn Domestic Violence Court in order to resolve family issues more effectively, rather than continue the present system, which can result in such problems being filed in multiple courts—Criminal Court, Family Court, Supreme Court, or Surrogate’s Court. Domestic Violence courts, she states, will allow a single judge to deal with all these problems and ensure that appropriate services are properly provided. To shorten foster care stay and promote early permanency, Model Courts have been established in Erie and New York County Family Courts, and are to be replicated statewide. Domestic Violence Courts, Judge Kaye reported,2 were to be established in the next few months in each judicial district. Parental education programs, in which the parents learn about the impact of divorce on their children, are being instituted statewide; and there are to be Drug Courts, which link nonviolent addicts to drug treatment as an alternative to incarceration. These drug treatment programs had a retention rate twice that of voluntary programs and a significantly lower rate of rearrest and recidivism among Drug Court graduates. Such courts, the booklets stated, were to have been expanded to all sixty-two counties by the end of 2002. The Community Justice Center is a multijurisdictional facility with a single judge hearing cases that would ordinarily be split among three different courts—Civil, Family, and Criminal—and a Youth Court, where teenagers sanction their peers for wrongful behavior. Commercial Division Courts had by then been established in the Supreme Courts in New York, Monroe, Nassau, Erie, and Westchester counties and are being increasingly designated in business contracts as their forum of choice. Technology has also made the courts more user friendly by authorizing electronic filing and will soon make it possible to receive information about a case or a copy of a decision, accessible over the Internet. Although at the time electronic filing had been instituted in thirteen counties, the system was to have been made universal within a year. The 2001 State of the Judiciary report also discussed the formation with Pace University School of Law of the Judicial Institute as a training and research facility for the state court system to assure the continuing excellence of the courts; they are also to serve as a hub for judicial scholarship as well as jury reform. The report also discussed measures to increase public trust and confidence in the courts. Among them are the establishment of joint initiatives with local governments, community and civic groups, educators, and lawyers, to enlarge public understanding of the courts, to make available information about fiduciary

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appointments and compensation of such appointees, as well as a Fee Dispute Resolution program to arbitrate fee disputes between attorneys and clients. With respect to revisions of procedures as distinct from authority of the courts Judge Kaye’s article in 69 Fordham Law Review 373 (2000), entitled “Interactive Judicial Federalism: Certified Questions in New York,”3 is illustrative. It traces the history of certified questions and states: Certification has had its greatest value where a policy choice among reasonable alternatives—the province of the state high court—is implicated, whether in the reading of a statute or the evolution of a common law principle. Issues involving the application of settled law to particular facts, issues that are primarily federal in nature and issues not raised by the parties themselves have proven inappropriate for certification. Furthermore, the delay and cost involved have rendered the procedure unattractive when time-sensitive extraordinary relief is sought, when the issue is unlikely to recur or when the issue is already independently working its way through the state appellate system. Courts also have been disinclined to use the procedure when the party seeking certification invoked federal jurisdiction, as the voluntary election of a federal forum for factual determinations and simultaneous desire to have state court determination of the key legal issue may be viewed as wasteful, and worse.

Judge Kaye concludes that During the past fifteen years in New York, inter-jurisdictional certification has proved itself a valuable tool for the efficient, orderly development of state law when unresolved questions arise in federal litigation.

Notes

Preface 1. Professor Farrell attended some early meetings in which the book was planned and early drafts of a few chapters were reviewed, but he withdrew from the project before submitting any drafts of his own. 2. We have also covered important cases concerning the death pentalty and the state budget decided after October 31, 2003.

1. A Brief Overview of the Court of Appeals 1. The source, unless otherwise attributed, for much of the material contained in this chapter is “There shall be a Court of Appeals . . . ,” the Historical Society of the Courts of the State of New York (1996), as well as the other materials set forth in note 9, infra. For a more complete constitutional history of the New York Court of Appeals, including a history of its jurisdiction, the reader is directed to Francis Bergan, The History of the New York Court of Appeals, 1847–1932 (New York: Columbia University Press, 1985), which this book, in part, is intended to complement. 2. “There shall be a Court of Appeals . . . ,” at 12. 3. Article VI, section 20, of the Constitution provided: “The Legislature at its first session after the adoption of this Constitution, shall provide for the organization of the Court of Appeals and for transferring to it the business pending in the Court for the Correction of Errors. . . .” In addition, pursuant to Article VI, section 19, the Clerk of the Court of Appeals was popularly elected to a three-year term of office. 4. As noted in “There shall be a Court of Appeals . . . ,” at 12: The Public Service of the State of New York, 1880–1881–1882 considered unwise the arrangement by which judges sat in review of their own decisions—even if little

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positive injustice occurred, it subjected judges to severe criticism. The commentators believed the eight-year term was too short, rendering elections too frequent, often remitting a judge to private life just as he had become most useful to the State, and possibly interfering with the complete independence of the Judiciary. An age limitation was once again considered desirable, although the limit of sixty years imposed by the earlier constitutions was rejected.

5. Article VI, § 2, of the Constitution as amended in 1869 reads as follows: There shall be a Court of Appeals, composed of a chief judge and six associate judges, who shall be chosen by the electors of the State, and shall hold their office for the term of fourteen years from and including the first day of January next after their election. At the first election of judges, under this Constitution, every elector may vote for the chief and only four of the associate judges. Any five members of the court shall form a quorum, and the concurrence of four shall be necessary to a decision. The court shall have the appointment, with the power of removal, of its reporter and clerk, and of such attendants as may be necessary.

The only amendments to the Constitution agreed to by voters were those pertaining to the judiciary; all others were voted down. 6. Article VI, § 7, of the 1899 Constitution. 7. Article VI, § 5, of the 1925 Constitution. 8. Article VI, § 2, of the New York Constitution. See also two articles by John Caher appearing on November 13, 2003, in the New York Law Journal, “Model for Selecting Top Court Judges Reveals Its Flaws” and “Evolution of the Judicial Nomination Panel.” 9. The sources for the information included in the following brief biographies, except where specifically noted, are the Clerk of the Court of Appeals and the volume “There shall be a Court of Appeals . . .” cited supra, along with others works authored and the Web site maintained by the Historical Society of the Courts of the State of New York such as The Appellate Division of the New York Supreme Court, Third Department; One Hundred Years of Judicial Service, 1896–1996 (1996). The dates referenced in parentheses for the Chief Judges are the years the particular judge served as Chief Judge of the Court, not necessarily to his entire tenure on the bench. With respect to all other judges, the dates in parentheses cover the judge’s entire term on the Court. This section does not include Supreme Court Justices who were designated to sit on the Court of Appeals. The names of those who were so designated appear in the foreword section of the official court reports. 10. 71 Columbia Law Review 537 (1971) cited in 33 N.Y.2d at x. Governor Dewey concluded that at least with respect to Judge Fuld, the judge was born to be a judge. 11. Although it should be noted that the last judge to come from Buffalo, New York, and the western portion of the state was Judge Jasen. 12. Governor Malcolm Wilson appointed Judge Rabin to fill a vacancy, but he failed to receive a cross-endorsement for election in his own right and declined to run. 13. 16 N.Y. Reports (memorial). 14. 34 N.Y. Reports (memorial). 15. 206 Barbour’s Supreme Court Reports 661 (memorial).

Brief Overview of the Court of Appeals 749 16. Chancery Reports 1882, p. 203 17. 46 N.Y. 695, 697. 18. 143 N.Y. 683 (retirement). 19. 77 N.Y. 633, 634 (memorial). 20. 84 N.Y. (retirement). 21. 243 N.Y. 655. 22. 239 N.Y. 637, 640. 23. 239 N.Y. 642, 643. 24. 295 N.Y. xiii. 25. 258 N.Y. v. 26. 266 N.Y. ii. 27. 282 N.Y. v; 297 N.Y. ix. 28. 294 N.Y. vii, xii–xiii. 29. 305 N.Y. vii. 30. 30 N.Y.2d vii; hereinafter, The New York Red Book, a yearbook issued by the State of New York, will be referred to as “NYRB” with the year of its coverage set forth in parentheses. NYRB (1940), 189. 31. 25 N.Y.2d vii; NYRB (1944), 229. 32. 69 N.Y.2d vii, viii. 33. Among the other sources consulted see Michael Sovern, “Chief Judge Stanley H. Fuld,” 71 Columbia Law Review 546 (1971); and Douglas Martin, “Stanley Fuld, Former Judge, Is Dead at 99,” The New York Times, July 25, 2003. 34. 78 N.Y.2d vii; NYRB (1969–1970), 307. See note 8, supra. 35. 95 N.Y.2d xv; NYRB (1979–1980), 368. 36. A fairly recent biography of Judge Wachtler was written by John Caher, a legal writer and reporter for the New York Law Journal, entitled King of the Mountain: The Rise, Fall, and Redemption of Chief Judge Sol Wachtler (New York: Prometheus Books, 1998). 37. 289 N.Y. v. 38. 282 N.Y. xii. 39. 282 N.Y. ix; NYRB (1933), 197. 40. 282 N.Y. v; 306 N.Y. vii. 41. 272 N.Y. foreword; 306 N.Y. vii. 42. NYRB (1902), 126. 43. 290 N.Y. v.; NYRB (1935), 202. Privately printed and authored by the judge’s son, Edward R. Finch, Jr., is a biography entitled Judicial Politics: A Tribute to Edward R. Finch (1968). 44. 294 N.Y. ix; NYRB (1937), 181. 45. 284 N.Y. v; 303 N.Y. vii; NYRB (1940), 189. 46. 301 N.Y. vii; NYRB (1944), 230. 47. 90 N.Y.2d xix. 48. 295 N.Y. vii. 49. 48 N.Y.2d vii; NYRB (1949), 294. 50. 55 N.Y.2d vii; NYRB (1951), 324. 51. 60 N.Y.2d xvii; NYRB (1953), 335.

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52. 95 N.Y.2d xix; NYRB (1956), 329. 53. 33 N.Y.2d vii; NYRB (1970–1971), 333. 54. 70 N.Y.2d vii; NYRB (1964–65), 304. 55. 91 N.Y.2d vii; NYRB (1970–1971), 334. 56. 36 N.Y.2d vii. 57. NYRB (1969–1970), 328. 58. 79 N.Y.2d vii; NYRB (1971–1972), 333. 59. 83 N.Y.2d vii; NYRB (1974), 326. 60. 95 N.Y.2d xxi; NYRB (1974), 327. 61. 76 N.Y.2d vii. See article entitled “Evolution of the Judicial Nomination Panel” referred to in note 8, supra. 62. Matter of Fuchsberg, 43 N.Y.2d (Court on the Judiciary) (1978). Article VI, § 22, of the New York Constitution authorizes the investigation of charges against a member of the judiciary. 63. 85 N.Y.2d vii. See article entitled “Evolution of the Judicial Nomination Panel” referred to in note 8, supra. 64. 68 N.Y.2d vii. 65. NYRB (1983–1984), 391. 66. 4 N.Y.2d vii; NYRB (1987–1988), 418. 67. NYRB (1997–1998), 465. 68. NYRB (1987–1988), 420. 69. NYRB (1987–1988), 422. 70. NYRB (1987–1988), 422. 71. NYRB (1999–2000), 490. 72. NYRB (1999–2000), 492. 73. NYRB (2003–2004), 490. 74. NYRB (2001–2002), 485. 75. NYRB (2003–2004), 490. 76. NYRB (2003–2003), 490. 77. New York Court of Appeals Website.

2. Jurisdiction of the Court of Appeals 1. To be noted, however, is CPLR § 5501(b) which, as held in Gilroy v. American Broadcasting Co., 46 N.Y.2d 580, 586 (1979), and Matter of Greatsinger, 66 N.Y.2d 680 (1985), limits the authority of the Court of Appeals on an appeal pursuant to CPLR § 5601(d) to review “only the nonfinal determination of the Appellate Division.” Also to be noted is that by taking an appeal pursuant to CPLR § 5601(d) directly to the Court of Appeals from the final judgment entered pursuant to the Appellate Division’s order appellant waives further review of the judgment by either the Appellate Division or the Court of Appeals, Hirsch v. Lindor Realty Corp., 63 N.Y.2d 878 (1984); see also Parker v. Rogerson, 35 N.Y.2d 751 (1974). 2. Reported in McKinney’s Session Laws 1985, 3422 ff, and McKinney’s Session Laws 1986, 3294.

Common Law and the Court of Appeals 751 3. The Court’s later per curiam decision upheld the validity of the rule, 96 N.Y.2d 512 (2001).

3. Interrelation of the Court of Appeals, the Legislature, and the Executive 1. The no-alteration provision is “a limited grant of authority from the People to the Legislature to alter the budget proposed by the Governor, but only in specific instances” (New York State Bankers Assn., Inc. v Wetzler, 81 N.Y.2d 98, 104 [1993]). In other words, all the power the Legislature has to alter the Governor’s appropriation bills stems from Article VII § 4. 2. See People v. Tremaine, 252 N.Y. 27, 39 (1929). In the course of considering the constitutionality of power given to a “commission” to segregate or specifically allocate lump-sum appropriations, the Court said, “That the border lines of the three great departments of government are not definitely traced and that the division of such powers is not absolute is well understood. (Matter of Richardson, 247 N.Y. 401, 413.) It may be said in general terms that the Legislature makes laws and the Executive enforces them when made and each is, in the main, supreme within its own field of action, although common sense and the necessities of government do not require or permit a captious, doctrinaire and inelastic classification of governmental functions. (Hampton & Co. v. United States, 276 U.S. 394, 406.)” It should be noted that the State Constitution does not explicitly refer to a separation of powers doctrine, although the doctrine is generally accepted as a basic concept of Federal and State constitutional law. Compare Constitution of the State of Vermont, Chapter II, § 5 [Departments to be distinct], “The Legislative, Executive, and Judiciary departments, shall be separate and distinct, so that neither exercise the powers properly belonging to the others.” 3. The cases produced three opinions, none with the support of a majority. The opinion by Judge R. S. Smith was joined by two judges; Judge Rosenblatt wrote a concurring opinion, concurred in by Judge R. B. Smith, and Chief Judge Kaye dissented in an opinion concurred in by Judge Ciparick. 4. Indeed as the Court’s footnote, 32 N.Y.2d at 345, stated, the subject was to be studied by the Judicial Conference in 1973 and appropriate proposals to be submitted to the 1974 legislative session. McKinney’s 1973 Session Laws 2038. 5. For extended discussion of right to counsel and stare decisis, see Chapter 17, Criminal Law, infra.

4. Common Law and the Court of Appeals 1. Jerome Frank, Law and the Modern Mind (New York: Brentano’s, 1930), pp. 236–239. See, e.g., the following by Benjamin N. Cardozo: The Nature of the Judicial Process (New Haven: Yale University Press, 1921); The Growth of the Law (New Haven: Yale University Press, 1924); The Paradoxes of Legal Science (New York: Columbia University Press, 1928). Judge Cardozo also was dedicated to perfecting the style of judicial opinions. See Cardozo’s essay, “Law and Literature,” first published by the Yale University

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Press and printed in The Yale Review in 1925 and reprinted in Law and Literature and Other Essays and Addresses (New York: Harcourt, Brace, 1931), pp. 3–40. 2. The Nature of the Judicial Process, supra, at 112–114. 3. There are two dates referred to in section 14: April 19, 1775, when the Battle of Concord was fought, and April 20, 1777, when the first New York State Constitution was adopted. 4. This treatise was later reprinted in Stuart A. Moore, ed., History of the Foreshore, 370–413 (3d. ed. 1888; reprinted 1993, Wm. W. Gaunt and Sons). 5. As to strict product liability of a manufacturer and comparative negligence cf. Dole v. Dow Chemical, 30 N.Y.2d 143 (1972), and Codling v. Paglia, 32 N.Y.2d 330 (1973), discussed at pp. 115 et seq and p. 93. 6. Cf. abolition of the rule holding common carriers owed a very high degree of care to passengers, see Bethal, discussed at p. 107. 7. See also the statements of legislative intent set forth in sections 1 and 3 of that statute, the Governor’s Memorandum on approving that chapter, McKinney’s 1996 Session Laws at 1934 and the Senate Memorandum in Support of the Statute, id., at 2634, and see Desmond v. City of New York, 88 N.Y.2d 455, 463 (1996); St. Jacques v. City of New York, 88 N.Y.2d 920 (1996); Zanghi v. Niagara Frontier Transportation Commission, 85 N.Y.2d 423, 444–445 (1995); and Cooper v. City of New York, 81 N.Y.2d 584 (1993). 8. General Obligations Law § 9–103 enacted a statutory exception under which a property owner making his or its property available for specified recreational activities without charge to the individual and without willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity incurred no liability, see Sena v. Town of Greenfield, 91 N.Y.2d 611 (1998). As was held in Adirondack Club v. Sierra Club, supra, 92 N.Y.2d, at 604, recreational use is, however, considered in determining navigability of New York’s rivers.

5. Statutory Interpretation 1. There has been noticeable increased interest concerning the Court’s role in interpreting statutes. See, e.g., Hon. Bernard S. Meyer, “Some Thoughts on Statutory Interpretation with Special Emphasis on Jurisdiction,” 15 Hofstra Law Review 167 (1987); Hon. Judith S. Kaye, “State Courts at the Dawn of a New Century: Common Law Courts Reading Statutes and Constitutions,” 70 N.Y.U. Law Review 1 (1995); Hon. Judith S. Kaye, “Things Judges Do: State Statutory Interpretation,” 13 Touro Law Review 595 (1997); Eric Lane, “How to Read a Statute in New York: A Response to Judge Kaye and Some More,” 8 Hofstra Law Review 85 (1999); Eric Lane, “Legislative Process and Its Judicial Renderings: A Study in Contrast,” 48 U. Pitt. Law Review 639 (1987); Hon. John M. Walker, Jr., “Judicial Tendencies in Statutory Construction: Differing Views on the Role of the Judge,” 58 N.Y.U. Ann. Surv. Am. L. 203 (2001). 2. Cf. In the Matter of Delmar Box Co., Inc. v. Aetna Insurance Company, 309 N.Y. 60, 66–67 (1955), which dealt with “a cardinal principle of statutory interpretation that the intention to change a long-established rule or principle is not to be imputed to the legislature in the absence of a clear manifestation”: “Reliance is placed upon the views expressed by the assemblyman who introduced the bill in 1952, but those views cannot serve as a reliable index to the intention of the

Form of Opinions and Reports 753 legislators who passed the bill. It is sufficient to note that, they were stated, not in the course of debate on the floor of the legislature, but in a memorandum submitted to the governor after the passage of the bill, and there is no showing that the other legislators were aware of the broad scope apparently intended for the bill by its sponsor.” 3. Cf. People v. Glubo, 5 N.Y.2d 461 (1959). Defendant argued that Penal Law § 421 did not cover “bait advertising” for which he was convicted. He relied, in part, on statements made several years after enactment of § 421 by the Governor and various district attorneys recommending that the Legislature act, because they believed that § 421 did not cover “bait advertising.” “In the ordinary situation where a court looks to an extrinsic aid to construction, such as a Governor’s memorandum, it does so to ascertain the purpose of legislation thereafter enacted. Here, defendants ask us to take the Governor’s memorandum into account in construing a statute enacted years before the memorandum was written. If we were to rely on the memorandum for such purpose, we would be investing the Governor with the power of construction properly belonging to the judicial branch of government. It goes without saying that the courts construe statutes, not the Governor, and certainly not the various District Attorneys within the State.” 5 N.Y.2d, at 474 (emphasis added). 4. For other cases referring to dictionary definitions, see Paterson v. University of State of New York, 14 N.Y.2d 432, 438–39 (1964) (approving reference to dictionary where no evidence of meaning offered); Joseph Burstyn, Inc. v. Wilson, 303 N.Y. 242, 255–256 (1951), reversed 343 U.S. 495 (1952) (sacrilegious), and In the Matter of Commercial Pictures Corp. v. Board of Regents of University of State of New York, 305 N.Y. 336 (immoral), both discussed in chapter 9, Motion Picture Censorship; Matter of New York Association of Criminal Defense Lawyers v. Kaye, 96 N.Y.2d 512 (2001) (promulgate), discussed in chapter 17, Criminal Law. 5. See People v. Price, 33 N.Y.2d 831 (1973), and People v. Santorelli, 80 N.Y.2d 875 (1992) (examining purpose of law in limiting scope of Penal Law provision concerning a woman baring in public that portion of her breast below top of the areola) discussed in chapter 10, Obscenity, Indecency, and Immorality .

6. Form of Opinions and Reports 1. Because the period covered by this book with respect to the Court’s history includes more than 142 reports of its decisions, the discussion in this chapter is essentially limited to decisions in 259 N.Y., 21 N.Y.2d, and in those appearing in 92 N.Y.2d and reported before August 30, 2003. 2. With respect to opinions as the source of legislative change see examples in chapter 3. 3. See e.g. Alpert v. 28 Williams St. Corp., 63 N.Y.2d 557 (1984), the statement of the case or summary of which ran to three and one-half pages. 4. See chapter 221 of the Laws of 1897, which authorized each judge of the Court to appoint one clerk to serve at the pleasure of the judge and perform such services as the judge required, the clerk’s compensation to be fixed by the judge but not to exceed $100 a month to be paid by the State on certificate of the judge. 5. The literal translation of per curiam is “by the Court as a whole,” Black’s Law Dictionary, 7th ed., at 1156, indicating unanimity, but as noted the Court has not limited use

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of the format to unanimous decisions. In doing so it may have been following the United States Supreme Court, see Ray, “The History of the Per Curiam Opinion: Consensus and Individual Expression on the Supreme Court,” 27 Journal of Supreme Court History, no. 2 (2002), at 176 . 6. The Court of Appeals has not adopted a rule, similar to that of the United States Courts of Appeal, Second Circuit, Rule 0.23, and of the Eighth Circuit Court of Appeals, Rule 28A(i), declaring that unpublished opinions may not be cited. The Second Circuit Rule states that “[w]here disposition is by summary order, the court may append a brief written statement to that order. Since these statements do not constitute formal opinions of the court . . . they should not be cited or otherwise used in undated cases before this or any other court.” No case has been found in which the New York Court of Appeals refused on the basis of the Second Circuit rule to consider a Second Circuit decision. Nor in view of the Eighth Circuit’s decision in Anastasoff v. United States, 222 F.3d 898 (2000), vacated en banc 235 F.3d 1054 (2000), holding its rule unconstitutional, which apparently is on its way to the Supreme Court, is it likely that it will do so, unless the Supreme Court overrules the Anastasoff decision. 7. For cases in which the Court affirmed on the basis of a nisi prius opinion see Moke Realty Corp. v. Whitestone Savings and Loan Association, 41 N.Y.2d 954, affirming on the opinion of former Justice Bertram Harnett at Trial Term, 82 Misc.2d 396, and Feldman v. New York City Health & Hospitals Corporation, 56 N.Y.2d 101 (1982), reversing for the reasons stated in the opinion of Justice Irving S. Aronin, 107 Misc.2d 145, the Appellate Division’s reversal of Justice Aronin reported in 84 A.D.2d 166 (1981). Judges Cooke, Gabrielli, Wachtler, Fuchsberg, and Meyer concurred, Judges Jasen and Jones dissented and voted to affirm for the reasons stated in the Appellate Division decision by Justice Samuel Rabin in which Justices Hopkins, Damiani, and Titone concurred. Thus six of the judges and justices in the three courts were for affirmance and six of them were for reversal! 8. See also CPC International, Inc. v. McKesson Corp., 70 N.Y.2d 268, 277 (1987), in which the writer of the majority opinion, Judge Hancock, together with Judge Simons dissenting in part, noted in the majority opinion their disagreement with the reasoning of the majority opinion. 9. See also Matter of Doe v. Coughlin, 71 N.Y.2d 48 (1987), discussed in chapter 23, Family Law. In the Coughlin case Judge Simons wrote the opinion of the Court, Chief Judge Wachtler wrote a concurrence, Judge Bellacosa wrote a separate concurrence, and Judge Alexander wrote a dissenting opinion in which Judges Kaye (as she then was) and Hancock concurred.

7. The Great Depression 1. The core of the Lochner majority consisted of four justices, Van Devanter, McReynolds, Butler, and Sutherland, who often formed a majority when joined by one or more of the other members of the Court. For a summary of their views, see Justice McReynolds’s dissenting opinion in Nebbia v. New York, 291 U.S. 502, 521, et seq (1934), which by a 5–4 decision sustained the constitutionality of a New York law setting minimum milk prices, where Justice McReynolds detailed the arguments and previous cases

The Great Depression 755 that, according to the justice, demonstrated “the futility of . . . legislation” designed to ameliorate the vicissitudes of relying on the “laws” of market supply and demand. 291 U.S., at 522. Cases declaring New Deal legislation unconstitutional included commerce clause cases, Railroad Retirement Board v. Alton R.R., 295 U.S. 330 (1935) (compulsory pension and retirement system for interstate railroads); Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935) (National Industrial Recovery Act of 1933); Carter v. Carter Coal Co., 298 U.S. 238 (1936) (Coal Conservation Act of 1936); and United States v. Butler, 297 U.S. 1 (1936), limiting the scope of the taxing and spending powers. 2. Chief Justice Hughes wrote the opinion for the Court in Blaisdell, a 5–4 decision, with Justices Van Devanter, McReynolds, Butler, and Sutherland dissenting. 3. Also see Fair Trade–Resale Price Maintenance section in chapter 25, Antitrust and Restraints on Competition, infra. 4. Judge Kellogg not sitting. 5. Previously, in People v. Perretta, 253 N.Y. 305 (1930), the Court of Appeals had sustained the constitutionality of a statute requiring a license and, unless exempted, posting a bond for a person to operate a milk-gathering station, as neither an unreasonable nor arbitrary regulation in light of the conditions under which the farmer sold his milk. The Court rejected decisions from other states which held similar statutes to be unconstitutional under the Fourteenth Amendment, stating that “[t]he reasoning in these cases rests on the abstract doctrine of liberty of contract rather than the practical necessities of the case.” Id., at 311. 6. 262 N.Y., at 268–69 (citations omitted): “We are accustomed to rate regulation in cases of public utilities and other analogous cases and to the extension of such regulative power into similar fields. Rents have been regulated to prevent the exactions of greedy landlords who would contend that their property was taken from them when they were deprived of the right to do what they would with their own. Compensation has been provided for workmen injured by the necessary risks of their employment although the common law cast the burden of such risks on the workman. Preference to citizens in employment of laborers on public works has been upheld. Prevailing rate of wages laws for workmen on municipal contracts have been upheld. Usury laws are of an ancient house. Tariffs for the protection of home industries are upheld. Sugar bounties have not been declared unconstitutional. The rates of grain elevators and cotton gins may be regulated. Rate fixing in the business of insurance has been upheld. The regulation of wages of railroad employees has been sustained. The business of dealing in milk has been regulated so as to protect producers who must sell their produce on credit. Commission merchants have been required to give bonds for honest accounting to prevent evils incident to the business of dealing in farm products.” 7. 262 N.Y., at 269–70 (citations omitted): “The right of private bargaining has been upheld to defeat child labor laws; to prevent the fixing of wages in industry by an arbitration board; to invalidate a State law fixing the price of gasoline; to prohibit the regulation of the price of theater tickets by speculators; to invalidate a law to equalize prices of milk throughout the state; and a statute to regulate the fees of an employment agent.” 8. In Lochner, the Supreme Court had invalidated a New York statute setting maximum hours for bakers, reversing People v. Lochner, 175 N.Y. 145 (1904), which had sustained its constitutionality under the State and Federal Constitutions.

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9. The Adkins dissenters were Chief Justice Taft and Justices Sanford and Holmes. Justice Brandeis did not participate. 10. Cf. the later case of Noyes v. Erie & Wyoming Farmers Cooperative Corporation, 281 N.Y. 187 (1939), discussed above. 11. Judge Crane’s concurring opinion did rely on Article 12 § 5. 268 N.Y., at 148, et. seq. 12. On April 5, 1938, Chief Judge Crane was elected President of the 1938 New York State Constitutional Convention. In his acceptance speech, he addressed the threats of Nazi, Fascist, and Communist totalitarianism, which, in addition to the Depression, were dominant public concerns in the 1930s. Indeed, the disintegration of the world economy during the Great Depression undoubtedly was a major factor in the rise of those isms, and Judge Crane spoke about the challenges they posed as directly as he spoke of the depression itself in W.H.H. Chamberlin, Inc., supra. “I do desire most earnestly, however, to call your attention to the spirit in which we should approach our work, and to speak of a few things about which we can have no differences, things which we have heretofore taken for granted, but which today are being challenged. Since 1777, on through other Constitutional Conventions—’21, ’46, ’67, ’94—the fundamental principles of constitutional government were well recognized by all. The ability of people to govern themselves was never doubted. To us, democracy under a Constitution was the last and final word in safe and wise government, if not the most efficient. In our minds it is the best system yet devised for the ruling of all the people, irrespective of class or condition. To lay out and adopt a plan binding upon the rulers and the ruled, upon those who govern and those who are governed, a plan binding upon those who judge and those who are judged, was the fundamental idea in the kind of government established in these United States, and up to date it has worked pretty well. However, it has happened that in our day—yours and mine—in these latter years, some of these fundamental ideas of ours have been challenged, and we are told in some quarters that our form of government is weak, effete, and perhaps a failure. We are here to do one thing, if nothing else; to prove to the world that our form of government does work; that it will work efficiently, and can meet the problems of the day and the necessities of the times as well and as intelligently as any other form of government; and that we are capable, by our earnestness and by our sincerity, in spite of all our differences, to rule ourselves and to provide a proper rule for those whose representatives we are. We in this assembly may have differing political ideas; we may belong, let us say, to different political parties; we may, and probably do, differ in many ways, but take all our differences and put them on one side, and they are absolutely insignificant compared to those things which we will put on the other side—those fundamental principles of our government in which we all, every one of us, agree, and about which we have no differences: (1) We believe in the freedom of speech, and that no man, whoever he may be, should be punished or disciplined merely because of his views or opinions regarding the government. (2) We believe in the freedom of religious worship, and that no man shall be handicapped or deprived of any privilege because of his faith or lack of one. (3) We believe in the freedom of the press. We may at time chafe under its criticisms and be annoyed when it becomes personal, but we know that it is one of the strongest safeguards we have against abuse and oppression. Did you ever stop to think of the evils which have been prevented by the fear of exposure, when

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there would be no fear of the law? (4) We believe in the freedom of the judiciary and its independence. We know that the strength of our courts rests not entirely on the ability of the judges, but in the confidence which the people have that they are trying to do justice under the law and the Constitution, uninfluenced by any other consideration. And lastly may I say that we also believe in the freedom of the electorate, and that men and women may go to the polls to vote for whom they please without fear of consequence, so far as the law is concerned. To have spoken of these things in other years, or to have mentioned them in other conventions would have seemed almost childish, because we have learned them in school and have lived under the benefits of such fundamental beliefs, but today in some quarters these things are being challenged as a weakness in government and a detriment to progress. I have mentioned them, that we not be unmindful of our blessings and our privileges, and that we go to work shoulder to shoulder, remembering that our differences are trivial compared to the united spirit and belief in which we move.” Volume I, Revised Record of the Constitutional Convention of the State of New York (1938), 7–10, passim.

8. New Judicial Federalism 1. United States Supreme Court justices have not only recognized but also encouraged state courts to rely on their constitutional provisions to enhance individual liberties. See, e.g., William J. Brennan, Jr., “State Constitutions and the Protection of Individual Rights,” 90 Harv. L. Rev. 489 (1977), an article often referred to as the beginning of the state constitutional revival in the area of individual liberties. 2. The 1982 Florida amendment to its Declaration of Rights read: “This right shall be construed in conformity with the 4th Amendment to the United States Constitution, as interpreted by the United States Supreme Court. Articles or information obtained in violation of this right shall not be admissible in evidence if such articles or information would be inadmissible under the decisions of the United States Supreme Court construing the 4th Amendment to the United States Constitution.” Florida Const. Article I, sec. 12 (emphasis added). 3. “The enumeration of the foregoing rights shall not be construed to impair or deny others retained by the people. The rights guaranteed by this Constitution are not dependent on those guaranteed by the Constitution of the United States.” Rhode Island Const. sec. 24. 4. Judith Kaye, “Dual Constitutionalism in Practice and Principle,” 42 Record of the Association of the Bar of the City of New York 285, at 289 (1987) (Forty-First Benjamin N. Cardozo Lecture delivered to the Association of the Bar of the City of New York). 5. Sol Wachtler, “Constitutional Rights: Resuming the States’ Role,” 15 Intergovernmental Perspective 23 (1989). 6. Cf. Florida and California state constitutional amendments described above that were directed to criminal proceedings and the contrary Rhode Island approach, notes 2 and 3, supra, and accompanying text. 7. Arcara and P.J. Video are discussed in detail in chapter 10, Obscenity, Indecency, and Immorality, and for further details concerning P.J. Video, see the discussion in this chapter.

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8. For detailed consideration of Miller, see chapter 10, infra. 9. Although the warrant provisions of the Federal and State Constitutions are identical, on remand, Arcara utilized the noninterpretive approach to the constitutionality of the warrant and, even though the Supreme Court had held that the Federal Constitution had not been violated, the Court of Appeals held that the State Constitution had been violated in large measure because issuance of the warrant had implications for freedom of expression rights and the importance of those rights in New York. 10. Arcara was unanimous and P.J. Video was a 6–1 decision. Judge Hancock, in his dissenting opinion, explicitly noted that the Court unanimously subscribed to the general principles stated by Judge Simons, but that he, Judge Hancock, disagreed with how they were applied in P.J. Video. With respect to the search and seizure issues, especially note the opinions by Judge Kaye and Judge Bellacosa in People v. Keta and People v. Scott, 79 N.Y.2d 474 (1992), 4–3 decisions, discussed infra. 11. The State provision also explicitly restricts wiretapping. 12. Chief Judge Cooke wrote the opinion, in which all the other judges, including Judge Jasen, concurred, Judge Simons taking no part. 13. Jones was partially overruled by United States v. Salvucci, 448 U.S. 83 (1980), on the question of who had standing to challenge a search. This issue was considered earlier in this section. 14. Judge Wachtler’s strong preference for warrants is reflected in the extensive discussion in People v. Brosnan, 32 N.Y.2d 254, 263, et seq. (1973) (dissenting opinion), where he would have discarded the “rubric” of exceptions to the warrant requirement and adopted the standard “that absent exigent or unusual circumstances, a law enforcement official must first obtain a warrant to conduct a search.” 32 N.Y.2d, at 266–67. 15. The Court applied the Elwell test in People v. Landy, 56 N.Y.2d 369 (1983). 16. Judge Simons described the basis for Gates in People v. Bigelow, 66 N.Y.2d 417, 425 (1985), decided the same day as Johnson. Judge Simons wrote: In Gates, the Supreme Court abandoned the two-pronged veracity and basis of knowledge test of Aguilar-Spinelli and adopted in its place a totality of the circumstances analysis giving greater deference to the magistrate’s determination: “The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a ‘substantial basis for . . . conclud[ing]’ that probable cause existed. (Illinois v. Gates, supra, pp 238-239, quoting Jones v. United States, 362 US 257, 271).

Bigelow involved a warrant, but inasmuch as the Court unanimously agreed that the search met neither the Aguilar-Spinelli nor the Gates standards for probable cause, it was unnecessary to decide which test was applicable when a warrant was supported by probable cause under Gates, but not under Aguilar-Spinelli. 17. See People v. Griminger, 71 N.Y.2d 635 (1988), infra. For discussion of “totality of circumstances” in other contexts, see chapter 6, Form of Opinions and Reports, supra.

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18. Interestingly, before the addition of Article I § 12 to the State Constitution and before the Supreme Court had applied Fourth Amendment doctrine to the States through the Fourteenth Amendment, the Court of Appeals, in a unanimous opinion by Judge Cardozo, construed the New York statute more narrowly than the Supreme Court had construed the Fourth Amendment’s identical language. See People v. Defore, 242 N.Y. 13 (1926), cert. denied 270 U.S. 657, rejecting Weeks v. United States, 232 U.S. 383 (1914) (evidence seized in violation of the Fourth Amendment should be excluded in Federal courts). In Defore, Judge Cardozo asserted that New York was not bound to construe its statute as the Supreme Court had construed identical language in the Federal Constitution and adhered to New York’s earlier rejection of the exclusionary rule under the statute. People v. Adams, 176 N.Y. 351 (1903), affirmed sub nom. Adams v. New York, 192 U.S. 585 (1904). 19. The same year the Court decided P.J. Video, Inc., it decided People ex rel. Arcara v. Cloud Books, Inc., 68 N.Y.2d 553 (1986), holding that the State Constitution protected rights of expression more broadly than the First Amendment. See discussion in chapter 10, infra. 20. In addition to criminal cases previously discussed in this chapter, cases that had held that the State Constitution provided broader protection than that afforded by the Federal Constitution included: Bellanca v. New York State Liquor Authority., 54 N.Y.2d 228 (1981) (blanket ban on topless dancing), discussed in chapter 10, infra; People v. Hobson, 39 N.Y.2d 479 (1976) (right to counsel), discussed in chapter 19, Criminal Law, infra; Sharrock v. Dell Buick-Cadillac, 45 N.Y.2d 152 (1978) (foreclosure under statutory self-help provisions for enforcement of garageman’s possessory lien constituted State action under State due process clause), contrary to Flagg Bros. v. Brooks (436 U.S. 149) (1978) (not State action under Federal Constitution), discussed infra; People v. Gonzalez, 62 N.Y.2d 386 (1984) (inventory search of closed container); and People v. Roman, 53 N.Y.2d 39 (1981) (inventory search of cigarette case). Cases where there might have been uncertainty about the scope of Federal protection, but where the Court of Appeals, relying on the State Constitution, held there was protection under the State Constitution, included: Rivers v. Katz, 67 N.Y.2d 485 (1986) (right of involuntarily committed mental patients to refuse antipsychotic medication); People v. Isaacson, 44 N.Y.2d 511 (1978) (due process limits on police conduct), discussed infra; and People v. Marsh, 20 N.Y.2d 98 (1967) (search incident to motor vehicle stop). 21. For discussion of the freedom of expression element, see chapter 10, infra. 22. When Caruso was decided the Supreme Court had already granted certiorari in Von Raab, and Judge Bellacosa cited the United States Court of Appeals decision in that case as part of the reason for sustaining the Caruso procedure under the Fourteenth Amendment, as well as the State Constitution. 23. It would appear that the Chief Judge was referring to the State Constitution and not to the State and Federal Constitutions. 24. In Lindsay, the Court rejected a Federal constitutional challenge to the search; the State constitutional issue had not been raised. 25. The Court found insufficient attenuation as a matter of law between the original unlawful arrest (the Payton violation) and the second statement. 77 N.Y.2d, at 441.

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26. Judge Dillon, Presiding Judge of the Fourth Department, designated to sit pursuant to Article VI § 2 New York State Constitution, wrote the opinion for the majority, with Chief Judge Wachtler and Judges Simons and Bellacosa concurring. Judge Hancock wrote a dissenting opinion in which Judges Kaye and Alexander concurred. 27. As previously noted, Keta was decided together with Scott. 28. Cf. Justice Brennan’s dissent in Burger that the majority’s approach “render[ed] virtually meaningless the general rule that a warrant is required for administrative searches of commercial property.” 482 U.S. 691, 718. 29. Judge Titone, sustaining the inspection scheme in Matter of Glenwood TV v. Ratner, supra, emphasized that the “inspectors do not seek evidence of a crime and their function is limited to insuring compliance with a civil regulatory scheme.” 103 A.D.2d, at 330, n. 6 (emphasis supplied). 30. An apparent reference to Judge Kaye’s statement that “[d]espite a reference to independent State constitutional interpretation, the dissent is laced throughout with a sense of discomfort, even impropriety, about the exercise when it involves rejecting United States Supreme Court decisions. The writing, for example, taunts that this Court is declaring independence from the Supreme Law of the Land, cutting its own constitutional path, propelling itself into a kind of Articles of Confederation time warp, declaring New York-style separatism, creating its own constitutional universe, and on and on.” 79 N.Y.2d, at 504 (Kaye, J., concurring). 31. Judge Kaye wrote: “The dissent in this case is distinctive only in the tone of its expression, most especially its accusation that the Court’s legal conclusions and analysis are the product of ideology, simply the imposition of a personally preferred view of the constitutional universe.” 79 N.Y.2d, at 503. 32. In Alvarez, the defendants moved to suppress Breathalyzer test results claiming that because the administration of the tests necessarily destroyed the breath samples, the Due Process Clause of the State Constitution (NY Const, Art I, § 6) required that the police take and preserve a second sample for later use by defendants. The Supreme Court, in California v. Trombetta, 467 U.S. 479, had previously sustained the test under the Federal Constitution, and Alvarez, accepting the Trombetta reasoning, sustained it under the State Constitution. 33. In a footnote, Chief Judge Wachtler quoted Judge Kaye: “‘Even if parallel to a Federal constitutional provision, a State constitutional provision’s presence in the document alone signifies its special meaning to the People of New York; thus, the failure to perform an independent analysis under the State Constitution would improperly relegate many of its provisions to redundancy’’’ (Kaye, “Dual Constitutionalism in Practice and Principle,” 42 Rec AB City NY 285, 297–299).” People v. Alvarez, 70 N.Y.2d 375, 379 (1987). 34. Judges Alexander, Titone, and Hancock, Jr., concurred with Judge Kaye; Chief Judge Wachtler and Judge Bellacosa concurred in Judge Simons’ dissenting opinion. 35. The Strickland majority essentially adopted a standard of reasonableness to determine whether the attorney’s performance was deficient; it did not refine or reduce this aspect to a formal verbal standard. 36. Judge Cooke wrote an opinion, concurred in by Judges Gabrielli, Wachtler, and Fuchsberg. Judge Jasen wrote a dissenting opinion, concurred in by Chief Judge Breitel and Judge Jones.

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37. The Sharrock majority also speculated that there might have been a finding of State action under the Fourteenth Amendment because the forced sale could not be “accomplished [in New York] without registration of the vehicle by the Department of Motor Vehicles and its issuance of a certificate of title.” 45 N.Y.2d, at 159. But see Svendsen v. Smith’s Moving and Trucking Company, 54 N.Y.2d 865 (1981), infra. 38. The dissenting opinion by Judge Jasen expressed concern, inter alia, about New York establishing a rule it viewed as contrary to the ruling in Flagg Bros., especially in view of the consequence of fostering a lack of uniformity in the applicable commercial law. 39. Judge Jasen concurred in the result, but while agreeing that there was no State action in the case at bar, he separated himself from any implication that the mall owner could determine who could or could not engage in “expressionist activity” at the owner’s mere whim as a corollary to the owner’s property rights. He argued that sanctioning the owner’s blanket ban on the distribution of leaflets on the property should not mean that the Court also recognizes that the owner had the constitutional right to discriminate among those seeking to exercise their right to express themselves by distributing leaflets based on the content of the communication. He wrote: “It is imperative that this court recognize, not only the absence of a constitutional right of free expression in a privately owned shopping mall, but also the presence of necessary limitations upon the owner’s common-law right of exclusion. The principles which mandate these limitations constitute the most fundamental precepts of nondiscrimination and nonarbitrariness which underlie the decisional law, statutes and public policy of this State.” 66 N.Y.2d, at 508.

9. Motion Picture Censorship 1. “The idea that the First Amendment outlaws all prior restraints on any sort of publication simply does not stand up. The First Amendment’s purpose is plain enough. Its intent was to forbid governmental interference, via previous restraints, with the putting forward of ideas and opinions, especially as to government and public officers. Whether conventional or unconventional, orthodox or unorthodox, popular or unpopular, such ideas were not to be denied expression, but were to be given unhindered chance to compete. But the First Amendment did not license, automatically and beyond control, any and every outpouring of speech or pen, no matter how slanderous, blasphemous, obscene or seditious. Its purpose was to maintain and protect public discussion, not to destroy public order. The First Amendment did not abolish police power over utterances of what ever sort. American legal history flatly denies the assertion that First Amendment freedoms leave government powerless to prohibit publications which are obscene, or tend to corrupt public morals, or incite to vice or crime.” Charles S. Desmond, “Censoring the Movies,” 20 Notre Dame Lawyer 27, 30 1953) (citations omitted, emphasis added). 2. The cited cases are discussed in chapter 10, Obscenity, Indecency and Immorality.

10. Obscenity, Indecency, and Immorality 1. Chief Judge Cullen, however, argued only that section 317 had not been violated, not that the defendant was beyond punishment for his publication. “The charges in the article being against a whole class [the Roman Catholic clergy], no single

762 Obscenity, Indecency, and Immorality individual could maintain an action for libel against its author [citation omitted], but not so, however, as regards a criminal prosecution for libel. The foundation of the theory on which libel is made a crime is that by provoking passions of persons libeled it excites them to violence and a breach of the peace. Therefore a criminal prosecution can be sustained where no civil action would lie, as, for instance, in this very case, where the libel is against a class” (188 N.Y., at 481). 2. Kingsley Books is discussed in connection with the injunction and enforcement of obscenity laws. 3. Also see John F. Scillepi, “Obscenity and the Law,” 10 New York Law Forum 8 (1964), in which Judge Scillepi attacks the judicial trend he perceived in Larkin and Bookcase, Inc. “With due respect for those who disagree with my views on the subject, I consider greater restrictions on the pornographic press as the only salutary and effective way to protect the moral fiber of our people. Unless there is a change in judicial attitude on this critical legal and social problem, I can see little hope for the future of the moral climate of our nation, but rather I envision a dismal specter of immorality, perversion and degeneracy creeping into our society, affecting young and old alike. . . . The prevailing judicial attitude which has unwisely enlarged our historical concepts of freedom of the press has resulted in a violation of society’s right to maintain and protect its moral fiber . . .” (10 New York Law Forum, at 305–6). 4. The defendant was charged with attempted violation of § 235.22 because the material actually was transmitted to a State Trooper who had posed as, and whom defendant believed was, a minor. Defendant also was charged with promoting sexual performance by a child when he transmitted pictures of minors engaged in sexual acts with adults and other minors, in violation of Penal law § 263.15. See New York v. Ferber, supra. 5. The City Court of Rochester decided both constitutional issues in favor of the defendants and dismissed the charges, and the County Court decided both issues against the defendants and reversed the City Court. People v. Craft, 134 Misc.2d 121 (City Court Rochester 1986), reversed 149 Misc.2d 223 (County Ct. Monroe 1991), reversed sub nom, People v. Santorelli, 80. N.Y.2d 875 (1992). 6. Although Pap’s A.M. was cited in People v. Foley, 94 N.Y.2d 668, 682 (2000) (cyberspace and promoting child pornography), discussed supra.

11. Religion 1. Article IX was renumbered Article XI, and a clause authorizing bus transportation, recommended by the 1938 constitutional convention, was added to the State constitution. Section 4 was renumbered, section 3, by a 1962 vote of the people and old section 4 was repealed. 2. For a flag salute case, see VII-A, infra. 3. Note that the State Constitution does not contain an establishment clause. 4. Previously Article IX, it was now renumbered Article XI. 5. The Blaine Amendment, Article XI, §3, of the New York State Constitution provides: Neither the state, nor any subdivision thereof, shall use its property or credit or any pubic money, or authorize or permit either to be used, directly or indirectly, in aid or

Religion 763 maintenance, other than for examination or inspection, of any school or institution of learning wholly or in part under the control or direction of any religious denomination, or in which any denominational tenet or doctrine is taught, but the legislature may provide for the transportation of children to and from any school or institution of learning (emphasis added).

6. The action challenging the statute was instituted in the Southern District of New York before a three-judge court, which had held that the maintenance and grant provisions were unconstitutional but that the income tax provisions were constitutional. 350 F. Supp. 655 (1972). 7. Of course, prior to Smith, the Court of Appeals had followed Sherbert v. Verner. See, e.g., La Rocca v. Lane, 37 N.Y.2d 375, 382 (1975); Matter of Dickens v. Ernesto, 30 N.Y.2d 61, 68 (1972). 8. Interestingly, Christ the King was decided by the Court of Appeals on June 12, 1997, and City of Boerne, supra, was decided on June 25, 1997, but it does not appear that the parties cited or relied on the RFRA. The Court of Appeals did not refer to the Federal statute. 9. Smith was first cited by the Court of Appeals in Chief Judge Kaye’s concurring opinion in Grumet v. Board of Education of the Kiryas Joel Village School District, 81 N.Y.2d 518, 534 (1993), affirmed sub nom. Board of Education of the Kiryas Joel Village School District v. Grumet, 512 U.S. 687 (1994), for the proposition that classification based on religion is subject to “strict scrutiny.” The Kiryas Joel cases are discussed infra. 10. Both spellings appear in the opinions. Where the name appears in a quotation, the spelling in the quoted passage is preserved; otherwise, Satmar is used. 11. “The Satmar Hasidic sect takes its name from the town near the Hungarian and Romanian border where, in the early years of this century, Grand Rebbe Joel Teitelbaum molded the group into a distinct community. After World War II and the destruction of much of European Jewry, the Grand Rebbe and most of his surviving followers moved to the Williamsburg section of Brooklyn, New York. Then [in 1974], the Satmars purchased an approved but undeveloped subdivision in the town of Monroe and began assembling the community that [became] the village of Kiryas Joel. When a zoning dispute arose in the course of settlement, the Satmars presented the Town Board of Monroe with a petition to form a new village within the town, a right that New York’s Village Law gives almost any group of residents who satisfy certain procedural niceties. See N.Y. Village Law, Art. 2 (McKinney 1973 and Supp. 1994). Neighbors who did not wish to secede with the Satmars objected strenuously, and after arduous negotiations the proposed boundaries of the village of Kiryas Joel were drawn to include just the 320 acres owned and inhabited entirely by Satmars. The village, incorporated in 1977, has a population of about 8,500 today [1994]. Rabbi Aaron Teitelbaum, eldest son of the current Grand Rebbe, serves as the village rov (chief rabbi) and rosh yeshivah (chief authority in the parochial schools).” Board of Education of the Kiryas Joel Village School District v. Grumet, 512 U.S. 687, 690–91 (1994). 12. Twelve years later, Aguilar was overruled by Agostini v. Felton, 521 U.S. 203 (1997). The effect of Agostini on legislative power to deal with the Kiryas Joel issues remains an open question. 13. Justice Souter had written: “Because the religious community of Kiryas Joel did not receive its new governmental authority simply as one of many communities eligible

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for equal treatment under a general law, we have no assurance that the next similarly situated group seeking a school district of its own will receive one.” 512 U.S., at 703 (footnote omitted). 14. Justice O’Connor wrote: “There is nothing improper about a legislative intention to accommodate a religious group, so long as it is implemented through generally applicable legislation. New York may, for instance, allow all villages to operate their own school districts. If it does not want to act so broadly, it may set forth neutral criteria that a village must meet to have a school district of its own; these criteria can then be applied by a state agency, and the decision would then be reviewable by the judiciary. A district created under a generally applicable scheme would be acceptable even though it coincides with a village that was consciously created by its voters as an enclave for their religious group. I do not think the Court’s opinion holds the contrary.” 512 U.S., at 717. 15. The natural mother, when she “signed and acknowledged a consent [to the adoption,] stated that she ‘does not at the present time embrace any religious faith’, and that a similar statement was made to the nurse. . . . Evidence of her deliberate secret plan, made well before its birth, to give up the child and her intentional and deliberate abandonment of him [was] overwhelming.” Maxwell, 4 N.Y.2d, at 435 (Froessel, J. concurring). 16. From the opinion: “Our former Ambassador to Russia wrote: ‘The new tolerance for the Orthodox Church can be seen, therefore, as severely limited and primarily designed to serve as an instrumentality of an expansive foreign policy.’ (Walter Bedell Smith, My Three Years in Moscow [Philadelphia: Lippincott, 1950], p. 268.) See, also, Anne O’Hare McCormick in the New York Times, April 8, 1950 (p. 12): ‘The church has again an official place in the Soviet Union, but as an agency of the state; on the same terms the religious leaders being imprisoned and executed as “traitors” in the countries under Soviet control would be tolerated. When Caesar is also God there can be no divided tribute.’” 17. CPLR, Article 45. 18. See cases cited in Lightman v. Flaum, 179 Misc.2d 1007, 1011–12 (N.Y. Sup. 1999), reversed 278 A.D.2d 373 (2d Dept. 2000), affirmed 97 N.Y.2d 128 (2001). 19. The ordinance quoted in the text was set out in Judge Conway’s dissenting opinion in People v. Kunz, 300 N.Y. 273, 279 (1949). The Court had held that an earlier version of the ordinance did not cover atheists. People v. Smith, 259 N.Y. 48 (1932). 20. The Court cited Commonwealth v. Davis, 162 Mass. 113, affirmed sub nom. Davis v. Commonwealth, 167 U.S. 43 (1897), for this proposition. 21. The majority in each case consisted of Chief Judge Conway and Judges Desmond, Dye, Fuld, Froessel, and Burke; Chief Judge Conway wrote the opinion in Community Synagogue and Judge Froessel wrote the opinion in Rochester. Judge Van Voorhis dissented in each case. 22. Judge Keating wrote the opinion, with Chief Judge Fuld and Judges Burke, Scileppi, Bergan, Breitel, and Jasen concurring. 23. Also see People v. Hennacy, 308 N.Y. 1039 (1953), conviction for violating city ordinance by selling merchandise without a license, reversed on authority of People v. Barber, supra, for failure to prove that defendant was selling books as a commercial venture. 24. For extensive consideration of the Court’s reliance on the State Constitution enhancing rights beyond the guarantees of the Federal Constitution, See chapter 9, The New Judicial Federalism.

Real Property 765 25. The Court stated what it was not deciding: “. . . this appeal [does not] raise the problem of nonclerical religious practices, symbols, and expressions which might be presented, or which might invoke absolutes of religious doctrine, in the tableau of a judicial trial. Although even then egregious circumstances might be presented which arguably and reasonably could impair the provision for a fair trial. But no such question is now involved, such as the propriety of head coverings, nonclerical religious garb, common religious symbols worn by devotees of a faith, or abstentions from oath taking or other incidents of a judicial trial not involving the displacement of a client, whether it be the People or the defendant in a criminal jury trial, by a member of the clergy of whatever faith who also doubles as a lawyer.” 37 N.Y.2d, at 584. 26. The Court also refused to expunge the record of procedurally correct disciplinary actions. Disobedience of the rules, the Court reasoned, was not the proper way to challenge them; available grievance procedures should have been utilized by those who had failed to use them. In addition, the fact that the rules, albeit valid, were later changed demonstrated meaningful change could be accomplished by utilizing the grievance procedures; to hold otherwise because the rules were changed might militate against changing even otherwise valid rules and undermine the effectiveness of established grievance procedures. Hence, the prison superintendent’s decision not to expunge the record was not arbitrary and capricious. 27. There was no Court of Appeals opinion in Genovese, and no reported lower court decisions. The summary of the arguments is taken from the summary in the unofficial report of Genovese at 249 N.E.2d 762. 28. In the interim, People v. L. A. Witherill, Inc., 29 N.Y.2d 446 (1972), held that a corporate defendant was entitled to a jury trial on the information in Special Sessions because the magistrate had the authority under the Sunday closing laws to declare a forfeiture of all property offered for sale.

12. Real Property 1. As to the applicability of the business judgment rule to cooperative and condominium corporations, and as to the fiduciary duty of directors and officers of a corporation to its shareholders, see chapter 15, Corporations. 2. Issues concerning constitutionality of laws regulating land use are also considered in the subsections on Inverse Condemnation and Landmark Preservation. Note, however, the distinction drawn in Northern Westchester Professional Park Associates v. Town of Bedford, 60 N.Y.2d 492, 501 (1983), between area variance cases and confiscation cases. 3. Caviglia and some related cases are considered more extensively in this book in chapter 10, at section XI. 4. Accord Golden v. Planning Board of the Town of Ramapo, 30 N.Y.2d 359 (1972). 5. The Asian Americans opinion, supra, also differentiated between incentive zoning and exclusionary zoning, noting that incentive zoning is based on the concept that uneconomic uses and amenities will not be provided by private development without economic incentive to do so. 6. See also Arverne Bay Construction Company v. Thatcher, 278 NY 222, 233 (1938), and Matter of Levy v. Board of Standards and Appeals of the City of New York, 267 N.Y. 347, 353 (1935).

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7. Identical changes were made in the corresponding provisions of Village Law § 7–712(b)(3). 8. Matter of Doyle v. Amster, supra, had previously held that proof that a parcel, if subdivided pursuant to a variance, could be sold to yield a higher profit to the owner did not constitute significant economic injury. 9. See also Chapter 7, which discusses New York’s mortgage moratorium legislation. 10. The Kennilwood decision was never appealed to the Court of Appeals, but is considered in this review of cases because the decision appears to be one the Court may affirm if and when the issue comes before it. 11. For an article critical of the Sanders conclusion see Levy and Kangi, “The Complexity of Enforcing Real Estate Loans in New York,” New York Law Journal, October 10, 2002, p. 4. 12. See Nolon, “Golden Anniversary,” New York Law Journal, August 21, 2002, p. 5, col. 2. 13. CPLR 212(a); RPAPL §§ 311, 501, 511. Prior to September 1, 1963, the statutory period was 15 years and prior to the 1932 amendment of section 34 of the Civil Practice Act was 20 years. 14. Later a judge of the Court of Appeals and the author of The History of the New York Court of Appeals 1847–1932 (New York: Columbia University Press, 1985). 15. See also Longley-Jones Associates, Inc. v. Ircon Realty Co., 67 N.Y.2d 346 (1986), and Doyle v. Lazarro, 33 N.Y.2d 981 (1970), affg. on the Appellate Division’s decision, 33 A.D.2d 142 (1970).

13. Contracts 1. As has been discussed Chief Judge Kaye caused establishment of courts for trial of all aspects of commercial cases. This chapter discusses Court of Appeals decisions relating to the law governing contracts and also the related problem of tortious interference with contracts. The Commercial Division publishes The Law Report five times a year and the decisions discussed are available by hyperlink on the Web site of the Commercial Division at www.courts.state.ny.us/com and on the home page of the State Bar’s Commercial and Federal Litigation Section and www.nysba.org/section/confed. 2. Designated pursuant to N.Y. Constitution, Article VI § 2, Judges Simons, Kaye, and Hancock taking no part in the decision. 3. As to an action for tortious interference with contractual relations, see chapter 14, Torts. 4. Likewise in Gelder Medical Group v. Webber, 41 N.Y.2d 680 (1977), physicians and in Graubard, Mollen, Dannett & Horowitz v. Moskovitz, 86 N.Y.2d 112 (1995), lawyers have been held governed by the rules as to learned professions. While the Graubard decision held that a partner does not violate his fiduciary duty to his partners by informing firm clients with whom he had a prior professional relationship about his impending withdrawal from the firm and to remind them that they were free to retain counsel of their choice, ideally such approaches would take place only after notice to the firm of the partner’s plans to leave. 5. That subdivision of the Code provides that “(a) A lawyer shall not be a party to or participate in a partnership or employment agreement with another lawyer that restricts

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the right of a lawyer to practice law after the termination of a relationship created by the agreement, except as a condition to payment of retirement benefits.” 6. As to enforceability against a nondomiciliary employer whose retention of a former employee threatens his prior employer with loss of its New York customers Sybron Corp. v. Wetzel, 46 N.Y.2d 197 (1978), held that since the 1966 amendment of CPLR 302 to add subdivision (a)(3), the nondomiciliary employer is subject to the personal jurisdiction of New York courts in an action for an injunction restraining the nondomiciliary employer and the former employee from using or revealing the prior employer’s methodology. 7. There is a Uniform Trade Secrets Act which has been adopted in 41 states but not in New York.

14. Torts 1. Note, however, that DRL § 235 does not give rise to a cause of action under CRL § § 50 and 51. Freihofer v. Hearst Corp., 65 N.Y.2d 135 (1985). 2. See chapter 13. 3. See chapter 20, Procedure, section I. 4. The Prudential decision’s interpretation (at 381–82) of Ultramares as suggesting “that in the right circumstances pecuniary recovery might be had from lawyers” is consistent with Ultramares dictum (at 188) that lawyers who overlooked a statute would be liable to investors in bonds to the same extent as if the controversy were one between client and advisers; see also Credit Alliance at p. 703.

15. Corporations 1. There are a number of statutes governing special purpose corporations, as among them the Insurance Law and the Religious Corporations Law. This chapter deals only with the statutes and case law governing business corporations, not-for-profit corporations, and cooperative corporations. 2. In Kimmell v. Schaefer, 89 N.Y.2d 257, 265 (1996), the Court held the trial court’s finding that the new employees relied upon were “woefully negligent and abysmally uninformed” was supported by the record, which included newspaper articles concerning the effect that would be caused by the proposed rate change.. 3. Directors and officers of a not-for-profit corporation are, however, governed by NPCL § 717, the provisions of which are essentially similar to those of BCL § 717. 4. Cases and statutes relevant to this section are also discussed in subdivision IV above dealing with the business judgment rule. 5. With regard to de facto merger see subdivision I concerning Successor Corporation’s Liability for Predecessor Corporation’s Acts. 6. With respect to “fair value” as thus determined see subdivision III, supra.

16. Arbitration 1. The 1958 Convention was not acceded to by the United States until 1970, and in acceding the Senate restricted the treaty’s application to commercial matters, Corcoran v. Ardra Insurance Co., 77 N.Y.2d 225 (1990).

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17. Criminal Law 1. Price dealt with the first New York statute authorizing payment to assigned counsel. It provided for payment in capital cases for defendants who were “wholly destitute of means” to employ counsel. Price, supra, at 412. 2. Earlier, in People v. Spano, 4 N.Y.2d 256 (1958), reversed sub nom., Spano v. New York, 360 U.S. 315 (1959), the Court of Appeals had rejected the position of three dissenting Judges in Spano that a confession obtained after indictment and before arraignment in the absence of counsel violated defendant’s Fourteenth Amendment rights. The Supreme Court reversed on the grounds that the confession in Spano was involuntary, but some Justices accepted the position of the Court of Appeals dissenters with respect to interrogation without counsel. 3. In both Waterman, supra, and Donovan, the confession received in evidence at the trial of defendant and a co-defendant implicated the co-defendant; consequently, the codefendant’s conviction also was reversed. 4. The dissent also argued that the majority, in effect, was adopting the so-called McNabb-Mallory rules that the Supreme Court had adopted as part of its supervisory powers over the lower Federal courts, and that both these rules and the existence of a similar supervisory power in the Court of Appeals had been rejected by prior Court of Appeals decisions. 5. Donovan and the other cases discussed by the Court were decided before the Supreme Court’s decision in Miranda v. State of Arizona, 384 U.S. 436 (1966), which held that due process under the Fourteenth Amendment required, inter alia, that a defendant in custody be advised he had the right to remain silent and the right to the aid of counsel. 6. Also overruled was People v. Wooden, 31 N.Y.2d 753 (1972) (no opinion, relying on Lopez). 7. It should be noted that prior to the commencement of criminal proceedings, neither under the Federal nor under the State Constitution does the suspect have the right to counsel at a lineup. However, if a suspect has an attorney, the attorney may not be excluded from the lineup, and after the commencement of criminal proceedings the defendant has an absolute right to counsel at a lineup. People v. Wilson, 89 N.Y.2d 754 (1997). Also see People v. LaClere, 76 N.Y.2d 670 (1990), and People v. Hawkins, 55 N.Y.2d 474 (1982). 8. In Davis, the Court summarized its decisions to that point relating to waiver of counsel: “There are two well-defined situations in which the right is said to attach indelibly and a waiver, notwithstanding the client’s right to waive generally, will not be recognized unless expressed in the presence of counsel. The first deals with waivers after formal proceedings have commenced. A suspect, once indicted, arraigned or charged in a felony complaint may not waive the right to counsel or to remain silent in the absence of counsel and this is so even though the defendant has neither retained nor requested an attorney. . . . The second line of cases relates to uncharged individuals in custody who have retained or requested an attorney. Police authorities may not question them in the absence of counsel. . . . Moreover, in order to be entitled to the rule neither a represented defendant nor counsel is required to advise the police of that fact. . . . If the police

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know of the representation, or are chargeable with knowledge of it, they may not question in the absence of counsel . . .” 75 N.Y.2d at 521–22 (citations omitted). 9. People v. Rogers, 48 N.Y.2d 167, 170–71 (1979) (“once a defendant is represented on pending matters, the police may not question the defendant on items unrelated to the subject of that representation after the defendant, in the absence of counsel, has waived his rights,” rejecting the claim that “waiver in the presence of counsel is necessary only when the defendant is subjected to interrogation concerning the charge on which he is represented”). 10. The Court did not further explicate what it meant by “unusual circumstances”— a point made by Judge Titone in his concurring opinion. 11. See, People v. Skinner, 52 N.Y.2d 24 (1980); People v. Hobson, 39 N.Y.2d 479 (1976); People v. Arthur, 22 N.Y.2d 325 (1968). 12. Cf. McMann v. Richardson, 397 U.S. 759, 771, n. 14 (1970), stating that the Sixth Amendment right to counsel “is the right to the effective assistance of counsel,” but, of course, the Federal constitutional rule does not recognize a right to counsel until the commencement of criminal proceedings. Kirby v. Illinois, supra. 13. Michael Lumer and Nancy Tenney, “The Death Penalty in New York: An Historical Perspective,” 4 Journal of Law and Policy 81, 82 (1995). 14. Id., at 107. 15. People ex rel. Kemmler v. Durston, 119 N.Y. 569, 578 (1890). 16. The point needs almost no citation, but see, James R. Acker, “When the Cheering Stopped: An Overview and Analysis of New York’s Death Penalty Legislation,” 17 Pace Law Review 41, 42–46 (1996); see also note 11, infra. 17. E.g., Furman v. Georgia, 408 U.S. 238 (1972) (Brennan, J., at 257, et seq. and Marshall, J., at 314, et seq.). 18. It could be inferred that the Governor followed the Court’s recommendation because Arata does not appear in the compilation of names of those executed in New York from 1890 to 1963 contained in the Appendix to Lumer and Tenney, note 13, supra. 19. 481 U.S. 279 (1987). 20. Defendant’s name does not appear on list of those executed, Lumer and Tenney, notes 18 and 13, supra. 21. Salemi’s name appears on list of those executed, Lumer and Tenney, notes 18 and 13, supra. 22. The statute, defining murder in the first degree, Laws of 1974, chapter 367, section 5, effective September 1, 1974, also mandated the death penalty for the intentional killing of an employee of correctional institution under the same circumstances prescribed for the killing of a police officer, or the intentional killing of anyone by a prisoner confined for a life term or by a lifer who had escaped and had not yet been returned. 23. The Court considered People v. James together with People v. Davis. Defendant Davis was spared the death penalty when, under N.Y. Const. Article 3, § 6, the Court reviewed the facts as well as the law and unanimously reversed his first degree murder conviction and reduced the Davis conviction to second degree murder. This constitutional provision is considered at greater length supra. 24. In Smith, the People argued “that defendant has no standing to attack the statute [because] he has not actually shown any mitigating circumstances, and the statute must

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be evaluated as applied to him. [Chief Judge Kaye responded that][w]here the statute is attacked because it affords no opportunity to show mitigating circumstances, a defendant can hardly be denied review for failure to show any. It would be nothing short of outrageous to put a defendant to death because his counsel failed to make an offer of proof of mitigating circumstances, when the statute did not permit the sentencer to consider any mitigating circumstances.” 63 N.Y.2d, at 71. 25. “[The] New York . . . state legislature had approved capital punishment bills for 18 straight years, only to see them vetoed by [Governors Mario] Cuomo and . . . Hugh Carey. [Governor George] Pataki had campaigned on a promise to restore the death penalty . . . ‘It’s a shame,’ Cuomo . . . The former Governor said he hoped New York’s courts would find the law unconstitutional. ‘It’s a slip back on the road to enlightenment.’ New York’s law will take effect with crimes committed on and after Sept[ember] 1, [1995]. Lethal injection would replace the electric chair that took the lives of 695 people in New York between 1890 and 1963.” David Bauder, “Pataki Signs New York Death Penalty,” Associated Press, March 7, 1995, 1995 WL 6711335. The article also describes some aspects of the intense eleven-hour debate in the Assembly. 26. Summary of offenses. The redefined offenses include intent to kill murder where: (1) the victim or intended victim is a police officer or peace officer or uniformed employee of a prison or local correctional facility and the defendant knew or reasonably should have known he was such a person and the victim was engaged in the performance of his duties when he was killed; or (2) the killer is a lifer or an escaped lifer; or (3) the purpose of the killing is to prevent the victim from testifying against the defendant or revenge for prior testimony against the defendant; or (4) the killing is a contract murder; or (5) the defendant had previously been convicted of murder in New York or of an equivalent murder offense outside New York; or (6) the defendant tortured the victim; or (7) the intentional killing is committed during the course of or in flight from listed violent felonies or (8) the killing is the conduct of a serial killer; or (9) the victim is a judge and defendant killed the victim because he was a judge. Intentional killing in furtherance of an act of terrorism was added in 2001 (L.2001, ch. 300, § 3). 27. Some procedural highlights of the 1995 death penalty law. The new statute provided for a bifurcated trial (a guilt and sentencing phase) in which the jury could substitute life imprisonment without parole for the death penalty; either sentence would have to be unanimous. In the event the jury could not reach unanimous agreement, the Judge will sentence the defendant to a term of twenty-five years to life. See discussion of Hynes v. Tomei, 92 N.Y.2d 613 (1998) and other cases that considered constitutionality of provision barring death penalty when defendant pleads guilty. Lethal injection was substituted for the electric chair. Mentally retarded defendant, except a lifer, exempted from death penalty See Atkins v. Virginia, 536 U.S. 304 (2002) (unconstitutional to execute mentally retarded), which casts doubt on even the limited scope of this provision. The statute listed mitigating and aggravating factors. It provided that the aggravating factors are elements of the crime of murder in the first degree; consequently they have to be proved beyond a reasonable doubt by the People in the guilt phase of the trial. The defendant can establish mitigating factors in the sentencing phase by a preponderance of the evidence and is not limited to the mitigating factors listed in the statute, but may

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present any mitigating factor. In order to impose the death sentence, the jury must find beyond a reasonable doubt that an aggravating factor substantially outweighs mitigating factors. 28. The decision to supersede the District Attorney resulted in widespread public controversy. See Associated Press, March 21, 1996, “Brooklyn DA Hynes Disappointed at Colleague’s Removal,” 1996 WL 5373555; March 25, 1996, Michael Blood, “Pataki Comes Under New Attacks in Death-Penalty Case,” 1996 WL 5374340. 29. Interestingly, the Governor had signed the 1995 death penalty statute with two pens, each belonging to a police officer who had been killed in the line of duty. He signed “George” with one pen and “Pataki” with the other. Bauder, “Pataki Signs New York Death Penalty,” note 25, supra. 30. The facts are taken from Judge Smith’s dissent. 31. Judge Smith dissented on the grounds the controversy was moot, 91 N.Y.2d, at 232, because one of the three defendants had committed suicide and State charges against the other two were dismissed after they had been convicted in Federal court, but the majority rejected the mootness claim. The Court held that “a live controversy” remained because the Executive Order No. 27 mandated that Bronx County pay all charges incurred by the Attorney General in prosecuting the case, and “[s]ince the validity of the charges depends on the validity of the order—the issue before [the Court]—the appeal continues to have immediate consequence for the parties. Second, the Executive Order is not by its terms limited to the prosecution of [the three defendants]. To the extent that the District Attorney—who himself argues against mootness—may find it necessary to initiate additional proceedings or inquiries if the Executive Order is invalidated, the outcome of this appeal also has immediate consequence for the parties.” 91 N.Y.2d, at 222. 32. See, Rapp v. Carey, 44 N.Y.2d 157 (1978), which had held the Governor’s exercise of rulemaking power in that case to be unconstitutional because the rules went beyond and even undermined the legislative purpose and consequently violated the principle of separation of powers. 33. The Administrative Board of Courts consists of the Chief Judge of the Court of Appeals and the four Appellate Division Presiding Justices. Judiciary Law § 210 (2). 34. The Capital Defender Office was established pursuant to Judiciary Law § 35-b, subd. 3, 4, to provide support for assigned counsel in capital cases. 35. Prior to granting leave to appeal, the Court denied a motion to disqualify Judges Smith, Levine, Ciparick, and Wesley and dismissed the motion to disqualify Chief Judge Kaye, who had recused herself, as academic. In the Matter of New York State Association of Criminal Defense Lawyers et al. v. Judith S. Kaye, as Chief Judge of the New York State Court of Appeals, et al., 95 N.Y.2d 556 (2000). The attempt to disqualify the judges who had participated in the order under attack was rejected on the ground, inter alia, that “the Rule of Necessity requires participation by the respondent Judges in this case. The constitutional provision for the designation of substitute Judges is not to be used as a vehicle to force removal of the constitutionally appointed members of this Court by naming them as parties when challenging administrative actions of the Court.” 95 N.Y.2d, at 562. 36. It should be noted that in Harris, Judge Smith did not dissent on the application of Jackson-Hynes.

772 Criminal Law 37. Harris also dealt with guilty pleas. See the discussion of Harris, supra. 38. Inasmuch as the District Attorney had not filed a notice of intent to seek the death penalty, Couser did not face the death penalty, and the prosecution argued that he had no standing to raise the vagueness issue under the Eighth Amendment. However, the Court determined that he at least could present the vagueness question under the Fourteenth Amendment. In addition, this was an interlocutory appeal and Couser had not yet been convicted of anything.

18. Evidence 1. Among the rejected proposals, see “Proposed Code of Evidence for the State of New York Under Consideration by the New York State Law Revision Commission” (Special Pamphlet, West 1980) and New York Law Revision Commission, “A Code of Evidence for the State of New York, Submitted to the 1982 Session of the Legislature” (Special Pamphlet, West 1982); each would have organized the proposed code along the lines of the Federal Rules of Evidence, using the Federal Rules numbering system, and would have changed much of New York law by codifying the substance of the Federal Rules. A third rejected proposal also used the Federal Rules as a format but sought to minimize changes in New York law. See New York State Law Revision Commission, “A Code of Evidence for the State of New York, Submitted to the 1991–92 Session of the Legislature” (Special Pamphlet, Lawyers Cooperative 1991). For an extensive study, see Barbara C. Salken, “To Codify or Not to Codify—That Is the Question: A Study of New York’s Efforts to Enact an Evidence Code,” 58 Brook. L. Rev. 641 (1992). 2. Rule 807, Residual Exception: “A statement not specifically covered by Rule 803 or 804 but having equivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponent’s intention to offer the statement and the particulars of it, including the name and address of the declarant.” 3. In New York, hearsay is a “statement not made in the course of the trial in which it is offered, . . . offered for the truth of the fact asserted in the statement.” People v. Huertas, 75 N.Y.2d 487, 491–92 (1990). The statement must be an assertive expression, declaring or asserting facts and includes nonverbal assertive conduct such as pointing to defendant in response to the question, “Who assaulted you?” People v. Caviness, 38 N.Y.2d 227 (1975); People v. Nieves, supra. 4. Contrast Rule 804 (b)(3), Federal Rules of Evidence, which provides that a “statement . . . offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement” (emphasis supplied). Also note that the Federal Rules contain no reference to corroborating circumstances of trustworthiness when the statement is offered by the prosecution to inculpate the defendant.

Conflict of Law

773

5. This case should not be confused with People v. Brown, 26 N.Y.2d 88 (1970), discussed supra, in connection with declarations against penal interest. 6. The Federal rule defined the present sense impression exception as a statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter. Rule 803 (1), Fed. R. Evid. 7. Defendant’s claim of bolstering also was held inapplicable because, inter alia, “the 911 tape at issue is admissible under an independent hearsay exception, and because of this Court’s well-established preference for cross-examination of hearsay declarants.” 86 N.Y.2d, at 509. 8. Rule 702 provides: “If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact issue, a witness qualified as an expert by knowledge, skill, experience, training or education, may testify thereto in the form of an opinion or otherwise.” 9. Judges Titone and Levine took no part. 10. See People v. DaGata, 86 N.Y.2d 40, 44 (1995) (discovery of FBI laboratory reports); “DNA research is at the vanguard of law enforcement.” 11. In Daubert, supra, the Supreme Court dealt with the trial judge’s role under the Federal Rules of Evidence as a so-called gatekeeper when ruling on the admissibility of scientific evidence and dealt with the standards for appellate review in General Electric Company v. Joiner, 522 U.S. 136 (1997). 12. Robinson dealt with identity. It remains an open question whether the “clear and convincing” standard or the “preponderance of evidence” standard governs other admissibility issues, e.g., intent. 13. It should be noted that the Ventimiglia hearing and the Sandoval procedure differ in that the Ventimiglia hearing is not statutory and places the burden on the prosecution to initiate a request for the Court’s ruling on admissibility.

19. Conflict of Laws 1. In Fried v. Seippel, 80 N.Y.2d 32, 40, n. 4 (1992), the words “in this state” were held to require only that the vehicle have been registered, used, operated, or intended for use in New York, not that the accident have occurred in New York. 2. Miller was a 4–3 decision, with Judge Keating writing a majority decision of eight printed pages and Judge Breitel (as he then was) writing a dissent of ten printed pages. It is interesting also in that the Keating majority relied on “an inquiry to the Insurance Commission of the State of Maine [which revealed] that the presence of the limitations [on recovery in a death action] had no substantial effect on insurance premiums” (22 N.Y.2d, at 41). Apparently the inquiry was by the Court, for examination of the Record and Briefs before the Court reveals nothing supporting the quoted statement. While the Court was, thus, relying on material outside the record before it, it has made a similar inquiry in at least one other case, Matter of Transit Commission v. Long Island Railroad Co., 291 N.Y. 109, 114 (1943), in which it requested the Interstate Commerce Commission to state whether its order for increase of fares applied to intrastate as well as interstate carriers, and based on the Commission’s reply held that the order was intended to prescribe intrastate as well as interstate rates.

774

Procedure

20. Procedure 1. Note that in Aguilera the Court left open the question whether issue preclusion should never be employed against a criminal defendant at any stage of the case, 82 N.Y.2d at 31.

21. Education 1. For a brief history, see Report [to the 1938 New York State Constitutional Convention] of the Subcommittee on Bill of Rights and General Welfare of the New York State Constitutional Convention Committee (1938) (Poletti Committee Report) 229–38. 2. The Legislature also may authorize the creation of state debt up to $250 million dollars without a referendum for the State University. New York State Constitution, Art. VII, § 19; this limit has already been exhausted. In addition, the use of proceeds from the state lottery are designated exclusively for the “aid and support” of education. Art IX, § 1, subsection 1. 3. A third case that dealt with school financing, Reform Educational Financing Inequities Today (R.E.F.I.T.) v. Cuomo, 86 N.Y.2d 279 (1995), also was decided on the same day, June 15, 1995, but it did not address the “capacity to sue” question. R.F.E.I.T is considered later in this section with cases that dealt with the substantive constitutional questions of education financing. 4. Chief Judge Kaye took no part in either case. 5. Relying on City of New York v. State of New York, 86 N.Y.2d 286 (1995) (Ciparick, J., dissenting), decided the same day as CFE I, and discussed, supra, Judges Simons, Titone, Bellacosa, and Levine concluded that claims asserted on behalf of the community school boards had to be dismissed because they lacked capacity to sue the State. Judges Ciparick and Smith dissented on this point. 6. Judge Graffeo took no part. Judge Smith concurred in Chief Judge Kaye’s opinion and wrote a separate concurring opinion. 7. Moreover, a claim of disparate impact under the Civil Rights Act or its regulations was not sustainable in view of the holding in CFE II.

22. Abortion, Right to Control Own Medical Care, and Some Related Matters 1. Those conditions were: (1) to preserve the life of the woman; (2) to prevent grave impairment of the physical or mental health of the woman; (3) where the woman had a permanent physical or mental condition that would render her incapable of caring for the child if it were born; (4) where there was a substantial risk that the child, if born, would be so grossly malformed or have such serious physical or mental abnormalities as to be permanently incapable of caring for himself; (5) where the pregnancy resulted from rape in the first degree; (6) where the pregnancy resulted from incest; (7) where the pregnancy began while the woman was unmarried and under sixteen years of age and she remained unmarried at the time of the abortion act; and (8) where the woman already had four living children. 38 A.D.2d, at 320–21.

Family Law

775

2. Judge Burke also argued that as for claiming that that part of the public offended by deaths by abortion is free to ignore it is to waste the lessons to be learned from the argument that German citizens were free to ignore the Nazi death camps. 31 N.Y.2d, at 211. 3. An apparent reference to Judge Breitel’s statement quoted above: “It [the embryo] is human, if only because it may not be characterized as not human, and it is unquestionably alive.” 4. A majority did agree that the parents could recover for certain expenses in raising the child as well as for some other expenses. 5. The Court of Appeals reversed that part of the Appellate Division’s order annulling the Commissioner’s directive described in the material that follows, but affirmed that part of the order directing certain payments be made. Judge Steuer’s dissent was directed at the order annulling the directive. 6. Also see, People v. Pierson, 176 N.Y. 201 (1903), discussed in chapter 11 (Religion). 7. The case technically was moot because the transfusion had been accomplished before the Court could render a decision, but as in Storar, supra, where the patient had died, “the case involve[d] significant and novel issues of State-wide importance which are likely to recur but which typically escape review because of the time it takes to appeal such decisions . . . [the Court] decide[d] the merits [jn order] to provide guidance in future cases.” 75 N.Y.2d, at 221, footnote 1. 8. Cf., Storar, supra, where the constitutional issue not addressed for the same reasons; Rivers v. Katz, supra, where constitutional issue was reached because regulation was held to be unconstitutional), and Pierson, note 6, supra. 9. In Vacco v. Quill, 521 U.S. 793 (1997), the Supreme Court addressed the constitutionality of state law criminalizing assisting suicide or an attempted suicide. The declaratory judgment proceeding was instituted in a Federal court and was not considered by the New York Court of Appeals; consequently, the details concerning the decision which rejected the attack under the Federal Constitution are outside the scope of this volume. However, it should be noted that the attack on New York’s penal law provisions on assisted suicide was based in large measure on the broad and frequently emphasized right of a patient under New York law to determine his or her own fate when deciding whether or not to terminate life by refusing medical treatment. The Court rejected the claim that the Federal Equal Protection clause was violated by the distinction between the refusal to continue life by refusing or terminating treatment and the criminal condemnation of assisted suicide.

23. Family Law 1. Noteworthy, though not involving any constitutional ground, is Ferrin v. New York State Department of Correctional Services, 71 N.Y.2d 42 (1987), which held that the effect of the 1981 amendment of CRL § 79-a and repeal of Domestic Relations Law § 6(2) was to terminate the right of the nonprisoner spouse to “elect” to treat his or her marriage to the prisoner spouse as “void.” 2. See also chapter 11, Religion. 3. Now Estates, Powers and Trusts Law § § 5–1.1(f ) and 5–1.1-A(e).

776 Family Law 4. Separation agreements as the basis for divorce are considered in the Divorce subsection. 5. See section II. The provision for such waiver was originally contained in Decedent’s Estate Law § 18 effective September 1, 1930, and is now dealt with in EPTL § § 5–1.1, effective August 31, 1966, and 5–1.1-A, effective September 1, 1992. 6. As to child support provisions of a judgment see section VIII. 7. Similar though not identical provisions are now contained in Domestic Relations Law § 236, Part A and § 236(9)(b). 8. The Angelin opinion also held, at p. 554, that a separation action does not, ipso facto, terminate the marital economic partnership and, therefore, does not preclude the subsequent accrual of marital property. 9. See also section I of this chapter. 10. DRL § § 70 and 240. 11. Weiss v. Weiss, 52 N.Y.2d 170 (1981); Priebe v. Priebe, 55 N.Y.2d 997 (1982); Daghir v. Daghir, 56 N.Y.2d 938 (1982); Matter of Krom v. Comesford, 57 N.Y.2d 704 (1982). 12. But see the concurring opinion of then Chief Judge Breitel in Matter of Port Washington Union Free School District v. Port Washington Teachers Association, 45 N.Y.2d 411, 422 (1978), stating that custody cannot be settled by arbitration because to do so would displace nondelegable judicial authority. 13. Characterized by Chief Judge Desmond in Schneider v. Schneider, 17 N.Y.2d 123, 126 (1966), a case involving child support, as “a thorough and convincing opinion.”

24. Election Law 1. “Institution of learning” rather than “seminary of learning”; “kept at any welfare institution, asylum or other institution” rather than “kept at any almshouse, or other asylum or institution.” 2. Query whether the issue before the Court being candidacy rather than voting, the reference should not have been to the Public Officers Law.

25. Antitrust and Restraints on Competition 1. Act of July 2, 1890, c. 647, 26 Stat. 909; 15 U.S.C. § § 1–7. 2. The Donnelly Act was amended several times after 1899. The amendments are described in the text where relevant to the discussion. For a general legislative history of the Donnelly Act, see 1957 Report of the New York State Bar Association Special Committee to Study the New York Antitrust Laws, 1a–24a. The entire report is reprinted in 1994 New York State Bar Association, New York Antitrust Laws, at pp. 67–132, as an appendix to Chapter 1. 3. Also see, Fair Trade–Resale Price Maintenance, III-D-3, infra. 4. For an earlier and contrary view on the relevancy of Sherman Act interpretations to construing the Donnelly Act, see, excerpt from Marsich v. Eastman Kodak Co., 244 A.D. 295 (2d Dept. 1936), aff’d, no. op, 269 N.Y. 621 (1936), at pp. 717–18, infra.

The Chief Judges’ Contributions 777 5. Dr. Miles did not directly declare vertical price-fixing to be a per se violation of the Sherman Act, but it has been consistently so construed. See, e.g., Business Electronics Corp. v. Sharp Electronics Corp., 485 U.S. 717, 724 (1988) [“ . . . vertical agreements on resale prices have been illegal since Dr. Miles Medical Co. v. John D. Park & Sons Co. 220 U.S. 373 (1911)”]. 6. See, Port Chester Wine & Liquor Shop v. Miller Bros. Fruiterers, 281 N.Y. 101 (1939); Guerlain, Inc. v. F.W. Woolworth Co., 297 N.Y. 11 (1947); Calamia v. Goldsmith Bros., 299 N.Y. 798 (1949); Bristol-Meyers Co. v. Picker, 302 N.Y. 61 (1950). 7. See, chapter 13 for further discussion of postemployment restrictive covenants.

26. Picketing and Labor Relations 1. Report of the Subcommittee on Bill of Rights and General Welfare of the New York State Constitutional Convention Committee (1938). 2. Now N.Y. Labor Law, Article 22-A. CPA § 876-a is “the New York analogue of the Norris-LaGuardia Act. . . .” Cafeteria Employees Union, Local 302 v. Angelos, 320 U.S. 293, 294–95 (1943). 3. At first, the Supreme Court denied certiorari, 313 U.S. 572 (1941), but later granted it and summarily reversed the judgment of the Court of Appeals, 313 U.S. 548 (1941); subsequently, a rehearing was granted, 314 U.S. 704 (1941), and the Supreme Court, in an opinion, reversed the Court of Appeals, 315 U.S. 769 (1942). 4. The facts are taken from the United States Supreme Court opinion, the dissent in the Appellate Division, and Special Term. There were no opinions by the Court of Appeals or by the Appellate Division majority. 5. The Court of Appeals majority cited the summary reversal of Wohl by Bakery & Pastry Drivers & Helpers Local No. 802 v. Wohl, 313 U.S. 548 (1941), see note 3, supra. 6. The Court of Appeals amended the remittitur to reflect that it had necessarily passed upon the Federal constitutional questions. Wohl v. Bakery and Pastry Drivers and Helpers Local 802 of International Brotherhood of Teamsters, 285 N.Y. 843 (1941).

27. The Chief Judges’ Contributions: State of the Judiciary 1. Wachtler v. Cuomo, no. 6034/91 (Sup. Ct. Albany County file, September 27, 1991). Also see Wachtler v. Cuomo, 1991 WL249892, in which the attempt to remove the case to the Federal courts was rejected. For additional discussion of budgetary issues, see chapter 3. 2. See also Kaye and Knipps, “Judicial Responses To Domestic Violence: The Case for a Problem Solving Approach,” 27 Western State Law Review 1 (2000). 3. See chapter 9, New Judicial Federalism, for an expanded discussion of that subject.

Subject Index

911 call recordings and hearsay rules, 564–565 abbreviations used in format of case decisions, 130–131 abortion historical background in New York State, 642–644 illegal abortion and medical malpractice, 651 “Justifiable Abortion Act” of 1970, constitutionality of, 641–650: dissenting opinion, 647–650; historical background, 642–644; majority opinion in, 644–646; passage of 1970 Act, 644; separate concurring opinion, 646–647 negligence: negligence in advising, 651–652; negligent failure to recommend, 652–656 State financial aid for “medically necessary” abortions, 656–658 State preemption of local regulation of, 650 tort actions, 651–658 “wrongful life” action for negligent failure to recommend, 652–656

Acker, James R., 769n16 administrative inspection of regulated business, warrantless, 190–191, 195–203 adoption family law as to, 689–691 religious preferences of birth parents, 364–367 advertising and privacy rights, 471–475 aerial and ground observation, “open fields” doctrine as to, 190–195, 200–203 aggravation elements in first degree murder cases, 540–544 AIDS/HIV education, school curriculum, and religious freedom, 343–347 tort law and privacy, 475 Alexander, Fritz W., II, 5, 32 alternative dispute resolution, 493–501 Amish children, education of, 345 ancillary restrictive covenants, 721–722 Andrews, Charles, 10 ANOPAC (Affirmed, No Opinion, All Concur) format, discontinuance of, 128 anti-psychotic medication, refusal of, 663–665

780 Subject Index anticipated deadlock instruction in death penalty cases, 544–546 antitrust and competition law, 700–725. See also Donnelly Act; Sherman Act ancillary restrictive covenants, 721–722 Clayton Act, 704, 710 as common law, 717, 721–725 “counterpart conformity,” 708–709 exemptions, 702–708 good will, sales of, 722–725 labor exemptions, 702–705 mergers and consolidations, 487–489 NIRA and NY State Recovery Act enacted to ensure fair competition, 144–145 price discrimination, 709–712 professional exemptions, 705–708 resale price maintenance, 716–720 Robinson-Patman Act of 1936, 704, 710 vertical arrangements allocating territories, 712–714 appealability factors in civil cases involving questions of law that ought to be determined by Court of Appeals, 75–78 appropriation bills, 82–88 arbitration, 493–501 Article 78 proceedings, 366, 604–609 at-will employment, 463–464 attorneys. See counsel, right to; lawyers “automobile exception” vs. “search incident to arrest” rationales, 164–166 bad acts, evidence of. See “propensity and character evidence” under evidence bank insolvencies, shareholder liability for, 153–156 Bartlett, William, 12 “basis of knowledge” test for hearsay information, search and seizure cases, 170–173 Bauder, David, 770n25, 771n29 Bellacosa, Joseph J., 5, 33–34, 101 Bergan, Francis, ix, 5, 25–26, 99 The Birth of a Baby (film), 228 Black, Hugo, 253 Blaine Amendment, 328, 762n5 Blood, Michael, 771n28

blood transfusion, refusal of, 665–667 “Blue Laws” (Sunday closing laws), 402–406 Board of Regents, election to, 699 breach of contract action, Donnelly Act as defense to, 720–721 Breitel, Charles D., 4, 5, 16–17 Brennan, William J., Jr., 757n1 Bromley, Bruce, 23 Bronson, Greene C., 6 Buckley Act, 145–147 budget, interrelation of Court of Appeals, Legislature, and executive regarding, 82–88 Burke, Adrian P., 5, 24, 100 business judgment rule, 481–483, 487 Caher, John, 748n8, 749n36 California, “new judicial federalism” in, 157, 757n6 “canine cannabis connoisseurs” used in search and seizure cases, 177–179 capacity of local government to sue State over education financing, 623–625 Cardozo, Benjamin Nathan, ix, 12–13, 99–101 case decision format. See format of case decisions censorship of films. See motion picture censorship obscenity prosecutions and concerns regarding, 260 certified questions direct appeals as of right of questions certified by Federal or out of state court, 51–60 Kaye on, 746 character evidence. See under evidence chief judges biographies of, 5–19 contributions of, 740–746 children, minor. See minors Church, Sanford E., 9–10 Ciparick, Carmen Beauchamp, 35 civil cases, increase in number of, 740–741, 742 civil cases involving questions of law that ought to be determined by Court of Appeals

Subject Index appealability factors, 75–78 exercise of discretion regarding, 69–73 final decisions where either Court of Appeals or Apellate Division believe question of law is involved, 67–69 inferior trial level courts, cases originating in, 67 mootness limitations, 73–75 nonfinal orders of Appellate Division, 65–67 public officers or bodies of public officers, cases by or against, 65 reviewability factors, 78–80 Rule of Necessity, 80–81 solely in opinion of Apellate Division, 65–69 solely in opinion of Court of Appeals, 65 timeliness factors, 78 Civil Practice Act amendments regarding picketing, 728–729 Clayton Act, 704, 710 Cleland, John (Fanny Hill), 283–289 closed containers, privacy interest in, 166–168 collateral estoppel, 600–604 collective bargaining. See labor relations Commission on Judicial Conduct determinations, jurisdiction over, 41–51 case law involving, 45–50 under NY State Constitution, 41–45, 50–51 Commission on Judicial Nomination, 2–3, 3 “committed in a similar fashion” as aggravating factor in first degree murder, 540–542 commodity prices, fixing, 137–141 common carriers under common law, 107 common law antitrust and competition policy, 717, 721–725 arbitration, 497–498 Cardozo’s role in development of, 99–101 constitutional and statutory provisions regarding, 101–108 employment at will, 463 English law and, 102–103 prior testimony, admissibility of, 549–550 privacy rights, 471

781

Community Justice Center, 745 compelling state interest, school curriculum, and religious freedom and establishment issues, 345–346 compensation minimum wage laws, 141–144 unemployment compensation, 148–151 competition. See antitrust and competition law Comstock, Anthony, 267 Comstock, George F., 7–8 concurrences, 124, 129 condemnation, inverse, 413–415 condominiums and cooperatives, 407–413, 483 confidentiality employee obligations, 465–470 evidence under priest-penitent privilege, admissibility of, 584–585 religious matters, judicial involvement in, 375–376 conflict of laws contracts, 596–599 Court of Appeals jurisprudence, basic theory of, 588–589 public policy and tort law, 591–595 punitive damages and tort law, 595–596 real or personal property, 599 statutory provisions, 586–587 testamentary contracts (wills), 598–599 torts, 589–596 Connecticut, early motion picture censorship statute in, 220 consent and privacy rights, 474 consenting adults, constitutional protection of works shown only to, 296–297 consolidations and mergers, 487–489 Constitution of New York. See New York State Constitution Constitutional Convention of the State of New York (1938) antitrust law, 703 motion picture censorship, 220, 229–231 picketing, 726 Presidential acceptance speech, 756n12 religious freedom and establishment, 328–333

782 Subject Index constitutional issues. See also specific constitutional protections, e.g. freedom of expression common law and, 101–108 cooperatives and condominiums, 407–408 custody, 683–684 economic crisis of Great Depression raising, 123–124. See also Great Depression family law and, 668–671 Fifth Amendment right against selfincrimination, 538 Full Faith and Credit Clause, 595 jurisdiction over decisions of appellate division regarding construction of State or Federal Constitution, 62–63 “Justifiable Abortion Act” of 1970, constitutionality of. See under abortion medical care, individual’s right to control. See medical issues “new judicial federalism” as to state protections broader than federal rights. See “new judicial federalism” Sixth Amendment right to jury trial, 538 special school district for religious community, statutory constitutionality of legislation creating. See “Kiryas Joel case” under schools and religious freedom and establishment statute, direct appeals as of right regarding constitutional validity of, 39–40 construction. See interpretation contracts, 449–470 breach of contract action, Donnelly Act as defense to, 720–721 conditions precedent, 454 confidentiality, employee obligations regarding, 465–470 conflict of laws, 596–599 damages, 459–461 defenses to contract actions, 456–459 definiteness requirements, 453–454 employment at will, 463–464 express, 449–450

impairing obligations of, constitutional prohibition on, 124 implied, 449–450 interpretation of, 454–455 parol evidence, 452–453 partial performance of, 454 privity, 475 reformation of, 454 Statute of Frauds and, 450–452 testamentary contracts (wills) and conflict of laws, 598–599 third party beneficiaries, rights of, 463 tortious interference with, 464–465 Conway, Albert, 5, 15 Cooke, Lawrence H., 4, 5, 17–18 Coolidge, Calvin, 220 cooperatives and condominiums, 407–413, 483 corporations, 478–492 business judgment rule, 481–483, 487 derivative actions of shareholders, 481–483 directors and officers, liability of, 487 insolvent banks, shareholder liability for, 153–156 mergers and consolidations, 487–489 oppressive conduct and piercing the corporate veil, 489–492 restrictions on transfer of shares, 479–480 successor corporation liability, 478–479 valuation of shares, 480–481 counsel, right to death penalty cases, fees for assigned counsel in, 535–537 effective assistance of counsel: “new judicial federalism” and, 207–209; pre-trial statement rights and, 518–521 judiciary’s efforts to improve access of poor to legal services, 741 in pre-trial statements. See pre-trial statements and right to counsel court financing, need for, 741–742 Court of Appeals. See also more specific entries, e.g. jurisdiction budget functions, 82–88

Subject Index historical development from 1846, overview of, 1–3 lawmaking, role in, 88–94 on stare decisis, 94–98 court reforms, 741–746 covenants, restrictive ancillary restrictive covenants under antitrust and competition law, 721–722 real property, 444–447 Crane, Frederick E., 5, 13–14, 756n12 criminal and civil cases, increase in, 740–741, 742 criminal deeds evidence of. See “propensity and character evidence” under evidence indecent portrayal of, 267–271 criminal law, 502–546. See also counsel, right to; death penalty; pre-trial statements and right to counsel common law and, 104 election law provisions, 698–699 hearsay: declarations against penal interest, 553–559; prior testimony, admissibility of, 550 jurisdiction over cases not involving death penalty, 64–65 prior testimony, admissibility of, 550 res judicata and collateral estoppel, 602–604 statutory interpretation of, 121–123 Crouch, Leonard C., 20 cruel and unusual punishment, death penalty as, 526–530 Cullen, Edgar M., 11–12 Cuomo, Mario, 4, 85, 88 damages contracts, 459–461 privacy rights, 475 punitive damages, torts, and conflict of laws, 595–596 Davies, Henry E., 8 deadlock instruction in death penalty cases, 544–546

783

death penalty, 521–546 aggravation elements in first degree murder cases, 540–544 anticipated deadlock instruction, unconstitutionality of, 544–546 “committed in a similar fashion” as aggravating factor, 540–542 as cruel and unusual punishment, 526–530 debate over use of, 521–524, 526–530 fees for assigned counsel, 535–537 felony murder, 542–544 jurisdiction over, 40–41 life/death qualification of jurors, 544 manner of carrying out death penalty, 521–522 NY legislation: 1974 statute, 527–530; 1995 statute, 530, 531 plea options, guilty pleas, and plea bargaining, 537–540 quantitative and qualitative difference between other penalties and, Court’s recognition of, 522–523, 544 questions of fact, review of, 524–526 sentencing options, 537 supersession of district attorney by state attorney via governor’s executive order, 530–535 defenses breach of contract action, Donnelly Act as defense to, 720–721 to contract actions, 456–459 entrapment as affirmative defense, 577 obscenity laws, constitutionality of employees’ affirmative defenses to, 302 definiteness requirements for contracts, 453–454 obscenity, indecency, and immorality laws, 269–271, 283, 285, 287–288, 290, 296 Denio, Hiram, 7 Depression. See Great Depression Desmond, Charles S., 15–16, 761n1 Devlin, Lord Patrick, on laws defending established morality, 252 Dewey, Thomas E., 3, 4, 748n10

784

Subject Index

direct appeals as of right, 39–62 Commission on Judicial Conduct determinations, 41–51: case law involving, 45–50; under NY State Constitution, 41–45, 50–51 constitutional validity of statute, 39–40 death penalty cases, 40–41 modifications, 60–61 new trial in action or new hearing in special proceeding, stipulation as to, 60–61 questions certified by federal or out of state court, 51–60 reversals, 60–61 directors of corporations, liability of, 487 disabled children, education for, 620–622. See also “Kiryas Joel case,” under schools and religious freedom and establishment disclosure rules and “new judicial federalism,” 206–207 discretion, exercise of, in civil cases involving questions of law that ought to be determined by Court of Appeals, 69–73 dissenting opinions appeals as of right from decision of Apellate Division involving dissent by two justices on question of law, 63–64 defined, 124 format, 124, 129–130 divorce, 676–678. See also family law dogs used in search and seizure, 177–179 domestic violence, 744–745 Donnelly Act, 700–701. See also antitrust and competition law breach of contract action, as defense to, 720–721 “counterpart conformity,” 708–709 exemptions, 702–708 labor exemption, 702–705 per se violations under, 714–721 price discrimination, 709–712 professional exemptions, 705–708 public policy importance of, 701–702 resale price maintenance, 716–720 Sherman Act compared, 700–702

vertical arrangements allocating territories, 712–714 Douglas, William O., 253 Dreiser, Theodore, 258 Drug Courts and drug treatment programs, 745 drugs, search and seizure cases involving. See search and seizure due process effective assistance of counsel, right to, 207–209 egregious police conduct as violation of, 203–206 invalidation of legislation under, 124 resale price maintenance and, 719 State action and State due process clause, 211–214 substantive due process doctrine, 124 Dye, Marvin R., 4, 5, 22 Earl, Robert, 9 easements, 437–444 education, 615–640 all children, providing education for, 619–622 Board of Regents, election to, 699 constitutional requirements regarding, 615 defining a sound basic education, 632–633 delinquents, special schools for, 610–620 for disabled children, 620–622. See also “Kiryas Joel case” under schools and religious freedom and establishment equal protection challenges: disabled children, 620–622; evidentiary issues, 633–637; to gross disparities in education financing, 628; inequalities in financial support for local school districts throughout State system, 625–628; legal sufficiency of cause of action regarding, 628–632; sound basic education, defining, 632–633; State policies and practices leading to adverse concentrations of racial minorities and poverty, 637–640

Subject Index financing, 622–640: for disabled children’s education, 620–622; equal protection challenges to. See under “equal protection challenges,” this entry; local government’s capacity to sue State over, 623–625; rational basis standard, 621–622 in the law, 741, 743, 745–746 policy as to: adverse concentrations of racial minorities and poverty resulting from, 637–640; judicial involvement in evaluating, 615–619 religion and. See schools and religious freedom and establishment voting rights of students, 697–698 effective assistance of counsel, right to “new judicial federalism” and, 207–209 pre-trial statement rights and, 518–521 egregious police conduct as violation of due process, 203–206 election law, 692–699 Board of Regents, election to, 699 criminal law provisions regarding, 698–699 residency issues, 696–699 students and institutionalized persons, voting rights of, 697–698 technical requirements, 693–696 employment relations. See labor relations English law common law in New York and, 102–103 on contract damages, 461 Hicklin test for obscenity, indecency, and immorality, 255, 270, 274 restrictive covenants originating in, 444 entrapment, 203–206, 577 equal protection clause in education financing. See education obscenity laws: employees’ affirmative defenses regarding, 302; gender-specific nudity prohibitions, 325–326 permit required for religious worship in a public street, 377 equitable distribution, 678–682 equity, common law applied to, 104

785

establishment of religion. See religious freedom and establishment estoppel, collateral, 600–604 evidence, 547–585. See also expert testimony and scientific evidence; hearsay contracts, parol evidence of, 452–453 disclosure of evidence to defense, failure of prosecutor regarding, 206–207 education financing and equal protection clause, 633–637 Federal Rules of Evidence, 547 judicial development vs. codification of rules of, 547 parol evidence and contracts, 452–453 priest-penitent privilege, breaching, 584–585 propensity and character evidence, 575–585: impeachment of defendant as witness with, 580–584; priest-penitent privilege, breaching, 584–585; relevance to charge, 575–580 substantial evidence and “totality of the evidence,” 131–132 excited utterance exception to hearsay rules, 560, 563 executive. See Governor exigent circumstances requirement for “search incident to arrest” rationale, 168–169 expert testimony and scientific evidence, 566–575 consolidation of Frye principles, 569–572 establishment of Frye approach, 566–567 as to eyewitness testimony, 572–575 Frye hearings, 570 laboratory methods, acceptableness of, 570–571 policy consensus on, 571–572 pre-Frye rule cases, 567–569 premature admission of, 571–572 trial judge, role of, 572–575 express contracts, 449–450 expression, freedom of. See freedom of expression eyewitness testimony, expert testimony and scientific evidence as to, 572–575

786 Subject Index fact, questions of death penalty and review of, 524–526 as to obscenity, indecency, and immorality, 259–262, 275, 282 fair competition. See antitrust and competition law Fair Trade Act, 719 family law, 668–691 adoption, 364–367, 689–691 child support, 688–689 constitutional issues related to, 668–671 custody, 683–688 divorce, 676–678 domestic violence, 744–745 equitable distribution, 678–682 prenuptial agreements, 671–673 separation agreements, 673–675 visitation, 682–683 Fanny Hill or Memoirs of a Woman of Pleasure (John Cleland), 283–289 Federal Constitution. See constitutional issues Federal Rules of Evidence, 547 fellow-servant rule, 104–105 felony murder, 542–544 fictionalization and privacy rights, 473–474 Fifth Amendment right against selfincrimination, 538 film censorship. See motion picture censorship Finch, Edward R., 5, 20, 749n43 Finch, Edward R., Jr., 749n43 firefighter rule, 105–106 First Amendment. See freedom of expression; religious freedom and establishment first refusal rights as to real property, 447–448 flag salutes, 330, 392–393 flip tax, 483 Florida motion picture censorship statute, 220 “new judicial federalism” in, 157, 757n2, 757n6 Folger, Charles J., 10 foreign arbitration, 501 format of case decisions, 124–132 abbreviations, use of, 130–131

ANOPAC (Affirmed, No Opinion, All Concur), discontinuance of, 128 concurrences, 124, 129 dissenting opinions, 124, 129–130 inclusion of what is not decided, 128 judges not joining in ruling, indication of, 128–129 memoranda, 124, 127 opinions, 124–126 per curiam, 124, 126–127 “totality of the circumstances,” reference to, 131–132 Foster, Sydney R., 4, 24–25 Fourteenth Amendment. See due process Fourth Amendment. See search and seizure Frankie and Johnnie (play), 262 freedom of expression. See also motion picture censorship “new judicial federalism” regarding, 159–162, 214–216 nudity, 309–310, 324–325, 327 obscenity as protected speech or expression, 272–273, 309–310, 316–319, 324–325, 327 permit required for religious worship in a public street, 377 picketing as, 729 State Action and NY freedom of expression clause, 214–216 freedom of religion. See religious freedom and establishment Froessel, Charles W., 23–24 Frye rule. See expert testimony and scientific evidence Fuchsberg, Jacob D., 30 Fuld, Stanley H., 3, 4, 16, 749n33 Full Faith and Credit Clause, 595 Gabrielli, Dominick L., 4, 5, 28 Garden of Eden (film), 246–249 Gardiner, Addison, 6–7 Gautier, Théophile, 259–260 gay life partners, applicability of rent control provisions to, 118–121 Gaynor, William Jay, 220

Subject Index 787 The Genius (Dreiser), 258 Gibson, James, 4, 27–28 good faith of police in validity of warrant, search and seizure cases, 174 good will, sales of, 722–725 Governor budget, functions regarding, 82–88 death penalty cases, supersession of district attorney by state attorney via executive order of, 530–535 historical overview of appointment of judges and, 1–3 lawmaking, role in, 88–94 stare decisis and interrelation with Court of Appeals, 94–98 “grabbable area” accessible to person arrested, right to search, 167, 169 Graffeo, Victoria A., 5, 36 The Great Depression, 123–156 commodity prices, fixing, 134–137 constitutional questions raised by economic crisis of, 123–124 insolvent banks, shareholder liability for, 153–156 labor relations during, 151–153 minimum wage laws, 141–144 mortgage moratorium legislation, 134–137 NIRA (National Industrial Recovery Act) and NY State Recovery Act, 144–145 resale price maintenance and, 718 unemployment: tax revenues earmarked for issues of, 145–147; unemployment compensation, 148–151 The Great Thaw Trial (film), 220 ground and aerial observation, “open fields” doctrine as to, 190–195, 200–203 Hall, Radclyffe, 261 Hancock, Stewart F., Jr., 5, 33 handicapped children, education for, 620–622. See also “Kiryas Joel case,” under schools and religious freedom and establishment Hanley, Thomas P., Jr., 587 Hatch rule on hearsay evidence, 551 health care issues. See medical issues

hearsay, 547–565 911 call recordings, 564–565 availability of declarant of written statement, 551–552 declarations against penal interest, 553–559 excited utterance exception, 560, 563 Hatch rule, 551 implicating codefendants, 557–559 indicia of reliability, 553–553 present sense impression as new hearsay exception, 560–565 prior testimony, statutory and common law on admissibility of, 549–550 residual exception approach, 547–549 search and seizure warrants, 169–173 “speaking authority” of agent or employee, 559 Herzog, Peter E., 587 Hirschberg, Henry, 229–231 Hiscock, Frank H., 12 historic preservation, 385–388, 434–437 HIV/AIDS education, school curriculum, and religious freedom, 343–347 tort law and privacy, 475 Home Rule provision of NY State Constitution, 146 Hubbs, Irving G., 19–20 Hughes, Howard, 228 Hunt, Ward., 9 immorality. See obscenity, indecency, and immorality implied contracts, 449–450 income minimum wage laws, 141–144 unemployment compensation, 148–151 increase in number of civil and criminal cases, 740–741, 742 increased sentence on retrial for same offense, “new judicial federalism” regarding, 209–211 indecency. See obscenity, indecency, and immorality

788

Subject Index

Individual Assignment System, 740 insolvent banks, shareholder liability for, 153–156 institutionalized persons, voting rights of, 697–698 intent or motive as relevant to obscenity charges, 255 interest on mortgages, 427, 428, 431 international arbitration, 501 interpretation constitutional. See constitutional issues contract wording, 454–455 obscenity laws, narrow construction of, 275–276 statutory. See statutory interpretation interrelation of Court of Appeals, Legislature, and executive budget process, 82–88 lawmaking, 88–94 stare decisis, 94–98 inverse condemnation, 413–415 Jasen, Matthew J., 4, 26–27 The Jazz Singer (film), 219 Jehovah’s Witnesses blood transfusion, refusal of, 665–667 distribution of literature by, 393–396 flag salutes, 330, 392–393 Jewett, Freeborg C., 5–6 Jews and Judaism Ketubah (Jewish marriage document), judicial enforcement of, 367–369 special school districts. See “Kiryas Joel case,” under schools and religious freedom and establishment Johnson, Alexander, 7 Johnson, Robert, 531, 532 Jones, Hugh R., 5, 28–29, 127 judges biographies of, 3–37: associate judges, 1932–present, 19–37; chief judges, 5–19 chief judges: biographies of, 5–19; contributions of, 740–746

general observations regarding, 3–5 historical overview of number, terms. and method of appointment, 1–3 State of the Judiciary reports, 740–746 training for, 741 Judicial Conference of the State of New York, 88 judicial funding, need for, 741–742 judicial procedure, 600–614 Article 78, 366, 604–609 limitations in, 609–614 pre-Article 78 procedure, 604–605 reform and revision, 746 religious freedom and establishment issues related to, 396–398 res judicata and collateral estoppel, 600–604 judicial reforms, 741–746 juries contributions of chief judges regarding reform of, 743 life/death qualification of jurors in death penalty cases, 544 obscenity, competence of jury to determine, 255–256, 260 Sixth Amendment right to jury trial, 538 jurisdiction, 38–81 appeals as of right. See right, appeals as of appeals by permission: civil cases involving questions of law. See civil cases involving questions of law that ought to be determined by Court of Appeals; criminal cases not involving death penalty, 64–65 changes in, 38–39 civil cases involving questions of law. See civil cases involving questions of law that ought to be determined by Court of Appeals Commission on Judicial Conduct determinations, 41–51: case law involving, 45–50; under NY State Constitution, 41–45, 50–51 constitutional validity of statute, questions regarding, 39–40

Subject Index 789 criminal cases not involving death penalty, 64–65 death penalty cases, 40–41 modifications, 60–61 new trial in action or new hearing in special proceeding, stipulation as to, 60–61 questions certified by federal or out of state court, 51–60 reversals, 60–61 “Justifiable Abortion Act” of 1970. See under abortion Kansas, early motion picture censorship statute in, 219, 221–222 Kaye, Judith S. biographical information, 4, 18–19 contributions as chief judge, 740, 742–746 works of, 746, 752n1, 757n4, 760n33 Keating, Kenneth B., 4, 5, 26 Kellogg, Henry T., 19 Ketubah (Jewish marriage document), judicial enforcement of, 367–369 Kilbourn, Joseph A., 587 La Ronde (film), 239–246 labor relations. See also picketing; unemployment antitrust and competition exemptions under Donnelly Act, 702–705 arbitration, 493–501 confidentiality, employee obligations regarding, 465–470 employment at will, 463–464 in The Great Depression, 151–153 Lady Chatterley’s Lover (film), 249–251 landmark preservation, 385–388, 434–437 Lane, Eric, 752n1 law, jurisdiction over questions of appeal by permission of civil cases involving. See civil cases involving questions of law that ought to be determined by Court of Appeals

dissent by two justices, appeals as of right from decision of Apellate Division involving, 63–64 Law Revision Commission, 88 lawmaking, interrelation of Court, Legislature, and executive regarding, 88–94 lawyers. See also counsel, right to clergy serving as, 398 education and training in the law, 741, 745–746 professional exemptions to antitrust and competition law under Donnelly Act, 705–707 legal sufficiency of cause of action, equal protection challenges to education financing, 628–632 legislative history used in statutory interpretation administrative agency interpretations, 110–113 retrospectivity of statute, 113–118 Legislature budget, functions regarding, 82–88 lawmaking, role in, 88–94 stare decisis and interrelation with Court of Appeals, 94–98 Lehman, Irving, 14 Levine, Howard A, 4, 34–35 Lewis, Edmund H., 5, 14–15 life/death qualification of jurors in death penalty cases, 544 life support, termination of, 658–663 limitations in judicial procedure, 609–614 literary merit considerations in obscenity cases, 259–260, 281–282 local governments abortion, State preemption of local regulation of, 650 education financing, capacity to sue State over, 623–625 motion picture censorship by, 220–221 obscenity, local standards of, 261–262, 273, 282 Loughran, John T., 14

790

Subject Index

Louisiana, early motion picture censorship statute in, 220 Lumer, Michael, 769n13 Mademoiselle de Maupin (Gautier), 259–260 malicious prosecution, 258–259 malpractice suit for illegal abortion, 651 Marrero, Victor, 740 marriage. See family law Maryland, early motion picture censorship statute in, 220 Massachusetts, failure to adopt motion picture censorship statute in, 220 McGuire Act, 719–720 Medalie, George Z., 5, 22–23 media and privacy rights, 471–475 mediation, 493 medical issues. See also abortion AIDS education, school curriculum, and religious freedom and establishment issues, 343–347 individual’s right to control own medical care: anti-psychotic medication, refusal of, 663–665; blood transfusion, refusal of, 665–667; termination of extraordinary life support, 658–663 wrongful death action for stillbirth, 652 “wrongful life” actions, 652–656 medical profession exemptions under Donnelly Act, 707–708 Memoirs of a Woman of Pleasure or Fanny Hill (John Cleland), 283–289 Memoirs of Hecate County (Edmund Wilson), 272 memoranda, 124, 127 mental health issues anti-psychotic medication, right to refuse, 663–665 voting rights of institutionalized persons, 697–698 mergers and consolidations, 487–489 Meyer, Bernard S., ii, 5, 31, 752n1 Michigan’s obscenity statute, 271–272 Miller, Henry, 281–282 Miller-Tydings Act, 719

minimum wage laws, 141–144 Minnesota’s mortgage moratorium legislation, 134 minors adoption of: family law as to, 689–691; religious preferences of birth parents, 364–367 child support, 688–689 custody, 683–688 education of. See education obscenity, protection from, 302–308: child pornography, 305–308; limitation of sales to children (1884–1887), 267–268; Michigan obscenity statute, 271–272; sale of Fanny Hill to a minor, 269–271, 283, 285, 287–288; “variable obscenity,” 302–305 religious freedom and establishment: parental religious preferences, 363–367; schools and. See schools and religious freedom and establishment visitation, 682–683 The Miracle (film), 232–239 modifications, jurisdiction over, 60–61 Moon, Rev. Sun Myung, 389 mootness and civil cases involving questions of law that ought to be determined by Court of Appeals, 73–75 morality. See obscenity, indecency, and immorality mortgages, 425–434 defined, 426 foreclosure actions, 431–432 interest, 427, 428, 431 mortgage moratorium legislation, 134–137, 425–426 notices of pendency, 430, 433 personal property covered by, 428–429 taxation and, 433–434 motion picture censorship, 217–252 acceptance of/demand for, 218–219, 220 Court of Appeals divisions regarding, 231–232 Devlin, Lord Patrick, on laws defending established morality, 252

Subject Index federal cases involving, 221–224, 231 immorality and tendency to corrupt morals as grounds for, 239–246 indecency as grounds for, 246–251 laissez-faire period (1900–1917), 218–219 licensing requirements used for, 217–218, 220 local statutes, 220–221 New York State Constitutional Convention (1938), 220, 229–231 New York statute: early state restrictions, 220–221; after Pathé Exchange, 226–229; declared unconstitutional, 251–252 Pathé Exchange case (newsreels vs. motion pictures), 224–226 “sacrilegious” as grounds for, 232–239 state statutes, 219–221 motive or intent as relevant to obscenity charges, 255 movie censorship. See motion picture censorship National Industrial Recovery Act (NIRA), 144–145 National Labor Relations Act (NLRA), 151–153 negligence abortion, negligence in advising, 651–652 abortion, negligent failure to recommend, 652–656 New Deal legislation. See Great Depression new hearing in special proceeding, jurisdiction over stipulation as to, 60–61 “new judicial federalism,” 157–216. See also search and seizure counsel, right to effective assistance of, 207–209 defined, 158 disclosure of evidence to defense, failure of prosecutor regarding, 206–207 egregious police conduct as violation of due process, 203–206 freedom of expression cases, 159–162, 214–216, 309–310

791

increased sentence on retrial for same offense, 209–211 obscenity, indecency, and immorality, 309–310 reliance on State rather than Federal Constitution, consequences of, 159–160 State action issues, 211–216: due process, 211–214; freedom of expression, 214–216; new trial, jurisdiction over stipulation as to, 60–61 New York Court of Appeals. See Court of Appeals New York laws. See under specific title, e.g. “Donnelly Act,” and Table of Statutes for specific articles and sections New York State Constitution. See also Table of Statutes, for specific articles and sections application of, 308–319: freedom of expression, 309–310, 316–319; search and seizure/warrant issues, 311–316 Blaine Amendment, 328, 762n5 Commission on Judicial Conduct determinations, jurisdiction over, 41–45, 50–51 education, constitutional requirements regarding, 615 freedom of expression, 309–310, 316–319 Home Rule provision, 146 jurisdiction over decisions of appellate division regarding construction of, 62–63 motion picture censorship and New York State Constitutional Convention (1938), 220, 229–231 “new judicial federalism” as to state protections broader than federal rights. See “new judicial federalism” obscenity laws and, 308–319: freedom of expression, 309–310, 316–319; search and seizure/warrant issues, 311–316 search and seizure/warrant issues, 311–316 New York State Constitutional Convention (1938). See Constitutional Convention of the State of New York New York State Society for the Prevention of Cruelty to Children, 267

792 Subject Index New York State Society for the Suppression of Vice, 258, 267 newsworthiness exception to privacy rights, 472–473 NIRA (National Industrial Recovery Act), 144–145 NLRA (National Labor Relations Act), 151–153 Nudist (magazine), 266 nudity as freedom of expression, 309–310, 324–325, 327 gender-specific requirements regarding, 324, 325–326 live public nudity, 265–266, 309–310, 323–327 nude dancing, 309–310, 327 nude photographs, 266–267, 293–295 photo shoot of nude persons in abstract formation, 326–327 as protest, 325 zoning laws and adult entertainment, 319–323 Nuremberg trials, 5, 21 O’Brien, John F., 19, 471 obscenity, indecency, and immorality, 253–327. See also specific works, e.g. Fanny Hill circumstances of production, sale, and publicity, relevance of, 292–293 competence of jury to determine, 255–256, 260 concern of legislators’ with, 253–254 consenting adults, constitutional protection of works shown only to, 296–297 criminal deeds as, 267–271 defining: difficulty in, 273–274, 283–288, 293–295; early cases, 254–257; “hardcore pornography” definition, 273–278, 281, 282–283, 299; Hicklin test, 255, 270, 274; legislative amendment of definition, 301–302 Devlin, Lord Patrick, on laws defending established morality, 252

early cases involving, 254–257 equal protection clause: employees’ affirmative defenses, 302; gender-specific nudity prohibitions, 325–326; “hardcore pornography” as definition of, 273–278, 281, 282–283, 299 Hicklin test, 255, 270, 274 intent or motive of author or work, relevance of, 255 lack of Court of Appeals guidance in 1930’s, 262–267 literary merit considerations, 259–260, 281–282 local standards of, 261–262, 273, 282 malicious prosecution regarding, 258–259 minors, protection of. See under minors in motion pictures. See motion picture censorship narrow construction of laws regarding, 275–276, 278 nudity as. See nudity as protected speech or expression, 272–273, 309–310, 316–319, 324–325, 327 “prurient interest or appeal” element, 271–278, 291 as question of fact, 259–262, 275, 282 scienter requirements, 278–281, 290–291 seizure of obscene materials, 311–316 “tendency to excite lustful and lecherous desire” (Cullen’s opinion from Eastman), 257, 261–262 tripartite test, 281–282 “utterly without redeeming social value” element, 273, 288–289, 295–296, 298, 300 vagueness issues, 269–271, 283, 285, 287–288, 290, 296 officers of corporations, liability of, 487 Ohio, early motion picture censorship statute in, 219, 221–224 “open fields” doctrine as to aerial and ground observation, 190–195, 200–203 opinions, 124–126

Subject Index 793 oppressive conduct by shareholders, 489–492 The Outlaw (film), 228 paperless courts, 744 parental religious preferences, 363–367 Parker, Alton B., 11 parol evidence and contracts, 452–453 Pataki, George, 771n29 “patently offensive” requirement, 281 pay minimum wage laws, 141–144 unemployment compensation, 148–151 penal law. See criminal law Pennsylvania, early motion picture censorship statute in, 219 per curiam format, 124, 126–127 permission, appeals by civil cases involving questions of law. See civil cases involving questions of law that ought to be determined by Court of Appeals criminal cases not involving death penalty, 64–65 personal property conflict of laws, 599 mortgages covering, 428–429 picketing, 726–739 Civil Practice Act amendments, 728–729 defining what constitutes a labor dispute for purposes of, 730–739 false statements made in, 737–739 as freedom of expression, 729 historical background, 726–728 statutory protections, 728–739 piercing the corporate veil, 489–492 plain meaning doctrine of statutory interpretation, 110–113 Poletti Report, 229, 726 pornography. See obscenity, indecency, and immorality Pound, Cuthbert W., 5, 13 prayer in school, 336–340 pre-trial statements and right to counsel, 502–521

admissibility of statement not made in presence of counsel by defendant represented on charge unrelated to charge under investigation, 510–518 after indictment, 503–504 prior to formal charge, 504–510 right to effective assistance of counsel and, 518–521 stare decisis regarding, 509–510, 513–514 voluntary waiver of counsel, 505, 508, 510, 512 precedent and stare decisis, 94–98, 509–510, 513–514 prenuptial agreements, 671–673 preservation laws, 385–388, 434–437 press and privacy rights, 471–475 price discrimination, 709–712 prisoners’ rights regarding religion, 398–402 privacy rights, 471–475 abortion and. See “Justifiable Abortion Act” of 1970, constitutionality of, under abortion closed containers, privacy interest in, 166–168 private parties, judicial involvement in disputes involving matters of religion between. See under religious freedom and establishment privity, 475–477 problem-solving courts, 744 procedure. See judicial procedure professional exemptions to antitrust and competition law under Donnelly Act, 705–708 propensities of defendant, evidence of. See under evidence Prosser, William, 471 psychiatric issues anti-psychotic medication, right to refuse, 663–665 voting rights of institutionalized persons, 697–698 public policy arbitration, public policy exception to, 496 Donnelley Act, importance of, 702–703 on education: adverse concentrations of racial minorities and poverty resulting

794

Subject Index

public policy (continued ) from, 637–640; judicial involvement in evaluating, 615–619 torts and conflict of laws, 591–595 punitive damages, torts, and conflict of laws, 595–596 questions, certified direct appeals as of right of questions certified by Federal or out of state court, 51–60 Kaye on, 746 questions of fact death penalty and review of, 524–526 as to obscenity, indecency, and immorality, 259–262, 275, 282 questions of law, jurisdiction over appeal by permission of civil cases involving. See civil cases involving questions of law that ought to be determined by Court of Appeals dissent by two justices, appeals as of right from decision of Apellate Division involving, 63–64 Rabin, Samuel, 5, 29 random drug (urine) testing of government employees, “new judicial federalism” in, 179–186 Ray, Laura Krugman, 754n5 Read, Susan Phillips, 4, 5, 37 real property. See also mortgages; religious institutions; zoning common law and, 106–107 conflict of laws, 599 cooperatives and condominiums, 407–413, 483 easements, 437–444 inverse condemnation, 413–415 landmark preservation, 385–388, 434–437 restrictive covenants, 444–447 right of first refusal regarding, 447–448 reformation of contracts, 454 regulated business, warrantless administrative inspection of, 190–191, 195–203

religious freedom and establishment, 328–406 adoption laws, 364–367 Amish children, education of, 345 distribution of literature, 393–396 flag salutes, 330, 392–393 Jehovah’s Witnesses, 330, 392–396, 665–667 judicial involvement in disputes between private parties, 367–376; confidential communication between clergy and communicant, breach of, 375–376; internal disputes of religious institutions, 369–375; Ketubah (Jewish marriage document), enforcement of, 367–369; “neutral principles of law” approach to, 367 judicial proceedings and, 396–398 lawyers, clergy serving as, 398 NY State Constitution, 329–330 NY State Constitutional Convention (1938), 328–333 parental religious preferences, 363–367 prisoners’ rights, 398–402 public street, permit required for religious worship in, 377–378 real property of religious institutions, regulation of. See under religious institutions schools and. See schools and religious freedom and establishment state action issues, 329–332 Sunday closing laws (“Blue Laws”), 402–406 taxation of religious institutions, 388–392 witnesses in judicial proceedings, 396–398 religious institutions judicial involvement in internal disputes of, 369–375 real property of: exemptions from real estate tax, 388–392; judicial involvement in internal disputes, 369–375; landmark preservation laws, 385–387; rent control laws, 387–388; zoning restrictions, 378–385

Subject Index 795 school advisory councils, inclusion of religious institutions on, 346–348 schools. See schools and religious freedom and establishment religious sacrilege as grounds for motion picture censorship, 232–239 rent control laws religious institutions and, 387–388 statutory interpretation of, 118–121 res gestae statements, 551 res judicata, 475, 600–604 resale price maintenance, 716–720 residency issues and voting, 696–699 restrictive covenants ancillary restrictive covenants under antitrust and competition law, 721–722 real property, 444–447 retrial for same offense, “new judicial federalism” regarding increased sentence on, 209–211 retrospective applicability of statutes, 113–118 reversals, jurisdiction over, 60–61 reviewability factors in civil cases involving questions of law that ought to be determined by Court of Appeals, 78–80 Rhode Island, “new judicial federalism” in, 157, 757n3, 757n6 right, appeals as of construction of State or Federal Constitution, decisions of appellate division regarding, 62–63 from decision of Apellate Division, 62–64 directly to Court of Appeals. See direct appeals as of right dissent by two justices on question of law, decision of Apellate Division involving, 63–64 right of first refusal regarding real property, 447–448 rights arbitration, 499–500 constitutional. See constitutional issues, and also specific constitutional protections, e.g. freedom of expression

contract rights of third party beneficiaries, 463 counsel. See counsel, right to prisoners’ rights regarding religion, 398–402 privacy, 471–475: abortion and. See “Justifiable Abortion Act” of 1970, constitutionality of, under abortion; closed containers, privacy interest in, 166–168 voting rights of students and institutionalized persons, 697–698 Rippey, Harlan Watson, 4, 21 Robinson-Patman Act of 1936, 704, 710 Rosenblatt, Albert M., 4, 36, 89 Ruger, William C., 11 Ruggles, Charles H., 6 Rule of Necessity in civil cases involving questions of law that ought to be determined by Court of Appeals, 80–81 Russell, Jane, 228 sacrilege as grounds for motion picture censorship, 232–239 Salken, Barbara C., 772n1 schools and religious freedom and establishment, 332–363 advisory councils, inclusion of religious institutions on, 346–348 curriculum requirements, 343–348 denominational schools: books loaned to, 340–341; disabled children in, provision of services to. See subhead “Kiryas Joel case,” this entry; labor relations at, 348–352; transportation of children to, 332–334 flag salutes, 330, 392–393 Kiryas Joel case, 352–363: facial neutrality of third statute belied by actual effect, 360–363; purpose and neutrality of initial statute, 354–359; relationship between community and local public school district, 353–354; second municipality provision only applicable to Kiryas Joel, 359–360 noncustodial parents, religious education rights of, 363–364

796

Subject Index

shools and religious freedom (continued ) prayer in school, 336–340 special school district, constitutionality of legislation creating. See subhead “Kiryas Joel case,” this entry student activities, 342–343 tripartite test (Lemon test), 341–342 withdrawal of children from public schools for religious instruction, 334–336 scienter requirements in obscenity cases, 278–281, 290–291 scientific evidence. See expert testimony and scientific evidence Scileppi, John F., 5, 25, 762n3 search and seizure, 163–203 administrative inspection of regulated business, warrantless, 190–191, 195–203 “basis of knowledge” test for hearsay information, 170–173 closed container, privacy interest in, 166–168 constitutional provisions regarding search and seizure, Federal and State, 163–164 dogs, use of, 177–179 frisking for weapons, grounds for, 186–187 good faith of police in validity of warrant, 174 “grabbable area” accessible to person arrested, right to search, 167, 169 hearsay information, “totality of the circumstances” approach to, 169–173 illegal arrest, statement made concomitant to, 187–190 limits on power of magistrate to issue search warrant based on police officer’s knowledge, 175–177 nonconsensual entry into a vehicle based solely on a stop for traffic violations, 174–175 obscene materials, warrants authorizing seizure of, 311–316 “open fields” doctrine as to aerial and ground observation, 190–195, 200–203 “search incident to arrest” rationale: “automobile exception” vs., 164–166; exi-

gent circumstances requirement, 168–169 “totality of the circumstances”: hearsay information, 169–173; limits on power of magistrate to issue search warrant based on police officer’s knowledge, 175–177 urine testing of government employees, 179–186 veracity test for hearsay information, 170–173 Sears, Charles Brown, 5, 21 Selden, Samuel L., 8 self-incrimination, Fifth Amendment right against, 538 separation agreements, 673–675. See also family law sexuality. See also nudity; obscenity, indecency, and immorality school curriculum and religious freedom and establishment issues, 343–346 sodomy, consensual, 162 shareholders derivative actions, 483–486 insolvent banks, liability for, 153–156 oppressive conduct and piercing the corporate veil, 489–492 shares restrictions on transfer of, 479–480 valuation of, 480–481 Sherman Act. See also antitrust and competition law “counterpart conformity,” 708–709 Donnelly Act compared, 700–702 price discrimination, 710–712 Simons, Richard D., 18, 31–32 Sixth Amendment right to jury trial, 538 Smith, Alfred E., 82, 220 Smith, George Bundy, 34 Smith, Robert S., 37 sodomy, consensual, 162 Sovern, Michael, 749n33 special proceeding, jurisdiction over stipulation as to new hearing in, 60–61 specificity

Subject Index 797 contracts, definiteness requirements for, 453–454 obscenity, indecency, and immorality laws, 269–271, 283, 285, 287–288, 290, 296 speech, freedom of. See freedom of expression standing of local government to sue State over education financing, 623–625 stare decisis, 94–98, 509–510, 513–514 state action “new judicial federalism,” 211–216; due process, 211–214; freedom of expression, 214–216 religious freedom and establishment, 329–332 State Labor Relations Act, 151–153 State of the Judiciary reports, 740–746 State Recovery Act, 144–145 Statute of Frauds and contracts, 450–452 statutes. See also Table of Statutes, for specific articles and sections common law and, 101–108 on conflict of laws, 586–587 constitutional validity, direct appeals as of right regarding, 39–40 judicial procedure under Article 78, 604–609 picketing, 728–739. See also picketing prior testimony, admissibility of, 549–550 statutory interpretation, 109–123 by administrative agencies, 110–113 common law and, 101–108 of criminal law, 121–123 legislative history used in: administrative agency interpretations, 110–113; retrospectivity of statute, 113–118 multiple approaches used by Court, 109 obscenity, indecency, and immorality, 297–301 plain meaning doctrine, 110–113 purpose of statute, determining, 118–121 retrospectivity, 113–118 Stevens, Harold A., 5, 29–30 students, voting rights of, 697–698 substantial evidence and “totality of the evidence,” 131–132

substantive due process doctrine, 124 successor corporation liability, 478–479 Sunday closing laws (“Blue Laws”), 402–406 supersession of district attorney by state attorney via governor’s executive order in death penalty cases, 530–535 taxation flip tax, 483 mortgages and, 433–434 religious institutions exempt from real estate tax, 388–392 technical requirements and election law, 693–696 Tenney, Nancy, 769n13 territories, vertical arrangements allocating, 712–714 testamentary contracts and conflict of laws, 598–599 Thacher, Thomas D., 4, 5, 21–22 Thaw, Harry K., 220 third party beneficiaries, contract rights of, 463 timeliness factors in civil cases involving questions of law that ought to be determined by Court of Appeals, 78 Titone, Vito J., 32–33 torts, 471–477 abortion, 651–658 common law, 103–106 conflict of laws, 589–596 contracts, tortious interference with, 464–465 medical, 651–658 privacy rights, 471–475 privity, 475–477 public policy and conflict of laws, 591–595 punitive damages and conflict of laws, 595–596 “totality of the circumstances” in format of case decisions, 131–132 search and seizure cases: hearsay information, 169–173; limits on power of magistrate to issue search warrant based on police officer’s knowledge, 175–177;

798 Subject Index “totality of the circumstances” (continued ) substantial evidence and “totality of the evidence,” 131–132 training and education in the law, 741, 743, 745–746 transfer of shares, restrictions on, 479–480 transportation of children to denominational schools, 332–334 trials increased sentence on retrial for same offense, “new judicial federalism” regarding, 209–211 jurisdiction over stipulation as to new trial, 60–61 Tropic of Cancer (Miller), 281–282 Twilight Girls (film), 251 unemployment religious educational institutions, unemployment insurance coverage denied to employees of, 348–350 tax revenues earmarked for issues of, 145–147 unemployment compensation, 148–151 unions. See labor relations urine testing of government employees, “new judicial federalism” in, 179–186 vagueness issues contracts, definiteness requirements for, 453–454 obscenity, indecency, and immorality laws, 269–271, 283, 285, 287–288, 290, 296 Van Voorhis, John, 24 “variable obscenity” and protection of minors, 302–305 variances in zoning, 420–425 veracity test for hearsay information, search and seizure cases, 170–173 vertical arrangements allocating territories, 712–714 Virginia, early motion picture censorship statute in, 220 visitation, 682–683 voting. See election law

Wachtler, Sol, 85, 88 biographical information, 4, 5, 18, 749n36 contributions as chief judge, 740–741 works of, 757n5 wages minimum wage laws, 141–144 unemployment compensation, 148–151 waivers arbitration, 499 pre-trial statements and right to counsel, 505, 508, 510, 512 Walker, John M., Jr., 752n1 warrants authorizing seizure of obscene materials, 311–316 The Well of Loneliness (Radclyffe Hall), 261 Wesley, Richard C., 5, 35–36 White, Stanford, 220 Wigmore, Dean, 560 wills and conflict of laws, 598–599 Wilson, Edmund, 272 Wilson, Malcolm, 748n12 Winn, Jeffrey M., 587 witnesses in judicial proceedings expert testimony and scientific evidence regarding, 572–575 propensity and character evidence, impeachment of defendant as witness with, 580–584 religious freedom and establishment issues, 396–398 women minimum wage law for, 141–144 public nudity of, 323–326 works to be considered as a whole for purposes of obscenity laws, 259 Wright, William R., 8–9 wrongful death action for stillbirth, 652 “wrongful life” actions, 652–656 zoning, 415–420 adult entertainment, 319–323 religious institutions, regulation of, 378–385 variances, 420–425

Table of Statutes

Federal statutes are located under the entry “Federal Acts.” State laws are located under their specific titles, e.g. “General Business Law” A Administrative Code: ch 8A . . . 434;Title 25, ch 31 . . . 434; § 12-301 (Collective Bargaining Law) . . . 494; § 25-301(b) . . . 434 Alcoholic Beverage Commission Law (ABC Law) . . . 322 B Banking Law §120 . . . 155 Blaine Amendment (NY State Constitution XI § 3) . . . 328, 330, 354, 762n1, 762n5 “Blue Laws” (Sunday closing laws) . . . 402–406 Buckley Act . . . 145–147 Business Corporation Law (BCL) . . . 482: Article 9 . . . 487; § 202(a)(10) . . . 485; § 623(a) . . . 489; § 623(e) . . . 480; § 623(h)(4) . . . 481; § 623(k) . . . 488; § 626 . . . 484; § 626(a) . . . 484; § 626(b) . . . 485; § 626(c) . . . 485; § 713 . . . 485; § 715(h) . . . 482; § 717 . . . 767n3; § 717(3) . . . 483; § 717(a) . . . 482, 485; § 901 . . . 488; § 907 . . . 488; § 1104-a . . . 480, 490; § 1118 . . . 480, 490

C Civil Practice Act (CPA): § 34 . . . 766n13; § 588(4) . . . 39; § 856-a . . . 729, 738; § 876-a . . . 728, 734, 776n10; § 1083 . . . 425; § 1161(3) . . . 677; § 1170-a . . . 676 Civil Procedure Law and Rules (CPLR) . . . 397, 549, 550: Article 45 . . . 764n17; Article 75 . . . 497; § 202 . . . 594, 613; § 208 . . . 612, 613; § 212(a) . . . 766n13; § 213(7) . . . 486; § 214-c . . . 612; § 214-c(2) . . . 612; § 214c(6) . . . 612; § 214(6) . . . 610, 611, 614; § 215(3) . . . 472; § 302 . . . 767n6; § 327 . . . 586; § 750 . . . 494; § 1209 . . . 689; § 4101 . . . 457; § 4505 . . . 375, 376, 584; § 5501(b) . . . 750n1; § 5522(a) . . . 127; § 5601(b)(2) . . . 39; § 5601(d) . . . 750n1; § 6201 . . . 501; § 6501 . . . 430; § 7502(a) . . . 501; § 7503 . . . 501; § 7503(b) . . . 497; § 7503(c) . . . 499; § 7511 . . . 497; § 7511(b) . . . 497; § 7511(b)(2) . . . 499; § 7511(b)(2)(4) . . . 497 Civil Rights Law (CRL): § 50 . . . 471, 474; § 50-a . . . 475; § 50-b . . . 475; § 50d . . . 475; § 50-e . . . 475; § 51 . . . 471,

800

Table of Statutes

474; § 79-a . . . 775n1; Civil Service Law (Taylor Law); Article 14 . . . 493; § 201(4) . . . 494; § 209 . . . 493 Comprehensive Motor Vehicles Reparations Act (Insurance Law Article 51, or No-Fault Law) . . . 493, 497 Convention on the Recognition and Enforcement of Foreign Arbitration Awards (1958) . . . 501 Court of Claims Act (CCA): § 10(4) . . . 613; § 10(6) . . . 613 Criminal Procedure Law (CPL) . . . 397: § 60.40 . . . 584; § 140.50(1) . . . 187; § 240.43 . . . 580; § 270.20(1)(f ) . . . 544; § 400.27 . . . 530, 544; § 570.10 . . . 550 D Decedent’s Estate Law (DEL) § 18 . . . 674, 776n5 Divorce Reform Law of 1966 . . . 676, 677 Domestic Relations Law (DRL): Article 5-A (Uniform Child Custody Jurisdiction Act) . . . 687; § 6(2) . . . 775n1; § 70 . . . 682, 691, 776n10; § 71 . . . 682; § 72 . . . 682, 683; § 110 . . . 690; § 111 . . . 364; § 111(1)(e) . . . 671; § 113 . . . 364, 366; § 117 . . . 691; § 121 . . . 588; § 170 . . . 676, 677; § 200 . . . 677; § 235 . . . 475; § 236 Part B(3) . . . 685; § 236(B)(1)(a) . . . 680; § 236(B)(5)(d)(10) . . . 129; § 236(B)(6)(1)(11) . . . 680; § 236(B)(6)(a) . . . 680; § 236(B)(6)(a)-(d) . . . 680; § 240 . . . 685, 776n10 Donnelly Act (GBL § 340) . . . 502, 703, 706, 725. See also Donnelly Act, in Subject Index DR § 2-108(A) . . . 467 E Education Law: Title I, Article 3, Part II . . . 252; § 202(1) . . . 699; § 1504, subd. 3 . . . 359 Election Law (EL): § 1-104(22) . . . 696, 697, 698, 699; § 1-106(2) . . . 694, 695;

§ 5-104 . . . 698; § 5-104(1) and (2) . . . 696; § 6-116 . . . 694; § 6-148 . . . 699; § 8-308(3) . . . 695; § 17-104(4) . . . 698; § 17-132(1) . . . 696, 698; § 330 . . . 609 Estates, Powers, and Trusts Law (EPTL): § 41.2 . . . 670; § 5-1.1 . . . 674, 776n5; § 5-1.1A . . . 674, 776n5; § 5-1.1-A(b)(1) . . . 674; § 5-1.1-A(e) . . . 775n3; § 5-1.1-A(e)(3) . . . 674; § 5-1.1(1)(3) . . . 674; § 5-1.1(d) . . . 775n3; § 7-1.10 . . . 587 Executive Law: § 6 . . . 89; § 63-d . . . 534; § 63(2) . . . 533, 534, 535; § 63(8) . . . 89; § 296 . . . 349 Executive Order No. 27 (9 NYCRR 5.27) . . . 532, 771n31 F Fair Trade Act . . . 719 Family Court Act (FCA): § 116(g) . . . 364, 690; § 413 . . . 688; § 413(1)(f ) . . . 689; § 611 . . . 687 Federal Acts: 9 USC § 301 . . . 501; 9 USC § 305 . . . 501; 15 USC § 1 . . . 710, 715 (See also Sherman Act, in Subject Index); 15 USC § 1-7 . . . 776n1; 15 USC § 17 . . . 704; 28 USC § 1738A (Parental Kidnapping Prevention Act or PKPA) . . . 687; 42 USC § 300-aa-1 et seq. . . . 125; AntiObscenity Act of 1873 . . . 258; Civil Rights Act of 1964 . . . 631, 774n7; Clayton Act . . . 704, 710; Fair Labor Standards Act § 8 . . . 613; Hatch Act . . . 496; Kidnapping Act . . . 538; McGuire Act . . . 719–720; Miller-Tydings Act . . . 719; National Industrial Recovery Act (NIRA) . . . 144–145; National Labor Relations Act (NLRA) . . . 151–153; No Child Left Behind law . . . 636; Norris-LaGuardia Act . . . 776n10; Parental Kidnapping Prevention Act (PKPA), 28 USC § 1738A . . . 687; Robinson-Patman Act of 1936 . . . 704, 710; Sherman Act (15 USC § 1) . . . 710, 715 (See also Sherman Act, in Subject Index)

Table of Statutes 801 Federal Constitution Art. VI, clause 2 . . . 125. See also constitutional issues, in Subject Index Federal Rules of Evidence . . . 547: Rule 404(a)(2) . . . 577; Rules 412-414 . . . 577; Rule 702 . . . 773n8; Rule 803 . . . 772n2; Rule 803(1) . . . 773n6; Rule 804 . . . 772n2, 772n4; Rule 807 . . . 548, 772n2 Florida State Constitution, Article 1 § 12 . . . 757n2 G General Business Law (GBL): Article 22 . . . 496; § 5-113 . . . 432; § 5-119 . . . 432; § 5-511 . . . 432; § 340 . . . 706, 725 (See also Donnelly Act, in Subject Index); § 340, subd. 2 . . . 702, 703; § 340, subd. 3 . . . 703; § 343 . . . 713; § 369-a . . . 720; § 369-a-e . . . 719 General Construction Law . . . 417 General Corporations Law: § 61 . . . 484; § 61a . . . 113, 115; § 61-b . . . 114–115 General Municipal Law (GML): Article 5-K . . . 434; § 96-a . . . 434; § 205 . . . 105; § 205-a . . . 105–106; § 205-e . . . 105–106; § 207-a . . . 105; § 239-m(5) . . . 420 General Obligations Law (GOL): § 5701 . . . 450, 452; § 5-701(a) . . . 451; § 51401 . . . 586, 587; § 5-1402 . . . 586, 587; § 9-103 . . . 752n8; § 11-106 . . . 105, 106; § 17-105(1) . . . 432; § 17-107(2)(b) . . . 432 I Insurance Law: Article 51 (Comprehensive Motor Vehicles Reparations Act or NoFault Law) . . . 493, 497; Article 71 . . . 488; § 675, subd. 2 . . . 495 Inter-American Convention on International Commercial Arbitration (1975) . . . 501 J Judiciary Law: § 2 . . . 39; § 35-b . . . 535, 536, 537; § 35-b, subds. 3, 4 . . . 771n34; § 90(10) . . . 475; § 210(2) . . . 771n33; § 214 . . . 88; § 215 . . . 88

Justifiable Abortion Act of 1970 (Penal Law § 125.05) . . . 641, 643, 651. See also under abortion, in Subject Index L Labor Law: Article 18 . . . 148; Article 20 . . . 153; Article 22-A . . . 777n2; § 700 . . . 152 Legislative Law §70 . . . 88 M Municipal Home Rule Law . . . 424 N New York State Constitution: I § 1 . . . 349; I § 2 . . . 524; I § 3 . . . 328, 397; I § 6 . . . 50–51, 503, 524; I § 8 . . . 214, 215, 216, 229, 308, 317, 327; I § 12 . . . 164, 173, 178, 189, 192, 194, 200, 201, 314, 759n18; I § 14 . . . 101; I § 16 . . . 589; I § 17 . . . 699; II § 4 . . . 696, 698; III § 6 . . . 85, 524; IV § 3 . . . 88, 533; IX . . . 332; IX § 3 . . . 330, 331; IX § 4 . . . 762n1; VI § 1[b] . . . 39; VI § 2 . . . 1, 748n5, 748n8, 760n26, 766n2; VI § 2a . . . 128; VI § 3 . . . 621; VI § 3[a] . . . 38; VI § 3[b][2] . . . 39; VI § 3[b][3] . . . 38; VI § 3[b][5] . . . 38; VI § 3[b][6] . . . 38; VI § 3[b][7] . . . 38; VI § 5 . . . 748n7; VI § 7 . . . 748n6; VI § 8 . . . 2; VI § 19 . . . 747n3; VI § 20 . . . 747n3; VI § 22 . . . 41–45, 749n62; VI § 22[d] . . . 39; VI § 23 . . . 41–45; VI § 24 . . . 41–45; VI § 30 . . . 88; VI § 32 . . . 328, 364; VII . . . 82, 86; VII § 1 . . . 83, 85, 88; VII § 4 . . . 85, 88, 751n1; VIII § 1 . . . 623; VIII § 4 . . . 623; VIII § 7 . . . 153, 154, 623; X § 1 . . . 488; XI . . . 615, 624, 626, 627; XI § 1 . . . 615, 623, 699; XI § 1, subsection 1 . . . 774n2; XI § 2 . . . 699; XI § 3 (Blaine Amendment) . . . 328, 330, 354, 762n1, 762n5; XI § 4 . . . 627; XII . . . 146; XII § 1 . . . 146, 147, 188; XII § 2 . . . 146; XVI § 1 . . . 328, 388, 389; XVII § 1 . . . 657; XVII § 3 . . . 657, 683

802 Table of Statutes No-Fault Law (Comprehensive Motor Vehicles Reparations Act, Insurance Law Article 51) . . . 493, 497 Not-for-Profit Corporation Law (N-PCL): Article 9 . . . 487; § 717 . . . 767n3; § 901 . . . 488 O Omnibus Workers Compensation Reform Act of 1996 . . . 115 P Penal Law: § 10.00 . . . 584; § 15.20 . . . 708; § 20 . . . 543; § 35.15 . . . 578; § 40.00 . . . 577; § 40.05 . . . 577; § 43 . . . 265; § 125.05 . . . 641 (See also “Justifiable Abortion Act” under abortion, in Subject Index); § 125.05, subd. 3 . . . 643, 644, 651; § 125.27 . . . 530, 540, 541, 542, 543; § 125.27(1)(a)(viii) . . . 543; § 125.30 . . . 527; § 125.35 . . . 527; § 160.10[1] . . . 123; § 235.00 . . . 294, 296, 297, 298, 299, 300; § 235.00, subd. 1 . . . 296, 299, 301; § 235.15 . . . 301; § 235.15(2) . . . 301; § 235.22 . . . 307, 308, 762n4; § 245.01 . . . 323, 324, 325, 326, 327; § 245.02 . . . 326, 327; § 263.15 . . . 305, 306, 307, 762n4; § 317 . . . 254, 256, 257, 761n1; § 421 . . . 753n3; § 484 . . . 287; § 484h . . . 283, 285, 287, 302, 303, 304, 305; § 484-i . . . 303, 304, 305; § 1140 . . . 265; § 1140-b . . . 247; § 1141 . . . 246, 247, 248, 259, 277, 278, 279, 280, 283, 290, 291, 293, 294; § 1141, subd. 1 . . . 258, 271, 272; § 1141, subd. 2 . . . 268; § 1530, subd. 2 . . . 265; § 1533, subd. 1 . . . 265 Personal Property Law § 176 . . . 479 Public Health Law § 230(10)(g) . . . 475 Public Officers Law: § 3(1) . . . 696; § 30(1)(d) . . . 696; § 41 . . . 699; § 89(2) . . . 475

R Real Property Actions and Proceedings Law (RPAPL): § 254, subds. 2 and 7 . . . 431; § 311 . . . 766n13; § 501 . . . 766n13; § 511 . . . 766n13; § 926 . . . 434; § 1371 . . . 428; Rent Stabilization Law . . . 426; Rhode Island State Constitution § 24 . . . 757n3 S Social Services Law § 373, subd. 7 . . . 364 Social Welfare Law § 373 . . . 365 State Labor Relations Act . . . 151–153 State Recovery Act . . . 144–145 Sunday closing laws (“Blue Laws”) . . . 402–406 T Taylor Law. See Civil Service Law Town Law: § 267-b(3) . . . 420, 421; § 267(a)(4) . . . 417; § 277(1) . . . 417; § 281 . . . 417; § 281(d) . . . 417 U Uniform Child Custody Jurisdiction Act (DRL Art. 5-A) . . . 687 Uniform City Court Act § 2 . . . 39 Uniform Commercial Code (UCC): § 1-103 . . . 452; § 1-105(1) . . . 587; § 1-105(2) . . . 586; § 2-201 . . . 452; § 2-201(1) and (2) . . . 451; § 2-725 . . . 613; § 8-204 . . . 479 Uniform District Court Act § 102 . . . 39 Uniform Trade Secrets Act . . . 767n7 V Village Law: Article 2 . . . 763n11; § 7-704 . . . 418; § 771 . . . 418 W Workers Compensation Law . . . 115–116: § 110-a . . . 475; § 2, subds. 4 and 5 . . . 105

Table of Cases

Abbott v. Herring, 62 N.Y.2d 1028 (1984), 439 Abrahams; People v., 40 N.Y.2d 277 (1976), 403, 405 Abrams v. Allen, 297 N.Y. 52 (1947), 487 Abrams v. Donati, 108 A.D.2d 704 (1985), aff’d, 66 N.Y.2d 951 (1985), 484 Abrams v. New York Transit Auth., 39 N.Y.2d 990 (1976), 604 Abronovitz; People v., 31 N.Y.2d 160 (1972), 311 Acevedo; People v., 69 N.Y.2d 478 (1987), 604 Acme Mkts., Inc.; People v., 37 N.Y.2d 326 (1975), 404 Acres Storage Co. v. Chu, 73 N.Y.2d 914 (1989), 60 Adams v. New York City Transit Auth., 88 N.Y.2d 116 (1996), 91 Adams; People v., 176 N.Y. 351 (1903), aff’d sub nom. Adams v. New York, 192 U.S. 585 (1904), 759n18 Adirondack League Club v. Sierra Club, 92 N.Y.2d 591 (1998), 98, 102, 104 Adkins v. Children’s Hosp. of Dist. of Columbia, 261 U.S. 525 (1923), 141 Adkinson; People v., 88 N.Y.2d 561 (1996), 562

Adler v. Atlas Brick Corp., 283 N.Y. 64 (1940), 428 Affroniti v. Crosson, 95 N.Y.2d 713 (2001), 79 Agar v. Orda, 264 N.Y. 248 (1934), 103 Agostini v. Felton, 521 U.S. 203 (1997), 363 Agresta, Matter of, 64 N.Y.2d 327 (1985), 48 A.G. Ship Maint. Corp. v. Lezak, 69 N.Y.2d 1 (1986), 89 Aguilera; People v., 82 N.Y.2d 23 (1993), 603 Agurs; United States v., 427 U.S. 97 (1976), 206 Aho, Matter of, 39 N.Y.2d 241 (1976), 59–60 Aimcee Wholesale Corp. v. Tomar Prods., Inc., 21 N.Y.2d 621 (1968), 496, 701, 709 Albala v. City of New York, 54 N.Y.2d 269 (1981), 97 Albano v. Hammond, 267 N.Y. 590 (1935), 60 Albany-Plattsburgh United Corp. v. Bell, 85 N.Y.2d 948 (1995), 481, 489 ALH Props. Ten, Inc. v. 306-100th St. Owners Corp., 86 N.Y.2d 643 (1995), 413 Alison D. v. Virginia M., 77 N.Y.2d 651 (1991), 682, 691 Allen v. Biltmore Tissue Corp., 2 N.Y.2d 534 (1957), 479–480 Allen v. Howe, 84 N.Y.2d 665 (1999), 63

804

Table of Cases

Alleva v. Tomatores, 254 A.D. 526 (1938), aff’d no op., 279 N.Y. 770 (1939), 442 Allied Chem v. Niagra Mohawk Power Corp., 72 N.Y.2d 271 (1988), cert. denied, 488 U.S. 1005 (1989), 602 All Season Resorts, Inc. v. Abrams, 68 N.Y.2d 81 (1986), 408 Allstate Ins. Co. v. Hague, 499 U.S. 302 (1981), 593 Allstate Ins. Co. (Stolarz), Matter of, 81 N.Y.2d 219 (1993), 596 Alpert v. 28 Williams St. Corp., 63 N.Y.2d 557 (1984), 487, 488, 753n3 Alston v. New York, 97 N.Y.2d 159 (2001), 613 Altz v. Leiberson, 233 N.Y. 16 (1922), 106 Alvarez; People v., 70 N.Y.2d 375 (1987), 203, 760n33 American Broad. Cos. v. Wolf, 52 N.Y.2d 394 (1981), 466 American Comm. on Maternal Welfare v. Mangan, 257 A.D. 570 (3d Dept. 1939), aff’d, 283 N.Y. 551 (1940), 228 American Ins. Co. v. Messenger, 43 N.Y.2d 184 (1977), 501 American List Corp. v. U.S. News and World Report, Inc., 75 N.Y.2d 38 (1989), 459 Amodio v. Amodio, 70 N.Y.2d 5 (1987), 481, 679 Amusement Bus. Underwriters v. American Int’l Group, 66 N.Y.2d 878 (1985), 76–77 Anastasoff v. United States, 222 F.3d 898 (8th Cir. 2000), vacated en banc, 235 F.3d 1054 (8th Cir. 2000), 754n6 Anderson v. International Minerals & Chem. Corp., 295 N.Y. 343 (1946), 488 Andover Realty v. Western Elec., 64 N.Y.2d 1006 (1985), 597 Angelin v. Angelin, 80 N.Y.2d 553 (1992), 91, 678 Angelo; People v., 88 N.Y.2d 217 (1996), 570 Angelos v. Mesevich, 289 N.Y. 498 (1943), rev’d sub nom. Cafeteria Employees Union, Local 302 v. Angelos, 320 U.S. 293 (1943), 736, 738, 777n2

Anheuser-Busch, Inc. v. Abrams, 71 N.Y.2d 327 (1988), 712 Application of. See party name AP Propane, Inc. v. Sperbeck, 77 N.Y.2d 886 (1991), 451 Arata; People v., 255 N.Y. 374 (1931), 523 Arbergast v. Board of Educ., 65 N.Y.2d 161 (1985), 107 Arcara, People ex rel. v. Cloud Books, Inc., 65 N.Y.2d 324 (1985), rev’d, 478 U.S. 697 (1986), on remand, 68 N.Y.2d 553 (1986), 160, 217, 316, 319, 327, 759n19 Arnold; People v., 34 N.Y.2d 548 (1974), 551 Arthur; People v., 22 N.Y.2d 325 (1968), 505, 769n11 Arverne Bay Constr. Co. v. Thatcher, 278 N.Y. 222 (1938), 423, 765n6 Asheroff v. Board of Educ., 25 N.Y.2d 721 (1969), 39 Ashland Mgmt., Inc. v. Janien, 82 N.Y.2d 395 (1993), 459–460, 468 Asian Americans For Equality v. Koch, 72 N.Y.2d 121 (1985), 416, 418 A.S. Rampell, Inc. v. Hyster Co., 3 N.Y.2d 369 (1957), 465 Associated Newspapers v. Phillips, 294 F. 845 (2d Cir. 1923), 466 Associated Teachers of Huntington, Inc. v. Board of Educ. Union Free Sch. Dist. No. 3, Town of Huntington, 33 N.Y.2d 229 (1973), 462, 495 Atkin v. Union Processing Corp., 59 N.Y.2d 919 (1983), cert. denied, 465 U.S. 1038 (1983), 716 Atkinson v. City of New York, 96 N.Y.2d 809 (2001), 125 Atlantic Cement Co. v. Murphy, 30 A.D.2d 456 (1968), aff’d no op., 28 N.Y.2d 502 (1971), 434 Attorney Gen. of the State of New York v. Firetog, 94 N.Y.2d 477 (2000), 93 Auerbach v. Bennett, 47 N.Y.2d 619 (1979), 481–482, 486 Auerbach v. Retoloatta, 765 F.2d 350 (2d Cir. 1985), 698

Table of Cases 805 Auster, Application of, 198 Misc. 1055 (Sup. Kings 1050), aff’d sub nom. Auster v. Weberman, 278 A.D. 656 (2d Dept. 1951), appeal dismissed, 342 U.S. 884 (1951), 363, 364 Auten v. Auten, 308 N.Y. 155 (1954), 588 Avant; People v., 33 N.Y.2d 265 (1973), 51 Avco Fin. Serv. of N.Y., Inc.; New York v., 50 N.Y.2d 383 (1980), 458 Avitzur v. Avitzur, 58 N.Y.2d 108 (1983), cert. denied, 464 U.S. 817 (1983), 367 Babcock v. Jackson, 12 N.Y.2d 473 (1963), 589 Bachert; People v., 69 N.Y.2d 593 (1987), 92 Bachman v. Mejias, 1 N.Y.2d 575 (1956), 669, 683 Bader Bldgs. v. Abrams, 70 N.Y.2d 45 (1987), 412 Bagley; United States v., 473 U.S. 667 (1985), 206 Bailey, Matter of, 67 N.Y.2d 61 (1986), 50 Bajak Int’l Corp. v. Mast Indus., Inc., 73 N.Y.2d 113 (1984), 450, 455 Bakery & Pastry Drivers Union & Helpers Local No. 802 v. Wohl, 313 U.S. 548 (1941), 777n6 Balti; People v., 54 N.Y.2d 137 (1981), 520 Bankers Trust Co. v. Board of Managers of the Park 900 Condo., 81 N.Y.2d 1033 (1993), 412 Bank of Manhattan Trust Co. v. 571 Park Ave. Corp., 263 N.Y. 573 (1935), 431 Bank of Montreal v. Predovan, 71 N.Y.2d 844 (1988), 76 Banque Worms v. Bank Am. Int’l, 77 N.Y.2d 362 (1991), 55 Barber; People v., 289 N.Y. 378 (1943), 158, 394 Barker v. Parmossa, Inc., 39 N.Y.2d 926 (1976), 106–107 Barnes (Council 82, AFSCME), Matter of, 94 N.Y.2d 719 (2000), 498 Barolomeo; People v., 53 N.Y.2d 225 (1981), 96

Barr v. Wackman, 36 N.Y.2d 371 (1975), 482, 484 Barrett v. Scaringe, 65 N.Y.2d 946 (1985), 694 Bartle v. Home Owners Coop., Inc., 309 N.Y. 103 (1955), 490 Bartolomeo; People v., 53 N.Y.2d 225 (1981), 510 Basso v. Miller, 40 N.Y.2d 233 (1976), 106 Bast v. Rossoff, 91 N.Y.2d 723 (1998), 689 Bata v. Bata, 304 N.Y. 51 (1952), 66 Battalla v. New York, 10 N.Y.2d 237 (1961), 100 Bayswater Health Related Facility v. Karagheuzoff, 37 N.Y.2d 408 (1975), 107 Bayswater Realty & Capital Corp. v. Planning Bd. of the Town of Lewisboro, 76 N.Y.2d 460 (1990), 417 Bay View Towers Apt., Inc. v. State Tax Comm’n, 40 N.Y.2d 856 (1976), 433–434 Beck v. Sheldon, 259 N.Y. 2087 (1932), 431 Becker v. Schwartz, 46 N.Y.2d 401 (1978), 653 Bedford, Town of v. Village of Mount Kisco, 33 N.Y.2d 178 (1973), 418 Beer Garden v. New York State Liquor Auth., 79 N.Y.2d 266 (1992), 90 Bellanca v. New York State Liquor Auth., 50 N.Y.2d 524 (1980), rev’d, 452 U.S. 714 (1981), on remand, 54 N.Y.2d 228 (1981), 166, 308, 309–310, 327, 759n20 Bella Vista Apt. Co. v. Bennett, 89 N.Y.2d 465 (1997), 423 Bellows; People v., 281 N.Y. 67 (1939), 729 Beloff v. Consolidated Edison Co. of N.Y., 300 N.Y. 411 (1949), 488 Belton; People v., 50 N.Y.2d 447 (1980), rev’d, 453 U.S. 454 (1981), on remand, 55 N.Y.2d 49 (1982), 164, 166 Benevento; People v., 91 N.Y.2d 708 (1998), 208 Benn; People v., 68 N.Y.2d 105 (1986), 206 Bennett v. Jeffreys, 40 N.Y.2d 543 (1976), 683, 684 Berenson v. Town of New Castle, 38 N.Y.2d 102 (1975), 418 Berg v. Marsh, 293 N.Y. 766 (1944), 60

806

Table of Cases

Berg; People v., 241 A.D. 543, aff’d 269 N.Y. 514 (1935), 263 Berger, Matter of, 81 A.D.2d 584 (1981), 497 Berkey v. Third Ave. Ry. Co., 244 N.Y. 84 (1926), 490 Berman v. Berman, 72 A.D.2d 425 (1980), aff’d, 52 N.Y.2d 723 (1980), 677 Bethel v. New York City Transit Auth., 92 N.Y.2d 348 (1998), 91, 107 Betts; People v., 70 N.Y.2d 289 (1987), 583 Betz v. Horr, 276 N.Y. 83 (1937), 689 Beutler v. Maynard, 80 A.D.2d 982 (1981), aff’d no op., 56 N.Y.2d 538 (1982), 439 Beverley v. Choice’s Women’s Med. Ctr., Inc., 78 N.Y.2d 745 (1991), 472 Bickwid v. Deutsch, 87 N.Y.2d 862 (1995), 74 Bier Pension Plan Trust v. Schneierson, 74 N.Y.2d 312 (1989), 431 Bigelow; People v., 66 N.Y.2d 417 (1985), 758n16 Billy v. Consolidated Mach. Tool Corp., 51 N.Y.2d 152 (1980), 478, 490, 492 Bing; People v., 76 N.Y.2d 331 (1990), 96, 511, 512 Bing v. Thunig, 2 N.Y.2d 665 (1957), 97 Binghampton Civil Serv. Forum v. City of Binghampton, 44 N.Y.2d 23 (1978), 125, 496 Binns v. The Vitagraph Co., 210 N.Y. 51 (1913), 93 Biondi v. Beekman Hill House Apartment Corp., 94 N.Y.2d 659 (2000), 412, 595 Blackburne (Governor’s Office of Employee Relations), Matter of, 87 N.Y.2d 660 (1996), 496 Blake v. Blake Agency, Inc., 107 A.D.2d 139 (1985), 490 Blamowski (Munson Transp.), Matter of, 91 N.Y.2d 190 (1997), 499 Blanco v. American Tel. & Tel. Co., 90 N.Y.2d 757 (1997), 612 Bland v. Board of Elections, 65 N.Y.2d 962 (1985), 693 Bliss v. Ach, 56 N.Y.2d 995 (1982), 685

Board of Educ. v. Dover-Wingdale Teachers’ Ass’n, 61 N.Y.2d 913 (1984), 500 Board of Educ. v. Watertown Educ. Ass’n, 93 N.Y.2d 132 (1999), 495 Board of Educ., Levittown Union Free Sch. Dist. v. Nyquist, 57 N.Y.2d 27 (1982), 130, 624 Board of Educ. of Cent. Sch. Dist. No. 1, Towns of East Greenbush Rensselaer County, et al. v. Allen, 20 N.Y.2d 109 (1967), 341 Board of Educ. of City of New York v. Allen, 6 N.Y.2d 127 (1959), 617 Board of Educ. of the Husdon City Sch. Dist. v. Sargent, Webster, Crenshaw, and Folley, 71 N.Y.2d 21 (1987), 610 Board of Educ. of the Kiryas Joel Vill. Sch. Dist. v. Grumet, 512 U.S. 687 (1994), 358, 359 Board of Educ. of the Monroe-Woodbury Sch. Dist. v. Wieder, 72 N.Y.2d 174 (1988), 353, 357 Board of Managers of Vill. House v. Frazier, 55 N.Y.2d 991 (1982), 410 Bocre Leasing Corp. v. General Motors Corp., 84 N.Y.2d 685 (1995), 54, 55 Boden v. Boden, 42 N.Y.2d 210 (1977), 674, 688 Bodie; People v., 16 N.Y.2d 275 (1965), 505 Boerne, City of v. Flores, 521 U.S. 507 (1997), 351 Boggs v. New York City Health & Hosp. Corp., 70 N.Y.2d 972 (1988), 74 Bohnke; People v. 287 N.Y. 154 (1941), cert. denied, 316 U.S. 667 (1942), 394 Bolden; People v., 81 N.Y.2d 146 (1993), 94 Bonnie Briar Syndicate, Inc. v. Town of Mamaroneck, 94 N.Y.2d 96 (1999), 437 Bookcase, Inc. v. Broderick, 18 N.Y.2d 71 (1966), 304 Bookcase, Inc.; People v., 14 N.Y.2d 409 (1964), 283, 287, 303 A Book Named ‘John Cleland’s Memoirs of a Woman of Pleasure’ v. Attorney Gen. of the

Table of Cases 807 Commonwealth of Mass., 383 U.S. 413 (1965), 288, 292, 305 Boomer v. Atlantic Cement Co., 26 N.Y.2d 219 (1970), 104 Boryszewski v. Brydges, 37 N.Y.2d 361 (1975), 606 Bouie v. City of Columbia, 378 U.S. 347 (1964), 708 Bourjois Sales Corp. v. Dorfman, 273 N.Y. 167 (1937), 719 Bowers v. Hardwick, 478 U.S. 186 (1986), 162 Brady v. Brady, 64 N.Y.2d 339 (1985), 677 Brady v. Maryland, 373 U.S. 83 (1963), 206 Braiman v. Braiman, 44 N.Y.2d 584 (1978), 685 Braschi v. Stahl Assocs. Co., 74 N.Y.2d 201 (1989), 109, 118 Braunfeld v. Brown, 366 U.S. 599 (1961), 404 B.R. DeWitt, Inc. v. Hall, 19 N.Y.2d 141 (1967), 600 Breed v. Barton, 54 N.Y.2d 82 (1981), 488 Brensic; People v., 70 N.Y.2d 9 (1987), 553, 557 Brescia v. Fitts, 56 N.Y.2d 132 (1982), 675, 688 Bressler v. Holt-Harris, 37 A.D.2d 898 (1971), aff’d no op., 30 N.Y.2d 529 (1972), 697 Brick v. Cohn-Hall-Marx Co., 27 N.Y. 259 (1937), 610 Brink v. Stratton, 176 N.Y. 150 (1903), 330, 396 Brinkley v. CUNY, 92 A.D.2d 805 (1983), 94 Bristol-Meyers Co. v. Picker, 302 N.Y. 61 (1950), 777n6 Broderick v. Aaron, 268 N.Y. 260 (1935), 154, 156 Broderick v. Adamson (Gordon), 270 N.Y. 228 (1936), 154–155 Broderick v. Adamson (Robert), 27 3 N.Y. 628 (1937), 155 Broderick v. Weinsier, 278 N.Y. 419 (1938), 155 Brookhaven, Town of v. Smith, 188 N.Y. 74 (1907), 102 Brooklyn Trust Co. v. Fairfield Gardens, Inc., 260 N.Y. 16 (1932), 432

Brosnan; People v., 32 N.Y.2d 254 (1973), 758n14 Brothers v. Florence, 95 N.Y.2d 90 (2000), 611 Brown v. Board of Educ., 347 U.S. 483 (1954), 357, 617 Brown v. City of New York, 60 N.Y.2d 893 (1983), 70 Brown v. Kingsley Books, 1 N.Y.2d 177, aff’d, 354 U.S. 436 (1957), 276, 318, 319 Brown v. McGinnis, 10 N.Y.2d 531 (1962), 398 Brown; People v., 26 N.Y.2d 88 (1970), 553, 773n5 Brown; People v., 80 N.Y.2d 729 (1993), 560 Brown Bros. Elec. Contractors, Inc. v. Beam Constr. Co., 41 N.Y.2d 397 (1977), 456 Buck v. Bell, 274 U.S. 200 (1927), 242 Buck v. Hunter. See Fay, Matter of Buckley v. City of New York, 56 N.Y.2d 300 (1982), 104 Buffalo, City of v. Cargill Inc., 44 N.Y.2d 7 (1978), 434 Buffalo Elec. Co. v. New York, 14 N.Y.2d 453 (1964), 59, 60 Buie; People v., 86 N.Y.2d 501 (1995), 561 Bulova Watch Co. v. Celotex Corp., 46 N.Y.2d 606 (1979), 613 Bunim v. Bunim, 298 N.Y. 391 (1949), 686 Burchell’s Estate, In re, 299 N.Y. 351 (1949), 92, 130 Burger; People v., 67 N.Y.2d 338 (1986), rev’d, 382 U.S. 691 (1987), 196 Burke v. Crosson, 85 N.Y.2d 10 (1995), 77 Burke; People v., 243 A.D. 83 (1934), aff’d, 267 N.Y. 571 (1935), 265 Burns v. Burns, 84 N.Y.2d 369 (1994), 679, 681 Burns Jackson Miller Summit & Spitzer v. Lindner, 59 N.Y.2d 314 (1983), 463 Burr v. Eveready Ins. Co., 92 N.Y.2d 2041 (1999), 64 Burrows, Matter of, 259 N.Y. 449 (1932), 126–127 Busch Jewelry Co. v. United Retail Employees’ Union, 281 N.Y. 150 (1939), 728

808 Table of Cases Business Elecs. Corp. v. Sharp Elecs. Corp., 485 U.S. 717 (1988), 777n5 Butler v. Michigan, 352 U.S. 380 (1957), 271–272 Butler; United States v., 297 U.S. 1 (1936), 755n1 Butler v. Wilson, 415 U.S. 953 (1974). See Johnson v. Rockefeller Byrn v. New York City Health and Hosps. Corp., 38 A.D.2d 316 (2d Dept. 1972), aff’d, 31 N.Y.2d 194 (1972), 641, 650 Byrne, Matter of, 47 N.Y.2d (b) (1978), 46 Caesar v. Chemical Bank, 66 N.Y.2d 698 (1985), 474 Cafeteria Employees Union, Local 302 v. Angelos. See Angelos v. Mesevich Cahill; People v., 2 N.Y.3d 14 (2003), 130, 544 Calamia v. Goldsmith Bros., 299 N.Y. 798 (1949), 719, 777n6 Calbud; People v., 49 N.Y.2d 389 (1980), 301 Caldwell v. Caldwell, 208 N.Y. 146 (1948), 676 Calhoun; People v., 49 N.Y.2d 398 (1980), 164 California Public Employees Ret. Sys. v. Shearman & Sterling, 95 N.Y.2d 427 (2000), 462, 476 Calvano; People v., 30 N.Y.2d 199 (1972), 577 Camarella v. East Irondequoit Central Sch. Bd., 34 N.Y.2d 139 (1974), 92 Campagna v. Shaffer, 73 N.Y.2d 237 (1989), 63, 417 Campaign for Fiscal Equity, Inc. v. New York, 86 N.Y.2d 307 (1995), 130, 623, 628 Campaign for Fiscal Equity, Inc. v. New York, 100 N.Y.2d 893 (2003), 125, 130, 628, 631, 632 Campbell v. Smith, 297 A.D. 2d 502 (2002), 433 Cantwell v. Connecticut, 310 U.S. 296 (1940), 328, 393 Capital Tel. Co. v. Pattersonville Tel. Co., 56 N.Y.2d 11 (1982), 79–80 Cappiello v. Cappiello, 66 N.Y.2d 107 (1985), 678

Caprara v. Chrysler Corp., 52 N.Y.2d 114 (1981), 567 Carmer, Estate of, Matter of, 71 N.Y.2d 781 (1988), 408 Carmona; People v., 82 N.Y.2d 603 (1993), 584 Carruba; People v., 46 N.Y.2d 658 (1979), 45 Carter v. Carter Coal Co., 298 U.S. 238 (1936), 755n1 Caruso v. Ward, 72 N.Y.2d 432 (1988), 179 Cassano v. Cassano, 85 N.Y.2d 649 (1995), 689 Cassano v. Merriewold Club, Inc., 24 A.D.2d 819 (1965), aff’d no op., 19 N.Y.2d 640 (1967), 441 Caviness; People v., 38 N.Y.2d 227 (1975), 772n3 Cawley v. SCM Corp., 72 N.Y.2d 465 (1988), 481 Central Gen. Hosp. v. Chubb Group of Ins. Cos., 90 N.Y.2d 195 (1997), 92 Central Gen. Hosp. v. Hanover Ins. Co., 49 N.Y.2d 950 (1980), 494 Central Hanover Bank & Trust Co. v. Eisner, 276 N.Y. 121 (1937), 430 Central Hanover Bank & Trust Co. v. Kraft, 273 N.Y. 634 (1937), reargument denied, 274 N.Y. 489 (1937), 430 Chamberlain v. Spargur, 86 N.Y. 603 (1881), 90 Chambers; People v., 92 N.Y.2d 417 (2002), 128 Chaplinsky v. New Hampshire, 315 U.S. 568 (1941), 378 Chase Nat’l Bank of the City of New York, In re, 283 N.Y. 350 (1940), 135 Chase Scientific Research, Inc. v. NIA Group, Inc., 96 N.Y.2d 20 (2001), 611 Chelrob v. Barrett, 293 N.Y. 442 (1944), 487 Chemical Bank v. Levine, 91 N.Y.2d 738 (1998), 412 Chittick v. Thompson Hill Dev. Corp., 259 N.Y. 223 (1932), 125 Christian v. Christian, 42 N.Y.2d 63 (1977), 673

Table of Cases Christovao v. Unisul-Uniao, 41 N.Y.2d 338 (1977), 63 Church of St. Paul and St. Andrew v. Barwick, 67 N.Y.2d 510, cert. denied, 479 U.S. 985 (1986), 386, 436 Cipriano v. Glen Cove Lodge #1458 B.P.O.E., 1 N.Y.3d 53 (2003), 447 Citibank, N.A. v. Plapinger, 66 N.Y.2d 90 (1985), 484 City Ass’n at Roslyn Country Club v. Levitt and Sons, Inc., 7 N.Y.2d 894 (1960), 444 City of. See name of city City Sch. Dist. v. Tonawanda Educ. Ass’n, 63 N.Y.2d 846 (1984), 500 Civil Serv. Employees Ass’n v. Newman, 61 N.Y.2d 641 (1983), 60 Clark, Matter of, 21 N.Y.2d 478 (1968), 598 Clark v. Cuomo, 66 N.Y.2d 185 (1985), 693 Clark v. New York, 15 N.Y.2d 990 (1965), 438 Class; People v., 63 N.Y.2d 491 (1984), rev’d sub nom. New York v. Class, 475 U.S. 106 (1986), on remand, 67 N.Y.2d 431 (1986), 174 Claudio; People v., 59 N.Y.2d 556 (1983), 519 Claudio; People v., 83 N.Y.2d 76 (1993), 209, 519 Claudio v. Scully, 982 F.2d 798 (2d Cir. 1992), 519 Claytor v. Wilmot & Cassidy Inc., 34 N.Y.2d 992 (1974), 61 Coane v. American Drilling Co., 298 N.Y. 197 (1948), 484 Cobble Hill Nursing Home, Inc. v. Henry & Warren Corp., 74 N.Y.2d 475 (1989), 453 Cobert v. New York, 15 N.Y.2d 1020 (1965), rev’d, 388 U.S. 443 (1967), 295 Cochran v. Louisiana State Bd. of Educ., 281 U.S. 370 (1929), 329 Codey, Matter of, 82 N.Y.2d 521 (1993), 74 Codling v. Paglia, 32 N.Y.2d 330 (1973), 93, 752n5 Cohen, Matter of, 7 N.Y.2d 488 (1960), aff’d. sub nom. Cohen v. Hurley, 366 U.S. 117 (1961), rehearing denied, 370 U.S. 857

809

(1963), rehearing denied, 374 U.S. 870 (1964), 50 Cohen, Matter of, 74 N.Y.2d 272 (1989), 49 Cohen v. Board of Appeals of the Vill. of Saddle Rock, 100 N.Y.2d 395 (2003), 423 Cohen v. Cocoline Prods., Inc., 309 N.Y. 119 (1955), 487 Cohen v. Hallmark Cards, 45 N.Y.2d 493 (1978), 72 Cohen v. Lord Day & Lord, 75 N.Y.2d 95 (1989), 467 Cohen v. New York, 94 N.Y.2d 1 (1999), 85 Cohen v. 1165 Fulton Ave. Corp., 251 N.Y. 24 (1929), 428 Cohen; People v., 90 N.Y.2d 632 (1997), 517 Cohn v. Borchard Affiliations, 25 N.Y.2d 237 (1969), 90 Cohoes City Sch. Dist v. Cohoes Teachers Ass’n, 40 N.Y.2d 774 (1976), 496 Cole; People v., 219 N.Y. 98 (1916), 330 Colella v. Board of Assessors of the County of Nassau, 95 N.Y.2d 401 (2000), 392 Collazo, Matter of, 91 N.Y.2d 251 (1998), 49 Columbia Gas of N.Y., Inc. v. New York State Elec. & Gas Corp., 28 N.Y.2d 117 (1971), 714 Columbia Ribbon & Carbon Mfg. Co. v. A-1A Corp., 42 N.Y.2d 496 (1977), 467 Commco, Inc. v. Amelkin, 62 N.Y.2d 260 (1984), 421 Commercial Pictures Corp. v. Board of Regents of Univ. of State of New York, 305 N.Y. 336 (1953), rev’d, 346 U.S. 587 (1954), 239, 245–246 Committee for Public Educ. v. Nyquist, 413 U.S. 756 (1973), 342 Commonwealth v. See name of opposing party Commonwealth Edison Co. v. United States, 271 F.3d 1327 (Fed. Cir. 2001), 151 Community Bd. 7 v. Schaffer, 84 N.Y.2d 148 (1994), 74 Community Synagogue v. Bates, 1 N.Y.2d 445 (1956), 378 Concerned Citizens v. Town Bd., 54 N.Y.2d 957 (1981), 60

810

Table of Cases

The Connection Co. v. Regents of the Univ. of the State of New York, 17 A.D.2d 671 (1962), aff’d no op., 12 N.Y.2d 779 (1962), 251 Conolly v. Union Sewer Pipe Co., 184 U.S. 540 (1982), 720 Consolidated Edison Co. v. New York State Div. of Human Rights, 77 N.Y.2d 411 (1991), 422 Consolidated Edison Co. v. 10 W. 66th St. Corp., 61 N.Y.2d 341 (1984), 409 Conti, Matter of, 70 N.Y.2d 416 (1987), 50 Cooney v. Osgood Mach., Inc., 81 N.Y.2d 66 (1983), 592 Cooper v. Ateliers De La Motobecane, 57 N.Y.2d 408 (1982), 501 Cooper v. City of New York, 81 N.Y.2d 584 (1993), 78, 752n7 Coopersmith v. Gold, 89 N.Y.2d 957 (1997), 577 Corcoran v. Ardra Ins. Co., 77 N.Y.2d 225 (1990), 767n1 Corey L. v. Martin L., 45 N.Y.2d 383 (1978), 690 Cornelius, Matter of, 48 N.Y.2d 1014 (1980), 48 Coughlin; Doe v., 71 N.Y.2d 48 (1987), 669, 754n9 Council for Owner Occupied Housing v. Abrams, 72 N.Y.2d 553 (1988), 408 Council for Owner Occupied Housing v. Koch, 119 Misc.2d 241 (1983), aff’d, 61 N.Y.2d 942 (1984), 407 Couser; People v., 94 N.Y.2d 631 (2000), 542 Cox v. City of New York, 265 N.Y. 411 (1934), 104 Coyne v. New York State Teachers Ret. Sys., 257 A.D. 1006 (1939), aff’d no op., 283 N.Y. 614 (1940), 442 CPC Int’l, Inc. v. McKesson Corp., 70 N.Y.2d 268 (1987), 754n8 Craft; People v., 134 Misc.2d 121 (City Ct. Rochester 1986), rev’d, 149 Misc.2d 223 (County Ct. Monroe 1991), rev’d sub nom.

People v. Santorelli, 80 N.Y.2d 875 (1992), 323, 325, 753n5, 762n5 Crair v. Brookdale Hosp., 94 N.Y.2d 524 (2000), 592 Crane Neck Ass’n v. New York City/Long Island County Servs. Group, 61 N.Y.2d 154 (1984), 444 Created Gemstones, Inc. v. Union Carbide Corp., 47 N.Y.2d 250 (1979), 77 Creative Trading Co. v. Larkin-PluznickLarkin, Inc., 148 A.D.2d 352 (1st Dept. 1989), rev’d, 75 N.Y.2d 830 (1990), 700 Credit Agricole Indosuez v. Rossiyskiy, 94 N.Y.2d 541 (2000), 91 Crichton, Matter of, 20 N.Y.2d 124 (1967), 598 Croft v. National Car Rental, 56 N.Y.2d 989 (1982), 591 Crum; People v., 227 N.Y. 348 (1936), 524 Cubito v. Kressberg, 69 A.D.2d 738 (1979), aff’d, 51 N.Y.2d 900 (1980), 610 Cummins v. County of Onondaga, 84 N.Y.2d 322 (1994), 70 Cunningham, Matter of, 57 N.Y.2d 270 (1982), 49 Cunningham; People v., 49 N.Y.2d 203 (1980), 512 Cunningham; People v., 68 N.Y.2d 714 (1986), 40 Cuomo v. Long Island Lighting Co., 71 N.Y.2d 349 (1988), 67 DaGata; People v., 86 N.Y.2d 40 (1995), 773n10 Daghir v. Daghir, 56 N.Y.2d 938 (1982), 776n11 Dairylea Coop., Inc. v. Walkley, 38 N.Y.2d 6 (1975), 607 Dalton v. Educational Testing Serv., 87 N.Y.2d 384 (1995), 450 D’Amico v. Crosson, 93 N.Y.2d 29 (1999), 126 D&N Boening, Inc. v. Kirsch Beverages, Inc., 63 N.Y.2d 449 (1984), 450 D’Arata v. New York Cent. Mut. Fire Ins. Co., 76 N.Y.2d 659 (1990), 459, 602

Table of Cases Darweger v. Staats, 267 N.Y. 290 (1935), 144 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), 566 David v. Biondo, 92 N.Y.2d 318 (1998), 131, 603 David W; People v., 95 N.Y.2d 130 (2000), 128 Davies, Matter of, 168 N.Y. 89 (1901), 702 Davis, Matter of, 20 N.Y.2d 719 (1958), 672 Davis; Commonwealth v., 162 Mass. 113, aff’d, 167 U.S. 43 (1897), 764n20 Davis v. Davis, 75 N.Y. 221 (1878), 684 Davis; People v., 43 N.Y.2d 17 (1977), cert. denied, 435 U.S. 998 (1978), cert. denied sub nom. People v. James, 438 U.S. 914 (1978), 40, 522, 523, 525, 527 Davis; People v., 75 N.Y.2d 517 (1990), 512 DeAngelis v. Lutheran Med. Ctr., 58 N.Y.2d 1053 (1983), 91 DeCabrera v. DeCabrera, 70 N.Y.2d 879 (1987), 681 Defore; People v., 242 N.Y. 13 (1926), cert. denied, 270 U.S. 657 (1926), 759n18 De Francesco’s Estate, In re, 24 A.D.2d 81 (1965), aff’d no op., 19 N.Y.2d 618 (1967), 674 DeJesus v. DeJesus, 90 N.Y.2d 643 (1997), 678 DeKovessey v. Coronet Props. Co., 69 N.Y.2d 148 (1987), 408 Delmar Box Co. v. Aetna Ins. Co., 309 N.Y. 60 (1955), 752n2 DeLong v. County of Erie, 60 N.Y.2d 296 (1993), 567 Delta Air Lines, Matter of, 90 N.Y.2d 882 (1997), 76 DeLyra v. DeLyra, 74 N.Y.2d 872 (1989), 682 Denberg v. Parker Chapin Flattau & Klimpl, 82 N.Y.2d 375 (1993), 467 Denihan v. Denihan, 34 N.Y.2d 307 (1974), 499 Denny v. Ford Motor Co., 87 N.Y.2d 248 (1995), 54, 57 Desmond v. City of New York, 88 N.Y.2d 455 (1996), 752n7 De St. Aubin v. Flacke, 68 N.Y.2d 66 (1986), 415

811

Dexter v. Town Bd. of the Town of Gates, 36 N.Y.2d 102 (1975), 418 Diamond v. Diamond, 307 N.Y. 263 (1954), 484 Di Biasi; People v., 7 N.Y.2d 544 (1960), 503 Dickens v. Ernesto, 30 N.Y.2d 61 (1972), appeal dismissed, 407 U.S. 917 (1972), 366, 671, 690, 763n7 Dickerson v. United States, 530 U.S. 428 (2000), 131 Dietz, Matter of, 29 N.Y.2d 915 (1972), 76 DiLeo v. Pecksto Holding Corp., 304 N.Y. 505 (1952), 441 Dillon v. Moore, 270 A.D. 79 (1945), aff’d no op., 296 N.Y. 561 (1946), 439 Dime Sav. Bank of New York v. Montague St. Realty Assocs., 90 N.Y.2d 539 (1997), 427 DiMichel v. South Buffalo Ry. Co., 80 N.Y.2d 184 (1992), 93 DiNardo v. Koronowski, 252 A.D.2d 69 (1998), 93 Diocese of Rochester v. Planning Bd. of Town of Brighton, 1 N.Y.2d 508 (1956), 378, 379 Dissolution of Penepent Corp., Matter of, 96 N.Y.2d 186 (2001), 480 Ditta; People v., 52 N.Y.2d 657 (1981), 104 Dixon v. State Comm’n on Judicial Conduct, 47 N.Y.2d 523 (1979), 47 DJL Restaurant Corp. v. City of New York, 96 N.Y.2d 91 (2001), 321 Dobbs Ferry Med. Pavilion; People v., 40 A.D. 2d 324, aff’d 33 N.Y.2d 584 (1973), 76 Dr. Miles Med. Co. v. John D. Park & Sons Co., 220 U.S. 373 (1911), 717 Doe v. See name of opposing party Dolan v. City of Tigard, 512 U.S. 374 (1994), 437 Dolan v. Dolan, 78 N.Y.2d 463 (1991), 678 Dole v. Dow Chem. Co., 30 N.Y.2d 143 (1972), 115, 752n5 Donohue v. Copiague Union Free Sch. Dist., 47 N.Y.2d 440 (1979), 618 Donovan; People v., 13 N.Y.2d 148 (1963), 504

812

Table of Cases

Doran v. Salem Inn, Inc., 422 U.S. 922 (1975), 310 Dorff v. Bornstein, 277 N.Y. 236 (1938), 433 Dorta; People v., 46 N.Y.2d 818 (1978), 64 Doubleday & Co. v. New York, 272 A.D 799 (1947), aff’d, 297 N.Y. 687(1947), aff’d, 335 U.S. 848 (1948), 272 Doubleday, Doran & Co. v. R.H. Macy & Co., 158 Misc. 267 (Sup. West 1935), aff’d, 269 N.Y. 272 (1936), 718 Dowsey v. Village of Kensington, 257 N.Y. 221 (1931), 423 Doyle v. Amster, 79 N.Y.2d 592 (1992), 418, 422 Doyle v. Lazarro, 33 A.D.2d 142 (1970), aff’d, 33 N.Y.2d 981 (1974), 431, 766n15 Doyle; People v., 286 A.D. 276 (1955), aff’d. 1 N.Y.2d 732 (1956), 50 Drake v. Reiner, 259 N.Y. 308 (1932), 129 Drattel v. Toyota Motor Corp., 92 N.Y.2d 35 (1998), 126 Dreikausen v. Zoning Bd. of Appeals of the City of Long Beach, 98 N.Y.2d 165 (2002), 74 Dreiser v. John Lane Co., 183 A.D. 773 (1st Dept. 1918), 258 Drobner v. Peters, 232 N.Y. 220 (1921), 652 Droege, Matter of, 197 N.Y. 44 (1909), 45 Duane Jones Co. v. Burke, 305 N.Y. 172 (1954), 465 Duchnowski, Matter of, 31 N.Y.2d 991 (1973), 64 Duckman, Matter of, 92 N.Y.2d 141 (1998), 46, 49, 126 Dudley v. Kerwick, 52 N.Y.2d 542 (1981), 391 Duff v. Russell, 14 N.Y.S. 134, aff’d, 133 N.Y. 678 (1892), 466 Dukes v. Rotem, 82 N.Y.2d 886 (1993), 61, 67 Dunn; People v., 77 N.Y.2d 19 (1990), 177, 178 Dusanenko v. Lefever, 65 N.Y.2d 940 (1985), 693 Dye v. Lincoln Rochester Trust Co., 40 A.D.2d 583 (1972), aff’d no op., 31 N.Y.2d 1012 (1973), 429

Dzurenko v. Jordache, Inc., 59 N.Y.2d 788 (1983), 474 Eagle Enters., Inc. v. Gross, 39 N.Y.2d 505 (1976), 445 Eagle Ins. Co. v. Singletary, 279 A.D.2d 56 (2000), 597 Eastern Consol. Props. v. Adelaide Realty Corp., 95 N.Y.2d 785 (2000), 96 Eastman; People v., 188 N.Y. 478 (1907), 254, 256, 268 East New York Sav. Bank v. Hahn, 293 N.Y. 622 (1944), 135 East River Sav. Bank v. 671 Prospect Ave. Holding Corp., 280 N.Y. 342 (1939), 429 Eaton v. New York City Conciliation and Appeals Bd., 56 N.Y.2d 340 (1982), 387 Edwards; People v., 96 N.Y.2d 445 (2001), 539 Egol v. Egol, 68 N.Y.2d 693 (1986), 497 Ehrlich-Bober & Co. v. University of Houston, 49 N.Y.2d 574 (1980), 595 Eichner v. Dillon, 52 N.Y.2d 363 (1981), 658 804 Third Ave. Co. v. MW Realty Assocs., 58 N.Y.2d 447 (1983), 450 Eisenbach v. Metropolitan Transp. Auth., 62 N.Y.2d 973 (1984), 612 Ellwanger v. Whiteford, 15 A.D.2d 898, aff’d, 12 N.Y.2d 1037 (1963), 553 Elwell; People v., 50 N.Y.2d 231 (1980), 166, 171 Emanuel S. v. Joseph E., 78 N.Y.2d 178 (1991), 682 Emigrant Indus. Sav. Bank v. Willow Builders, Inc., 290 N.Y. 133 (1943), 433 Employment Div. v. Smith, 494 U.S. 872 (1990), 350 Endicott Johnson v. Bade, 37 N.Y.2d 585 (1975), 481 Endresz v. Friedberg, 24 N.Y.2d 478 (1969), 652 Engel v. CBS, Inc. 93 N.Y.2d 195 (1999), 54 Engel; People v., 7 N.Y.2d 1002 (1960), 279 Engel v. Vitale, 18 Misc.2d 659 (Sup. Nassau 1959), aff’d, 11 A.D.2d 340 (2d Dept. 1960), aff’d, 10 N.Y.2d 174 (1961), 337

Table of Cases Engel v. Vitale, 370 U.S. 421 (1962), 340 Enlarged City Sch. Dist. of Troy (Troy Teachers Ass’n), Matter of, 69 N.Y.2d 905 (1987), 498 Enright v. Eli Lilly & Co., 77 N.Y.2d 377 (1991), 97 Erazo v. Board of Elections, 65 N.Y.2d 943 (1985), 693 Erie, City of v. Pap’s A.M., 529 U.S. 277 (2000), 327 Ernst v. Keniry, 19 A.D.2d 938 (1963), aff’d no op., 14 N.Y.2d 668 (1964), 443 Eschbach v. Eschbach, 56 N.Y.2d 167 (1982), 684 Espada, Matter of, 98 N.Y.2d 715 (2002), 699 Essex County v. Zagata, 91 N.Y.2d 447 (1998), 608 Estate of. See name of party Estin v. Estin, 296 N.Y. 308 (1947), aff’d, 334 U.S. 541 (1947), 668 Esworthy, Matter of, 77 N.Y.2d 283 (1991), 49 Eureka Prods. v. Byrne, 252 A.D. 355 (3d Dept. 1937), appeal denied, 276 N.Y.2d 688 (1938), 227 Everett v. Phillips, 288 N.Y. 227 (1942), 486 Everson v. Board of Educ., 330 U.S. 1 (1947), 328, 333, 337 Excelsior Pictures Corp. v. Regents of the Univ. of the State of New York, A.D.2d 941 (1956), aff’d, 3 N.Y.2d 237 (1957), 246 Exchange Bakery v. Rifkin, 245 N.Y. 260 (1927), 727, 729 Farash v. Skyes Datetronics, Inc., 59 N.Y.2d 500 (1983), 454 Farber v. Smolack, 20 N.Y.2d 198 (1967), 590 Fay, Matter of, 44 N.Y.2d 137 (1978), appeal dismissed sub nom. Buck v. Hunter, 439 U.S. 1059 (1979), 669 Fay v. DeCamp, 257 N.Y. 407 (1931), 104 FeBland v. Two Trees Mgmt. Co., 66 N.Y.2d 556 (1985), 483 Federal Home Loan Mortgage Corp. v. New York State Div. of Hous. & Cmty. Renewal, 87 N.Y.2d 325 (1995), 426

813

Feiger v. Glen Oaks Vill., Inc., 309 N.Y. 527 (1956), 462 Feinberg v. Saks & Co., 56 N.Y.2d 206 (1982), 70 Feinstein v. Bergner, 48 N.Y.2d 23 (1979), 77 Feldman v. New York City Health & Hosps. Corp., 107 Misc.2d 145, rev’d, 84 A.D.2d 166 (1981), rev’d, 56 N.Y.2d 101 (1982), 754n7 Fellerman; People v., 243 A.D. 64 (1934), aff’d, 269 N.Y. 629 (1936), 263, 266 Felsen v. Scaringe, 54 N.Y.2d 932 (1981), 695 Ferber; New York v., 52 N.Y.2d 674 (1981), rev’d, 458 U.S. 747 (1982), on remand, 57 N.Y.2d 256 (1982), 305, 306, 307, 310 Ferguson v. Village of Hamburg, 272 N.Y. 234 (1936), 104 Ferrer v. Velez, 65 N.Y.2d 941 (1985), aff’d, 65 N.Y.2d 946 (1985), 693, 694 Ferrin v. New York Dep’t of Corr. Servs., 71 N.Y.2d 42 (1987), 775n1 FGL&L Prop. Corp. v. City of Rye, 66 N.Y.2d 111 (1985), 436 Fiebelkorn v. Rogacki, 280 A.D. 20 (1952), aff’d no op., 305 N.Y. 725 (1953), 442 Filby v. Brooks, 66 N.Y.2d 640 (1985), 441 Fine v. Commissioner of Dep’t of Consumer Affairs, 75 N.Y.2d 863 (1990), 40 Finger v. Omni Publ’ns Int’l, Ltd., 77 N.Y.2d 138 (1990), 472 Finkelstein; People v., 9 N.Y.2d 342 (1961), 279, 291 Finkelstein; People v., 11 N.Y.2d 3 00 (1962), 291 Finnerty v. New York State Thruway Auth., 75 N.Y.2d 721 (1989), 94 First Fed. Sav. & Loan Ass’n v. Niznik, 89 N.Y.2d 855 (1996), 40 First Presbyterian Church of Schenectady v. United Presbyterian Church in the U.S., 62 N.Y.2d 110 (1984), 373 First Westchester Nat’l Bank v. Olsen, 19 N.Y.2d 342 (1967), 59 Firth v. New York, 98 N.Y.2d 365 (2002), 613

814

Table of Cases

Fisher; People v., 14 Wend. 9, 28 Am. Dec. 501 (1835), 702 Fitzgerald v. Fahnestock, 286 A.D.2d 573 (2001), 479 Fitzpatrick; People v., 32 N.Y.2d 499 (1973), 526–527 Fitzpatrick v. Smith, 90 A.D.2d 974 (1982), aff’d, 59 N.Y.2d 916 (1983), cert. denied, 464 U.S. 963 (1983), 669 511 W. 232nd Owners Corp. v. Jennifer Realty Co., 98 N.Y.2d 144 (2002), 410 Flacke v. Onondaga Landfill Sys., 69 N.Y.2d 355 (1987), 80 Flagg Bros. v. Brooks, 436 U.S. 149 (1978), 212, 759n20 Flannery, Matter of, 212 N.Y. 610 (1914), 79 Flemington Nat’l Bank & Trust Co. v. Domler Leasing Corp., 65 A.D.2d 29 (1978), aff’d, 48 N.Y.2d 678 (1979), 462–463 Fleury v. Edwards, 14 N.Y.2d 344 (1964), 548, 549 FMC Crop. v. Mack, 92 N.Y.2d 179 (1998), 131 Foley; People v., 94 N.Y.2d 668 (2000), 307, 762n6 Ford v. Civil Source Employers Ass’n, 62 N.Y.2d 799 (1984), 59 Ford v. Traub, 39 N.Y.2d 1000 (1976), 437 Forest Vistas Co. v. Abrams, 103 A.D.2d 230 (1984), aff’d, 64 N.Y.2d 928 (1985), 411 Forster v. Scott, 136 N.Y. 577 (1893), 413 Fortner Enters. v. United States Steel, 394 U.S. 495 (1969), 715 Fosmire v. Micoleau, 75 N.Y.2d 218 (1990), 665 Fourth Ocean Putnam Corp. v. Interstate Wrecking, Inc., 66 N.Y.2d 38 (1985), 462 407 East 61st St. Garage, Inc. v. Savoy Fifth Ave. Corp., 23 N.Y.2d 275 (1968), 453, 455 Fox v. Westchester Bd. of Elections, 65 N.Y.2d 972 (1985), 693 Foy Prods., Ltd. v. Graves, 253 A.D. 475 (3d Dept. 1938), aff’d, 278 N.Y. 498 (1938), 227–228, 234 Francois v. Dolan, 95 N.Y.2d 33 (2000), 538

Fraser; People v., 96 N.Y.2d 318 (2001), 306 Fred F. French Investing Co. v. City of New York, 39 N.Y.2d 587, appeal dismissed, 429 U.S. 990 (1976), 92, 435 Freedman v. Maryland, 380 U.S. 87 (1965), 252 Freeman, Matter of, 34 N.Y.2d 1 (1974), 705 Freeman v. Johnston, 84 N.Y.2d 52 (1994), 70 Freihofer v. Hearst Corp., 65 N.Y.2d 135 (1985), 129, 472, 767n1 Fried v. Seippel, 80 N.Y.2d 32 (1992), 773n1 Friede; People v., 133 Misc. 611 (N.Y. City Magistrate’s Court, 1929), 261 Friederwitzer v. Friederwitzer, 55 N.Y.2d 89 (1982), 131, 684 Friedman, Matter of, 12 N.Y.2d (a)-(e), dismissed, 375 U.S. 10 (1963), 46 Friedman v. Beway Realty Corp., 87 N.Y.2d 161 (1995), 481 Friedman v. Cuomo, 39 N.Y.2d 81 (1976), 40 Friedman; People v., 302 N.Y. 75 (1951), 335, 402, 403 Friedman v. Sommer, 63 N.Y.2d 788 (1984), 411 Friedman; State v., 24 N.Y.2d 528 (1969), appeal dismissed, 397 U.S. 317 (1970), 46 Friends of Shawangunks, Inc. v. Knowlton, 64 N.Y.2d 387 (1985), 437 Fritch; People v., 13 N.Y.2d 119 (1963), 281, 282 Frome v. Board of Elections, 57 N.Y.2d 741 (1982), 695 Fromson v. LeFever, 65 N.Y.2d 946 (1985), 694 Frye; United States v., 293 F. 1013 (D.C. Cir. 1923), 566 F. T. B. Realty Corp. v. Goodman, 300 N.Y. 140 (1949), 40 Fuchsberg, Matter of, 43 N.Y.2d (a)-(eee) (1978), 81 Fulling v. Palumbo, 21 N.Y.2d 30 (1967), 419 Furman v. Georgia, 408 U.S. 238 (1972), 526, 769n17

Table of Cases Galapo v. City of New York, 95 N.Y.2d 568 (2000), 106, 129 Gallagher v. Crown Super Kosher Super Mkt. of Mass., Inc., 366 U.S. 617 (1961), 404 Gallagher v. Dinkins, 41 A.D.2d 946 (1973), aff’d no op., 32 N.Y.2d 839 (1973), 697 Gallagher v. Lambert, 74 N.Y.2d 562 (1989), 480 Gallagher v. St. Raymond’s Roman Catholic Church, 21 N.Y.2d 554 (1968), 103, 106 Gambold v. MacLean, 254 N.Y. 357 (1930), 59 Gardner v. Broderick, 20 N.Y.2d 227 (1967), 51 Garfield v. New York Tel. Co., 268 N.Y. 549 (1935), 147 Garrett v. Alter, 65 N.Y.2d 529 (1985), 694 Garrity v. Lyle Stuart, Inc., 40 N.Y.2d 354 (1976), 596 Gassman; People v., 295 N.Y. 254 (1946), 703 Geary v. Dade Dev. Corp., 29 N.Y.2d 457 (1972), 426 Geer, People ex rel. v. Common Council, 82 N.Y. 575 (1880), 73 Gelder Med. Group v. Webber, 41 N.Y.2d 680 (1977), 467, 766n4 Gelfand, Matter of, 70 N.Y.2d 211 (1987), 47, 49 General Elec. Co. v. Joiner, 522 U.S. 136 (1977), 773n11 General Elec. Co. v. Masters, Inc., 307 N.Y. 229 (1954), 719 General Motors Corp. v. Rosa, 82 N.Y.2d 183 (1993), 80 General Synod of the Reformed Church v. Bonac Realty Corp., 297 N.Y. 119 (1947), 428 Genovese; People v., 24 N.Y.2d 917 (1969), 404 George L, Matter of, 85 N.Y.2d 295 (1995), 74 Gerbig v. Zumpano, 7 N.Y.2d 327 (1960), 443 Giblin v. Murphy, 73 N.Y.2d 769 (1988), 482, 487, 596

815

G.I. Distributors, Inc.; People v., 20 N.Y.2d 104 (1967), cert. denied, 389 U.S. 905 (1967), 293, 295 Gillman v. Chase Manhattan Bank, N.A., 73 N.Y.2d 1 (1998), 458 Gilroy v. American Broad. Co., 46 N.Y.2d 580 (1979), 750n1 Ginsberg v. New York, 390 U.S. 629 (1968), 258, 304 Ginzburg v. United States, 383 U.S. 463 (1966), 288, 292 Gitlow v. New York, 268 U.S. 652 (1925), 222 Glanzer v. Shepard, 233 N.Y. 236 (1922), 475 Glasdwin v. Power, 21 A.D.2d 665 (1964), aff’d no op., 14 N.Y.2d 771 (1964), 697 Glaser v. Huette, 232 A.D. 119, aff’d no op., 256 N.Y. 686 (1931), 600 Gleason v. Gleason, 26 N.Y.2d 28 (1970), 677 Gleason (Michael Vee Ltd.), In re, 96 N.Y.2d 117 (2001), 92, 501 Gleeson; People v., 36 N.Y.2d 462 (1975), 163 Glenn v. Hoteltron Sys., 74 N.Y.2d 386 (1989), 90 Glenwood TV, Inc. v. Ratner, 103 A.D.2d 322 (2d Dept. 1984), aff’d, 65 N.Y.2d 642 (1985), appeal dismissed, 474 U.S. 619 (1985), 195 Glinert & Levy, Inc. v. Cohen Bros. Mfg. Co., 245 N.Y. 305 (1927), 451 Global Fin. Corp. v. Triarc Corp., 93 N.Y.2d 525 (1999), 594, 613 Glover; People v., 87 N.Y.2d 838 (1995), 512 Glubo; People v., 5 N.Y.2d 461 (1959), 753n3 G.M. Leasing Corp. v. United States, 429 U.S. 338 (1976), 193 Goelet v. Moss, 248 A.D. 499 (1st Dept. 1936), aff’d, 273 N.Y. 503 (1937), 228 Goetz; People v., 68 N.Y.2d 96 (1986), 578 Gokey; People v., 60 N.Y.2d 309 (1983), 168 Golden v. Planning Bd. of the Town of Ramapo, 30 N.Y.2d 359 (1972), appeal dismissed, 409 U.S. 1063 (1972), 435, 765n4 Goldenberg v. Goldenberg, 25 A.D.2d 670 (1966), aff’d, 19 N.Y.2d 759 (1967), 689

816

Table of Cases

Goldfarb v. Virginia State Bar, 355 F. Supp. 491 (E.D. Va. 1973), rev’d, 497 F.2d 1 (4th Cir. 1974), rev’d, 421 U.S. 773 (1975), 707 Goldfinger v. Feituck, 276 N.Y. 281 (1937), 727, 728 Goldfinger v. Lisker, 68 N.Y.2d 225 (1986), 493 Goldman v. Goldman, 282 N.Y. 296 (1940), 676 Goldstein v. Gold, 106 A.D.2d 100 (1984), aff’d, 66 N.Y.2d 624 (1985), 430 Gonkjur Assocs. v. Abrams, 82 A.D.2d 683 (1981), aff’d, 57 N.Y.2d 853, 409 Gonzaga Univ. v. Doe, 536 U.S. 273 (2002), 631 Gonzalez v. Armac Indus., 81 N.Y.2d 1 (1993), 57 Gonzalez v. Iocovello, 93 N.Y.2d 539 (1999), 106 Gonzalez; People v., 62 N.Y.2d 386 (1984), 759n20 Gonzalez, People ex rel. v. Warden, Brooklyn House of Detention, 21 N.Y.2d 18 (1967), 90 Goodman; People v., 69 N.Y.2d 32 (1986), 603 Goodstein Constr. Corp. v. City of New York, 80 N.Y.2d 366 (1992), 459 Gordon v. Bialystoker Ctr. and Bikur Cholim, Inc., 45 N.Y.2d 692 (1978), 672 Gordon v. Ellis, 306 N.Y. 456 (1954), 486 Gottlieb v. Laub & Co., 82 N.Y.2d 457 (1993), 65, 104, 107 Gould v. Board of Educ. of the Sewanhaka Cent. High Sch. Dist., 81 N.Y.2d 446 (1993), 457 Grabois v. Jones, 88 N.Y.2d 254 (1966), 53, 55 Graby v. Graby, 87 N.Y.2d 605 (1996), 689 Grace v. Nappa, 46 N.Y.2d 560 (1979), 431 Gracie Square Realty Corp. v. Choice Realty Corp., 305 N.Y. 271 (1953), 438 Grad v. Roberts, 14 N.Y.2d 70 (1964), 449 Grand Jury Subpoenas, Matter of, 72 N.Y.2d 307, cert. denied 488 U.S. 966 (1988), 73, 74

Grant-Howard Assocs. v. General Housewares Corp., 63 N.Y.2d 291 (1984), 478 Graubard, Mollen, Dannett & Horowitz v. Moskovitz, 86 N.Y.2d 112 (1995), 466, 766n4 Gravlin v. Ruppert, 98 N.Y.2d 1 (2002), 688 Gray; People v., 41 A.D.2d 125 (3d Dept. 1973), aff’d, 34 N.Y.2d 903 (1974), 583–584 Greatsinger, Matter of, 66 N.Y.2d 680 (1985), 750n1 Green; New York v., 96 N.Y.2d 403 (2001), 79 Green v. Santa Fe Indus., Inc., 70 N.Y.2d 244 (1987), 488 Greenburgh, Town of v. Board of Supervisors, 23 N.Y.2d 732 (1969), 73 Greenfield, Matter of, 76 N.Y.2d 293 (1990), 48 Greenthal & Co. v. Lefkowitz, 32 N.Y.2d 457 (1973), 411 Gregg v. Georgia, 428 U.S. 153 (1976), 527 Greiff, Matter of, 92 N.Y.2d 341 (1998), 672 Greschler v. Greschler, 51 N.Y.2d 368 (1980), 593 Griffin v. Coughlin, 88 N.Y.2d 674 (1996), cert. denied, 519 U.S. 1054 (1997), 401 Griminger; People v., 71 N.Y.2d 635 (1988), 173, 758n17 Grombach Prods., Inc. v. Waring, 293 N.Y. 609 (1944), 449 Gross, Estate of v. Three Rivers Inn, 92 N.Y.2d 970 (1998), 127 Grove Press v. Gerstein, 378 U.S. 577 (1964), 282 Grumet v. Board of Educ. of the Kiryas Joel Vill. Sch. Dist., 81 N.Y.2d 518 (1993), aff’d, 512 U.S. 687 (1994), 11, 352, 355, 763ns9 Grumet v. Cuomo, 90 N.Y.2d 57 (1997), 352 Grumet v. New York State Educ. Dep’t, 151 Misc.2d 60 (1992), aff’d sub nom. Grumet v. Board of Educ. of the Kiryas Joel Vill. Sch. Dist., 187 A.D. 2d 16 (3d Dept. 1992), 353

Table of Cases Grumet v. Pataki, 93 N.Y.2d 677, cert. denied, 528 U.S. 946 (1999), 352, 360 Grunfeld v. Grunfeld, 94 N.Y.2d 696 (2000), 679 Guard-Life Corp. v. S. Parker Hardware Mfg. Corp., 50 N.Y.2d 183 (1980), 465 Guasperi v. Gorsky, 29 N.Y.2d 891 (1972), 61, 64 Guerlain v. F.W. Woolworth Co., 297 N.Y. 11 (1947), 777n6 Guptill Holding Corp. v. New York, 33 A.D.2d 362 (1970), aff’d, 31 N.Y.2d 897 (1972), 490 Gwynne v. Board of Educ., 259 N.Y.2d 634 (1932), 127 Haag v. Barnes, 9 N.Y.2d 554 (1961), 588 Hackett v. Milbank, Tweed, Hadley & McCloy, 80 N.Y.2d 870 (1992), rev’d after remand, 86 N.Y.2d 146 (1995), 469 Hadden v. Consolidated Edison Co. of N.Y., 45 N.Y.2d 466 (1978), 456 Hadley v. Baxendale, 9 Exch. 341, 156 Eng. Rep. 145 (1854), 461 Hafkin v. North Shore Univ. Hosp., 97 N.Y.2d 95 (2001), 70–71 Hall v. United Parcel Servs. of Am., 76 N.Y.2d 27 (1990), 91 Halsey v. New York Soc. for Suppression of Vice, 234 N.Y. 1 (1922), 258, 275 Hamilton v. Regents, 293 U.S. 245 (1934), 329 Hamlin; People v., 71 N.Y.2d 750 (1988), 93 Hammelburger v. Foursome Inn Corp., 54 N.Y.2d 580 (1981), 431 Hanfgarn v. Mark, 274 N.Y. 22 (1937), 104 Hanlon; People v., 36 N.Y.2d 549 (1975), 169, 176 Hansen; People v., 38 N.Y.2d 17 (1975), 163 Harbor Tower, Inc. v. Abrams, 85 A.D.2d 558 (1981), aff’d, 56 N.Y.2d (1982), 410, 411 Harden v. City of New York, 74 N.Y.2d 796 (1989), 695 Harding; People v., 37 N.Y.2d 130 (1975), 550, 555

817

Harrington v. Harrington, 290 N.Y. 126 (1943), 685 Harris; New York v., 72 N.Y.2d 614 (1988), rev’d and remanded, 495 U.S. 14 (1990), on remand, 77 N.Y.2d 434 (1991), 187, 188, 200 Harris; People v., 98 N.Y.2d 452 (2002), 539, 542 Harris; United States v., 403 U.S. 573 (1971), 170 Harry R. Defler Corp. v. Kleeman, 19 A.D.2d 396 (1964), aff’d, 19 N.Y.2d 694 (1967), 465 Hartford Accident and Indem. Co. v. Village of Hempstead, 48 N.Y.2d 218 (1979), 595 Hartog v. Hartog, 85 N.Y.2d 36 (1995), 679 Hasbrouck v. Van Winkle, 261 A.D. 679 (1941), aff’d no op., 289 N.Y. 595 (1942), 427 Hass; People v., 299 N.Y. 190 (1949), 378 Hatch v. Elkins, 65 N.Y. 489 (1875), 551 Haverstraw Park Inc. v. Runcible Props. Corp., 33 N.Y.2d 637 (1973), 78 Hawkins; People v., 55 N.Y.2d 474 (1982), 768n7 Headriver v. Town Bd. of Riverhead, 2 N.Y.3d 766 (2004), 420 Hearst Corp. v. Clyne, 50 N.Y.2d 707 (1980), 73 Hedgeman; People v., 70 N.Y.2d 533 (1987), 109, 121 Held v. Kaufman, 91 N.Y.2d 425 (1998), 453 Heller v. Amawalk Nursery, Inc., 259 A.D. 380 (1938), aff’d no op., 278 N.Y. 514, 429 Heller; People v., 29 N.Y.2d 319 (1971), vacated, 413 U.S. 483 (1973), on remand, 33 N.Y.2d 314 (1973), 296, 297, 311, 312 Heller v. U.S. Suzuki Motor Corp., 64 N.Y.2d 407 (1985), 129, 613 Hennacy; People v., 308 N.Y. 1039 (1953), 764n23 Henry v. City of New York, 94 N.Y.2d 275 (1999), 92, 612

818

Table of Cases

Henry; People v., 95 N.Y.2d 563 (2000), 207, 519 Heric, Matter of, 175 Misc.2d 601 (1998), 669 Herman v. Bishop, 272 N.Y. 83 (1936), 430 Hernandez; People v., 94 N.Y.2d 552 (2000), 78–79 Herrick v. Second Cuthouse, Ltd., 64 N.Y.2d 692 (1984), 70 Hertz Corp. v. City of New York, 80 N.Y.2d 565 (1992), 57 Herzog, People ex rel. v. Morgan, 287 N.Y. 317 (1942), 685 Hessen v. Hessen, 33 N.Y.2d 406 (1974), 677 Hessian Hills Country Club, Inc. v. The Home Ins. Co., 262 N.Y. 189 (1933), 428 Hester v. United States, 265 U.S. 57 (1924), 192 Heyert v. Orange & Rockland Utils., 17 N.Y.2d 352 (1966), 96 Higby v. Mahoney, 48 N.Y.2d 15 (1979), 96 Hill v. Hayes, 18 A.D.2d 485, aff’d, 15 N.Y.2d 986 (1965), 472 Hinkle v. Zimmerman, 184 N.Y. 114 (1906), 493 Hirsch v. Buono Tire Co., 29 A.D. 2d 545 (1967), aff’d no op., 22 N.Y.2d 930, 431 Hirsch v. Hirsch, 37 N.Y.2d 312 (1995), 689 Hirsch v. Lindor Realty Corp., 63 N.Y.2d 878 (1984), 750n1 Historic Estates, Inc. v. United Paper Bd. Co., 260 A.D. 344 (1940), aff’d no op., 285 N.Y.2d 658 (1941), 438 Hobson; People v., 39 N.Y.2d 479 (1976), 94–95, 508, 513, 759n20, 769n11 Hoffman v. Lee Nashem Motors, Inc., 20 N.Y.2d 513 (1967), 431–432 Hofmann v. Hofmann, 232 N.Y. 215 (1921), 678 Hogan v. Supreme Court, 281 N.Y. 572 (1939), 90 Hollman; People v., 68 N.Y.2d 202 (1986), 324 Holtslander v. C.W. Whalen & Sons, 69 N.Y.2d. 1016 (1987), order modified, 70 N.Y.2d 962 (1988), 64

Holy Spirit Ass’n for Unification of World Christianity v. Tax Comm’n of City of New York, 55 N.Y.2d 512 (1982), 388 Home Bldg. & Loan Ass’n v. Blaisdell, 290 U.S. 398 (1934), 134 Home Ins. Co. v. American Home Prods. Corp., 75 N.Y.2d 196 (1990), 56, 596 Honeyman v. Hanan, 271 N.Y. 564 (1936), remittitur amended, 217 N.Y. 663 (1936), 135 Hooper Assocs. Ltd. v. AGS Computers, 74 N.Y.2d 487 (1989), 90 Hope v. Perales, 83 N.Y.2d 563 (1994), 657 Horn v. New York Times, 100 N.Y.2d 85 (2003), 463 Hornstein v. Podwitz, 254 N.Y. 443 (1930), 464 Hosley v. Curry, 85 N.Y.2d 447 (1995), 697 Howell v. New York Post Co., 81 N.Y.2d 115 (1993), 93, 472 Huddleston; United States v., 485 U.S. 601 (1988), 580 Hudgens v. NLRB, 424 U.S. 507 (1976), 215 Hudy; People v., 73 N.Y.2d 40 (1988), 577 Huertas; People v., 75 N.Y.2d 487 (1990), 772n3 Huggins v. Castle Estates, Inc., 36 N.Y.2d 427 (1975), 438, 442, 444 Hughes Tool Co. v. Fielding, 188 Misc. 947 (1947), aff’d no op., 297 N.Y. 1024 (1948), 229 Hunt v. Sharp, 202 A.D.2d 151 (1994), aff’d, 85 N.Y.2d 883 (1995), 483 Huntley; People v., 15 N.Y.2d 72 (1965), 93 Hutson v. Bass, 54 N.Y.2d 772 (1981), 695 Hynes v. New York Cent. R.R. Co., 231 N.Y. 229 (1921), 100 Hynes v. Tomei, 92 N.Y.2d 613 (1998), 537, 770n27 Ian v. Weisbert, 80 A.D.2d 505 (1981), aff’d, 55 N.Y.2d 706 (1981), 410 Ifrah v. Utschig, 98 N.Y.2d 304 (2002), 419, 421 Ilasi v. City of Long Beach, 38 N.Y.2d 383 (1976), 418

Table of Cases 819 Illardo; People v., 48 N.Y.2d 408 (1979), 302 Illinois v. Gates, 462 U.S. 213 (1983), 131, 172 Incorporated Vill. of Brookville v. Paulgene Realty Corp., 24 Misc.2d 790 (1960), aff’d, 14 A.D.2d 575 (1962), aff’d, 11 N.Y.2d 672 (1962), 620 Independent Investor Protective League v. Time, Inc., 50 N.Y.2d 259 (1980), 484 Infrate v. Suffolk County Bd. of Elections, 42 N.Y.2d 991 (1977), 697 In re. See name of party Intercontinental Hotels Corp. v. Golden, 15 N.Y.2d 9 (1964), 592 International Aircraft Trading Co. v. Manufacturers Trust Co., 287 N.Y. 285 (1948), 492 Isaacson; People v., 44 N.Y.2d 511 (1978), 159, 203, 759n20 Iselin & Co. v. Mann Judd Landau, 71 N.Y.2d 420 (1988), 476 Islamic Republic of Iran v. Pahlavi, 62 N.Y.2d 474 (1984), 75 Islip, Town of v. Caviglia, 73 N.Y.2d 544 (1989), 217, 320, 415 Israel v. Wood Dolson Co., 1 N.Y.2d 116 (1956), 465, 600 Istim, Inc. v. Chemical Bank, 78 N.Y.2d 342 (1991), 597, 599 Itoman (USA) v. Daewoo Corp., 68 N.Y.2d 925 (1986), 499 Jackson; United States v., 530 U.S. 570 (1968), 538 Jacob, Matter of, 86 N.Y.2d 651 (1995), 126, 689, 690, 691 Jacobellis v. Ohio, 378 U.S. 184 (1965), 303 Jacobs v. Lewicki, 12 A.D.2d 625 (1961), aff’d no op., 10 N.Y.2d 778 (1961), 440 Jacobson v. Commonwealth of Mass., 197 U.S. 11 (1905), 242 Jacobson v. Luzon Lumber Co., 276 A.D. 787 (1949), aff’d, 300 N.Y. 697 (1950), reargument denied, 300 N.Y. 754 (1950), 441 Jaffe v. Scheinman, 47 N.Y.2d 188 (1979), 93

Jamaica Public Service v. AIU Ins. Co., 92 N.Y.2d 631 (1998), 126, 128 James v. Board of Educ. of the City of New York, 42 N.Y.2d 357 (1977), 604, 617 James v. Delaware, Lackawanna & Western R.R. Co., 259 N.Y. 609 (1932), 129 James; People v., 93 N.Y.2d 620 (1999), 553, 557 James; People v., 438 U.S. 914 (1978). See Davis; People v. James v. Powell, 19 N.Y.2d 249 (1967), 77, 599 Jarecki v. Shung Moo Louie, 95 N.Y.2d 665 (2001), 409 Jeanty; People v., 94 N.Y.2d 507 (2000), 93 Jeffrey Towers v. Straus, 31 A.D.2d 319 (1969), aff’d no op., 26 N.Y.2d 812 (1970), 426 Jenkins v. Georgia, 418 U.S. 153 (1974), 302 Jenkins; People v., 138 Misc. 498 (1930), aff’d, 255 N.Y. 637 (1931), 727 Jennings v. New York State Office of Mental Health, 90 N.Y.2d 227 (1997), 422 Jensen v. General Elec. Co., 82 N.Y.2d 77 (1993), 612 Jewish Reconstructionist Synagogue of N. Shore, Inc. v. Incorporated Vill. of Roslyn Harbor, 38 N.Y.2d 283 (1975), cert. denied, 426 U.S. 950 (1976), 379, 382–383 J.M. Rodriguez & Co. v. Moore-McCormack Lines, Inc., 32 N.Y.2d 425 (1973), 459 Johnson v. Pataki, 91 N.Y.2d 214 (1997), 88, 530 Johnson; People v., 66 N.Y.2d 398 (1985), 172 Johnson v. Rockefeller, 365 F. Supp. 317, aff’d sub nom. Butler v. Wilson, 415 U.S. 953 (1974), 669 Johnstown, City of (Johnstown Police Benevolent Ass’n), In re, 99 N.Y.2d 273 (2002), 494 Jonas v. Velez, 65 N.Y.2d 954 (1985), 694 Jones v. City of Opelika, 364 U.S. 584 (1942), 395 Jones & Laughlin Steel Corp.; NLRB v., 301 U.S. 1 (1936), 151

820 Table of Cases Jones Lang Wooton USA v. LeBoeuf, Lamb, Green & MacRae, 92 N.Y.2d 962 (1998), 78 Jones; People v., 95 N.Y.2d 721 (2001), 94 Jones v. United States, 362 U.S. 257 (1960), 163, 169 Jones v. Wolf, 443 U.S. 595 (1979), 368, 374 Joseph Burstyn, Inc. v. Wilson, 303 N.Y. 242 (1951), rev’d, 343 U.S. 495 (1952), 218, 232, 237, 245, 753n4 Joseph Francese, Inc. v. Enlarged City Sch. Dist. of Troy, 95 N.Y.2d 59 (2000), 611 Juan C. v. Cortines, 89 N.Y.2d 659 (1997), 602, 603 Juarez v. Wavecrest Mgmt. Team Ltd., 88 N.Y.2d 628 (1996), 104, 106 Judd v. Board of Educ. of Union Free Sch. Dist. No. 2, Town of Hempstead, Nassau County, 164 Misc. 889 (Sup. Nassau 1937), aff’d, 253 A.D. 907 (2d Dept. 1938), rev’d, 278 N.Y. 200 (1938), 332, 340 Julian J. Studley, Inc. v. New York News, Inc., 70 N.Y.2d 628 (1987), 449 K, Matter of, 92 N.Y.2d 523 (1979), 47 Kahan; People v., 15 N.Y.2d 311 (1965), 303 Karpinski v. Ingrasci, 28 N.Y.2d 45 (1971), 467 Kass v. Kass, 91 N.Y.2d 554 (1998), 658, 678 Katz v. United States, 389 U.S. 347 (1967), 192 Kaufman v. Eli Lilly & Co., 65 N.Y.2d 449 (1985), 600 Kavanaugh v. Commonwealth Trust Co., 223 N.Y. 103 (1918), 487 Kedroff v. Saint Nicholas Cathedral of Russian Orthodox Church in N. Am., 302 N.Y. 1 (1950), rev’d, 344 U.S. 94 (1952), 369 Keenan v. Gigante, 47 N.Y.2d 160, cert. denied, 444 U.S. 887 (1979), 397, 584 Kel Kim Corp. v. Central Mkts., Inc., 70 N.Y.2d 900 (1987), 458 Kelly v. Kosuga, 358 U.S. 516 (1959), 720 Kelly v. Safir, 96 N.Y.2d 32 (2001), 70 Kemmler, People ex rel. v. Durston, 119 N.Y. 569, aff’d, 136 U.S. 436 (1890), 521, 769n15

Kemp & Beatley, Matter of, 64 N.Y.2d 63 (1984), 131 Kenford Co. v. County of Erie, 73 N.Y.2d 312 (1989), 459 Kennilwood Owners Ass’n v. Kennilwood, Inc., 262 A.D. 50 (1940), aff’d no op., 28 N.Y.S.2d 239 (1939), 427 Kenovan v. City of New York, 70 N.Y.2d 558 (1987), 105 Kent v. Bass, 54 N.Y.2d 776 (1981), 695 Kessler v. Kessler, 10 N.Y.2d 445 (1962), 685 Keta; People v., 79 N.Y.2d 474 (1992), 190, 195, 197, 309 Keyes; People v., 75 N.Y.2d 343 (1990), 307 Keystone Assocs. v. Moerdler, 19 N.Y.2d 79 (1966), 413 Khan v. Zoning Bd. of the Vill. of Irvington, 87 N.Y.2d 344 (1996), 417, 418 Kidney v. Kalmar Labs., 68 N.Y.2d 343 (1986), 54, 56 Kilberg v. Northeast Airlines, 9 N.Y.2d 34 (1961), 588 Kiley, Matter of, 74 N.Y.2d 364 (1989), 49 Kimmell v. Schaefer, 89 N.Y.2d 257 (1996), 767n2 Kingsley Int’l Pictures Corp. v. Regents of the Univ. of the State of N.Y., 4 N.Y.2d 349 (1958), rev’d, 360 U.S. 684 (1959), 249, 250 Kirby v. Illinois, 406 U.S. 682 (1972), 519 Kirkpatrick; People v., 32 N.Y.2d 17 (1973), 280 Kittredge v. Grannis, 244 N.Y. 168 (1926), 553 Klein (Hartnett), Matter of, 78 N.Y.2d 662 (1991), cert. denied, 504 U.S. 912 (1992), 348 Klinke v. Samuels, 264 N.Y. 144 (1934), 135 Klosterman v. Cuomo, 61 N.Y.2d 525 (1984), 604 Koch v. Consolidated Edison Co., 62 N.Y.2d 548 (1984), 601 Kogan v. D’Angelo, 54 N.Y.2d 781 (1981), 695 Kopezak; People v., 153 Misc. 187 (1934), aff’d, 266 N.Y. 565 (1935), 727 Koral v. Savory, Inc., 276 N.Y. 215 (1937), 482

Table of Cases Kosher v. Stamatis, 475 U.S. 1108 (1986), 128 Kovarsky v. Housing and Dev. Admin. of the City of New York, 31 N.Y.2d 184 (1972), 408 Kraus v. Ford Motor Co., 42 N.Y.2d 1093 (1977), 61 Kreiger v. Kreiger, 297 N.Y. 530, aff’d, 334 U.S. 555 (1947), 668 Krom v. Comesford, 57 N.Y.2d 704 (1982), 776n11 Kuehnel, Matter of, 49 N.Y.2d 465 (1980), 48 Kunz v. New York, 300 N.Y. 273 (1949), rev’d, 340 U.S. 290 (1951), 377, 764n19 LaBelle, Matter of, 79 N.Y.2d 350 (1992), 47 LaBello v. Albany Med. Ctr., 85 N.Y.2d 701 (1995), 612 LaClere; People v., 76 N.Y.2d 670 (1990), 768n7 Ladenburg Thalmann & Co. v. Tim’s Amusements, Inc., 275 A.D.2d 243 (2000), 479 Lafayette Auvergne Corp. v. 10243 Mgmt. Corp., 35 N.Y.2d 834 (1974), 437–438 LaFontaine; People v., 92 N.Y.2d 470 (1998), 90 Lalli, Matter of, 43 N.Y.2d 65 (1977), aff’d, 439 U.S. 259 (1978), 669 Lama Holding Co. v. Smith Barney, Inc., 88 N.Y.2d 413 (1996), 489 Lamb v. S. Cheney & Son, 227 N.Y. 418 (1920), 464 Landoil Res. Corp. v. Alexander & Alexander Servs., 77 N.Y.2d 28 (1990), rev’d, 925 F.2d 44 (2d Cir. 1991), 57 Landy; People v., 56 N.Y.2d 369 (1983), 758n15 Laney, Matter of, 274 A.D. 250 (1948), aff’d no op., 298 N.Y. 834 (1949), 674 Langerman v. Langerman, 303 N.Y. 465 (1952), 688 Langone v. Coughlin, 712 F.S. 1061 (N.D.N.Y. 1989), 669 Lapchak v. Baker, 298 N.Y. 89 (1948), 39 Larkin v. G.P. Putnam’s Sons, 14 N.Y.2d 399 (1964), 282, 283

821

La Rocca v. Lane, 37 N.Y.2d 375 (1975), 398, 763n7 LaRossa, Axenfeld & Mitchell v. Abrams, 62 N.Y.2d 583 (1984), 701 Lauer v. City of New York, 95 N.Y.2d 95 (2000), 91 LaValle v. Hayden, 98 N.Y.2d 155 (2002), 699 Lavalle; People v., 3 N.Y.3d 88 (2004), 544 Laventall v. Pomerantz, 263 N.Y. 110 (1933), 434 L.A. Witherill, Inc.; People v., 29 N.Y.2d 446 (1972), 765n28 Lawrence; People v., 64 N.Y.2d 200 (1984), 129 Lawrence v. Texas, 539 U.S. 558 (2003), 162 Layton v. Foster, 61 N.Y.2d 747 (1984), 682 Lazarus v. Bowery Sav. Bank, 16 N.Y.2d 793 (1965), 70 Leader v. Maroney, Ponzini & Spencer, 97 N.Y.2d 95 (2001), 70, 609 Lee; People v., 96 N.Y.2d 157 (2001), 570, 574 Lee v. Weisman, 505 U.S. 577 (1992), 402 Lefkowitz v. Lebensfeld, 51 N.Y.2d 442 (1980), 486 Lefkowitz v. Turley, 414 U.S. 70 (1973), 51 Lehman Bros. Commercial Corp. v. Minimetals Int’l Non-Ferrous Metals Trading Corp., 179 F. Supp. 2d 118 (S.D.N.Y. 2000), 587 Lehman Bros. v. Schein, 416 U.S. 386 (1974), 58 Leibert v. Clapp, 13 N.Y.2d 313 (1963), 486 Leibowitz, Matter of, 8 N.Y.2d (a)-(j) (1948), 46 Leibowitz v. Arrow Roofing Co., 259 N.Y. 391 (1932), 431 Lemon v. Kurtzman, 403 U.S. 602 (1971), 341 Lenney, Matter of, 70 N.Y.2d 863 (1987), 47, 49 Lenney, Matter of, 71 N.Y.2d 456 (1988), 45 Leon; United States v., 468 U.S. 897 (1984), 174 Leo Silfen, Inc. v. Cream, 29 N.Y.2d 387 (1972), 468

822 Table of Cases Letendre v. Hartford Accident & Indem. Co., 21 N.Y.2d 518 (1968), 551 Leto; People v., 33 N.Y.2d 952 (1974), 51 Levandusky v. One Fifth Ave. Apartment Corp., 75 N.Y.2d 530 (1990), 483 Levine v. Levine, 56 N.Y.2d 42 (1982), 673 Levy, Matter of, 229 N.Y. 637 (1920), 45 Levy, Matter of, 38 N.Y.2d 653, appeal dismissed sub nom. Levy v. City of New York, 429 U.S. 805 (1976), 620–621, 625 Levy v. Board of Standards and Appeals of the City of New York, 267 N.Y. 347 (1935), 765n6 Levy v. T.C.A. Hudson St., Inc., 28 A.D.2d 96 (1967), aff’d no op., 22 N.Y.2d 662 (1968), 439 Lewis v. Board of Educ., 258 N.Y. 117 (1932), 331 Lewis v. Board of Educ., 276 N.Y. 490 (mem.) (1937), 331 Lewis v. Commissioner of Dep’t of Corr. Servs. of N.Y., 68 N.Y.2d 923 (1986), 401 Lewis; People v., 69 N.Y.2d 321 (1987), 575 Lewis, People ex rel. v. Graves, 245 N.Y. 195, reargument denied, 245 N.Y. 620 (1927), 331 Lexington Sixty-First Assocs.; People v., 38 N.Y.2d 588 (1976), 412 Liberman, Matter of, 4 A.D.2d 512 (1957), aff’d no op., 5 N.Y.2d 719 (1958), 672 Lightman v. Flaum, 179 Misc.2d 1007 (N.Y. Sup. 1999), rev’d, 278 A.D.2d 373 (2d Dept. 2000), aff’d, 97 N.Y.2d 128 (2001), 375, 584, 764n18 Lin Broad. Corp. v. Metromedia, Inc., 74 N.Y.2d 54 (1989), 447 Lincoln v. Lincoln, 24 N.Y.2d 270 (1969), 685 Lindner Fund, Inc. v. Waldbaum, Inc., 82 N.Y.2d 219 (1993), 482, 487 Lindsay; People v., 72 N.Y.2d 843 (1988), 187 Liner; People v., 70 N.Y.2d 945 (1988), 64 Liriano v. Hobart Corp., 92 N.Y.2d 232 (1998), 55 Lizza Indus. v. Long Island Lighting Co., 36 N.Y.2d 754 (1975), 77

Lloyd Corp. v. Tanner, 407 U.S. 551 (1972), 215 Locator-Map, Inc. v. Adams. See Resseguie v. Adams Lochner; People v., 177 N.Y. 145 (1904), rev’d, 198 U.S. 45 (1905), 134, 138, 755n8 Loch Sheldrake Assocs. v. Evans, 306 N.Y. 297 (1954), 438–439 Lockhart v. McCree, 476 U.S. 162 (1986), 544 Loengard v. Santa Fe Indus., Inc., 70 N.Y.2d 262 (1987), 56, 489 Loening v. Red Spring Land Co., 302 N.Y. 934 (1951), 438 Loewy v. Binghamton Hous. Auth., 4 N.Y.2d 1036 (1958), 65 Lo-Ji Sales, Inc. v. New York, 442 U.S. 319 (1979), 312 Long v. Forest-Fehlhabe, 55 N.Y.2d 154 (1982), 60 Long Island R.R. Co. v. Northville Indus. Corp., 41 N.Y.2d 455 (1977), 449–450 Longley-Jones Assocs., Inc. v. Ircon Realty Co., 67 N.Y.2d 346 (1986), 766n15 Longway v. Jefferson County Bd. of Representatives, 83 N.Y.2d 17 (1993), 54, 55 Lopez; People v., 28 N.Y.2d 23 (1971), 507 LoPresti v. LoPresti, 40 N.Y.2d 52 (1976), 6 82 Loretto v. Teleprompter Manhattan CATV Corp., 53 N.Y.2d 124 (1981), rev’d, 458 U.S. 419 (1982), on remand, 58 N.Y.2d 143 (1983), 414 Loschiavo v. Port Auth. of N.Y. & N.J., 58 N.Y.2d 1040 (1983), 93, 559 Louise E.S. v. W. Stephen S., 64 N.Y.2d 946 (1985), 684–685 Luce; United States v., 469 U.S. 38 (1984), 583 Luna v. Dobson, 97 N.Y.2d 178 (2001), 669 Luperon; People v., 85 N.Y.2d 71(1995), 94 Lutheran Church in Am. v. City of New York, 35 N.Y.2d 121 (1974), 385, 435 Lynn v. Lynn, 302 N.Y. 193 (1951), cert. denied, 342 U.S. 849 (1951), 668, 676

Table of Cases Macey v. Rozbicki, 18 N.Y.2d 289 (1966), 591 MacPherson v. Buick Motor Co., 217 N.Y. 382 (1916), 100 Madden v. Creative Servs., 84 N.Y.2d 738 (1995), 57, 103, 107 Madfes v. Beverly Dev. Corp., 251 N.Y. 12 (1929), 96 Maerling; People v., 46 N.Y.2d 289 (1978), 553, 555 Mahoney v. Adirondack Publ’g Co., 71 N.Y.2d 31 (1987), 70 Mahoney v. Pataki, 98 N.Y.2d 45 (2002), 536 Majauskas v. Majauskas, 61 N.Y.2d 481 (1984), 681 Majewski v. Broadalbin-Perth Cent. Sch. Dist., 91 N.Y.2d 577 (1998), 109, 113 Male Infant L., Matter of, 61 N.Y.2d 420 (1984), 690 Mallad Constr. Corp. v. County Fed. Sav. and Loan Ass’n, 32 N.Y.2d 285 (1973), 452 Maloney v. Board of Elections, 65 N.Y.2d 964 (1985), 693 Manhattam Storage & Warehouse Co. v. Movers & Warehousemen’s Ass’n of Greater N.Y., 289 N.Y. 82 (1942), 701, 705 Mansfield v. Epstein, 5 N.Y.2d 70 (1958), 609 Manual Enters., Inc. v. Day, 370 U.S. 478 (1962), 281 Manufacturers Trust Co. v. Peck-Schwartz Realty Corp., 277 N.Y. 283 (1938), reargument denied, 278 N.Y. 482 (1938), 429 Marchant v. Mead-Morrison Mfg. Co., 252 N.Y. 284 (1929), 60 Marcus v. Search Warrants, 367 U.S. 717 (1961), 311 Maresca v. Cuomo, 64 N.Y.2d 242 (1984), 80 Marie B., Matter of, 62 N.Y.2d 352 (1984), 684 Marine Mgmt., Inc. v. Seco Mgmt., Inc., 176 A.D.2d 252 (1991), aff’d, 80 N.Y.2d 886 (1992), 427 Marsh v. Alabama, 326 U.S. 501 (1946), 396 Marsh; People v., 20 N.Y.2d 98 (1967), 759n20 Marsich v. Eastman Kodak Co., 224 A.D. 295 (2d Dept. 1936), aff’d no op., 269 N.Y. 621 (1936), 717, 776n4

823

Martin v. City of Albany, 42 N.Y.2d 13 (1977), 73 Martin v. Edwards Labs., Div. of Am. Hosp. Supply Corp., 60 N.Y.2d 417 (1983), 612 Martin v. Iverney, 34 N.Y.2d 593 (1979), 39 Martin v. New York Life Ins. Co., 148 N.Y. 117 (1895), 463 Martinez v. Hillside Long Island Jewish Ctr., 70 N.Y.2d 697 (1987), 651 Martino v. Golden Gift, Inc., 5 N.Y.2d 982 (1959), 77 Marx v. Akers, 88 N.Y.2d 189 (1996), 484 Mary Lincoln Candies, Inc. v. Department of Labor, 289 N.Y. 262 (1942), 143 Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52 (1995), 596 Matarasso v. Continental Cas. Co., 56 N.Y.2d 264 (1982), 499 Mateo; People v., 93 N.Y.2d 327 (1999), 540 Matherson; People v., 16 N.Y.2d 180 (1965), 311 Matisoff v. Dobi, 90 N.Y.2d 127 (1997), 90 Matter of. See name of party Maul, Matter of, 287 N.Y. 694 (1942), 674 Maxwell’s Adoption, Matter of, 4 N.Y.2d 429 (1958), 364 Maynard v. Greenberg, 82 N.Y.2d 913 (1994), 66 Mazzei, Matter of, 81 N.Y.2d 568 (1993), 47, 49 McBarnette v. Sobol, 83 N.Y.2d 333 (1994), 63 McCabe v. Mackay, 253 N.Y. 440 (1930), 106 McCarthy v. Emma, 304 N.Y. 153 (1952), 434 McCarthy v. Volkswagen of Am., 55 N.Y.2d 543 (1982), 612–613 McCollum v. Board of Educ., 333 U.S. 203 (1948), 334, 337 McCormick v. Trageser, 24 N.Y.2d 873 (1969), 438 McCoy v. Feinman, 99 N.Y.2d 295 (2002), 613 McDonald, People ex rel. v. Keeler, 99 N.Y. 463 (1885), 43 McDougald v. Garber, 132 Misc.2d 457, aff’d, 135 A.D.2d 80, modified, 73 N.Y.2d 246 (1989), 53

824

Table of Cases

McFarland v. McFarland, 70 N.Y.2d 916 (1987), 674 McGee v. Adams Paper & Twine Co., 26 A.D.2d 186 (1966), 105 McGee; People v., 49 N.Y.2d 48 (1979), 129 McGee; People v., 68 N.Y.2d 328 (1968), 583 McGowan v. Maryland, 366 U.S. 420 (1961), 404 McKenzie v. McClellan, 62 Misc. 342 (Sup. N.Y. 1909), 221 McLean v. Triboro Coach Corp., 302 N.Y. 49 (1950), 91 McMains v. McMains, 15 N.Y.2d 283 (1965), 676 McMinn v. Town of Oyster Bay, 66 N.Y.2d 544 (1985), 416 McMurren v. Carter, 38 N.Y.2d 742 (1975), 61 McNeill; People v., 303 N.Y. 464 (1952), 40 McSparron v. McSparron, 87 N.Y.2d 275 (1995), 680 Meinhardt v. Salmon, 249 N.Y. 458 (1928), 465 Meisels v. Uhr, 79 N.Y.2d 526 (1992), 497 Melahn v. Hearn, 60 N.Y.2d 944 (1983), 434 Menella v. Lopez-Torres, 91 N.Y.2d 474 (1998), 129 Mercantile & Gen. Reinsurance Co., PLC v. Colonial Assurance Co., 82 N.Y.2d 248 (1993), 457 Merl v. Merl, 67 N.Y.2d 359 (1986), 675 Merrill v. Albany Med. Ctr. Hosp., 71 N.Y.2d 990 (1988), 64 Message Photo-Play Co. v. Bell, 100 Misc. 267 (Sup. N.Y. 1917), rev’d, 179 A.D. 13 (1st Dept. 1917), 221 Messenger v. Gruner + Jahr Printing and Publ’g, 94 N.Y.2d 436 (2000), 93, 471, 472 Messmore v. New York Shot and Load Co., 40 N.Y. 422 (1869), 459 Messner Vetere Berger McNamee Schmetterer Euro RSCG, Inc. v. Aegis Group PLC, 93 N.Y.2d 229 (1999), 56, 450 Metropolitan Life Ins. Co. v. New York State Labor Relations Bd., 280 N.Y. 194 (1939), 151

Metropolitan Transp. Auth. v. Bruken Realty Corp., 67 N.Y.2d 156 (1986), 480 Metzger v. Couper, 15 N.Y.2d 802 (1965), aff’d no. op., 21 A.D.2d 920 (1964), 251 Meyers v. Credit Lyonnais, 259 N.Y. 399 (1932), 96 Michael B, Matter of, 80 N.Y.2d 299 (1992), 79 Michaels v. Michaels, 56 N.Y.2d 924 (1982), 675 Michigan v. Long, 463 U.S. 1032 (1983), 187 Michigan v. Tyler, 436 U.S. 499 (1978), 164 Middleton; People v., 54 N.Y.2d 42 (1981), 567 Miller v. California, 413 U.S. 15 (1973), 294, 295 Miller v. Edmore Homes Corp., 285 A.D. 837 (1955), aff’d no op., 309 N.Y. 839 (1955), 439, 442 Miller v. Miller, 22 N.Y.2d 12 (1968), 592 Miller; People v., 39 N.Y.2d 543 (1976), 578 Miller; People v., 65 N.Y.2d 502, cert. denied, 474 U.S. 951 (1985), 209 Minersville Sch. Dist. v. Gobitis, 310 U.S. 586 (1940), 393 Miranda v. Arizona, 384 U.S. 436 (1966), 506, 768n5 Mishkin v. New York, 15 N.Y.2d 671 (1964), aff’d, 383 U.S. 502 (1966), 273, 288, 290, 292 Mitchell v. New York Hosp., 61 N.Y.2d 208 (1984), 76 Mobil Oil Corp.; New York v., 38 N.Y.2d 460 (1976), 708–709 Mobil Oil Corp. v. Rubenfeld, 48 A.D.2d 428 (2d Dept. 1975), aff’d, 40 N.Y.2d 936 (1976), 721 Modave v. Long Island Jewish Med. Ctr., 501 F.2d 1065 (2d Cir. 1974), 59 Modjeska Sign Studios, Inc. v. Berle, 43 N.Y.2d 468 (1977), 414 Mogil, Matter of, 88 N.Y.2d 749 (1996), 49 Mohawk Maint. Co. v. Kessler, 52 N.Y.2d 276 (1981), 489, 721

Table of Cases Moke Realty Corp. v. Whitestone Sav. & Loan Ass’n, 82 Misc.2d 396 (1975), aff’d, 41 N.Y.2d 954 (1977), 428 Molineux; People v., 168 N.Y. 264 (1901), 541, 576 Monroe, Village of v. Benjamin, 259 N.Y. 305 (1932), 128 Monserrate v. Upper Court St. Bookstore, Inc., 49 N.Y.2d 306 (1980), 313 Monterey, City of v. Del Monte Dunes, 526 U.S. 687 (1999), 437 Mooney; People v., 76 N.Y.2d 827 (1990), 570, 572 Moran; People v., 15 N.Y.2d 926 (1965), 251 Morgan v. King, 35 N.Y. 454 (1866), 102, 104 Morgenthau v. Cook, 56 N.Y.2d 24 (1982), 80 Morris v. New York State Dep’t of Taxation and Fin., 82 N.Y.2d 135 (1995), 490 Morris v. Scribner, 69 N.Y.2d 418 (1987), 374 Morse; People v., 62 N.Y.2d 205 (1984), 78 Moses, People ex rel. v. Gaynor, 77 Misc. 576 (Sup. N.Y. 1912), aff’d, 160 A.D. 881 (1st Dept. 1913), 221 Motor Vehicle Accident Indem. Corp. v. Aetna Cas. and Surety Co., 89 N.Y.2d 214 (1996), 497 Mount St. Mary’s Hosp. v. Catherwood, 26 N.Y.2d 493 (1970), 494 Mowrer; People v., 97 N.Y.2d 239 (2002), 540 Muessman v. Ward, 95 Misc.2d 478 (1998), 669 Muka v. Greene, 56 N.Y.2d 855 (1982), 40 Muller; People v., 96 N.Y. 408 (1884), 254, 267, 274, 275 Muller; People v., 286 N.Y. 281 (1941), 731 Mulroy, Matter of, 94 N.Y.2d 652 (2000), 49 Munroe; People v., 90 N.Y.2d 982 (1997), 78 Murphy v. American Home Prods. Corp., 58 N.Y.2d 293 (1983), 91–92, 463 Murray v. New York Magazine Co., 27 N.Y.2d 406 (1971), 472 Murtha, Matter of, 259 N.Y. 456 (1932), 126 Mutual Film Corp. v. Industrial Comm’n of Ohio, 236 U.S. 230, aff’d, 236 U.S. 247 (1915), 221–222, 223, 243

825

Mutual Film Corp. of Mo. v. Hodges, 236 U.S. 248 (1915), 222, 233 Mutual Life Ins. Co. v. Hillmon, 145 U.S. 285 (1892), 558 Myer v. Myer, 271 A.D. 465 (1946), aff’d no op., 296 N.Y. 979 (1947), 484 Myers, Matter of, 67 N.Y.2d 550 (1986), 50 Nahman; People v., 298 N.Y. 95 (1948), 378 Nann v. Raimist, 255 N.Y. 357 (1931), 727, 729 Nassau Trust Co. v. Montrose Concrete Prods. Corp., 56 N.Y.2d 175 (1982), 456 National City Bank of N.Y. v. Gelfert, 284 N.Y. 13 (1940), 135 Near v. Minnesota ex rel. Olson, 283 U.S. 697 (1931), 222 Nebbia; People v., 262 N.Y. 259 (1933), aff’d sub nom. Nebbia v. New York, 291 U.S. 502 (1934), 136, 754n1 Nehra v. Ahler, 43 N.Y.2d 242 (1977), 685 Nelson; People v., 55 N.Y.2d 743 (1981), 64 Neponsit Prop. Owners’ Ass’n, Inc. v. Emigrant Indus. Sav. Bank, 278 N.Y. 248 (1938), 446 Nesbitt v. New York City Conciliation and Appeals Bd., 85 A.D.2d 581 (1st Dept. 1981), 388 Nesbitt v. Nimmick, 34 A.D.2d 958, aff’d, 30 N.Y.2d 624 (1972), 601 Nestel v. Nestel, 38 A.D.2d 942 (1972), 687 Neumeier v. Kuehner, 31 N.Y.2d 121 (1972), 591 Newbrand v. City of Yonkers, 285 N.Y. 164 (1941), 605 New York v. See name of party New York Agency and Other Assets of Credit and Commerce Int’l, S.A., Matter of, 90 N.Y.2d 410 (1997), 457 New York, City of v. Les Hommes, 94 N.Y.2d 267 (1999), 323 New York, City of v. New York, 86 N.Y.2d 286 (1995), 623, 774n5 New York, City of v. Stringfellow’s of N.Y., Ltd. 95 N.Y.2d 845 (2001), aff’d, 96 N.Y.2d 51 (2001), 125, 321

826 Table of Cases New York, City of v. Uniformed Firefighters Ass’n, Local 94, IAFF, AFL-CIO., 58 N.Y.2d 957 (1983), 469 New York, City of v. Uniformed Fire Officers Ass’n, 95 N.Y.2d 273 (2000), 496 New York, City of v. Wyman, 37 A.D.2d 700 (1st Dept. 1971), aff’d, 30 N.Y.2d 537 (1972), 656 New York City Coalition to End Lead Poisoning, Inc. v. Vallone, 99 N.Y.2d 502 (2003), 92 New York City Dep’t of Sanitation v. McDonald, 87 N.Y.2d 650 (1996), 494 New York City Transit Auth. v. Transport Workers Union of Am., 99 N.Y.2d 1 (2002), 495 New York County DES Litig., Matter of, 89 N.Y.2d 506 (1997), 612 New York Rapid Transit Corp. v. City of New York, 275 N.Y. 258 (1937), 147 New York State Ass’n of Criminal Def. Lawyers v. Kaye, 95 N.Y.2d 556 (2000), 80, 771n35 New York State Ass’n of Criminal Def. Lawyers v. Kaye, 96 N.Y.2d 512 (2001), 126, 535, 753n4 New York State Bankers Ass’n, Inc. v. Wetzler, 81 N.Y.2d 98 (1993), 84, 88, 751n1 New York State Employment Relations Bd. v. Christ the King Reg’l High Sch., 90 N.Y.2d 244 (1997), 350 New York State Inspection, Sec., and Law Enforcement Employees Dist. Council 82, AFSCME, AFL-CIO v. Cuomo, 64 N.Y.2d 233 (1984), 606 New York State Liquor Auth. v. Bellanca, 452 U.S. 714 (1981), 309 New York State Ret. Sys. v. Coyne, 257 A.D. 1010 (1939), aff’d no op., 283 N.Y. 615 (1940), 442 New York State Sch. Bds. Ass’n v. Sobol, 79 N.Y.2d 333 (1992), 343, 345 New York Steam Corp. v. City of New York, 268 N.Y. 137 (1935), 133, 145 New York Univ. v. Continental Ins. Co., 87 N.Y.2d 308 (1995), 596

Niagara Mohawk Power Corp., Matter of, 92 N.Y.2d 192 (1998), 131 Niagara Mohawk Power Corp. v. Green Island Power Auth., 94 N.Y.2d 891 (2000), 75 Nicholson v. State Comm’n on Judicial Conduct, 50 N.Y.2d 597 (1980), 48 Nicholson v. 300 Broadway Realty Corp., 7 N.Y.2d 240 (1959), 444, 446 Nieves; People v., 67 N.Y.2d 125 (1986), 548 19th St. Assocs. v. New York, 79 N.Y.2d 434 (1992), 407 Nixon; People v., 248 N.Y. 182 (1928), 727 NLRB v. See name of opposing party Norcon Power Partners, L.P. v. Niagara Mohawk Power Corp., 92 N.Y.2d 458 (1998), 101, 107 North Carolina v. Pearce, 395 U.S. 711 (1969), 209 Northern Pac. Ry. Co. v. United States, 356 U.S. 1 (1958), 715 Northern Westchester Prof’l Park Assocs. v. Town of Bedford, 60 N.Y.2d 492 (1983), 765n2 North Hempstead, Town of v. Village of North Hills, 38 N.Y.2d 334 (1975), 418 North Shore Bottling Co. v. C. Schmidt and Sons, Inc., 22 N.Y.2d 171 (1968), 450, 465 Noyes v. Erie & Wyo. Farmers Coop. Corp., 281 N.Y. 187 (1939), 141, 756n10 Nucci v. Proper, 95 N.Y.2d 597 (2001), 548, 552 O’Brien v. O’Brien, 66 N.Y.2d 576 (1985), 129, 679 O’Brien; United States v., 391 U.S. 367 (1968), 317, 325, 327 Ocasio; People v., 47 N.Y.2d 55 (1979), 583 O’Connell v. Kern, 287 N.Y. 297 (1942), 607 O’Connor, Matter of, 72 N.Y.2d 517 (1988), 103 O’Connor v. Hendrick, 184 N.Y. 421 (1906), 331 O’Hara; People v., 96 N.Y.2d 378 (2001), 698 Old Dearborn Dist. Co. v. Seagram-Distillers Corp., 299 U.S. 183 (1936), 719

Table of Cases Oliver v. United States, 466 U.S. 170(1984), 192 Olivo v. Olivo, 82 N.Y.2d 202 (1993), 681 Olmstead v. United States, 277 U.S. 438 (1928), 193 Oltarsh v. Aetna Ins. Co., 15 N.Y.2d 111 (1965), 590 1036 Park Corp. v. Rubin, 92 A.D.2d 452 (1983), aff’d, 59 N.Y.2d 877 (1983), 410 Onofre; People v., 51 N.Y.2d 476 (1980), cert. denied, 451 U.S. 987 (1981), 162 Opera on Tour, Inc. v. Weber, 285 N.Y. 348 (1941), cert. denied, 314 U.S. 615 (1941), 731 Oppenheimer & Co. v. Oppenheimer, Appel, Dixon & Co., 86 N.Y.2d 685 (1995), 454 Orange & Rockland Utils., Inc. v. Howard Oil Co., 46 N.Y.2d 880 (1979), 78 Orange & Rockland Utils., Inc. v. Philwold Estates, 52 N.Y.2d 253 (1981), 446 Orda v. State Tax Comm’n, 25 A.D.2d 332 (1966), aff’d no op., 9 N.Y.2d 637 (1967), 492 Ortelere v. Teachers Ret. Bd. of the City of New York, 25 N.Y.2d 196 (1969), 456 Osborne v. Ohio, 495 U.S. 103 (1990), 307 O’Shea v. O’Shea, 93 N.Y.2d 187 (1999), 681 Ossining Union Free Sch. Dist. v. Anderson, 73 N.Y.2d 417 (1989), 476 Osterman, Matter of, 13 N.Y.2d (a)-(r) (1963), cert. denied, 376 U.S. 914 (1964), 46 O’Toole v. Greenberg, 64 N.Y.2d 427 (1985), 656 Otto v. Steinhilber, 282 N.Y. 71 (1939), reargument denied, 282 N.Y. 684 (1940), 423 Owens v. Sharpton, 45 N.Y.2d 794 (1978), 699 Pace Photographers, Ltd., Matter of, 71 N.Y.2d 737 (1988), 481 Padilla, Matter of, 67 N.Y.2d 440 (1986), 79 Padula v. Lilarn Prop. Corp., 84 N.Y.2d 519 (1994), 592 Pagano v. Kramer, 21 N.Y.2d 910 (1968), 440 Page; People v., 72 N.Y.2d 69 (1988), 93 Pajak v. Pajak, 56 N.Y.2d 394 (1982), 676

827

Palla v. Suffolk County Bd. of Elections, 31 N.Y.2d 36 (1972), 697 Palsgraf v. Long Island R.R., 248 N.Y. 339 (1928), 13 Pamela P. v. Frank S., 59 N.Y.2d 1 (1983), 671 Panarella v. Birenbaum, 32 N.Y.2d 108 (1973), 342 Panzica v. Galasso, 285 A.D. 859 (1955), aff’d no op., 309 N.Y. 978 (1956), 440 Pape; People v., 72 N.Y.2d 69 (1988), 94 Paramount Pictures, Inc.; United States v., 334 U.S. 131 (1948), 235 Parilex, Inc. v. Abrams, 86 A.D.2d 541 (1982), aff’d, 57 N.Y.2d 858, 409 Park v. National Wholesale Druggists Ass’n, 175 N.Y. 1 (1903), 717 Park East Corp. v. Whelan, 43 N.Y.2d 735 (1977), 75 Parker v. Rogerson, 35 N.Y.2d 751 (1974), 60, 750n1 Parker v. Stage, 43 N.Y.2d 128 (1977), 688 Parkoff v. General Tel. & Elec. Corp., 53 N.Y.2d 412 (1981), 486 Park Slope Jewish Ctr. v. Congregation B’nai Jacob, 90 N.Y.2d 517 (1997), 374 Parma Tile Mosaic & Marble Co. v. Estate of Fred Short, 87 N.Y.2d 524 (1996), 450 Parochial Bus Sys. v. Board of Educ., 60 N.Y.2d 539 (1983), 76 Parrott v. Coopers & Lybrand LLP, 95 N.Y.2d 479 (2000), 476 Pataki v. Assembly, 4 N.Y.3d 84 (2004), 85 Patchogue-Medford Congress of Teachers v. Board of Educ., 70 N.Y.2d 57 (1987), 179 Pathé Exchange Inc. v. Cobb, 202 A.D. 450 (1922), aff’d, 236 N.Y. 539 (1923), 218, 223 Patrician Plastic Corp. v. Bernadel Realty Corp., 25 N.Y.2d 599 (1970), 66 Patron v. Patron, 40 N.Y.2d 582 (1976), 70 Patterson; People v., 39 N.Y.2d 288 (1976), aff’d 432 U.S. 197 (1977), 78 Paynter v. New York, 100 N.Y.2d 434 (2003), 637 Payton v. New York, 445 U.S. 573 (1980), 187

828 Table of Cases Pecoraro v. Mahoney, 65 N.Y.2d 1026 (1985), 694 Penn Cent. Transp. Co. v. City of New York 42 N.Y.2d 324 (1977), aff’d, 438 U.S. 104 (1978), 435 People v. See name of opposing party People ex rel. v. See name of party Pepper; People v., 53 N.Y.2d 213, cert. denied, 454 U.S. 967 (1981), 64 Perla; State v., 21 N.Y.2d 608 (1968), 51 Perretta; People v., 253 N.Y. 305 (1930), 755n5 Persky v. Bank of Am. Nat’l Ass’n, 261 N.Y. 212 (1933), 79 Pesky; People v., 254 N.Y. 373 (1930), 260, 275 Peterson v. Northeast Airlines, 309 F.2d 553 (2d Cir. 1962), cert. denied, 372 U.S. 912 (1963), 589 Peterson v. University of the State of New York, 14 N.Y.2d 432 (1964), 753n4 Petito v. Piffath, 85 N.Y.2d 1 (1994), cert. denied, 516 U.S. 864 (1995), 432 Pfingst, Matter of, 33 N.Y.2d (a)-(nn) (1973), 46 Phillips, Matter of, 293 N.Y. 483 (1944), 672 Pierce v. Breen, 86 N.Y.2d 455 (1995), 694 Pierce v. Pierce, 71 N.Y. 154 (1877), 671 Pierce v. Society of Sisters, 268 U.S. 510 (1925), 329 Pierson; People v., 176 N.Y. 201 (1903), 330, 775n6 Pires v. Frota Oceanica Brasileira, 92 N.Y.2d 200 (1998), 126 Pirman v. Conver, 273 N.Y. 357 (1937), 439 P.J. Video, Inc.; People v., 65 N.Y.2d 566 (1985), rev’d, 475 U.S. 868 (1986), on remand, 68 N.Y.2d 296 (1986), 160, 175, 217, 314 Place; United States v., 462 U.S. 696 (1983), 178 Platt Corp. v. Platt, 21 A.D.2d 116 (1964), aff’d no op., 15 N.Y.2d 705 (1965), 484 Plunkett v. Mahoney, 76 N.Y.2d 848 (1990), 695

P.M.S. Assets, Ltd. v. Zoning Bd. of Appeals of the Vill. of Pleasantville, 98 N.Y.2d 683 (2002), 419, 422 Pollitz v. Gould, 202 N.Y. 11 (1911), 484 Pollitz v. Wabash R.R. Co., 207 N.Y. 113 (1912), 482 Ponder; People v., 54 N.Y.2d 160 (1981), 163 Poniatowski v. City of New York, 14 N.Y.2d 76 (1964), 104 Port Chester Elec. Constr. Corp. v. Atlas, 40 N.Y.2d 652 (1976), 463, 490 Port Chester Wine & Liquor Shop v. Miller Bros. Fruiterers, 281 U.S. 101 (1939), 777n6 Porter v. Commercial Cas. Ins. Co., 292 N.Y. 176 (1944), 454 Port Wash. Union Free Sch. Dist. v. Port Wash. Teachers Ass’n, 45 N.Y.2d 411 (1978), 776n12 Potwara; People v., 48 N.Y.2d 91 (1979), 313 Powell v. Alabama, 287 U.S. 45 (1932), 207 Powell v. State, 270 Ga. 327, 510 S.E.2d 18 (1998), 162 Power Auth. v. Williams, 60 N.Y.2d 315 (1983), 68 Preibe v. Preibe, 55 N.Y.2d 997 (1982), 776n11 Present v. Avon Prods., 93 N.Y.2d 1032 (1999), 67 President and Directors of the Manhattan Co. v. Callister, 256 A.D. 1097 (1939), aff’d no op., 282 N.Y. 629 (1940), 429 Pressley; People v., 94 N.Y.2d 935 (2000), 78 Price; People v., 262 N.Y. 410 (1933), 503 Price; People v., 33 N.Y.2d 831 (1973), 323, 753n5 Price; People v., 54 N.Y.2d 557 (1981), 177 Price v. Price, 69 N.Y.2d 8 (1986), 66, 679 Primex Int’l Corp. v. Wal-Mart Stores, Inc., 89 N.Y.2d 594 (1997), 498 Provident Sav. Bank & Trust Co. v. Steinmetz, 270 N.Y. 129 (1936), 135 Prozeralik v. Capital Cities Commc’ns, 82 N.Y.2d 466 (1993), 70

Table of Cases 829 Prudential Ins. Co. of Am. v. Dewey, Ballantine, Bushby, Palmer & Wood, 80 N.Y.2d 377 (1992), 476 Psolock v. Teachers Ret. Bd., 88 N.Y.2d 46 (1996), 97 Public Serv. Mut. Ins. Co. v. Goldfarb, 53 N.Y.2d 392 (1981), 595 Public Welfare Pictures Corp. v. Lord, 224 A.D. 311 (3d Dept. 1928), 227 Purchasing Assocs., Inc. v. Weitz, 13 N.Y.2d 267 (1963), 68, 466, 721 Quinn v. State Comm’n on Judicial Conduct, 54 N.Y.2d 386 (1981), 48, 49 Quinn v. Stuart Lakes Club, Inc., 57 N.Y.2d 1003 (1982), 480 Raab, Matter of, 100 N.Y.2d 305 (2003), 47 Rabeck v. New York, 391 U.S. 462 (1968), 305 Rabinowitz v. Indursky, 11 N.Y.2d 724 (1962), 61 Rachmani Corp.; New York v., 71 N.Y.2d 718 (1988), 412 Railroad Ret. Bd. v. Alton R.R. Co., 295 U.S. 330 (1935), 151, 755n1 Rainbow v. Swisher, 72 N.Y.2d 106 (1988), 675 Rangolan v. County of Nassau, 95 N.Y.2d 873 (2001), 125 Ranni’s Claim, In re, 58 N.Y.2d 715 (1982), 500 Rapp v. Carey, 44 N.Y.2d 157 (1978), 771n32 Raquel Marie X., Matter of, 76 N.Y.2d 387 (1990), 671 Raritan Dev. Corp v. Silva, 91 N.Y.2d 98 (1997), 109, 110 Ratka v. St. Francis Hosp., 49 N.Y.2d 604 (1978), 77, 78 Rattenni; People v., 81 N.Y.2d 166 (1993), 714, 715 Raven v. Deukmejian, 801 P.2d 1077 (Cal. 1990), 157 Ray A.M., Matter of, 37 N.Y.2d 619 (1975), 687

Raymond v. Republic Light Heat & Power Co., 262 N.Y. 498 (1933), 105 Redrup v. New York, 386 U.S. 767 (1967), 294 Reed Roberts Assocs. v. Strauman, 40 N.Y.2d 303 (1976), 467 Reedy, Matter of, 64 N.Y.2d 299 (1985), 50 Reeves, Matter of, 63 N.Y.2d 105 (1984), 49 Reform Educ. Fin. Inequities Today (R.E.F.I.T.) v. Cuomo, 86 N.Y.2d 279 (1995), 628, 774n3 Regan v. Lanze, 40 N.Y.2d 475 (1976), 438 Reno v. American Civil Liberties Union, 521 U.S. 844 (1997), 308 Reno v. D’Javid, 55 A.D.2d 876 (1st Dept. 1977), aff’d, 42 N.Y.2d 1040 (1977), 651 Rent Stabilization Ass’n v. Higgins, 83 N.Y.2d 156 (1993), cert. denied, 512 U.S. 823 (1994), 63, 415 Rentways, Inc. v. O’Neil Milk & Cream Co., 308 N.Y. 342 (1955), 79 Resseguie v. Adams, 55 A.D.2d 698 (1976), aff’d sub nom. Locator-Map, Inc. v. Adams, 42 N.Y.2d 1022 (1977), 426 Retail Prop. Trust v. Board of Zoning Appeals of Town of Hempstead, 98 N.Y.2d 190 (2002), 419, 420 Retail Software Servs., Inc. v. Lashlee, 71 N.Y.2d 788 (1988), 53, 55 Retail Store Employers Union, Local 345 v. Heinrich Motors, 61 N.Y.2d 900 (1984), 59 Revo; People v., 15 N.Y.2d 743 (1965), 251 Reynolds; People v., 71 N.Y.2d 552 (1988), 191 Reynolds Sec. v. Underwriters Bank & Trust Co., 44 N.Y.2d 568 (1978), 77 Rhodes v. Sperry & Hutchinson Co., 120 A.D. 467 (1907), aff’d, 193 N.Y. 223 (1908), rev’d, 220 U.S. 502 (1911), 472 Ricardo B; People v., 73 N.Y.2d 228 (1989), 90 Richardson v. Fiedler Roofing Co., 67 N.Y.2d 246 (1986), 79 Richmond County News; People v., 9 N.Y.2d 578 (1961), 274, 309 Riconda, Matter of, 90 N.Y.2d 733 (1997), 673, 680

830

Table of Cases

Riglander v. Star Co., 98 A.D. 101, aff’d no op., 181 N.Y. 531 (1905), 89 Rinaldi v. Viking Penguin, Inc., 52 N.Y.2d 422 (1981), 613 Rivera; People v., 71 N.Y.2d 105 (1988), 206 Rivera v. Smith, 63 N.Y.2d 501 (1984), 399 Rivers v. Katz, 67 N.Y.2d 485 (1986), 663, 759n20 Roberson v. Rochester Folding Box Co., 171 N.Y. 538 (1902), 93, 471 Robert, Matter of, 63 N.Y.2d 233 (1984), 129, 689 Robert S., In re, 52 N.Y.2d 1046 (1981), 578 Roberts v. Louisiana, 428 U.S. 325 (1976), 528 Robin v. Incorporated Vill. of Hempstead, 30 N.Y.2d 347 (1972), 650 Robin, People ex rel. v. Hayes, 82 Misc. 165 (1913), aff’d. 163 A.D. 725 (1914), appeal dismissed, 212 N.Y. 603 (1914), 43 Robinson; People v., 68 N.Y.2d 541 (1986), 579 Robinson; People v., 97 N.Y.2d 341 (2001), 164 Robles; People v.,27 N.Y.2d 23 (1971), cert. denied, 401 U.S. 495 (1971), 507 Rocanova v. Equitable Life Assurance Soc’y, 83 N.Y.2d 603 (1994), 465, 595 Rochester Tel. Corp. v. Public Serv. Comm’n, 87 N.Y.2d 17 (1995), 74 Rochette & Parzinii Corp. v. Campo, 301 N.Y. 228 (1950), 705 Rochin v. California, 342 U.S. 165 (1952), 205 Rodawald; People v., 177 N.Y. 408 (1904), 577 Rodney; People v., 77 N.Y.2d 672 (1991), 94 Rodriguez; People v., 85 N.Y.2d 586 (1995), 579 Rodriguez v. Wing, 94 N.Y.2d 192 (1999), 73 Roe v. Doe, 29 N.Y.2d 188 (1971), 688 Roe v. Wade, 410 U.S. 113 (1973), 641 Rogers v. Association for Help of Retarded Children, 308 N.Y. 126 (1954), 620 Rogers; People v., 48 N.Y.2d 167 (1979), 513, 769n9 Roggio v. Nationwide Mut. Ins. Co., 66 N.Y.2d 260 (1985), 499

Roman; People v., 53 N.Y.2d 39 (1981), 759n20 Romano, Matter of, 93 N.Y.2d 161 (1999), 49 Rooney v. Tyson, 91 N.Y.2d 685 (1993), 54, 55 Roper; People v., 259 N.Y. 635 (1932), 127 Rosen; People v., 96 N.Y.2d 329 (2001), 79 Rosenbaum v. City of New York, 96 N.Y.2d 468 (2001), 92 Roslyn Sav. Bank v. Merz, 11 N.Y.2d 832 (1962), 427 Roth; People v., 52 N.Y.2d 440 (1981), 707 Roth v. United States, 354 U.S. 476 (1957), 271, 272 Rothenberg; People v., 20 N.Y.2d 35 (1967), 311 Rothstein v. Tennessee Gas Pipeline Co., 87 N.Y.2d 90 (1995), 612 Rous v. Carlisle, 261 A.D. 432 (1941), aff’d no op., 290 N.Y. 869 (1943), 482 Rozell v. Rozell, 281 N.Y. 106 (1939), 103 Rubin v. Irving Trust Co., 305 N.Y. 288 (1953), 588, 598 Rubinstein v. Catacosinas, 60 N.Y.2d 890 (1983), 484 Rubinstein v. 160 W. End Owners Corp., 74 N.Y.2d 443 (1989), 408 Ruff; People v., 81 N.Y.2d 330 (1993), 517 Rufino v. United States, 69 N.Y.2d 310 (1987), op. after cert. question declined, 829 F.2d 354 (2d Cir. 1987), 53, 55, 58 Ruggiero v. Molinari, 65 N.Y.2d 968 (1985), 693 Ruggles v. Keeler, 3 Johns 263 (1808), 96 Rumsey Mfg. Corp., Matter of, 296 N.Y. 113 (1947), 72 Ruotolo v. New York, 83 N.Y.2d 248 (1994), 105 Ruppert v. Egelhofer, 3 N.Y.2d 576 (1958), 62 Russell; United States v., 411 U.S. 423 (1972), 205 Sabetay v. Sterling Drug, Inc., 69 N.Y.2d 329 (1987), 463 Sablosky v. Edward S. Gordon Co., 73 N.Y.2d 133 (1989), 497

Table of Cases Sackett v. O’Brien, 27 A.D.2d 979 (1967), aff’d no op., 23 N.Y.2d 883 (1969), 441, 443 Sailor; People v., 66 N.Y.2d 224 (1985), 523 St. Jacques v. City of New York, 88 N.Y.2d 920 (1996), 752n7 Saint Nicholas Cathedral of Russian Orthodox Church in N. Am. v. Kedroff, 306 N.Y. 38 (1953), 372 Saint Nicholas Cathedral of Russian Orthodox Church in N. Am. v. Kedroff, 9 Misc.2d 1069 (1957), aff’d no op., 6 A.D.2d 866 (1st Dept. 1958), rev’d sub nom. Saint Nicholas Cathedral of Russian Orthodox Church in N. Am. v. Kreshik, 7 N.Y.2d 191 (1959), rev’d, 363 U.S. 190 (1960), 372–373 Sakow, Matter of, 97 N.Y.2d 436 (2002), 433 Salemi; People v., 309 N.Y. 208 (1955), cert. denied, 350 U.S. 950 (1956), 525 Salvucci; United States v., 448 U.S. 83 (1980), 163, 758n13 Samms; People v., 95 N.Y.2d 52 (2000), 78 San Antonio Sch. Dist v. Rodriguez, 411 U.S. 1 (1973), 626, 627 Sanders v. Palmer, 68 N.Y.2d 180 (1986), 432 Sanders; People v., 71 N.Y.2d 946 (1988), 604 S&L Processing Lab, Inc.; People v., 33 N.Y.2d 851 (1973), 311 Sandoval; People v., 34 N.Y.2d 371 (1974), 580 Sandstrom; People v., 279 N.Y. 523 (1939), 392 Sanjivini K., Matter of, 47 N.Y.2d 374 (1979), 690 Santangelo v. New York, 71 N.Y.2d 393 (1988), 105 Santarelli; People v., 49 N.Y.2d 241 (1980), 576 Santorelli; People v. See Craft; People v. Santos; People v., 64 N.Y.2d 702 (1984), 64 Santulli v. Englert, Reilly & McHugh, P.C., 78 N.Y.2d 700 (1992), 610 Sarah K., Matter of, 66 N.Y.2d 223 (1985), 92, 128, 690 Saratoga Chamber of Commerce v. Pataki, 100 N.Y.2d 801 (2003), 89, 125 Sardino, Matter of, 58 N.Y.2d 286 (1983), 49

831

Sargent v. Board of Educ. of Rochester, 177 N.Y. 317 (1904), 331 Sarisohn, Matter of, 21 N.Y.2d 36 (1967), aff’d after remand, 22 N.Y.2d 808 (1969), remittitur amended, 22 N.Y.2d 910 (1969), cert. denied, 393 U.S. 116 (1969), 45 Sasso v. Osgood, 86 N.Y.2d 374 (1995), 418, 421 Savery, People ex rel. v. Gotham Book Mart, Inc., 158 Misc. 240 (City Magistrate’s Court 1936), 263 Saxton v. Carey, 44 N.Y.2d 545 (1978), 83, 87 Sayeh R., Matter of, 91 N.Y.2d 306 (1997), 130, 683 Scarabaggio v. Olympia & York Estates Co., 97 N.Y.2d 95 (2001), 70–71 Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935), 145, 755n1 Scheiber v. St. Johns Univ., 84 N.Y.2d 120 (1994), 349 Schenectady Sav. Bank v. Westheim, 237 A.D. 311 (1932), aff’d no op., 263 N.Y. 585 (1933), 433 Schiff, Matter of, 83 N.Y.2d 689 (1994), 47 Schillawski v. State, 9 N.Y.2d 235 (1961), 78, 438 Schneider v. Schneider, 17 N.Y.2d 123 (1966), 689, 776n13 Schneider v. Wyman, 30 N.Y.2d 956 (1972), 40 Schoharie, Vill. of v. Coons, 34 A.D.2d 701 (1970), aff’d no op., 28 N.Y.2d 568 (1971), 439–440 Schubtex, Inc. v. Allen Synder, Inc., 49 N.Y.2d 1(1979), 455 Schuck v. Kings Realty Co., 260 A.D. 1021 (1940), aff’d no op., 285 N.Y. 750 (1941), 427 Schultz v. Boy Scouts of Am., 65 N.Y.2d 189 (1985), 592 Schulz v. New York, 81 N.Y.2d 336 (1993), 458 Schulz v. New York State Executive, 92 N.Y.2d 1 (1998), 125–126

832

Table of Cases

Schumacher v. Richards Shear Co., 59 N.Y.2d 239 (1983), 130, 478 Schwartz v. Public Adm’rs, 24 N.Y.2d 65 (1969), 600 Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384 (1951), 719 Scolaro v. Little, 278 A.D. 982 (1951), aff’d no op., 303 N.Y. 809 (1952), 441 Scopelliti v. Town of New Castle, 92 N.Y.2d 944 (1998), 75 Scott; People v., 79 N.Y.2d 474 (1992), 162, 190, 758n10 Scoville v. Cicoria, 65 N.Y.2d 972 (1985), 693–694 Scurti v. City of New York, 40 N.Y.2d 433 (1976), 106 Seagroatt Floral Co., Matter of, 78 N.Y.2d 439 (1991), 480 Seaman’s Bank for Sav. v. Smadbeck, 293 N.Y. 91 (1944), 429 Sears, Roebuck & Co. v. Enco Assocs., Inc., 43 N.Y.2d 589 (1977), 610 Seawall Assocs. v. City of New York, 74 N.Y.2d 92 (1989), cert. denied, 493 U.S. 976 (1991), 415 Seckendorff v. Halsey, Stuart & Co., 259 N.Y. 353 (1932), 129 Securities Investor Prot. Corp. v. BDO Seidman LLP, 95 N.Y.2d 702 (2001), 476 Security Pac. Business Credit, Inc. v. Peat Marwick Main & Co., 79 N.Y.2d 695 (1992), 476 Sedita v. Board of Educ., 42 N.Y.2d 827 (1977), 73 Seelig v. Koehler, 76 N.Y.2d 87 (1990), 179 Seidman v. Hirshberg, 93 N.Y.2d 382 (1999), 467 Seiffert, Matter of, 65 N.Y.2d 278 (1985), 49 Seitelman v. Levine, 36 N.Y.2d 165 (1975), 697 Seltzer; People v., 122 Misc. 329 (Sup. N.Y. 1924), 261, 263 Sena v. Town of Greenfield, 91 N.Y.2d 611 (1998), 752n8 Settles; People v., 46 N.Y.2d 154 (1978), 553

SHAD Alliance v. Smith Haven Mall, 66 N.Y.2d 496 (1985), 211, 214 Shahid v. Coughlin, 83 A.D.2d 8 (3d Dept. 1981), aff’d, 56 N.Y.2d 987 (1982), 399 Shanley, Matter of, 95 N.Y.2d 310 (2002), 47 Shapiro; People v., 308 N.Y. 453 (1955), 584 Shapiro; People v., 6 A.D.2d 271 (1958), 279 Sharkey v. Thurston, 268 N.Y. 123 (1935), 81 Sharrock v. Dell Buick-Cadillac, 45 N.Y.2d 152 (1978), 211, 759n20 Shean v. Loening, 302 N.Y. 936 (1951), 438 Sheets v. Sheets, 22 A.D.2d 176 (1964), 687 Sheldon v. Edwards, 35 N.Y. 279 (1866), 126 Shelton Holding Corp. v. 150 E. Forty-Eighth St. Corp., 264 N.Y. 339 (1934), 429 Sherbert v. Verner, 374 U.S. 398 (1963), 350 Sherrill v. Grayco Builders, Inc., 64 N.Y.2d 261 (1985), 499 Shielcrawt v. Moffett, 294 N.Y. 180 (1945), 113 Shields v. Gross, 58 N.Y.2d 338 (1983), 474 Shilling, Matter of, 51 N.Y.2d 397 (1980), 48 Shumsky v. Eisenstein, 96 N.Y.2d 164 (2001), 611 Sibley, People ex rel. v. Shepard, 54 N.Y.2d 320 (1981), 682 Sidrane v. FDR Realty Corp., 296 N.Y. 357 (1947), 432 Silkman, Matter of, 88 A.D. 102 (1903), 42 Silva; People v., 69 N.Y.2d 858 (1987), 530 Silver v. Great Am. Ins. Co., 29 N.Y.2d 356 (1972), 97 Silver v. Pataki, 96 N.Y.2d 532 (2001), 83 Silver v. Pataki, 4 N.Y.3d 75 (2004), 85 Silverman v. Benmor Coats, Inc., 61 N.Y.2d 299 (1984), 500 Silverstein v. Shell Oil Co., 40 A.D.2d 34 (1972), aff’d, 33 N.Y.2d 950 (1972), 444 Simpson v. Loehmann, 21 N.Y.2d 305 (1967), 92, 129 Sims, Matter of, 61 N.Y.2d 349 (1984), 49 Sirlin Plumbing Co. v. Maple Hill Homes, Inc., 20 N.Y.2d 401 (1967), 77, 78 Sisters of St. Joseph v. City of New York, 49 N.Y.2d 429 (1980), 388

Table of Cases 833 Siwek v. Mahoney, 65 N.Y.2d 941 (1985), 693 Siwek v. Mahoney, 65 N.Y.2d 946 (1985), 694 Skaneateles Sav. Bank v. Herold, 40 N.Y.2d 999 (1976), 431 Skinner, Matter of, 91 N.Y.2d 142 (1997), 49 Skinner; People v., 52 N.Y.2d 24 (1980), 510, 519, 520, 769n11 Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602 (1989), 185 Small v. Lorillard Tobacco Co., 94 N.Y.2d 43 (1999), 70 Small v. Moss, 279 N.Y. 288 (1938), 228 Smith v. California, 361 U.S. 147 (1959), 278, 291 Smith; People v., 259 N.Y. 48 (1932), 764n19 Smith; People v., 263 N.Y. 255 (1934), appeal dismissed, 292 U.S. 606 (1934), 377 Smith; People v., 21 N.Y.2d 698 (1967), 127 Smith; People v., 59 N.Y.2d 454 (1983), 166 Smith; People v., 63 N.Y.2d 41 (1984), cert. denied, 469 U.S. 1227 (1985), 40, 207, 523, 529 Smith Barney Shearson, Inc. v. Sacharow, 91 N.Y.2d 39 (1997), 498 Sobel, Matter of, 8 N.Y.2d (a)-(j) (1948), 46 Society for Ethical Culture v. Spatt, 51 N.Y.2d 449 (1980), 385, 436 Soho Alliance v. New York City Bd. of Standards and Appeals, 95 N.Y.2d 437 (2000), 423 Solkav Solartechnik G.M.B.H. (Besicorp Group), Matter of, 91 N.Y.2d 482 (1998), 501 Sontag v. Sontag, 66 N.Y.2d 554 (1985), 77 Soto v. State Farm Ins. Co., 83 N.Y.2d 718 (1994), 596 Southeast Banking Corp. v. First Trust of New York, 93 N.Y.2d 178 (1999), 52, 58 Southeast Bank v. Lawrence, 66 N.Y.2d 910 (1985), 599 Soybel v. Abrams, 86 A.D.2d 804 (1982), aff’d, 57 N.Y.2d 856, 409 Spahn v. Julian Messner, Inc., 18 N.Y.2d 324 (1966), remanded, 385 U.S. 374 (1966),

after reargument, 21 N.Y.2d 124 (1967), 474 Spano v. O’Rourke, 59 N.Y.2d 946 (1983), 73 Spano; People v., 4 N.Y.2d 256 (1958), rev’d, 360 U.S. 315 (1959), 768n2 Spears v. Bearle, 48 N.Y.2d 254 (1979), 65, 414 Spector v. State Comm’n on Judicial Conduct, 47 N.Y.2d 462 (1979), 47 Spencer’s Case, 77 Eng. Rep. 72 (Queens Bench), 444 Spevack v. Klein, 385 U.S. 511 (1967), rev’d, 116 N.Y.2d 1048 (1965), 51 Spiegel v. Ferraro, 73 N.Y.2d 622 (1989), 439, 443 Spinella v. Rindenello, 26 A.D.2d 911 (1966), aff’d no op., 19 N.Y.2d 1010 (1967), 442 Spinelli v. United States, 393 U.S. 410 (1969), 169–170 Spitalnik v. Springer, 59 N.Y.2d 112 (1983), 409 Spivery; People v., 81 N.Y.2d 356 (1993), 94 Spotford; People v., 85 N.Y.2d 593 (1995), 579 Sprinzen, Matter of, 46 N.Y.2d 623 (1979), 469 Staber v. Fidler, 65 N.Y.2d 529 (1985), 95, 692, 694 Starr v. Rocoo, 19 A.D.2d 662 (2d Dept. 1968), aff’d, 25 N.Y.2d 1011 (1969), 365 State of. See name of state State Tax Comm’n v. Shor, 43 N.Y.2d 151 (1977), 103 Steck (State Farm Ins.), Matter of, 89 N.Y.2d 1082 (1996), 500 Steinberg, Matter of, 51 N.Y.2d 74 (1980), 48 Steinhardt v. Johns-Manville Corp., 54 N.Y.2d 1008 (1998), 129 Stephano v. News Group Publ’ns, Inc., 64 N.Y.2d 174 (1984), 472 Stere v. Mahoney, 65 N.Y.2d 941 (1985), 693 Stern, Application of, 285 N.Y. 239 (1941), 497 Sternfeld v. Forciet, 92 N.Y.2d 1045 (1999), 61 Stewart v. Long Island Coll. Hosp., 35 A.D.2d 530 (2d Dept. 1970), aff’d, 30 N.Y.2d 695 (1972), 652

834

Table of Cases

Stilley v. New York State Dep’t of Social Servs., 90 N.Y.2d 927 (1997), 40 Stillman v. Stillman, 80 A.D.2d 356 (1981), aff’d, 55 N.Y.2d 658 (1981), 497 Storar v. Dillon, 52 N.Y.2d 363 (1981), 658 Stork Rest. v. Boland, 282 N.Y. 256 (1940), 72 Strauss v. Belle Realty Co., 65 N.Y.2d 399 (1985), 129 Streep; People v., 240 A.D. 887 (1933), aff’d, 264 N.Y. 666 (1934), 263 Strevell v. Mink, 6 A.D.2d 350 (1957), aff’d no op., 6 N.Y.2d 850 (1959), 444 Strickland v. Washington, 466 U.S. 668 (1984), 206, 207 Stringfellow’s of N.Y., Ltd. v. City of New York, 91 N.Y.2d 382 (1998), 320 Sturges v. Tetlow, 43 A.D.2d 758 (1973), aff’d no op., 35 N.Y.2d 859 (1974), 442 Sturmer, Matter of, 303 N.Y. 98 (1951), 674 Suffolk Hous. Servs. v. Town of Brookhaven, 70 N.Y.2d 122 (1987), 416 Suffolk Outdoor Adver. Co. v. Hulse, 43 N.Y.2d 483 (1977), 414 Sukljian v. Charles Ross and Son Co., 69 N.Y.2d 89 (1986), 478 Sullivan v. Joy Mfg. Co., 70 N.Y.2d 806 (1987), 478 Summer v. Summer, 85 N.Y.2d 1014 (1995), 680 Sumner v. Shuman, 483 U.S. 66 (1987), 530 Sunshine, Matter of, 51 A.D.2d 326, aff’d, 40 N.Y.2d 875 (1976), 672 Sutton v. East River Sav. Bank, 55 N.Y.2d 550 (1982), 452, 455, 456 Svendsen v. Smith’s Moving & Trucking Co., 54 N.Y.2d 865 (1981), 211, 214, 761n37 Sweatland v. Park Corp., 181 A.D.2d 243 (1992), 479 Swift, People ex rel. v. Luce, 204 N.Y. 478 (1912), 45 Swislocki v. Spiewak, 273 A.D. 768 (1947), appeal denied, 273 A.D. 808 (1948), 497 Sybron Corp. v. Wetzel, 46 N.Y.2d 197 (1978), 767n6 Szerdahelyi v. Harris, 67 N.Y.2d 42 (1986), 431

Tai On Luck v. Cirota, 29 N.Y.2d 747 (1971), 61 Tall Trees Constr. Corp. v. Zoning Bd. of the Town of Hempstead, 97 N.Y.2d 86 (2001), 416 Tanges v. Heidelberg N. Am., Inc., 92 N.Y.2d 918 (1998), 126 Tanges v. Heidelberg N. Am., Inc., 93 N.Y.2d 48 (1999), 56, 592 Tankleff; People v., 84 N.Y.2d 992 (1994), 131 Tannenbaum; People v., 18 N.Y.2d 268 (1966), appeal denied, 388 U.S. 439 (1967), on reargument, 23 N.Y.2d 753 (1968), 305 Tarlowe v. Metropolitan Ski Slopes, Inc., 28 N.Y.2d 410 (1971), 567 Tarolli v. Westvale Genesee, Inc. 6 N.Y.2d 32 (1959), 441 Taylor v. New York, 302 N.Y. 177 (1951), 438, 440 Taylor; People v., 75 N.Y.2d 277 (1990), 573 Taylor v. Sise, 33 N.Y.2d 357 (1974), 90 Teachers Ins. & Annuity Ass’n of Am. v. City of New York, 82 N.Y.2d 35 (1993), 436 Telaro v. Telaro, 25 N.Y.2d 433 (1969), 79 Tenney v. Rosenthal, 6 N.Y.2d 2004 (1959), 484 Terranova v. Emil, 20 N.Y.2d 493 (1967), 430 Texas v. McCullough, 475 U.S. 134 (1986), 210 Thomas v. Boekhout, 273 N.Y. 390 (1937), 730 Thomson, Estate of v. Wade, 69 N.Y.2d 570 (1987), 442–443 Thornhill v. Alabama, 310 U.S. 88 (1940), 729 300 Gramatan Ave. Assocs. v. State Div. of Human Rights, 45 N.Y.2d 176 (1978), 72 305 E. 24th Owners Corp. v. Parman Co., 122 A.D.2d 684 (1986), rev’d, 69 N.Y.2d 991 (1987), 410 333 East 53rd St. Assocs. v. Mann, 121 A.D.2d 284 (1986), aff’d, 70 N.Y.2d 660 (1987), 689 Thrower v. Smith, 46 N.Y.2d 835 (1978), 61

Table of Cases 835 Ticor Title Ins. Co. v. Cohen, 173 F.3d 63 (2d Cir. 1999), 466 Tipaldo, People ex rel. v. Morehead, 270 N.Y. 233 (1936), aff’d, 298 U.S. 587 (1936), 141, 143 TNS Holdings, Inc. v. MKI Sec. Corp., 92 N.Y.2d 335 (1998), 125, 491, 498 Todd v. Krolick, 62 N.Y.2d 836 (1984), 437 Tomoser v. Kamphausen, 307 N.Y. 797 (1954), 480 Tongue v. Tongue, 61 N.Y.2d 809 (1984), 75 Tooker v. Lopez, 24 N.Y.2d 569 (1969), 591 Topel v. Long Island Jewish Ctr., 55 N.Y.2d 682 (1981), 567 Torasco v. Watkins, 367 U.S. 488 (1961), 402 Torres; People v., 74 N.Y.2d 224 (1989), 165, 166, 186 Townes; People v., 41 N.Y.2d 97 (1976), 518 Transit Comm’n v. Long Island R.R. Co., 291 N.Y. 109 (1943), 773n2 Trans-Lux Distrib. Corp. v. Board of Regents of the Univ. of the State of N.Y., 14 N.Y.2d 488 (1964), rev’d, 380 U.S. 259 (1965), remittitur amended, 16 N.Y.2d 710 (1965), 232, 251, 252 Treasury Employees v. Von Raab, 489 U.S. 656 (1989), 185 Tremaine; People v., 252 N.Y. 27 (1929), 751n2 Tremaine; People v., 281 N.Y. 1 (1939), 83, 87 Tri-City Roofers v. Northeastern Indus. Park, 61 N.Y.2d 779 (1984), 76 Trimble v. Gordon, 430 U.S. 762 (1977), 671 Tropea v. Tropea, 87 N.Y.2d 727 (1996), 686 Troxel v. Granville, 530 U.S. 57 (2000), 683 Tucker v. Texas, 326 U.S. 517 (1946), 396 Tudor Fifth Unit, Inc., In re, 17 A.D.2d 794 (1962), aff’d no op., 13 N.Y.2d 812 (1963), 481 Tunick v. Safir, 209 F.3d 67 (2d Cir. 2000), certified question denied, 94 N.Y.2d 709 (2000), 53, 55, 326 Turriago; People v., 90 N.Y.2d 77 (1977), reargument denied, 90 N.Y.2d 936 (1997), 41

Twin City Recycling Corp. v. Yevoli, 90 N.Y.2d 1000 (1997), 422 Twin Coast Newspapers v. State Tax Comm’n, 64 N.Y.2d 874 (1985), 63 Two Guys From Harrison-Allentown, Inc. v. McGinley, 366 U.S. 582 (1961), 404 Two Wheel Corp.; People v., 71 N.Y.2d 693 (1998), 94 Udell v. Haas, 21 N.Y.2d 463 (1968), 125, 418 Ultramares Corp. v. Touche, 255 N.Y. 171 (1931), 461–462, 475 Uniformed Firefighters Ass’n of Greater New York v. City of New York, 79 N.Y.2d 236 (1992), 79, 91 Uniformed Sanitation Men Ass’n v. Commissioner of Sanitation, 391 U.S. 280 (1968), 51 Unigard Sec. Ins. Co. v. North River Ins. Co., 79 N.Y.2d 576 (1992), 56 Union Indem. Ins. Co., Matter of, 92 N.Y.2d 107 (1998), 129 United Nations Dev. Corp. v. Norkin Plumbing Co., 45 N.Y.2d 358 (1978), 498 United States v. See name of opposing party United States Trust Co. v. Frelinghuysen, 288 N.Y. 463 (1942), 431 Uribe v. Merchants Bank of N.Y., 91 N.Y.2d 336 (1998), 455 Vaccaro, Matter of, 42 N.Y.2d (a)-(n) (1977), 46 Vacco v. Quill, 521 U.S. 793 (1997), 775n9 Vails; People v., 43 N.Y.2d 364 (1977), 576 Van Brink; People v., 174 A.D. 517 (3d Dept. 1916), 221 Van Devanter v. Long Island City, 139 N.Y. 133 (1893), 391 Van Pelt; People v., 76 N.Y.2d 156 (1990), 209, 210 Van Roo v. Van Roo, 268 A.D. 170 (1944), aff’d no op., 294 N.Y. 731 (1945), 440 Van Schaick v. Title & Mortgage Guarantee Co. of Buffalo, 264 N.Y. 69 (1934), 135

836

Table of Cases

Vanton Corp. v. New York Rapid Transit Corp., 277 N.Y. 93 (1958), 438 Van Valkenburgh v. Lutz, 304 N.Y. 95 (1952), 441 Ventimiglia; People v., 52 N.Y.2d 351 (1981), 578 Verity v. Metropolis Land Co., 248 A.D. 748 (1936), aff’d no op., 274 N.Y. 624 (1937), 433 Vernon v. Vernon, 100 N.Y.2d 960 (2003), 687 Vernon Park Realty, Inc. v. City of Mount Vernon, 399 N.Y. 493 (1954), 422 Vetere v. Allen, 15 N.Y.2d 259, cert. denied, 382 U.S. 825 (1965), 615 Video Corp. of Am. v. Frederick Flatto Assocs., Inc., 58 N.Y.2d 1026 (1983), 610 Vilardi; People v., 76 N.Y.2d 67 (1990), 206 Vincent, Matter of, 70 N.Y.2d 208 (1987), 45, 49 Vogeler v. Smith, 48 N.Y.2d 974 (1979), 76 Von Bremen v. MacMonnies, 200 N.Y. 41 (1910), 723 Von Bulow, Matter of, 63 N.Y.2d 221 (1984), 69 Wachtler v. Cuomo, 1991 WL 249892 (N.D.N.Y. Nov. 21, 1991), 777n1 Waible v. Dosberg, 54 N.Y.2d 780 (1981), 695 Walker; People v., 83 N.Y.2d 455 (1994), 582 Walkovszky v. Carlton, 18 N.Y.2d 414 (1966), 490 Wallace v. Jaffree, 472 U.S. 38 (1985), 355 Wallace v. New York State Ins. Dep’t, 6 N.Y.2d 843 (1959), 40 Wallace v. 600 Partners Co., 86 N.Y.2d 543 (1995), 455 Waltemade, Matter of, 37 N.Y.2d (a)-(ppp) (1975), 46 Walz v. Tax Comm’n of the City of New York, 24 N.Y.2d 30 (1969), aff’d, 397 U.S. 664 (1970), 388 Ward v. New York Life Ins. Co., 225 N.Y. 314 (1919), 97 Ward; People v., 159 Misc. 328 (1936), aff’d, 272 N.Y. 615 (1937), 727

Ware v. Valley Stream High Sch. Dist., 75 N.Y.2d 114 (1989), 129, 343 Washington, Matter of, 100 N.Y.2d 873 (2003), 48 Watchtower Bible & Tract Soc. v. Metropolitan Life Ins. Co., 297 N.Y. 339 (1948), 395 Waterman; People v., 9 N.Y.2d 561 (1961), 503, 504 Watson, Matter of, 100 N.Y.2d 290 (2003), 47 Weeks v. United States, 232 U.S. 383 (1914), 759n18 Weinberg v. Hertz Corp., 69 N.Y.2d 979 (1987), 70 Weinberg v. Shafler, 68 A.D.2d 944 (1979), aff’d, 50 N.Y.2d 876 (1980), 440 Weiner v. McGraw-Hill, Inc., 57 N.Y.2d 458 (1982), 463 Weinrott v. Carp, 32 N.Y.2d 190 (1973), 500 Weiss v. Karch, 62 N.Y.2d 849 (1984), 411 Weiss v. Weiss, 52 N.Y.2d 170 (1981), 776n11 Welch v. Mr. Christmas, 57 N.Y.2d 143 (1982), 474 Wendling; People v., 258 N.Y. 451 (1932), 262, 268 Wensig v. Paris Industries-New York, 158 A.D.2d 164 (1990), 479 Wesley; People v., 83 N.Y.2d 417 (1994), 566, 567 West; People v., 81 N.Y.2d 370 (1993), 503, 517 Westchester Reform Temple v. Brown, 22 N.Y.2d 488 (1968), 379, 381 West Coast Hotel v. Parrish, 300 U.S. 379 (1937), 143 West-Fair Elec. Contractors v. Aetna Casualty & Surety Co., 87 N.Y.2d 148 (1995), 56, 58 Westinghouse v. New York Transit Auth., 92 N.Y.2d 47 (1998), 55 Westpac Banking Corp. v. Deschamps, 66 N.Y.2d 16 (1985), 476, 477 West Va. State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943), 393 W.H.H. Chamberlin, Inc. v. Andrews, 271 N.Y. 1 (1936), 148

Table of Cases White v. Wieldant, 259 A.D. 676 (1940), amended, 260 A.D. 871 (1940), aff’d no op., 286 N.Y. 609 (1941), 426 Whitestone Sav. & Loan Assoc. v. Allstate Ins. Co., 28 N.Y.2d 332 (1971), 428 Whitfield v. City of New York, 90 N.Y.2d 777 (1977), 69, 75 Whren v. United States, 517 U.S. 806 (1996), 164 Wieder v. Skala, 80 N.Y.2d 628 (1992), 450, 463 Wilcox v. Stern, 18 N.Y.2d 195 (1966), 488 Wildenstein & Co. v. Wallis, 79 N.Y.2d 641 (1992), 54, 57, 480 Wilkinson v. Nassau Shores, 304 N.Y. 614 (1952), 438 Williams v. Cornelius, 76 N.Y.2d 542 (1990), 74 Williams v. New York, 18 N.Y.2d 481 (1966), 653 Williams; People v., 56 N.Y.2d 236 (1982), 583 Williams v. Quill, 227 N.Y. 1 (1938), 702 Williams v. Salerno, 792 F.2d 323 (2d Cir. 1986), 698 Willis v. S.M.H. Corp., 259 N.Y. 144 (1932), 126 Willow Tex, Inc. v. Dimacoupoulos, 68 N.Y.2d 963 (1986), 438 Wilner v. Bliss, 243 N.Y. 544 (1926), 727 Wilson, Matter of, 309 N.Y. 1011 (1956), 76 Wilson, Matter of, 50 N.Y.2d 59 (1980), 674 Wilson v. Mcglinchey, 2 N.Y.3d 375 (2004), 683 Wilson; People v., 89 N.Y.2d 754 (1997), 768n7 Wiltwyck Sch. for Boys, Inc. v. Hill, 11 N.Y.2d 182 (1962), 619 Winters; People v., 294 N.Y. 545 (1945), rev’d, 333 U.S. 507 (1948), 268, 270 Wisconsin v. Yoder, 406 U.S. 205 (1972), 345 Wise Shoe Co. v. Lowenthal, 266 N.Y. 264 (1935), 727, 729 Witter v. Taggart, 78 N.Y.2d 234 (1991), 437, 444 W.L. Dev. Corp. v. Trifort Realty, Inc., 44 N.Y.2d 489 (1978), 426

837

Wohl v. Bakery & Pastry Drivers and Helpers Local 802 of the Int’l Bhd. of Teamsters, 14 N.Y.S.2d 148 (Sup. 1939), aff’d, 259 A.D. 868 (1st Dept. 1940), aff’d, 284 N.Y. 788 (1940), remittitur amended, 285 N.Y. 843 (1941), rev’d, 315 U.S. 769 (1942), 730, 777n6 Wood; People v., 66 N.Y.2d 374 (1985), 397 Wooden; People v., 31 N.Y.2d 753 (1972), 768n6 Woodruff; People v., 26 A.D.2d 236 (1968), aff’d, 21 N.Y.2d 848 (1968), 397 Woods v. Lancet, 303 N.Y. 349 (1951), 97, 100, 103, 652 Woodson v. North Carolina, 428 U.S. 280 (1976), 523, 528 W.W.W. Assocs., Inc. v. Giancontieri, 77 N.Y.2d 157 (1990), 452 Wynehamer v. People, 13 N.Y. 378 (1856), 213 X.L.O. Concrete Corp. v. Rivergate Corp., 83 N.Y.2d 513 (1994), 720 Yager Pontiac, Inc. v. Fred A. Danker & Sons, Inc., 28 A.D.2d 61 (1967), aff’d, 41 A.D.2d 366 (1973), aff’d, 34 N.Y.2d 707 (1974), 438 Yesil v. Reno, 92 N.Y.2d 455 (1998), 53, 55, 126 Zanger, Matter of, 266 N.Y. 165 (1935), 79 Zanghi v. Niagra Frontier Transp. Comm’n, 85 N.Y.2d 423 (1995), 752n7 Zeronda v. Town Bd. of the Town of Halfmoon, 37 N.Y.2d 198 (1975), 65 Zieger v. Interborough Rapid Transit Co., 254 A.D. 908 (1938), aff’d no op., 280 N.Y. 516 (1939), 438 Zimmer v. Chemung County Performing Arts, 65 N.Y.2d 513 (1985), 129–130 Zimmerman v. Cohen, 236 N.Y. 15 (1923), 499 Zorach v. Clausen, 303 N.Y. 161 (1951), aff’d, 343 U.S. 306 (1952), 334, 336, 337, 341 Zurich Ins. Co. v. Shearson Lehman Hutton, 84 N.Y.2d 309 (1994), 596